Davis (a pseudonym) v The Queen [2016] VSCA 272

CRIMINAL LAW - Appeal - Conviction - Sexual offences - Lies in record of interview as incriminating conduct - Whether failure to give proper notice - Whether error in admitting lies in record of interview as incriminating conduct - Whether failure to direct properly on incriminating conduct - Jury Directions Act 2013, s 23(1) - Jury Directions Act 2015, s 20(1) - Leave to appeal refused.

CRIMINAL LAW - Appeal - Conviction - Sexual offences - Retrial - Whether error in admitting recording of complainant's from previous trial - Criminal Procedure Act 2009, s 381 - Leave to appeal refused.

CRIMINAL LAW - Appeal - Conviction - Sexual offences - Retrial - Directed acquittal on one charge at previous trial - Whether error in admitting evidence of circumstance founding previous charge as uncharged act - Leave to appeal refused.

CRIMINAL LAW - Appeal - Conviction - Sexual offences - Ground claiming aggregate of errors - Not appropriate to shelter complaints of discrete error under 'catchall' ground - No errors substantiated - Leave to appeal refused.

CRIMINAL LAW - Appeal - Sentence - Applicant convicted at trial of multiple charges of sexual penetration of child under 16 and indecent act with child under 16 - Sentence of 7 years' imprisonment with non-parole period of 5 years - Whether sentence manifestly excessive - Leave to appeal refused.

1 The applicant twice faced trial in the County Court with respect to a number of alleged sexual offences against three children.

2 He was first tried in March 2015. During the course of that trial ('the first trial'), the judge directed an acquittal with respect to charge 1 on the indictment, which alleged the sexual penetration of a child under the age of 16. Otherwise, the jury were unable to agree. They were thus discharged without verdict on all of the other charges.

3 Following a second trial in October and November 2015 ('the second trial'), a jury found the applicant guilty of six charges of sexual penetration of a child under the age of 16[2] (charges 2, 3, 4, 5, 6 and 7) and two charges of committing an indecent act with a child under the age of 16[3] (charges 9 and 10). Verdicts of not guilty were returned on a further two charges of committing an indecent act with a child under the age of 16 (charges 8 and 11).

4 In this Court, the applicant sought leave to appeal against both the convictions and the sentence from the second trial.

5 For the reasons that follow, we would refuse both applications.

6 On 17 December 2015, the trial judge sentenced the applicant to a total effective sentence of seven years' imprisonment, and fixed a non-parole period of five years. The sentences imposed may conveniently be set out in tabular form:

7 With respect to conviction, the applicant relied on the following grounds:

1. A substantial miscarriage of justice occurred because there was no jurisdiction for the case to proceed in the absence of an order to extend the time limit for the commencement of the trial pursuant to section 212 of the Criminal Procedure Act 2009.
2. There was a substantial miscarriage of justice because the learned trial judge erred:

(a) in admitting into evidence, evidence that purported to be incriminating conduct;

(b) in failing to make a determination as required by section 20(1)(b) of the Jury Directions Act 2015;

(c) in failing to direct the jury how this evidence related to any of the ten charges, or elements thereof, on the indictment.

1. There was a substantial miscarriage of justice because the learned trial judge allowed the prosecution to admit into evidence, the recording of ['LL'] from the first trial pursuant to section 381 of the Criminal Procedure Act 2009, in circumstances that unfairly disadvantaged the Applicant.
2. There was a substantial miscarriage of justice because the learned trial judge allowed the prosecution to lead evidence of the factual circumstances that involved charge 1 as an uncharged act, that charge having been the subject of a directed acquittal in the trial that had occurred before [the first trial judge].
3. There was an accumulation of errors and irregularities in the trial that led to a substantial miscarriage of justice.

8 As to sentence, the applicant relied on a single ground which claimed that the sentence is manifestly excessive.

9 The offending was alleged to have occurred between January 2003 and December 2007, when the applicant was between 32 and 36 years old. He will shortly turn 45.

10 Each of the three complainants - 'LL', 'KL' and 'CL' - were the applicant's younger cousins. It was alleged that the complainants were regularly taken to the applicant's house in a south-eastern Melbourne suburb to play with the applicant's son, 'PN', and would stay up to a whole day at the applicant's house. PN lived alone with the applicant because his mother, 'CS', the applicant's then wife, was residing in a south-east Asian country. CS later joined the applicant and PN in Australia.

11 Charges 1, 2 and 3 on the indictment related to LL, who at relevant times was aged between seven and ten years. LL is KL's twin.

12 LL gave evidence of an alleged incident when she was seven years old, and she and her two sisters were in the lounge room of the applicant's home with PN playing 'PlayStation 2'. The applicant allegedly called LL over to him while the other children were playing and put his hand down her pants, placing his fingers into her vagina. This alleged event was the basis of charge 1, which was the subject of a directed acquittal at the applicant's first trial.

13 Charge 2, sexual penetration of a child under 16, related to an occasion when LL was about nine years of age, and the applicant was said to be visiting her home. LL's parents allegedly asked the applicant if he could fix one of the lights in the house, and LL's older sister, 'JL', told LL to show the applicant the light in their parents' room. The applicant allegedly shut and locked the door, pushed LL onto the bed, pulled her pants down and put his fingers in her vagina.

14 The third charge, sexual penetration of a child under 16, related to a time when LL was about 10 years old. Allegedly, on a couple of occasions whilst the applicant was renovating the bathroom at LL's home, the three complainants showered at the applicant's house. According to the Crown case, the first time that the complainants took turns having a shower, the applicant insisted on washing them, and whilst washing LL, the applicant put his fingers into her vagina.

15 Charges 4, 5, 6 and 7 related to KL. She is, as we have mentioned, LL's twin, and was aged between seven and ten years at the time of the alleged offences.

16 On one occasion, KL and the applicant were said to be alone in the living room. Allegedly, he came up behind her, slid his hands down her pants and inserted his fingers into her vagina. This, she said, caused her pain and she bled from the vagina. This alleged event was the foundation of charge 4, sexual penetration of a child under 16. Following this occasion, the applicant allegedly inserted his fingers into KL's vagina on many occasions, those events being relied upon by the prosecution as uncharged acts.

17 Charge 5, sexual penetration of a child under 16, related to an occasion when KL was said to be holding PN's hand as they crossed the road to the applicant's house, he having just arrived home in his car. Allegedly, the others went ahead, and as KL and the applicant followed them around to the back of the house, the applicant grabbed her, put his hand down her pants and inserted his fingers into her vagina, telling her to be quiet.

18 On another occasion, when KL was about eight years old, she was said to be at the applicant's house and alone near the toilet. Allegedly, while everybody else was in the lounge room, the applicant grabbed her and put his fingers into her vagina. This alleged event was the basis of charge 6, sexual penetration of a child under 16.

19 The last occasion involving KL was said to have occurred when she was 10 years old, at a time when the applicant was renovating the bathroom at KL's house. When the complainants took turns to shower at the applicant's house, the applicant allegedly insisted that he remain in the bathroom to supervise. The applicant allegedly told KL that he would show her how to wash her body properly, and he rubbed soap all over her before inserting his fingers into her vagina. This alleged incident founded charge 7, sexual penetration of a child under 16.

20 Charges 8, 9, 10 and 11 related to CL, who was aged between five and nine years at relevant times.

21 On an occasion when CL was aged about five or six, she allegedly slept over at the applicant's house to play with his son, PN. It was alleged that the applicant told CL to come into his room, and he began touching her in her private areas, saying, 'If you wanna play with my son then you gotta do this'. This alleged event was the subject of charge 8, of which the applicant was found not guilty.

22 Charge 9, indecent act with child under 16, related to an occasion when CL was eight or nine years old. The applicant was said to be renovating the bathroom at CL's house, so she showered at the applicant's house. He allegedly turned on the tap, lathered her skin and rubbed the soap over the outside of her vagina.

23 During the time when the bathroom renovations were taking place, the three complainants were allegedly taking a nap at their house. Their parents were said not to be home. The applicant allegedly woke CL and asked her where the scissors were. He allegedly told her to come into her parents' room and there touched her on the vagina with his fingers. This alleged event founded charge 10, indecent act with child under 16.

24 Charge 11, indecent act with a child under 16, resulted in a verdict of not guilty. The basis of this charge was an alleged incident when CL was aged nine years. Her older sister, JL, was said to have dropped her off at the applicant's home. By this time, the applicant's then wife (CS) had arrived in Australia and was living with the applicant and PN. Allegedly, the applicant's wife went to take a shower and the applicant took CL to his room, touched her on the vagina and told her that, if she wanted to play PlayStation 2, she had to obey his rules.

25 Police interviewed the applicant with the assistance of an interpreter in two parts over two days, on 27 March and 28 March 2013. He denied the alleged offending.

26 At trial, the defence case was that the alleged offending did not occur. It was put that a financial dispute had motivated false allegations. As part of the defence case, evidence was produced demonstrating that the dates on which the offences were said to have occurred could not be accurate, and thus the three complainants' credibility and reliability should be doubted.

27 The applicant did not give evidence at trial, but his former wife and brother were called in the defence case.

28 CS, the applicant's former wife, said that she arrived in Australia in March 2005.[4] She knew the complainants and their parents. CS gave evidence that there had been a party approximately one month after her arrival, at which there were around fifty to sixty people, including the complainants. The complainants' mother would usually bring the three children to visit and she would sometimes leave the children. Her evidence was that her husband would be at work when the complainants' mother visited with the children.

