Ward v The King

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S EAPCR 2023 0225

TERRENCE WARD	Applicant
v
THE KING	Respondent

---

JUDGES:	EMERTON P, TAYLOR and BOYCE JJA
WHERE HELD:	Melbourne
DATE OF HEARING:	18 November 2024
DATE OF JUDGMENT:	12 May 2025
MEDIUM NEUTRAL CITATION:	[2025] VSCA 101
JUDGMENT APPEALED FROM:	DPP v Ward (County Court of Victoria, Judge O’Connell, 7 February 2023) (Conviction); DPP v Ward (County Court of Victoria, Judge Mullaly, 15 December 2022) (Tendency Ruling).

---

CRIMINAL LAW – Appeal – Conviction – Indecent assault – Sexual penetration of a person aged between 10 and 16 – Sexual penetration of a person aged between 10 and 16 who was under care, supervision or authority – Sexual penetration of a child under 16 – Gross indecency – Whether jury verdicts unreasonable or cannot be supported having regard to evidence – Whether significant infirmities in complainant’s evidence – Infirmities in complainant’s evidence explicable by effluxion of time – Judge properly directed jury on forensic disadvantage – Whether key witness’ evidence properly characterised as unchallenged – Whether key witness’ evidence alibi evidence – Witness’ evidence not so cogent as to render doubt as to applicant’s guilt – Witness’ evidence not unchallenged alibi evidence – Jury not bound to accept witness’ evidence – Leave to appeal refused.

CRIMINAL LAW – Appeal – Conviction – Whether prosecutor’s comments in closing submissions created unacceptable risk of substantial miscarriage of justice – Whether prosecutor invited jury to speculate about matters not in evidence – Whether prosecutor’s closing address contained improper remarks apt to lead jury into error – No error in prosecutor’s closing address.

CRIMINAL LAW – Appeal – Conviction – Whether judge erred in ruling that evidence of complainant’s tendency to lie and make up false allegations between ages 5 and 16 was inadmissible – Whether judge wrongly attributed concessions to defence counsel – Proposed tendency evidence not of significant probative value – Judge was correct to refuse application.

Evidence Act 2008, ss 97, 135.

Palmer v The Queen (1998) 193 CLR 1; Pell v The Queen (2020) 268 CLR 123; SKA v The Queen (2011) 243 CLR 400; GAX v The Queen (2017) 91 ALJR 698; Tyrrell v The Queen [2019] VSCA 52; M v The Queen (1994) 181 CLR 487, considered.

---

Counsel
Applicant:		Mr D Mence
Respondent:		Mr R Gibson KC with Ms J Poole
Solicitors
Applicant:	James Dowsley & Associates
Respondent:	Ms A Hogan, Solicitor for Public Prosecutions

TABLE OF CONTENTS

Introduction

The evidence

First incident

Second incident

Third and fourth incidents

Fifth incident

Sixth incident

Seventh incident

Eighth incident

MMW

Applicant’s record of interview

Ground 1: Unreasonable verdicts

Applicant’s submissions

Respondent’s submissions

Consideration of ground 1

Principles

GC’s evidence

Other uncertainties/inconsistencies

Ground 2: Prosecutor’s comments in closing submissions

Applicant’s submissions

Respondent’s submissions

Consideration of ground 2

Ground 3: Ruling on tendency evidence

The evidence in question

The Ruling

Applicant’s submissions

Respondent’s submissions

Consideration of ground 3

Disposition

EMERTON P
TAYLOR JA
BOYCE JA:

Introduction

On 7 February 2023, following a trial by jury, the applicant was found guilty of four charges of indecent assault (charges 1, 9, 10 and 12),[1] four charges of sexual penetration of a person aged between 10 and 16 who was under care, supervision or authority (charges 2, 3, 8 and 11),[2] one charge of sexual penetration of a person aged between 10 and 16 (charge 6),[3] three charges of gross indecency (charges 4, 5 and 7)[4] and one charge of sexual penetration of a child under 16 (charge 13).[5] He was sentenced to five years’ imprisonment, with a non-parole period of two years and six months.
[1]Contrary to s 44(1) of the Crimes Act 1958 as amended by the Crimes (Sexual Offences) Act 1980.
[2]Contrary to s 48(1) of the Crimes Act 1958 as amended by the Crimes (Sexual Offences) Act 1980.
[3]Contrary to s 48(1) of the Crimes Act 1958 as amended by the Crimes (Sexual Offences) Act 1980.
[4]Contrary to s 50(1)(b) of the Crimes Act 1958 as amended by the Crimes (Sexual Offences) Act 1980.
[5]Contrary to s 45(1) of the Crimes Act 1958 as amended by the Crimes (Amendment) Act 2000.
The applicant seeks leave to appeal against his conviction on three grounds:
Ground 1: The jury’s verdicts were unreasonable or cannot be supported having regard to the evidence.
Ground 2: The learned prosecutor’s comments in closing submissions created an unacceptable risk of a substantial miscarriage of justice.
Ground 3: The learned judge who heard pre-trial argument erred in ruling that evidence given by the complainant’s mother of the complainant’s tendency to lie and make up false allegations between the ages of 5 and 16, was not admissible under s 97 of the Evidence Act 2008 and, in any event, should have been excluded under s 135 of the Act.
The offences were alleged to have been committed between 25 December 1988 and 31 January 1992, when the complainant was 11 to 14 years old and the applicant was aged between 42 and 45 years.
The complainant (SN) was the eldest of three girls who are the daughters of MP and RW. The two younger girls, MMW and JW, are profoundly deaf. At all relevant times, MP and RW were separated and had little to do with one another. The three girls lived with MP and her partner, NP, in Belgrave South. We shall refer to them collectively as ‘the P family’.
When they were young, MP would often take the girls to Warrnambool to stay with her older sister, LC. The applicant was LC’s partner. LC and the applicant did not live together, but the applicant often stayed over at LC’s house.
In late 1988, when the offending commenced, until sometime in 1990, LC lived in a large, two-storey house on Raglan Parade. She later moved to a smaller house on Jason Street.
LC had a teenage son, GC, who lived with her at different times. It was alleged that GC participated in an assault that took place in his bedroom at Raglan Parade and in another assault that took place downstairs in the rumpus room. One of the factual disputes at trial was whether GC was living at the Raglan Parade house when incidents involving him took place there.
Some time in 1989, GC went to live with his father elsewhere in Warrnambool. He moved to Camperdown later that same year. GC was involved in a serious car accident when he was 21, which left him with an acquired brain injury and both physical and cognitive deficits.
GC was initially unable to be found to give evidence in the trial, but was located part way through the trial. He gave evidence via video link from his local police station. He denied the conduct alleged against him by SN.
LC was deceased by the time of the trial, but SN, MP and MMW gave evidence, along with NP and RW.
The charges arose from eight incidents which took place between Christmas 1988 and Christmas 1990. All but one of the incidents took place in Warrnambool, either at LC’s house on Raglan Parade, LC’s house on Jason Street, or at the applicant’s home. The remaining incident took place at the home of MP and NP in Belgrave South when LC and the applicant came to visit.

The evidence

SN

First incident

SN gave evidence that she recalled visiting Warrnambool at the end of 1988 or early 1989, when she was roughly 11 years old. There was an occasion on which she and her two sisters went out on a boat belonging to the applicant. They met MP, LC and NP for a picnic beside the Hopkins River.
After the picnic, MP told SN and MMW to go back to help the applicant wash the boat. They drove back to the applicant’s home. SN went into the applicant’s house and MMW stayed in the car. SN went into the first room, where there was a single armchair. She sat down on the chair and the applicant went back outside. When he returned, he told her to get up off the chair. He sat down on the chair and told her to sit on his lap. She was facing him. He asked if she would like to touch his crotch area. He was fully dressed at that stage. She followed his instructions and put her hand over his crotch. He put his hand on top of her hand and moved her hand over his crotch area. He then told her to get off the chair and take off her pants. He unzipped his pants and shuffled them down to expose himself. He told her to get back on his lap in the same way. He put his hands on her top and started feeling her breasts. He then started touching inside and around her vagina with his fingers (charge 1). He asked whether she liked it and she said that she did.
The applicant then asked her to touch his penis, which she did. He put his hand over her hand and pulled her hand up and down over his penis. He then told her to get on top of his penis. He held his penis in one hand and her waist in the other and guided her over the top of his penis. She could feel his penis inside her vagina (charge 2). He put both his hands on either side of her waist and moved her up and down. He talked to her about needing to see white stuff coming out of her vagina. SN got off the applicant and he told her that she was not to tell anyone about what happened and that she needed to practice. They then went to the car and drove back to LC’s house.

Second incident

SN gave evidence about another occasion during the same visit (Christmas 1988) when she was alone with the applicant in LC’s house. They were in the dining room just off the kitchen. The applicant asked her to sit on his lap. She took off her underwear. His pants were down around his ankles. He asked her to sit on top of him and she went over and straddled him. She was sitting on his penis and his penis was inside her vagina. She could not touch the floor. The applicant had both his hands on her waist and was moving her up and down (charge 3).

Third and fourth incidents

SN gave evidence that sometime after the first incident (in late 1988 or early 1989) but before the 1989 VFL Grand Final (in September 1989), she was in GC’s bedroom with GC and the applicant. She was lying on the bed with GC in front of her. She did not have her underwear on, but could not remember how she was dressed. The applicant told GC to touch her by putting his fingers inside her vagina (charge 4), which GC did. The applicant then told GC to put his penis inside her vagina (charge 5), which GC did. She could recall some movement and seeing GC’s face over hers. GC got off her and only the applicant remained in the room. The applicant had been standing over the bed to her right side. He then got on top of her and put his penis inside her vagina (charge 6). She did not know how long it went on for. She could not recall the applicant stopping or what she did after he left.
SN gave evidence that she, GC and her sisters used to make cubby houses downstairs in the rumpus room using blankets, chairs and the bar. During the same visit, she and GC were playing in a cubby house and the applicant was on the outside looking in. She cannot recall at what point in time she took off her underwear, but the applicant told GC to get on top of her and put his penis inside her vagina (charge 7), which GC did. She cannot recall how long that lasted, but GC rolled over and was lying beside her when the applicant then got on top of her and put his penis inside her vagina (charge 8).

Fifth incident

SN gave evidence about events in late September 1989 or early October, shortly after the VFL Grand Final. On the day of the Grand Final, she was at the MCG participating in the half-time entertainment. That evening, the family drove down to Warrnambool.
SN gave evidence that the family watched a replay of the Grand Final the following day, which was a Sunday. There was a bathroom in the house with a big spa bath. SN used the spa on that visit. As she was filling up the spa bath, the applicant came into the bathroom. She was naked. She had one leg down on the floor and the other leg was raised, because she was touching the water to see whether it was too hot to get in. The applicant came up from behind and put his fingers inside her vagina (charge 9). At that point, she heard someone come up behind them but could not recollect who it was. This person said to the applicant something along the lines of ‘what are you doing in there?’ The applicant then removed his hand.
SN gave evidence that she associates her recollection of the family watching a replay of the 1989 VFL Grand Final with this offending, but she cannot recall whether both happened on the same day.

Sixth incident

SN recalled going to Warrnambool in April 1990 and celebrating her 13^th birthday at Bojangles, a local restaurant. During this visit, she went on another boat trip on the Hopkins River with MMW, LC and the applicant. They had a picnic at the same spot as last time. After the picnic, she, MMW and the applicant went back in the boat and back to the applicant’s house. She had an inkling of what might happen, so she told her mother she did not want to go back on the boat, but her mother told her she was ungrateful and that she had to.
When they arrived at the applicant’s house, MMW remained in the car and SN went inside with the applicant. As during the first incident, the applicant asked her to jump on top of him in the same straddling position. He put his fingers inside her vagina (charge 10) and then pulled her on top of his penis so that his penis was inside her vagina (charge 11). He moved her hips around as he had on the previous occasion. He asked if she was enjoying it and she said yes. She did not recall hopping off him, but she did remember going back to the car and driving to LC’s house.

