Xerri v The King

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S EAPCR 2022 0041

CHRISTOPHER XERRI	Applicant
v
THE KING	Respondent

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JUDGES:	EMERTON P, KYROU and KAYE JJA
WHERE HELD:	Melbourne
DATE OF HEARING:	1 February 2023
DATE OF JUDGMENT:	13 February 2023
MEDIUM NEUTRAL CITATION:	[2023] VSCA 15
JUDGMENT APPEALED FROM:	[2021] VCC 512 (Judge Lyon)

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CRIMINAL LAW – Application for extension of time and for leave to appeal – Conviction – Sexual assault – Trial by judge alone – Whether conviction unreasonable or unable to be supported by evidence – Whether prosecution failed to call relevant witness – Whether apparent bias by judge against applicant – Effect of defects in prescribed documentation – Application for extension of time granted – Application for leave to appeal refused.

Criminal Procedure Act 2009 ss 43, 276(1)(a).

Dansie v The Queen [2022] HCA 25; M v The Queen (1994) 181 CLR 487; Whitehorn v The Queen (1983) 152 CLR 657; Ebner v Official Trust in Bankruptcy (2000) 205 CLR 337; Johnson v Johnson (2000) 201 CLR 488.

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Counsel
Applicant:		In person
Respondent:		Mr G Buchhorn
Solicitors
Applicant:	In person
Respondent:	Ms A Hogan, Solicitor for Public Prosecutions

EMERTON P
KYROU JA
KAYE JA:

The applicant was charged on indictment with one charge of sexual assault of a child under the age of 16 years contrary to s 49D(1) of the Crimes Act 1958 (charge 1); (in the alternative to charge 1) one charge of sexual assault contrary to s 40 of the Crimes Act (charge 2); one charge of supply a drug of dependence to a child contrary to s 71B(1) of the Drugs, Poisons and Controlled Substances Act 1981 (charge 3); and (in the alternative to charge 3) one charge of trafficking in a drug of dependence contrary to s 71AC(1) of the Drugs, Poisons and Controlled Substances Act.
The trial of the charges was by a judge of the County Court, without a jury, on 16 to 18 March 2021. The applicant was represented by counsel. In a reserved decision dated 13 April 2021, the judge acquitted the applicant on charge 1, convicted him on charges 2 and 3, and (as a consequence of the finding of guilt on charge 3) found him not guilty on charge 4.
On the plea, the applicant also pleaded guilty to four charges of failing to comply with reporting obligations contrary to s 46(1A) of the Sex Offenders Registrations Act 2004. On 24 August 2021, the applicant was sentenced, on charges 2 and 3 and on the additional charges, to a total effective sentence of 4 years and 3 months’ imprisonment, with a non-parole period of 3 years and 2 months.
The applicant seeks leave to appeal against conviction on four grounds. The grounds have been drafted by the applicant who is not a trained lawyer. They are as follows:
(1)The trial judge’s verdict of guilty cannot be supported by the evidence produced.
(2)The trial judge erred by reasoning in his sentencing remarks in regards to failure to call witnesses.
(3)The trial judge did not view evidence dispassionately and clinically.
(4)Evidence submitted in trial was the result of false depositions and should not have been allowed to proceed.
Application for extension of time
The application for leave to appeal was not filed until 28 March 2022, some 188 days after the expiration of the period prescribed by s 275(1) of the Criminal Procedure Act 2009 (the ‘Act’). Accordingly, the applicant has made an application for extension of time and filed an affidavit in support of that application. It is convenient first to consider that application, before we examine the merits of the application for leave to appeal.
In his affidavit the applicant stated that after he was sentenced, he endeavoured to contact Victoria Legal Aid, but it would seem he had difficulty communicating with that organisation. He then compiled a written case submission for the Court. Having submitted that document, he was informed by the Court that he was required to produce a ‘package’ of documents which should include an application for an extension of time. Having compiled those documents, there were difficulties having them attested by a Justice of the Peace because of the problems arising from the current COVID-19 pandemic and the restrictions that have been applied to the Karreenga Correctional Centre in which the applicant is being held.
The principles, that apply to an application for an extension of time, are well settled.[1] For the purposes of determining the present application, they were sufficiently stated by this Court in Barber v The Queen[2] in the following terms:
The applicant bears the burden of persuading the Court that an extension of time should be granted in his or her favour. The Court has a wide discretion in determining whether to grant an extension of time. However, the central consideration is whether it is in the interests of justice that the application for leave to appeal be heard, notwithstanding that it has been brought outside the prescribed time. In determining that question, a number of factors are ordinarily taken into account, including the length of the delay and the reasons for it. In addition, the prospects of success of the proposed application for leave to appeal against sentence, should the extension be granted, are material. Each of those factors, and any other relevant circumstances, are taken into account in a balanced exercise of the discretion. Ordinarily, where the delay is considerable, the Court will not grant the extension, unless it is satisfied the proposed grounds are sufficiently meritorious to justify the grant of the extension notwithstanding such delay.[3]
[1]Kentwell v The Queen (2014) 252 CLR 601, 613–14 [30]–[32] (French CJ, Hayne, Bell and Keane JJ); [2014] HCA 37; Jopar v The Queen (2013) 44 VR 695, 707 [59] (Priest JA); [2013] VSCA 83; Madafferi v The Queen [2017] VSCA 302, [11] (Priest, Hansen and Coghlan JJA).
[2][2018] VSCA 232 (‘Barber’).
[3]Barber [2018] VSCA 232, [3] (Kyrou and Kaye JJA).
In the present case, the period of delay was particularly lengthy. The applicant’s explanation, for that delay, was expressed in quite general terms. On its face, the applicant’s affidavit does not account for the whole of the delay. Nevertheless, it is understandable that the applicant, who is unrepresented, would have had particular difficulty in the current environment in preparing and filing the necessary documents in support of his application for leave to appeal. In those circumstances, the critical question is whether the proposed application for leave to appeal is of sufficient merit to warrant the grant of the application for an extension of time. In the particular circumstances of this case, we have considered that it is therefore appropriate to grant the application for extension of time, in order that we can undertake, for ourselves, an appropriate examination of the proposed grounds of appeal.

The background circumstances and circumstances of offending

The offences, with which the applicant was charged, were alleged to have been committed by him in respect of the complainant, ‘Jane Graham’,[4] on 22 June 2018. At that time Jane Graham, who was 15 years of age, was in the care of the then Department of Health and Human Services. She lived in an ‘out of home’ residential facility managed by a family support service with (at least) three other child residents, namely, Annie Wilkins, Jack and Tom.[5]
[4]A pseudonym.
[5]Pseudonyms.
The applicant first contacted the complainant on 15 April 2018 via the Facebook Messenger application. He used the pseudonym ‘Chris Sueze’ and his profile picture was a cannabis leaf. He had previously been accepted by the complainant as a ‘Facebook friend’.
At about 5:00 am on 22 June 2018, the applicant and the complainant communicated with each other using the Messenger application. They arranged for the applicant to attend the complainant’s residence on that day. The prosecution case was that the purpose of the meeting was for the applicant to exchange one gram of cannabis for the complainant’s Sony Bluetooth music speaker.
Shortly before 5:00 pm on that day, the applicant parked his vehicle outside the residence where the complainant was then living. The complainant then left the house and entered the vehicle. Before the applicant arrived, a worker at the accommodation, Mary Anderson,[6] had overheard the complainant talking to Annie Wilkins about an older unknown male who was going to drop marijuana off for them. As a result, Ms Anderson monitored the complainant’s movements and she noted the registration number of the applicant’s vehicle when it was parked outside the residence.
[6]Pseudonym.
It is the events that ensued in the following ten or fifteen minutes that were the subject of the four charges. The prosecution alleged that after the complainant entered the vehicle, she gave the applicant her music speaker. The applicant weighed a small amount of cannabis on a pair of scales he had brought with him and gave the cannabis to her. It was that conduct which was the subject of charges 3 and 4. After that transaction was completed, it was alleged that the applicant repeatedly touched the complainant’s upper inner thigh with his hand, and he also endeavoured to kiss her. The complainant resisted the applicant’s advances and repeatedly told him that she did not wish to be touched or kissed. Ultimately the complainant left the vehicle and the applicant drove away.
Ms Anderson gave evidence that although she was not able to see what occurred inside the vehicle, she saw the complainant when she returned to the property. The complainant appeared to be distressed and she told Ms Anderson about the assault, gesturing to demonstrate how the applicant had grabbed her face. The complainant agreed that the police be called.
On the same day at 8:08 pm, the complainant made a VARE statement to police. Swabs were taken from her cheek and upper thigh. DNA testing conducted on those swabs did not reveal any DNA that had the same profile as that of the applicant.
On 26 June 2018, the applicant’s home was searched, and police located the complainant’s speaker and a pair of scales. He was arrested and made a ‘no comment’ interview.
Subsequently, on 22 August 2019, the applicant resolved the matter by pleading guilty to charge 2. However, the plea was withdrawn when the Magistrate refused an application to hear the matter by way of summary jurisdiction.