29 'ON', the applicant's brother, gave evidence as to sleeping arrangements at the applicant's house, where he had lived for a time. He gave evidence that the PlayStation at the applicant's house had belonged to him.

Ground 1 - Time limit for commencing the trial

30 Counsel for the applicant submitted that the second trial had been commenced out of time and that it was therefore a nullity.

31 On an unspecified date in 2014, the applicant was committed for trial in the County Court. On 29 October 2014, Judge Patrick made procedural orders, including an order that the matter be listed for trial on 10 March 2015. On 4 December 2014, the County Court made an order under s 247 of the Criminal Procedure Act 2009 ('CPA') extending for three months from that date the time prescribed by s 212 of the CPA for the commencement of the trial. On 26 February 2015, the County Court made a further order under s 247 of the CPA extending for a further three months the time for commencing the trial. The trial duly began on 10 March 2015 before Judge Meredith. On 24 March 2015, as indicated above, the applicant was acquitted by direction on charge 1 and the jury was discharged without verdict with respect to charges 2 to 11. In discussion with counsel, Judge Meredith observed that his preference would be to begin a new trial the next day, but that that was not possible having regard to other Court commitments. He ascertained that the next available date for the listing of the new trial was 26 October 2015 and he directed that the matter be included in the General List of trials to commence that day. His Honour also fixed a directions hearing for the matter for 5 October 2015 and bailed the applicant to appear at the directions hearing. The directions hearing actually took place on 7 October 2015 before Judge Quin. On that occasion, Judge Quin apparently gave a 'direction' that the new trial commence on 26 October 2015.[5] In any event, on 26 October 2015, the applicant was re-arraigned before Judge Gaynor and a jury on charges 2 to 11 of the same indictment as was used in the first trial. No point about time was raised by the applicant's counsel. On 5 November 2015, the jury returned its verdict. A plea hearing was conducted on 17 December 2015 and, as indicated above, the applicant was sentenced on the same day.

32 The applicant's primary argument, as originally formulated in his written case, contained the following steps. First, so it was submitted, s 212 requires that a trial for a sexual offence must occur within three months of committal for trial. Secondly, s 247 of the CPA allows for extensions of time for the commencement of a trial. Thirdly, the purpose underlying s 212 is to ensure that trials for sexual offences proceed without undue delay.[6] It is an 'important protection' for an accused person, so that the matter does not hang over his (or her) head for an unreasonable period, and so that charges can be adequately defended. Fourthly, the grant of an extension under s 247 should not be 'a simple rubber stamping process', but should only be done by a judge after due consideration and an informed decision. Fifthly, the grant of an extension 'is an essential element of jurisdiction for the court to proceed with the trial'. Sixthly, no extension of time had been granted for commencement of the second trial. Seventhly, there was thus a want of jurisdiction to try the applicant. Eighthly, the trial judge is now functus officio. Ninthly, it follows that the second trial concluded without jurisdiction. Tenthly, the second trial was therefore a nullity.[7]

33 The respondent's written case, insofar as it related to ground 1, began by referring to the terms of s 212 of the CPA. That section provides:

212 Time limits for commencing trials for sexual offences

The trial of a person for a sexual offence must commence -

(a) within 3 months after the day on which the person is committed for trial in respect of the offence; or

(b) if no committal proceeding in respect of the offence is held, within 3 months after the day on which the indictment against the person is filed; or

(c) if a new trial is ordered by the Court of Appeal, within 3 months after the day on which the order is made; or

(d) if the period referred to in paragraph (a), (b) or (c) or any extension of that period is extended under section 247, within the extended period.

34 The respondent argued that s 212 imposes time limitations for the commencement of a trial in two specific situations: first, upon committal to stand trial or the filing of a direct indictment; and, secondly, upon the making of an order by the Court of Appeal for a new trial. While accepting that, by virtue of s 210 of the CPA, a trial (including a new trial) commences when the accused pleads not guilty on arraignment in the presence of the jury panel,[8] the respondent submitted that s 212 of the CPA is silent in relation to the situation where - as in this case - there is a further trial consequent upon a jury's failure to reach a verdict at an earlier trial.

35 Next, the respondent referred to the terms of s 247 of the CPA. That section provides:

247 Power to extend or abridge time

(1) The court, by order, may extend or abridge any time fixed -

(a) by or under this Chapter; or

(b) by any order extending or abridging time made under this section -

if the court considers that it is in the interests of justice to do so.

(2) An extension of the time for commencement of a trial for a sexual offence must not exceed 3 months.

(3) It is not necessary that an order be made under subsection (1) if a ruling made, or direction given, by the court provides for the extension or abridgment of time.

(4) The court may extend time under subsection (1) before or after the time expires.

(5) More than one extension of time may be granted under subsection (1).

(6) Unless the court otherwise orders, no material in support of an order under subsection (1) need be filed.

36 The respondent submitted that the power to extend or abridge time in s 247 is restricted to limitation periods fixed by or under the CPA. It thus followed that, if - as the respondent contended - the limitation period set out in s 212 did not apply to the second trial, then no application to extend time under s 247 was necessary or appropriate.

37 The respondent contended that the relevant provisions of the CPA were directed at ensuring the prompt commencement of trials upon a proceeding's transfer into, or inception in, the court's jurisdiction. According to the respondent, s 212(c) was a provision imposing an 'additional' time limit for commencing a new trial after a successful appeal to the Court of Appeal.[9] The respondent submitted that the time limit on a retrial in these circumstances was added in recognition of the length of time involved in the appeals process.[10]

38 According to the respondent, the CPA is clear in its terms, and the policy basis of the CPA - which the respondent described as being 'to achieve the timely carriage of criminal trials through the criminal justice system' - is achieved in setting time limitations for the commencement of a trial in the two specific sets of circumstances referred to by the respondent.

39 In summary, the respondent contended that s 212 does not contain any requirement that a retrial be commenced within a stipulated timeframe in the circumstances of a failure to reach a jury verdict (or where for any other reason a first trial may not conclude in a verdict); and that s 212 cannot, on a plain reading or on purposive construction, be interpreted to set a time limitation in these circumstances.[11]

40 At the oral hearing, by way of a secondary argument, the Crown submitted (relying on MAC v The Queen[12] and also on Project Blue Sky Pty Ltd v Australian Broadcasting Authority)[13] that s 212 of the CPA is not the source of the jurisdiction of the County Court to hear trials involving sexual offences,[14] and that the absence of an order under s 247 of the CPA extending the time limit (assuming, contrary to the Crown's primary argument, that the time limit was applicable) did not render the second trial a nullity. It was submitted that s 212 was procedural and directory in nature, and did not confer substantive rights on an accused person. In addition, or in the further alternative, it was submitted that s 212 was a freestanding section; that the trial judge might be functus officio but the County Court itself was not; that it remained open to the Crown to apply to the County Court for an extension of time under the CPA; and that such an extension could be validly granted nunc pro tunc.

41 In response, the applicant's counsel submitted that s 212 of the CPA was not merely procedural but also conferred substantive rights; that the section went to jurisdiction; and that non-compliance with s 212 resulted in the entire proceeding being a nullity. In making these submissions, the applicant's counsel relied on only one case, namely R v Symons.[15]

42 In the course of oral argument an additional question arose, namely whether by virtue of s 85 of the Constitution Act 1975 this Court might be able to exercise now the power of extension of time conferred by s 247 of the CPA. The parties were given leave to file supplementary written submissions on that question.

43 Essentially, the following further contentions were advanced by the Crown:

• first, on 7 October 2015 Judge Quin had given a 'direction' that the second trial commence on 26 October 2015,[16] and that direction ought to be seen as implicitly providing for an extension of time, and thus as satisfying the requirements of s 247(3) of the CPA;[17]

• secondly, any breach of s 212 does not invalidate the trial, since the provision is procedural and therefore merely directory;[18]

• thirdly, and alternatively, if (contrary to the respondent's second contention) the provisions of s 212 are mandatory, then the County Court retains power to correct the error notwithstanding that the trial has been conducted and judgment entered,[19] the source of that power residing in s 412 of the CPA;

• fourthly, the Court of Appeal itself appears to have no power to correct the error (s 325 of the CPA being said to have no application); and

• fifthly, s 85 of the Constitution Act 1975 has no application to the present controversy, because the original jurisdiction of the Supreme Court has not been invoked (eg, by the filing of an indictment) and because the powers of the Court in its appellate jurisdiction are generally not enlivened until a ground of appeal has been made out, and no ground has been made out.

44 In the written submissions in response filed on behalf of the applicant, it was contended, in essence, that:

• section 85 of the Constitution Act 1975 is not enlivened in respect of proposed ground 1 of the appeal;

• section 212 of the CPA, by using the words '[t]he trial of a person for a sexual offence must commence', creates a mandatory obligation and is not merely a directory provision;

• section 212 creates a procedure which in turn creates rights (as indicated, according to the applicant, by the Second Reading Speech for the CPA);

• the purpose of s 212 of the CPA is to permit the County Court to control its proceedings and to ensure matters are dealt with in a timely way, and the section requires 'a consideration' of that issue. Accordingly, if there has been no consideration of the issue at all, then an order setting down a trial date cannot be taken to have provided impliedly for an extension of time;

• section 412 of the CPA operates on an order that is otherwise made within jurisdiction, whereas the 'additional order' the respondent would argue for goes to jurisdiction, in circumstances where the 'now completed' orders made by the Court were not within jurisdiction;

• it is irrelevant whether extension of time orders are generally made by consent or unopposed, as the effect of an order extending time is to maintain jurisdiction of the court and this can only occur after the court has turned its mind to the question and considered it;

• had the County Court given any consideration to the issue, the matter of an extension of time would have been dealt with in the orders made by the Court; and

• the Crown's contention that there is power to correct the relevant error despite the conclusion of the trial is inconsistent with the fact that the Crown has failed to invoke the exercise of the power it contends for and is, rather, consistent with the Crown acting on the basis that the County Court is functus officio.