Seventh incident

SN gave evidence about an incident that took place in her home in Belgrave South when LC and the applicant visited the P family, possibly around the time of the Melbourne Cup in 1990. She was in the bedroom and the applicant came in and sat down. MP came into the bedroom and said she was going out with LC, which meant that only SN and the applicant were left in the house. MP closed the door on SN and the applicant. SN was wearing a skirt and the applicant tried to weave his hands through her underwear. He touched her vagina (charge 12) but struggled to get into her vagina as her underwear was still on. On this occasion, she did not take off her underwear and the applicant gave up.

Eighth incident

SN gave evidence about another incident when she was about 13, possibly at Christmas 1990, when she and family members were in Warrnambool. LC had moved to Jason Street by then. There was a dartboard in the garage and SN played darts with various people who were there. At one stage she was alone in the garage with the applicant. There was a table in the garage and she was leaning over it. She was wearing a dress and the applicant came from behind and put his fingers inside her underwear and then inside her vagina (charge 13).
Complaints
When asked whether she ever told anybody about these incidents, SN said she spoke to a teacher ‘later on’. She said that she also spoke to friends, but never in detail, as she was always very embarrassed about the detail.
SN gave evidence that she spoke to MMW when they returned from the first incident at the applicant’s house. She briefly told MMW that the applicant had touched her. The next time they spoke about it was quite a few years later.
SN gave evidence that at some point after her 13^th birthday in April 1990 and before the incident that she linked to the Melbourne Cup (that is, after incident six and before incident seven) she told MP that the applicant had touched her in a sexual way.
SN also gave evidence that at one point, MP came into her bedroom and asked if the applicant had ever touched her. When she told MP that the applicant had touched her, MP said, ‘tell me the goss’. At that point, she realised that MP was not a woman with whom she wanted to share what had happened to her. However, they had discussed it years later on a number of occasions.
SN gave evidence that she also told her biological father, RW, what had happened to her, and he could not believe that MP had done nothing about it, so he encouraged her to contact MP, which she did. She rang MP and told her that the applicant had raped her and asked why she had not done anything about it. MP just kept repeating, ‘I’m sorry, I’m sorry’ and crying. SN eventually passed the phone back to her father.
She said she had also discussed these events with her husband, CN, over the years, but never went into detail. When she was roughly 18 or 19 years old, she visited Warrnambool with CN. At some point during the trip, she had a conversation with CN, GC, and GC’s then girlfriend, in which she told them that the applicant had raped her.

GC

GC gave evidence that he lived with LC in the house on Raglan Parade from time to time. In 1987 and 1988, when he was aged 14 and 15, he lived there and spent every second weekend at his father’s house. When he was 16, he moved to Camperdown. He gave conflicting evidence as to whether this was in 1989 or 1990. He said that before moving to Camperdown he lived with his father for four to five months.
GC said that he remembered MP, NP and the three girls. While he was aware SN was his cousin, he could not remember what she looked like and said that he would not be able to recognise her today. He had no memory of SN and her family visiting the Raglan Parade house, or of ever being present when they visited, although he did recall them visiting the Jason Street house. He said that during this period he would have spent parts of Christmas with each of his parents, although he had no memory of spending Christmas with SN and her family at Raglan Parade. On the weekends that he spent at his father’s house, he had no idea whether LC had any family members visit her at Raglan Parade.
GC denied the alleged offending related to the third and fourth incidents and said that no sexual activity between him and SN ever took place. He denied that the applicant ever told him to put his fingers or penis inside SN’s vagina. He said that he was never in a cubby house with SN.
The prosecutor put to GC that he would be aware that engaging in sexual activity with SN was wrong. GC agreed, explaining that ‘[s]he’s part of my family’. The prosecutor then put to him that this may be a good reason to deny such activity, to which GC responded, ‘[n]o, I wouldn’t have done it’.
GC gave evidence that in July 1991, he was involved in a serious car accident which left him with an acquired brain injury. He accepted that the brain injury affected all of his functioning. However, he gave evidence that his long-term memory was fine and he had problems with his short-term memory.

MP

MP gave evidence that after she met NP and was living in Belgrave with the three girls in the late 1980s, they went to Warrnambool a number of times. NP would not always accompany them. They stayed with LC at Raglan Parade. It was a very large double-storey house with many rooms. LC lived there with her son GC. The applicant sometimes stayed over while they were there.
GC’s room was upstairs, down the passage close to the main bedroom. There was a games and pool room downstairs. They would send the girls down there to play because you could not hear their noise.
MP gave evidence that they went out on the applicant’s boat more than once. On one occasion, the applicant said he had to wash it down and asked for some helpers. The girls went to help. She recalled a second occasion on which the girls went to help wash down the boat. The ‘girls’ were SN and MMW.
MP gave evidence that if she and LC needed to go out to get groceries, the applicant would say he had some things to do at home and ask whether the girls wanted to come with him. She would let them go. She did not think they would come to any harm.

MP said she did not recall SN telling her, shortly after her 13th birthday, that the applicant had sexually touched her, and she agreed she would remember something like that and that it was something she would have acted on.
MP was asked about complaints that were made to MMW and SN’s biological father. MP gave evidence that sometime in the early 2000s, MMW told her that SN had said the applicant had touched or interfered with her, or words to that effect. She spoke to LC about it. LC responded by saying that SN was lying.
As to whether she spoke to SN about what MMW had told her, MP said she could not recall, but it was possible that she did speak to SN, she just couldn’t remember. She did remember having a conversation with RW in which he described her as ‘a bad mum’ and too disciplinarian. She thought that RW was relaying what SN had said to him. There was no mention of SN alleging that the applicant had sexually assaulted her that she could recall. If she had been told that SN had said that the applicant had sexually assaulted her, she would think she would have remembered it. She could not say she was never told, she just did not recall being told.
MP gave evidence that when SN was about 16, SN made contact with her biological father, RW. MP said she could not really remember RW ringing her to say that SN had made allegations against the applicant. At the time, MP had major health problems and was on heavy medication. She might have had a phone conversation with RW, but she did not recall it. When pressed, MP said she would not deny that RW and SN had spoken to her on the phone, she just did not remember it. When the contents of the conversation were put to her and she was asked whether it jogged her memory, she said that it did not.
MP denied that SN told her the applicant had touched her and that she had responded by saying, ‘tell me the goss’. She said that that was not something she would say.

MMW

MMW recalled visiting LC in Warrnambool during school holidays. They would go at Easter and at Christmas time on a repeated basis. LC lived in three different houses over the period that they visited. The first was a fibro house in quite poor condition. LC met a man called Brian and moved into the big brick house, which MMW described as ‘a middle-to-upper-class house’. The final home was a smaller cottage that was quite near LC’s workplace at the hospital. The Raglan Parade house was the ‘middle to upper class house’. It had two levels. Upstairs was more roomy and open plan, whereas downstairs had more separate rooms. Downstairs there was a bedroom where GC would sleep. When they visited, GC and the applicant were in the house. The applicant would often be there, but she was not sure that he lived there.
MMW said that as SN and GC could hear (that is, they were not deaf), the two of them spent time together. SN’s two sisters had disabilities and very poor language development, so of course SN spent time with GC.
When asked whether she could remember any occasions on which the applicant, GC and SN were together, she said there was not one specific time, it was recurring. The applicant was always in the house and GC lived there.
MMW gave evidence that GC was at Raglan Parade in 1989 when she was 10 years old. She could not be certain that he was living there, but he was in the house and he still had a bedroom there.
MMW gave evidence that SN said to her, ‘He touched me’. SN said that to MMW for many years. MMW said she was illiterate at age 10. When SN told her that the applicant had touched her, she did not understand what that meant. Nonetheless, she could see from her sister’s face and body language that she was distressed; something was off, or wrong.

NP

NP recalled first visiting Warrnambool with MP and the girls in early 1985. They visited quite regularly, maybe a couple of times a year, and would stay with LC. Generally, the trips were from Friday through to Sunday, however this was different over Christmas. There were a few occasions on which he did not accompany MP and the girls to Warrnambool.
NP recalled LC having a big house on Raglan Parade where she lived with GC. He could not comment on GC’s specific living arrangements as between Raglan Parade and his father’s house.
NP said that LC entered into a relationship with the applicant after her previous partner passed away in 1986. The applicant did not live at Raglan Parade, but he stayed over and was mostly at the house when NP visited. NP did not know exactly where the applicant lived, although he may have driven past the house at some stage. He recalled SN and MMW going to the applicant’s house on a couple of occasions ‘to pick something up, or do something’. The applicant ‘always seemed to have some reason to want to drop around to the house’.
NP could not recall any other occasion on which SN and MMW went anywhere else with the applicant, although he could recall going on a boat trip on the Hopkins River.
NP did not recall SN ever telling him that the applicant had sexually interfered with her ‘in any shape or form’, nor did he recall any other person telling him of such a thing. If he had heard of such a complaint, he would have remembered and acted on it.

RW

RW gave evidence that he had been married to MP and was the father of SN, MMW and JW. The marriage ended in 1984.
Between 1984 and 1992, he had no contact with any of the girls. The first contact that he had was with SN in 1992 when she was around 16 or 17 years old. From that point on he continued to have some contact with her from time to time. He remembered SN staying with him for a short period of time on two occasions in the early 1990s.
RW recalled that sometime between 1994 and 1996, SN told him that her aunt’s partner had sexually assaulted her in Warrnambool. She didn’t identify who had sexually assaulted her beyond this description, but he knew that she was talking about the applicant. He advised SN to call her mother.
RW gave evidence that in either 1995 or 1996, he called MP and informed her of what SN had told him. He suggested that MP go to the police and speak to her sister. MP then asked if SN was with him, which she was, and if she could speak to her. MP and SN had a conversation over the phone and SN broke down crying. RW said he could not hear any of the conversation, but he did recall hearing SN repeatedly say, ‘It did happen, Mum’ before hanging up the phone.
RW said that he then asked SN whether she wanted to go to the police but she said no, and insisted that it needed to be spoken about between her and her mother. He never called the police himself and did not speak to MP again after the phone call or discuss the topic again with SN.
It was put to RW that before SN hung up the phone he spoke to MP a second time and told her to ‘stuff’ her pride and her sister, and go to the police to do something about it. RW denied this, and said that it was during a conversation with SN after the phone call had finished that he said these things. He also denied that he could not exactly recall what he had said to MP on the phone.
RW gave evidence that up until this moment, he had had no contact with MP save for the odd phone call once in a while about petty or trivial matters. He accepted that MP may have contacted him about SN’s schooling arrangements while SN was living with him, but he did not recall MP coming to see him in person to discuss this. He said that he had not seen MP until giving his evidence.
RW denied that the phone call with MP in 1995 or 1996 did not happen and that there was an in-person meeting in the early 1990s instead.

