Cavanaugh (a pseudonym) v The Queen [2021] VSCA 347

CRIMINAL LAW - Appeal - Procedure - Application for extension of time to file application for leave to appeal against conviction - Significant delay - Delay largely caused by applicant's previous counsel - Applicant made prompt and timely efforts to commence appeal - Ground of appeal arguable - Extension granted - Bolton (a pseudonym) v The Queen [2021] VSCA 117, Bolton (a pseudonym) v The Queen [2021] VSCA 237.

1 I have had the advantage of reading in draft the respective reasons for judgment of Kaye JA and Walker JA.

2 For the reasons given by Kaye JA, I would grant the application for an extension of time within which to file the application for leave to appeal against conviction. I would, however, wish to reinforce what was said by this Court in Bolton[2] about the obligation of legal practitioners to ensure that time limits for the filing of applications in this Court are complied with.

The delay ... was explained by the workload of counsel. In my view, that is a weak reason to justify an extension of time. Given the existence of time limits, it was incumbent on counsel to take steps to finalise the material in a timely way or, if that was not possible, to return the brief. In this context, it is not possible to exonerate entirely either the applicant or his solicitors. The solicitors had an obligation to act in the best interests of their client. Faced with the inordinate delay, steps should have been taken to have documents prepared or, if that were not possible, the brief returned.[3]

4 The point was reiterated by Kyrou and Kennedy JJA in their subsequent decision in Bolton:

The applicant's initial appeal counsel should have returned the brief immediately upon realising that he could not prepare the appeal documents in a timely manner. And the applicant's solicitors should have pressed initial appeal counsel to prepare the appeal documents in a timely manner and to withdraw the brief and engage new counsel as soon as it was apparent that initial appeal counsel could not do so.[4]

5 The Court was informed by counsel for the present applicant that, as a result of those decisions, 'the message has been heard loud and clear in the profession' and 'the cultural shift has happened'. Given the serious detriment which delay of this kind can cause to those whose interests are affected by a criminal appeal, it is very

6 As to the substantive application, I agree with Walker JA that leave to appeal should be granted, but the appeal dismissed for the reasons which her Honour gives.

7 The applicant was initially charged on an indictment that contained thirteen charges of incest, and six charges of committing an indecent act with a child under sixteen years. The offences were alleged to have occurred between 25 February 2001 and 24 February 2009. In 2001, the applicant commenced a relationship with the mother of the complainant, who was then eight years of age. Subsequently, in 2003, the applicant married the complainant's mother.

8 On a trial in the County Court, directed acquittals were entered in relation to three charges of incest, on the ground that the acts of penetration, on which they were based, were alleged to have occurred before the applicant married the complainant's mother. The jury retired to consider its verdict on Friday 23 August 2019. In the course of its deliberations it was given a majority verdict direction. The jury was unable to reach verdicts on any of the remaining sixteen charges, and on Tuesday 27 August 2019 it was discharged without verdict.

9 At the retrial, which commenced on 14 October 2019, the applicant was charged on a new indictment with ten charges of incest and six charges of committing an indecent act with a child under sixteen years. On 21 October 2019, the jury returned guilty verdicts on the ten charges of incest and on five charges of indecent act with a child under sixteen years. A not guilty verdict was returned on one charge (charge 13) of indecent act with a child under sixteen years.

10 On 22 November 2019, the applicant was sentenced to fifteen years' imprisonment with a non-parole period of ten years and six months. He seeks leave to appeal the convictions on the sole ground that the jury's verdict in relation to each

charge on which he was found guilty was unreasonable or could not be supported having regard to the evidence.

11 The notice of application for leave to appeal against conviction was not filed until 9 August 2020, some seven and a half months after the time fixed for the filing of such an application. Accordingly, the applicant has filed an application for extension of time within which to file the notice of application for leave to appeal against conviction. It is convenient to deal, first, with that application.

12 The application for an extension of time is supported by an affidavit of the applicant's solicitor and an affidavit of the applicant's counsel, who, it should be noted, is not the member of counsel who appeared on the hearing of the application.

13 Upon being convicted, the applicant instructed his solicitor that he wished to appeal against his conviction on all charges. Following his sentencing, he maintained his instructions. During the period of 28 days after sentencing, the applicant's solicitor held a number of conferences with him, in which the applicant instructed that he wished to privately fund the appeal, and that he did not wish to apply for a grant of legal assistance with Victoria Legal Aid. The applicant also instructed that he wished to brief new counsel.

14 On 18 December 2019 (still within the appeal period), trial counsel completed a memorandum of advice recommending that the applicant should appeal against conviction only. The applicant instructed his solicitor that he wished to proceed in that way. On 23 December, he signed a costs agreement and disclosure statement and emailed them to his solicitor's office. However, the solicitor was absent on leave until 13 January 2020. On his return, he had a conference with the applicant in which they discussed funding for the appeal. The solicitor then contacted counsel who was then briefed for the appeal proceeding, and forwarded to him a copy of trial counsel's memorandum.

15 During February and March 2020, the applicant's solicitor held three conferences with the applicant relating to the funding of his appeal. On 13 March and 16 March 2020, the applicant's partner made deposits into the solicitor's trust account for that purpose. Accordingly, on 18 March 2020 the solicitor briefed counsel to prepare written grounds of appeal and to appear on the appeal hearing.

16 It is apparent that the subsequent delay, between that date and the filing of the notice of application for leave to appeal on 9 August 2020, was due to delay on the part of counsel who was then briefed on behalf of the applicant. In his candid affidavit in support of the application, that counsel has stated that he is 'solely responsible' for the length of the delay since he was briefed in the matter, and that the delay is entirely his fault. Counsel explained that during that period he had particularly heavy work commitments which involved a substantial amount of time and work on his behalf. Counsel has outlined those commitments in his affidavit. He has 'frankly' stated that he found it difficult to decline briefs, and he was conscious of his obligation to attend to each of them in a timely manner.

17 In opposing the application for an extension of time, counsel for the respondent has submitted that the explanation for the lengthy delay of almost nine months is 'unacceptable and should be discouraged', as the administration of justice demands adherence to the time limits. Counsel also submitted that the appeal is without merit and therefore the extension of time should be refused.

18 The principles, that apply to an application for an extension of time, are well settled. The Court has a broad discretion whether to grant such an extension, which is principally informed by the requirements of the interests of justice in the case. In determining an application, the Court takes into account relevant circumstances that include the length of the delay, the reasons for the delay, and the prospects of success of the proposed appeal.[5]

19 In the present case, the delay was particularly lengthy. However, it is clear that, from the outset, the applicant wished to appeal against his conviction, and gave instruction to his solicitor that he intended to do so. The applicant, who was then in prison, made appropriate and timely efforts to ensure that sufficient funds were provided to the solicitor to enable the appeal to proceed. The substantial part of the delay was due to counsel, who was then briefed in the matter, undertaking an excessive workload on other cases which precluded him from attending to the brief that he had been sent to prepare appeal documents on behalf of the applicant. None of that delay can be attributed to the applicant. Further, for the reasons that I shall discuss, it is clear that the substantive application for leave to appeal against conviction is arguable. The charges against the applicant, on which he was convicted, were particularly serious. Upon his conviction, he was sentenced to a lengthy period of imprisonment, reflecting the gravity of the alleged offending. In those circumstances, it is appropriate, and in the interests of justice, that this Court review, by way of leave to appeal, the applicant's conviction on those charges.

20 Accordingly, the application for an extension of time should be granted.

21 The complainant was born in February 1993. He is the eldest of two children, his sister being five years younger. His parents' relationship broke down when he was eight years of age.

22 Subsequently, the applicant commenced an intimate relationship with the complainant's mother in 2001. They married in November 2003. The applicant's daughter, the complainant's half-sister, was subsequently born in 2005.

23 The charges against the applicant arose out of ten separate incidents. The first incident occurred when the complainant, who was then eight years of age, accompanied the applicant to mow the lawns at the applicant's mother's house in Oakleigh. After the lawns were mowed, the applicant took the complainant into his old bedroom and removed his own trousers, exposing his penis. He told the complainant to take hold of his penis which the complainant did (charge 1 - indecent act with a child under 16). The applicant also touched the complainant's penis, rubbing it up and down (charge 2 - indecent act with a child under 16). The applicant told the complainant to put his mouth onto the applicant's penis. The applicant put his penis into the complainant's mouth (charge 3 - incest). The applicant then instructed the complainant to remove his clothes and lie face down on the bed. When the complainant was in that position, the applicant lay on top of him and inserted his penis into the complainant's anus (charge 4 - incest). The penetration continued until the applicant ejaculated.

24 The second incident occurred about one month later when the complainant again accompanied the applicant to the applicant's mother's house to mow the lawn. After the lawn had been mowed, the applicant again took the complainant into his old bedroom. The applicant produced a purple dildo which he used to penetrate the complainant's anus (charge 5 - incest). The applicant then removed the dildo and inserted his penis into the complainant's anus (charge 6 - incest). The penetration ceased when the applicant ejaculated.

25 The third incident occurred in 2002 after the applicant, the complainant's mother, and the children had moved into a new residence in Oakleigh South. On that occasion, the complainant's mother and sister went shopping. The complainant was playing with toys in his room. The applicant entered the room and started to touch the complainant's penis outside his clothing. He then removed the complainant's trousers and rubbed his penis up and down (charge 7 - indecent act with a child under 16). As he did so, he told the complainant to rub his penis up and down to the point of ejaculation (charge 8 - indecent act with a child under 16).

26 The fourth incident occurred when the complainant was ten years of age. During that time, the complainant and the applicant attended karate classes in Oakleigh. On one evening, when the applicant drove the complainant home from karate, the applicant parked the car near a VicRoads office. He told the complainant to give him oral sex and said he would give the complainant a chocolate bar. The complainant took hold of the applicant's penis and rubbed it up and down (charge 9 - indecent act with a child under 16). He then put his mouth over the applicant's penis, and gave the applicant oral sex until the applicant ejaculated (charge 10 - incest).

27 The fifth incident also occurred when the complainant was ten years of age. On that occasion, while the applicant was driving the complainant home from karate, he stopped in another area. The applicant offered the complainant money in exchange for the complainant performing oral sex on him. The complainant put his mouth over the applicant's penis and moved his head up and down until the applicant ejaculated (charge 11 - incest).

28 The next incident (the sixth incident) occurred on the night before the applicant married the complainant's mother in November 2003. On that night, the applicant, a friend DS, and the complainant stayed at the applicant's mother's house in Oakleigh. The applicant, the complainant and the friend slept in the same room. While the friend was asleep, the applicant asked the complainant to give him oral sex and promised to give him a chocolate bar. The complainant took hold of the applicant's penis, and put it inside his mouth (charge 12 - incest). The applicant ejaculated.

29 The seventh incident concerned charge 13 (indecent act), on which the applicant was acquitted. The complainant did not give any evidence of that incident. His sister JT, who was then either four or five years of age, said that she happened to observe the complainant and the applicant naked in the bathroom, with the complainant bent over and the applicant thrusting against his anus.

30 The eighth incident occurred in 2006. On that occasion, the applicant was in the lounge room with the complainant. He inserted his penis into the complainant's anus (charge 14 - incest). The complainant's half-sister JH, who was then about twelve months old, was the only person who was home at the time.

31 The ninth incident took place when the family visited Rye for a summer holiday in December 2007. The incident occurred when the complainant's mother took his sisters shopping. While they were out, the applicant offered the complainant fifty dollars in exchange for oral sex. The applicant went into his bedroom and sat on the edge of the bed. The complainant was on his knees on the ground. The applicant told the complainant to grab his penis. The complainant rubbed the applicant's penis and then put it in his mouth, where it remained until the applicant ejaculated (charge 15 - incest). The applicant then gave the complainant fifty dollars.

32 The last (tenth) incident occurred when the complainant was fifteen years of age. On that occasion the applicant and the complainant had visited Southland to see the movie 'Iron Man'. When they returned home, no-one else was there. The applicant took the complainant into his bedroom. The complainant was on his hands and knees on the bed. The applicant inserted his penis into the complainant's anus in a forceful manner (charge 16 - incest).

33 The tenth incident was the last incident. The complainant in his evidence stated that by then he had gained sufficient confidence to resist the applicant. Subsequently, in November 2011, the applicant and the complainant's mother separated, with the applicant leaving the home. The complainant first made any complaint about the applicant's conduct in 2013 when he told his girlfriend WA. Subsequently, on or about 26 January 2015, the complainant told his mother that the applicant had raped him since he was eight years of age.

34 The applicant was arrested and interviewed on 22 April 2015. He exercised his right to give a no comment answer to questions put to him.

35 The principal witness for the prosecution was the complainant. He gave evidence substantially in conformity with the prosecution case.

36 The complainant stated that his parents separated when he was eight years of age. The relationship between the complainant's father and his mother was never good. His father, a violent drug addict, was hardly ever at home.

37 The complainant stated that he first met the applicant when he was four years of age. The applicant was then a friend of the family. After the complainant's parents separated, the applicant commenced a relationship with the complainant's mother and moved in with them in their home in East Bentleigh. At that time the complainant had a good relationship with the applicant. He looked up to the applicant as a father figure and a role model. However, sometime after the applicant moved in, the relationship between him and the complainant radically changed, in circumstances in which the applicant sexually abused and raped the complainant when he was between the ages of eight years and sixteen years.

38 The complainant then gave evidence as to each of the incidents which have been summarised above.

39 The first incident (which is the subject of charges 1 to 4) occurred when he was eight years of age. The complainant accompanied the applicant to the applicant's mother's (JK's) house in Oxford Street, Oakleigh in order to mow her lawn. When they had finished mowing, they went into the house and into the applicant's old bedroom. The applicant removed his clothes and showed the complainant his penis, which looked 'massive'. The applicant told the complainant to take hold of his penis, and, accordingly, the complainant grabbed it and 'yanked' it up and down. The applicant took hold of and rubbed the complainant's penis. The complainant then put his mouth on the applicant's penis and imagined that it was a lollipop. The applicant then told the complainant to remove his clothing and to lie on the bed face down. When the complainant did so, the applicant got on top of him. The complainant could feel the applicant's penis moving inside and out of his anus, and he felt sperm inside his anus. The complainant said that he felt pain and agony and he screamed as loudly as he could. He said he did not want to do it, because it was hurting him. He said that the applicant told him, at the outset of the incident, that this was what fathers and sons do all the time. He said that after the applicant had ejaculated, the applicant made him go to the toilet, and the applicant had a shower.

40 The second incident occurred about one month later when the applicant and the complainant again attended JK's house in Oxford Street to mow her lawns. JK was not at home at the time. After they had finished mowing, they went into the applicant's old bedroom. The applicant produced a long purple dildo. He then made the complainant hold his penis and then give him a 'blow job' (which constituted an uncharged act). The applicant then put the dildo into the complainant's anus. The complainant told him that he did not like it, and so the applicant removed it. The applicant then inserted his penis into the complainant's anus, and thrust in and out of his anus, until he ejaculated. In his evidence the complainant said that it felt like 'torture, pain and agony', and he was screaming. After the incident the applicant drove the complainant home. In his evidence the complainant said he did not tell anyone what had happened because he was embarrassed and he thought if he said anything he would get into trouble.

41 The third incident occurred in 2002, when the complainant was nine years of age. The family moved to a home in Sandalwood Drive, Oakleigh South. About two months after they moved in, the third incident occurred. On that occasion no-one else was in the house, as the complainant's mother and his sister JT (who was one or two years of age) had left the home to purchase groceries. At the time of the incident the complainant was playing in his bedroom with toys. The applicant entered it and sat next to the complainant on the bed and touched his penis over his trousers for thirty seconds. The applicant then pulled the complainant's trousers down and rubbed his penis up and down for about two minutes. The applicant said 'it's what fathers and sons do all the time and it's the only way to have sex'. The applicant then made the complainant take hold of his penis. The complainant rubbed the applicant's penis up and down for a couple of minutes until he ejaculated.

42 The complainant said that the vast majority of the abuse occurred in his bedroom at Sandalwood Drive. He said it happened every couple of months, and that anal penetration would occur on most of those occasions. He said that the abuse was extremely painful and torturous, and he would scream. He could not recall any occasion when one of the neighbours came around and asked what the screaming was about.

43 The fourth incident took place when the complainant was ten years of age. The complainant commenced attending karate lessons at Kando Karate at the corner of North and Warrigal Roads, Oakleigh South when he was eight years of age. The applicant used to drop him off there and pick him up most of the time. When the complainant was about ten years of age, after the applicant had collected him from karate, the applicant drove to near the VicRoads premises in Oakleigh South at the end of the street. It was near an industrial estate. The applicant then told the complainant to give him a 'blow job' and the applicant said he would then purchase him a chocolate bar. In response, the complainant took hold of the applicant's penis, rubbed it up and down a bit and put it in his mouth. While he did so, he imagined it was a lollipop, as the applicant had told him previously. The applicant then ejaculated in the complainant's mouth. After the incident, they went to a shop and purchased a chocolate bar.

44 The fifth incident also occurred when the complainant was ten years of age. The incident again took place one evening after the applicant and he had finished karate lessons. On that occasion, the applicant stopped his vehicle outside a factory on Carroll Road. He instructed the complainant to give him a 'hand job' and a 'blow job'. The applicant promised to give the complainant twenty dollars. The complainant took hold of and rubbed the applicant's penis which was erect. He then put his mouth on top of the applicant's penis and used it 'like a lollipop'. The complainant said that the incident occurred at night time and no-one else was around.

45 The sixth incident occurred on the night before the applicant married the complainant's mother. They were then staying at JK's house. One of the applicant's best friends, DS, and JK's companion MM were also present. There were three mattresses on the floor. The complainant lay next to the applicant and DS lay on the mattress on the other side of him. On that occasion, the applicant told the complainant to give him oral sex, in exchange for which the applicant would give him a chocolate bar. Accordingly, the complainant took hold of the applicant's penis, put it inside his mouth, and licked it like a lollipop until the applicant ejaculated. On the next day, the applicant gave the complainant a chocolate bar.

46 The next incident described by the complainant was in fact the eighth incident, which he said occurred in 2006 when he was thirteen years of age. The incident took place in the lounge room of the home in Sandalwood Drive, Oakleigh South. JH, who was then one year of age, was in the house. The complainant said that the applicant was standing, the complainant's legs were on top of his shoulders, and the applicant thrust his penis in and out of the complainant's anus. The applicant told the complainant not to worry about JH as she was too young to understand. The complainant said that on that occasion the anal penetration was hurtful, but it was not as painful as on the other occasions.