45 In our view, the Crown is substantially correct in its primary response to proposed ground 1. Strictly speaking, therefore, it is not necessary to consider the parties' other arguments concerning this proposed ground. Nevertheless, we will make some observations about them in due course.

46 The primary question is essentially a question of statutory interpretation. It comes down to the following: does s 212 of the CPA deal with the time within which a new trial, as distinct from an original trial, must be commenced where the new trial has not been ordered by the Court of Appeal? We consider that that question must be answered in the negative. Section 212 does not apply to a new trial, except in the circumstances stated in s 212(c), that is, only where the new trial has been ordered by the Court of Appeal.

47 It seems to us that this is the natural and sensible reading of s 212, considered as a whole and in context.[20]

48 Notably, the expression 'new trial', which is used in paragraph (c) of s 212, is not employed elsewhere in the section.

49 In each of paragraphs (a), (b) and (c) respectively of s 212, a time limit of three months is set as between a specified event and the required commencement of '[t]he trial'. The expression '[t]he trial', by its use of the definite article and the singular, connotes a single thing, rather than a multiplicity of things. It is true that s 37 of the Interpretation of Legislation Act 1984 provides that, in an Act, unless the contrary intention appears, words in the singular include the plural. However, in our view, the contrary intention does appear in this instance. It seems likely that, in each case, the three month period was intended to apply as between two, and only two, clearly identifiable, fixed points. That result is best achieved by treating the original trial or, in a case within s 212(c), the original new trial as supplying the end point of the statutory period.[21]

50 As to the situations covered by paragraphs (a) and (b) of s 212, Parliament should not be taken to have intended that the standard three month period was to be equally applicable not only to the commencement of an original trial but also to the commencement of a second trial, a third trial, a fourth trial or any further trial. Rather, Parliament should be taken to have been aware that, sometimes, for various reasons, an original trial will prove to be abortive and will fail to yield a verdict.[22] Since, under s 212, an original trial is within time if it commences on the last day of the relevant three month period, it would be surprising if, under the same section, a second or subsequent trial would be out of time if it commenced on the next day or any later day. The fact that an application could be made to the Court to extend the time does not greatly diminish the force of this consideration.

51 Likewise, Parliament should not be taken to have intended that the three month period specified in s 212(c) for the commencement of a new trial ordered by the Court of Appeal was to be equally applicable to the commencement of a second, third, fourth or subsequent new trial. Corresponding reasoning applies.

52 Part 5.5 of the CPA relates to pre-trial procedure. It comes shortly before the Part of the Act (Part 5.7 - Trial) in which s 212 appears. Significantly, in our view, much of Part 5.5 looks forward to, and is structured around, the original trial of the accused. In numerous places, Part 5.5 uses the expression 'the trial' where the reference is plainly to the original trial only. Moreover, Part 5.5 contains indications that, had Parliament intended in s 212 to cover any second or subsequent trial, and any second or subsequent new trial after an order of the Court of Appeal, then it would have made its intention clear.[23]

53 Turning to Part 5.7 itself, we consider that the respondent's interpretation of s 212 gains further support from the contrast between the use of the indefinite article in s 210, which provides that '[a] trial commences when the accused pleads not guilty on arraignment in the presence of the jury panel in accordance with section 217' and, on the other hand, the use of the definite article ('The trial') in s 212.[24] In Tamas v Victorian Civil and Administrative Tribunal,[25] Callaway JA said that it is 'a natural and correct usage of English to employ the definite article when one is referring to a person or thing already identified expressly or by implication'. Here, in our view, the use of the definite article in the expression 'The trial' in s 212 not only strengthens the sense of singularity conveyed by the section as a whole, but also suggests that, in the situations dealt with in paragraphs (a) and (b) of s 212, the thing which must commence within the three month time limit is a thing already identified expressly or by implication earlier in the Act. As already mentioned, earlier provisions of the Act (especially in Part 5.5) tend to indicate that that thing is the original trial of the accused. In the situation dealt with in paragraph (c) of s 212, the thing which must commence within the three month period is the new trial expressly referred to in that very paragraph. In other words, the expression 'The trial' in the chapeau to s 212 carries the meaning 'the original trial' in relation to paragraphs (a) and (b) and it carries the meaning 'the original new trial' in relation to paragraph (c). There is nothing strained about this reading of the provision as a whole.

54 Quite correctly, the applicant does not suggest that Symons bears on this particular issue. In Symons, the original trial of the accused was found to be out of time.

55 In summary, the text, context and purpose of s 212 all point in the same direction.[26] Section 212 does not deal with the time within which a new trial, as distinct from an original trial, must be commenced, except where the new trial has been ordered by the Court of Appeal.

56 We turn now to what the consequences might have been had we agreed with the applicant's submission that s 212 applies to a new trial even when not ordered by the Court of Appeal.

57 In short, we would have held that, nevertheless, to the extent (if any) that there was non-compliance in this case with s 212, the applicant's arguments under proposed ground 1 would still not have warranted a grant of leave to appeal.

58 We will not decide whether or not the 'direction' apparently given by Judge Quin on 7 October 2015 implicitly provided for an extension of time. There are numerous cases in which it has been argued that, on a prior occasion, a judicial officer made an order of one kind or another implicitly.[27] To a large extent, the cases have turned on the particular facts and the particular statutory framework. We will simply assume that no express or implicit order for an extension of time was made at the directions hearing.

59 In our view, the assumed non-compliance with s 212 would not have deprived the County Court of the jurisdiction, or the power, to proceed with the trial of the applicant and to convict and sentence him. Contrary to the applicant's submissions, those steps would not have been rendered nullities.

60 In Symons, the sole case on which the applicant relied in this respect, the Full Court considered s 359A of the Crimes Act 1958 as in force in about 1980. That section provided, among other things, that 'the trial' of a person for rape, attempted rape, or assault with intent to rape 'shall not be commenced' after the expiry of the 'prescribed period'. The relevant prescribed period was a period of three months after the accused had been committed for trial. Mr Symons was arraigned in the Supreme Court (for the one and only time) three months and 13 days after having been committed for trial. He pleaded guilty to the relevant counts, being counts of rape and assault with intent to rape. He was convicted and sentenced. On the appeal to the Full Court, it was common ground that, had Mr Symons pleaded not guilty, the arraignment would have commenced a 'trial' of the relevant counts; and, further, that, in those circumstances, because of non-compliance with s 359A, the trial, the convictions and the sentence would have been nullities. The only issue between the parties was whether the plea of guilty meant that there had been no trial, in which case, as the parties agreed, s 359A would not have applied. By majority (Young CJ and Tadgell J, Crockett J dissenting), it was held that there had been a 'trial' notwithstanding the plea of guilty, and that the appeal against Mr Symons' conviction and sentence succeeded accordingly.

61 The statutory provisions considered in Symons were significantly different. The language of s 359A was far stricter. Subsection 359A(1) began: 'Notwithstanding anything in this or any other Act or any rule of law to the contrary ...'. There are no words of that kind in s 212 of the CPA. Further, s 359A(1) provided that the trial of a person for a sexual offence of one of the specified types 'shall not be commenced' where any of three specified sets of circumstances obtained. One of those sets of circumstances - namely, where a stipendiary magistrate had ordered that the person shall not stand trial for the offence - had nothing to do with the expiry of time. Moreover, the negative stipulation - 'shall not be commenced' - was considerably stronger than the positive prescription now contained in s 212 of the CPA, namely that '[t]he trial of a person for a sexual offence must commence [within a specified period]'.[28] This remains true notwithstanding the use of the word 'must' in s 212 of the CPA.[29] In MAC v The Queen,[30] Nettle JA apparently did not regard the use of the use of the word 'must' in s 371 of the CPA (as then in force), being a section similar to s 212, as standing in the way of the conclusion to which his Honour came in that case (see further below).

62 Further, at the time of Symons, the only power of extension of the prescribed period was contained within s 359A itself. Indeed, it was bound up with the very definition, in s 359A(2), of the 'prescribed period'. Moreover, most significantly, under s 359A neither the prescribed period nor any longer period fixed by a judge was capable of being extended once it had elapsed. Of course, the position is very different under the CPA. While s 212 adverts to the prospect of extension, it does so by reference to a separate section, namely s 247, which is a general section applicable to any time fixed by or under Chapter 5 (Trial on indictment). And s 247(4) provides that the Court may extend time 'before or after the time expires'.

63 In R v Harris (No 1),[31] a case decided in 1987 - about seven years after Symons was decided, but well before the introduction of the CPA - Ormiston J (as his Honour then was) heard and determined applications by certain accused persons for permanent stays of prosecutions then pending against them in the Supreme Court. The applications were based on the claimed expiry of time limits contained in the general 'speedy trial' provisions of the Crimes Act 1958 as in force from time to time between 1983 and 1987. The case turned principally on whether those provisions were properly characterised as procedural rather than substantive in nature.