Applicant’s record of interview

The applicant participated in a record of interview which was tendered as part of the prosecution case. In his record of interview, the applicant denied that the offending ever took place and described the allegations as ‘lies’.
The applicant said that he met LC in either 1987 or 1988. They were together until September of either 1995 or 1996, throughout which time they cohabitated, spending most of the time at LC’s house and some of the time at the applicant’s house. When he first met LC she had a house on Raglan Parade. She later sold the Raglan Parade house and moved somewhere further out of Warrnambool. He said the Raglan Parade house was an old house built on a slope with three bedrooms, two bathrooms, and a games room on the bottom level.
The applicant said that LC had three children: two girls, the eldest of whom he could name; and a boy named GC. When the applicant began the relationship with LC, only GC, who was then 14 years old, still lived at home. The applicant said he had a good relationship with GC and saw his role as more of a friend than a parent, although he did take on a guardianship role as he was concerned for GC because his father had a drinking problem. He described GC as ‘very reserved and quiet, and timid in many ways’. He recalled that GC had a bedroom down the hallway at Raglan Parade.
The applicant recalled that LC’s sister, MP, would come to visit LC in Warrnambool with her partner and three daughters on special occasions such as Christmas and Easter. The two youngest girls were deaf. The first names of the eldest and youngest (SN and JW) sounded familiar to him, but he did not recall the first name of the middle child (MMW).
It was the applicant’s recollection that when MP and her family came to visit they would often ‘do their own thing’. As to the time he spent with them during their visits, he said that they had barbecues together in the backyard and they probably went to the beach together in summer. He remembered owning a boat and accepted that it was possible that he took MP and her family out on the boat on the Hopkins River, although he could not specifically remember doing so. He could not recall any occasion on which SN went with him to put the boat back in his backyard, although he accepted that it was possible. He said that he took GC out on the boat a couple of times, but only ever with LC.
The applicant could not recall any specific occasions on which he was alone with MP’s children at LC’s house, in his car, or at his own house. He said that that if there were occasions when he was alone with them, it would have been when MP and LC had gone shopping and he stayed home. He said he would hug the girls when they arrived at the house to say hello, and that SN and MMW may have sat on his lap in the lounge room while watching television, although they would had to have ‘kicked the cat off to get there’. He said he rarely went downstairs to the area where SN and GC played, and had no memory of making a cubby house with them.
The applicant said that he did not have any great recollection of the P family being at Raglan Parade and that most of what he could remember of them was when they visited the Jason Street property, or ‘the property in North Warrnambool’ as he recalled it. He remembered visiting MP and NP in Belgrave a couple of times.

Ground 1: Unreasonable verdicts

Applicant’s submissions

The applicant submits that the jury’s verdicts were unreasonable or cannot be supported having regard to the evidence: first, because GC’s evidence was ‘alibi’ evidence that was not refuted and the jury was therefore bound to accept it; and, secondly, because there were significant infirmities in SN’s evidence.
The applicant submits that GC’s evidence is properly understood as ‘alibi’ evidence which ought to give rise to a reasonable doubt as to his guilt. GC’s evidence qualifies as alibi evidence for two reasons: first, GC denied engaging in any sexual activity with SN, despite such engagement being an inextricable component of charges 4, 5 and 7; and, secondly, GC gave evidence that he only lived with LC at her house for a short period between 1988 and 1991 and was not living at Raglan Parade when the third and fourth incidents allegedly took place there.
In describing GC’s evidence as alibi evidence, the applicant relies on the High Court’s decision in Palmer v The Queen.[6] In Palmer there was unchallenged evidence that the accused was working as a process server at the time of the alleged events. The High Court accepted that, although this was not alibi evidence in the strict sense, it ‘was, in substance, an alibi’ and went on the say that:
If the alibi evidence is so cogent as to engender in any reasonable mind a doubt of the accused’s guilt, the conviction must be quashed and a verdict of acquittal entered however cogent the prosecution evidence would otherwise be.[7]
[6](1998) 193 CLR 1; [1998] HCA 2 (‘Palmer’).
[7]Palmer (1998) 193 CLR 1, 12 [14] (Brennan CJ, Gaudron and Gummow JJ); [1998] HCA 2.
The applicant submits that, just as in Pell v The Queen,[8] there was unchallenged evidence from a Crown witness (GC) that exonerated the applicant, at least in respect of the third and fourth incidents. The jury was bound to accept GC’s evidence, as what was put to him by the prosecution was not sufficient to undermine it. The prosecution put to GC that he had no memory of the offending because of his acquired brain injury. However, it did not squarely put to GC that he was lying because he was implicated in the third and fourth incidents and knew the conduct to be wrong. Although the prosecutor put to GC that ‘knowing that [the offending the subject of the third and fourth incidents] was very wrong [was a] good reason why [he] might deny it’, the motive to lie was posed as a hypothetical rather than squarely put.
[8](2020) 268 CLR 123; [2020] HCA 12 (‘Pell’).
The applicant submits that there was therefore no proper basis for the prosecutor to submit to the jury in closing that they ought not to accept GC’s denials because he had a motive to lie.
The applicant further submits that the jury ought to have accepted GC’s evidence as true and correct on the basis of his clear memory of events and the prosecution’s failure to lead expert evidence about the impact of his acquired brain injury on his long-term memory. GC said he was never present when SN and her family stayed at Raglan Parade, but he did recall them visiting Jason Street. The reason that GC cannot recall SN being at Raglan Parade, the applicant submits, is not because his memory of that time period is poor, but because he was not living there at the time. In fact, GC went on to give evidence that his acquired brain injury had not had any impact on his long-term memory and that he only had problems with his short-term memory. According to the applicant, ‘the idea that [he] can’t remember things because of his acquired brain injury flies in the face of his evidence-in-chief’.
The applicant contrasts GC’s clear memories with SN’s lack of precision and certainty about the dates of the alleged offending. For example, the charge in respect of the fifth incident (in the spa) was particularised as occurring on Sunday 1 October 1989, but in her evidence SN backed away from that date and said that she could not recall the day on which the incident occurred. Similarly, the charges flowing from the third and fourth incidents involving GC were particularised as occurring between 24 March and 30 September 1989, but in her evidence SN was not able to place these incidents within this six-month period.
The applicant submits that this inability to recall the dates on which the offending took place meant that the prosecution was not able to refute beyond a reasonable doubt GC’s evidence that he was not living with LC when the third and fourth incidents took place. It is not enough, the applicant submits, that GC may have been living nearby or have occasionally visited the Raglan Parade house.
In this context, the applicant relies on SKA v The Queen in which the High Court held that in order to determine whether verdicts were unsafe or unsatisfactory it was necessary for the appellate court to form a view about the date(s) of the offending in order to weigh the whole of the evidence.^[9]
[9](2011) 243 CLR 400, 408 [20]–[21] (French CJ, Gummow and Kiefel JJ); [2011] HCA 13 (‘SKA’).
As to the infirmities in SN’s evidence, the applicant points to what he contends are florid details, implausibilities, objective falsehoods or contradictions with objective evidence, and unreliable memories or reconstruction, to submit that SN’s evidence was unreliable and incapable of being accepted.
In support of this contention, the applicant refers to the decisions of the High Court in GAX v The Queen[10] and this Court in Tyrrell v The Queen.[11] Both these cases featured a sole complainant with no corroborating evidence and, the applicant submits, illustrate the proposition that a credible complainant can give unreliable evidence such that a reasonable jury must have entertained a reasonable doubt.
[10](2017) 91 ALJR 698; [2017] HCA 25 (‘GAX’).
[11][2019] VSCA 52 (‘Tyrrell’).
In GAX, the complainant was unable to provide salient details, such as how the offending commenced or concluded, and was therefore found to be relying on a reconstruction of events of false memories.[12] The applicant submits that there is a similar deficiency in this case, pointing specifically to the fifth incident (in the spa) and SN’s failure to remember who walked in when she said the applicant was digitally penetrating her.
[12]GAX (2017) 91 ALJR 698, 703–4 [27]–[31] (Bell, Gageler, Nettle and Gordon JJ); [2017] HCA 25.
Furthermore, it is submitted, SN failed to identify a beginning and an end to the offending in each of the seven incidents.
According to the applicant, the following features in Tyrrell are presently relevant: aspects of the complainant’s account were contradicted by other witnesses and were inconsistent with expert medical evidence;[13] the complainant accepted that aspects of his account were imagined;[14] the allegations were florid in content and number;[15] and the offending was so brazen as to render it implausible.[16]
[13]Tyrrell [2019] VSCA 52, [31], [41].
[14]Tyrrell [2019] VSCA 52, [48]–[49].
[15]Tyrrell [2019] VSCA 52, [124].
[16]Tyrrell [2019] VSCA 52, [124].
In this context, the applicant points to the following features of his trial:
•aspects of SN’s account were contradicted by GC and MP, who themselves were unchallenged witnesses as to their memories;
•there was inconsistent objective evidence, such as the fact that no replay of the 1989 VFL Grand Final was broadcast on live‑to‑air television in Warrnambool during the relevant period;
•some of SN’s evidence suggested reconstruction, including her evidence of what she remembers in her nightmares; and
•there were ‘florid’ details in SN’s memory of LC calling out to her during the VFL replay, notwithstanding that she could not recall many other things.
The applicant says further that as in Tyrrell, the offending was brazen, given the proximity of family members at the time of the offending, and submits that the applicant must be given the benefit of the forensic disadvantage resulting from SN’s imprecision about dates.
The applicant submits that even if it were to be accepted that SN presented as compelling witness, applying the test in Mv The Queen,[17] there are objective reasons to harbour a doubt. GC’s evidence, on its own, leaves open the possibility that an innocent person has been convicted. When considered with all the other deficiencies in the evidence, including the unreliability of SN’s evidence, the implausibility of her account and the contradictory oral and documentary evidence, that doubt becomes overwhelming and informs the assessment of the balance of the charges.

Respondent’s submissions

[17](1994) 181 CLR 487, 494 (Mason CJ, Deane, Dawson and Toohey JJ) (citations omitted); [1994] HCA 63 (‘M’).

The respondent submits that there was little in cross-examination to impugn SN’s evidence or attack her credit, save for the repeated allegation that she was a liar. It is of no moment that SN cannot remember who spoke to the applicant in the bathroom when he was committing the offence that is the subject of the fifth incident. SN was facing the bathtub and she did not say that she saw the person, only that she heard the question. The respondent submits that the applicant inflates the significance of the Grand Final and that this was a peripheral aspect of the account relating to charge 9.

It is submitted that although the complainant fails to recall some details, given the lapse of time this does not qualify as exhibiting ‘all the hallmarks of unreliability’. Furthermore, it is not significant that the offending was brazen as it is not uncommon in offending against children that the offender is undeterred by the risk of detection by other adults. It is also not inconsistent with the truth nor indicative of reconstruction that the complainant has nightmares about aspects of the offending.
As to the reliability of SN’s evidence, the respondent points to supporting evidence for a number of parts of her evidence:
•frequent family trips to Warrnambool, during which they would stay with LC. This included on long weekends, school holidays and Christmas;
•SN being in the applicant’s boat and going back with him to his house to wash the boat;
•SN going to the applicant’s home during her trips to Warrnambool;
•GC living with LC, having his own room, and therefore being present when the family stayed, and spending time with SN; and
•the applicant visiting SN’s home in Melbourne with her aunt.
The respondent submits that this case can be distinguished from the other cases relied on by the applicant. For example, the appellants in M’s case and Tyrrell gave sworn evidence, unlike the applicant in the present case.[18] In Tyrrell, the court noted considerations that are not live in the present case, including: that it was a most unusual case; the delay was over 50 years; there were fundamental discrepancies between the complainant’s evidence and other evidence; the complainant’s account suffered from serious inconsistencies; and there were serious credit issues, including significant prior convictions.[19]
[18]M (1994) 181 CLR 487, 491; [1994] HCA 63; Tyrrell [2019] VSCA 52, [32].
[19]Tyrrell [2019] VSCA 52, [161]–[162].
As for GC’s evidence, the respondent submits that GC was not an alibi witness. In any event, there was a solid basis for the prosecution to submit that the jury should reject his evidence given that he was vague about when he was and was not living with LC, and he had a considerable interest in denying wrongdoing. Importantly, this was put to him by the prosecutor during his evidence.