The evidence at trial

The complainant

The complainant’s evidence-in-chief primarily consisted of the VARE statement taken by police on 22 June 2018, and her cross-examination at the special hearing that immediately preceded the trial.
The complainant stated that contact with the applicant had commenced with a text from him asking her if she needed ‘bud’ (that is, marijuana). There then followed a number of texts, on the complainant’s telephone, between the applicant and the complainant’s housemate, Annie Wilkins. The complainant’s next contact with the applicant was at 5:00 am on 22 June 2018, when he asked her if she still wanted some marijuana, to which she responded in the affirmative. The applicant told her that he would drop the substance off to her home. Subsequently, he texted her to say ‘I’m leaving now.’ A short time later, he sent a text in which he said ‘I’m 10 minutes away’.
When the applicant arrived, Annie Wilkins wanted to come out the front of the house, but the complainant told her to stay inside. The complainant then went and entered the applicant’s vehicle. He commenced to weigh one gram of the marijuana with a set of scales which was in a black bag that he kept in the side of the vehicle. While he was doing so, he said to the complainant, ‘You look more gorgeous than your photos’ and then he started to touch her.
The complainant said that the applicant touched her on the top of the thigh some four times. He also leant over, used his hand to pull her face towards him and tried to kiss her. She told him that she did not want to be touched by him, but he persisted in trying to do so. He also tried to hold her hand. After about 15 minutes the complainant left the vehicle. As she did so, Annie Wilkins walked towards her and she told Annie what had occurred. In response, Annie said ‘I knew that, but I actually thought like he was reaching over to like grab something in between like the door like this side’. The complainant told Annie that she had been put in a ‘really uncomfortable situation’, and that the applicant had started to touch her thighs and tried to kiss her.
In the VARE, the complainant also said that Mary Anderson had heard her on the telephone telling the police what had occurred.
The first part of the cross-examination of the complainant was directed to the timing and content of the messages which had passed between her telephone and the applicant. It is not necessary to summarise that part of the cross-examination, because it does not appear to be the subject of any of the proposed grounds of appeal, and in particular grounds 1 and 2.
In respect of the events that occurred in the vehicle, the complainant agreed that she had been reluctant to allow Annie Wilkins to come out the front of the house with her when the applicant arrived. She said that Annie had been known to be a ‘sexual exploitation to older men’, so she (the complainant) did not let Annie come out with her. She said that one of the residents of the house, Jack, did come to the vehicle and he had a good look, but he was a bit of a distance away. Another resident, Tom, also came out to have a cigarette.
At that time, the applicant’s vehicle was parked parallel to the house, which was to the complainant’s left and slightly forward of her. She was facing the front of the vehicle and the applicant was to her right. She said that when the applicant first touched her, his left hand would have touched her right leg, which was skin-to-skin contact. When he touched her face with his right hand it also was skin-to-skin contact. When the complainant then left the vehicle, she said that ‘everyone’ was there at the end. She repeated that she walked up to Annie Wilkins and told her that she was in an uncomfortable situation. In response, Annie told her to accompany her to her room where they then talked together for 15 minutes. She then went out the back of the house where she had a cigarette and she spoke to her worker, Mary Anderson. She did not speak to Ms Anderson ‘about the situation’, but she told Ms Anderson that she had been in an uncomfortable situation in the car. Ms Anderson said ‘I’m happy to call the police for you’, and the complainant asked her to do so. The complainant told Ms Anderson that she felt that the applicant needed to be prosecuted and she asked Ms Anderson to call the police.
The complainant said that she did not have any discussions with Tom or Jack about what had occurred in the vehicle. She said that when she got out of the vehicle she was not upset, and she was hiding her feelings because she was scared and in shock. She did not know what to do or how to react, she was ‘just numb’. It was then she approached Annie Wilkins and told her that she needed to speak to her.
Further in cross-examination, the complainant agreed that at that time she was using cannabis on a daily basis. She had previously also used other drugs. She denied that she got into the applicant’s vehicle to supply cannabis to the applicant. She said ‘Chris Xerri was the one to give me the weed, I wasn’t — I didn’t — I had no cannabis on me at all’. She denied that there was any agreement between her and the applicant about the supply of other drugs, and she denied that she asked the applicant to supply other drugs to her or to transport her somewhere where they could be obtained.
The complainant agreed that the applicant had said that he was concerned about weighing the cannabis in the vehicle, and he wanted to go inside the house to do so. However, she told him that her parents and sister were in the house. When the applicant had endeavoured to touch her, she told him that there were ‘resi kids’ in the house who would ‘bash him’. In conclusion, the complainant disagreed with the proposition, put to her in cross-examination, that the applicant had not touched her face or leg, or tried to kiss her.

Mary Anderson

Ms Anderson also gave evidence at the trial. She said that she had worked with the family support service in the capacity of a therapeutic residential care worker since 2017. During the five months preceding 22 June 2018, she had been working at the house where the complainant resided as a mentor and caregiver.
On 22 June 2018, Ms Anderson commenced her shift at about 4:00 pm. At that time, she overheard the complainant and Annie Wilkins discuss meeting up with an unknown male, who they had found on the internet, in order to purchase cannabis. Ms Anderson tried to discourage them from doing so, but they decided to go ahead anyway. About 15 minutes later, the complainant went outside and entered a dark coloured vehicle that had pulled up outside the residence. Ms Anderson stood behind the fence and obtained the registration number of the vehicle. The complainant remained in the vehicle for about 10 minutes. During that time, Annie Wilkins was becoming quite distressed in the home and Ms Anderson went back inside to attend to her. Before she did so, she observed the complainant enter the vehicle and have a discussion with the male person who was in it. At that time, the complainant was ‘emotionally regulated, she seemed in a clear and happy headspace’.
Ms Anderson next saw the complainant when she came towards her around the side of the house. The complainant was distraught. She was crying and ‘very emotionally dysregulated’. She came to Ms Anderson for comfort and began to tell her what had occurred. The complainant said that the applicant had tried to force himself on her and that he had grabbed her face and her legs, which made her feel extremely uncomfortable. The complainant used her hand to demonstrate how he had grabbed her face to try to get a kiss. Ms Anderson, in her evidence, demonstrated what she had been shown by the complainant by moving her jaw sideways with her hand. She said that the complainant told her that the applicant had grabbed her face to try to force a kiss, that he was putting a hand on her legs and trying to move his hand up her shorts, and that she was continuously pulling away and asking him to stop.
Ms Anderson said that she comforted the complainant. She offered the complainant counselling, and encouraged her to contact the police. The complainant agreed to do so. As a consequence, Ms Anderson telephoned the police and reported the incident. About half an hour later the police arrived and spoke to the complainant. Later that evening, Ms Anderson drove the complainant to the local police station, where she was interviewed by police. After the interview was completed, Ms Anderson drove her back home.
In cross-examination, Ms Anderson stated that to her knowledge the complainant was a regular user of drugs while she was at the house. Ms Anderson said that there was a policy of no tolerance for drug use in the house. If any drugs were found on the premises, they would be removed and the police would be called. However, on the evening in question, Ms Anderson permitted the complainant to leave the house to purchase cannabis. She said that she had tried to discourage the complainant and Annie Wilkins from purchasing the drugs, but she was aware that they each had a habit of doing so and then smoking the drugs either in the park or in an abandoned house.
Ms Anderson was cross-examined about her observations of the complainant when she returned to the house after she had left the applicant’s vehicle. She confirmed that the complainant was then distraught and crying. The complainant came around the side of the house, where they sat together, and the complainant told her what had occurred. The complainant said ‘he was grabbing at my leg and my face and tried to kiss me’. After that conversation, Ms Anderson telephoned the police and to her knowledge the complainant was not present at that time. Apart from making that telephone call, Ms Anderson was with the complainant from the time she walked back onto the property until the police arrived. She said that she believed that Annie Wilkins had wanted to make a statement to the police, but the police were only interested in taking a statement from the complainant and her.

Finally, Ms Anderson said that when she went to the fence to observe the vehicle, she could see that there was a male person inside it. She agreed that in the statement that she made to the police on 10 August 2018, she had said ‘I could not tell if the driver was a male’. She agreed that when she made that statement, her memory was better than at the time of giving evidence, and that based on what the complainant had told her, she had just assumed that it was a male who was inside the vehicle.