64 Ormiston J held that the relevant provisions were merely procedural and that they were intended only to lay down 'a generally appropriate minimum timetable for prosecutions', which was capable of extension on one or more occasions.[32] His Honour observed that, as the rights to extend the prescribed periods were explicitly given in terms which permitted extension '[n]otwithstanding that the period prescribed ... has expired', it was clear that no absolute right to stay the prosecution arose when the period expired. Thus his Honour gave significant weight to the provision in the legislative scheme that enabled an extension of time to be granted after the relevant time limit had expired, being a provision which, as noted above, had had no counterpart in the legislative scheme that had been under consideration in Symons, but which does have a counterpart in s 247 of the CPA. His Honour continued:[33]

The requirements are thus directory despite the use of the word 'shall': cf Re Davis.[34]

These sections were, and are, merely procedural and not intended to do more than lay down a basic timetable for criminal prosecutions, but at all times, before or after the expiry of the prescribed periods, they are capable of extension. In that case it is hard to believe that upon the expiry of the period there was intended to be created any rights of an absolute kind incapable of repeal. Nor was the obligation imposed on the prosecuting authority of a kind intended to lead to an absolute bar if the period expired, if it could be extended out of time and on an number of occasions. Moreover, although it is for the prosecuting authority to make presentment or lay an indictment, there is little basis for holding that they have a similar responsibility for commencing the trial. In my opinion that is now primarily the court's responsibility, although in practical terms the Directorate of Criminal Listing brings each trial forward for listing in the court. The Director of Public Prosecutions has some responsibility for getting the trial ready, but it cannot prevent a listing and the trial thereafter is under the court's control. No doubt it was intended that the court should keep to the prescribed periods but the Attorney-General's speech indicates that a primary object is to get the trial under court control as soon as practicable. It is therefore hard to characterise the effect of the legislation in conventional right and duty terms. In my opinion it is quite different from a true statute of limitations which, at least arguably, imposes obligations on one party, the prosecutor, and gives correlative rights to the other, the accused, as in s 21(1)(b) and (c) of the Crimes Act (Cth). Desirable as the new rules may be, they are fundamentally minimum guidelines for the conduct of prosecutions after they have been commenced. They are thus 'merely procedural', and they impose no obligations, nor grant rights, of the kind referred to in s 28 of the Interpretation of Legislation Act.

65 In Director of Public Prosecutions v BDX (No 2),[36] this Court said that the reasoning of Ormiston J in Harris may be applied without material qualification to the corresponding provisions in the CPA; and that no rights of an absolute kind were created upon the expiration of the periods referred to in those provisions. The Court further observed that the capacity of the County Court to extend time, after the time in which to commence the trial had expired, was critical to the case management of criminal trials.[37]

66 At the risk of stating the obvious, we note that the Act with which we are concerned contains the very word 'Procedure' in its title. We also observe that, of the Act's purposes set out in s 1, the purpose which is listed first, and which is stated in the broadest terms, is the following:[38]

to clarify, simplify and consolidate the laws relating to criminal procedure in the Magistrates' Court, the County Court and the Supreme Court.

Thus s 1 of the CPA does not treat ss 211 and 212 (as affected by s 247) as being different in kind from the provisions considered in Harris.

67 MAC v The Queen,[39] also, supports the proposition that the approach taken in Harris is applicable to the relevant provisions of the CPA. MAC v The Queen related to s 371 of the CPA, as in force in 2012. That section concerned the time for the holding of a special hearing under Division 6 of Part 8.2 (Procedures and rules for children and cognitively impaired complainants) of the CPA. Section 371 provided as follows:

371 Time limits for special hearing

(1) If a special hearing is to be held, it must be held -

(a) within 3 months after the day on which the accused is committed for trial; and

(b) before the court at which the indictment is filed.

(2) The court may extend the time for holding a special hearing if, because of the existence of special circumstances, the court considers that it is in the interests of justice to do so.

(3) The court may extend time under subsection (2) before or after the time expires.

(4) More than one extension of time may be granted under subsection (2).

A special hearing had taken place in the County Court. Subsequently, it was discovered that, by mistake, the special hearing had been held more than three months after the committal, without an extension of time first being sought or granted. When the mistake became known, the County Court judge entertained and granted an application by the prosecutor for an extension nunc pro tunc. An interlocutory appeal was then brought to this Court. The Court decided that the power conferred by s 371(3) to extend time for the holding of a special hearing could be exercised, nunc pro tunc, even after a special hearing had been held. The interlocutory appeal was accordingly dismissed.

68 Nettle JA set out ten considerations which led him to the conclusion that s 371(2) of the CPA conferred power in an appropriate case to extend time for the holding of a hearing nunc pro tunc after the hearing had been held. Most, if not all, of those considerations have close analogies in the present case, and we will refer to the ten considerations dealt with by Nettle JA shortly. However, for reasons about to be mentioned, we will do so not for the purpose of expressing a view as to whether it would remain open, at this stage, for the County Court or this Court to make an order under s 247 extending the time, nunc pro tunc, for the commencement of the new trial of the applicant that was conducted in October-November 2015,[40] but only for the purpose of considering the question whether the assumed breach of s 212 deprived the County Court of jurisdiction or power to conduct the trial.

69 In MAC v The Queen, no trial had been commenced, much less concluded. The criminal proceeding was still in its interlocutory stages. Hence there could not be, and there was not, any suggestion that the County Court judge was functus officio. By contrast, the applicant in the present case relies strongly on the doctrine of functus officio, as that doctrine was explained and applied in the majority judgment in Director of Public Prosecutions v Edwards.[41] However, neither party has referred us to any case in which an appellate court has been asked to rule on the question whether, after a jury verdict in a criminal trial has been delivered and sentence imposed, it would remain open to the trial court, or to the appellate court, to exercise a statutory power to extend a time limit for the commencement of the trial, nunc pro tunc. Nor have our own researches turned up any authority dealing with that precise question. In those circumstances, and because, as already indicated, we do not accept the applicant's construction of s 212, we consider that we should not go so far as to express a view ourselves on that particular question.

70 Nevertheless, as mentioned above, we would say that, even on the applicant's construction of s 212 of the CPA (which we reject), the absence of an order under s 247 extending time for the commencement of the applicant's trial did not deprive the County Court of jurisdiction or power to conduct the trial and to take the jury's verdict and to convict and sentence the applicant. That view, we think, is strongly supported by considerations similar to, or corresponding with, the ten considerations which led Nettle JA to the conclusion which he reached in MAC v The Queen. Although Nettle JA made no reference to Project Blue Sky,[42] his Honour's analysis was consistent with the principles stated by the High Court in that case, to which we will come in due course.

71 First, Nettle JA observed that the form and substance of s 371 were procedural; and that the section did not confer jurisdiction to conduct a special hearing. That jurisdiction was conferred by s 370. Section 371 was concerned only with matters of procedure for the exercise of the jurisdiction. In our view, the same applies with respect to the work done by s 212 of the CPA, on the one hand, and the relevant provisions of the County Court Act 1958, namely ss 4(1) and 36A, on the other.

72 Secondly, Nettle JA perceived that the evident purpose of s 371(2) extended to the correction of errors and slips, in exceptional circumstances, where it was in the interests of justice to do so. It is clear that the power to extend or abridge time conferred by s 247 is applicable not only in such circumstances but in a considerably broader range of circumstances. Section 247 does not refer to exceptional circumstances. And it is noteworthy that, by virtue of s 247(6), no material in support of an order under s 247(1) need be filed unless the court otherwise orders.

73 Thirdly, Nettle JA observed that, insofar as it might be said that an order under s 371(2) of the CPA was capable of affecting substantive rights - in that, by an extension of the time for the holding of a special hearing, an accused might be subjected to the process of special hearing at a later date than three months after committal[43] - s 371(3) put beyond doubt that it was Parliament's intention that it be so in exceptional circumstances in the interests of justice. We would observe that, likewise, s 247(4), and also s 247(5), put beyond doubt that Parliament intended that the trial of a sexual offence could commence more than three months after committal or direct indictment, as the case may be, at least if the court considered that it was in the interests of justice for that to occur.

74 Fourthly, adopting and adapting the reasoning of Gaudron J in Emanuele v Australian Securities Commission,[44] his Honour did not perceive anything about the terms, context or subject matter of s 371(2) which implied that the power to extend time under the section could not be exercised after a hearing had been held. If anything, his Honour said, s 371(3) rather suggested the contrary. Subject to the doctrine of functus officio, those observations of Nettle JA would likewise be applicable here.

75 Fifthly, Nettle JA observed that, although there is a tendency with criminal proceedings to take a more stringent approach in relation to statutory preconditions, a clear distinction was to be drawn between provisions concerned with substantive rights and procedural provisions relating to proceedings in which substantive rights are in question. His Honour cited several decisions, including decisions of the High Court, in support of that proposition.[45] Once again, the same applies here.

76 Sixthly, distinguishing certain prior Victorian cases, Nettle JA said that there was:[46]

no syntactical or semasiological impediment to reading the language of s 371(2) as enabling an extension of time in which a special hearing may be held, even after it is held. According to the nature and ordinary meaning of the section, the obtaining of an extension of time is not a condition precedent to the holding of a special hearing.