47 The ninth incident occurred on a family holiday in Rye in December 2007. On that occasion, the complainant's mother and sisters had gone shopping. The applicant offered the complainant fifty dollars in exchange for oral sex. The applicant was on the edge of the bed, and the complainant was on his knees on the ground. He took hold of the applicant's penis, rubbed it up and down, put it in his mouth, and licked it 'like a lollipop'. The applicant ejaculated in the complainant's mouth. He then paid the complainant fifty dollars as he had promised to do so.

48 In his evidence the complainant said that after that incident he did not tell anyone what was happening. He said that he thought he would get into trouble if he did so, and he was too embarrassed in any event. He was worried that his mother would make out that he was lying. By that time, the complainant was fourteen years of age, and he thought that what happened between himself and the applicant was a 'father and son' type of occurrence.

49 The final (tenth) incident occurred in May 2008 when the complainant was fifteen years of age. The complainant and the applicant had attended a movie 'Iron Man' at Southland. When they returned home, the complainant's mother and two sisters were not there. The applicant and the complainant went into the applicant's bedroom. On that occasion, the complainant was on his hands and knees. The applicant grabbed him by the shoulders and thrust his penis inside and out of the complainant's anus. The complainant said that he felt ejaculation right at the end. He said that he felt pain and agony because the penetration was more forceful than usual, and it hurt more than usual. He said that he did not tell anyone what had happened because again he was too embarrassed about what other people would think about him, and he thought he would get into trouble with his mother.

50 The complainant gave evidence that by the time he was sixteen years of age he had taken up boxing as a hobby. One of the reasons he did so was to defend himself against the applicant. He said that when he turned sixteen years of age no further misconduct occurred between them. The complainant kept rejecting the applicant, and the applicant's request for sexual encounters ceased when the complainant turned seventeen years of age. In the following year, in October 2011, the family moved to Chelsea Heights. One month later, the applicant and the complainant's mother separated. The complainant remained living with his mother and sisters until 2013, when he then went to live with his girlfriend WA in Safety Beach.

51 Following his mother's separation from the applicant, the complainant occasionally saw the applicant. He said that all of a sudden he and the applicant 'miraculously' got along together like nothing had ever happened. He said that he would see the applicant every month or so.

52 The complainant lived with WA for about three years. In August 2013, he disclosed to WA that the applicant had sexually abused him. He said on that occasion WA and he were in bed, and the complainant was not feeling well. WA wanted to have sex with him, but he did not wish to do so. When she asked why that was so, the complainant, who had been having thoughts about the applicant, told WA that the applicant had abused and raped him as a child.

53 Subsequently, a few days before Australia Day 2015, the complainant told his mother about what had occurred. On that occasion, WA was also present. The complainant told his mother that the applicant would abuse and rape him. A couple of weeks later in February 2015, the complainant went to the police and reported the abuse to them.

54 In cross-examination, the complainant said after the applicant moved in with his family, he regarded the applicant as a positive role model in his life. The applicant was a good father to him and would take him to the park and occasionally give him a treat. The complainant also said that he regarded the applicant's mother JK as being a grandmother figure to him. JK lived in the Oakleigh property with MM. MM had had amputations on both of his legs and he had a number of health issues. He could only move around in a wheelchair.

55 The applicant and the complainant would visit JK's home every four to six weeks in order to mow the lawn. He said that JK and MM were always pleased to see him. In cross-examination, the complainant disagreed with the proposition that whenever they visited her home, at least one of JK or MM were always home. He agreed that there were people living in the homes on either side of JK's house.

56 The complainant said that on the first occasion when the applicant penetrated his anus with his penis (the first incident), he felt agony and pain and he was screaming as loudly as he could. The applicant pushed his penis all the way into his anus and ejaculated into him. The applicant did not use lubricant. He said that although he was screaming none of the neighbours came to make an inquiry. He said that when the applicant penetrated his mouth with his penis it felt as if it went all the way in. He agreed that the applicant had a huge penis, which he had observed in changing rooms when they went to the swimming pool or when they were naked together in the bedroom or bathroom.

57 The complainant acknowledged that JK had died a few years ago and that MM died in 2015. He denied that he made up the allegations about what happened at their home, because he knew that neither of them would be able to contradict anything he said.

58 The complainant said that on the second occasion on which an incident occurred at JK's house (the second incident), JK and MM were not at home. He said that when the applicant inserted his penis into his anus he was screaming and crying, but no neighbour came and asked why he was screaming. He said it felt like torture.

59 The complainant said that the sexual abuse would occur every two months on average when he was between the ages of eight and sixteen years. He did not tell anyone, including his mother, about it. Every once in a while he would tell his mother that he did not want to go to JK's house to mow the lawn, but he still had to do it.

60 The complainant confirmed that the third incident occurred at the home in Sandalwood Drive, Oakleigh. He agreed that an older couple lived on one side of the house and a family with children lived on the other side. He said that the vast majority of the abuse occurred in his bedroom in that house, and that it would occur every couple of months. On most of those occasions anal penetration would occur. He again said that the anal penetration was extremely painful and torturous, and that he would scream. He could not recall any occasion when one of the neighbours came around and asked what the screaming was about. He agreed that the abuse occurred when his mother went out shopping. He said his mother never said how long she would be out shopping. Sometimes she went to Woolworths which was a two minute drive away, and on other occasions she would go to the Aldi shop in Moorabbin Airport that was five or ten minutes away. The complainant said there was never an occasion when his mother came home while the applicant was abusing him.

61 The complainant agreed that the fourth incident occurred when they were returning home from a karate class. The applicant was wearing karate gear which was quite hard like canvas. He said that when the applicant removed his trousers they came off quite easily. He agreed that adults at karate wear a protective device over their genitals, which is shaped like a cup. At the time of the fourth incident the applicant was wearing such a device. But when he pulled his trousers down, the cup was also removed. He said that the incident occurred about 7:00 pm. It lasted about fifteen to twenty minutes. He agreed that there was an operating VicRoads office in the street, but at the time no-one was walking or travelling along the street. He agreed that further north from the incident Carroll Road turned into Centre Road which is a fairly major road. However, at the time there were hardly any vehicles around. No-one stopped or rapped on the window or yelled out.

62 In relation to the sixth incident, which occurred on the night before the applicant married the complainant's mother, the complainant reiterated that the applicant, himself and DS slept in the same room. There were three mattresses on the floor lying next to each other. He said that it was in that context that the applicant requested him to give him oral sex. He said that the incident lasted a couple of minutes. During it DS was lying on the mattress next to them, but he was asleep. He agreed that he knew that DS had passed away in mid-2012.

63 The complainant said that in the eighth incident (which happened in the lounge room of their home), he suffered extreme pain when the applicant inserted his penis into his anus, and he was screaming. The penetration continued for a couple of minutes. He said the applicant's hips were touching his buttocks, so his perception was that the applicant's penis went all the way into his anus. He could not recall where his mother and his sister JT were at the time. He said that neighbours never came around when he screamed.

64 The complainant said that when the family went on a holiday to Rye in late 2007, they did a lot of activities together as a family. However, sometimes the females separated from the males. On the occasion of the ninth incident, his mother and sisters went around the corner to the Safeway store, and they were gone for about an hour. The incident commenced about half an hour after they left. The complainant said that the tenth incident occurred at about 1:00 pm or 2:00 pm. He did not know when his mother and sisters had got home on that day. They returned about one hour after the applicant had abused him. He said that on that occasion the anal penetration was more forceful than usual, it lasted a couple of minutes, and he was screaming.

65 The complainant agreed that when he attended the police station in 2015, he took some notes which he had prepared. In the notes he said that the applicant always watched pornography when he raped the complainant. In cross-examination, he said that sometimes the applicant watched child porn while they were in the lounge room.

66 The complainant said that although the abuse lasted for some eight years, he was too embarrassed and afraid to tell anyone about it. He agreed that when he was twelve years of age, he signed a Father's Day card which he gave to the applicant. On it he wrote 'Thanks for being a great stepdad through all the years. You've done a lot better [than] my dad ever would. So Happy Father's Day'. The complainant said that in fact he hated the applicant, but he never said it to his face. He agreed that he would tell his mother that he was terrified of his biological father. He said that his mother got him to sign the Father's Day card which was given to the applicant. He said the applicant had tricked him into thinking that the sexual abuse was a father/son matter.

67 The complainant said that when the applicant penetrated his anus with his penis, it would hurt 'like hell'. The complainant did not talk to his mates about it, because he thought it was normal.

68 The complainant said that he first told his mother about the abuse a couple of days before Australia Day 2015. He said he did not go into specifics. He just told her that the applicant had raped and abused him.

69 The complainant agreed that when he was growing up, the applicant had taken over the chief role of disciplining him by placing boundaries on him. During his middle and late teenage years the applicant would have heated arguments with the complainant about that, and the complainant would tell him that he was being unfair. He said that when that occurred he would be at the end of his emotional tether and 'lose' himself. He agreed that in none of those arguments did he raise the fact that the applicant had sexually abused him, although at that time he had lost control of his emotions.

70 The complainant agreed that after his mother and the applicant separated in November 2011, the applicant moved to Chelsea and then Rye and formed a new relationship with a woman. The complainant continued to see the applicant on a monthly basis until he made the allegations to his mother in January 2015. He said on one occasion he contacted the applicant because he had car problems. In addition, there were occasions when the complainant visited the restaurant conducted by the applicant's girlfriend in Rosebud West, and he would talk to the applicant about his relationship with WA. He agreed that when the applicant had to move home, he had helped the applicant to do so. He also attended a function when the applicant's girlfriend's mother got married. In addition, just before January 2015, the complainant celebrated Christmas with the applicant and other people in Glen Waverley. He said that when he was living with WA in McCrae and Safety Beach, he would catch up with the applicant from time to time. He said that after his mother separated from the applicant, he and the applicant just 'miraculously got along like nothing had happened'.

71 The complainant agreed that after he first made a complaint to his mother, she reported the matter to the police. As a result, he was contacted by the police and he made a statement. Shortly after doing so, he accompanied his mother on a visit to a solicitor, who they engaged to claim compensation from Victims of Crime. For that purpose, he provided to the solicitor a copy of the statement that he had made to the police.

72 The complainant's sister, JT, gave evidence concerning the seventh incident that was the subject of charge 13, on which the applicant was acquitted. She said that when she accidentally opened the door to the bathroom she saw the applicant and the complainant both naked, with the complainant bent over, and the applicant behind him with his penis in the complainant's anus. She said that their bodies were touching, but she only looked into the bathroom for a few seconds.

73 JT said that subsequently (after the complainant had complained to their mother), she accompanied her mother to the police station where she spoke to the informant. On a subsequent occasion, she made a statement to the police.

74 In cross-examination, JT said that before she went to the police in May 2015, her mother had told her that the complainant had been abused by the applicant. When she went to the police, the complainant had told her what had happened, that he had been raped by the applicant. In respect to the incident, she agreed that she only looked into the bathroom for a couple of seconds. She could not recall the complainant reacting to her opening the door.

75 WA gave evidence that she first met the complainant in August 2010 and they formed a relationship. She and the complainant moved in together in September 2013. About one year later, the complainant told her something about the applicant. At the time they were not having sexual relations. WA asked the complainant why that was so, and the complainant responded that sex is a sin. He told WA that he had been sexually assaulted for a number of years. WA asked him if they could have sex, to which he responded in the negative. When she pressed him further, he said that his stepfather had sexually assaulted him.

76 Sometime later WA was present with the complainant in a park in Chelsea Heights when the complainant told his mother something about the applicant.

77 The complainant's mother, WC, gave evidence as to the relevant background matters, including her relationship with the applicant, her marriage to him, and her children. She said that the applicant used to teach karate, and that he would take the complainant to and from karate lessons. WC did not notice anything unusual about the complainant when he returned home from those lessons.

78 WC confirmed that the complainant would accompany the applicant when he attended his mother's home to mow her lawns. When they subsequently returned home after those visits, the complainant would go into his room.

79 WC then gave evidence about the complaint that the complainant made to her on Australia Day 2015. At the time WC, the complainant and WA were together in a park. The complainant told WC that he had been sexually abused by the applicant during the whole of the time that she was married to the applicant. The complainant told her that the applicant would rape him almost each time that she left the house. He also said that that happened once while they were on holidays in Rye, and that it once happened in the lounge room when his sisters were little. He said that on that occasion the applicant had said to him 'Don't worry they're too little, they won't know'.

80 After the complainant spoke to WC, she then reported the matter to the Department of Health and Human Services and later to the police.

81 The final relevant witness called on behalf of the prosecution was Dr Andrea Smith, a paediatrician, who was studying for a Master's Degree in Forensic Medicine.

82 In her evidence, Dr Smith described, in some detail, the structure of the anus and the manner in which it works. She described the natural processes (such as passing of stools) in which injury might be sustained to the anus. She explained that injuries to the anus ordinarily heal more rapidly than injuries to other parts of the body. Dr Smith said that she had seen a number of children who had alleged that adult penises had penetrated their anus, and it was recognised in the literature that that is possible. She said that the question whether, in such a process, damage will be caused to the child's anus, depends on a number of factors, including: the size of the child, the size of the penis, the amount of force involved, whether there was resistance by the child, the degree of relaxation of the tissues, the integrity and health of the child's anal tissues, and whether lubrication was used.

83 Dr Smith explained that if injury were to occur in such a process, the child's anus would ordinarily repair quite quickly, within one to three days. In her evidence in chief, Dr Smith was referred to measurements made by Dr Byron Collins (a pathologist) who had examined the applicant's penis. Dr Smith stated that the question whether a penis of that dimension could enter the child's anus would depend on the factors that she had outlined, including the degree of force and the like. She said that it is possible that in such a process the complainant might have suffered injuries, but it was quite possible that he might not have.

84 In cross-examination, Dr Smith stated that the literature suggests that lacerations can occur in as much as fifty per cent of cases in which anal penetration is reported. She agreed that one factor, which would determine whether injury occurred, is the size of the object in question. She said that the literature reported that between ten per cent and fifty per cent of children, who have been anally penetrated, will sustain anal laceration. She agreed that, based on the measured dimensions of the applicant's penis, and the evidence of the complainant that his penis was inserted the whole of the way into his anus, it would have been more probable than not that the complainant would have suffered an injury on at least one occasion. She also agreed that anal penetration of a child can result in significant laceration to the anus which can require surgery, in which case there is an increased risk of infection by bacteria. She also agreed that if an object is placed within the mouth and pushed towards the back of the mouth, that can trigger a gag reflex.

85 At the conclusion of the prosecution case, Dr Byron Collins gave evidence on behalf of the applicant, and the applicant himself gave evidence and was cross-examined.

86 Dr Collins stated that he had practised as a pathologist since 1972. In May 2018 he examined the applicant's external genitalia and took measurements of them. He found that when the applicant's penis was flaccid, it was fifteen centimetres long and 12.5 centimetres in circumference. In a semi-erect state, it was nineteen centimetres long and fourteen centimetres in circumference.

87 In cross-examination, Dr Collins stated that if the applicant's penis was fully erect, it would have been larger than when it was in a semi-erect state. He said that the applicant's penis was of larger dimension than average. He did not suggest that it was not capable of penetrating the anus of a child. He said that because of a variety of factors it is difficult to indicate whether a particular individual would sustain injuries to the anal region following penetration of it by a penis. However, having regard to the physical dimensions of the applicant's penis, it was reasonably possible that the complainant would have suffered anal injuries during the initial alleged penetration when he was eight years of age. He (again) said that in that respect it is extremely difficult to give a dogmatic answer, because of a variety of factors that are involved. However, taking into account the size of the applicant's penis and the probable size of the complainant's anus at the particular time, the 'physicality' of the event, the multiple occasions on which it occurred, and the fact that no lubrication was used, it was reasonably possible that the complainant would have sustained anal injuries. He considered that it would be unlikely that the complainant did not suffer injuries, but he could not definitely exclude the possibility that there were no injuries.

88 The applicant gave evidence that he first met the complainant's mother in 1997, and that he subsequently formed a relationship with her in 2001, when he moved into the address in Banksia Street, East Bentleigh. During the previous four years, he would take the complainant to a nearby park, take him fishing, and take him on bike rides. Five months after the applicant moved into the home in Banksia Street, they moved to the premises in Sandalwood Drive. The applicant said that he regarded himself to be a father figure to the complainant. At the time the complainant was studying karate so the applicant joined the same club. In addition, the applicant and the complainant went to movies, went on bike rides and went fishing occasionally together.

89 The applicant explained that his mother, JK and his stepfather, MM, lived in premises in Oxford Street, Oakleigh. Although they were no longer together in a relationship, they lived under the same roof. Both of MM's legs had been amputated, so that he was confined to walking on crutches and subsequently to a wheelchair. Neither JK nor MM drove a motor vehicle. The applicant said that the complainant treated JK and MM as if they were his grandparents.

90 The applicant confirmed that he would attend his mother's home every four to six weeks to do jobs around the house, including mowing the lawns. On those occasions, the complainant would help him. He denied that on any of those occasions he sexually abused the complainant in his room, and he denied that he ever abused the complainant. He denied being sexually attracted to the complainant, and said that he did not own a purple dildo.

91 The applicant confirmed that on occasions the complainant and he would return home from attending karate together. When they were training there, he (the applicant) would wear a karate gi, which was made of heavy 16 oz canvas. He would wear a groin guard underneath it to protect his genitals. He said that in order to remove the guard, it was necessary to undo the jacket, untie the trousers, and remove the trousers. He said that it would be quite uncomfortable if he pulled his trousers and the groin guard around his thighs.

92 The applicant said that he had never stopped in Jacks Road with the complainant on the way home from karate. He said that the area was a large, developed estate. Jacks Road was attached to Carroll Road which was a main arterial road servicing factories and housing in the area. He said that at 7:00 pm in the evening, a number of vehicles would be regularly traversing the road. In addition, at that time, there were regular walkers and joggers making their way along the footpath and the road. He said that he had never stopped in Carroll Road outside a factory on the way home from karate with the complainant. He denied stopping his vehicle and asking the complainant to give him a 'hand job' or a 'blow job'.

93 The applicant stated that on the day before he married the complainant's mother, he stayed at his mother's (JK's) house in Oxford Street. He said that his mother, MM and his friend, DS, were all present. At night time, the complainant, DS and he shared the spare bedroom. The applicant and the complainant each had a spare mattress on the floor. DS was on a couch which faced the mattresses. The applicant denied that during the night he asked the complainant to give him oral sex, and he denied that the complainant gave him oral sex. The applicant said that DS had died in July 2012, that MM died in February 2015, and his mother JK had passed away on 31 May 2015.

94 The applicant denied ever sexually abusing the complainant at the premises at Sandalwood Drive. He said that there might have been occasions when the complainant and he might have been naked in the same room, such as changing in communal swimming centres or going in and out of the bathroom. He denied the seventh incident (as described by JT) occurred.