Consideration of ground 1

Principles

Section 276(1)(a) of the Criminal Procedure Act 2009 (‘CPA’) requires the Court to allow an appeal against conviction if satisfied that the verdict of the jury is unreasonable or cannot be supported having regard to the evidence.
It is well established that where, notwithstanding that as a matter of law there is evidence to sustain a verdict, a court of criminal appeal is asked to conclude that the verdict is unsafe or unsatisfactory, the question which the court must ask itself is whether it thinks that upon the whole of the evidence it was open to the jury, acting rationally, to be satisfied beyond reasonable doubt that the accused was guilty.[20]
[20]M (1994) 181 CLR 487, 493 (Mason CJ, Deane, Dawson and Toohey JJ); [1994] HCA 63; Pell (2020) 268 CLR 123, 146–7 [42]–[45] (Kiefel CJ, Bell, Gageler, Keane, Nettle, Gordon and Edelman JJ); [2020] HCA 12; Dansie v The Queen (2022) 274 CLR 651, 657–8 [8]–[9] (Gageler, Keane, Gordon, Steward and Gleeson JJ); [2022] HCA 25.
Following the High Court’s decision in Pell, this Court must proceed on the basis that the jury assessed SN’s evidence as credible and reliable.[21] If the jury’s verdict is to be displaced, it must be by reference to something other than ‘the evaluation of the witnesses in the witness-box’.[22] The question then is whether, upon an examination of the record, the jury, acting rationally, ought to have entertained a reasonable doubt as to the applicant’s guilt, whether by reason of inconsistencies, discrepancies or other inadequacies in SN’s evidence, or in light of other evidence.[23] The question is whether, having regard to those matters, the jury must (rather than might) have entertained a doubt as to the applicant’s guilt.[24]
[21]Pell (2020) 268 CLR 123, 145 [39] (Kiefel CJ, Bell, Gageler, Keane, Nettle, Gordon and Edelman JJ); [2020] HCA 12.
[22]Pell (2020) 268 CLR 123, 145 [37] (Kiefel CJ, Bell, Gageler, Keane, Nettle, Gordon and Edelman JJ); [2020] HCA 12.
[23]Pell (2020) 268 CLR 123, 145 [39] (Kiefel CJ, Bell, Gageler, Keane, Nettle, Gordon and Edelman JJ); [2020] HCA 12. See also M (1994) 181 CLR 487, 494–5 (Mason CJ, Deane, Dawson and Toohey JJ); [1994] HCA 63; Gardner (a pseudonym) v The King [2024] VSCA 83, 17–18 [85]–[89] (Emerton P, McLeish and Macaulay JJA).
[24]Libke v The Queen (2007) 230 CLR 559, 596–7 [113] (Hayne J, Gleeson CJ agreeing at 562 [1], Heydon J agreeing at 597 [117]); [2007] HCA 30.
Under this ground, in order to establish inconsistencies, discrepancies or other inadequacies in SN’s evidence, the applicant relies principally on GC’s denials that he was involved in any of the offending alleged in the third and fourth incidents. He also points to aspects of SN’s account that were inconsistent with other evidence, including objective evidence, and to what he says is the general implausibility of some of her allegations.
As much emphasis was placed on GC’s evidence — it was said to warrant an acquittal on its own — it is convenient to deal with it first.

GC’s evidence

GC was not an alibi witness in the conventional sense, in that he could not attest that the applicant was ‘elsewhere’ when the offending that is the subject of the third and fourth incidents took place. No alibi notice was served by the defence.
Nonetheless, the applicant submits that GC was an alibi witness in the sense in which that term was used in Palmer and that, as a consequence, the prosecution had to establish beyond reasonable doubt that his evidence should be rejected. He relies on the reasoning of Weinberg JA in this Court’s decision in Pell v The Queen:
[W]here the defence consists of what is, in substance, an alibi, the onus always rests upon the prosecution to establish, beyond reasonable doubt, that the alibi should be rejected. It must be understood that no onus ever rests upon an accused to establish the truth of any alibi, once it has been sufficiently raised. The ‘reasonable possibility’ that the alibi might be true will, of itself, negate opportunity. The existence of that ‘reasonable possibility’ must therefore result in an acquittal.[25]
[25][2019] VSCA 186, [949] (Weinberg JA) (citation’s omitted).
GC’s ‘alibi’ evidence was, in substance, as follows:
(a)In relation to the third incident:
•He does not recall being at Raglan Parade with SN at any point.
•The applicant did not tell him to put his fingers inside SN’s vagina.
•He did not put his fingers inside SN’s vagina.
•The applicant did not tell him to put his penis inside SN’s vagina.
•He did not put his penis inside SN’s vagina.
(b)In relation to the fourth incident:
•He was never in a cubby with SN.
•The incident did not happen, but if it did happen, he did not see it.
•He did not penetrate SN with his penis.
•The applicant might have penetrated SN but he didn’t see it. He wasn’t there. The incident as described did not happen.
•Nothing sexual happened in respect of him, the applicant and SN.
It is true that if the jury accepted this evidence (or concluded that it was reasonably possible), the applicant would have to be acquitted of charges 4, 5 and 7, and the reliability of SN’s evidence on the remaining charges would be called into question. But GC’s evidence was qualitatively different from the evidence in Palmer, where the High Court found the evidence to be ‘… so cogent as to render in any reasonable mind a doubt as to the accused’s guilt’.[26] The cogency of the evidence was critical.
[26]Palmer (1998) 193 CLR 1, 12 [14] (Brennan CJ, Gaudron and Gummow JJ); [1998] HCA 2.
In Palmer, the appellant was convicted of sexual offences said to have taken place when he took the complainant in his car to a particular place on a particular day. The appellant worked as a process server and gave sworn evidence that he was serving process elsewhere throughout the afternoon and evening of the day in question. He had sworn affidavits of service to buttress this evidence. The affidavits attested to the service of process some distance from where the offending was alleged to have occurred, such that the appellant could not have carried out the offending and carried out the service of process at the same time. If the affidavits of service were true, as the appellant swore they were, he could not have engaged in the conduct of which he was convicted. The High Court examined the affidavits of service and the process for their production, concluding that, so far as the appellant’s evidence could be tested, it was confirmed.[27]
[27]Palmer (1998) 193 CLR 1, 12–15 [15]–[22] (Brennan CJ, Gaudron and Gummow JJ); [1998] HCA 2.
It was in this context that the High Court said that if the alibi evidence would engender in any reasonable mind a doubt of the accused’s guilt, the conviction had to be quashed and a verdict of acquittal entered, however cogent the prosecution evidence would otherwise be. The question here is whether GC’s evidence was so cogent as to engender in any reasonable mind a doubt about the applicant’s guilt.
In this case, GC unequivocally denied that he did the things alleged in respect of the third and fourth incidents. He buttressed this evidence with evidence that he was not living at Raglan Parade when the offending was said to have occurred (between Easter and September 1989), that he did not recall being with SN at Raglan Parade ‘at any point’ and, indeed, that he did not recall the P family being at Raglan Parade.
However, while GC’s denials that he participated in any sexual offending against SN were emphatic, his evidence about whether he was living at Raglan Parade between Easter and September 1989, which was put forward to buttress the denials, was unclear.
In broad compass, GC’s evidence was that he was living with his mother and spending every second weekend with his father until he moved in with his father full‑time a few months before he moved to Camperdown at the age of 16.
GC first said he moved to Camperdown in 1990 and lived exclusively with his father in Warrnambool for about four or five months before that. This would have him living at Raglan Parade during the first half of 1989, albeit that he stayed with his father every second weekend.
Pressed to agree that he moved to Camperdown in early 1989 (when he first turned 16) he said he was ‘not sure’ but it would have been ‘around that time’. He said he did not actually remember, because ‘it’s a long time ago’. But he confirmed that he would have been 16 when he left ‘mum’s to go to dad’s’. When further pressed to agree that he moved to his ‘dad’s at the start of that year that [he] turned 16’, he said ‘early on in that year’ and agreed that he turned 16 in January.
The best that can be said about this evidence is that it is uncertain when in 1989 GC moved out of Raglan Parade and in with his father. Even if GC moved to Camperdown in 1989, and not in 1990 as he first said, that is not inconsistent with him living at Raglan Parade for a period of time in 1989.
As to GC’s evidence that he did not recall the P family being at Raglan Parade, a number of witnesses gave evidence that GC lived with his mother at Raglan Parade and was present at Raglan Parade when the P family was there. MMW gave evidence that GC was at Raglan Parade in 1989 when she was 10 years old. While she could not be certain that he was living there, he was in the house and he still had a bedroom there. NP recalled LC having a big house on Raglan Parade where she lived with GC, although he could not comment on GC’s specific living arrangements as between Raglan Parade and his father’s house.
When advised of this and asked whether he could offer an explanation as to why he could not remember the P family being at Raglan Parade, GC said, ‘because I don’t remember exactly what happened that year’.
It is quite clear to us that GC’s evidence cannot be equated with the alibi evidence in Palmer — sworn evidence that Palmer was elsewhere and affidavits of service of process confirming that was so. GC’s evidence does not have a high degree of cogency. It consists of bare denials that any sexual activity took place and evidence that provided only weak support for the proposition that he was not living at Raglan Parade when the third and fourth incidents took place.
It is therefore not the case, as the applicant submits, that the prosecution was required to ‘refute beyond a reasonable doubt’ GC’s evidence that he was not living with LC when the third and fourth incidents took place.
Furthermore, the applicant’s submission that GC was an ‘unchallenged witness on the Crown case’ cannot be accepted.
First, with leave, the prosecutor cross-examined GC about his memory following his serious car accident in 1991, when he received an acquired brain injury and other significant, life-altering injuries. The jury learned that his sense of smell, sight, hearing and taste were impaired, and that he had temper and mood problems, depression and anxiety, as well as epilepsy. GC gave evidence that his injuries affected all his functioning and that he was on ‘significant medication’ as a result of ‘mental issues’ that continued to that day. Although he gave evidence that his memory problems affected his short-term memory and not his long-term memory — an assertion that was not challenged — the jury were entitled to take into account the fact of his acknowledged sensory impairments and ‘mental issues’ when assessing the consistency and reliability of his evidence.
Secondly, the prosecutor put to GC that he had a motive to lie about the allegations, given that what was alleged against him was ‘wrong’. Although not charged, GC was criminally concerned in the offending alleged against the applicant. Again, the jury were entitled to take this factor into account when assessing his denials. They were entitled to conclude that he had a considerable interest in denying the very serious wrongdoing. That is a matter of ordinary human experience. GC was given the opportunity to respond to the allegations, including that he had a motive to lie, and did so.
The jury was not bound to accept GC’s evidence. It was open to the jury to reject it and prefer the evidence of SN about the third and fourth incidents. Put another way, we are not persuaded that GC’s evidence required the jury to find that it was reasonably possible that SN’s account of the third and fourth incidents was not correct such that there was a reasonable doubt as to the applicant’s guilt. It also follows that the jury was not bound to assess the credibility and reliability of SN as to the other incidents alleged through the prism of GC’s evidence that the third and fourth incidents had not occurred.