Likewise, in our view, the language of ss 212 and 247 of the CPA tends to show that the obtaining of an extension of time is not a condition precedent to the commencement of a trial. Although it is true that s 247(2) provides that an extension of the time for commencement of a trial for a sexual offence must not exceed three months, and that there is no corresponding provision in s 247 in relation to the commencement of a trial for an offence other than a sexual offence, nonetheless each of sub-ss (3), (4), (5) and (6) of s 247 tends in favour of an expansive or liberal approach to the exercise of the power conferred by s 247(1). The combined effect of those subsections, in turn, points against a reading of s 212 as embodying a condition precedent to a trial.

77 In dealing with this sixth consideration, Nettle JA distinguished Symons on a ground corresponding with one of the points made by Ormiston J in Harris which we have adopted above, namely that the relevant legislation had come to provide for an extension of time to be granted even after time had expired.

78 Seventhly, Nettle JA observed that the apparent aim of s 371, being the preservation of the control of the court over the time in which a hearing might be held, was sufficiently achieved by interpreting s 371(2) as conferring a control of a directory character on the court, as opposed to setting up an absolute bar like a statute of limitations.[47] This observation by Nettle JA accords with another point made by Ormiston J in Harris,[48] being a point to which we have also referred above.

79 Eighthly, Nettle JA rejected a submission that the exercise of the power to extend time after a hearing had been held would trench upon the independent judicial discretion conferred by s 371(2) to determine whether there are exceptional circumstances and whether it was in the interests of justice to grant the extension. His Honour also rejected a submission that to construe the power of extension as applying to a special hearing that had already been held would be to ascribe to Parliament an intention that the court should give its imprimatur to error and incompetence on the part of the Crown. His Honour noted that the three month period could accidentally be exceeded with no incompetence on the part of the Crown. The error might be that of a court officer. In such cases, Nettle JA observed, the rule expressed in the maxim actus curiae neminem gravabit[49] would ordinarily apply, and, logically, there was no reason to suppose that Parliament intended that in such cases it should not apply.

80 Where the failure to obtain an extension of time before a special hearing was due to carelessness on the part of the Crown, this was likely, Nettle JA said, to be a relevant consideration in determining whether there were exceptional circumstances and whether it was in the interests of justice to grant an extension of time after the event. However, the fact that Crown carelessness might thus sometimes lead a court to refuse to extend time was, therefore, hardly a reason to suppose that Parliament intended that there should never be a post-hearing extension of time regardless of the circumstances. It was more logical to assume that Parliament intended to leave the question to the court to approach on a case by case basis according to the exceptionality of the circumstances and the interests of justice.

81 Pausing there, it might be said on behalf of the applicant in the present case that this aspect of the eighth consideration tends against the proposition that the time limits set out in s 212 of the CPA do not go to jurisdiction. By hypothesis, there will be no need for a court to consider whether or not to exercise the discretionary power of extension once the trial has been held. So much may be accepted. However, it does not take the applicant any great distance. In particular, it does not demonstrate that, without a post-trial extension, the trial must be seen to have been commenced and conducted beyond the jurisdiction or power of the court. Of course, Nettle JA was not considering the question whether a rectifying order for the extension of time was jurisdictionally essential. Rather, his Honour was merely having regard to considerations which bore on the proper construction of s 371 of the CPA and on the specific question whether the power conferred by that section could be exercised, in an interlocutory context, after the holding of a special hearing. As we have already indicated, the doctrine of functus officio was not a consideration in MAC v The Queen. But, in any event, some comments which his Honour proceeded to make under this eighth point are fully consistent with the view that non-compliance with a provision such as s 212 does not go to jurisdiction. Thus, his Honour said that, for the court to recognise the reality that errors can and do occur and, so far as possible consistently with the interests of justice, to do what can be done to overcome the problems thereby created, is no more than to give effect to the statutory purpose of the legislation in the reality of the context in which it is required to operate.[50] Likewise,[51] Nettle JA thought it appropriate to apply, in relation to this eighth point, what Kirby J had said in Emanuele v Australian Securities Commission,[52] namely that courts today are 'less patient with meritless technicalities'; that an 'undue rigidity in insisting upon strict compliance with all of the procedural requirements of the [relevant corporations statute] could become a mask for injustice and a shield for wrong-doing'; and that, against that risk, 'courts generally retain the facility to cure slips and repair oversights in proceedings before them, in appropriate cases where justice requires it'.[53]

82 Ninthly, Nettle JA observed that it was clear enough that Parliament had considered the risk of delay involved in the possibility of the Crown obtaining an extension of time, and that Parliament had decided to deal with it by means of the requirement for exceptional circumstances and the interests of justice. Again, this point might be said to cut both ways. However, for the same reasons as we have expressed in relation to the eighth consideration referred to by Nettle JA, we do not think that it really assists the applicant on the jurisdictional question. In that regard, we note the practical point made by Nettle JA in this connection, to the effect that, whether an extension of time is granted before or after a special hearing is conducted makes no relevant difference.[54]

83 Finally, Nettle JA observed that to construe s 371(2) as precluding the making of an order for extension of time after a hearing was held would be likely to result in such inconvenient outcomes that, to a significant extent, the legislation would miss its apparent target and fail to achieve its obvious objectives. For example, his Honour said, assuming without deciding that counsel for the applicant were correct in his contention that a special hearing held out of time is a 'nullity',[55] and thus that time cannot be extended nunc pro tunc, there would be nothing in principle to preclude the grant of an extension of time in which to hold a second special hearing. His Honour continued:[56]

The result of that would be to subject a complainant and the accused to the ordeal of a second hearing and require the case to be decided on evidence given by the complainant in the later hearing which, because it would be given later in time than the first, invalid, hearing, would tend to be less reliable. In those circumstances, to adopt and adapt the words of Sholl J in Re Testro Bros Consolidated Ltd,[57] it would be an absurdity if the hearing had now to be held all over again after an extension of time was granted.

On the other hand, assuming without deciding that counsel were correct in his alternative contention that, where a special hearing is held out of time, a second hearing held with the benefit of an extension of time would be an abuse of process and thus impermissible, the result would be that, wherever a special hearing is held out of time, no matter what the reason, the complainant might not thereafter be able to give evidence - even viva voce evidence[58] - and the prosecution would almost certainly be bound to fail. To say the least, it is logically improbable that Parliament intended that to be so when, ex hypothesi, were it not for the first invalid special hearing, a valid special hearing might have been held within an extended period of time no sooner than the second prohibited special hearing, and the results of it lawfully relied upon. Pressed as to why it should be supposed that Parliament might have intended to produce such bizarre consequences, counsel could offer no more than a repetition of his earlier submission that Parliament should not be taken to have intended to provide for the curial sanction of prosecutorial incompetence. For the reasons earlier given, I reject it.

84 Indirectly at least, reflections of this tenth (and final) consideration from MAC v The Queen bear significantly on the jurisdictional question with which we are dealing. What would it mean to say that the trial held in October-November 2015 and the convictions and sentences were nullities for want of jurisdiction or power (due to the assumed omission to obtain a requisite extension of time)? In particular, would it mean that the applicant could not be retried on the counts on which he was convicted? Presumably, he could not be retried on the counts on which he was acquitted.[59] How could the same trial be a nullity with respect to the convictions but valid with respect to the acquittals, given that the assumed defect was the same in both cases?

85 During the oral hearing before us, counsel for the applicant was asked, on the assumption that ground 1 was made out, what would happen to 'the proceeding' as opposed to 'the trial'. The answer given was that the whole proceeding, or, at least, the remainder of the proceeding - not merely the trial of October - November 2015 - was to be regarded as a nullity. However, to deny the availability of a new trial (and of any new proceeding) would involve a substantial departure from the long established principles by reference to which, in Jago v District Court (NSW),[60] the High Court held that, in New South Wales, there was no right at common law to the speedy trial of a criminal charge separate to the right to a fair trial. It would involve what Brennan J (as his Honour then was) described in Jago as the depreciation, if not the overlooking, of 'the interests of the community and of the victims of crime in the enforcement of the criminal law'.[61] Alternatively, if a retrial did remain available, the result would be to subject all concerned to the ordeal of such a retrial, and only because of a technical defect that is not claimed to have produced any unfairness to the applicant. In our view, which corresponds with what Nettle JA said in MAC v The Queen[62] under his Honour's tenth point, it is unlikely that an intention to produce such inconvenient outcomes should be attributed to Parliament.

86 As well as serving to distinguish the present case from Symons, the various features of the CPA to which we have referred have a corresponding significance under the modern principles for determining whether or not a failure to comply with a statutory provision means that a subsequent act is invalid, being the principles relating to that matter which were stated in Project Blue Sky.[63] In that case McHugh, Gummow, Kirby and Hayne JJ said:[64]

An act done in breach of a condition regulating the exercise of a statutory power is not necessarily invalid and of no effect. Whether it is depends on whether there can be discerned a legislative purpose to invalidate any act that fails to comply with the condition. The existence of the purpose is ascertained by reference to the language of the statute, its subject matter and objects, and the consequences for the parties of holding void every act done in breach of the condition. Unfortunately, a finding of purpose or no purpose in this context often reflects a contestable judgment. The cases show various factors that have proved decisive in various contexts, but they do not more than provide guidance in analogous circumstances. There is no decisive rule that can be applied;[65] there is not even a ranking of relevant factors or categories to give guidance on the issue.