Police witnesses

Senior Constable Scott McDonald attended at the complainant’s home at about 6:30 pm on 22 June 2018, where he spoke with the complainant. He was shown the complainant’s telephone and took photographs of the screen. Senior Constable McDonald did not speak with Annie Wilkins and he was not sure if she was home at that time. His offsider seized the complainant’s clothing for the purposes of being examined for DNA evidence.
In cross-examination, Senior Constable McDonald stated that the complainant did tell him that she had been given cannabis by the male in the vehicle. The complainant told him that she had swapped her speaker for some weed ‘on tick’. Senior Constable McDonald also said that the complainant had not said anything to him about having smoked cannabis during the evening, but he was able to smell cannabis smoke in the house.
The final witness for the prosecution was Sergeant Robert Luri, the informant in the matter. Sergeant Luri gave evidence that on 26 June 2018, he executed a search warrant on the applicant’s address. In the course of the search, police found scales and the Sony speaker.
In cross-examination, Sergeant Luri confirmed that a DNA sample had been taken from the applicant. He also confirmed that DNA swabs, which had been taken from the complainant’s skin, on examination, were demonstrated not to produce a DNA profile that matched that of the applicant. Sergeant Luri also confirmed that the police did not take a statement from Annie Wilkins.

The applicant

The applicant gave evidence in response to the prosecution case. He said that he first came to have Facebook contact with the complainant through a mutual friend. He was told that the complainant was a source from whom he could obtain cannabis. They exchanged messages, and on 15 April the applicant sent a message ‘Hey, you deal’. The applicant explained that he had joined the Facebook account, because he wished to ‘score’ cannabis from people who used the account. After he sent the message on 15 April, there were further messages and telephone calls between him and the complainant’s account, in which he was attempting to obtain a larger quantity of cannabis than the amount that the complainant had referred to, namely one gram. In the course of the conversations and messages, the applicant viewed a video that the complainant had posted on the Messenger service, from which he gained the impression that she used harder drugs, and in particular, MDMA.
There then followed a series of messages between the complainant’s account and the applicant. According to the applicant, in those exchanges the complainant attempted to get the applicant to facilitate the delivery of harder drugs to her, in return for her giving the applicant a larger quantity of cannabis. The applicant said that he was uncomfortable about obtaining the harder drugs for the complainant, but he offered to give the complainant the name of a person from whom she could source them. The complainant said that the person would not sell her drugs if he did not know her. Accordingly, she requested the applicant to accompany her to meet that person and introduce him to her.
The applicant said that on 22 June, the arrangement was that the complainant would supply the applicant with a quarter of cannabis, and in exchange the applicant would take her to a location where she could obtain harder drugs. The complainant said that she would give the applicant a speaker, as she did not have $20 to provide to him for petrol money. The applicant said that, based on the topics of conversations that he was having with the complainant, he formed the belief that she was over the age of 18 years.
The applicant said that when he arrived outside the complainant’s residence, the complainant got into his car and gave him a Gladwrap sandwich bag. The applicant had a set of scales in the vehicle. When he weighed the bag, it contained only seven grams. The applicant asked the complainant if they could go inside her house in order to complete the transaction, but she said that her parents and sister were there. When the applicant realised that the bag was underweight, he told the complainant that she was ripping him off. He told her that she was fortunate that he was not some other person that he knew, who would have kicked her in the mouth. The applicant told the complainant to go and get the rest of his ‘stuff’ so that he could then leave. The complainant then got out of the vehicle, leaving the cannabis in it. The applicant said that at that time she was calm and she was giggling the whole time. After the complainant left the vehicle, the applicant waited until she was out of sight, and then he drove away.
The applicant denied that he gave the complainant cannabis while she was in the vehicle. He also denied that he intentionally touched the complainant’s leg or thigh, grabbed her face, or attempted to kiss her. He agreed that when the matter was before the Magistrates’ Court in September 2019, he entered a plea of guilty to one charge of sexual assault. He said that his solicitor had told him that if he did so, the prosecution would withdraw the other charges and the matter would be disposed of in the Magistrates’ Court. However, the Magistrate, before whom the matter came, directed that it should proceed in the County Court.
In cross-examination, the applicant said that he met the complainant through a mutual friend ‘Jazzy’ who was then 28 years of age. He said that he asked the complainant about her age over Facebook Messenger, and she replied she was over 18 years of age. He also said that he used the cannabis leaf symbol in order to indicate that he was interested in purchasing cannabis. When he sent a text message on 15 April to the complainant saying ‘Hey you’ with a maple leaf, he was asking her whether she was a cannabis dealer. The applicant agreed that on 21 April he sent to the complainant a text message stating ‘I’ve got some bud on me I need gone, do you want it?’ However, he said that message was taken out of context. There were a number of other messages before that text, including messages in which she said that she only sold ‘in sticks’ and that her price was $120 for one quarter. The applicant said that the message, that he sent on 21 April, was in such a context, and also in the context of subsequent messages between them which were flirtatious. He said that in those messages he called the complainant ‘babe’ and the complainant said that she loved to have sex on ‘pills’.
The applicant further agreed that on 15 June, he exchanged messages with the complainant the substance of which was that he would supply drugs to the complainant in exchange for a PlayStation 4.
The applicant was then cross-examined about the text exchange that he had with the complainant commencing at 5:54 am on 22 June which was in the following terms:
APPLICANT:           How much
COMPLAINANT:     Gram
APPLICANT:           Yeah sweet u got cash yet hun
COMPLAINANT:     No Monday I get payed can u plz drop a gram off and I pay u 20 Monday
APPLICANT:           Yeah OK u still on [street name]
COMPLAINANT:     Yeah it means heeps thank u so much
The applicant agreed that the cost of one gram of cannabis was approximately $20 at that time. However he also said that the complainant asked him to drive her to the supplier of the harder drugs. When the applicant responded that he was not a taxi service, the $20 was agreed upon in payment for petrol money for the applicant to drive the complainant to Collingwood to enable her to source her own drugs.
The applicant was then questioned concerning the text message which he sent to the complainant at 6:39 pm on 22 June asking ‘How is the bud, hun?’ He denied that in that text he was asking the complainant about the cannabis that he had supplied to her. He said that that text concerned the top up amount of cannabis, which he understood the complainant had returned to her home to obtain for him. He agreed that after the complainant had gone back inside the house, he drove off, instead of waiting for her. He said that he did so because she was ‘fucking me around’. As a consequence, he agreed that he stole the amount of cannabis, which (he said) the complainant had supplied to him.
The applicant further said that he had pleaded guilty to the charge of sexual assault in the Magistrates’ Court, because he believed that it would be less serious to plead guilty to that charge, than be dealt with on the more serious charge of sexual assault of a child under the age of 16 years.

