1. In 2014, the applicant, who was then 44 years of age, commenced a relationship with Sara Anderson.[4] The applicant had previously been married and there were three children of that relationship, namely, two sons and one daughter. Sara Anderson had two children from a previous relationship, namely, Rachel (born in March 2011) and Shaun[5] (born in June 2009). The applicant and Sara Anderson married in 2014. After they married they had another child, Ruby,[6] who was born in 2016.
2. Initially, the applicant and Ms Anderson, and the children, lived together in premises in Langwarrin. Subsequently, in October 2018, they moved to premises in Frankston South, where they lived for about two years. In early October 2020, they moved to a third residence, again in, Langwarrin. The offending was alleged to have occurred between 9 October 2018 and 5 October 2020 at the Frankston South premises. At the time the complainant was aged between seven years and nine years.
3. The offence that was the subject of charge one on the indictment - sexual penetration of a stepchild - was alleged to have occurred when the applicant put the complainant to bed and laid down on her bed next to her. As he did so, he quickly inserted his finger in and out of the complainant's vagina. It was alleged that the applicant had carried out such conduct 'once or twice' previously.
4. The offences that were the subject of charge two - sexual assault of a child under 16 years - were alleged to have occurred when the complainant was in bed. The applicant entered the bed, got under the bed covers, removed his trousers, and placed the complainant's hand on his penis. The complainant tried to move her hand away but the applicant kept putting it back on his penis. He used the complainant's hand to masturbate himself until he ejaculated. In her evidence, the complainant stated that that kind of conduct had occurred a number of times previously.
5. The offence that was the subject of charge three - sexual assault of a child under 16 years - was alleged to have occurred when the complainant was lying with the applicant on her bed, on top of the covers, because it was hot. The applicant placed his hand into the complainant's pyjama shorts and touched the outside of her vagina. He then rubbed her vagina in a back-and-forth motion. The complainant stated that that conduct had occurred on a number of occasions. The second occasion on which the conduct occurred was the subject of charge three.
6. In addition to the conduct that was the subject of the three charges, the prosecution also relied on the following evidence as tendency evidence:

(1) Evidence of the same conduct as that alleged for charges two and three, but which took place on other occasions;

(2) Evidence that the applicant would place the complainant on top of him while lying in her bed and rub his penis against her vagina;

(3) Evidence that the applicant would position the complainant, while he was seated in the armchair in the loungeroom, in a position so that his penis would rub against the complainant's vagina;

(4) Evidence that the applicant would make contact with the complainant's vagina at times when they were both in the shower together; and

(5) Evidence that on one occasion the applicant kissed the complainant on the mouth with his tongue.

1. The complainant's evidence was that she first told her mother about the offending on 11 November 2020. On the following day, 12 November 2020, the complainant participated in a VARE interview at the Frankston Sexual Offences and Child Abuse Investigation Team (SOCIT). On 13 November 2020, a pretext telephone call took place between the applicant and Sara Anderson, in which the applicant denied the offending. On the same day, the applicant was interviewed by Police at the Frankston police station. In the interview he denied each of the allegations that were put to him.

The application to cross-examine witnesses pursuant to Section 342 of the Criminal Procedure Act 2009

1. Before the commencement of the trial, the applicant made an application, under s 342 of the Criminal Procedure Act 2009, to cross-examine witnesses as to the fact that the complainant had previously alleged that she had been sexually assaulted by the applicant's father, TA,[7] in December 2018, and that as a result she had been taken to the South Eastern Centre Against Sexual Assault (SECASA) for the purposes of counselling over a period of about 18 months.
2. In submissions before the judge, counsel for the applicant noted that shortly before Christmas 2018, Ms Anderson discovered that the applicant's father, TA, had been sexually assaulting the complainant. As a consequence, she reported the matter to the police, and the complainant participated in a VARE. A prosecution was commenced against TA. Counsel also noted that as a consequence of the report, the complainant had been referred to SECASA commencing in February 2019. She had continued her counselling with SECASA up until November 2020. In the meantime, TA had been found unfit to stand trial and ultimately the charges against him were discontinued in November 2020. It was submitted by counsel for the applicant that the relevance of the cross-examination was that the complainant did not disclose to SECASA, during the counselling sessions, or to her mother, the offending alleged against the applicant. Counsel noted that she would not be seeking to cross-examine the complainant concerning the substance of the allegations made against the applicant's father.
3. As noted, the prosecutor did not oppose the application. The judge granted the applicant's counsel leave to cross-examine the complainant concerning the allegations as to sexual assault by the applicant's father, for the purpose of establishing that while the complainant was receiving counselling concerning those allegations, she did not disclose that the applicant also had been offending against her.
4. The proposed ground of appeal derives from the nature and limited scope of the leave given to counsel for the applicant to cross-examine witnesses concerning the sexual offences committed against the complainant by the applicant's father in 2017 and 2018. It is submitted that, in the context of the information available to the prosecution concerning the sexual offences alleged to have been committed against the complainant by the applicant's father, the prosecutor occasioned a substantial miscarriage of justice by contending in final address that the complainant would not have been able to describe the sexual acts, allegedly performed upon her by the applicant, unless the applicant in fact had performed those acts upon her.