95 The applicant further said that while they were living at the Sandalwood Drive house, their next-door neighbours on one side of the house were an old couple. The couple's adult children were married and they frequently attended there with their own children. The occupants of the house on the other side consisted of a family with three children. He said there was always someone home in those premises. The applicant stated that there was never any occasion when anyone came around to their house enquiring about screaming or yelling in the house. He denied that he ever watched pornography with the complainant.

96 The applicant gave evidence relating to the family holiday in Rye. He said that on that occasion the family spent almost all of the time together, walking in the park, using the park barbecue facilities and going to the beach. He said that during the holiday he would do the shopping at the Rye Safeway store. He could not recall any occasion during the holiday in which he was alone in the holiday house with the complainant. He denied ever sexually abusing the complainant on the holiday.

97 In respect of the tenth incident described by the complainant, the applicant said that he did attend the film 'Iron Man' with the complainant. He denied sexually abusing the complainant on that occasion or on any other occasion.

98 The applicant then identified the Father's Day card referred to by the complainant in cross-examination, which was tendered in evidence. He said that, at the time, the complainant was then twelve years of age. He said that he tried to be a role model for the complainant. He denied saying to the complainant that it was natural for a father to have sex with his child.

99 The applicant said that he separated from WC in 2011. He first moved to Chelsea and then to Rye where he formed a new relationship with another partner, MK. During that time he continued to see the complainant at least once per month. When the applicant lived in Rye, the complainant would visit his house and have dinner with MK and the applicant. The complainant would also attend the restaurant that MK owned in Rosebud West. The applicant said that after he separated from WC, he continued to act as a father figure to the complainant, giving him advice on matters such as his relationship problems with WA, his budget and his motor vehicle. He said that he was shocked when he learned about the complainant's allegations against him in 2015.

100 In cross-examination, the applicant did not agree with the evidence given by JT (concerning the seventh incident) as to what she observed in the bathroom. He denied that at any time he and the complainant were naked in the bathroom together. He said that they might have crossed paths entering and exiting the bathroom before he had put the towel around himself or something like that.

101 In respect of the eighth incident, the applicant denied that he had anal sex with the complainant in the lounge room. He said that when he commenced his relationship with WC, he had a good relationship with the complainant who saw him as a father figure. He said that he was happy to take on that role, and he denied he had abused that position by telling the complainant that he would teach him about sex. He agreed that the complainant would accompany him to his mother's house when he went there to mow the lawns. He denied that, on those occasions, he sexually abused the complainant. He said it was difficult for his mother JK and MM to leave the house and they did not have a motor vehicle. He agreed that there were occasions when one or other of them might have left the house. He denied that he ever took the complainant into his old bedroom and he denied that he commenced abusing the complainant there.

102 In respect of the second incident, the applicant denied that he had a dildo, and he denied that he had sexually abused the complainant as alleged by the complainant in his evidence.

103 In respect of the incidents, that were alleged to have occurred after they had attended karate, the applicant agreed that karate trousers are quite loose, and the groin protector is removable. However, in order to remove it, it is necessary first to remove the trousers. He agreed that the protector can move down with the trousers when they are removed. He said, however, that in order to pull down the trousers, it is necessary to have some room, because they are made of heavy canvas gear. He said it would be very difficult to pull down the trousers and remove the protector in a motor vehicle, but it would be possible to do so. The applicant agreed that, on some occasions, he drove the complainant home after they both attended karate classes. He denied that on any of those occasions he abused the complainant.

104 In respect of the sixth incident, the applicant confirmed that on the morning of the wedding, he did have a shower in Oxford Street. He said it was the only time that he used the shower there because of its lack of cleanliness. However, he used the shower on that day, because it was his wedding and he wished to be clean for the occasion. He said it was a very quick shower.

105 In respect of the ninth incident, he said that the family was together as a whole for about 95 per cent of the time during the holiday at Rye. He said that he was the person who would do the shopping during the holiday. He agreed that it is possible that on occasions WC might have gone to the supermarket leaving him alone with the complainant. He denied the allegation by the complainant that on such an occasion he sexually assaulted the complainant.

106 Before summarising the respective submissions of the parties, it is appropriate to acknowledge that the Court has had the considerable advantage of well-structured and comprehensive written and oral submissions presented to it on behalf of the applicant and the respondent. The content of the submissions, and the manner in which they were presented, has been of significant assistance in clearly defining the issues which must be determined on this application, and the competing arguments advanced in respect of each of them. The following is but a brief summary of the submissions presented on behalf of each side.

107 On behalf of the applicant, counsel commenced by making two preliminary points. First, he submitted, essentially the case is one in which the jury was required to determine the issues by reference to the evidence of the complainant, which was largely unsupported, and which was contradicted by the evidence of the applicant. Although the jury was correctly given a 'Liberato' direction[6] in respect of the applicant's evidence, he submitted, in a case such as the present, the line of reasoning specified in the direction is not a line of reasoning that lay people ordinarily employ in their everyday life.

108 Counsel further noted, as a second preliminary point, that the applicant was at a significant forensic disadvantage in presenting a rebuttal of the prosecution case. The complainant, in his evidence, was only specific as to the date upon which one incident (the sixth incident) occurred. The applicant's mother JK and stepfather MM had both passed away before investigating police were able to speak with them. They would have both been important potential witnesses in respect of the first, second and sixth incidents. Significantly the applicant's friend, DS, also died before investigating police could speak with him. He was potentially an important witness in relation to the sixth incident.

109 It was in that context that counsel for the applicant outlined thirteen particular considerations which, he submitted, taken together compelled the conclusion that the jury could not reasonably have been satisfied, beyond reasonable doubt, of the guilt of the accused. Counsel did not suggest that any of those matters, taken singularly, were sufficient to discredit the evidence of the complainant as to render the verdict of the jury unreasonable. Rather, he submitted, it is the compounding effect of each of them, taken together, that leads that conclusion.

110 The first matter, relied on by counsel, was the absence of any injury to the complainant as a result of any of the acts of anal penetration perpetrated on him by the applicant. Counsel noted that the complainant alleged that such penetration first occurred when he was eight years of age, and that the complainant said that on a number of the occasions the penetration was deep, and that it was always extremely painful. Counsel referred to the evidence of Dr Collins as to the dimensions of the applicant's penis, and the evidence of Dr Smith and Dr Collins that it was unlikely that the complainant would not have sustained injury. In those circumstances, it was submitted, the absence of any evidence of such injury, or sign of it, is particularly significant. In that context, counsel noted that the prosecution did not lead any evidence from the complainant's mother that she had observed anything unnatural about the complainant's gait or demeanour. In addition, while there was evidence that the complainant was prepared to defy the applicant on a number of matters relating to domestic discipline, nevertheless he did not, on any occasion, make complaint to his mother or anyone else about the applicant's conduct towards him.

111 The second matter, relied on by counsel, concerned the evidence of the complainant that on each time in which the applicant penetrated his anus, he was screaming in pain. Counsel noted that there were neighbouring houses on either side of the family home in Sandalwood Drive. Notwithstanding the frequency with which the acts of anal penetration occurred, it was remarkable, counsel contended, that on no occasion did any neighbour or passer-by intervene to ascertain the reason why such screaming was emanating from the house.

112 In that context, as a third consideration, counsel drew attention to the evidence of the complainant that during the acts of anal penetration he could feel the applicant's hips against his buttocks. In view of the size of the applicant's penis, it was submitted, such evidence was quite extraordinary. In addition (as the fourth consideration), counsel noted the evidence of the complainant that on the occasions of oral penetration, the applicant's penis went almost fully into his mouth. Counsel submitted that, in light of the dimensions of the applicant's penis, that was also most unlikely to have occurred.

113 The fifth matter referred to by counsel was the particularly brazen behaviour of the applicant as described by the complainant. Counsel submitted that it was improbable that the applicant would have launched immediately into the rather extreme form of offending, alleged to have been engaged in by him, without there being any evidence of 'grooming' or the like. In addition, it was submitted, it was extraordinarily brazen for the applicant to have allegedly engaged in the conduct attributed to him by the complainant in the family home in circumstances in which, on the evidence of the complainant, his mother had gone shopping nearby, and was likely to return unannounced at any time.

114 As a sixth point, counsel submitted there were particular improbabilities about the offending that was alleged to have comprised the first two incidents, which took place at the house of the applicant's mother. On each occasion, the complainant gave evidence that he and the applicant were at the house alone, and that the applicant's mother and stepfather were not present. Counsel submitted that that evidence is at odds with the evidence that the applicant's mother and stepfather were each excited to see the complainant, and the evidence that accordingly visits were always arranged with the applicant's mother so that they would be home when they went there. In addition, the applicant's mother did not have a motor vehicle, and his stepfather was significantly incapacitated.

115 The seventh matter, relied on by counsel, concerned the fourth and fifth incidents, which occurred when, according to the complainant, the applicant required him to perform oral sex in the applicant's motor vehicle on the way home from karate classes. In that respect counsel noted the evidence that it would have been difficult for the applicant to have removed both his trousers and protector, and that if he had done so, his movements would have been quite restricted.

116 The eighth matter referred to by counsel was the evidence given by the complainant that when he and the applicant visited the applicant's mother's home, he (the complainant) would push the lawn mower from when he was at the age of eight years. It was submitted it was quite improbable that a child of that young age would have been able and permitted to have used a motorised lawn mower.

117 The ninth matter relied on by counsel was the content of the Father's Day card, which the complainant gave to the applicant when he was twelve years of age. It was submitted that the complainant's evidence, as to why he wrote a particularly endearing message on the card, was internally inconsistent.

118 The next (tenth) matter, relied on by counsel, was the fact that after the applicant and the complainant's mother had separated, the complainant voluntarily resumed a friendly relationship with the applicant which continued until the Christmas before the complainant first made a complaint to his mother (in January 2015).

119 The eleventh matter, relied on by counsel, was the evidence given by the complainant that until he was sixteen years of age, he thought that the applicant's sexual abuse of him was part and parcel of a normal relationship between a father and son. It was submitted that it is most unlikely that a young teenager, at that stage of his life, would have still entertained that view.

120 The twelfth point, on which counsel relied, were some inconsistencies in the account given by the complainant. First, there was an inconsistency between the notes given by the complainant to the police (in which he said that the abuse occurred while the applicant was viewing pornography) and the evidence given by the complainant on that aspect. Secondly, it was submitted, there were differences between the content of the complaint made by the complainant to his mother and the evidence that he gave at the trial.

121 The final (thirteenth) matter relied on by counsel concerned inconsistencies between the evidence given by the complainant as to his age when the fourth and fifth incidents occurred, namely, that he was then ten years of age, and the contents of his police statement and his evidence at the committal proceeding, that he could only recall that those incidents occurred when he was between the ages of nine years and twelve years. It was submitted that the change in the complainant's account, as to that matter, was significant, because by fixing the dates of the incidents as occurring when he was ten years of age, the complainant's evidence had the effect that the offences alleged against the applicant constituted acts of incest, rather than the less serious offence of committing an indecent act.

122 In response, counsel for the respondent submitted, in relation to the first matter relied on by the applicant, that the absence of anal injury sustained by the complainant was not inconsistent with the evidence given by him. In that respect, counsel drew attention to the evidence of Dr Smith that injuries, to that part of the anatomy, tend to repair very quickly. In addition, while the complainant gave evidence that he considered that he had been fully penetrated by the applicant, Dr Smith said that she did not consider that children are able to give an accurate assessment of that question.

123 In respect of the evidence by the complainant, that he screamed throughout each act of anal penetration, counsel noted that at the trial, counsel for the applicant had not elicited evidence as to the structure of the neighbouring houses, how far those houses were from the applicant's house, and the age and state of health of the neighbours. With respect to the third matter, the evidence of the complainant, that the applicant fully penetrated his anus (on the occasions of anal penetration) or his mouth (on the occasions of oral penetration), was explicable by the evidence of Dr Smith as to the unreliability of the perceptions of a child as to the degree to which such penetration might have occurred.

124 Counsel then addressed the submission made on behalf of the applicant concerning the brazen nature of the conduct attributed to the applicant, which rendered it improbable that he would have been able to engage in that conduct without being detected by others. In that respect, counsel for the respondent noted that, before the abuse commenced, the complainant had come to view the applicant as a father figure, and that, on the occasions of the abuse, the applicant had told him that such conduct was part of a normal father/son relationship. Counsel also noted the evidence of the complainant that on each occasion, the offending conduct only lasted a short time. In addition, while on those occasions the complainant might not have known how long his mother intended to be out of the house when she went shopping, it is likely that the applicant would have been privy to that information.

125 Counsel for the respondent noted that although the applicant's mother might have been excited and pleased to see the complainant on each occasion, that did not mean that it was probable that she was at home on each occasion upon which the applicant and the complainant visited them. Counsel submitted that, in view of the number of occasions upon which such visits occurred, it was not improbable that there might have been two occasions upon which both the applicant's mother and his stepfather were absent for some reason. Counsel also noted the evidence of the complainant, in respect of the sixth incident, that at the time of the incident, the applicant's friend DS was already asleep.

126 In respect of the two incidents, that occurred while the applicant and the complainant were driving home from attending karate classes (the fourth and fifth incidents), counsel for the respondent referred to the evidence given by the applicant in cross-examination that although it would have been difficult for him to have removed his trousers and protector while he was seated in the motor vehicle, it would not have been impossible for him to have done so.

127 In respect of the ninth, tenth and eleventh matters relied on by the applicant, counsel noted that the complainant regarded the relationship that he had with the applicant to be one that was akin to that of a father and son relationship. The complainant had formed that relationship with the applicant in circumstances in which he had previously witnessed his own father being violent to his mother. In those circumstances, it was submitted, it is not improbable that the complainant, at a young age, accepted the applicant's explanation that the acts of sexual abuse constituted ordinary conduct between a father and son. It was not until the last incident that the complainant realised that the applicant's conduct to him was wrong. Further, it was submitted, it was not incongruous that, notwithstanding the nature of the abuse, the complainant continued to consider that aspects of his relationship with the applicant were positive. The continuation of the relationship, it was submitted, was explicable by the fact that the complainant wished to continue to avail himself of the positive aspects of it.

128 Finally, counsel submitted that the inconsistencies, relied on by the applicant, were insignificant, and did not detract from the credibility or reliability of the evidence given by the complainant, which was supported by the complaint that he made, first to WA, and subsequently to his mother.

129 The ground, upon which the applicant seeks leave to appeal, is based on s 276(1)(a) of the Criminal Procedure Act 2009, 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'.

130 In order to succeed on that ground, the applicant must demonstrate that it was not open to the jury to be satisfied, beyond reasonable doubt, of his guilt on the particular charges in issue.[7] 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 jury's advantage in seeing and hearing the witnesses, and to the principle that the jury was the body entrusted with the principal responsibility of determining the guilt or innocence of the accused person.

131 In R v Baden-Clay,[8] the High Court outlined the latter principle in the following terms:

It is fundamental to our system of criminal justice in relation to allegations of serious crimes tried by jury that the jury is 'the constitutional tribunal for deciding issues of fact.' Given the central place of the jury trial in the administration of criminal justice over the centuries, and the abiding importance of the role of the jury as representative of the community in that respect, the setting aside of a jury's verdict on the ground that it is 'unreasonable' within the meaning of s 668E(1) of the Criminal Code is a serious step, not to be taken without particular regard to the advantage enjoyed by the jury over a court of appeal which has not seen or heard the witnesses called at trial. Further, the boundaries of reasonableness within which the jury's function is to be performed should not be narrowed in a hard and fast way by the considerations expressed in the passages from the reasons of the Court of Appeal explaining its disposition of the appeal.[9]

132 In M v The Queen,[10] in an oft-cited passage, Mason CJ, Deane, Dawson and Toohey JJ explained the manner in which the appellate court should give weight to the advantage had by the jury in viewing and hearing the witnesses, as follows:

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. In doing so, the court is not substituting trial by a court of appeal for trial by jury, for the ultimate question must always be whether the court thinks that upon the whole of the evidence it was open to the jury to be satisfied beyond reasonable doubt that the accused was guilty.[11]

133 In Pell, the High Court emphasised that the assessment of the credibility and reliability of a witness, which is based on the manner in which the witness gave evidence in the witness box, is a matter for the jury and not the appellate court. Thus, on appeal, the court is required to assume that the jury concluded that the evidence of the relevant prosecution witnesses was credible. The task of the court is to determine whether, notwithstanding that assessment, the state of the evidence was such that it was not reasonably open to the jury to be satisfied, beyond reasonable doubt, of the guilt of the accused.

134 The High Court expressed those principles in the following terms:

Secondly, the assessment of the credibility of a witness by the jury on the basis of what it has seen and heard of a witness in the context of the trial is within the province of the jury as representative of the community. Just as the performance by a court of criminal appeal of its functions does not involve the substitution of trial by an appeal court for trial by a jury, so, generally speaking, the appeal court should not seek to duplicate the function of the jury in its assessment of the credibility of the witnesses where that assessment is dependent upon the evaluation of the witnesses in the witness-box. The jury performs its function on the basis that its decisions are made unanimously, and after the benefit of sharing the jurors' subjective assessments of the witnesses. Judges of courts of criminal appeal do not perform the same function in the same way as the jury, or with the same advantages that the jury brings to the discharge of its function.

It should be understood that when the joint reasons in M v The Queen spoke of the jury's 'advantage in seeing and hearing the witnesses' as being 'capable of resolving a doubt experienced by a court of criminal appeal' as to the guilt of the accused, their Honours were not implying that it was only because there were, at that time, no practical means of enabling a court of criminal appeal to see and hear the evidence of the witnesses at trial that the jury's assessment of the credibility of the witnesses was of such potentially critical importance. The assessment of the weight to be accorded to a witness' evidence by reference to the manner in which it was given by the witness has always been, and remains, the province of the jury. Rather, their Honours in M were remarking upon the functional or 'constitutional' demarcation between the province of the jury and the province of the appellate court. That demarcation has not been superseded by the improvements in technology that have made the video-recording of witnesses possible.