Other uncertainties/inconsistencies

As discussed, apart from his contentions about the special significance of GC’s evidence, the applicant has raised a number of other problems with the evidence that he says must raise a reasonable doubt about the applicant’s guilt. He points to inconsistencies between SN’s evidence and MP’s evidence about the complaints made to her, and to inconsistencies between SN’s account and the objective evidence, specifically in relation to the replay of the 1989 Grand Final. He argues that other aspects of SN’s account had ‘all the hallmarks of unreliability’, including her inability to recall ‘intrinsic’ details about the offending, such as the identity of the person who walked in on the applicant and SN in the spa room and said, ‘what are you doing?’ He also submits that SN made statements that were indicative of reconstruction (‘It definitely did occur because I have nightmares of my feet dangling and not being able to stand up on that ground’).
According to the applicant, the decisions of the High Court in Pell and GAX, and this Court in Tyrrell, illustrate the proposition that a credible complainant can nevertheless give unreliable evidence such that a reasonable jury must have entertained a doubt. We accept that proposition.
However, this case can be distinguished from those cases, in that the inconsistencies, discrepancies and inadequacies in the evidence are slight in comparison.
In Pell, the High Court accepted that the likelihood of two choirboys in their gowns being able to slip away from the procession without detection; of finding altar wine in an unlocked cupboard; and of the appellant being able to manoeuvre his vestments to expose his penis, were not discrepancies or inadequacies of such a character as to require the jury to have entertained a doubt as to guilt. However, it remained the case that
the evidence of witnesses, whose honesty was not in question, (i) placed the applicant on the steps of the Cathedral for at least ten minutes after Mass on 15 and 22 December 1996; (ii) placed him in the company of Portelli when he returned to the priests’ sacristy to remove his vestments; and (iii) described continuous traffic into and out of the priests’ sacristy for ten to 15 minutes after the altar servers completed their bows to the crucifix.[28]
[28]Pell (2020) 268 CLR 123, 164 [118] (Kiefel CJ, Bell, Gageler, Keane, Nettle, Gordon and Edelman JJ); [2020] HCA 12.
These ‘compounding improbabilities’ resulting from the unchallenged evidence required the jury, acting rationally, to have entertained a doubt as to the appellant’s guilt. The relevant evidence, that of the witnesses Potter and Portelli, placed the appellant elsewhere from where the offending was alleged to have taken place. It was unchallenged. Again, this evidence had a cogency that gave rise to a reasonable doubt that the appellant had the opportunity to do the acts alleged against him. [29]
[29]Pell (2020) 268 CLR 123, 164 [118]–[119] (Kiefel CJ, Bell, Gageler, Keane, Nettle, Gordon and Edelman JJ); [2020] HCA 12.
In Tyrrell, significant aspects of the complainant’s account were contradicted by other witnesses and were inconsistent with expert medical evidence. In particular, the complainant told police that the alleged offending had continued over a period of time in which the accused was no longer employed at the school in question. Again, it was established that he was elsewhere. The medical evidence was to the effect that it was likely the complainant would have been badly injured by some of the assaults that he described, but there was no evidence of any such injury, not even from the complainant himself. The complainant claimed to have been assaulted on 142 different occasions, some of which involved such brazen assaults as to be implausible. Furthermore, the complainant himself accepted that aspects of his account were imagined or else were the product of recurring nightmares.
In GAX, the complainant’s recall of events was found to be ‘generally poor’.[30] She could give no evidence of being touched by the accused. When asked about what the accused was doing while he was on the bed, she said that she was ‘asleep before and ended up finding out what happened’.[31] In response to a question about how her underwear came to be around her ankles, she said ‘[t]ime, I didn’t know. All I knew was my Dad had just hopped off the bed’.[32] The complainant’s mother and sister gave different evidence about the position of the complainant’s underwear when she ran out of the room crying: her sister said that the complainant’s underwear was ‘right down’; her mother gave evidence that the underwear was folded down about an inch.[33] The High Court concluded that there was a real possibility which could not be excluded beyond reasonable doubt that the complainant’s evidence was a reconstruction and not an actual memory.[34]
[30]GAX (2017) 91 ALJR 698, 701 [10] (Bell, Gageler, Nettle and Gordon JJ); [2017] HCA 25.
[31]GAX (2017) 91 ALJR 698, 704 [29] (Bell, Gageler, Nettle and Gordon JJ); [2017] HCA 25.
[32]GAX (2017) 91 ALJR 698, 704 [29] (Bell, Gageler, Nettle and Gordon JJ); [2017] HCA 25.
[33]GAX (2017) 91 ALJR 698, 704 [30] (Bell, Gageler, Nettle and Gordon JJ); [2017] HCA 25.
[34]GAX (2017) 91 ALJR 698, 704 [31] (Bell, Gageler, Nettle and Gordon JJ); [2017] HCA 25.

In this case, as is most often the case when allegations of child sex abuse are tried many years after the alleged events, some of the prosecution evidence was unclear or uncertain. SN did not have a perfect recall of the circumstances surrounding the events that she described in her evidence. As the applicant submits, she did not remember how the incidents ended in most cases. She could not be at all specific as to dates. Memories of other witnesses were not always consistent with hers. In particular, there was conflict between MP’s and SN’s evidence as to whether SN complained directly to MP, and as to whether MP asked SN to ‘tell her the goss’ and effectively left SN at the applicant’s mercy when she shut the door on SN and the applicant at the house in Belgrave South (the eighth incident). Furthermore, SN’s initial recollection that the fifth incident occurred the day after the Grand Final (Sunday) during the television replay of the game is not consistent with the objective evidence.
In our view, these are inconsistencies, discrepancies and inadequacies that are largely explicable by the effluxion of time and the attendant fading of memories.
In fact, SN’s evidence was largely consistent with the evidence of the other family members. Her cross-examination, which was conducted over two days, did not succeed in undermining the core elements of her account, which remained consistent. The defence position was not that SN imagined the offending, or that someone other than the applicant offended against her. It was that SN was lying in respect of each of the incidents of offending.
The allegation that SN was telling lies had to extend to each of the complaints she had made during her teenage years — to MMW, MP and RW — and later to her husband, CN. The complaint evidence was significant to show consistency. Despite some conflict between SN’s and MP’s evidence as to what MP was told by SN, the existence of complaints made to other family members — MMW and RW — when SN was in her teenage years was not put in doubt.
It is the position that SN was vague about dates, particularly in relation to the third and fourth incidents, and as to the precise timing of the fifth incident. This made it very difficult, if not impossible, for the applicant to place himself elsewhere, or adduce other evidence that might call into question the veracity or reliability of her account. Again, this is an unfortunate consequence of the very long delay in reporting the allegations, and the corrosive effect of time on memory.
However, this case is not like SKA, where the offending was alleged to have taken place on a precise day, which was extended to a (still relatively precise) three day period as a result of the way in which the evidence emerged, and there was different alibi evidence in relation to each of the days. The High Court recorded that evidence as follows:
The date of the incidents the subject of counts 4 and 5 is critical because the applicant led evidence at trial which provided an alibi for the period from the evening of 22 December up to and including Christmas Eve. The applicant gave evidence that he was at a concert, in which one of his daughters was performing, on 22 December 2006, a fact confirmed by his wife. There was evidence that, on the evening of 23 December 2006, the applicant and his family visited a person recently arrived from overseas at his home and remained there until about 11 pm. Other evidence confirmed a large gathering, on the evening of 24 December, for dinner at the home of the complainant’s family. The evidence of the first mentioned witness was unchallenged and the other witnesses were not seriously challenged about their accounts.[35]
[35]SKA (2011) 243 CLR 400, 408 [9] (French CJ, Gummow and Kiefel JJ); [2011] HCA 13.
It was in this context that the High Court in SKA held that the New South Wales Court of Criminal Appeal did not satisfactorily determine the date at which it was alleged that the appellant committed the relevant offences and said:
On appeal, the task of the Court of Criminal Appeal was to make an independent assessment of the whole of the evidence, to determine whether the verdicts of guilty could be supported… [T]he Court of Criminal Appeal was required to form an opinion as to the date of the 2006 offences in order to weigh the whole of the evidence. The reasons for judgment by Simpson J do not disclose that the Court of Criminal Appeal made an independent assessment of the evidence concerning the 2006 offences, and therefore the Court could not weigh the competing evidence to determine whether the verdicts of guilty could be supported.[36]
[36] SKA (2011) 243 CLR 409 [22] (French CJ, Gummow and Kiefel JJ); [2011] HCA 13.
In this case, the ‘competing evidence’ cannot be assessed by reference to events on specific dates, other than possibly the Grand Final evidence. SN gave evidence that on the Sunday, there were replays of the football from the day before and LC was watching them. But she could not recall whether the spa incident (the fifth incident), was actually on that day. In fact, she gave evidence that she had never said the spa incident occurred on the Sunday, only that she associated it with the trip to Warrnambool following the Grand Final.
In cross-examination, SN described a large number of adults watching football replays in the loungeroom on the Sunday. She also agreed that there were ‘numerous’ or ‘multiple’ adults in the ‘lounge kitchen area’ when she was running the bath/spa on the day of the fifth incident. She said it wasn’t the gathering on the Sunday. When it was put to SN that her description of everyone sitting around watching re-runs or replays of the 1989 VFL Grand Final on the Sunday ‘didn’t happen’, she answered that it did happen, ‘because my auntie was quite excited with the fact that she could see me in the half time spectacular re-run’. There was, of course, objective evidence that there was no replay or re-run of the Grand Final on television in Warrnambool on the Sunday.
It appears from this exposition of the evidence that whether or not there was a replay of the Grand Final on the television on the Sunday is not directly relevant to the reliability of SN’s evidence about the spa incident, but is relevant to the reliability of her evidence more generally. In that sense, as the respondent submitted, the evidence about the re-runs of the Grand Final on the Sunday is peripheral to the spa incident.
However, SN’s imprecision about the dates of the incidents, while explicable by the passage of time and her youth at the time of the offending, gives rise to a significant forensic disadvantage to the applicant. He could not, as could the appellant in SKA, be geographically positioned elsewhere at the relevant times.
The applicant points generally to the significant forensic disadvantage that he suffered as a result of the very long delay in the complaint being made to police, and the further five-year delay before the matter came to trial. This included imprecision about dates (the third and fourth incidents were said to occur between March and September 1989) and the unavailability of witnesses who could be expected to give exculpatory evidence (for example, LC).
The trial judge was satisfied that the applicant had experienced a significant forensic disadvantage in being confronted with allegations of criminal offending almost 30 years after the events were said to have occurred. His Honour informed the jury of the nature of the disadvantage and directed them to take it into account when considering the evidence. His Honour’s instruction as to the nature of the disadvantage covered the following considerations: the applicant lost the opportunity to make enquiries at or close to the time of the offending that may have cast doubt on the offending, such as whether he had been left alone with the complainant and where GC was living at the time; enquiries could not be made of LC and her evidence that the allegations were all lies as she had passed away before the complaint to police was made; the applicant was unable to raise a defence that he was elsewhere at the time of the offending as, save for the fifth incident, the complainant was unable to identify with any specificity when the offending took place; records that may have cast doubt on the prosecution case such as school records were no longer available; there is a lack of detail in the witness’ recollection of the layout of the houses; and the applicant could not provide specific details when denying the allegations in his record of interview, therefore making it difficult for him to raise any defence other than a simple denial. The trial judge instructed the jury that they must take the forensic disadvantages into consideration when determining whether the prosecution had proved the applicant’s guilt beyond reasonable doubt.
It must be assumed that the jury obeyed this direction.
Having reviewed the evidence, we are not persuaded that the inconsistencies, discrepancies or inadequacies identified required the jury, having assessed SN’s evidence as credible and reliable, to have had a reasonable doubt about the applicant’s guilt.
Ground 1 is not made out.

Ground 2: Prosecutor’s comments in closing submissions

The applicant submits that the prosecutor’s closing address invited the jury to speculate about matters that were not in evidence and contained improper remarks that were apt to lead the jury into error. According to the applicant, the prosecutor’s framing of these remarks as ‘suggestions’ did not ameliorate the risk of error.
The impugned remarks are as follows.
Regarding the evidence that the 1989 VFL Grand Final was not replayed on Warrnambool television the following day, the prosecutor said:
[Y]ou will remember that again, the defence went to extensive efforts to show that there was no replay on any television stations.
That may well be right. However, if you look closely at the documentation, you’ll see that Channel 9, for example, between 11 o’clock and one, had a sports show the day after the Grand Final.
Now, again, it’s only my suggestion to you, do you think it’s likely that the sports show the day after the Grand Final, which was quite a controversial one, and some of you probably — most of you may not remember, but the game actually started with a very controversial incident when one of the Geelong players just ran straight through one of the Hawthorn players as the ball was bounced, and down he went and there was all sorts of mayhem at that stage and the game went on from there and in the end, there was only a goal the difference between the two sides, despite all of the efforts.
Now, it was a very controversial game from that point of view. Do you think — do you think it’s likely that Channel 9 in their sports show showed some of the football between 11 and one? It's possible. In my suggestion, you can accept it or not. It’s entirely up to you.
But let me postulate another scenario about that. Again, the uncontradicted evidence in this case is that SN actually was part of the half-time spectacle that occurred, and she was performing some dancing. You remember there was that evidence. Again, this evidence, no one has suggested that that evidence is incorrect, so there it is there before you.
Now, again, purely my suggestion, nothing more than that, is it just possible that the family might have recorded something liked [sic] that? Is that not something a family might do? I think, if my memory serves me correctly, SN actually said that LC was trying to look at whatever they were looking at to see if they could see SN during that period of time, and I think she even said that LC was able to identify her.
So, is it, the explanation as to what they were watching simply a recording of the game and the half-time spectacle that occurred that she was watching on the Sunday. Again, that is simply my argument to you, that that's a possibility that could explain how she was able to say we were watching the — I think the words she uses, 'the re-runs' on the Sunday. It seems, in my submission to you, seems perfectly plausible and reasonable. [37]
[37]Emphasis added.
Regarding the reliability of GC’s evidence, the prosecutor said:
So at the very least, you would have to accept that the failure of Mr Ward and GC to say ‘I have no memory of them being at Raglan Parade’, that they have very poor memories. Now is that — in terms of GC, is that due to his unfortunate accident that he happens to have later on? And all the issues that flow from that? Was this just a convenient blocking out of events that occurred in Raglan Parade, that are in fact exactly as SN has told you and they’re simply saying ‘Well you know, it's all lies, it's just all lies’.
But if you have no memory of what happened when people are there in Raglan Parade, how do you positively say that things didn’t happen? Have you just blocked things out? Block out these events that have been sworn to by SN? As I say, you might you know feel some sort of level of sympathy for GC not remembering it because of the fairly — well obviously very horrific accident that he had and all of the consequences that flowed from it. Not the least of which as he said, he had the acquired brain injury, which as he said, effected all his functioning, but more specifically, he actually says he has no memory of SN at all.
Now I think, as I recollected, when it was put to him he said ‘If she'd walk through the door, he wouldn't recognise her’. Well you know maybe — perhaps not having seen her for many years and their contact was when they're youthful, you might — that might be explicable. But what I would suggest to you is not explicable in that context is, that he says ‘I don't remember her at all’. Now again, that may be due to the accident that he's had, but it does flow from that that it's very difficult in those circumstances to deny things that — alleged to have occurred at a time when he says he has no memory of that particular individual.[38]

Applicant’s submissions

[38]Emphasis added.