1. For the purpose of determining the proposed ground of appeal, it is necessary, first, to summarise the relevant evidence given at the trial.
2. As noted, the evidence in chief of the complainant comprised the content of the VARE in which she participated on 12 November 2020.
3. In the VARE, the complainant commenced by describing a number of different sexual acts which she alleged the applicant had committed in respect of her. She stated that on occasions the applicant pulled his pants down and placed her hand on his 'private part'. On other occasions he would place her on top of him and push her down. When she was in the shower he would look at her 'private parts' and sometimes come in the shower with her. On those occasions the applicant would hold on to her by the shoulders and give her a push so that her back touched his 'private part'. In addition, when he washed her body he also washed her 'private parts'. The complainant also stated that the applicant would lie with her and come close to her when she was in the cubby house.
4. The complainant then described the circumstances that were the subject of charge three. She said that while her family was living in the Frankston South house, and after she had exchanged her bedroom with that of her sister, the applicant would start lying with her and putting his hands in her pants and touching her 'private part'. She said the second occasion, on which that occurred, was on a really hot day when she was not under the blanket. On that occasion, the applicant put his hand inside her pants and pushed on her 'private part'. She said the first time that occurred she felt 'grossed out and uncomfortable'.
5. The complainant described other uncharged acts, which included an occasion when the applicant made her go on top of him, and the applicant moved her down so that her 'private part' was on top of his 'private part', and he was going 'up and down'. She also said that on other occasions the applicant forced her to sit on his lap and that it was uncomfortable because he put his legs on top of her legs and went 'forwards and backwards'.
6. The complainant next described the circumstances that were the subject of charge two. She said that the applicant grabbed her hand and put it on his 'private part', and she said 'I don't know how but my hand gets wet'. She said that when the applicant left her room she would go and wash her hand with soap. She said that the incident occurred when the applicant grabbed her hand and pushed it and made her hand go under his 'private part'. She said that she tried to get her hand away but the applicant kept on grabbing her hand and putting it back.
7. The complainant then described further instances of conduct by the applicant that were uncharged acts. They included a description of how the applicant put her on top of him and pulled her pants down and also pulled his pants down and then he put his penis in her vagina. She said on other occasions the applicant sat and put her legs between his legs with her back leaning against him.
8. Finally, the complainant described the circumstances that were the subject of charge one. She said that he put his finger in her vagina once or twice, and on those occasions she felt 'grossed out and uncomfy'.
9. The complainant then described other uncharged acts by the applicant. She said that when she was in the cubby house alone, the applicant would come and do 'the things'. He would put his leg up around her and kiss her with his tongue and wet lips.
10. The complainant was cross-examined by counsel for the applicant at a special hearing before the commencement of the trial. The cross-examination was directed to demonstrating that the relationship between the applicant and the complainant was normal. She agreed that after the family moved to the Frankston South house, the applicant would sometimes put her to bed. She agreed that it would sometimes take a long time for her to go to bed and go to sleep, and that the applicant would help her get to bed and lie down on the bed with her. Sometimes he would also lie on the floor of her room and she would fall asleep. On some of those occasions, the applicant also fell asleep. She said that she slept with her door open.
11. Counsel then questioned the complainant concerning the applicant's father. She said that her mother found out that the applicant's father ('Pop') had been touching her. At the time, she was seven or eight years of age. She agreed that after her mother found out about Pop, she spoke to the Police and participated in a video interview, and she ended up speaking to someone from SECASA. She went on a few occasions to SECASA to speak to a counsellor. Initially she went to SECASA once each week, but later it became once per month. The complainant agreed that the people at SECASA were nice to her and they gave her things like Milo. She also played games there and it was a place that she liked going to. She also agreed that after her mother found out about 'Pop' and she went to SECASA, her mother was nicer to her. She disagreed with the proposition that she told her mother that the applicant had been touching her, because she liked going to SECASA and wanted to keep doing so.