The function of the court of criminal appeal in determining a ground that contends that the verdict of the jury is unreasonable or cannot be supported having regard to the evidence, in a case such as the present, proceeds upon the assumption that the evidence of the complainant was assessed by the jury to be credible and reliable. The court examines the record to see whether, notwithstanding that assessment - either by reason of inconsistencies, discrepancies, or other inadequacy; or in light of other evidence - the court is satisfied that the jury, acting rationally, ought nonetheless to have entertained a reasonable doubt as to proof of guilt.[12]

135 In determining that question, it is relevant to consider whether it was open to the jury to accept the complainant's evidence or to be satisfied that his evidence was truthful and reliable. Ordinarily, a court's assessment of the credibility and reliability of a witness is made in the context of all the evidence in the case. It is not uncommon for a court's initial impression as to a witness' evidence to alter after the court has had the opportunity to consider and assess it in light of all the evidence in the case. Ultimately, the question for this Court is not, simply, whether the jury accepted, or whether it was open to the jury to accept, that the complainant's evidence, standing alone, was credible and reliable. Rather, it must be emphasised, the question is whether, taking into account all the evidence, including that given by the complainant, the jury, acting reasonably, ought to have entertained a reasonable doubt about the guilt of the applicant on the charges on which he was convicted.[13]

136 In a case such as this, the determination of that issue is by no means straightforward. The evidence in the case involved alleged conduct that was particularly repulsive. In cases involving charges that allege the sexual abuse of minors, including the present case, the circumstances of the alleged offending are such that, ordinarily, there is limited, if any, evidence that supports that of the complainant. Notwithstanding those considerations, the charges in such a case, including this case, allege serious criminal offending. In such a case, the presumption of innocence, and the requirement that the prosecution must prove the guilt of the accused beyond reasonable doubt, must be accorded the same weight as in any criminal case. The applicable standard of proof is not modified or diminished by reason of the egregious nature of the conduct with which the accused person is charged.

137 That principle is of particular relevance in the present case. There was little, if any, independent evidence that supported the evidence of the complainant. The only such evidence comprised the complaint that the complainant made to his girlfriend in 2013, and the subsequent complaint that he made to his mother in January 2015. Nevertheless, and notwithstanding the repellent nature of the conduct alleged to have been committed by the applicant, the jury could only lawfully and properly convict him if, on all the evidence, it was satisfied, beyond reasonable doubt, of his guilt of the conduct alleged in the charges.

138 In applying that principle, the jury was required to take into account all the evidence, including that given by the applicant. In that respect, the jury was correctly directed by the trial judge, in accordance with the principles outlined by Brennan J in his dissenting judgment in Liberato, that even if it preferred the evidence given by the complainant to that of the applicant, or even if it did not positively believe the evidence given by the applicant, it could not convict the applicant, unless it was satisfied beyond reasonable doubt of his guilt on the charge in question. That principle, and that direction, was of particular significance in the present case, in circumstances in which, for the reasons I shall discuss, the jury's verdicts could not be fairly explained by reference to any particular contradiction, inconsistency or improbability in the evidence given by the applicant.

139 The incidents, that were the subject of each of the charges in this case, were alleged to have occurred between February 2001 (charges 1 to 6) and February 2009 (charge 16). The incidents that were the subject of charges 1 to 12 were each alleged to have taken place before November 2003. The matter was first reported to the police after the complainant spoke to his mother in the park on Australia Day 2015.

140 DS (who was a witness to the sixth incident) died in July 2012, MM died in February 2015 and JK passed away on 31 May 2015. They each died before the police had the opportunity to interview them.

141 In the circumstances, it was necessary for the judge to give to the jury a direction that, as a result of the passage of time, and other matters, including the deaths of those three persons, the applicant had experienced a significant forensic disadvantage. That direction, prescribed by s 39 of the Jury Directions Act 2015, was based on the principles discussed by the High Court in Longman v The Queen.[14]

142 In accordance with those principles, the judge, in her charge, gave the jury comprehensive directions concerning the particular aspects of prejudice and disadvantage sustained by the applicant as a consequence of the delay in the reporting of the allegations to the police and their investigation. In doing so, her Honour noted the lack of specificity in respect of the timing of any of the alleged offences, apart from that which arose from the sixth incident (which was alleged to have occurred on the night before the applicant's wedding). The judge explained to the jury that, as a result, the applicant had not been able to explore the circumstances of each occasion when the alleged event occurred. In particular, the house of the applicant's mother at Oxford Street (which was where the first and second incidents were alleged to have happened) had since been demolished. The judge pointed out to the jury that because of the lack of specificity of the dates of the alleged offences, the applicant might have been deprived of the opportunity to establish that he was involved in an activity elsewhere on the occasion alleged by the complainant. The applicant was unable to call alibi or other witnesses who might have been able to assist his case. Further, the defence had not had the opportunity to have a medical or forensic examination conducted of the complainant. The judge also explained to the jury the disadvantage to the accused due to the circumstance that the applicant's mother, MM and DS had all passed away.

143 In determining whether it was satisfied beyond reasonable doubt of the guilt of the applicant, the jury was thus required to take into account the forensic disadvantage occasioned to the applicant by reason of the delay in the reporting of the allegations to the police, and in particular the specific aspects of disadvantage which the judge brought to the jury's attention. The question, on this application, is whether, based on all the evidence in the case, and giving that consideration appropriate effect and weight, it was reasonably open to the jury to be satisfied, beyond reasonable doubt, of the guilt of the accused.

144 It is convenient at this point to deal with one other matter that was raised during argument. In the course of submissions, it was suggested that the applicant might be precluded from relying on particular inconsistencies in the prosecution case, or on the absence of particular evidence supporting the prosecution case, because counsel for the applicant at trial did not cross-examine relevant witnesses concerning those particular matters. It was suggested that, for that reason, the rule of practice, commonly referred to as 'the rule in Browne v Dunn[15]', had the effect that those matters could not be relied on by this Court in determining whether it was open to the jury to be satisfied beyond reasonable doubt of the guilt of the accused.

145 It is well established that, because of the accusatory nature of criminal proceedings, and the fundamental role of the presumption of innocence in such a case, the application of the rule in Browne v Dunn to defence counsel in a criminal trial is materially different to the manner in which the rule ordinarily operates in civil proceedings.[16]

146 That proposition is exemplified by the decision of the High Court in MWJ. In that case, the argument on appeal centred on inconsistencies between the evidence given by the complainant on the one hand, and the evidence of her mother as to the complaint that the complainant made to her, in a trial that was heard by a judge sitting alone. In his reasons, the judge considered that it would be unfair to use the mother's evidence as evidence of a previous inconsistent statement, because the complainant had not been challenged in cross-examination about the supposed inconsistency. The judge concluded that, in any event, there was no significant inconsistency between the two pieces of evidence. On appeal, the High Court unanimously disagreed with the judge's line of reasoning, and held that there had been no obligation on trial counsel for the appellant to question the complainant about the inconsistency between her evidence and the evidence of her mother.[17]

147 In expressing that view, Gummow, Kirby and Callinan JJ explained the principles concerning the application, in a criminal trial, of the rule in Browne v Dunn, as follows:

The obligation of the prosecution to present its whole case in chief and the existence of the unavoidable burden of proof carried by the prosecution are of particular relevance here. Doyle CJ was critical of the appellant for not putting the inconsistency between the complainant and her mother, in turn giving rise to an internal inconsistency in the complainant's account, to the complainant. The criticism does not give due weight to the obligations of the prosecution to which we have referred. It is not for the defence to clear up, or resolve inconsistencies in the case for the prosecution. As soon as the inconsistency emerged, and the trial judge rejected the appellant's objection to the evidence intended to be adduced from the complainant's mother, it was open for the prosecution to offer to tender the complainant for further cross-examination. Had that happened it would then, and only then have been for the appellant, to decide whether to embrace the offer or not. If he had not, then and only then would the criticism that the Court of Criminal Appeal made of his conduct have been valid. The position of an accused who bears no burden of proof in a criminal trial cannot be equated with the position of a defendant in civil proceedings. The rule in Browne v Dunn can no more be applied, or applied without serious qualification, to an accused in a criminal trial than can the not dissimilar rule in Jones v Dunkel. In each case it is necessary to consider the applicability of the rule (if any) having regard to the essential accusatory character of the criminal trial in this country.[18]

148 In analysing the evidence that was placed before the jury, it is evident that, in a number of relevant respects, there were improbable aspects attaching to the account given by the complainant of the abuse of him by the applicant. On the other hand, the evidence of the applicant, denying that he had perpetrated that abuse, was not impugned in cross-examination. Further, as I have discussed, the jury was required to take into account that, for the reasons outlined by the trial judge, the applicant was, in a number of respects, disadvantaged in the presentation of his defence to the prosecution case.

149 Taken together, those considerations weighed substantially against a conclusion that it had been established, beyond reasonable doubt, that the accused was guilty of the offences that were the subject of the charges. The critical issue, on this application, is whether the combined effect of those considerations was such that, notwithstanding the acknowledged advantage of the jury in hearing and seeing the evidence of witnesses, and notwithstanding the assumption that the jury assessed the evidence of the complainant to be credible and reliable, nevertheless the jury, acting reasonably, ought to have entertained a reasonable doubt as to the proof of the applicant's guilt of the charges it was considering.

150 The first, and perhaps most significant, improbable feature of the prosecution case arose from the lack of any evidence that, notwithstanding the extreme nature of the abuse described by the complainant, he had suffered any injury, or apparent sign of injury, as a consequence of the abuse.

151 Notwithstanding the matters that were raised in the course of the application, it was permissible for counsel at the trial, and it was equally permissible for counsel for the applicant on this application, to proceed on the basis that, despite the nature of the abuse that the complainant described had been inflicted on him, he did not suffer, nor was he observed to have suffered, any injury or other physical effect as a consequence of it. The prosecution did not adduce any evidence of any such injury sustained by the complainant. His mother did not give any evidence that she had observed anything about the complainant which might have been consistent with him having suffered any such injury. She did not, for example, describe the complainant to have walked in an unusual manner, or to have evinced any sign of discomfort from time to time. There was no evidence that there was any bleeding observed on his clothing.

152 In the absence of any such evidence adduced by the prosecution, it was appropriate for the applicant to proceed at trial, and for the applicant to have proceeded on this application, on the basis that the complainant did not sustain any such injury, and that he was not observed, at any time, to act in a manner which would be consistent with him having been abused in the manner described by him in his evidence. As the cases to which I have referred make plain, it was not for the applicant, in the trial, to have elicited evidence to that effect. Throughout a criminal trial, the onus lies and remains on the prosecution to prove its case. The prosecution bears the onus of adducing any evidence that might support the conviction of the accused on the charge or charges which it has brought against that accused. Where the prosecution does not elicit such evidence, it is not for the accused to embark on a course of cross-examination designed to establish the non-existence of that evidence. Indeed, in many criminal trials, it would be both unfair and unrealistic to expect the accused to enter upon such an area.[19]

153 In any event, in the present case, it is clear that the trial proceeded on the accepted premise that the complainant did not suffer any injury, nor was he perceived by others to have suffered any injury, arising from the abuse that was the subject of his evidence. It is clear, from the evidence, that the report of Dr Collins was provided to the prosecution before the commencement of the trial. Dr Smith, in her evidence in chief, addressed some of the contents of that report. The underlying point, to which both reports were addressed, was the fact that the complainant had not suffered any anal or oral injury, notwithstanding the measured dimensions of the applicant's penis.

154 Thus, the jury was required to proceed on the basis that, notwithstanding the nature of the abuse described by the complainant in his evidence, he did not suffer any injury, he was not observed by others to have been acting in a manner which might be consistent with him suffering any pain or discomfort as a result of the abuse, and relevant witnesses, such as his mother, did not observe any other sign, such as bleeding on his clothing, which would be consistent with him having been subjected to the abuse.

155 The absence of such injury, or apparent sign of injury, must be considered in light of the nature of the anal abuse described by the complainant in his evidence. According to the complainant, the abuse commenced when he was eight years of age, and continued, without interruption, until he was sixteen years of age. On a number of occasions in his evidence, he said that the pain that he suffered as a result was extreme, and he said that it was 'torturous'. The applicant did not use any lubricant in perpetrating the abuse. The complainant stated that he gained the impression that the applicant fully penetrated his anus, because he felt the applicant's hips on his buttocks during penetration. He described the manner in which the penetration was inflicted as a thrusting motion.

156 The jury had the advantage of the evidence of both Dr Smith and Dr Collins in determining whether, notwithstanding the manner in which the abuse was perpetrated, it was possible or not improbable that the complainant would suffer no actual or apparent sign of injury as a consequence. Dr Smith described the rapid healing processes in that area of the anatomy. However, she did not give evidence that the area in question is in some way protected against injury itself. Her conclusion was that while the lack of any sign of injury did not mean that the complainant had not sustained the abuse, nevertheless, based on the complainant's descriptions of the abuse, it was more probable than not that the complainant would have suffered an injury on at least one occasion. Dr Collins gave evidence that was to a similar effect, albeit that his evidence on that aspect was a little difficult to reconcile. In cross-examination, he said that in the circumstances described by the complainant as to how the abuse occurred, it was 'reasonably possible' that the complainant would have suffered anal injury. When further questioned on that topic in cross-examination, he expressed the view that it was 'unlikely' that the complainant would not have suffered any injury.

157 It must be acknowledged that it was open to the jury to conclude that it was possible that, notwithstanding the nature of the abuse, and the dimensions of the applicant's penis, the complainant did not, during the whole eight year period of the abuse, suffer any physical injury, and he did not suffer such a degree of physical discomfort that would otherwise have been observed by his mother. However, in view of the nature of the anal abuse alleged, the size of the applicant's penis, the frequency of the abuse, and the manner in which it was alleged to have been committed, the state of the evidence was such that it must be concluded that it was quite improbable that the complainant did not suffer anal injury, or observable physical discomfort, as a result of the abuse described by him. In other words, the evidence at the trial was such that the jury, acting rationally, could only have regarded the lack of such injury or apparent injury to have weighed quite substantially against the probability of the complainant's description of the abuse.

158 The complainant gave evidence that most of the abuse occurred while his family was living in their house in Sandalwood Drive, Oakleigh South. He also gave evidence that as a result of the extreme degree of pain that he suffered during the abuse, he would scream throughout the incident, which would last for a couple of minutes until the applicant ejaculated.

159 As counsel who acted for the applicant at the trial pointed out in his final address, the sound of a young child screaming in agonised distress for two minutes is something that would be likely to attract the attention of neighbours, or of any person who happened to be walking past the house at the time. On the complainant's evidence, he was subjected to such abuse about once every two months throughout the period of seven years in which the family was living in Sandalwood Drive. It is possible that although the complainant might have screamed in agony during each of those occasions, the neighbours did not hear those sounds, or they were not sufficiently concerned about them to intervene or investigate. However, the fact that on no occasion did a neighbour, or indeed anyone else, investigate the repetitive screaming, or inquire about it, is another feature of improbability affecting the prosecution case.

160 Another such aspect of improbability, about the prosecution case, concerns the complainant's evidence as to the instances of oral penetration perpetrated on him by the applicant. The complainant gave evidence that, on those occasions, the applicant inserted his penis so far into the complainant's mouth that the latter felt that his nose was pressed up against the applicant's body. In view of the evidence of the dimensions of the applicant's penis, it is improbable that the applicant could have penetrated the complainant's mouth to that extent. Dr Smith agreed with that proposition, although she also said that the complainant's perception of the depth of penetration, at that time, might have been inaccurate. It is also unlikely that in the circumstances the complainant would not have gagged or, when ejaculation occurred, coughed or even choked. Dr Smith agreed that oral penetration can trigger a gag reflex, but she said that such a reflex can vary from person to person.

161 Each of those considerations add to the improbabilities of the evidence contained in the prosecution case. They are of particular moment in respect of the sixth incident, which occurred on the eve of the applicant's wedding to the complainant's mother. On that occasion, it will be recalled that the complainant gave evidence that the applicant engaged in oral sex with him, and that the applicant ejaculated while his penis was in the complainant's mouth. At the time, the applicant's best friend, DS, was nearby in the same room. The complainant gave evidence that DS was asleep at the time. Nevertheless, if ejaculation had occurred in the manner described by the complainant, it is surprising that DS was not woken or otherwise disturbed by the incident.

162 In that connection, it is somewhat improbable that the accused would have been sufficiently brazen to have undertaken such abuse while in the close proximity of his close friend. It is the experience of the courts that sexual abuse is not uncommonly perpetrated in circumstances in which the offender ran a risk of detection. Nevertheless, the circumstances of the offending described in respect of the sixth incident were particularly brazen. According to the complainant, the applicant was lying on a mattress that was between the mattress on which DS was lying and the mattress on which the complainant was lying. The three mattresses were joined together. The accused gave slightly different evidence in that respect. He said that DS was lying on a couch, but that the couch was facing the two mattresses on which he and the complainant were each lying. In either case, the circumstances in which the abuse was perpetrated would have involved the applicant undertaking an extraordinary risk that his close friend could have witnessed him performing such a morally depraved act. That consideration, while not rendering the circumstances of the incident impossible, nevertheless adds further to the degree of improbability of the prosecution case. In that respect, it must be remembered that, in assessing the complainant's evidence in respect of that incident, and the applicant's denial of it, the jury was obliged to take into account the forensic disadvantage to the accused by reason of the fact that DS had subsequently died.

163 Another aspect of improbability, concerning the account given by the complainant, concerns the circumstances of the first two incidents described by him, which he said occurred at the home of the applicant's mother JK.

164 The complainant's evidence was that on each of those two occasions, the applicant penetrated his anus with his penis, and that on the second occasion he also did so with a dildo. The complainant said that on both occasions he was screaming as a result of the pain that he suffered. He said that he felt 'torture, pain and agony' during the second incident. On any view, it is most improbable that those occasions would have occurred while the applicant's mother and his stepfather were present in the same house.

165 The complainant gave evidence that on each of the two occasions both JK and MM were absent. In cross-examination, he agreed that when he visited JK's house with the applicant, both JK and MM were noticeably excited, and that they would make a fuss over him. They treated the complainant as if he were their grandson. MM was confined to a wheelchair because his legs had been amputated. JK did not have a motor vehicle. Although they were both living in the same house, they were, no longer, a couple. While it is possible that the two incidents might have occurred when MM and JK were both absent at the same time, given the evidence as to the nature of their relationship with the complainant, it is somewhat improbable that, on each of those two occasions, they were both absent from the house at the time at which the applicant and the complainant attended it in order to mow the lawns.

166 In that regard, it should also be noted that there was no evidence that, if they were absent, the applicant had any knowledge of when they would both be returning to the house. The two incidents that occurred at the house in that way were, it would seem, the first two occasions upon which the applicant abused the complainant. On each occasion, the applicant was alleged to have committed the abuse after he and the complainant had been at the premises for some time mowing the lawn and tidying the garden. On the prosecution case, the applicant quite brazenly took the risk that his mother and his stepfather, or one or both of them, might return home while he was abusing the complainant, and he ran the further risk that, if they returned home after the abuse was completed, the complainant might say something to them which would have alerted the applicant's mother or his stepfather to what had happened.