The trial judge’s reasons

In his reasons for judgment,[7] the judge outlined the issues, the relevant principles, and the elements of each of the charges. He then summarised the evidence by each of the witnesses and the final addresses of counsel on each side.
[7]DPP v Xerri [2021] VCC 512 (‘Reasons’).
The judge then gave consideration to the question whether the evidence adduced by the prosecution was sufficient to establish a prima facie case against the applicant on each of the charges. In doing so, he concluded that the evidence of the complainant was prima facie capable of supporting the offences alleged in charges 1 and 2. The evidence of the complainant was prima facie capable of supporting the requisite elements that the applicant intentionally touched her in a sexual manner, and (in respect of charge 2) that she repeatedly communicated to him that she did not consent to that touching. His Honour also held that there was prima facie evidence that the applicant did not reasonably believe that the complainant consented to the touching. In respect of charge 1, the judge also concluded that there was prima facie evidence that the touching alleged was sexual, and that it was contrary to community standards of acceptable conduct.[8]
[8]Reasons, [207]–[210].
Having reached that conclusion, the judge turned to the question whether there was prima facie evidence in support of charges 3 and 4. The judge considered that the evidence of the text messages passing between the applicant and the complainant provided particular support to the account given by the complainant.[9]
[9]Reasons, [216].
The judge then considered the account given by the applicant in his evidence, namely, that the communications were concerned with the supply by the complainant to him of marijuana. He rejected that evidence in the following terms:
I find the accused’s narrative in his evidence — that Jane Graham was selling marijuana to him — utterly implausible. It stands entirely contrary to the text messages I have set out.
The lie is easily exposed. The accused maintained in his evidence that he was purchasing marijuana from Jane Graham. He then stated that as a favour to Jane Graham, after the sale, he was to drive her to Collingwood so she could buy other drugs. The speaker was provided to him as collateral for $20 petrol money agreed to be paid for driving the complainant from [her home] to Collingwood and back.
Of course, there is no discussion of such a sale or arrangement in any of the text messages. It makes no sense for the complainant to provide the accused with the speaker as collateral when he was in fact in her debt for a greater amount — some $120 on his own calculation. If there was any truth to his story, common sense dictates that the $20 petrol money would be met by a deduction from the amount to be paid and not by provision of a speaker.
Moreover, his evidence as to what occurred in the car — that Jane Graham got in the car with just under 7 grams of cannabis, which the accused weighed out and it was short by a small but unspecified amount, notwithstanding the scales, so Jane Graham left the car and he drove off and stole the bag of cannabis — can only be described as blatant lies.
The lie contained in the accused’s evidence is made even more apparent by the text he sent at 6:39 PM ‘how’s the bud hun’? It is incredible that the accused asserts that the text should be interpreted as him asking for Jane Graham to provide him with the ‘top up’ of the shortfall of cannabis. This is all the more incredible for the fact that, on his unbelievable narrative, he sent the text after he had driven away and stolen the cannabis which he says Jane Graham had passed to him.
I therefore reject the evidence of the accused in relation to the supply of cannabis and I put his evidence in this respect to one side.[10]
[10]Reasons, [219]–[223].
The judge then noted that, having rejected the evidence given by the applicant, it was necessary to consider whether the evidence adduced by the prosecution proved its case beyond reasonable doubt on the charges.
In doing so, the judge referred to the apparent discrepancy between the evidence given by the complainant about her distress and complaint and the evidence given by the worker, Mary Anderson. His Honour considered that the evidence of Ms Anderson, as to the complainant’s evident distress after she left the applicant’s vehicle, to be powerful independent evidence of the trauma suffered by the complainant.[11] He noted that there was an important similarity between the evidence of the complainant and the evidence of Mary Anderson concerning the manner in which the complainant said that the applicant had seized her jaw and moved it sideways. The judge then stated:
In my view, the evidence of distress is potent. The evidence of complaint, always remembering that the source of complaint was Jane Graham, demonstrates a spontaneous consistency. I use this in aid of my assessment of the complainant’s credibility.[12]
[11]Reasons, [229].
[12]Reasons, [232].
The judge gave consideration to whether the applicant’s previous plea of guilty to the charge of sexual assault in the Magistrates’ Court could be used as an admission by him of the offending. His Honour could not reasonably exclude the possibility that the applicant’s decision, to plead guilty, was made for pragmatic purposes, and accordingly he disregarded the earlier plea of guilty as a relevant consideration in respect of charges 1 and 2.[13]
[13]Reasons, [236].
The final matter, which required consideration in respect of charge 1, was the question whether the applicant had established, on the balance of probabilities, that he reasonably believed that the complainant was aged 16 years or more. The judge did not accept the applicant’s evidence that he had asked the complainant whether she was ‘over age’. However, the judge concluded that he was satisfied, on the balance of probabilities, that the applicant had reasonably believed that the complainant was 16 years of age or older. In reaching that conclusion, his Honour took into account the following circumstances: the incident occurred some 41 days before the complainant’s 16^th birthday; the topic of conversation on the Facebook Messenger was a mature topic; in the photograph the complainant sent by way of Facebook Messenger, she did not look younger than 16 years; and in the VARE examination that took place on 22 June 2018, the complainant also appeared to be 16 years of age or older. On that basis the judge acquitted the applicant on charge 1, but convicted him on charge 2.
In respect of charge 3, the judge concluded that there was a strong circumstantial case that the applicant had supplied the complainant with cannabis. His Honour considered that the only reasonable explanation for the text message sent by the applicant to the complainant at 6:39 pm on 22 June, and for the fact that the applicant was in possession of the Sony speaker, was that shortly after 5:00 pm on that date, the applicant had supplied the complainant with one gram of cannabis in exchange for the speaker.[14] The judge was not satisfied on the balance of probabilities that the applicant reasonably believed the complainant to be aged 18 years or over.[15] Accordingly, his Honour concluded that the applicant was guilty of the offence alleged in charge 3.
[14]Reasons, [248].
[15]Reasons, [255].
In reaching those conclusions, the judge considered that the fact that Annie Wilkins was not called as a witness was not of critical importance in respect of the charges of sexual assault or the charges relating to the supply of marijuana. In that respect, his Honour stated:
The fact that Annie Wilkins was not called as a witness and no statement was provided is not of critical importance on either the sexual assault or this supply of marijuana. The fact is, it was never suggested that Annie Wilkins was a witness to the events in the car. As for the sexual assault it may be that Wilkins could have given some evidence of complaint but the evidence of Mary Anderson and the language that she used, that is that she was told that the complainant was made to feel uncomfortable, the content of the complaint in relation to the sexual assault and the use of the gestures and the fact that Mary Anderson said that Jane Graham was with her the whole time except for the phone call makes the prospect of calling Annie Wilkins as a witness on the complaint a peripheral exercise at best. As for the marijuana, the only matter on which Wilkins could possibly have given evidence was not as to the traffick or supply, but possible subsequent possession and/or smoking of a gram of marijuana.
I consider the failure to call Annie Wilkins entirely inconsequential to the determination of the outcome of this case.[16]
[16]Reasons, [246]–[247].

Ground 1 — submissions

It was not clear from the manner in which ground 1 was formulated, or from the written case filed by the applicant, as to whether ground 1 was directed to each of the two charges on which the applicant was convicted. However at the commencement of oral submissions the applicant made it clear that ground 1 is directed to his conviction on charge 2.
In support of ground 1, the applicant focussed principally on the difference between the evidence given by the complainant and the evidence given by Mary Anderson as to whether the complainant was distressed, and complained to Ms Anderson, after she left the applicant’s vehicle. The applicant submitted that the evidence given by Ms Anderson was ‘deemed untrue’ by the complainant, and therefore the evidence given by Ms Anderson on that aspect was unreliable. In particular, he noted, the complainant in evidence agreed that she was not distressed, and that she did not make a complaint to Ms Anderson after she left the vehicle. Instead, the complainant, in her evidence, said that Ms Anderson only heard of the details of the assault while the complainant was on the telephone to the police. In that way, it was submitted, the evidence given by the complainant cast doubt on the credibility of the account given by Ms Anderson, which the judge relied on to conclude that the complainant did experience immediate distress after she left the applicant’s vehicle.
The applicant further submitted that the judge erred in not concluding that the complainant’s evidence was infected by a previous inconsistent statement. The applicant noted that, during the VARE, the complainant said that a witness, who was in the direct line of sight of the alleged offending, had approached the applicant’s vehicle to ask for a cigarette, and in doing so he had a ‘good look’ at what was occurring in the vehicle. The applicant submitted that that version of events was later retracted by the complainant, who said that it was an exaggeration of what had occurred.

In addition, the applicant submitted that the DNA evidence effectively excluded him from having physically assaulted the complainant. He submitted that as a consequence the judge could not reasonably conclude that the applicant had in any way physically touched the complainant in the manner described by her.
In response, counsel for the respondent submitted that the complainant gave a consistent account about the events that were the subject of the charges. He submitted that she was frank about her drug use, and about the fact that she had concealed from police the initial message that she had sent to the applicant in which she had asked for drugs. Counsel further submitted that the evidence given by Ms Anderson was compelling. She provided a consistent account about the complainant’s distress and what she was told about the events that had occurred inside the vehicle. Counsel submitted that the inconsistency in the evidence given by Ms Anderson, as to whether she had observed that the other person in the vehicle was a male, was inconsequential. Counsel further submitted that the discrepancy, between the accounts given respectively by the complainant and Ms Anderson, as to what occurred following the incident in the applicant’s vehicle, was not fatal to the credibility or reliability of either witness. In particular, the complainant, in her VARE, stated that when she left the vehicle she had told Ms Anderson she had not been in a ‘comfortable position’ and that she had been touched and that she had not wanted to be touched.
Counsel submitted that notwithstanding the discrepancies between the evidence given by the complainant and by Ms Anderson, it was open to the judge to accept that, after the complainant left the applicant’s vehicle, she made an immediate and spontaneous complaint to Ms Anderson. In particular, counsel noted that the complainant’s evidence about the supply of drugs and sexual touching in the vehicle remained consistent. Ms Anderson accurately recorded the number plates of the applicant’s vehicle. In his evidence, the applicant said that he saw Ms Anderson standing in front of the house when he drove off. Further, the evidence given by Ms Anderson about the first complaint made to her by the complainant, and the evidence given by the complainant in the VARE, was expressed in the same terms. In addition, Ms Anderson’s demonstration about how the complainant described the manner in which the applicant had grabbed her face was very similar to the complainant’s description of that point given in the VARE.
In addition, counsel noted that there was evidence, independent of that given by the complainant and Ms Anderson, that supported each of the charges. In particular, counsel referred to the messages between the applicant and the complainant which clearly demonstrated the applicant was arranging to supply the complainant with cannabis. Other messages showed the applicant demonstrating a sexual interest in the complainant. The complainant’s speaker was located in the applicant’s home, and scales were also found in his home.
Finally it was submitted that it was open to the judge to reject the evidence given by the applicant. In summary, his evidence was implausible, inconsistent with other evidence, and internally contradicted by his own evidence. Thus, counsel contended that it was open to the judge to conclude that the evidence given by the complainant, both about the sexual assault charges and the charges relating to the supply of drugs, was credible and reliable.