12. In further cross-examination, it was put to the complainant that the applicant never used her hand to touch his penis. The complainant, in response, stated that he did do that. Counsel also put to the complainant that the applicant never touched her vagina. In response, the complainant said that he did do so. The complainant agreed that the first occasion on which she told her mother, that the applicant had touched her, was the night before they went to the police and made the video. She said that she did not previously tell her mother that the applicant had touched her. She also said that her mother was the first person that she told about the applicant's behaviour.
13. The complainant's mother, Sara Anderson, gave evidence. She said that in about 2017 the complainant disclosed to her that the applicant's father had done sexually inappropriate things to her. Subsequently, after a discovery in 2018, Ms Anderson went to the police about the matter. As a consequence, the complainant was introduced to counsellors at SECASA in Seaford.
14. Ms Anderson said that at some point at the beginning of 2018, the complainant also mentioned to her that the applicant had touched her. The complainant did not give her any details and she did not ask the complainant for any details. Ms Anderson confronted the applicant, and in response he denied any wrongdoing and became angry. Ms Anderson said that on one occasion, when she walked past the complainant's bedroom, she heard the applicant say something to her about how to 'kiss boys'. Ms Anderson opened the door and told the applicant he did not need to be there anymore.
15. Ms Anderson then gave evidence concerning the circumstances in which the complainant told her, on 11 November 2020, that the applicant had been touching her inappropriately. When Ms Anderson asked her as to what the applicant had done, the complainant said that he would lie in bed with her, and put his hand inside her underwear. The complainant also said that the applicant would get her to roll on top of him and grab her hips and move them backwards and forwards on top of his 'private part'. Also, the applicant would sometimes put her hand inside his pyjama pants and have her hold his penis, and on those occasions it was very hot and sticky and wet. The complainant also told Ms Anderson that when the applicant used to shower her, he would rub his 'private parts' against her back and wash her 'private parts' with soap. On other occasions, he would kiss her with his tongue.
16. Ms Anderson said that after the complainant revealed those matters to her, she did not speak to the applicant that night. On the following day, she contacted SECASA, and then went to speak to the police and SECASA about what had happened. Having done so, and on the advice of SECASA, Ms Anderson packed personal items, picked up the children from school and kindergarten, and took them to the Frankston police station, where the complainant was interviewed privately with police. On the following day, Ms Anderson participated in a pretext telephone conversation with the applicant, a recording of which was tendered in evidence in the trial.
17. In her evidence Ms Anderson described the layout of the Frankston South house. She said that the applicant and herself, and the complainant and her younger sister Ruby, would all use the downstairs shower. On occasions, the applicant would take the complainant to the shower and on some of those occasions he would go in the shower with her. Ms Anderson explained that that was 'normal and natural', because she herself grew up in Finland where nudity was quite normal. She explained that the complainant did need assistance in washing her hair, but she did not need assistance to wash herself.
18. Ms Anderson also explained that the applicant, who worked in his own business, would generally arrive home at about 7:00 pm or 8:00 pm. If the complainant was still up, he would try to help put her to bed and lie down with her, while Ms Anderson was putting Ruby to bed. On some nights, Ms Anderson would find the applicant lying in bed with her fast asleep. She did not observe anything inappropriate happen between the complainant and the applicant in the bedroom. She also said that on occasion she would see the complainant sitting on the applicant's lap on the couch in the loungeroom while they were watching television.
19. Ms Anderson said that in the weeks leading up to 11 November 2020 the applicant gave the complainant the 'silent treatment'. He told her that he wanted to start doing things without Shaun and the complainant. During that time, the applicant would not talk to the complainant or look at her, and Ms Anderson herself also received the silent treatment. When Ms Anderson asked him why he was giving the complainant the silent treatment, the applicant said that he was teaching the complainant a lesson about something. Ms Anderson said that before the complainant told her what the applicant had done to her on 11 November 2020, Ms Anderson's marriage with the applicant had been deteriorating.
20. In cross-examination, Ms Anderson agreed that the complainant had struggled in focussing at school, and that she had some anger outbursts when she came home from school. In addition, she would lose concentration quite quickly. During the lockdown period, it was difficult to get the complainant to do her school work at home, and to focus on it. Ms Anderson agreed that the complainant had a short temper and that she could get very angry and upset to the point that she could become hysterical. She agreed that, on those occasions, the applicant would need to give the complainant a big hug when he got home if she herself was not able to do so. In addition, the complainant had difficulty falling asleep, which was a side effect of medication that she was prescribed for her emotional problems. During that time, the complainant started to refer to the applicant as 'Dad' or 'Daddy'. She would become upset if the applicant gave her the 'silent treatment'.