The applicant submits that the prosecutor’s remarks about the replay of the Grand Final were ‘free-floating’ from the evidence and were factually inaccurate, as no Channel 9 sports show such as Wide World of Sports was broadcast in Warrnambool during the relevant period. It was misleading to suggest that SN’s memory of the family watching re-runs of the Grand Final for a ‘couple of hours’ could be construed as the family watching Wide World of Sports. So too was the suggestion that the family may have recorded the match on a VHS Cassette, none of which was put to SN. These ‘suggestions’ should not have been relayed to the jury in the way that they were.
As to the remarks about GC’s evidence, the applicant submits that none of these matters were put to GC and that it was therefore not open to the prosecutor to suggest that he was conveniently blocking out events; that he had joined in with the applicant in saying that ‘it’s all lies’; that he was unable to remember sexually abusing SN because of his acquired brain injury; or that there was an inexplicable lacuna in his evidence. The Crown did not lead any expert evidence about GC’s cognition or memory.

Respondent’s submissions

The respondent submits that the prosecutor’s remarks about the whether there was a replay of the Grand Final, either by way of a recording or as a segment on a sports show, were within the scope of counsel’s address. For SN to have heard LC yell out to her that she was on television, it was not necessary for a full replay of the game to have been shown. There were other plausible explanations for why SN may have heard that said.
The respondent submits that the prosecutor’s comment to the jury was a peripheral or incidental issue at best. Even if the jury accepted that SN was wrong or mistaken about the adults watching a full replay of the match and LC calling out to her, that did not mean that the core of her account about the fifth incident fell away. SN anchored the act of digital penetration to when she was about to get into the bath. While this occurred on a trip to Warrnambool immediately following the VFL Grand Final, at which event SN performed, the replaying of the match and LC’s calling out to her were not central to SN’s account. The respondent submits that the applicant has inflated the significance to the narrative of the Grand Final replay.
In any event, the respondent says, defence counsel chose not to take exception at the time. Furthermore, any doubt about SN’s account of this incident is relevant only to charge 9 and is not indicative of a substantial miscarriage of justice across all charges. To suggest otherwise would be to ignore s 44F of the Jury Directions Act 2015.
As to the prosecutor’s commentary on GC’s evidence, the respondent submits that, contrary to the applicant’s contention, GC’s evidence was not unchallenged. The prosecutor cross-examined GC on his memory following the car accident and the acquired brain injury. GC accepted that the injury affected all of his functioning. He said he did not have any memory of SN and did not know what she looked like, despite a number of sources saying that he lived with LC at the time and was present when SN and the P family visited. It was also put to him that, in denying there was any sexual activity between himself and SN, he had a motive to lie.

Consideration of ground 2

There is little to be said about this ground.
In our view, there is nothing in the complaint about the prosecutor’s commentary on the Grand Final evidence. As the respondent submitted, the Grand Final replay was peripheral to the central allegations and SN’s evidence about the fifth incident did not hinge on the Grand Final replay taking place at the same time as the assault, although the prosecution opening had referred to it occurring on that day. Ultimately, she said the spa incident was associated in her mind with the 1989 Grand Final, but the spa incident did not necessarily take place on the Sunday. No exception was taken to the comments at the time, and they were addressed and countered in detail (and with considerable emphasis) by defence counsel in his closing address.
As for the comments about the possible impact of GC’s accident on his memory, for the reasons we have given, we do not consider that GC’s reliability as a witness was ‘unchallenged’. The impugned comments essentially called on the jury to carefully consider GC’s evidence in light of the fact that he did not remember the P family visiting his mother at all until she was living at Jason Street — which was not consistent with the evidence of other witnesses. It seems that the prosecutor was seeking to draw attention to the contrast between GC having no memory whatsoever of SN or the P family being at Raglan Parade, while at the same time purporting to state definitively that certain things that SN said took place at Raglan Street did not in fact take place.
The comments concerning GC’s memory seem to us to arise from the nature of the evidence that he gave. Once again, no objection was taken to the comments at the time.
In any event, even if allowing the comments to go forward was an error on the bases submitted by the applicant, we do not consider that it was so significant as to give rise to a substantial miscarriage of justice. The Court must dismiss an appeal against a conviction despite finding error or irregularity in the trial below where it considers that there has been no substantial miscarriage of justice as a result of that error or irregularity (or for any other reason).[39]
[39]CPA, ss 276(1)(b), 276(1)(c), 276(2). See, eg, Ali v R (2022) 73 VR 132,147 [47]; [2022] VSCA 31; Saricayir v The Queen [2018] VSCA 319,[106]; Ward v The Queen (2018) 55 VR 307,329 [98]; [2018] VSCA 80.
Ground 2 is not made out.

Ground 3: Ruling on tendency evidence

The applicant submits that the judge who heard pre-trial argument erred in ruling that evidence given by MP during a preliminary hearing,[40] conducted in accordance with s 198B of the CPA, of SN’s tendency between the ages of 15 and 16 to lie and make up false allegations, was not admissible under s 97 of the Evidence Act and, in any event, should be excluded under s 135 of that Act.[41]
[40]On 2 February 2022.
[41]Pre-trial argument regarding the admissibility of tendency evidence was heard on 15 November, 29 November and 15 December 2022. Parties initially made written submissions on this ground based on Judge Mullaly’s oral reasons for refusing the defence tendency application, which were given on 15 December 2022. On 25 March 2024, his Honour provided the parties with extensive written reasons and each party submitted a revised written case.

The error is said to result from the judge’s finding that defence counsel conceded during the course of the pre-trial hearing that MP’s evidence that SN was a liar as a child could not be probative of or diminish the complainant’s credit when she gave the full account of the alleged crimes in 2017. Further, the applicant submits that the tendency evidence is of significant probative value and is not collateral to the facts in issue or to the credibility and reliability of SN’s account and the judge’s decision is incorrect on the merits.

The evidence in question

MP’s evidence about SN’s tendency to lie was as follows:
In that conversation with LC you talk about at least it relates to [SN], her telling lies in the past?---Yes.
Sorry but you don’t say that about [MMW]?---No, no. [SN] fabricates things, she always has since she was a little girl.
Right, and in respect — well what do you mean by that? So what has she always been lying and what has she been lying about?---Oh that she was going up overseas with her grandmother on a cruise um, just little — little things, wanting to be the sort of the centre of attention so she would dramatize things and — sorry?
So as I understand it. So when [SN] is a little bit older she has sort of always lied to be the centre of attention?---Yes.
She does it not just once, twice, she does it — she was doing it constantly?---We had psychology, we had a counsellor trying to work out why she was doing it and try to um work because she had two deaf sisters, they put it down to she was wanting the attention that her sisters were getting, yep.
And how old was she when she started this issue of lying?---In grade preps.
In preps?---Yep.
Oh so a really little kid?---Yes.
So four of five years old?---Correct.
Okay, and then she has continued lying throughout?---Yes.
And does this continue all the way up until she was 16 and she leaves?---Yes.
And how old was she when you were having her assessed by various psychologists?---When she was five upwards, we even went and saw counsellors — counsellors came to the house, the school’s principal came to the house trying to work out how we can — what motive is she doing it for.
And so there was sort of regular counsellors that are either coming to the house or you are taking her to counsellors regularly?---Correct.
And when you say counsellors, you are meaning that can be like just school type counsellors, psychologists, psychiatrists, professionals, the whole range?---Correct.
All right, and this is specifically about her propensity or her tendency to tell lies all the time?---Correct.
Now if this sort of issue started when she was in prep, how long were you taking — was she seeing professionals for and when I say professional that could be a counsellor or a psychologist?---Oh until she was in year nine.
Okay, and it was always about this issue of continuing — was it always seeing them about the lying?---About um — she would make allegations about people um, she would make allegations about me bashing her um, just anything to sort of get attention at school.
And to be clear there is one — so that is allegations just to sort of school teachers or principals or people at school?---Yes.
And I — to be clear, if she made allegations about you bashing her, were they true or untrue?---No they were untrue. I was firm — I was a firm mum but I didn’t bash her.
Okay, and were there allegations about other people?---Oh she — like she made allegations about her — my husband's mum taking her away for a holiday. She was going away on a cruise with her Nana um, and that sort of hurt the younger members of my husband's family. Why would she say that. Why would Nana take her away and not us.
The applicant filed a notice of intention to adduce tendency evidence dated 17 October 2022 in accordance with s 97(1)(a) of the Evidence Act which identified the tendency evidence as that adduced in cross-examination of MP at the s 198B hearing:
•‘SN fabricates things, she always has since she was a little girl’.
•‘About um — she would make allegations about people um, she would make allegations about me bashing her um, just anything to sort of get attention at school ... they were untrue. I was firm — I was a firm mum but I didn't bash her.’
•‘ ... [J]ust little — little things, wanting to be the sort of the centre of attention she would dramatize things’.
•‘[S]he made allegations about her — mu husband’s mum taking her away for a holiday. She was going away on a cruise with her Nana um, and that sort of hurt the younger members of my husband’s family’.
The Notice went on to outline what MP said she did in response to the complainant’s perceived lying:
•‘We had psychology, we had a counsellor trying to work out why she was doing it’.
•‘When she was five upwards, we even went and saw counsellors — counsellors came to the house, the school’s principal came to the house trying to work out how we can — what motive is she doing it for’.
•SN was seeing counsellors and psychologists until she was in Year 9.
During pre-trial hearing on 15 and 29 November 2022, defence counsel submitted that there was a temporal connection between the period of lying identified by MP and SN’s evidence of when she first complained to her biological father, and then to her mother during a phone call, when she was around 16 years old. As the Crown intended to use SN’s evidence about those complaints to bolster her credibility, it was important for the jury to hear MP’s evidence about SN’s tendency to lie at that time.
On 15 December 2022, the judge heard further argument in response to a notice of additional evidence filed by the prosecution. The additional evidence was a statement from MP in which she said nothing about SN’s lying, only that SN had been rebellious as a child. There was also a statement from SN’s deputy school principal about his recollection of SN’s behaviour at school, and a further statement from one of the professionals with whom MP said she had spoken about SN’s ‘attention-seeking’.
The prosecution submitted that MP had ‘walked back’ on her evidence about SN’s tendency to lie and stated that the additional evidence rebutted the proposition that SN had seen a counsellor or psychologist due to her lying. The prosecutor submitted that the tendency evidence was too ‘thin’ to meet the test for significant probative value and, in any event, that it should be excluded under s 135 of the Evidence Act as it was ‘misleading and causing an undue waste of time’.