Ground 1 — analysis and conclusion

Ground 1 of the proposed grounds of appeal is based on s 276(1)(a) of the Act, which provides that a court should allow an appeal against conviction if it is satisfied that ‘the verdict of the jury is unreasonable or cannot be supported having regard to the evidence’. Section 420F(2) of the Act provides that the judge’s verdict of guilty ‘has for all purposes the same effect as a verdict of a jury’. Thus, in determining ground 1, this Court is required to apply the principles which are relevant to an appeal against a verdict of a jury under s 276(1)(a).[17]
[17]Dansie v The Queen (2022) 96 ALJR 728, 730–1 [5]–[8], 732–3 [16] (Gageler, Keane, Gordon, Steward and Gleeson JJ); [2022] HCA 25 (‘Dansie’); St Vincent’s Care Services Pty Ltd v The Queen [2022] VSCA 186, [30] (Priest, Beach and Macaulay JJA) (‘St Vincent’s Care Services’).
In order to succeed on that ground, the applicant must demonstrate that it was not open to the judge to be satisfied, beyond reasonable doubt, of his guilt on the particular charges in issue.[18] In determining that question the court is required to make its own independent assessment of the evidence. However, in doing so, it must give full weight to the trial judge’s advantage in observing and listening to the witnesses, and to the principle that the judge was entrusted with the principal responsibility of determining the guilt or innocence of the applicant.[19]
[18]M v The Queen (1994) 181 CLR 487, 492–3 (Mason CJ, Deane, Dawson and Toohey JJ); [1994] HCA 63 (‘M’); Pell v The Queen (2020) 268 CLR 123, 146–147 [42]–[45] (Kiefel CJ, Bell, Gageler, Keane, Nettle, Gordon and Edelman JJ); [2020] HCA 12 (‘Pell’).
[19]Cf R v Baden-Clay (2016) 258 CLR 308, 329 [65] (French CJ, Kiefel, Bell, Keane and Gordon JJ); [2016] HCA 35.
In M, Mason CJ, Deane, Dawson and Toohey JJ outlined the principles, relevant to an appeal from the verdict of a jury, in the following terms:
In most cases a doubt experienced by an appellate court will be a doubt which a jury ought also to have experienced. It is only where a jury’s advantage in seeing and hearing the evidence is capable of resolving a doubt experienced by a court of criminal appeal that the court may conclude that no miscarriage of justice occurred. That is to say, where the evidence lacks credibility for reasons which are not explained by the manner in which it was given, a reasonable doubt experienced by the court is a doubt which a reasonable jury ought to have experienced. If the evidence, upon the record itself, contains discrepancies, displays inadequacies, is tainted or otherwise lacks probative force in such a way as to lead the court of criminal appeal to conclude that, even making full allowance for the advantages enjoyed by the jury, there is a significant possibility that an innocent person has been convicted, then the court is bound to act and to set aside a verdict based upon that evidence.[20]
[20]M (1994) 181 CLR 487, 494 (Mason CJ, Deane, Dawson and Toohey JJ); Pell (2020) 268 CLR 123, 144–5 [37]–[39] (Kiefel CJ, Bell, Gageler, Keane, Nettle, Gordon and Edelman JJ).
In Dansie, the High Court explained the manner in which those principles are to be applied by an intermediate court of appeal in an application for leave to appeal from a decision of a judge alone. The Court stated:
Where the trial has been by judge alone, the reasons of the trial judge must be approached by the court of criminal appeal performing that function with circumspection lest the findings of fact made by the trial judge divert the court from undertaking the requisite independent assessment of the evidence. The court will be required to consider the arguments of the parties in the appeal and will be entitled to treat findings of fact made by the trial judge about which no issue is taken in the appeal as an accurate reflection of so much of the evidence as bore on those findings. But the question for the court in every case will remain whether the court’s assessment of the totality of the evidence leaves the court with a reasonable doubt as to guilt which the court cannot assuage by having regard to such advantage as the trial judge can be taken to have had by reason of having seen and heard the evidence at trial.
The advantage that a trial judge might have had over a court of criminal appeal by reason of having seen and heard the evidence at trial will vary from case to case depending on the form in which the evidence was adduced at the trial and depending on the nature of the issues that arose at the trial. In a case such as the present, where the prosecution case was circumstantial, where the evidence adduced by the prosecution was largely uncontested and for the most part in the form of transcripts of unchallenged testimony, and where the appellant did not give evidence, the advantage must be slight.[21]
[21]Dansie (2022) 96 ALJR 728, 732–3 [16]–[17] (Gageler, Keane, Gordon, Steward and Gleeson JJ); St Vincent’s Care Services [2022] VSCA 186, [31].
In the VARE, and in the special hearing, the complainant described how the applicant had touched her on the upper inner thigh, notwithstanding her protestations that he desist from doing so. In his written case, and in his oral submissions, the applicant did not contend that there was any internal inconsistency or contradiction in that part of her evidence.
The evidence given by the complainant, in that respect, gained support from the suggestive nature of some of the messages that the applicant sent to the complainant on Facebook. In cross-examination, the applicant claimed that in fact the complainant had sent flirtatious messages to him. When cross-examined about some messages passing between them, the applicant stated that he understood the messages sent to him by the complainant to mean that she was ‘sexually in the mood’. He agreed with the proposition, put in cross-examination, that he was prepared to drive to the complainant’s home ‘for sex but not to give her drugs on tick’.
In his written outline and in oral submissions, the applicant placed particular emphasis on the differences between the account given by the complainant, and the account given by Mary Anderson, as to whether the complainant, on leaving the applicant’s vehicle, was visibly distressed, and whether she made an express complaint to Ms Anderson that she had been sexually assaulted.
Certainly there were some differences between the accounts given by the complainant and Ms Anderson, in respect of those matters. However, in the upshot, those differences were not, in our view, particularly significant.
It was common ground, in the evidence of the complainant and in the evidence of Ms Anderson, that, shortly after the complainant left the applicant’s vehicle, she did make some comment to Ms Anderson as to what had just occurred in the applicant’s vehicle. In the VARE, and in cross-examination at the special hearing, the complainant said that she spoke to Ms Anderson, and told her that she had not been in a comfortable position. In her evidence at the special hearing, the complainant demonstrated the manner in which the applicant had held her jaw in order to turn her face towards him in the vehicle. Ms Anderson gave evidence that the complainant had shown her how the applicant had held her by the jaw, which Ms Anderson physically demonstrated to the judge. As the judge noted, the demonstrations and descriptions respectively given by the complainant and by Ms Anderson, of that physical contact, were very similar.
Significantly, in the VARE and in the special hearing, the complainant said that Ms Anderson had telephoned the police to report the matter, at her request. The evidence of Sergeant McDonald was that a telephone call was received at 6:09 pm. Subsequently, the VARE interview was conducted with the complainant at 8:08 pm. It is thus clear that, on any view, the complainant made a consistent complaint about what had occurred in the vehicle shortly after the event had occurred.
Although the complainant, in her evidence, said that she was not crying when she left the vehicle, in cross-examination at the special hearing she said that she was scared, in shock, and ‘numb’. The fact that Ms Anderson’s perception of the complainant’s emotional state was different in that respect, and that Ms Anderson observed the complainant as being distraught and crying, is of little significance in the context of the case. On the evidence of either witness, the complainant was emotionally affected by the events that had occurred in the vehicle.
In those circumstances, it was well open to the judge to be impressed with the evidence given by Ms Anderson as to her communications with the complainant, and the complainant’s emotional state, shortly after the complainant had alighted from the applicant’s vehicle. The judge had the advantage of observing both the complainant and Ms Anderson in their evidence. There was nothing about the evidence of Ms Anderson which obliged the judge to disregard her evidence as to the complaint made to her by the applicant or that would have justified his Honour doing so. Ms Anderson’s evidence was, of itself, cogent evidence in support of the account given by the complainant as to what had occurred in the applicant’s vehicle.
The applicant submitted that the judge should have rejected the evidence of Ms Anderson, because she had made a previous statement that was inconsistent with one aspect of her evidence. In her evidence, Ms Anderson said that she observed a man who was sitting in the vehicle which the complainant entered outside the residence, whereas in her statement to the police, Ms Anderson had said that she could not discern the gender of the driver or occupant of the vehicle.
The judge was correct in considering that that difference, in the account given by Ms Anderson, was of no consequence.[22] In cross-examination, when the difference in the accounts given by her was pointed out to her, she readily conceded that her recollection, at the time of making her statement, was better than it was at the time at which she gave evidence. She also agreed that, based on what the complainant had told her, she had assumed that there was a male inside the vehicle. That concession made by the witness was entirely credible. Indeed, it confirmed the evidence given by Ms Anderson that the complainant had told her about the male who was inside the vehicle.
[22]Reasons, [234].
There was very little evidence given about the DNA tests conducted on swabs apparently taken from the complainant. In particular, the evidence did not contain any detail as to the number of swabs which were taken. In cross-examination Sergeant Luri stated that he believed that the swabs were taken from the complainant’s cheek and her thigh, and that the testing of the DNA extracted from the swabs was reported as indicating that it was ‘more likely’ that the applicant was not a contributor to the DNA identified in the tests and swabs. That evidence of itself could not, logically, contradict the evidence given by the complainant that the applicant touched her on the face and on the thigh. At its highest, it was evidence that weighed against a conclusion that the applicant had touched the complainant on the precise part of the thigh and on the precise part of the cheek from which the swabs were taken.
Finally, as was conceded by the applicant in submissions before us, it was well open to the judge to reject the evidence given by the applicant. As we have noted, the judge provided detailed and cogent reasons for the rejection of the applicant’s evidence which related to the trafficking of cannabis. In doing so, for good reason, the judge found the applicant’s account — that the complainant was selling marijuana to him — to be ‘utterly implausible’ and to be entirely contradicted by the content of the text messages which he had sent to the complainant.[23] That conclusion by the judge, of itself, significantly impugned the credibility of the evidence given by the applicant. Further, the suggestive nature of some of the text messages sent by the applicant to the complainant, and the applicant’s concession, in cross-examination, that he was prepared to drive to the complainant’s place of residence for sex, materially undermined the applicant’s denial that, when the complainant entered his vehicle, he had made sexual advances to her.
[23]Reasons, [219].
Taking those matters into account, the applicant has failed to demonstrate that it was not open to the judge to be satisfied beyond reasonable doubt of his guilt on charge 2. Having reviewed the evidence in detail, and for the reasons we have outlined, we do not have a reasonable doubt as to the guilt of the applicant on that charge.
For those reasons, ground 1 of the proposed application for leave to appeal must fail.