21. Ms Anderson said that in the week before 11 November 2020 the applicant had been giving the complainant the silent treatment, after the complainant had revealed to her own father the conduct of the applicant's father.
22. Ms Anderson agreed that the shower cubicle in the downstairs bedroom in the Frankston South house was small. The shower could be accessed through the bedroom. She agreed that she had taught her children not to be ashamed of nudity or of their bodies. She also agreed that when she was putting Ruby to bed at night, the applicant would assist by putting the complainant to bed.
23. Counsel for the applicant then questioned Ms Anderson about the applicant's father. Ms Anderson said that she first became aware about the applicant's father's conduct in late 2017. She did not then go to the police about the matter. The applicant told her that he had spoken to his father and told him that he must keep away from the complainant. Subsequently, on Christmas Eve of 2018, Ms Anderson became aware of a matter that concerned her about the applicant's father, and it was then that she went to the police. As a result, the complainant participated in a recorded VARE, and started attending SECASA. The complainant started to see her counsellor in March or April 2019. Initially, the complainant went to SECASA weekly, but subsequently she did so once per fortnight.
24. Ms Anderson confirmed that the first time the complainant told her that the applicant had touched her was in February 2018. As a consequence, Ms Anderson confronted the applicant and he denied it, and became angry. Subsequently, she kept a close eye on the complainant and the applicant. On one occasion, she overheard a conversation in which the applicant told the complainant how to 'kiss boys'. On that occasion, Ms Anderson went into the bedroom and told the complainant to go out.
25. Ms Anderson confirmed that on 13 November 2020 she participated in a recorded telephone conversation with the applicant (the pretext call). That call was the first occasion upon which she had spoken to the applicant after she had left the house on 12 November 2020.
26. Shaun Davis, who was then 12 years of age, also participated in a VARE interview, which became his evidence in chief at the trial. In the course of the VARE he said that the applicant would ignore the complainant a lot, but on other occasions he would lie down with her. He would see her tickling the complainant and 'pinning' her in her bedroom and around the kitchen area. Shaun said that the applicant had laid with him on a couple of occasions to say goodnight. He said that the complainant had told him that it was annoying when the applicant was in bed with her, because he was so big and he would roll around and push her against the wall as a joke. Shaun said that when the applicant ignored the complainant, she would become quite upset. Shaun also said that the complainant did not like it when the applicant laid with her because he would squash her, and she also did not like it because he would tickle her and sometimes it would hurt. On the night before they attended the police station, the complainant had told him that the applicant had been touching her 'weird', and the complainant pointed to her arms and her vagina area. At that time, the complainant looked worried and scared. She told Shaun that the applicant had touched her and it was painful in some areas, which included her vagina. The complainant also told her that the applicant had his penis out and that he was rubbing it on her.
27. The final witness for the prosecution was Detective Senior Constable Laura Holtzinger, the informant. Detective Holtzinger gave evidence concerning the circumstances in which she first became aware of the allegations that are the subject of this proceeding. Relevantly, in cross-examination, Detective Holtzinger stated that in the course of the investigation she became aware that on 29 December 2018 Ms Anderson had contacted police about allegations that the applicant's father had inappropriately touched the complainant. Detective Holtzinger confirmed that if the complainant had told a counsellor at SECASA that the applicant himself had also inappropriately touched her, SECASA would have been obligated to report that matter to the police, and no such report was received by police.
28. As already noted, the applicant participated in a recorded interview with police on 13 November 2020. In the course of the interview, he denied each of the allegations made by the complainant as the inappropriate contact between them.
29. Finally, TB,[8] the applicant's daughter, gave evidence on behalf of the applicant. She said that when she was staying with her father after his separation from her mother, she herself was sexually abused by her grandfather for several years. TB said that her own relationship with the applicant was very good. She lived with the applicant, Ms Anderson and her children between about September 2019 and January 2020 in the Frankston South property. She said that the applicant had a normal relationship with the complainant. When she was told the complaint made by the complainant to police in November 2020, TB was 'super shocked'. She said that the applicant never did anything to make her feel uncomfortable sexually and he never touched her in a sexual way.