167 In his evidence, the complainant stated that the vast majority of the abuse occurred in his bedroom at the premises at Sandalwood Drive, Oakleigh South. He said that on most of those occasions the applicant would penetrate his anus. He said it was extremely painful and he would scream. According to the complainant, on each occasion his mother would be absent from the premises having gone shopping. The complainant twice in cross-examination volunteered that his mother 'never specified' when she would return home after completing the shopping. Notwithstanding the significant number of occasions upon which the complainant said that the abuse occurred at the home in that way, and the severe discomfort occasioned to him as a result of the abuse, on no occasion did the complainant's mother return home while the abuse was occurring, or in sufficient time to notice the aftermath of it.

168 It is of course conceivable that the applicant might have been able to perpetrate the abuse in such circumstances without being detected. However, the fact that he did so on so many occasions, without being detected, necessarily adds to the degree of improbability of the prosecution case.

169 The fourth and fifth incidents were both alleged to have occurred in circumstances in which the applicant was driving the complainant home after they both attended a karate class. There were three aspects of the complainant's evidence, about those incidents, which are relevant to the present application. First, it is apparent from the evidence of both the complainant and the applicant that while it was quite possible for the applicant to sufficiently remove his trousers and protector to enable the abuse, that was described by the complainant, to take place, nevertheless it would have been quite awkward for that to have occurred. Secondly, it is somewhat curious that the applicant would have chosen such an uncongenial method of perpetrating the abuse, in view of the complainant's evidence that the applicant had been able to frequently commit that abuse with apparent impunity in the family home. Thirdly, it is surprising that the applicant would have chosen to have perpetrated that abuse while parked in a vehicle in a public street, in circumstances in which, as I have stated, he would have been readily able to do so within the privacy of his own home.

170 Throughout the period of the offending that was the subject of the charges, and for at least four or more years after it had concluded, the complainant did not make any complaint, or inform anyone, about the offending. In accordance with s 52 of the Jury Directions Act, the judge correctly informed the jury that experience has demonstrated that people may react differently to sexual offences, and that while some people may complain immediately, others may not do so. In light of the law relating to the issue of complaint, the delay by the complainant does not, of itself, weigh in favour of the applicant. However, the evidence given by the complainant under cross-examination, on that issue, was internally inconsistent in material respects.

171 In his evidence in chief, the complainant said that after his mother separated from the applicant, he did not then report the applicant's conduct. When asked by the prosecutor why he did not do so, he said that he 'can't remember the reasoning at the time'. In cross-examination, the complainant said that before the sexual abuse started, he regarded the applicant as 'a bit of a father figure'. He said that that perception of the accused changed after the abuse commenced. In particular, by the time that he was twelve years of age, he had started to 'figure ... out' that the applicant was a 'dud'. He said, however, that he was 'just too embarrassed, um, too afraid to tell anyone' at that point.

172 The complainant was then cross-examined about the message that he had handwritten in the Father's Day card, that was given to the applicant after he had turned twelve years of age. In the card, the complainant had expressed gratitude to the applicant for being a 'great stepdad through all the years', and he wrote that the applicant had 'done a lot better [than] my dad ever would'. When questioned about that message, the complainant said that his mother had forced him to write such a message, telling him that the applicant deserved more respect. When pressed in cross-examination as to why, as a consequence, he felt compelled to write such an endearing message in the card, the complainant then said that the applicant had 'tricked me into thinking that was a father/son thing'. He then said that he laboured under that belief until he was sixteen years of age. I interpolate that that response was in direct contradiction of his earlier evidence that, by the time he was twelve years of age, he had at commenced to realise that the applicant was a 'dud' in that respect.

173 The complainant was then cross-examined about disagreements that he had had with the applicant during his teenage years. He agreed that the applicant had assumed the role of disciplining him when he was in trouble at school and at home. He agreed that in arguments that he then had with the applicant, he would 'get to the end of [his] emotional tether' and lose control of himself. Notwithstanding that he was in such a heightened emotional state, he did not once, in the course of a heated argument with the applicant, raise the fact that the applicant had abused him.

174 In that context, the manner in which, and extent to which, the complainant renewed his close and friendly relationship with the applicant, well after the applicant had left the family home, is another relevant circumstance adding to the improbability of the prosecution case.

175 In evidence in chief, and again in cross-examination, the complainant volunteered that after he himself had left home and went to live in Safety Beach with his girlfriend, he 'miraculously' got along with the applicant as if nothing had ever happened. On a number of occasions he sought the assistance of the applicant. On other occasions, he quite willingly had social interaction with the applicant, by attending the applicant's partner's restaurant in Rosebud West, by assisting the applicant to move house, and by attending a function when the applicant's partner's mother got married on the Mornington Peninsula. Shortly before the complainant revealed the abuse to his mother in January 2015, the complainant had attended a Christmas function in Glen Waverley with the applicant and other persons.

176 Certainly, it is the experience of the law that young victims of sexual abuse can conduct themselves in a manner which is quite counterintuitive. However, the prosecution case was that the complainant, over a period of some eight years, had been subjected to repeated degrading acts of sexual abuse that had occasioned severe pain to him as a regular occurrence. At one point in cross-examination, the complainant said that he hated the applicant. It might be expected that when the applicant finally left the family home, the complainant would have felt significant relief at never being exposed to the applicant again. In those circumstances, the fact that the complainant voluntarily renewed his relationship with the applicant, and did so on a particularly amicable basis, is a further factor that adds to the improbability of the prosecution case.

177 Finally, counsel for the applicant relied on some aspects of the evidence given by the complainant which were internally inconsistent, or which were inconsistent with previous statements made by the complainant concerning the issue in question. Individually, each of those inconsistencies are not of particular moment. However, taken together, they do add, to a material extent, to the other issues which I have discussed relating to the evidence given by the complainant.

178 In cross-examination, the complainant agreed that when he first attended at the police station in 2015, he had prepared some notes, in which he had written that the applicant always watched pornography when he raped the complainant. In answer to further questions, the complainant agreed that the only access to the internet in the house was in the lounge room. He said 'that's where he played child porn'. However, he also agreed that the vast majority of the incidents in which the applicant had raped him occurred in the bedroom. He was only able to recall one specific incident in which the applicant had abused him in the lounge room. In that way, the statement contained in the notes that the complainant gave to the police - that the applicant always watched pornography while raping him - was inconsistent with his evidence. Moreover, when giving his account of the various incidents in his evidence-in-chief, the complainant did not mention, at all, that the applicant watched pornography during the particular incident.

179 In his statement to the police, and at the committal proceeding, the complainant said that the fourth and fifth incidents occurred some time between when he was aged nine years and when he was aged twelve years. In cross-examination, he agreed that when he made his statement his best recollection was that the two events (which occurred on the way home from attending karate lessons) were 'somewhere between 2002 and 2005'. In evidence-in-chief in the trial, the complainant said that the two incidents occurred when he was ten years of age. In cross-examination, he agreed that the first occasion, on which he had been able to specifically recall that the two incidents occurred when he was aged ten, was during the week that preceded the trial. When further pressed, he said 'I'm very certain I was ten'.

180 A third matter of inconsistency arose from the evidence of complaint given by the complainant's mother. In particular, the complainant's mother said that when the complainant first spoke to her about it in January 2015, he said that the abuse commenced in the family home in Bentleigh East. In his evidence, the complainant said that the first time upon which the applicant abused him was the occasion of the first incident which occurred at the applicant's mother's home.

181 Those, then, are a number of the considerations affecting the evidence of the complainant that the jury was bound to take into account in determining whether it was satisfied, beyond reasonable doubt, of the guilt of the accused of the charges that were before it. Considered collectively, their combined effect was such as to necessarily raise a significant question about the account given by the complainant, on which the prosecution case was based. It was in that context that the jury was required to consider the evidence given by the applicant on the trial.

182 As I have noted, in the upshot, it was ultimately not in dispute, on the present application, that the evidence given by the applicant was not impugned or discredited in cross-examination.

183 In that respect, the respondent, in her written case, pointed to four matters concerning the evidence of the applicant which, it was contended, contained inconsistencies. In the written case, it was submitted that the jury was entitled to conclude, from those matters, that the applicant's credibility was significantly damaged by cross-examination. In oral submissions before the Court, counsel for the applicant addressed and effectively rebutted each of those four instances. In response, counsel for the respondent correctly and quite properly accepted that it could not be maintained that the applicant's credibility was significantly damaged in the manner contended in the written case.

184 Notwithstanding that concession, it is appropriate to deal, albeit shortly, with each of the four matters originally pointed to by the respondent in her written case.

185 First, it was submitted, the applicant gave evidence that his mother and stepfather never left their home so that the incidents that were the subject of charges 1 to 6 could not have occurred, whereas (it was contended), under cross-examination, the applicant qualified that evidence by saying it was difficult for them to leave the home.

186 In fact, the evidence given by the applicant in respect of those matters was relevantly different to that outlined in the respondent's case. In his evidence-in-chief, the applicant did not say that his mother and stepfather never left their home. Rather, he said that whenever he and the complainant visited them, the applicant's mother and stepfather were always at home. That evidence, given by the applicant, was not inconsistent with his concession, in cross-examination, that he did not suggest that his mother and stepfather 'never' left the house, but rather that it was difficult for them to do so.

187 The second matter, relied on in the respondent's written case, concerned the evidence given by the applicant in respect of the ninth incident, which was alleged to have occurred at Rye. In its written case, the respondent contended that the evidence given by the applicant, that the offence the subject of charge 5 could not have happened because the family were together 95 per cent of the time, was inconsistent with his concession in cross-examination that his wife did leave the house to purchase groceries, so that it was possible that he was alone with the complainant.

188 In fact, in his evidence-in-chief, the applicant said that the family had spent 95 per cent of the time, if not more, together, that he was the person who did the shopping for groceries and the like, and that he was not able to recall any specific period during the holiday when he was alone with the complainant for any significant period of time. That evidence was not inconsistent with the concession, that he made in cross-examination, that it was possible that his wife might have also gone to the supermarket on occasions leaving him alone with the complainant. In other words, the fact that the applicant's recollection was that he was the person who always did the shopping, and that he could not recall any occasion when he was alone with the complainant, was not inconsistent with the concession that, nevertheless, it was possible that his wife had done the shopping leaving him alone with the complainant.

189 The third matter relied on in the respondent's written case, was that (according to the respondent), in relation to the fourth and fifth incidents, the applicant had said in evidence-in-chief that he could not remove his trousers in the motor vehicle because his trousers were stiff and heavy and because he was wearing a groin guard; whereas in cross-examination, the applicant accepted it was possible to pull his trousers down and remove the groin guard.

190 On analysis, that point was based on a misconception as to the evidence given by the applicant at trial. At no time did the applicant say that it was impossible for him to remove his trousers in the vehicle. Rather, his evidence was that, because of the material from which they were made, and because of the position of the protector worn under them, it would have been difficult for him to do so.

191 The final inconsistency raised in the respondent's written case was that (according to the respondent) the applicant gave evidence that he would not use the shower at his mother's home, as the shower was unclean; whereas in respect of the sixth incident (the night before the wedding) the applicant agreed that he had a shower at his mother's house on the day of his wedding.

192 In fact, in his evidence-in-chief, the applicant had said that it was 'after mowing the lawn' that he would not shower at his mother's house, because of the state of disrepair and cleanliness of the shower. That evidence was not inconsistent with the evidence that he gave that, on the morning of his wedding to the complainant's mother, he did use the shower so that he could attend the wedding in a respectable state.

193 I have taken the time to refer to each of those matters, because, on analysis, after careful consideration of the evidence given by the applicant, it could not be maintained that in any relevant respect that evidence was impugned in cross-examination, or was materially internally inconsistent. Thus, the jury had before it, and was bound to consider, the evidence given by the applicant denying that he had committed any of the offences alleged, in circumstances in which the applicant had been cross-examined at some length, but his evidence had not been adversely affected by such questioning.

194 In considering and assessing the applicant's evidence, the jury was required to take into account two important directions, to which I have referred, which the judge gave to it. First, the jury was required to take into account and give appropriate weight to the 'Liberato' direction, namely, that in determining its verdicts, it was insufficient for the jury merely to find that the prosecution case was preferable to the defence case. In particular, the jury was (correctly) directed that it must acquit the accused if his evidence gave rise to a reasonable doubt, and that even if the jury was convinced that the accused's evidence was not true, it must nonetheless not convict the applicant unless it was satisfied, beyond reasonable doubt, on all the evidence of his guilt. Secondly, in considering the evidence given by the applicant, and indeed in considering the issues that were raised in rebuttal of the prosecution case, the jury was obliged to take into account the comprehensive forensic disadvantage direction to which I have earlier referred.

195 In summary, then, the prosecution case was significantly, if not totally, based on the evidence given by the complainant. The only other evidence, in support of the prosecution case, was the evidence of complaint made by the complainant to his girlfriend, WA, in 2013 and subsequently to his mother on 26 January 2015.

196 It is understood and accepted that in a case such as this, it could not be fairly expected that an account, given by a complainant of abuse of the kind described in this case, would be wholly coherent or unassailable. In considering the complainant's evidence, it was necessary for the jury at trial, and for this Court on the application for leave to appeal, to be conscious of the frailty of human memory, and, in the present case, of the fact that the matters described by the complainant were, in very large measure, the result of the perception by him of events which he said occurred to him when he was quite a young child. Those considerations are relevant to assessing the weight and effect of the various matters which I have discussed that attended the complainant's evidence. Nevertheless, it was on the complainant's evidence, almost solely, that the prosecution case was based. As in any criminal trial, it must be borne steadily in mind that the applicant could only have been lawfully convicted if, based on all the evidence, it was open to the jury to be satisfied beyond reasonable doubt of his guilt of the charges in question.

197 As I have outlined, there were a number of aspects attending the complainant's evidence which were quite improbable. Those aspects were of varying weight and significance in the assessment of the prosecution case. None of them, alone, were sufficient to compel the jury to entertain a reasonable doubt about the guilt of the applicant. However, the conclusion is inescapable that, taken collectively, the combined effect of those matters was necessarily such as to raise, on any view, a significant question about the credibility and reliability of the account given by the complainant, on which the prosecution case was based. In effect, the nature of the improbabilities, that I have discussed, were such that they necessarily compounded each other, and it was the overall effect of them which the jury was required to consider.

198 In a case in which such appalling and degrading abuse was the subject of the jury's consideration, the temptation, both for the jury, and indeed on this application, is quite strong to indulge in speculation as to why the complainant would have made such allegations against the applicant, if they were not true. However, for the reasons explained by the High Court in Palmer v The Queen,[20] such a line of reasoning is impermissible.

199 Accordingly, the jury was required to consider, and give appropriate weight to, the various matters to which I referred and which rendered the account given by the complainant to be improbable in particular respects. As I have discussed, it was the cumulative effect of those improbabilities that necessarily raised a serious level of doubt about the evidence given by the complainant.

200 It was in that light that the jury was required to consider, with some care, the evidence given by the applicant. As I have discussed, that evidence was not damaged at all in cross-examination, it was internally consistent, and it was not otherwise impugned.

201 It may be accepted that there are cases in which an accused might give such evidence, but where, nevertheless, the weight of the prosecution case is such that the jury would be entitled to be satisfied beyond reasonable doubt of the guilt of the accused person in such a case. However, for the reasons that I have discussed, it is quite clear that this was not such a case. Rather, in colloquial terms, this case ultimately fell to be considered by the jury as an 'oath against oath' case. There was, in my view, nothing about the prosecution case, taken as a whole, or indeed about any aspect of it, which could rationally have entitled the jury to be satisfied beyond reasonable doubt that the evidence given by the applicant, denying the perpetration

of the abuse alleged in the charges, was untruthful or indeed unreliable.

202 It must be assumed that the jury, having had the advantage of viewing and listening to the evidence in question, formed a favourable perception of the complainant arising from his demeanour in the witness box and the manner in which he gave his evidence. It may also be accepted that the jury did not form such a view as to the demeanour and presentation by the applicant of his evidence. Nevertheless, and giving that consideration full weight, for the reasons I have discussed, I am driven to the conclusion that the jury could not, acting rationally, have been satisfied beyond reasonable doubt of the guilt of the accused on the charges on which he was convicted.

203 For those reasons, I have concluded that the application for leave to appeal should be granted, and that the appeal by the applicant against his conviction on each of the charges should be allowed. Accordingly, I would set aside the verdicts and convictions entered against the applicant in the County Court and the sentences passed on those verdicts, and order that judgment and verdicts of acquittal should be entered on each charge.

204 I have had the benefit of reading in draft the reasons for judgment of Kaye JA. I gratefully adopt his enunciation of the circumstances of the offending, the summary of the evidence given at trial and the summary of the parties' submissions. I agree with his Honour that the applicant's application for an extension of time should be granted, for the reasons he gives. However, I have the misfortune to disagree as to the resolution of the appeal. I would dismiss the appeal. My reasons for that conclusion are as follows.

205 The sole ground of the applicant's proposed appeal is that the jury verdicts

are unreasonable or cannot be supported having regard to the evidence. As Maxwell P explained in R v Klamo, the approach required of an appellate court in considering the 'unsafe and unsatisfactory' ground involves the following steps:

1. The court of criminal appeal must ask itself whether, upon the whole of the evidence, it was open to the jury to be satisfied beyond reasonable doubt that the accused was guilty.

2. In considering that question, the appeal court must bear in mind that the jury has the primary responsibility of determining guilt or innocence and has had the benefit of seeing and hearing the witnesses.

3. In most cases a doubt experienced by an appellate court will be a doubt which a jury ought also to have experienced.

4. 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.