87 In our view, the Project Blue Sky approach is relevant not only with respect to administrative decision-makers (such as in Project Blue Sky itself) but also with respect to statutory requirements relating to the jurisdiction or powers of the courts.[66] Indeed, several cases can be found in which Project Blue Sky has been

applied in relation to criminal proceedings, including jury trials.[67]

88 A learned commentator, Graeme Hill, has discerned five factors that may fall for consideration under the Project Blue Sky approach: (1) whether the statutory requirement merely regulates the exercise of a function already conferred or is, rather, an 'essential preliminary' to the exercise of a function; (2) the nature of the requirement, and, in particular, whether it has a 'rule-like quality' that can easily be identified and applied; (3) the public inconvenience that would result if non-compliance means that the decision was invalid; (4) whether there are any other means of giving effect to the relevant requirement, other than by invalidating a decision that does not comply with that requirement; and (5) the extent and consequences of the non-compliance in the particular case.[68]

89 The first factor was important in Project Blue Sky itself. The Australian Broadcasting Authority ('ABA'), which had the statutory function of determining Australian Content Standards for television programs, determined a Standard which contained a clause (cl 9) that was inconsistent with s 160 of the Broadcasting Services Act 1992 (Cth), being the Act under which the Standard was determined. Nevertheless, by majority, the High Court held that cl 9, though unlawfully made, was not invalid. The majority characterised s 160 as a provision which regulated the exercise of functions already conferred on the ABA rather than as a provision which imposed essential preliminaries to the exercise of the ABA's functions.[69] Their Honours then said:[70]

The fact that s 160 regulates the exercise of functions already conferred on the ABA rather than imposes essential preliminaries to the exercise of its functions strongly indicates that it was not a purpose of the Act that a breach of s 160 was intended to invalidate any act done in breach of that section.

90 Here, likewise, it can be said that s 212 of the CPA merely regulates the exercise of functions already conferred on the County Court. As the respondent submits, s 4(1) of the County Court Act 1958 establishes, as a pre-existing, fundamental function of the County Court, the function of trying such criminal offences as are within the jurisdiction of the Court, and s 36A of the Act defines the criminal jurisdiction of the Court.

91 On the other hand, as Hill points out, 'preliminary' does not refer to a chronological sequence of events, but rather to a matter that is legally antecedent to the decision-making process.[71] To assess the element of essentiality involves considering the purpose of the Act and the importance of the provision breached.[72] There are many statutory requirements, including procedural requirements, that seem to regulate an existing power, and yet non-compliance with them will invalidate a decision. So, as Hill puts it, a requirement may be 'essential' even though it is not 'preliminary' and even though it is procedural.[73] An example given is a statutory requirement to notify a person of relevant information. A breach of such a requirement will often lead to invalidity, just as a breach of the common law requirements of procedural fairness or natural justice will likewise do so.[74] Thus it is only some 'procedural' requirements the breach of which will not usually invalidate a decision.

92 Similarly, the fact that the criminal jurisdiction of the County Court is conferred by provisions such as ss 4(1) and 36A of the County Court Act 1958 (which are fundamentally different in nature from s 212 of the CPA and which are located in a separate Act), does not, of itself, defeat the applicant's arguments. It is true that there is a distinction between jurisdiction and power. As Toohey J said in Harris v Caladine:[75]

jurisdiction is the authority which a court has to decide the range of matters that can be litigated before it; in the exercise of that jurisdiction, a court has powers expressly or impliedly conferred by the legislation governing the court and 'such powers as are incidental and necessary to the exercise of the jurisdiction or the powers so conferred'.

Nevertheless, it is clear that, in some cases, the power (as distinct from the jurisdiction) of a court to make an order or take some other step will be negated by non-compliance with a statutory requirement, even where the requirement is procedural in nature.

93 However, in the present case, we would not regard a breach of s 212 of the CPA as being capable of negating the power of the County Court to conduct a criminal trial, especially in circumstances like those obtaining here, where any breach was accidental and no objection on the ground of time was taken before or during the trial.

94 Turning to the second Project Blue Sky factor identified by Hill, we would acknowledge that s 212 has a 'rule-like' quality that can easily be identified and applied. It is simply a matter of calculating the relevant period of time. It is quite different, in that regard, from the requirement to comply with Australia's international obligations that was breached in Project Blue Sky itself.

95 As to the third factor, namely public inconvenience, we have already indicated that, in our view, quite unacceptable consequences would follow from holding that non-compliance with s 212 must lead to invalidation of a trial otherwise properly conducted, whether or not a retrial would be available.

96 The fourth factor is whether there are any other means of giving effect to the relevant requirement. In our view, adequate effect is given to s 212 by recognising that, where the period prescribed has expired or may expire before the relevant trial, an application may be made to the court pursuant to s 247(2) of the CPA for an extension of the time prescribed by s 212. In addition, it can be safely assumed that every relevant court will endeavour to comply with the requirements of s 212 from day-to-day.

97 As to the fifth Project Blue Sky factor, the default (if any) in the present case was by no means egregious. The first trial was commenced in due time. Immediately after it concluded, a second trial was fixed for the first available date in the Court's calendar. Both parties were then represented by counsel. There was no objection to the date fixed on that occasion. Nor was there any objection at the directions hearing on 7 October 2015 or at the second trial itself. There is absolutely no suggestion that the applicant was disadvantaged by what occurred or did not occur.

98 Moreover, consistently with observations referred to above made by Ormiston J in Harris and by Nettle JA in MAC v The Queen, it is highly significant that the requirements imposed by s 212 are principally directed to the court, rather than to the parties. Indeed, it is beyond the power of the parties to ensure that a trial is commenced within the prescribed period. Statutory requirements of this kind form an established exception to the class of requirements in relation to which non-compliance generally leads to invalidity.

99 Thus, in Grigor v Rigby,[76] the accused was charged with an indictable sexual offence which was proposed to be heard summarily. He sought a permanent stay of the proceeding based on s 3A of the Sexual Offences (Evidence and Procedure) Act 1983 (NT). That section provided:

3A Time limit on prosecutions

(1) If a person is to be tried summarily for a sexual offence, the trial must be commenced within 3 months of the matter being first mentioned in court.

(2) If a person is charged with an indictable offence that is a sexual offence, a preliminary investigation under Part V, Division 1 of the Justices Act must be commenced within 3 months of the matter being first mentioned in court.

(3) If a person is to be tried on indictment for a sexual offence, the trial must be commenced within 3 months of the person being committed for trial.

(4) The court in which the person is to be tried, or which is to conduct a preliminary examination (as the case may be) may, if it thinks fit, at any time and despite that the period fixed by subsection (1), (2) or (3) (as the case may be) has expired, grant an extension, not exceeding 3 months, of the period.

(5) More than one extension may be granted under subsection (4).

The matter was first mentioned in the court of summary jurisdiction on a particular date and more than six months had passed since that date. The accused argued that the power to extend time was limited to a period of three months only and was, on that account, now beyond being extended. Mildren J rejected the argument. He held that, on the plain wording of s 3A(4), the Court could extend time at any time and notwithstanding that the time limited by the section had passed. His Honour saw no need to read into s 3A(4) a further limitation, that once six months had passed, an extension could not be granted. His Honour said:[77]

The purpose of s 3A is not to place a time limit on prosecutions for the benefit of accused persons. Section 3A is directed to the Court hearing the charge or the justice conducting the preliminary examination. It is plainly designed to ensure that sexual offences are dealt with by the courts expeditiously. This view of the purpose of s 3A is supported by the Minister's Second Reading Speech ...

Provisions such as s 3A have traditionally been held to be merely directory and do not take away the jurisdiction of Courts to hear charges laid outside of the prescribed time limit. The omission to comply with the time limit is the fault of the Court and is not one which could be remedied by either of the parties. In Montreal St Railway Co v Normandin,[78] the Privy Council said:

When the provisions of a statute relate to the performance of a public duty and the case is such that to hold null and void acts done in neglect of this duty would work serious general inconvenience, or injustice to persons who have no control over those entrusted with the duty, and at the same time would not promote the main object of the Legislature, it has been the practice to hold such provisions to be directory only ...

100 A similar approach was taken by Cox CJ in Commissioner of Police v Reid.[79] An issue in that case was whether the Sex Discrimination Commissioner of Tasmania had jurisdiction to accept a complaint of discrimination based on gender, having regard to the form of the complaint and in the light of certain statutory requirements. The requirements included that, where the Commissioner accepted a complaint, the respondent be notified accordingly within 10 days, and a further requirement that the Commissioner refer a complaint for inquiry by the relevant Tribunal within six months of the date of notification to the respondent or within any further period agreed with the complainant. It was alleged that these requirements had not been complied with. Cox CJ said:[80]

I find the suggestion that these sections impose mandatory requirements, non-compliance with which would deprive the Commissioner and ultimately the Tribunal of jurisdiction, completely at variance with the objects of the Act. While it is true the sections use the words 'is to', an expression which, like 'shall', the courts tend to treat as mandatory, they are provisions which fall into a recognised exception to the general rule. That exception is exemplified by Montreal Street Railway Company v Normandin[81] where the Privy Council said [His Honour set out the same passage from that case as Mildren J had set out in Grigor v Rigby.[82]]