1. As we have noted, the proposed ground of appeal is focussed on some submissions made by the prosecutor, in final address, to the effect that the complainant would not have been able to describe the sexual offending which she alleged had been committed by the applicant, unless that offending had actually occurred. In order to consider the proposed ground of appeal it is necessary to set out in a little detail the content of the prosecution final address, and the final address by the applicant's counsel.
2. The prosecutor's address consisted of two principal sections. First, the prosecutor summarised, in a little detail, the evidence of the complainant concerning the offending that was the subject of the three charges. Having done so, the prosecutor then made a number of submissions as to why the jury should believe what the complainant said actually happened to her at the Frankston South property.
3. The prosecutor commenced that part of his address by referring to 'matters of common sense'. He said that there is a 'harsh reality' that sexual abuse of children within a family does occur, often because some grown men are sexually attracted to young children. In such cases, the perpetrator is able to rely on the child's vulnerability and ignorance and sense of powerlessness. The prosecutor submitted that the present case was one such case.
4. The prosecutor then submitted, first, that the complainant had been consistent in her evidence of all the essential aspects of her claims against the applicant, both when she spoke to her mother, and also when she was interviewed by police. Secondly, counsel submitted that the manner and circumstances, in which the applicant first disclosed the offending to her mother, supported the truthfulness of the allegations that she made against the applicant. Counsel noted that in cross-examination the complainant rejected the suggestion that she had fabricated her allegations, because she was annoyed at the applicant for ignoring her.
5. The prosecutor then made particular submissions, that are the subject of the proposed ground of appeal, and which we will set out in more detail later in these reasons. In summary, the prosecution commenced by stating to the jury that it must take into account the complainant's age. He contended that the jury would not expect any eight or nine year old child to know anything about the matters which the complainant described in her evidence, unless they actually occurred. Counsel noted that in her VARE interview, when asked as to her knowledge of sexual matters, the complainant's knowledge was most limited, and she was fundamentally ignorant about the matter.
6. The prosecutor noted that the complainant described in detail some of the sexual conduct, which she alleged the applicant had engaged in, either with or in her presence. He said that the description that she gave was exactly the kind of description that would come from a nine year old girl who was 'completely ignorant of sexual matters'. He submitted that in that way the complainant had been honest in trying her best to give a full description of what she understood. For example, her description of the blanket being wet after the applicant engaged in sexual activity with her, was the kind of description of semen that would be expected from someone who did not know what it was.
7. The prosecutor also submitted that the jury should take into account what the complainant said about the applicant taking steps to conceal his wrongdoing. The complainant said that the applicant would make sure that no one was around, and that he would stop his conduct when he heard someone coming.
8. The prosecutor next asked the jury to consider why the complainant did not immediately tell her mother the first time the conduct occurred. He explained that the applicant was her step-father, and that she was scared to reveal to her mother what had occurred.
9. The prosecutor next noted that the applicant spent a lot of time alone with the complainant, so he had 'every opportunity' to perpetrate the sexual misconduct. The prosecutor noted that in February 2018, in the Langwarrin home, Ms Anderson had overheard the applicant having a conversation with the complainant alone, in which the applicant talked about the complainant kissing boys. The prosecutor submitted that in hindsight that conversation was a 'huge clue'.
10. The prosecutor also submitted that the evidence about the complainant's misbehaviour was a 'red herring'. If such misbehaviour occurred, it was entirely consistent with the applicant having abused the complainant. The prosecutor then submitted that the evidence relating to the applicant's father engaging in sexually inappropriate behaviour against the complainant, was not relevant. He submitted that that evidence was a distraction and it had nothing to do with the case. The prosecutor contended that there was no suggestion that the complainant's allegations against the applicant had anything to do with the applicant's father.
11. Finally, the prosecutor submitted that the complainant's evidence was credible, because she did not add to, or embellish, her account when she had the opportunity to do so. In fact she denied that the applicant had engaged in a number of particular acts of sexual misconduct that were put to her during the VARE.
12. In response, counsel for the applicant submitted to the jury that the complainant had reasons to fabricate her evidence. First, at the time of 11 November 2020, the applicant had been ignoring the complainant and giving her the 'silent treatment', which the complainant did not like. In addition, it was submitted, the complainant had a motive to make up the allegations against the applicant, so that her mother would be nicer to her, and also so that she could continue to have counselling at SECASA. In that context, counsel referred to the evidence of the complainant that after the allegations concerning the applicant's father, her mother had been kinder to her, and she had been treated well when she went to SECASA. By November 2020 the complainant's visits to SECASA had ceased.
13. Counsel for the applicant then turned to the question as to how the complainant knew what to say about the alleged offending, if it was not true. Counsel responded to that question by noting that the complainant had previously participated in a VARE interview concerning the applicant's father. She had also attended a program about sexual safety at SECASA, after the allegations had been revealed concerning the applicant's father's conduct to her.
14. Counsel then proceeded to submit to the jury that there were a number of matters in the complainant's account that did not 'add up', and that were inconsistent with other evidence. In that respect, he noted that no one saw or observed anything untoward during the time of the offending. The complainant was inconsistent as to whether the offending commenced in the Langwarrin house or in the Frankston South house. In her evidence, the complainant said that she did not need assistance when washing her hair, but that evidence was contradicted by her mother, Ms Anderson. While the complainant had complained that as a result of the applicant's conduct her blanket became wet on five or six occasions, Ms Anderson never saw anything untoward on the complainant's sheets or doona cover.
15. Counsel then advanced a number of reasons why the jury should accept the denials made by the applicant of any wrongdoing. In particular, the applicant had no previous convictions. His daughter, TB, had described him as a kind and caring parent. The applicant had reacted with shock and disgust when Ms Anderson spoke to him in the pretext call. Further, it was submitted, his reactions during the interview with police were sincere and genuine. In addition, it was noted that the applicant described a number of important relevant matters in his interview that were confirmed by other witnesses. He also made reasonable concessions, for example, that he did on occasion touch the complainant's bottom when they were sitting together on the couch.
16. Finally, counsel submitted that if the allegations were true, the complainant would have spoken about them earlier. In that context, counsel noted the evidence of Ms Anderson that the complainant had mentioned inappropriate conduct by the applicant to her mother in February 2018. In her evidence, the complainant denied having done so. It was submitted that if in fact the offending had occurred, the complainant would have remembered telling her mother about it.
17. Further, counsel submitted that the complainant had every opportunity to say something about the applicant's conduct between October 2018 and October 2020. In particular, she could have told her mother or brother about it. In addition, the complainant could have told the staff at SECASA during that time that the applicant was also offending against her. In that respect, counsel noted that the complainant had said that she liked going to SECASA and she liked the people there. She played games at SECASA, and felt that it was a safe place. During that time she attended a safety program at SECASA. Counsel submitted that in those circumstances, if the applicant's alleged offending really did occur, the complainant would have told staff at SECASA about it.
18. In addition counsel noted that the complainant had an interview with police about the applicant's father on 3 January 2019. During that interview, she said nothing about the applicant's conduct. Counsel concluded that part of the submissions by stating the following:

She had [a] disclosure interview with police about [the applicant's father] on 3 January 2019 and she said nothing. She did the VARE about [the applicant's father] on 5 January 2019 and said nothing. SECASA counselling, March or April 2019 to September 2019, and then two sessions at SECASA after that, and she said nothing. Meeting with police or prosecutors or support workers about [the applicant's father's] case... It is not conceivable... that if these terrible things are going on during that time that she would not have told somebody; one of those people.

1. Finally, in that context, counsel noted that the complainant did not give evidence that the applicant had instructed her not to tell anyone concerning his conduct.

Application for leave to appeal - Submissions

1. In support of the proposed ground of appeal, counsel for the applicant submitted that some of the alleged sexual assaults, committed against the complainant by the applicant's father, involved conduct that was identical to some of the conduct that the complainant alleged was involved in the charged offences that were the subject of the applicant's trial. In particular, counsel noted that the conduct that had been alleged to have been committed by the applicant's father involved the following acts: kissing the complainant with his tongue; placing his penis on the complainant's face; exposing his penis to the complainant; asking the complainant to suck his penis on many occasions; telling the complainant that he would have sex with her; and touching, rubbing and digitally penetrating the complainant's vagina. In addition, on one occasion, there was reference to the applicant's father's penis being 'wet'.
2. Counsel for the applicant noted that the application to cross-examine the complainant and other witnesses in the present case was restricted to the fact that the complainant had previously made a complaint of sexual offending against her by the applicant's father, and that she had previously received counselling and support in respect of that complaint. Counsel submitted that the prosecutor must have been aware that there was evidence that the complainant had in fact previously been exposed to a wide range of sexual acts at the hands of the applicant's father, at the time at which she participated in the VARE interview and made a complaint to the police concerning the applicant. In addition, if the evidence of the previous sexual assaults had been before the jury in the present case, the applicant would have had a ready response to the question, posed by the prosecutor, as to how the complainant had been able to describe the sexual acts allegedly committed against her by the applicant, if in fact the applicant was innocent. Accordingly, counsel submitted, the jury was invited to reach a conclusion about the applicant's guilt based on a premise that everyone in the trial, except the jury, should have known was incorrect.
3. Counsel further noted that in his charge to the jury, the trial judge referred to the submissions made by the prosecutor and reminded the jury that the submissions had been directed to one of the two 'objectives' upon which the prosecutor had focussed in his final address. It was submitted that those directions would have reinforced in the minds of the jury that the proposition advanced by the prosecutor in final address was an available pathway to a finding of guilt. For those reasons, it was submitted that a substantial miscarriage of justice has occurred as a result of the submissions advanced by the prosecutor in final address.
4. In response, counsel for the respondent noted that counsel for the applicant at the trial did not make any application to cross-examine the complainant, or any other witness, about the details of the allegations concerning the applicant's father. The defence application to cross-examine the complainant and other witnesses, concerning those matters, was directed to establishing that the complainant had had the opportunity to inform SECASA about the applicant's offending over a period of about 18 months, but that she did not do so. Counsel for the applicant, in her final address, made that submission to the jury, and also submitted that the complainant had a motive to lie, namely, so that she could return to SECASA, where she had been treated kindly.
5. Counsel for the respondent noted that the critical question at the trial was the reliability and credibility of the evidence given by the complainant. In particular, at trial, counsel for the applicant submitted to the jury that the complainant had a motive to lie, and counsel also made submissions concerning behavioural issues of the complainant at school and at home. Thus, counsel for the respondent submitted, it was in that context that the prosecutor addressed the critical question at the heart of the trial, namely, the credibility and reliability of the evidence given by the complainant. Those submissions included that, as a matter of common sense, an eight or nine year old girl would not know about the sexual abuse, which was described by the complainant, unless she had actually experienced it.
6. Counsel for the respondent noted that at the trial counsel for the applicant did not take any exception to any aspect of the prosecutor's closing address. Counsel further submitted that each of the propositions advanced by the prosecutor in closing address, to which the proposed ground of appeal is addressed, were appropriate in the circumstances of the case. In particular, it was submitted, it was appropriate for the prosecutor to put to the jury that an eight or nine year old girl could not be expected to know about the matters described by the complainant in her evidence unless they actually occurred. Counsel noted that in the VARE the complainant was fundamentally ignorant about sexual matters, and it was appropriate for the prosecutor to contend that the description, that she gave of the offending, was the kind of description which would be given by a nine year old girl who was ignorant of sexual matters.
7. In addition, counsel for the respondent noted that the issue of the complainant's allegation against the applicant's father was a live matter at the trial. Indeed, the prosecutor adduced that evidence by agreement from the complainant's mother. Further, the evidence about the allegations against the applicant's father was elicited also by defence counsel, and was the product of a rational and forensic decision made in the context of a decision to attack the complainant's reliability and credibility.
8. For those reasons, it was submitted that the applicant has not established any error in connection with the convictions, and if any error has been established, it could not be fundamental or such a serious departure from proper trial processes as to have resulted in a substantial miscarriage of justice.