The Ruling

The judge made an ex tempore ruling on 15 December 2022, at the conclusion of the hearing. A detailed written ruling was published some time later.[42]
[42]DPP v Ward (Couty Court of Victoria, Judge Mullaly, 15 December 2022) (‘Tendency Ruling’).
His Honour found that the proposed tendency evidence was an unsupported assertion or opinion that related to a small aspect of the overall case against the applicant. The alleged tendency was reliant on very thin examples of alleged lying to establish a very broad proposition. Taken at its highest, the proposed evidence fell well short of having significant probative value in establishing the alleged tendency and the alleged tendency did not make it more likely that the ultimate fact in issue in the case was undermined. The evidence was, at best, collateral to the facts in issue and SN’s credit with respect to the allegations.
In so holding, the judge referred to concessions that he understood had been made by the defence:
… It was conceded by defence that [SN]’s ultimate detailed and specific complaint to the police in 2017, when she was much older, at 40 years of age, was an account in a different category. It was conceded that the mother’s evidence that [SN] was a liar as a child, could not be probative of or diminish [SN]’s credit when she gave the full account of the alleged crimes in 2017. It was acknowledged that the gap in time — a lacuna as counsel described it — diminished that impact of any tendency said to have been evident in [SN ]’s much earlier years.
Thus, the probative force of the alleged tendency evidence was solely its balancing impact on the evidence of [SN]’s earlier general complaints to relatives. The sole purpose of the evidence was to address the issue of [SN]’s credit when she made the first general complaints to family members.[43]
…
The disconnection brought about by the passage of time made the purported existence of a childhood tendency simply no longer relevant and thus certainly not at the level of significantly probative of the facts in issue. In this regard, the defence did concede the effect of the passage of time, restricted the relevance and probative value of the evidence to the issue of [SN]’s credit when she made generalised complaints in her teenage years.[44]
[43]Ruling, [21] (emphasis added).
[44]Ruling, [27] (emphasis added).
The existence, or not, of those concessions is one of the principal grounds on which the Ruling is now challenged.

Applicant’s submissions

The applicant submits that the Ruling is conducive of error as it relies on a finding that defence counsel conceded during the pre-trial hearing that MP’s evidence that SN was a liar as a child could not be probative of or diminish SN’s credit when she gave the full account of the alleged offending to police in 2017. The applicant says that no such concession was ever made. He submits further that the tendency evidence in question is of significant probative value and was not collateral to the facts in issue and the credibility and reliability of SN’s account.
In disputing that defence counsel made the concessions identified in the Ruling, the applicant points to the following exchange between defence counsel and the judge during the pre-trial hearing:
HIS HONOUR: It’s not put that [SN]’s habitual lying if that’s established, or that opinion is heard, is — could rationally impact on the fact in issue which is at the age of 40 she says my memory is crystal clear, this man — sorry, whatever age she is — 40 years later that my memory is crystal clear that throughout this period of time, these sexual events occurred.
DEFENCE COUNSEL: Your Honour the fact in issue is whether the sexual events occurred.
HIS HONOUR: Correct.
DEFENCE COUNSEL: That’s the fact in issue, not the time at which. So the fact in issue is the occurrence of the events. Mr Ward says it didn’t happen full stop. The Crown then say, these early occasions, we lead as truth of that fact. And then it’s just the circumstance that she makes the complaint when she's 40. So it’s not — there is a slight difference from saying the fact in issue is that at 40 she’s telling the truth as opposed to the fact in issue is did this happen; no it didn’t. She says well I told people back then and therefore believe me. Well you were a habitual liar back then, so if you said that, that's the sort of thing that you can’t place - - -
HIS HONOUR: Has continued.
DEFENCE COUNSEL: That you can't place any weight on in respect of those complaints.
HIS HONOUR: So just assess the assertions that she makes in court for their truth.
DEFENCE COUNSEL: Well there will be other attacks in respect of [SN] — whether [SN] should be believed as she sits here in respect of her complain[t] of 40.
HIS HONOUR: So sometimes it’s put that the first complaint sets the snowball running down the hill and it can’t be stopped and so lies just beget lies. That’s not your claim here?
DEFENCE COUNSEL: Well there would be an aspect of that in the argument but it’s not finally to the — in the final address to the jury I suppose, so it’s flagging where I go and I don’t want to say that too much, but it’s not a case where — could I give an example the person makes a lie, say at eight, and then it takes on a life of its own — they get taken out by the department and by the time they get to 16 over eight years it has just got out of control and then it’s off to the police and that's a kind of classic one. There is a large lacuna between the complaints at 12, 16, and to the partner I think it’s 18 or 19, I’m sorry if I get that wrong, but as a young woman/child. And then there’s nothing that happens until she’s 40.
HIS HONOUR: And if you - - -
DEFENCE COUNSEL: And there’s a different attack in respect of the lies at 40 but it'll be relevant for the jury to hear that this starts with a lie and ends with a lie, if that's acceptable.
HIS HONOUR: Well on the basis that we accept her mother’s opinion that she’s a liar, so then we go forward ladies and gentlemen, you’re the jury; mum didn’t believe her so why would you?
DEFENCE COUNSEL: Your Honour and I accept that I am putting it primarily and confining it to that period of time of the initial complaints. I accept it’s not a case where there’s a classic snowball and it’s not one where — that would be overegging it, but I just want to be clear I’m not trying to — you know if a golden thread remains, I'm not going to stand here and say I don’t want that golden thread to be left.
HIS HONOUR: Yes I understand but it’s not as — it’s not front and centre as sometimes it is.
DEFENCE COUNSEL: No, no I accept that.[45]
[45]Emphasis added.
The applicant submits that in this exchange, the judge was pressing defence counsel to make a concession, which defence counsel resisted. The first concession pressed was that the fact in issue was ‘whether the complainant was telling the truth at age 40’, which counsel refuted, submitting instead that the fact in issue is whether the sexual acts occurred. The second concession pressed was that the defence case was not one where ‘the first complainant sets the snowball running down the hill … and so lies beget lies’, which counsel also refuted, submitting instead that the jury needed to hear that ‘this starts with a lie and ends with a lie’. Importantly, no concession was made beyond the fact that the tendency evidence would be confined primarily to the period of time of the initial complaints and that it was not as ‘front and centre as sometimes it is’.
The applicant submits that it is contrary to reason that the passage of time has restricted the relevance and probative value of the evidence to the issue of SN’s credit at the time that she made generalised complaints in her teenage years. It cannot be said that the lies told by SN during the period of the alleged offending are irrelevant because there are gaps or lacunae in the evidence. The critical question for the jury was whether SN’s version of events, based on her memories of the late 1980s and early 1990s, was the truth. The applicant submits that the extent, frequency or even bare fact of SN’s lies therefore must be probative not only of her credibility but also her reliability.
The applicant submits that the judge’s holding that the disconnection brought about by the passage of time made the existence of a purported childhood tendency no longer relevant is contrary s 38 of the Jury Directions Act and contrary to the trial judge’s direction on significant forensic disadvantage. The applicant submits:
The critical question to be asked was whether the evidence of [MP] had significant probative value in raising the possibility of a state of facts consistent with innocence. His Honour reasoned that the effluxion of time had scoured away or eclipsed any such possibility arising on that evidence. But the truth of [SN]’s account presupposed the reliability of her memories — and those memories may have been warped by, or infected with, falsification from childhood.
Put differently, the applicant says, this could have indeed been a ‘snowball case’ waiting to be uncovered. If the complainant told serious lies about members of her family, during the same period in which she alleges that the applicant and GC abused her, then that must be relevant to her credibility and reliability. Evidence that the complainant made false allegations against other family members during the period in which she alleges she was abused by the applicant and GC must be relevant to whether a reasonable possibility consistent with innocence exists.
The applicant again calls on the High Court’s reasoning in Pell to submit that, in ruling that the disconnection brought about by the passage of time rendered the fact in issue of whether the sexual events happened immune from any tendency that SN had to lie as a child, his Honour erroneously ‘discount[ed] a body of evidence that raised lively doubts as to the commission of the offences’.[46] It is well known, the applicant submits, that a witness can present as compelling yet be unreliable for other reasons. In the context of a historical sexual assault trial, in which the jury must rely heavily on the demeanour of the complainant, the Court should be slow to exclude independent evidence that bears on the complainant’s credibility or reliability.
[46]Pell (2020) 268 CLR 123, 158 [91] (Kiefel CJ, Bell, Gageler, Keane, Nettle, Gordon and Edelman JJ); [2020] HCA 12.
Lastly, the applicant submits that the judge erred in ruling that MP’s evidence about SN’s tendency to lie should be excluded under s 135 of the Evidence Act. It is not the case that the evidence is prejudicial to the Crown, as the Crown is not the complainant, and nor it is the case that the evidence is misleading or confusing. The judge’s reliance on s 135(c) — that the evidence would ‘cause or result in an undue waste of time’ — was misplaced as ‘it ought rarely to be said that a person charged with serious criminal offences, who seeks to defend themselves, is causing or resulting in undue waste of time’. MP was a Crown witness, not a witness called by the applicant. The Crown had a duty to put all evidence before the jury, whether inculpatory or exculpatory. If her evidence was ‘unfavourable’ (and it was ruled as such) then the Crown would have every opportunity to challenge her account. To characterise the testing of MP’s evidence as his Honour did (‘the whole issue would cause or result in an undue waste of time’) reveals error in the exercise of the discretion.

Respondent’s submissions

The respondent submits that the judge’s ruling was unimpeachable and that the evidence in question fell well short of having ‘significant probative value’ as required by s 97 of the Evidence Act. The judge correctly noted that the case was founded on the evidence of SN as a mature woman, and that the alleged tendency was very ‘thin’. The supposed tendency included an alleged lie about her grandmother taking her on a cruise, that she complained her mother bashed her and that she wanted to be the centre of attention. According to the respondent, the judge’s discretion to exclude the evidence under s 135 of the Evidence Act was also correct, noting that the section confers a wide discretion. The Crown was in a position to lead evidence to rebut MP’s claims that SN had a tendency to fabricate, were it necessary to do so.
The respondent submits that the judge did not wrongly attribute concessions to defence counsel which did not reflect the defence position, and the impugned concessions did not erroneously summarise the defence position. The applicant has emphasised isolated portions of the Ruling and exchanges that occurred on 15 December 2022. Having regard to the transcript in its entirety, is evident that the Ruling fairly and accurately reflects the defence argument.
Thus, it is submitted, during the hearing on 15 November 2022, defence counsel focused the judge’s attention exclusively on the connection between the evidence that SN was a habitual liar between the ages of 6 and 16 and the complaints that she made during this period:
(a)      First passage:
… [T]here’s a reasonable contemporaneous nature between what the mum says and what the Crown will rely upon as first complaint, to bolster the evidence of [SN].
(b)      Second passage:
The charged acts occurred over a period of time, whilst the child was being looked after by [MP] and [NP]… During this period of time, the child made… an amorphous complaint to her sister, and then made a more specific complaint as soon as she hit 16 or 17… So, they’re [the Crown] trying to say that it’s not just about when she makes a complaint at 40-odd to the police, because they’ll be saying… [SN] said [something]… at an earlier point of time. Now at this earlier point in time, I would submit that a jury — so then the key question is, in respect of [SN], is her credibility as it relates to that complaint.[47]
(c)      Third passage:
So, the jury would have to accept her as a witness of truth and accept that she’s a witness of truth when she, in respect of the complaint she made to her sister… that when she complained to her father at 16, 17, she was telling the truth. If a jury was to be informed that her mother who was caring for her from when she was in prep over a 10 year period, was taking her to counsellors on a regular basis, because there was instances where she was making little lies, making herself the centre of attention throughout the period, tentative period of time, those facts of taking her to a counsellor and the reason to take her to a counsellor would be relevant to a jury to assess whether they are satisfied of this person’s credibility and truthfulness beyond reasonable doubt.
[47]Emphasis added.