101 In R v Resource Management and Planning Appeal Tribunal; Ex parte Wilson,[83] Underwood J (as the former Chief Justice of Tasmania then was) dealt with a submission that the respondent tribunal had made orders as to costs without jurisdiction, the submission being based on s 16(1)(f) of the relevant Act, which provided that, in an appeal, 'the Appeal Tribunal must hear and determine the appeal within 90 days after it is instituted or within such further period as may be granted under subsection (6) of s 16'. By subsection 16(6), the Minister was empowered to extend the 90 day period where the Minister was of the opinion that the interests of justice so required. The plaintiff submitted that the statutory period of 90 days had elapsed before the impugned orders with respect to costs had been made; that the Minister had not extended the 90 day period; and that, in those circumstances, the Tribunal had no jurisdiction to make any orders after the expiration of the 90 day period. Underwood J had regard to what had been said by the High Court in Project Blue Sky.[84] His Honour commented that there was nothing new in the relevant statement of principle in Project Blue Sky. To demonstrate this, his Honour cited the same passage from Montreal Street Railway Co v Normandin as had been cited in Grigor v Rigby[85] and Commissioner of Police v Reid.[86] His Honour also cited Woods v Bate,[87] where McHugh JA had said:

A statute which requires an act to be done within a particular period does not necessarily invalidate the doing of that act outside the period. The purpose of the statutory requirement may be directory rather than mandatory. It depends on the terms of the enactment. If the purpose of the provision is to ensure that the act is done within the stipulated period, then the doing of the act outside that period is of no effect. If, however, the purpose of the provision is to state a direction but not an imperative requirement, then the doing of the act outside the period will not necessarily invalidate it. To determine what is the purpose of the provision, it is necessary to weigh the various consequences of a failure to comply with the statute: R v Ingall;[88] Caldow v Pixel;[89] and cf Clayton v Heffron.[90]

Underwood J then cited R v Urbanowski;[91] Accident Compensation Commission v Murphy;[92] and Gahan v Frahm.[93] His Honour continued:[94]

It is inconceivable that by the enactment of the Act, s 16(1)(f), the Parliament of Tasmania intended to deprive the Tribunal of jurisdiction if it did not determine an appeal within the prescribed 90 day period. Compliance with the 90 day period is something over which the parties have virtually no control. Such a construction would wreak great hardship on litigants before the Tribunal if, through an oversight, an appeal was not determined within the prescribed period. Such a construction could cause enormous delay and wastage of time and costs. All of this would be contrary to the objective specified in the Act, Sch 1, the achievement of which the Tribunal is bound to attempt by virtue of the Act, s 5(3).

The power conferred by s 16(6) may be exercised after the 90 day period has expired. See Re Coldham and Others; Ex parte The Australian Building Construction Employees' and Builders Labourers' Federation.[95] Accordingly, subs 6 mitigates against the construction of subs 1(f), contended for by Mr McMillan for it is unlikely that Parliament intended that the Tribunal might lose its jurisdiction and then regain it after a period of being without jurisdiction.

102 A similar approach has for some years been taken in the United Kingdom to provisions comparable with s 212 of the CPA. R v Urbanowski,[96] an English case from 1976 to which reference was made in several of the Australian cases just mentioned, was in turn referred to by the Court of Appeal of England and Wales (Criminal Division) in R v Sekhon.[97] In R v Sekhon, the Court considered the procedural requirements for the making of a confiscation order against a person convicted of a relevant criminal offence. The Court held that the non-jurisdictional nature of the requirements of the relevant section was supported by R v Urbanowski. R v Sekhon, in its turn, was referred to with substantial approval in the decision of the House of Lords in R v Soneji.[98] Subsequently, in R v Stocker,[99] a case relating to the validity of an indictment which contained an error as to the date of the Act under which a charge of rape had been brought, the Court of Appeal (Criminal Division) considered R v Sekhon, R v Soneji and numerous other cases in the same line. In concluding that the appeal against conviction should be dismissed, the Court said:[100]

In our judgment, there is a clear judicial and legislative steer away from quashing an indictment and allowing appeals on the basis of a purely technical defect. The overriding objective of the criminal justice system is to do justice - to ensure the acquittal of the innocent and the conviction of the guilty. To that end, procedural and technical points should be taken at the time of the trial when they can be properly and fairly addressed. ...

The only error here was to click the 1956 box rather than the 2003 box. It could have been cured easily by an amendment at any time. That seems to us to be something of a pure technicality. It has caused no prejudice whatsoever. We have borne very much in mind Lord Bingham's observations in Clarke and McDaid about not resorting to 'wholesale jettisoning of all the rules affecting procedure' and we have focused on the legal effect of the breach of the rules. Having done so, we cannot accept that an error in the date of the statute on these facts is so fundamental as to render the proceedings a nullity or that the draftsman of the r 14(2)...would have intended such an outcome for a breach of this kind.

103 In Bare v Independent Broad-Based Anti-Corruption Commission,[101] Santamaria JA cited[102] a passage from Burwood Council v Ralan Burwood Pty Ltd (No 3),[103] in which Sackville AJA had said:

In Smith v Wyong Shire Council,[104] Spiegelman CJ pointed out (at [41]) that Project Blue Sky expressly approved a line of authority in New South Wales on which McHugh JA relied in Woods v Bate.[105] In the latter case, McHugh JA said (at 567) that:

in recent times the courts have shown great reluctance to invalidate an act done pursuant to a statutory provision because of the failure to comply with an antecedent provision. Speaking generally, I think that, at the present time, the proper approach is to regard a statutory requirement, expressed in positive language, as directory unless the purpose of the provision can only be achieved by invalidating the result of any departure from it, irrespective of the circumstances or resulting injustice. (Citations omitted.)

In this connection, Santamaria JA referred also, and with approval, to R v Soneji.[106]

104 Returning to s 212 of the CPA, we reiterate that, in our view, it was not a purpose of the CPA that an act done in breach of that section should be invalid. Contrary to the submissions of the applicant, there is nothing in the explanatory memorandum or the second reading speech of the CPA to indicate that a central concern of s 212 is with the position or rights of the accused. Rather, those documents emphasise that the central purpose of the Act as a whole is to provide clearer processes and powers to assist the courts in managing cases more effectively. Indeed, it is worth noting that the Attorney-General stated that this would 'better indicate to practitioners the types of matters that can and should be determined before a trial commences. The bill provides simple, flexible and effective case management powers and procedures'.[107]

105 Ground 1 of the application for leave to appeal was expressed to allege that there was a 'substantial miscarriage of justice' by reason of the asserted non-compliance with s 212.[108] In effect, the argument of the applicant is that there was necessarily a substantial miscarriage of justice, simply because the County Court allegedly had no jurisdiction to commence and conduct the trial or to convict and sentence him. The respondent did not advance any separate argument to the effect that there was no substantial miscarriage of justice even if the County Court lacked

jurisdiction.[109] Nor, we should add, did the respondent squarely rely on the failure of the applicant at the trial to take any point about time.

106 However these things may be, we remain firmly of the view that the County Court would have retained jurisdiction and power to commence and conduct the trial and to convict and sentence the applicant, notwithstanding the assumed departure from the requirements of s 212.

107 For the reasons already given, it is unnecessary and would be inappropriate for us to express any view as to whether s 412 of the CPA would be available to the County Court at this stage as a source of power to rectify the assumed non-compliance with s 212.[110]

108 Likewise, having concluded that s 212 was not infringed and that, even if it was, any such infringement did not invalidate the trial or its outcome, we do not propose to express any view on the question whether this Court itself, in this appeal, would have the authority to make an order nunc pro tunc under s 247 to extend the time prescribed by s 212 for the commencement of the trial. However, lest our attitude in this respect be misconstrued, we note that we should not be taken to have accepted or rejected the position of the Crown (apparently shared by the applicant) to the effect that s 325 of the CPA is not available as a source of relevant authority. The position of the parties appears to be based on the proposition that the power under s 325 to 'set aside or vary' an 'ancillary order' would not extend to a power to add or substitute an order for extension of time in connection with such orders as may have been made at the directions hearing on 7 October 2015. In that regard, we would merely draw attention to what was said in Douglass v Gillman,[111] and in the cases referred to in that case,[112] as to the scope which might be accorded to a statutory power of a court or tribunal to 'vary' an order.[113]

109 For completeness, we note that we see no need, either, to comment on the question whether an application could be made at this stage to the Supreme Court (constituted by either the Court of Appeal or by a judge of the Trial Division) for the grant of an extension of time under s 247 of the CPA in exercise of the general jurisdiction of the Court under s 85 of the Constitution Act 1975. We merely note, once again, that the parties are agreed that s 85 would not be available for that purpose.

110 For the reasons we have given, we would not grant leave to appeal on ground 1.

111 For the purposes of the first trial, the prosecution filed a Notice of Incriminating Conduct pursuant to s 23(1) of the since repealed Jury Directions Act 2013 ('the 2013 Act').

112 The Notice made clear that the prosecution sought to rely on certain answers given by the applicant in his record of interview with police as evidence of incriminating conduct.[114] Among other things, the Notice contained the following:

1. The Prosecution intends to rely on the following evidence of the accused's conduct as evidence of incriminating conduct:

- the accused's assertion in the Record of Interview (ROI) of having very limited contact with the complainants.

For instance, 'I saw them just only three times since I have been in Australia.' (A47 of the first ROI).

When asked to describe occasions when the complainants were at the accused's house in his presence, the accused describes a single occasion when he was recovering from surgery, 'and that's all.' (A75 of the first ROI)

The evidence is in the first ROI at questions and answers 47 and 73-77 and the second ROI at questions and answers 66 and 113.

...

1. The Prosecution relies on the above statements of the accused in the ROI as evidence of lies going to consciousness of guilt. That is, the Prosecution will argue that the accused believed:

- that he had engaged in sexual activity with the complainants; and

- that admitting to contact with the complainants would show that he had an opportunity to engage in sexual activity with them.