Ground 2 — submissions

In support of ground 2, the applicant noted that according to the account given by the complainant in the VARE, Annie Wilkins was in view of the applicant’s vehicle for the whole of the time that the complainant was in it. In the VARE, the complainant said that Annie Wilkins had wished to get into the vehicle with the complainant in order to meet the applicant. In those circumstances, the applicant submitted that the judge erred in concluding that Annie Wilkins would not have been a relevant witness, because it had not been suggested that she had witnessed the events that had occurred in the vehicle. In that respect, the applicant noted that the complainant, in the VARE, said that in fact Annie Wilkins could see the applicant in the vehicle. The applicant also noted that the complainant had said that when the applicant had reached over to touch her thigh, Annie Wilkins knew that something was not right because she looked at the complainant’s face and the complainant was ‘not okay with that’.
Accordingly, the applicant submitted that the judge erred in concluding that the failure to call Annie Wilkins as a witness was ‘entirely inconsequential’ to the determination of the outcome of the case. In that respect, the applicant further noted that Annie Wilkins would have been a relevant witness in respect of the apparent discrepancy between the evidence given by the complainant and the evidence given by Mary Anderson as to the complainant’s distress after she left the vehicle.
In addition, under ground 2, the applicant submitted that in the VARE, and in the special hearing, the complainant had said that two of the boys, who were also resident in the same home, had been outside the residence at the time of the incident, and that at one point one of those boys (Jack) approached the vehicle in order to obtain a cigarette. The applicant submitted that each of those two witnesses should have been called to give evidence, and that the prosecution did not provide any explanation for its failure to interview those two witnesses and take statements from them.
In response, counsel for the respondent submitted that the judge did not err in his consideration of the failure by the prosecution to call Annie Wilkins to give evidence. Counsel submitted that any evidence given by Ms Wilkins would not have been material to the applicant’s case.
In particular, the issues in respect of charges 1 and 2 concerned whether the applicant had touched the complainant’s thigh and face inside the vehicle. Although the complainant suggested that Ms Wilkins was outside the front of the house and that they spoke after the complainant left the vehicle, Ms Anderson gave evidence that Ms Wilkins was inside the house during the whole of the incident. The applicant said that he only saw Ms Anderson outside the house. Thus, on the version of either such witness, Ms Wilkins could not have given evidence about what had occurred inside the vehicle. Further, it was submitted, any evidence given by Ms Wilkins would not have affected the resolution of the issues arising out of the discrepancy in the accounts given by the complainant and Ms Anderson as to the complainant’s distress after she left the vehicle.

Ground 2 — analysis and conclusion

It is a fundamental principle of our criminal justice system that the prosecution in a criminal trial must act with fairness, with the objective of establishing the whole truth and of ensuring that an accused person is accorded a fair trial.[24] As an aspect of that duty, the prosecution is required to call all available witnesses, whether they are favourable to the prosecution case or otherwise, unless there is good reason not to do so.[25]
[24]Whitehorn v The Queen (1983) 152 CLR 657, 663–4 (Deane J) (‘Whitehorn’); [1983] HCA 42.
[25]Whitehorn (1983) 152 CLR 657, 674 (Dawson J); Dyers v The Queen (2002) 210 CLR 285, 292–3 [11] (Gaudron and Hayne JJ); [2022] HCA 45 (‘Dyers’).

Section 43 of the Jury Directions Act 2015 makes provision for a case in which the prosecution, without satisfactory explanation, fails to call or question a particular witness where the judge is satisfied that the prosecution was reasonably expected to call or question that witness. Section 43 is in the following terms:
(1)If the prosecution does not call or question a particular witness, defence counsel may request under section 12 that the trial judge direct the jury on that fact.
(2)The trial judge may direct the jury as referred to in subsection (1) only if the trial judge is satisfied that the prosecution —
(a) was reasonably expected to call or question the witness; and
(b)has not satisfactorily explained why it did not call or question the witness.
(3)In giving a direction referred to in subsection (1), the trial judge may inform the jury that it may conclude that the witness would not have assisted the prosecution’s case.
In closing submissions, counsel for the applicant did not, specifically, request the judge to give himself, and to adhere to, such a direction. Nevertheless, as we have noted, counsel did cross-examine Senior Constable McDonald and Sergeant Luri to confirm that no statement was taken from the witness Annie Wilkins. The judge clearly considered that the issue had been sufficiently raised. In his Honour’s reasons, he specifically noted that, in assessing the evidence in relation to charges 3 and 4, one issue concerned the fact that the prosecution did not call Annie Wilkins to give evidence.[26] His Honour then discussed whether Annie Wilkins would have been a relevant witness, and concluded that the failure to call her as a witness was ‘entirely inconsequential to the determination of the outcome of this case’.[27]
[26]Reasons, [243].
[27]Reasons, [247].
As we have noted, in the VARE interview, the complainant said that, when she left the applicant’s vehicle, Annie Wilkins walked out of the house, and that she (the complainant) told Ms Wilkins that she had been put in a really uncomfortable position, and she described to Ms Wilkins how the applicant had touched her. Although Sergeant Luri and Sergeant McDonald were each asked questions in cross-examination as to whether a statement by Wilkins had been taken, the prosecution did not adduce any evidence to explain why no such statement was taken, and to explain why Annie Wilkins had not been called to give evidence in the case. In view of the evidence given by the complainant, Annie Wilkins was, therefore, potentially a relevant witness from whom, at the least, a statement should have been taken. In those circumstances, the two conditions prescribed by s 43(2) to the Jury Directions Act were satisfied. Accordingly, it may be accepted that it was open to the judge to infer that Ms Wilkins would not have assisted the prosecution’s case, if she had been called to give evidence.
That proposition may be readily accepted. However, on analysis, that inference would not have any consequence to the determination of the factual issues that were in contention.
As we have discussed, on any view of the evidence, the complainant did make a complaint to Ms Anderson. For the reasons that we have outlined, the judge was correct in accepting the evidence of Ms Anderson, namely, that the complainant, in a state of distress, had told her that the applicant had inappropriately touched her. According to the evidence of Ms Anderson, and the evidence of the complainant, Ms Anderson telephoned the police, at the request of the complainant, one hour after the occurrence of the incident in the applicant’s vehicle. Two hours later, the complainant participated in a VARE interview, in which she described, in some detail, the incident and the manner in which the applicant had assaulted her. In those circumstances, the question whether Ms Wilkins would, or would not, have supported the evidence of the complainant, is of little moment. If, hypothetically, Ms Wilkins had given evidence, supporting the account given by the complainant, that would have fortified the prosecution case. On the other hand, if Ms Wilkins gave evidence that the complainant did not make any complaint to her, the fact remains that, based on the evidence of Ms Anderson, the complainant did make a ready complaint, which she repeated a very short time later in the VARE interview.
For those reasons, it could not be concluded that the failure of the police to interview Annie Wilkins, and the failure of the prosecution to call her as a witness, has resulted in a substantial miscarriage of justice.
We do not consider that the judge was obliged to take into account, in accordance with s 43 of the Jury Directions Act, the circumstance that the two young males who also lived in the home were not called to give evidence. In the VARE, the complainant said that one of the two males (Jack) came out and that the other male (Tom) was also outside getting a cigarette. However, in cross-examination she said that they were sitting out the front, and that although Jack approached the vehicle in order to have a look, he was ‘a little bit of a distance away’. Based on that evidence, there was no reason for the judge to consider that either of those two persons could have given relevant evidence concerning the circumstances of what occurred in the vehicle. It was not suggested that either of them was a witness to any conduct by the complainant, or her demeanour, after she alighted from the vehicle.
For those reasons, ground 2 must fail.