The impugned passages of the prosecutor's address

1. In order to consider the matters raised by the proposed ground of appeal, it is necessary to set out, in more detail, the relevant passages of the address by the prosecutor.
2. As we have noted, the prosecutor commenced that part of his address by putting to the jury that it must take into account that the complainant was only nine years of age at the time of the VARE. He said that that was 'one of the most important considerations' for the jury to take into account. He submitted that the jury would not expect an eight or nine year old girl to know anything about the matters that she described in her evidence 'unless they actually occurred'.
3. The prosecutor submitted that that proposition was a matter of common sense. In particular, he submitted that the jury would appreciate that there was 'absolutely no way' that it could be expected that an eight or nine year old girl would know about the things that the complainant had described in her evidence unless she had actually experienced them. The prosecutor noted that when the complainant was asked, in the VARE, about what she meant when she referred to 'sex', she said that it was when the boy 'goes under' and the girl 'on top' and their 'private parts touch' in circumstances in which they were naked. She said that 'you do it to have a baby'.
4. The prosecutor then submitted as follows:

That is the extent of [the complainant's] knowledge and experience of sexual matters when confronted what is sex. That is what she understands it to be. She is fundamentally ignorant of such matters and I ask you to accept that she is honest in telling... the police officer [what] she knows about that. And that then leads us to consider the descriptions that she gave as to [the applicant's] sexual offending. We know she knows nothing about sex. She's oblivious to it. Something about naked boys and girls and they end up making a baby, that's it.

1. The prosecutor then noted that the complainant had described 'in minute detail' the act of masturbation in which the applicant placed her hand on his 'private part' and when he finished she would go and wash her hands. The prosecutor then submitted:

That description is exactly the kind of description coming from a nine year old girl who is completely ignorant of sexual matters and that is why I ask you to accept that when she described it in that way, she was being honest and trying her best to give a full description that she understood in her own words.

1. It is quite apparent that, at the trial, defence counsel made a considered forensic decision not to adduce specific evidence concerning the offending that was alleged to have been committed by the applicant's father against the complainant. In considering the current application, it could not be maintained that decision was inappropriate. The conduct, that was the subject of charges one and three against the applicant, was very similar to the conduct which the complainant alleged had been engaged against her by the applicant's father. However, the conduct, that was the subject of charge 2, and a number of the uncharged acts which the complainant described being committed in respect of her by the applicant, were not referred to at all in the complainant's VARE relating to the applicant's father. In those circumstances, if defence counsel had sought to adduce evidence as to the specific nature of the conduct perpetrated by the applicant's father, it would have been open to the prosecution to make the point, quite specifically, to the jury, that the complainant did not allege that the applicant's father had committed a number of the uncharged acts, which she described had been performed by the applicant, and also the acts that were the subject of charge two on the indictment.
2. In those circumstances, it was of importance in the trial that the parties should exercise particular care to ensure that the jury not be misled in any material respect concerning the previous experience of the complainant of sexual offending at the hands of an adult person. The allegations, which the complainant had made in the VARE relating to the applicant's father, concerning digital touching by him of her vagina, and digital penetration by him of her vagina, were the principal and most predominant focus of the VARE. The complainant's description of that conduct by the applicant's father was very similar to the manner in which she described the same acts that she attributed to the applicant, and which were the subject of charges one and three on the indictment, and related uncharged acts. Accordingly, it would have been significantly misleading to put to the jury that the complainant would not have been able to describe the sexual acts, that were the subject of charges one and three, and the related uncharged acts, unless the applicant had in fact perpetrated those acts.
3. However, that proposition was specifically put to the jury by counsel for the prosecution in final address. In advancing that proposition, the prosecutor did refer to the conduct that was the subject of charge two, and which did not equate to any of the conduct which the complainant had attributed to the applicant's father. Nevertheless, it is clear, in the relevant passage of his address, that the prosecutor did advance, and would fairly have been understood by the jury to have advanced, the proposition that the complainant could only have described the various acts of sexual misconduct, which she alleged had been by the applicant against her, if in fact they had occurred.
4. The section of the prosecutor's address, relating to that matter, commenced with the prosecutor reminding the jury that it must take into account the complainant's age and the 'limited experience sexually' that a girl of that age would have had. Twice the prosecutor put to the jury that it would not expect that an eight or nine year old girl would know about the things, that the complainant had described in her evidence, 'unless they actually occurred'. The prosecutor reinforced that submission by referring to the passage in the VARE in which the complainant was asked to describe her understanding of 's-e-x'. The prosecutor, based on that description, submitted that the jury should accept that the complainant was 'fundamentally ignorant' of such matters. He then put to the jury the following:

And that then leads us to consider the descriptions that she gave as to [the applicant's] sexual offending. We know she knows nothing about sex. She is oblivious to it. Something about naked boys and girls and they end up making a baby, that's it.

1. It was at that point that the prosecutor did, by way of example, refer to the description that the complainant gave the act that was the subject of charge two. However, it is apparent, from the context in which the prosecutor referred to that specific conduct, that the reference to that evidence was, and would have been understood by the jury to be, an illustration by the prosecutor of a description given by a nine year old girl who was 'completely ignorant of sexual matters'.
2. In her final address, counsel for the applicant did respond to that aspect of the prosecutor's address, by submitting to the jury that the complainant's description to the police was not 'a new process for her', and that she did know matters about sex, because she had previously undertaken a VARE interview concerning the applicant's father. Defence counsel also pointed out that the complainant had attended a program at SECASA, which included a session about sexual safety, after the allegations against the applicant's father had come to light. However, those submissions could not, of themselves, be sufficient to offset, or rebut, the proposition advanced on behalf of the prosecution in final address, namely, that the complainant had no previous history or understanding of sexual matters, so that she could only be telling the truth in her description of the offending that she alleged had been committed against her by the applicant.
3. That conclusion is reinforced by two questions which the jury asked in the course of deliberations. Those questions were, first, whether any of the charges against the applicant's father were the same as those against the applicant, and, secondly, what were the charges in relation to the applicant's father in respect of the complainant.
4. After conferring with counsel, the judge explained to the jury that some evidence had been given that 'touched on' the applicant's father and the allegations made against him, but there was no evidence as to the detail of those allegations. The judge then said to the jury:

I urge you to look at the evidence that is there so far as [the applicant's father] is concerned in order to assist you to come to a view about the sorts of matters that are exercising your minds with respect to him. However, as to the specific questions that have been asked by you, the short answer is I don't know, you don't know, and the reason for that is because the evidence does not disclose that and the evidence is now concluded and we can't go any further than that. I do think it is important though to point out, members of the jury, that you must not speculate about what those charges are. You can look at the evidence that is there if that will help you understand aspects of what the allegations concerning [the applicant's father] involved but it is important that you don't go beyond the evidence and try and guess or speculate what goes beyond that.

1. The directions, so given by the judge to the jury, did properly reflect the position in the trial at the time. However, they did not, nor could they, offset the impression that had quite clearly been left by the section of the address of the prosecutor to which we have referred, namely, that the complainant must be telling the truth, because she was previously ignorant of sexual matters, and she could not have described the offending that she alleged was committed by the applicant unless it had occurred.
2. The role and duty of a prosecutor in a criminal trial is well understood. Fundamentally, it is the duty of the prosecutor to fairly and impartially place before the jury all relevant and cogent evidence, and to conduct the prosecution of a trial in a manner which is conspicuously fair.[9] That duty must inform the manner in which the prosecutor advances submissions to the jury in final address. In Bugeja v The Queen,[10] Weinberg JA (with whom Bongiorno JA agreed) stated:

It is clearly established that the prosecutor should not invite the jury to accept any argument that does not carry conviction in his or her own mind. Nor should the prosecutor put forward any argument or submission that is misleading, unfair, or otherwise unsustainable. To do so is to act contrary to the basic responsibilities that the prosecution must shoulder, and may well lead, in a given case, to a miscarriage of justice.[11]

1. In Bugeja, counsel for an accused told the judge that he wished to put to the principal prosecution witness, in cross-examination, that an alleged meeting between that witness and the accused did not occur. However, the prosecutor had informed defence counsel that if he did so, the prosecutor, in re-examination, would elicit evidence from the witness that would be particularly detrimental to the case of the accused. Counsel for the accused thus sought a ruling from the judge that the prosecutor could not lead that evidence. The judge refused to make that ruling. Accordingly, defence counsel, in cross‑examination, did not challenge the evidence of the witness concerning the meeting. In final address, the prosecutor, on at least three occasions, put to the jury that the fact, that defence counsel did not suggest to the witness of the meeting did not take place, supported the conclusion that such a meeting did occur.
2. On appeal, this court held that the prosecutor should not have advanced that proposition to the jury, because it was based on a false premise, and it was seriously misleading. Accordingly, Weinberg JA concluded that the trial had miscarried and that there must be a new trial.[12]
3. In the present case, the principle discussed in Bugeja is of particular relevance. The evidence of the complainant was substantially unsupported by any other evidence in the case. The applicant, in his interview with police, had comprehensively rejected each of the allegations put to him. In addition, he denied those allegations in the pretext call. In those circumstances, the proposition relied on by the prosecutor in final address, and to which the proposed ground of appeal is directed, was of some significance. It was calculated to provide impermissible support to the evidence of the complainant, in circumstances in which the prosecutor would have been aware that the fundamental proposition - that the complainant was wholly ignorant of sexual matters - was contrary to the content of the VARE that the complainant had undertaken in relation to the applicant's father. In that way, the impugned section of the prosecutor's address to the jury was inherently misleading in a manner which had the capacity to erroneously and unfairly support the prosecution case against the applicant. This risk was particularly grave with respect to the charge of digital penetration (charge 1).
4. It follows that it must be concluded that the trial of the applicant miscarried.
5. For those reasons, it will be ordered that the application for an extension of time is granted, the application for leave to appeal must succeed, the appeal be allowed, the convictions and sentences imposed on the applicant be set aside, and it be directed that there be a re-trial of the charges against the applicant.

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

[3] Section 275(1) of the Criminal Procedure Act 2009 requires a notice of application for leave to appeal against conviction to be filed 'within 28 days after the day on which the person is sentenced or any extension of that period granted under section 313'.

[9] R v Bazley (1986) 21 A Crim R 19, 29 (Young CJ, with whom Marks and Southwell JJ agreed); Richardson v The Queen [1974] HCA 19; (1974) 131 CLR 116, 119 (Barwick CJ, McTiernan and Mason JJ); [1974] HCA 19; Ritchie (a pseudonym) v The Queen [2019] VSCA 202, [66]-[67] (Kaye, Weinberg JJA and Kidd AJA).

[10] (2010) 30 VR 493; [2010] VSCA 321 ('Bugeja').