A guilty verdict can only be said to have been 'reasonably open' to the jury if there was no aspect of the evidence which obliged - as distinct from entitled - the jury to come to a different conclusion.[21]

206 His Honour went on to quote the following statement of Hayne J in Libke v The Queen:

[T]he question for an appellate court is whether it was open to the jury to be satisfied of guilt beyond reasonable doubt, which is to say whether the jury must, as distinct from might, have entertained a doubt about the appellant's guilt. It is not sufficient to show that there was material which might have been taken by the jury to be sufficient to preclude satisfaction of guilt to the requisite standard.[22]

That statement reflects the earlier judgment of the High Court in M v The Queen.[23]

207 Thus the court on a criminal appeal is required to decide whether the state of the evidence was such as to preclude a jury acting reasonably from being satisfied of guilt to the requisite standard. Sometimes this has been framed as asking whether there was a 'solid obstacle to reaching a conclusion beyond reasonable doubt'[24] or whether, instead, the 'path to a conviction is open'.[25]

208 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 jury's advantage in seeing and hearing the witnesses, and to the principle that the jury is the body entrusted with the principal responsibility of determining the guilt or innocence of the accused person. As the High Court stated in Baden-Clay:

It is fundamental to our system of criminal justice in relation to allegations of serious crimes tried by jury that the jury is 'the constitutional tribunal for deciding issues of fact.' Given the central place of the jury trial in the administration of criminal justice over the centuries, and the abiding importance of the role of the jury as representative of the community in that respect, the setting aside of a jury's verdict on the ground that it is 'unreasonable' within the meaning of s 668E(1) of the Criminal Code is a serious step, not to be taken without particular regard to the advantage enjoyed by the jury over a court of appeal which has not seen or heard the witnesses called at trial.[26]

209 Recently, in Pell, the High Court again considered the way in which a contention that the jury's verdict is unreasonable, or cannot be supported having regard to the evidence, is to be resolved. Of course, in Pell the applicant submitted that his case on appeal did not depend upon an assessment of the credibility of any witness. And, as the High Court observed:

[T]he assessment of the credibility of a witness by the jury on the basis of what it has seen and heard of a witness in the context of the trial is within the province of the jury as representative of the community. Just as the performance by a court of criminal appeal of its functions does not involve the substitution of trial by an appeal court for trial by a jury, so, generally speaking, the appeal court should not seek to duplicate the function of the jury in its assessment of the credibility of the witnesses where that assessment is dependent upon the evaluation of the witnesses in the witness-box. The jury performs its function on the basis that its decisions are made unanimously, and after the benefit of sharing the jurors' subjective assessments of the witnesses. Judges of courts of criminal appeal do not perform the same function in the same way as the jury, or with the same advantages that the jury brings to the discharge of its function.[27]

210 Reaffirming the authoritative statements in M v The Queen,[28] the Court observed as follows:

The function of the court of criminal appeal in determining a ground that contends that the verdict of the jury is unreasonable or cannot be supported having regard to the evidence, in a case such as the present, proceeds upon the assumption that the evidence of the complainant was assessed by the jury to be credible and reliable. The court examines the record to see whether, notwithstanding that assessment - either by reason of inconsistencies, discrepancies, or other inadequacy; or in light of other evidence - the court is satisfied that the jury, acting rationally, ought nonetheless to have entertained a reasonable doubt as to proof of guilt.[29]

211 It is clear from Pell that, for the purposes of this appeal, this Court must assume that the jury assessed the complainant's evidence to be credible and reliable. They could hardly have convicted the applicant had they not done so. It is then for this Court to consider whether, despite the jury's assessment, the evidence as a whole reveals 'inconsistencies, discrepancies or other inadequacies', such that the Court is satisfied that the jury, acting rationally, ought to have entertained a reasonable doubt about guilt.

212 The examination of the complainant's evidence, and the other evidence in the case, is not to be undertaken in a piecemeal fashion; the combined effect of the evidence can be important. Thus, in Pell, although it had to be assumed that the jury assessed the complainant's evidence to be credible and reliable, the 'compounding improbabilities' caused by other unchallenged evidence in the case required the jury, acting rationally, to have entertained a doubt as to the applicant's guilt.[30]

213 I note, at this point, that this case is in that respect quite different from Pell. With one exception, namely the evidence of the complainant's mother, there is no other 'unchallenged evidence' that is said to give rise to improbabilities, let alone to 'compounding improbabilities'. Rather, the question is whether improbabilities arise by reason of aspects of the applicant's evidence, aspects of the complainant's evidence and an aspect of the complainant's mother's evidence; and, if so, whether those improbabilities are such as to require the conclusion that the jury must have entertained a reasonable doubt.

214 As in Pell, the applicant submits that there were 'compounding improbabilities' that meant the jury ought to have entertained a doubt. I will assess that submission in greater detail below. But I make the following general observations about the use of that phrase.

215 In my view the phrase 'compounding improbabilities' was not used by the High Court in Pell (and could not properly be used) in any mathematical sense. 'Compound probability' is a mathematical term relating to the likelihood of two or more independent events occurring. Compound probability is equal to the probability of the first event multiplied by the probability of the second event, expressed in the mathematical equation P(A and B) = P(A) × P(B). So, for example, if event A has a 25 per cent chance of occurring, and event B also has a 25 per cent chance of occurring, the probability of both A and B occurring is 6.25 per cent (that is, considerably less than the individual probabilities). This effect is observed even for events that are likely to occur (that is, not improbable). Thus, if the probability of event A occurring is 60 per cent and the probability of event B occurring is also 60 per cent, the probability of both events occurring is 36 per cent.

216 In my opinion, the assessment of whether, in the context of a criminal trial, certain events are so unlikely to have occurred that there was a 'solid obstacle' in the way of conviction is not a mathematical exercise, and is not susceptible to being addressed by an equation of this kind.[31] The probability of event A and event B (that are each said to be improbable) is unknown and unknowable. In the context of a criminal trial, the evidence on which a conclusion of improbability of a particular event is based will vary in strength depending on multiple factors, including but not limited to how many witnesses give evidence of the event, the consistency of the witnesses' accounts, the credibility and reliability of those witnesses, and whether there are competing witnesses. Nor, in my view, would be it be appropriate to multiply such improbabilities in the context of a criminal trial, even if they could be known. In my view, and notwithstanding the remarks of Weinberg JA in Pell in this Court,[32] and the use of the same phrase by the High Court, the mathematical usage is inapt to capture the effect of evidentiary matters that might make an event less probable.

217 Rather, the phrase 'compounding improbabilities' is better understood as directed to the cumulative effect of various improbabilities present in relation to an event. That is, where the question is whether a particular criminal act occurred, and if there are multiple matters that can be said to make it improbable that that criminal act occurred, then cumulatively those matters, taken together and assessed in light of the strength of the evidence, can lead to a conclusion that the jury, acting rationally, must have had a reasonable doubt as to whether the criminal act occurred.

218 Before considering whether it was open to the jury to reach the verdict it reached, it is necessary to place the jury's decision in context, by addressing in some detail the directions the jury was given by the trial judge. I note at the outset that there were no objections to these directions, and no challenge to them on appeal. They were exemplary.

219 First, the trial judge directed the members of the jury that they must consider each charge separately, and in light only of the evidence which applied to it. She stated that they must ask themselves 'in relation to each charge whether the evidence relating to that charge has satisfied you beyond reasonable doubt that the accused is guilty of that particular crime'. She instructed them to ignore 'all other considerations such as feelings of sympathy or prejudice' that they may have for anyone involved in the case.

220 In relation to the evidence of the applicant and the complainant the trial judge directed the jury as follows, consistently with Liberato:[33]

Clearly there is a conflict between the evidence that was given from [the complainant] and [the complainant's sister], and [Mr Cavanaugh]. It is not necessary for you to accept [Mr Cavanaugh's] evidence in order to find him not guilty. In keeping with the requirement that the prosecution must prove their case beyond reasonable doubt, you must acquit [Mr Cavanaugh] if his evidence gives rise to a reasonable doubt.

This is the case even if you prefer the evidence of [the complainant] or [the complainant's sister] to the evidence of the accused man. It is not sufficient for you merely to find the prosecution case to be preferable to the defence case. Before you could convict [Mr Cavanaugh] of any offence, you must be satisfied the prosecution have proven their case beyond reasonable doubt.

So even if you do not think that [Mr Cavanaugh] was telling the truth, but you are not sure where the truth lies, you must find the accused man not guilty.

In fact, even if you are convinced that [Mr Cavanaugh's] evidence is not true, it is not the case that you must convict him. In those circumstances you would put his evidence to one side and ask yourself whether the prosecution have proved the accused man's guilt beyond reasonable doubt on the basis of the evidence that you do accept. This is consistent with the onus of proof at all times being on the prosecution. It is never on the accused [Mr Cavanaugh].

221 The trial judge then summarised the evidence of the two experts, Dr Smith and Dr Collins. That evidence is dealt with in some detail in Kaye JA's reasons.[34] In relation to that evidence, the trial judge directed the jury as follows:

Now you are not required to accept the doctors' opinions. You are the judges of the facts. Their opinions are merely pieces of evidence like any other which you may accept or reject. You will however appreciate that the prosecution and defence have not challenged the opinion of each other's witness and that their evidence is not in dispute. The evidence has been provided to assist you in considering the live issue in this case, that is whether the prosecution have proved beyond reasonable doubt that the alleged sexual assaults as described actually occurred.

222 In relation to prior inconsistent statements made by the complainant, the trial judge referred to the complainant's statement to police that he was between 9 and 12 years old - ie between 2002 and 2005 - when the 'karate incidents' occurred, and his evidence at trial that he was 10 years old. Her Honour directed the jury as follows:

[Y]ou might conclude that there has been a difference in what he said about the timing of those incidents. If you accept that he has made the statement, there are two ways you can use it. You can use the contents of the statement, that it occurred between 2002 and 2005, between the ages of nine and 12 as evidence in this case about when they occurred. If you find that that statement is inconsistent with his account in court, where he said in court that he was 10, you may use the statement when assessing his credibility and reliability. You may find that the fact that [the complainant] had previously given an inconsistent account means that the evidence he gave in court is less likely to be truthful or accurate. You may be less willing to accept his evidence but again, it is for you to determine whether or not to draw this conclusion from any inconsistency you find.

... I ask you to keep in mind the fact that a witness who gives inconsistent accounts is not necessarily lying. While dishonest witnesses are more likely to introduce inconsistencies in their stories, truthful witnesses may make mistakes about details. If you do find that a witness' statement is inconsistent with his evidence in court, you will now have two different accounts from the same witness and it is for you to determine which account, if any, you believe.

223 The trial judge then identified another difference in the complainant's account, namely what he told his mother as to how often the abuse occurred and what he said in his evidence at trial on that issue. Her Honour then instructed the jury in accordance with s 54D of the Jury Directions Act, as follows:

You can use the difference in that account when you are assessing [the complainant's] credibility and reliability. When you are assessing his evidence, I ask you to bear in mind that experience shows that people may not remember all the details of a sexual offence or may not describe a sexual offence in the same way every time. Trauma can affect people differently including affecting how they recall events. It is common for there to be differences in accounts of a sexual offence. For example, people may describe a sexual offence differently at different times to different people or in different contexts and both truthful and untruthful accounts of a sexual offence may contain differences. It is up to you to decide whether or not the difference[s] in [the complainant's] account are important when assessing his credibility and reliability.

224 Next her Honour directed the jury in relation to the evidence concerning uncharged acts, as follows:

That evidence needs to be kept in perspective when considering all of the evidence. It has been led as part of the narrative of the prosecution case, and it is for the limited purpose of placing the evidence of the charged acts in context. You must not use that evidence for any other purpose. You cannot use this evidence to conclude that Mr [Cavanaugh] is the sort of person who is more likely to have committed the alleged offences. It has only been led as part of the narrative of the prosecution case.

225 Then the trial judge gave a tendency direction, as follows:

Now, part of the prosecution case is that [Mr Cavanaugh] has demonstrated a sexual interest in the complainant, and a willingness to act on that interest when he is alone or was alone with [the complainant].

The prosecution say that proof of the charged acts would demonstrate that [Mr Cavanaugh] had a sexual interest in [the complainant]. So I am going to give you two examples. Firstly in relation to the observations made by [the complainant's sister]. The prosecution say that that would be evidence of [Mr Cavanaugh's] sexual interest in [the complainant].

You can only use that as evidence of a sexual interest if you are satisfied that the elements of that charge are proved beyond reasonable doubt. So when you are considering that charge, if you are not so satisfied, so you are not satisfied beyond a reasonable doubt, then you must put that evidence to one side. You cannot use it to consider whether or not there is a sexual interest by Mr Cavanaugh in [the complainant]. So you must be satisfied beyond reasonable doubt if you want to use that as him having a level of interest in [the complainant] on a sexual basis.

226 The trial judge also directed the jury in relation to the use they could make of the evidence of complaint, as follows:

It is for you to determine whether [the complainant] actually made that complaint to [his partner] and also to his mother, and if you find that he did, you can use the complaint in two ways.

You can use the content of those complaints as evidence in the case. For example, you can use the statement that he was sexually abused by his father as evidence that that is what occurred. When considering this evidence, it is important to remember that just because a person says something on more than one occasion, that does not mean that what he or she has said is truthful or accurate. A false or inaccurate statement does not become true and accurate by virtue of being repeated.

Secondly, you can use [the complainant's] complaint to assess his credibility. The fact that [he] made the complaint, and the content of that complaint, may show that his account of the events in question has been consistent.

...

Now, in this case, you heard evidence of the complaint made by the witnesses. So that is the evidence from [the complainant's girlfriend] and [his mother]. It would be a mistake to treat this as evidence that is independent of the complaint. Although the witnesses gave evidence about what they were told, [the complainant] was the source of that evidence. You may use the evidence in the ways I have just described as evidence of the offence or in your assessment of the complainant's credibility but you must not mistake it for independent evidence of the offence.

227 The trial judge then directed the jury in relation to the delay by the complainant in making his complaint, consistently with ss 52 and 53 of the Jury Directions Act, as follows:

The chronology of the making of his complaint was that in August 2013, he disclosed that sexual assaults had occurred to his girlfriend. Then a few days before Australia Day in 2015, he spoke to his mother about that and then they went to the police and spoke to the police - he spoke to the police in February 2015. So his discussions with the police were between six to 14 years after the alleged offending occurred and you will recall [Mr Cavanaugh] said that the allegations first came to his attention as well in 2015.

I have already directed you that experience shows that people react differently to sexual offences and that there is no typical, proper or normal response to a sexual offence. Some people may complain immediately, others may not complain for some time, others may never make a complaint. It is a common occurrence for there to be a delay in a complaint about a sexual offence. If you find that there was a delay in [the complainant] making his complaint, you can take that fact into account when deciding whether to accept his evidence as credible and reliable. You should also remember that there may be good reason why a victim of a sexual assault may delay or hesitate in making a complaint. The prosecution have said that [the complainant] explained to you why he did not say anything and that they say you should accept his explanation as a good reason for the delay and you will remember that his reasons were that he told you that he was looking for a father figure, that he was told by [Mr Cavanaugh] that the relationship between them was a normal father and son relationship and that he accepted that.

He also said that he was embarrassed by what had occurred and that he thought he would get into trouble, so he did not complain. Then after his mother separated from [Mr Cavanaugh], [the complainant] told you that he did not plan to complain after that as he still had contact with [Mr Cavanaugh] and he thought he could forgive him and they were the reasons why he did not complain.

Now, defence have said in the course of Mr Anderson's closing argument, that the delay is a significant factor in whether or not you would accept his evidence and you were invited by Mr Anderson to scrutinise the evidence of the relationship between [the complainant] and [Mr Cavanaugh] throughout the time that they lived together including the Father's Day card that was written by [the complainant] when he was 12 and given to [Mr Cavanaugh], including just the everyday relationship that was described to you and the continuation of the relationship after he, being [Mr Cavanaugh], and [the complainant's mother] separated.

Mr Anderson also invited you to consider that [the complainant] had no qualms about expressing his feelings about his natural father ... to his mother and that that did not sit well with his explanation as to why he did not say anything about [Mr Cavanaugh] to his mother.

So ultimately, it is a matter for you what you make of that delay and whether you accept the evidence of [the complainant] as being credible and reliable.

228 Then the trial judge directed the jury in relation to the forensic disadvantages experienced by the applicant as a consequence of the delayed complaint, consistently with s 39 of the Jury Directions Act, as follows:

One thing I do need to direct you on though is that this delay has had an effect on [Mr Cavanaugh's] capacity to defend himself against the charges. In assessing the case, you need to have regard to what was called to a forensic disadvantage. What that means is that because the complaint was not made for between six to 14 years after the alleged offences, [Mr Cavanaugh] has been hamstrung to a certain extent in his capacity to defend himself against the charges and in particular, Mr Anderson highlighted and I will now raise some factors that I think are relevant in that regard.

229 The matters her Honour pointed out to the jury were as follows:

(a) Save for the events on the night before the applicant's wedding, there was no specificity as to the timing of the alleged offending. That meant that the applicant was unable to explore the circumstances of the exact occasion when the alleged event is said to have taken place.

(b) The applicant's mother's house, where two incidents were said to have occurred, had been demolished.

(c) The applicant was unable to establish whether he was involved in any other activity which would create a doubt about the timing of any of the allegations.

(d) The defence had not been able to have a medical or forensic examination conducted of the complainant and, as a result of the medical evidence, the jury were aware that that may have resulted in some relevant finding.

(e) The applicant was not able to call any alibi or other relevant witnesses who might have been able to assist his case.

(f) Three potentially relevant witnesses - the applicant's mother and her partner, and the applicant's friend, DS - were, by the time of the trial, deceased.

230 The trial judge directed the members of the jury that they 'must take these disadvantages into consideration' when determining whether the prosecution had proved the applicant's guilt beyond reasonable doubt.

231 Next the trial judge directed the jury in relation to the question whether the complainant had a motive to lie, consistently with s 44L of the Jury Directions Act:

In the course of cross-examination it was put to [the complainant] that he had a motive to lie. You will remember questions were asked of him about making his statement and then making a claim for victims of crime, I think it was called compensation, but also referred to as a victim of crimes application or VOCAT.

Now, it is up to you whether you consider, if you agree that there was that motive, whether that affected the evidence that he gave. On the other hand, if you reject the idea that he had the motive, then you will ignore that argument when you are deciding what weight to give his evidence.

...

It is for the prosecution to prove beyond reasonable doubt that [Mr Cavanaugh] is guilty of the offence, or any offences charged, and you can only convict him of any offence on the basis of all the evidence if you are satisfied of his guilt beyond a reasonable doubt. The accused does not have to prove that the witness, [the complainant], had a reason for giving false evidence.

232 The trial judge then directed the jury in relation to the fact that the applicant gave evidence, consistently with s 44I of the Jury Directions Act, as follows:

In choosing to give evidence, [Mr Cavanaugh] undertook to tell the truth. He submitted himself to cross-examination, which is the way a lawyer tests a witness' credibility and truthfulness, and in this respect, [Mr Cavanaugh] is no different to any other witness. You must assess his evidence in the same way as you assess the evidence of any other witness.

There is clearly a conflict between the evidence of [the complainant] and [Mr Cavanaugh] ...

There are four broad conclusions that you may reach about [Mr Cavanaugh's] evidence. Firstly, if you think it is true, you will find him not guilty. If you are not sure whether his evidence is true, but you think that it might be, then you would have a reasonable doubt about the prosecution case, and you would find him not guilty. Also, if you preferred the evidence of [the complainant], say, to [Mr Cavanaugh's] account, then you would still find [Mr Cavanaugh] not guilty. It is not sufficient for you to merely find the prosecution case to be preferable to the defence case.

In other words, it is not a question of balancing one case against the other. The prosecution must establish [Mr Cavanaugh's] guilt beyond reasonable doubt.