Ground 3 — submissions

In support of ground 3, the applicant submitted that the attitude by the trial judge to him throughout the trial was ‘vastly different’ to the attitude of his Honour to the complainant and to other witnesses. In particular, he contended that there were three occasions on which the judge was ‘either aggressive, demeaning or snapped at the [applicant]’. The applicant further submitted that the judge ‘blatantly dismissed’ the whole of the evidence of the applicant, including evidence which corroborated that of the complainant.
As noted, the applicant relied on three particular instances in which he submitted that the judge had adopted an aggressive or demeaning or abrasive manner to him. The first such instance occurred during cross-examination of the applicant concerning text messages that had passed between himself and the complainant. The applicant submitted that at that point in the cross-examination, the judge, ‘snapping at the [applicant] with a raised and demeaning tone of voice’, told the applicant to ‘hold on’. The applicant noted that the judge was wearing a protective face mask which tended to muffle his comments and that he (the applicant) suffered from hearing loss. The applicant contended that at that point the judge rolled his eyes and continued to ‘reiterate’ to ‘wait whilst he is speaking’.
The second instance, relied on by the applicant, occurred when the applicant was being cross-examined by the prosecutor in respect to the significance of the cannabis leaf displayed in his text messages. The applicant submitted that in the course of the cross-examination concerning that matter, the judge became ‘aggressive and passionate’ and ‘started yelling’ thereby placing the applicant under duress.
The third occasion relied on by the applicant occurred during the plea hearing relating to the remaining rolled-up charges. The applicant has contended that as he was being arraigned on the remaining charges, it was noted by him that the charges had been wrongly framed. He has submitted that, in turn, that resulted in the judge ‘berating’ him before ‘storming out of the court room’ and adjourning the matter. The applicant has submitted that following the judge’s ‘outburst’, the matter was remedied, the charges were withdrawn and re-drafted, and the applicant was then properly arraigned.
In addition, the applicant submitted that the judge adopted a different approach to the evidence given by or on behalf of the prosecution compared with the approach that he adopted in relation to the evidence of the applicant. In that respect, the applicant again relied on the discrepancy between the evidence of the complainant and the evidence of Ms Anderson, and he submitted that, as a result, the evidence given by those witnesses should have been regarded as unreliable. In addition, the applicant noted that during the cross-examination of the complainant, there were instances in which the witness did not wish to answer questions put to her. In those circumstances, he submitted, the judge used a ‘calming tone’ to assure the complainant that it was appropriate for her to give the evidence.
In response, counsel for the respondent submitted that the two instances in which the judge intervened during the cross-examination of the applicant did not demonstrate any actual or apparent bias on his behalf. On the first occasion, in which the applicant asked whether he was required to name the person who had provided him with the complainant’s details, the judge simply responded ‘yes’. It was submitted that the question posed by the prosecutor was fair and relevant, and the applicant was required to answer it. On the second occasion, the judge appropriately asked the applicant to pause while he made some notes as to some answers given by the applicant during the cross-examination.
Finally, counsel submitted that the differential treatment of the evidence given by the applicant compared to that of the complainant and Ms Anderson can be explained. As was earlier submitted, despite some discrepancies, the judge was entitled to accept the evidence of both witnesses as credible and reliable. On the other hand, the applicant’s evidence was of a different quality. His narrative of the events was implausible, inconsistent with other evidence, and internally contradicted by his own oral evidence.