According to the respondent, this position remained unchanged when the tendency application returned for further hearing on 29 November 2022. The respondent points to the following exchange, in which defence counsel rejected the proposition that the 2017 complaint, made when SN was in her 40s, was affected by her inclination to tell lies as a child:
HIS HONOUR: Do you say that having said what she says to the complaint witnesses in 1989 … in 94–95, and then her partner in 96.
DEFENCE COUNSEL: I think the partner I'd - - -
HIS HONOUR: The partner you put to one side. All right, they're in paragraph 1. Do you say that once those things are said, that a snowball starts rolling down a hill that she can't stop, so false allegations that she's made to those people become the allegations that she has to live with and maintain to the police. It's not that sort of case, is it?
DEFENCE COUNSEL: No. Because it's a large lacuna.
HIS HONOUR: The bookending concept that you've put forward, which I think I understand, it’s usually got that element about it.
DEFENCE COUNSEL: No, no, I don't see it here because it would be difficult to argue that over a 30-year period - - -
HIS HONOUR: Correct.
DEFENCE COUNSEL: - - - and there's such a large lacuna. It doesn't mean that we have snapshots of evidence here that a jury will see of her snapshot three decades ago, and then there'll be a snapshot from the point of 2018 and there may be other issues with the evidence given then.
HIS HONOUR: All right. I understand how that's put. So you say she's recalling back to her early years 30 years ago. It's all made up, so the defence suggest and the Crown have got to overcome that.
DEFENCE COUNSEL: And some of that stuff will have to depend on how the evidence falls in the case and - - -
HIS HONOUR: Yes, and the Crown said at well - - -
DEFENCE COUNSEL: - - - of course, the notion of knowing all answers isn't always the case.
HIS HONOUR: - - - she said that there were things made complaint in general terms and again when she was 16, so that should be measured into it and you say I should be able to answer that by saying her mother considered that she was a liar at that time so you can see that - - -
DEFENCE COUNSEL: To such a level with the other aspects.
HIS HONOUR: To such a level, and that’s where we enter the unknown as to whether these people agree with that. But to such a level that you can thereby discount the complaints that she made at age 12 and 16, it’s all attention seeking and - - -
DEFENCE COUNSEL: And that’s — sorry, Your Honour.
HIS HONOUR: - - - thereby what she then brings back into the scenario 30 years later is effected by her tendency or her capacity to lie at that early age.
DEFENCE COUNSEL: Well, no, no, I think Your Honour it’s not quite that second part; it’s more the first part and the first part is seeking to remove the strong plank in any prosecution argument - - -
HIS HONOUR: You reckon? I think you see a strong plank and you’re entitled to have it removed. I see that.
DEFENCE COUNSEL: Because I think in front of a jury, a complaint in at an earlier stage in a historic matter always has persuasive effect.[48]
[48]Emphasis added.
Referring to argument on 15 December 2022, the respondent submits that the portions of the transcript relied on by the applicant do not present a full picture of his Honour’s understanding and articulation of the defence position. The respondent points to the following exchanges:
(a) First passage:
DEFENCE COUNSEL: And the key question is, could the evidence rationally affect the assessment of the probability of the existence of a fact in issue? And I think I articulated last time the manner in which it applied to the period of time.
HIS HONOUR: Yes, I think I understand it. So can I — because I've got to articulate reasons one way or the other. So what you say is that it could affect the acceptance probably of a fact in issue, that at the point that she complains for the first time is generally proximate to when you say her mother was seeking assistance for a — for what in her opinion, her mother's opinion was pathological lying.
DEFENCE COUNSEL: Yes. And if — to the extent the Crown are relying on the complaint at that time as truth of the fact, how can a jury properly assess those complaints and give them their proper weight unless they have this information.
…
HIS HONOUR: Yes, so this is evidence that needs to be provided to give the proper context for that first complaint because the witness' mother formed an opinion early on and it was that she was problematic, lying, to a pathological degree requiring expert clinical assistance and treatment.
DEFENCE COUNSEL: And formed that view over a period of approximately ten years.
(b)Second passage (which occurs shortly before the impugned exchange included at paragraph [169] above):
HIS HONOUR: And this [evidence] solely goes — so that it could rationally affect the probability that at the time that a complaint is made that the Crown relies upon for its truth and for credit.
DEFENCE COUNSEL: Yes.
HIS HONOUR: At the age of 12, that it's necessary that that evidence be adduced because it could rationally affect that. It's not - - -
DEFENCE COUNSEL: The 12 and the 16.
(c) Third passage:
HIS HONOUR:… [Y]ou say it's necessary to obtain an adequate account or understanding of the person — that's the mother's perception of what was going on when she was eight years — when she was young?
DEFENCE COUNSEL: Yes.
HIS HONOUR: That she says well I've got to give you the opinion she's a habitual liar at that point, and that's an opinion that needs to be established, and then it's asserted that on the basis of that opinion and whatever example who come forward, the jury could draw a conclusion that this is a tendency that the witness — [SN] has. So that's the first question in Hughes.
DEFENCE COUNSEL: Yes.
HIS HONOUR: And then the tendency is, can rationally or is likely to make it more likely that the complaint at 12 and 16 was false and there may be a way the jury could utilise that in dealing with the ultimate fact in issue as to whether the sexual offending occurred. That's your argument?
DEFENCE COUNSEL: Yes, and just from — a moment.
HIS HONOUR: Yes.
DEFENCE COUNSEL: Yes because — just one moment Your Honour. And it will also impact and will be necessary under 78B.
HIS HONOUR: Yes.[49]
[49]Emphasis added.
In response to the applicant’s submission that this could have been a ‘snowball case’ waiting to be uncovered, the respondent says that although defence counsel said that he may make a ‘snowball case’ submission in his final address to the jury, he then conceded that this was not a ‘classic’ kind of snowball case where a lie is told by a child at age eight ‘and by the time they get to 16, over eight years it has just got out of control and then it’s off the police’. The applicant’s submission that ‘there’s a different attack in respect of the lies at 40 but it’ll be relevant for the jury to hear that this starts with a lie and ends with a lie’ and ‘if a golden thread remains, I’m not going to stand here and say I don’t want that golden thread to be left’ was ambiguous. On 29 November 2022, defence counsel said that this was not a ‘snowball case’ where SN felt forced to live with false allegations and maintain them to police, because ‘it would be difficult to argue that over a 30-year period’. Defence counsel accepted the judge’s observation that the snowball-type case argument was not ‘front and centre as sometimes it is’.
The respondent challenges the applicant’s assertion that the judge concluded that the lacunae in the evidence rendered the alleged lies told by SN during the period of offending completely irrelevant, and that the Ruling was therefore contrary to reason. The judge considered that the alleged tendency to tell lies, given how old it was, had little bearing on whether the detailed complaint to police in 2017 was true or whether SN in 2023 was truthful. Such a view was well open to the judge.
Finally, the respondent submits that the judge was correct to exclude the tendency evidence on the basis that it would result in an undue waste of time and would likely be confusing to the jury and unfair to the prosecution. Had MP given the evidence, it would have been the subject of a s 38 application. The prosecution was in a position to challenge MP’s evidence that professional help had been sought by calling Lindsay Morphett, former Deputy Principal of the school SN attended, who stated that SN was ‘polite, responsible and generally happy child who got on well with her peers’, along with Patricia Wangeman who denied ever counselling SN, despite MP’s assertions.

Consideration of ground 3

We deal first with whether the judge wrongly identified statements made by defence counsel as concessions.
The three concessions that the judge attributed to defence in his Ruling highlighted by the applicant are as follows:
(a)‘It was conceded that [MP’s] evidence that [SN] was a liar as a child, could not be probative of or diminish SN’s credit when she gave the full account of the alleged crimes in 2017’;[50]
(b)‘… the probative force of the alleged tendency evidence was solely its balancing impact on the evidence of [SN’s] earlier general complaints to relatives. The sole purpose of the evidence was to address the issue of the complainant’s credit when she made the first general complaints to family members’;[51] and
(c)‘… the defence did concede the effect of the passage of time, restricted the relevance and probative value of the evidence to the issue of [SN’s] credit when she made generalised complaints in her teenage years’.[52]
[50]Ruling, [21].
[51]Ruling, [21]
[52]Ruling, [27].
In our view, the passages of transcript extracted show at best, a confusing and confused submission by defence counsel as to how the tendency evidence was relevant to the truthfulness of SN’s complaint to police at age 40 and her evidence at trial when she was even older. The submission that ‘what starts with a lie ends with a lie’, and the reference to the ‘golden thread’ simply makes no sense, particularly in the context of the description of the ‘lacuna between the complaints at 12, 16, and to the partner … [at] 18 or 19… And then there’s nothing that happens until she’s 40’. Consistently with the existence of said lacuna, defence counsel stated this was not a case where a person lies at the age of eight and the lie then takes on a life of its own. In other words, this was not a ‘snowball’ case. The evidence that SN told lies when she was a child up to the age of 16 could only be relevant to the veracity of the complaints she made to various people during this period. That evidence could have little or nothing to say about how she conducted herself at the age of 40.
If defence counsel resisted making a concession in the passage relied on, the point was de facto conceded in the argument that followed.
In any event, the evidence of SN having, or having had, a tendency to lie is very weak. The examples given by MP (that SN lied to her sisters about going on a cruise with her grandmother, and that she lied when she told people at school that her mother ‘bashed’ her) are, as the judge pointed out, very thin examples of lying that defence counsel sought to use to establish a much broader proposition — that is, that SN was a pathological liar and was therefore lying when she complained to family members that she had been sexually abused by the applicant. If used to establish the even broader proposition that SN at 40 continued to be an unreliable narrator, the force of the evidence would be so thin as to be non-existent.
We observe further that there is no evidence that as a child SN saw counsellors about her lying. Indeed, MP’s evidence that Pat Wangeman had ‘many talks’ with SN during her primary school years was denied by Pat Wangeman herself. MP’s additional statement seems to suggest no more than that SN could be disruptive and naughty as a child, and that MP, as a single parent of three children, struggled.
Section 97(1) of the Evidence Act provides that evidence of the character, reputation or conduct of a person, or a tendency that a person has or had, is not admissible to prove that a person has or had a tendency (whether because of the person's character or otherwise) to act in a particular way, or to have a particular state of mind unless the evidence will, either by itself or having regard to other evidence adduced or to be adduced by the party seeking to adduce the evidence, have significant probative value.
As Kaye J said in DPP v Campbell (Ruling No 1),[53] the approach to the question of the admissibility of tendency evidence, when it is sought to be adduced on behalf of the accused, must be different to the approach taken to tendency evidence sought to be adduced on behalf of the prosecution. The tendency evidence must have significant probative value to the establishment of a particular reasonable possibility of a state of facts consistent with the innocence of the accused person.
[53] [2013] VSC 665, [35], [41] (Kaye J).
In our view, the proposed tendency evidence — the evidence of SN’s childhood lies — does not reach the threshold of having significant probative value to the establishment of the reasonable possibility that the incidents alleged by SN did not take place because SN was lying when making those allegations. The proposed evidence, which is limited to two or three examples of untruthfulness (of a fairly innocuous kind), is weak evidence that SN had a tendency to lie as a child. Its probative value to the establishment that there is a reasonable possibility that SN’s allegations are fabrications is low. The judge was correct to describe it as ‘thin’ and to refuse the application to adduce this evidence.
Given this conclusion, it must follow that the judge was also correct to refuse to admit the evidence on the basis that its probative value would be substantially outweighed by the danger that the evidence might cause or result in an undue waste of time and, given its limited purpose, be misleading or confusing.
This ground is not made out.

Disposition

None of the grounds is made out.
The applicant will be granted an extension of time in which to file his application for leave to appeal, but leave will be refused.
---

[2025] VSCA 101

12 May 2025