Finally, if you were to reject [Mr Cavanaugh's] evidence, that does not mean that you have to find him guilty. What you do is that you would put his evidence to one side, and you would then ask whether the prosecution has proved [Mr Cavanaugh's] guilt beyond reasonable doubt on the basis of the evidence that you do accept.

You will appreciate that the live issue in this case is whether the prosecution have proved beyond reasonable doubt that the alleged offending actually occurred. In order for you to convict [Mr Cavanaugh] of all the charges [except] Charge 13, you would have to be satisfied beyond reasonable doubt that [the complainant's] evidence relating to each specific charge is honest, accurate, and reliable.

233 After the jury retired, they sent a question to the judge. It simply asked, 'Please define reasonable doubt'. After discussion with counsel, her Honour provided the following answer in accordance with s 64(1) of the Jury Directions Act:

[A] critical part of our justice system is that people are presumed to be innocent unless and until they are proven guilty. That is a basic premise which is fundamental to all criminal trials. As the prosecution bring the charges against the accused, it is for prosecution to prove those charges. The accused does not have to prove anything and that does not change from the start to the finish of the trial.

So it is not for the accused to demonstrate his innocence but for the prosecution to prove the charges they have brought against him. So before you may return a verdict of guilty in relation to any charge, the prosecution must satisfy you beyond reasonable doubt that the accused is guilty of the charge in question.

Now, proof beyond reasonable doubt requires more than a finding that the person is probably guilty or very likely to be guilty. In those circumstances you must give the benefit of the doubt to the accused and acquit, because the prosecution has not satisfied you of the guilt of the accused man beyond reasonable doubt. If you cannot be satisfied that the accused is guilty - sorry you cannot be satisfied that the accused is guilty if you have a reasonable doubt about whether he is guilty.

It is almost impossible to prove anything with absolute certainty when reconstructing past events and the prosecution are not required to do so. A reasonable doubt is not an imaginary or a fanciful doubt or an unrealistic possibility. So if you do have a reasonable doubt about any element of each offence then you would find [Mr Cavanaugh] not guilty and the language, as I said, is the best indication of the standard required. And that's probably the best explanation of that [I] can give you, because there is not actually a definition as such.

234 This case was not a complex case involving multiple complainants, or one that required complicated directions. The directions given by the trial judge were directions one would expect to encounter in many trials of sexual offending of this kind. Furthermore, it is apparent that the jury were capable of understanding and acting on at least one of the specific directions given, because they acquitted the applicant of charge 13,[35] which was based solely on the evidence of the complainant's sister, which had been the subject of an unreliability direction.

235 I also note that the applicant did not apply for a permanent stay based on forensic disadvantage resulting from delay and/or from the fact that three potential witnesses had passed away. Nor, in my opinion, would a stay have been granted. A court will only grant such a stay in rare or exceptional circumstances, where the continuation of the proceedings would involve unacceptable injustice or unfairness. Such unacceptable injustice, or unfairness, can result from 'a probable forensic disadvantage which is incurable'.[36] Where the main argument in support of the grant of a permanent stay is the unavailability, by reason of delay, of important witnesses, it must be shown that their evidence, had it been available, would probably have materially assisted the defence case. This flows from the requirement that the accused seeking such a stay demonstrate the probability, and not mere possibility, that the refusal to grant a stay would result in an unacceptably unfair trial.[37]

236 In this case it was not at all clear that the three deceased persons would have given evidence that would 'probably have materially assisted' the defence case. On the complainant's account of the wedding night offending, one of Mr Cavanaugh's friends, DS, was asleep close by during the offending.[38] Thus had DS given evidence that he did not hear or see anything untoward, that would not have been inconsistent with the complainant's evidence; and it is unlikely that his evidence would have been that he was awake the entire night and yet observed nothing. As for the applicant's mother ('JK') and her partner ('MM'), the complainant's evidence was that they were absent when the offending at their home occurred. Given that, they could not have given evidence that directly contradicted the complainant's account. At its highest, they could have said that they were not aware of occasions when the applicant came to their home with the complainant to mow the lawns when they were absent. But I do not consider that the inability of the applicant to call them as witnesses rendered the trial incurably unfair. Rather, the forensic disadvantage was curable by a suitable direction to the jury, as occurred.

237 Thus the question is whether, notwithstanding the careful and appropriate directions to the jury, the evidence was such that it was not open to the jury to convict the applicant. As the authorities emphasise, that is a stringent standard. For the reasons that follow, I am not persuaded that it is met.

238 As Kaye JA observes in his reasons,[39] in the hearing before us there was some discussion as to whether the applicant might be precluded from relying on the absence of evidence of injury to the complainant, because counsel for the applicant at trial did not cross-examine the complainant concerning that issue. The prosecution submitted that because the complainant was not asked if he sustained injury, the absence of injury could not be relied on by this Court in determining whether it was open to the jury to be satisfied beyond reasonable doubt of the guilt of the accused. In the course of the discussion that followed, it was suggested that the rule of practice, commonly referred to as the 'rule in Browne v Dunn', had the effect that if the absence of injury was to be relied upon as part of an attack on the complainant's credibility, then fairness required that that matter have been put to him, and it was not.

239 Kaye JA observes[40] that the application of the rule in Browne v Dunn to defence counsel in a criminal trial is materially different from the manner in which the rule ordinarily operates in civil proceedings, drawing in particular on MWJ.[41] It is appropriate to record at the outset that, in relation to this issue, I am in agreement with Kaye JA's reasons. In particular, I agree with his Honour that it was not for the applicant to have elicited evidence concerning whether the complainant was injured or not. I agree that, where the prosecution did not elicit such evidence, it was not for the accused to embark on a course of cross-examination designed to establish the non-existence of that evidence. That is particularly so given the manner in which the prosecution conducted the case more generally, including by calling expert evidence to the effect that the acts alleged could have occurred without causing injury, in response to the defence expert whose evidence was that an absence of injury was unlikely.

240 I agree with Kaye JA that, in many criminal trials, it would be both unfair and unrealistic to expect the accused to enter upon such an area.[42] I also agree that the trial proceeded on the accepted premise that the complainant did not suffer any injury, nor was he perceived by others to have suffered any injury, arising from the abuse that was the subject of his evidence.

The 'improbabilities' on which the applicant relied

241 The first, and perhaps principal, improbable feature of the prosecution case, the applicant submitted, arose from the lack of any evidence that the complainant had suffered any injury, or apparent sign of injury, as a consequence of the abuse, notwithstanding the extreme nature of the alleged abuse, the circumstances in which it occurred (including the lack of lubrication), and the expert evidence as to the size of the applicant's penis. Thus, as Kaye JA observes,[43] the jury was required to proceed on the basis that, notwithstanding the nature of the alleged abuse, the complainant did not suffer any injury, he was not observed by others to have been acting in a manner which might be consistent with him suffering any pain or discomfort as a result of the abuse, and relevant witnesses, such as his mother, did not observe any other sign, such as bleeding on his clothing, which would be consistent with him having been subjected to the abuse.

[I]n view of the nature of the anal abuse alleged, the size of the applicant's penis, the frequency of the abuse, and the manner in which it was alleged to have been committed, the state of the evidence was such that it must be concluded that it was quite improbable that the complainant did not suffer anal injury, or observable physical discomfort, as a result of the abuse described by him. In other words, the evidence at the trial was such that the jury, acting rationally, could only have regarded the lack of such injury or apparent injury to have weighed quite substantially against the probability of the complainant's description of the abuse.[44]

243 I respectfully disagree. This conclusion turns on a number of underlying propositions that require more detailed examination.

244 First, this conclusion turns on the proposition that the applicant 'fully penetrated' the complainant's anus, presumably on each and every occasion on which the events were said to have occurred. However, the complainant gave evidence that he could not see the applicant's penis during the course of the anal penetration he described. In my view it is entirely possible that a child may describe penetration as 'full' or 'complete' penetration in circumstances where that did not in fact occur. That is, a child (or indeed an adult) might experience penetration in such a way as to lead them to describe it as 'full penetration' even where the entire penis does not in fact enter the anus. That is simply a matter of common sense. But it is also supported by Dr Smith's evidence that, in relation to the allegation of oral penetration, the complaint's 'perception of the depth of penetration ... might have been inaccurate'. There is no reason why that remark would not apply equally to anal penetration.

245 Ultimately both experts were pressed on whether injury was likely, had the offending occurred in the manner described by the complainant - that is, with the applicant's entire penis penetrating the complainant's anus. But given the potential for a child to mis-describe the extent to which he or she was penetrated, it was open for the jury to conclude that the degree of penetration was not as extensive as the complainant had perceived it to be. If that were so, then the evidence of the experts as to the likelihood of injury if full penetration occurred - or the unlikelihood of full penetration occurring without the complainant suffering injury - cannot be regarded as a 'solid obstacle' to conviction. While it would have been open to the jury to have relied upon the absence of injury to reason to an acquittal, it was equally open to them to put that to one side, given a common sense approach to a child's perception of penetration.

246 The second 'improbability' relied upon by the applicant was the fact that the complainant stated that he screamed in distress on the relatively frequent occasions on which the applicant was said to have penetrated him. It was said by the applicant that this would have been likely to have attracted the attention of neighbours, or persons walking past the house. Yet on no occasion did a neighbour, or a passer-by, inquire about or investigate a child screaming in distress.

247 This 'improbability', too, turns on some underlying matters. First, it turns on the assumption that the complainant's screams were loud enough to be heard outside the house. Second, it turns at least in part on the assumption that those screams could be heard inside other houses, in circumstances where there was no evidence as to the distance of such other houses from the house in which the abuse was occurring, or the materials from which those houses were made, in terms of the degree to which they might have been relatively 'soundproof'. Third, it turns on the assumption that there were passers-by, or neighbours home, on the occasions on which the abuse occurred. Finally, it turns on an assumption that neighbours or passers-by will, or are likely to, investigate or make inquiries as to a child's screams. That assumption might depend on the third party's perception of the nature of the screams. Further, many people might be disinclined to 'get involved' in what might be perceived as a 'family matter'. The jury was not required to make these assumptions, however. It was open to the jury to reason that one or more of those assumptions was false. Ultimately, I do not regard this aspect of the complainant's account as improbable.

248 Third, the applicant relies on the unlikelihood of him being able to penetrate the complainant's mouth with his penis to the extent described by the complainant at all, or at least without the complainant gagging, choking or coughing. As noted above,[45] Dr Smith's evidence was that the complainant's perception of the depth of penetration might have been inaccurate. Again, common sense supports that conclusion. It is not at all unlikely that, as a child, the complainant might have perceived the applicant's penis as being 'in the whole way' if it largely filled his mouth, even if that did not involve the entire penis being in his mouth. Nor does the complainant's description of his nose being pressed up against the applicant's body render this aspect of his account improbable. Again, it was open for the jury to conclude that the degree of penetration was not as extensive as the complainant had perceived it to be. If that were so, then the evidence of the experts as to the likelihood of gagging, coughing or choking, or even of the unlikelihood of full penetration occurring, cannot be regarded as a 'solid obstacle' to conviction.

249 The next 'improbability' concerned the events on the evening of the applicant's wedding to the complainant's mother. The complainant gave evidence that the applicant engaged in oral sex with him, and that the applicant ejaculated while his penis was in the complainant's mouth. At the time, the applicant's best friend, DS, was nearby in the same room. The complainant gave evidence that DS was asleep at the time. The applicant contends that it is somewhat surprising that DS was not woken or otherwise disturbed by the incident. I accept that this was improbable. However, it does not follow that this was a solid obstacle to the jury accepting the complainant's account. As Kaye JA observes,[46] it is the experience of the courts that sexual abuse is not uncommonly perpetrated in circumstances in which the offender ran a risk of detection.[47] There are many cases of brazen offending; and it was open to the jury to conclude that this offending occurred, even though DS was sleeping nearby.

250 Further, this improbability would bear principally upon the single incident to which it related. It ought not be cumulated with the other alleged improbabilities so as to conclude that, for example, the offending at the applicant's mother's house, or the karate incident, were so improbable that a reasonable doubt must arise as to whether that offending occurred. In that sense it was not a 'compounding improbability' (noting again that I deprecate the use of that phrase). Rather, it would be relevant to the other offending in the sense that, if the jury rejected the complainant's account of this offence, it would potentially cast doubt on the complainant's evidence in relation to the other alleged offending. However, I do not consider that this single improbability, taken alone, was such as to have required a jury, acting rationally, to have had a doubt in relation to this offence.

251 I also accept, as Kaye JA observes,[48] that the jury was obliged to take into account the forensic disadvantage to the accused by reason of the fact that DS had subsequently died. They were directed to do so, and there was no reason to think that they did not adhere to the trial judge's directions. Further, as already noted,[49] no permanent stay was sought on the basis that DS had died.

252 The next alleged 'improbability' is that the abuse that was said to have occurred at the home of JK and MM occurred when they were both absent at the same time. This was said to be improbable because the complainant's evidence was that when he visited their house with the applicant, both JK and MM were excited, and would make a fuss over him. They treated the complainant as if he were their grandson. So much may be accepted. But that simply does not render the offending said to have occurred at their house, in their absence, improbable. Such a conclusion would involve acceptance of the proposition that it was unlikely that the applicant ever took the complainant to JK and MM's house to mow the lawn when JK and MM were not home. The applicant accepted that JK and MM did leave their home from time to time (although it was difficult for them to do so). In my opinion there is no evidence to demonstrate that it was improbable that the applicant took the complainant to JK and MM's house on occasions when they were not home.

253 Kaye JA also notes that if the applicant did take the complainant to JK and MM's house when they were absent, there was no evidence that the applicant had any knowledge of when they would both be returning to the house.[50] Of course, the complainant could not give evidence as to what the applicant might have known about when JK and MM would be returning. And it is unsurprising that the applicant did not give such evidence, given he denied that the events in question occurred at all. But it is not implausible or improbable that if he had taken the complainant to JK and MM's house when they were absent, the applicant may have known where they had gone and for what period they were likely to be absent. And, while it may be accepted that this offending involved some risk that JK and MM might return while the abuse was occurring, again it must be accepted that offending accompanied by a risk of detection is not uncommon in the courts' experience.

254 A similar analysis applies to the proposition that, when the applicant abused the complainant in his bedroom at the family home, while his mother was out shopping, on no occasion did the complainant's mother return home while the abuse was occurring, or in sufficient time to notice the aftermath of it. While the complainant's evidence was that his mother 'never specified' when she would return home after completing the shopping, that must be understood as evidence that she never specified to him. The complainant could not give evidence of what his mother may have said to the applicant about her plans, or about what the applicant knew or did not know about the time of the complainant's mother's likely return. Again, I do not regard this as an improbability.

255 Further, Kaye JA observes that the fact that the applicant was able to perpetrate the abuse in such circumstances on so many occasions, without being detected, 'necessarily adds to the degree of improbability' of the prosecution case.[51] Again I must disagree. Regrettably, many incest cases involve ongoing offending in the family home for years that goes undetected.

256 The next 'improbability' concerned the 'karate incidents'. Kaye JA considers that this offending would have been 'quite awkward', due to the fact that the applicant was wearing karate trousers and a 'protector'.[52] So much may be accepted, but that does not make it improbable. Kaye JA also considers it 'somewhat curious that the applicant would have chosen such an uncongenial method of perpetrating the abuse, in view of the complainant's evidence that the applicant had been able to frequently commit that abuse with apparent impunity in the family home', and that he would have done so while parked in a vehicle in a public street.[53] I must again disagree. Although the applicant had frequently abused the complainant in the family home, there is no suggestion that he could do so at any time, let alone with 'impunity'. Rather, the evidence was that he did so when the complainant's mother was not home. The complainant's evidence suggested opportunistic offending, engaged in when he and the complainant were alone together. The drive home from karate classes would have been another such opportunity.

257 Next, the applicant contends, and Kaye JA accepts, that the complainant's evidence was 'internally inconsistent' in relation to his delay in complaining about the offending. Of course, as Kaye JA accepts,[54] the jury was quite properly directed that some people do not complain immediately of sexual offending. Nonetheless, he considers that the complainant's ongoing relationship with the applicant after the offending had ceased, and the complainant's evidence about that ongoing relationship, was internally inconsistent in material respects.[55] This, his Honour concludes, is another circumstance adding to the overall improbability of the prosecution case.

258 Again, I have the misfortune to disagree. It is the experience of the courts - reflected in s 52 of the Jury Directions Act - that people may react differently to sexual offences and there is no typical, proper or normal response to a sexual offence. It may appear surprising that the complainant maintained a relationship with the applicant after the abuse had ceased. But, to use Kaye JA's words, 'it is the experience of the law that young victims of sexual abuse can conduct themselves in a manner which is quite counterintuitive'.[56] That is the case here. The psychological complexities of the relationship between abused and abuser, both during and after the abuse, are such that, in my opinion, this cannot be said to be render the abuse improbable, even if it is surprising to those who have not endured abuse of this kind.

259 Finally, the applicant relied upon certain other inconsistencies in the complainant's evidence. These included the following:

(a) The complainant made notes prior to his visit to the police, in which he had written that the applicant 'always' watched pornography when raping him, but in cross examination he accepted that most of the abuse occurred in the bedroom where there was no access to the internet. Nor did he mention pornography in his evidence in chief about the offending.

(b) In his statement to the police and at the committal the complainant had said that the karate incidents occurred some time between 2002 and 2005, when he was aged between 9 and 12; whereas in his evidence at trial he stated that he was 10 when this offending occurred.

(c) The complainant's mother said that when the complainant first spoke to her about the offending, in January 2015, he said that the abuse commenced in the family home. In contrast, in his own evidence, the complainant said that the first time upon which the applicant abused him at JK and MM's home.

260 Of these, only one - the pornography issue - is, in my view, properly to be regarded as an inconsistency in the complainant's evidence. I accept that that is an inconsistency in the complainant's account of events. However, he was cross-examined about the notes and he gave an explanation for them, and for the difference in the evidence he later gave at trial. The jury had the advantage of hearing and seeing him give that evidence. In my view it was open for them to accept that explanation. That is particularly so in light of the fact that, as they were directed, and as is recognised by s 54D of the Jury Directions Act, that experience shows that people may not describe a sexual offence in the same way each time, that trauma may affect how people recall events, that it is common for there to be differences in accounts of a sexual offence, and that both truthful and untruthful accounts of a sexual offence may contain differences. It was, in that context, for the jury to decide whether or not this inconsistency in the complainant's account affected his credibility and reliability and whether they believed him. In my view it was open for them to conclude that this inconsistency was not fatal to accepting his evidence.