Ground 3 — analysis and conclusion

As we understand the submissions made by the applicant, it was not suggested that the trial judge was affected by actual bias. Rather, the question is whether the conduct of the judge, in the manner described by the applicant, gave rise to a reasonable apprehension of bias on his part.
In such a case, the test, which must be applied, is whether a fair minded lay observer might reasonably apprehend that the judge might not have brought an impartial and unprejudiced mind to the resolution of the questions which his Honour was required to decide.[28]
[28]See, eg, Livesey v New South Wales Bar Association (1983) 151 CLR 288, 293–4 (Mason, Murphy, Brennan, Deane and Dawson JJ); [1983] HCA 17; Webb v The Queen (1994) 181 CLR 41, 47 (Mason CJ and McHugh JJ); [1994] HCA 30; Johnson v Johnson (2000) 201 CLR 488, 492 [11] (Gleeson CJ, Gaudron, McHugh, Gummow and Hayne JJ) (‘Johnson’); [2000] HCA 48; Ebner v Official Trust in Bankruptcy (2000) 205 CLR 337, 344 [6] (Gleeson CJ, McHugh, Gummow and Hayne JJ); [2000] HCA 63.
In determining that question, it is important to acknowledge that the role of the judge, in the conduct of a trial, is not only to ensure that the process is conducted in a manner which is fair, but also that it proceeds in a manner which enables the case to be heard and determined in an efficient and appropriate manner. As part of that role, the judge is entitled to intervene, where it is necessary, in order to ensure that the trial proceeds appropriately.[29]
[29]Almeida v Opportunity Equity Partners Ltd [2006] UKPC 44, [103] (Lord Walker); Concrete Pty Ltd v Paramatta Design and Developments Pty Ltd (2006) 229 CLR 577, 582 [4] (Gummow ACJ); [2006] HCA 55.
Thus, the hypothetical fair minded observer is taken to understand that judges are required to ensure that litigation is conducted in an efficient way, and that irrelevant and immaterial matters are disregarded.[30] In Johnson v Johnson,[31] the High Court reflected its consideration in the following passage:
Whilst the fictional observer, by reference to whom the test is formulated, is not to be assumed to have a detailed knowledge of the law, or of the character or ability of a particular judge, the reasonableness of any suggested apprehension of bias is to be considered in the context of ordinary judicial practice. The rules and conventions governing such practice are not frozen in time. They develop to take account of the exigencies of modern litigation. At the trial level, modern judges, responding to a need for more active case management, intervene in the conduct of cases to an extent that may surprise a person who came to court expecting a judge to remain, until the moment of pronouncement of judgment, as inscrutable as the Sphinx.[32]
[30]Vakauta v Kelly (1989) 167 CLR 568, 584–5 (Toohey J); [1989] HCA 44.
[31](2000) 201 CLR 488.
[32]Johnson (2000) 201 CLR 488, 493 [13] (Gleeson CJ, Gaudron, McHugh, Gummow and Hayne JJ).
We have had the opportunity to listen to and view the recording of the parts of the proceeding in which the applicant has claimed that the judge acted in an inappropriate or abrasive manner toward him. The vision of the relevant parts of the hearing shows the applicant only, but the judge’s interventions and the tone that his Honour used are plainly audible.
The first instance, relied on by the applicant, in fact comprised two separate parts of the applicant’s evidence in cross-examination.
In the first part, the applicant was being questioned about his evidence that a mutual acquaintance had told him about the complainant. Counsel for the prosecution asked the applicant as to the identity of that mutual friend, to which the applicant responded ‘Do I really need to say?’ The judge, in answer to that question, said ‘Yes.’ The prosecutor then asked the question again, and the applicant responded to it. The response by the judge was given in a plain and direct manner. He did not speak in a raised or ‘demeaning’ tone of voice as alleged in the applicant’s written submissions.
The second part of the first instance, relied on by the applicant, occurred some time later in the cross-examination, in which the prosecutor asked the applicant questions about the content of messages that passed between himself and the complainant. After the applicant had completed his answer, the judge said ‘Sorry, just hold on.’ The applicant then continued to provide further detail relating to the question which he had been asked. The judge interrupted him and said ‘Hold on, hold on, hold on.’ The applicant then continued, saying ‘Like there’s … ’, in response to which the judge then told the applicant ‘ … if I say hold on, it means stop talking.’ The applicant then responded that he did not hear the judge, because he is deaf on one side.
That intervention by the judge occurred while his Honour was trying to take a note of the evidence that had just been given by the applicant. In listening to the recording, it is clear that the judge did not ‘snap at’ the applicant or speak to him in a ‘raised and demeaning tone’. The request, which the judge made of the applicant to desist from talking, was expressed in a measured and reasonable tone of voice.
The second instance, relied on by the applicant, occurred during cross-examination by the prosecutor, that was directed to the evidence of the applicant that he used a cannabis leaf on his text messages to tell other people that he was interested in purchasing cannabis. Counsel put to the applicant (rhetorically) ‘Not that you are interested in selling cannabis?’, to which the applicant responded ‘Like I said you’ve got other evidence to show that I was … ’. At that point, the judge then said to the applicant as follows:
Don’t worry about the other evidence, just answer the — Mr Xerri, listen to me, and look at me when I speak to you. Just answer the questions asked of you, don’t worry about the other evidence. I only operate on the evidence I’ve heard in this trial.
In that passage, the judge did not speak to the applicant in an ‘aggressive’ or ‘passionate’ manner. His Honour correctly instructed the applicant (in his own interests) to give evidence, and not to be concerned with any other evidence which the prosecution might have. It is clear from the video recording that, at that point, the applicant was looking away from the judge, and towards the prosecutor. It was for that reason that the judge directed him to look at him and listen to him. It is understandable that, from the judge’s perspective, it might have appeared that the applicant was not paying attention while the judge was speaking to him.
It is clear from the foregoing that, in respect of neither of the two instances to which we have just referred, a fair minded lay observer might apprehend that the judge was not bringing an impartial and unprejudiced mind to the resolution of the questions which his Honour was required to determine. Each intervention by the judge was appropriate. The judge did not raise his voice or use a tone that was abrasive, aggressive or demeaning. On neither of the two instances did the applicant react in a manner which indicated that he was visibly discomforted at all by the manner in which the judge spoke to him.
The third instance, relied on by the applicant, did not occur during the trial, but rather during the plea hearing. It is therefore not relevant to the question raised by ground 3. Further, there is no transcript or recording of the plea hearing available, and therefore it would be inappropriate to consider the point further.
The applicant has contended that the judge’s attitude towards him was ‘vastly different’ to the attitude that he adopted to other witnesses. In that respect, the applicant has pointed to one part of the evidence as an instance of that proposition. At that point, counsel for the applicant, in evidence in chief, asked for the applicant to be provided with an exhibit. It emerged that neither counsel had a clean copy of that exhibit available. The judge offered to provide his copy to the witness, and counsel for the applicant agreed. The judge then said ‘Come on, let’s keep it moving. Just read the messages to me as you’re referring to them.’
Two points may be made about that part of the proceeding. First, the judge was speaking to counsel for the applicant, and not the applicant. Secondly, in any event, the judge spoke in a reasonable tone. His Honour was concerned to ensure that the proceeding continued without unnecessary delay or interruption. That concern did not, in any way, manifest an inappropriate or unfair attitude to the applicant or to his case.
The point made by the applicant concerning the ‘differential’ treatment by his Honour of the evidence given by the applicant, compared to the evidence given by the complainant and Ms Anderson, is not of any substance. The judge gave sound reasons for his rejection of the evidence of the applicant. On this application, the applicant did not contend that the judge made any relevant error in reaching that conclusion. As we have discussed under ground 1, the judge had an appropriate basis upon which to prefer the evidence of Ms Anderson to the evidence of the complainant, on the issue as to whether the complainant made a direct complaint to Ms Anderson in which she described to Ms Anderson the manner in which the applicant had assaulted her.
Finally, as counsel for the respondent has correctly pointed out, the judge’s approach to the evidence of the applicant was particularly fair and reasonable. The judge acquitted the applicant of charge 1, accepting, on the balance of probabilities, that he had reasonably believed that the complainant was 16 years of age or older. In addition, the judge declined to take into account the applicant’s earlier plea of guilty in respect of the charge of sexual assault as an admission of guilt, as his Honour could not exclude the possibility that the applicant’s decision to plead guilty in the Magistrates’ Court had been made for pragmatic purposes, and therefore did not constitute an admission by him of his guilt. In each of those two instances, the approach by the judge evidenced a genuine sense of justice and fairness exercised by his Honour in determining the issues in the trial.

For those reasons, ground 3 of the proposed grounds of the application for leave to appeal must fail.

Ground 4 — submissions

Under ground 4, the applicant has relied on apparent discrepancies in the documentation that was served on him for the purpose of the committal proceeding.
In particular, the preliminary brief was dated 17 July 2018. It contained a list of witnesses, which apparently noted Ms Anderson as having provided a statement. However, the statement that was tendered on the committal proceeding, and on the trial, was dated 3 August 2018. The applicant submitted that the notation on the preliminary brief indicated that there must have been a second statement made by Ms Anderson, before 17 July 2018, which was not disclosed to the defence.
Secondly, the applicant noted that before a committal proceeding, the prosecution is required to serve a Form 29 (‘Notice of Committal Mention Date and Hand-up Brief’) and a Form 30 (being a list of information or other documents included in the Hand-up Brief).[33] However, the initial Hand-up Brief served by the informant only consisted of a Form 29 which was not signed by the informant. Subsequently, an ‘updated’ Form 29 was served which apparently noted that the informant had served the Hand-up Brief on the applicant on 29 August 2019 at Werribee at 11:02 am. However, the documentation was witnessed at the Altona North Police Station on the same date at 11:09 am.
[33] Cf the Act s 110; Magistrates Court Criminal Procedure Rules 2019 r 57.
Finally, the applicant noted that the Hand-up brief contained an affidavit dated 26 August 2019, which stated that there were no forensic procedures or tests that were yet to be completed. However, the running sheets of the attending police officers noted that swab testing was conducted and the report of those tests was dated 24 February 2020.
The applicant has submitted that those apparent discrepancies were attempts by the informant ‘to hide and misconstrue evidence and provide false depositions’ which, if disclosed, would have been unfavourable to the prosecution and cast doubts on its case.
In response, counsel for the respondent submitted that any irregularities in the documents served on the applicant, such as those relied on in support of ground 4, were technical and were not fatal to the trial proceeding or the evidence adduced in it. Further, as the material was disclosed to the applicant and relied on by him at the trial, any irregularity in it did not result in any unfair prejudice to him. The requirements, concerning the serving of the documentation, are not directed to the Court’s jurisdiction to hear and determine a criminal charge, and accordingly any discrepancy in the documentation or non-compliance with those requirements would not render the trial a nullity.
Further and in any event, counsel noted that, notwithstanding the apparent discrepancy between the informant’s statement and the actual date on Ms Anderson’s statement, the applicant received a copy of that statement ahead of the trial and defence counsel relied on it at the trial. Further, the fact that the Form 30 did not record an intention to conduct DNA tests did not adversely affect the presentation of the defence. In that respect, the DNA results, which were obtained on the testing, were positively relied on by defence counsel at the trial.

Ground 4 — analysis and conclusion

It is not suggested that any of the discrepancies in the documentation, relied on by the applicant, of themselves invalidated the proceeding, or the basis upon which the charges were prosecuted in the court.
At the trial, counsel for the applicant did not suggest to Ms Anderson, or to either of the police witnesses, that she had made an earlier statement than that which was tendered on the committal proceeding, and which was relied on by the applicant at trial. Nor did counsel for the applicant call for the production of any such statement. In those circumstances, there is no basis upon which an inference could properly be drawn that such a statement did exist, or might have existed, and which was not provided to the applicant at trial.
In his submissions, the applicant suggested that the prosecution had, in some way, sought to withhold the results of the DNA tests on swabs of the complainant. No such suggestion was made to either of the police witnesses at trial. It is clear, from the manner in which the witnesses were cross-examined on that matter, that counsel for the applicant was aware that the testing had not disclosed any DNA which matched that of the applicant. That point was relied on by the applicant’s counsel at trial, and was also relied on by the applicant in support of ground 1 in this application.
The discrepancies in the paperwork that are the subject of ground 4 are unfortunate, but they do not, either individually or collectively, form the basis of any viable ground of appeal.
Accordingly, ground 4 of the application for leave to appeal must also fail.

Conclusion

For the foregoing reasons, the applicant has failed to succeed on any of the proposed grounds of appeal. Accordingly, the application for an extension of time will be granted, but the application for leave to appeal will be refused.
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[2023] VSCA 15

13 February 2023