261 As for the other two matters, the second concerns the timing of the 'karate incidents'. Initially the complainant gave a range of years in which (and ages at which) the offending occurred. Later, he gave definite evidence of a single age, stating that he was certain that it occurred when he was 10. It may immediately be noted that that age fell within the range he had initially identified. It thus is not, strictly speaking, an inconsistency in and of itself. Rather, the inconsistency is the initial lack of certainty as to the timing of the events in issue, followed by a later certainty that he was 10. An inconsistency of that kind is relatively minor. Again one must bear in mind the matters set out in s 54D of the Jury Directions Act. Further, it would be open to a jury to have reasoned that the impending trial might prompt reflection on, and thus greater certainty about, the offending.

262 The third suggested 'internal inconsistency' involves a disparity between the complainant's account of where the first occasion of offending occurred, and his mother's account of what he told her about where the first occasion of offending occurred. His evidence was that the first incident was at JK and MM's house; whereas his mother's evidence was, the applicant submitted, that the complainant had told her that the first incident was at the family home. Strictly speaking, this is not an 'internal inconsistency'. Rather, it is an inconsistency (if it be one at all) between the complainant's evidence and his mother's evidence. Of course, the complainant's mother might have misremembered what she was told; that is not at all implausible, given that she would undoubtedly have been shocked to hear of what had occurred. That is, the jury might have believed the complainant and not his mother on this issue. And, again, one must bear in mind the matters set out in s 54D of the Jury Directions Act. Even if it be accepted that the complainant told his mother that the first incident occurred at the family home, but later gave evidence that it occurred at JK and MM's home, that would not be fatal to his credibility. It would not mean that the jury must have concluded that there was a reasonable doubt about the applicant's guilt.

263 It is also relevant to observe at this point that the jury was entitled to rely on the complainant's complaints to others about what had occurred. The complainant's then girlfriend, WA, gave evidence that in 2013 the complainant told her that he had been abused and raped by Mr Cavanaugh when he was a child.[57] This was said as an explanation for why the complainant did not want to have sex with WA on that particular occasion. WA pressed him as to why, and he said it was because his stepfather had sexually assaulted him. WA described him as distraught when the conversation occurred. Further, the complainant had been in a sexual relationship with WA for three and a half years, but had refused to have sex with her for around three months. WA's evidence about the circumstances of the complaint supports the credibility of what the complainant told her. The complainant also told his mother that Mr Cavanaugh had raped him since he was 8 years old. That conversation occurred in 2015.

264 Kaye JA gives little weight to the complaint evidence. However, the evidence came from two unrelated people, and the complaints were separated in time by over a year and were quite different in nature and in the circumstances in which they were made. The prosecution did not challenge the account given by either of those witnesses. If the jury accepted the evidence of WA and the complainant's mother, it provided evidence that supported the complainant's account of what had occurred. And, as the trial judge directed the jury, it was also relevant to an assessment of his credibility. The trial judge also told the jury that they were not to treat this evidence as independent of the complainant. In my view this evidence could quite properly have played a role in the jury's assessment of whether the charges were proved, and thus ought be given some weight in assessing whether it was open to the jury to reach a verdict of guilty.

265 I note for completeness that I agree with Kaye JA in so far as he has concluded that the prosecution's submissions concerning what were said to be inconsistencies in the applicant's evidence cannot be sustained.[58] That, however, is not sufficient for a conclusion that it was not open to the jury to find him guilty.

266 Finally, I note that the parties did not submit that this Court should view the recordings of the evidence and, in light of the High Court's remarks in Pell concerning whether and when an appellate court ought to view recordings of the evidence from the trial,[59] I consider it would not have been appropriate for us to do so in this case. It was not said that there was anything particular in the video-recordings that could only be discerned visually or by sound. In those circumstances, it is difficult for this Court to form a view on the applicant's credibility and certainly difficult for us to substitute our own view for that of the jury, which saw and heard the applicant give his evidence.

267 Ultimately, as explained above, I do not accept that most of the 'improbabilities' identified by the applicant are in fact improbabilities, let alone 'compounding improbabilities'. Of those identified, I accept that the offending in the presence of DS was improbable, and I also accept that the applicant suffered a forensic disadvantage by reason of DS's death, as well as by reason of JK's and MM's deaths. However, I do not consider that these matters were such as to mean that the jury, acting rationally, must have entertained a doubt as to the applicant's guilt.

268 As to the deaths of three potential witnesses, as I explained above I do not consider that this forensic disadvantage was one that, alone, was sufficient to render the trial unfair. Nor did the applicant contend that to be the case. Rather, his case was that this disadvantage together with other 'improbabilities' rendered the verdict unsafe. But once most of those 'improbabilities' are rejected, the cumulative effect of the matters on which the applicant relies is greatly reduced.

269 Further, the members of the jury were properly directed in relation to forensic disadvantage and the experience of the courts is that juries ordinarily heed the directions they are given.[60] As Maxwell P and Priest JA observed in Huynh v The Queen, the system of criminal trial by jury must proceed on the supposition that jurors will follow the directions that are given to them.[61] Their Honours quoted the following statement by Gleeson CJ in Gilbert v The Queen:

The criminal trial on indictment proceeds on the assumption that jurors are true to their oath, that, in the quaint words of the ancient oath, they hearken to the evidence and that they obey the trial judge's directions. On that assumption, which I regard as fundamental to the criminal jury trial, the common law countries have staked a great deal. If it was rejected or disregarded, no one - accused, trial judge or member of the public - could have any confidence in any verdict of a criminal jury or in the criminal justice system whenever it involves a jury trial. If it was rejected or disregarded, the pursuit of justice through the jury system would be as much a charade as the show trial of any totalitarian state. Put bluntly, unless we act on the assumption that criminal juries act on the evidence and in accordance with the directions of the trial judge, there is no point in having criminal jury trials.[62]

270 As to the inherent improbability that the offending the night before the applicant's wedding to the complainant's mother occurred in the presence of DS, who was sleeping, the members of the jury had the advantage of seeing and hearing the complainant and the applicant give evidence about that night (albeit via a recording). They also had the advantage of collective deliberation. This Court had none of those advantages.

271 As will be apparent, the applicant's case in this Court was, in substance, an attack on the credibility of the complainant. So too was his case at trial, where defence counsel relied on the same series of contentions as to inconsistency and improbability to suggest to the jury that it was 'reasonably possible' that the complainant had been 'telling you a tale'. The attack on credibility is, of course, unsurprising. As the trial judge told the jury in her charge, the issue in the trial was whether the prosecution had proved beyond reasonable doubt that 'the alleged offending actually occurred'. In order to convict, her Honour said, the jury had to be satisfied beyond reasonable doubt that the complainant's evidence was 'honest, accurate and reliable'.

272 It is necessary, therefore, to recall the High Court's observation in Pell that 'the assessment of the credibility of a witness by the jury on the basis of what it has seen and heard of a witness in the context of the trial is within the province of the jury as representative of the community'.[63] Thus, 'just as the performance by a court of criminal appeal of its functions does not involve the substitution of trial by an appeal court for trial by a jury, so, generally speaking, the appeal court should not seek to duplicate the function of the jury in its assessment of the credibility of the witnesses where that assessment is dependent upon the evaluation of the witnesses in the witness-box'.[64]

273 In the present case I note that, in the usual way, the jury were invited to draw on their experience and common sense in deciding the issues in the trial. For example, the prosecutor submitted to them that the key to deciding whether the complainant was telling the truth was to 'bring together ... your life experience, and importantly your common sense'. Similarly, the trial judge directed the jury that, in deciding whether a witness had told the truth, '[th]ere is no special skill involved. You need to use your common sense and collective life experience'. On the appeal, counsel for the applicant conceded that the jury could draw on their own experience in considering: (a) the possibilities about the degree of penetration; (b) whether someone in the complainant's position would or would not be likely to 'speak out' about the offending; and (c) how probable it was that an 8 year old would be allowed to push a lawnmower. The corollary of these matters, which counsel also accepted, is that appellate judges have no special aptitude in making these judgments.

274 The jury assessed the witnesses after seeing them give their evidence. The members of the jury brought to the task their collective common sense and experience. I see no basis for disturbing their assessment and substituting a different assessment, particularly when I have not had the benefit of seeing and hearing the witnesses give their evidence.

275 For the above reasons, in my opinion it was open for the jury to reach the verdict it reached, on the evidence before it. I would dismiss the appeal.

[1] To ensure that there is no possibility of identification of the complainant, this judgment has been anonymised by the adoption of a pseudonym in place of the name of the applicant.

[2] Bolton (a pseudonym) v The Queen [2021] VSCA 117; Bolton (a pseudonym) v The Queen [2021] VSCA 237.

[3] Bolton (a pseudonym) v The Queen [2021] VSCA 117, [18].

[4] Bolton (a pseudonym) v The Queen [2021] VSCA 237, [22].

[5] See, eg, Madafferi v The Queen [2017] VSCA 302, [11] (Priest, Hansen and Coghlan JJA).

[6] Liberato v The Queen [1985] HCA 66; (1985) 159 CLR 507, 515 (Brennan J); [1985] HCA 66 ('Liberato').

[7] M v The Queen [1994] HCA 63; (1994) 181 CLR 487, 492-3 (Mason CJ, Deane, Dawson and Toohey JJ); [1994] HCA 63; SKA v The Queen [2011] HCA 13; (2011) 243 CLR 400, 405-6 [11]-[14] (French CJ, Gummow and Kiefel JJ); [2011] HCA 13; Pell v The Queen (2020) 268 CLR 123, 146-7 [43]-[45] (Kiefel CJ, Bell, Gageler, Keane, Nettle, Gordon and Edelman JJ); [2020] HCA 12 ('Pell').

[8] (2016) 258 CLR 308; [2016] HCA 35 ('Baden-Clay').

[9] Ibid 329 [65] (French CJ, Kiefel, Bell, Keane and Gordon JJ) (citations omitted). See also Fennell v The Queen [2019] HCA 37; (2019) 373 ALR 433, 452 [81] (Kiefel CJ, Keane, Nettle, Gordon and Edelman JJ); [2019] HCA 37 ('Fennell').

[10] (1994) 181 CLR 487; [1994] HCA 53.

[12] Pell (2020) 268 CLR 123, 144-5 [37]-[39] (Kiefel CJ, Bell, Gageler, Keane, Nettle, Gordon and Edelman JJ); [2020] HCA 12 (citations omitted). See also Fennell [2019] HCA 37; (2019) 373 ALR 433, 452 [81] (Kiefel CJ, Keane, Nettle, Gordon and Edelman JJ); [2019] HCA 37.

[13] Henderson v The Queen [2021] VSCA 312, [75] (Priest, Kyrou and T Forrest JJA)

[14] [1989] HCA 60; (1989) 168 CLR 79, 91 (Brennan, Dawson and Toohey JJ), 108-9 (McHugh J); [1989] HCA 60.

[16] R v Manunta [1989] SASC 1628; (1989) 54 SASR 17, 23 (King CJ) ('Manunta'); R v Birks (1990) 19 NSWLR 677, 690 (Gleeson CJ) ('Birks'); R v Laz [1998] 1 VR 453, 464 (Ormiston and Charles JJA, Vincent AJA) ('Laz'); R v Foley [2000] 1 Qd R 290, 291-2 (De Jersey CJ, Thomas JA and Derrington J) ('Foley'); MWJ v The Queen [2005] HCA 74; (2005) 222 ALR 436, 449 [41] (Gummow, Kirby and Callinan JJ); [2005] HCA 74 ('MWJ'); R v Morrow [2009] VSCA 291; (2009) 26 VR 526, 528 [2]-[6] (Nettle JA); [2009] VSCA 291 ('Morrow'); Hofer v The Queen [2021] HCA 36, [28]-[29] (Kiefel CJ, Keane and Gleeson JJ) ('Hofer').

[17] MWJ [2005] HCA 74; (2005) 222 ALR 436, 441 [19] (Gleeson CJ and Heydon J), 448-9 [39]-[41] (Gummow, Kirby and Callinan JJ); [2005] HCA 74.

[18] Ibid 449 [41] (citation omitted), see also 440-1 [18] (Gleeson CJ and Heydon J). See also R v Ferguson [2009] VSCA 198; (2009) 24 VR 531, 586-7 [276]-[278] (Maxwell P, Buchanan and Weinberg JJA); [2009] VSCA 198; R v Coswello [2009] VSCA 300, [7]-[8] (Nettle JA); Hofer [2021] HCA 36, [29] (Kiefel CJ, Keane and Gleeson JJ).

[19] R v Rajakaruna [No 2] [2006] VSCA 277; (2006) 15 VR 592, 607 [49] (Redlich JA); [2006] VSCA 277 ('Rajakaruna [No 2]').

[20] (1998) 193 CLR 1; [1998] HCA 2.

[21] [2008] VSCA 75; (2008) 18 VR 644, 653-4 [38]-[39]; [2008] VSCA 75 ('Klamo').

[22] Ibid 645 [39] (emphasis in original) (citations omitted), quoting Libke v The Queen [2007] HCA 30; (2007) 230 CLR 559, 596-7 [113]; [2007] HCA 30. Gleeson CJ and Heydon J agreed with Hayne J.

[23] M v The Queen [1994] HCA 63; (1994) 181 CLR 487, 493-5, 501-5, 508-9, 525; [1994] HCA 63.

[24] See Pell v The Queen [2019] VSCA 186, [23] (Ferguson CJ and Maxwell P); Klamo [2008] VSCA 75; (2008) 18 VR 644, 653-4 [40] (Maxwell P); [2008] VSCA 75; R v Shah [2007] SASC 68, [4] (Doyle CJ).

[25] Morabito v The Queen [2007] NSWCCA 126, [34] (Mason P).

[26] [2016] HCA 35; (2016) 258 CLR 308, 329 [65] (French CJ, Kiefel, Bell, Keane and Gordon JJ); [2016] HCA 35 (emphasis added) (citations omitted).

[27] Pell (2020) 268 CLR 123, 144-5 [37] (Kiefel CJ, Bell, Gageler, Keane, Nettle, Gordon and Edelman JJ); [2020] HCA 12 (citations omitted).

[28] [1994] HCA 63; (1994) 181 CLR 487, 494 (Mason CJ, Deane, Dawson and Toohey JJ); [1994] HCA 63.

[29] Pell (2020) 268 CLR 123, 145 [39] (Kiefel CJ, Bell, Gageler, Keane, Nettle, Gordon and Edelman JJ); [2020] HCA 12 (emphasis added) (citations omitted).

[30] Ibid 164-5 [119]. See also 166 [127].

[31] I note that I am not considering statistical evidence of the kind led in relation to DNA and other scientific analyses, where probabilities may well be relevant to the assessment undertaken; see, eg, the discussion in Aytugrul v The Queen (2010) 247 CLR 170; [2012] HCA 15.

[32] Pell v The Queen [2019] VSCA 186, [1063]-[1064], where his Honour said this (citations omitted):

Mr Walker's point, in oral argument before this Court, was really an application of what statisticians call 'the product rule' of probability theory. That rule postulates that the probability of the joint occurrence of mutually independent events equals the product of the individual probabilities of each of the events.

In order for the complainant's account to be capable of being accepted, a number of the 'things' set out by Mr Richter ... had to have taken place within the space of just a few minutes. In that event, the odds against the complainant's account of how the abuse had occurred, would have to be substantial. The chances of 'all the planets aligning', in that way, would, at the very least, be doubtful. This form of 'probabilistic analysis', if properly applied, suggests strongly to me that the jury, acting reasonably, on the whole of the evidence in this case, ought to have had a reasonable doubt as to the applicant's guilt.

[33] [1985] HCA 66; (1985) 159 CLR 507, 515 (Brennan J); [1985] HCA 66.

[34] See, eg, [81]-[87], [153], [156], [160] above.

[35] See [29] above.

[36] McGee (a pseudonym) v The Queen [2020] VSCA 146, [137], quoting R v FJL [2014] VSCA 57; (2014) 41 VR 572, 580 [38] (Osborn JA, Redlich JA agreeing at 589 [90], Sifris AJA agreeing at 589 [91]); [2014] VSCA 57.

[37] Hermanus v The Queen [2015] VSCA 2; (2015) 44 VR 335, 342-3 [40] (Priest JA, Maxwell P agreeing at 336 [1]); [2015] VSCA 2, cited with approval in Morton (a pseudonym) v The Queen [2020] VSCA 49, [95] (Beach and Kyrou JJA).

[38] See, eg, [28], [45], [62] above.

[39] See [144] above.

[40] See [145] above.

[41] [2005] HCA 74; (2005) 222 ALR 436, 441 [19] (Gleeson CJ and Heydon J); 448-9 [39]-[41] (Gummow, Kirby and Callinan JJ); [2005] HCA 74. His Honour also refers to Hofer [2021] HCA 36, [28]-[29] (Kiefel CJ, Keane and Gleeson JJ); Manunta [1989] SASC 1628; (1989) 54 SASR 17, 23 (King CJ); Birks (1990) 19 NSWLR 677, 690 (Gleeson CJ); Laz [1998] 1 VR 453, 464 (Ormiston and Charles JJA, Vincent AJA); Foley [2000] 1 Qd R 290, 291-2 (De Jersey CJ, Thomas JA and Derrington J); Morrow [2009] VSCA 291; (2009) 26 VR 526, 528 [2]-[6] (Nettle JA); [2009] VSCA 291.

[42] Rajakaruna [No 2] [2006] VSCA 277; (2006) 15 VR 592, 607 [49] (Redlich JA); [2006] VSCA 277.

[43] See [152] above.

[44] See [157] above.

[45] See [244] above.

[46] See [162] above.

[47] See, eg, Schulz v The Queen [2019] VSCA 179, [93] (Maxwell P, Niall and Weinberg JJA); O'Brien (a pseudonym) v The Queen [2014] VSCA 94, [67] (Nettle JA).

[48] See [162] above.

[49] See [235] above.

[50] See [166] above.

[51] See [168] above.

[52] See [169] above.

[53] See [169] above.

[54] See [170] above.

[55] See [170] above.

[56] See [176] above .

[57] See, eg, [52], [75] above.

[58] See [183]-[193] above.

[59] (2020) 268 CLR 123, 144 [36] (Kiefel CJ, Bell, Gageler, Keane, Nettle, Gordon and Edelman JJ); [2020] HCA 12.

[60] See, eg, Dun (a pseudonym) v The Queen [2021] VSCA 286, [40].

[61] [2020] VSCA 222, [44] (Priest JA, Maxwell P agreeing at [1]).

[62] (2000) 201 CLR 414, 425 [31]; [2000] HCA 15.

[63] (2020) 268 CLR 123, 144 [37] (Kiefel CJ, Bell, Gageler, Keane, Nettle, Gordon and Edelman JJ); [2020] HCA 12.