113 By the time of the second trial, the 2013 Act had been repealed. It had been replaced by the Jury Directions Act 2015 ('the 2015 Act'). For the purposes of the second trial, no fresh notice of incriminating conduct was given under s 19 of the 2015 Act. In this Court, the respondent conceded that a fresh notice should have been given, but submitted that no substantial miscarriage of justice was occasioned by the failure to do so.

114 In this Court, the applicant acknowledged that the prosecution had relied on its original notice under the 2013 Act without any objection from defence counsel. It was submitted nonetheless that the matters relied upon by the prosecution were incapable of being considered evidence of incriminating conduct. Further, it was contended that there had been a total failure to provide details of how the alleged conduct related to any charge (or elements of any charge). Nowhere, so it was argued, did the judge determine - as she was required to - that the evidence relied upon was reasonably capable of being viewed as incriminating conduct.[115]

115 In our view, the applicant's contentions are without substance. The same counsel represented the applicant at the first trial and the second trial.[116] Adequate notice had been given under the 2013 Act of the prosecution's intention to rely on incriminating conduct flowing from some of the applicant's answers in the record of interview. Indeed, counsel for the applicant had expressly conceded at the first trial that it was appropriate for the prosecutor 'to go to the jury on the basis of consciousness of guilt' in relation to the applicant's alleged lies concerning 'opportunity'. Nothing materially had changed by the time of the second trial, other than that the 2015 Act had come into operation. The applicant's counsel was well aware that the prosecution sought to rely on the alleged incriminating conduct set out in the original notice. So much had been made clear by the prosecutor in discussion with the judge - in the presence of defence counsel - at the beginning of the second trial. Defence counsel, however, made no objection to the prosecution's reliance on incriminating conduct in the manner envisaged, or to the absence of a fresh notice under the 2015 Act.

116 Moreover, it seems to us that the judge did in any event determine under s 20(1)(b) of the 2015 Act that the evidence relied upon was reasonably capable of being viewed by the jury as evidence of incriminating conduct, albeit her expression of that determination was somewhat casual. Towards the end of the prosecution case, there was discussion about the directions that the judge would need to give to the jury in her charge. The discussion included the following relevant exchange:[117]

HER HONOUR: ... Then we've got the alleged lies in the record of interview which is a credit matter.

[PROSECUTOR]: Yes. We go there on the basis of consciousness of guilt that is ---

HER HONOUR: You do.

[PROSECUTOR]: Yes, absolutely.

HER HONOUR: All right, good to know that.

[PROSECUTOR]: We say, if they accept that this was a deliberate down playing, we say that they're then entitled to draw that consciousness of guilty inference. If they don't it then simply falls back to the old - well, classic credit position, so we invite the elevation of that to incriminating conduct.

HER HONOUR: All right, it's fine.

[PROSECUTOR]: Whether we get there, obviously is a matter for them but ---

HER HONOUR: No, that's absolutely fine.

117 Following the exchange we have set out, defence counsel made no submission to the trial judge that the relevant evidence was incapable of being considered by a jury as incriminating conduct, or that the judge had failed to make the determination required by s 20(1)(b) of the 2015 Act. Hence, even were it to be thought that there was a defect in failing to give a fresh notice under the 2015 Act, or that the judge had not specifically made a determination under s 20(1)(b), by his conduct of the applicant's case at trial, defence counsel effectively waived reliance on those supposed defects. Adequate notice of the intention to rely on incriminating conduct had been given for the purposes of the first trial, and it had been made clear by the prosecution that it continued to rely on the matters set out in the original notice. Moreover, the prosecution's anticipated reliance on the alleged incriminating conduct was canvassed orally at least twice in the course of the second trial. Not once did the applicant's counsel object. Thus, even if it could be concluded that there was a failure to adhere strictly to the requirements of the 2015 Act, it could hardly be said that any resulting miscarriage of justice was substantial.[118]

118 The applicant also argued under cover of ground 2 that the prosecutor relied upon an additional answer in the applicant's record of interview - the answer to question 37 - that had not been included in the prosecution's original notice. On a fair reading of the prosecutor's final address, however, we are unable to conclude that the prosecutor transgressed in the manner suggested. The prosecutor's reference to the subject-matter of the applicant's answer to question 37 was, so it seems to us, merely introductory to the arguments concerning the evidence of alleged incriminating conduct with respect to which notice had been given. There is nothing in the criticism levelled at the prosecutor' address.

119 Finally, insofar as ground 2 asserts that the judge erred in failing to direct the jury how the evidence of incriminating conduct related to any of the charges on the indictment (or the elements of the charges), that assertion is without substance. The judge directed the jury that the alleged lies could be used, first, as going to the applicant's credibility; and, secondly, 'as evidence that the accused man believed he had committed the offences, and that was why he was lying'. The applicant's case was a denial that any of the sexual activity alleged against him had occurred, and, in the main, did not involve a challenge to any of the elements of the offences charged. Thus, there was nothing inappropriate about a direction on incriminating conduct that embraced all of the charges, without a descent into the detail of each. Furthermore, the applicant's counsel took no exception to the charge. In the particular circumstances of this case, that failure presents an insurmountable obstacle to success on ground 2(c).[119]

Ground 3 - Evidence from complainant at first trial admitted on second trial

121 In the first trial, LL gave vive voce evidence, which comprised evidence-in-chief, cross-examination and re-examination.

122 At the outset of the second trial, the prosecutor made application under s 381 of the CPA to replay LL's evidence from the first trial without further calling her. The prosecutor submitted that LL had undergone emotional trauma in giving evidence at the first trial, and she did not wish to repeat it. (No evidence was, however, offered to support this submission.)

123 The defence opposed the application. It was explained that the defence case was that, because of a falling-out between the applicant and LK, the complainants' mother, LK had recruited KL to make false complaints against the applicant. KL had in turn, so it was theorised, recruited her two sisters, LL and CL, to join in making the bogus allegations. It was submitted by the applicant's counsel that the true reason LL did not wish to give evidence again was that she was embarrassed to once more lie in support of her sisters.

124 The judge acceded to the prosecution's submission, on the basis that she was not satisfied that s 381(1)(d) of the CPA was engaged.

125 Section 381 of the CPA provides:[120]

381 Admission of recording of evidence of complainant

(1) The court may admit a recording of the evidence of the complainant if it is in the interests of justice to do so, having regard to -

(a) whether the complainant's recorded evidence is complete, including cross-examination and re-examination;

(b) the effect of editing any inadmissible evidence from the recording;

(c) the availability or willingness of the complainant to give further evidence;

(d) whether the accused would be unfairly disadvantaged by the admission of the recording;

(e) any other matter that the court considers relevant.

(2) The court may admit the whole or any part of the contents of a recording and may direct that the recording be edited or altered to delete any part of it that is inadmissible.

126 It will be seen that the trial judge had a discretion to admit the recording of LL's evidence if it was 'in the interests of justice to do so', having regard to the considerations enumerated in paragraphs (a) to (e) of sub-s (1). In this Court, counsel for the applicant submitted that trial counsel was prevented from putting to LL that she did not want to give evidence again because she did not want to perpetuate the lies she had already told; and that, because trial counsel was incapable of further cross-examining LL, he was prevented from effectively putting the 'defence' of collusion before the jury.

127 We are not persuaded that any substantial miscarriage of justice resulted from the course adopted. During LL's evidence at the first trial it had been put to her in cross-examination that she had lied. Given that the jury in the second trial had the recording of LL's original evidence before them, they were capable of adequately assessing that allegation and her response to it. Moreover, the defence theory of collusion was capable of being fully ventilated through cross-examination of KL - the supposed instigator of the attempt to pervert the course of justice through colluded perjury - who gave evidence in person on the second trial.

Ground 4 - Evidence relating to charge 1 admitted as uncharged act

129 It will be remembered that at the first trial a directed acquittal was entered on charge 1 on the indictment (a charge of sexual penetration involving LL).

130 In this Court, the applicant contended in his written case that, despite the acquittal on charge 1, the prosecution 'sought to lead and did in fact lead before the jury the substance of that count on the basis of context (as an uncharged act)'. It was submitted that the applicant 'was entitled to be treated as not guilty [of] this charge', and that it 'could not be categorised as an uncharged act when he had been charged and acquitted'.[121]

131 It is important to note that the judge in the first trial directed the jury to acquit on charge 1 because, in effect, LL had alleged that she was abused by the applicant at a particular address in 2003, but the undisputed evidence showed that the applicant did not live at that particular address in 2003. The judge ruled that, in those circumstances, the first charge was not capable of adequate particularisation by reference to a specific time and location. Importantly for present purposes, however, the judge did allow the evidence to remain within the jury's contemplation as an uncharged act with respect to LL. There was no objection to this course by counsel for the applicant. Thus, in ruling on the directed acquittal, the judge in the first trial said in part:[122]

In this case the defence have run their case on the basis that the case concerning Charge 1 involve conduct [sic.] occurring at the [named] address. [Defence counsel] indicates that he would have run the defence case differently had the prosecution case been put as the conduct occurring at [a different address].

In addition he has adduced evidence which makes it impossible for the prosecution case to have occurred as alleged. It would not in my view be appropriate in these circumstances to allow the prosecution case to continue on a changed footing. It is an unfortunate aspect of this case that given the age of the complainant at the time of the alleged offending and the delay in complaint to investigating authorities that this situation has occurred. ...

Whilst it is in the public interest and that of the individual complainant's interest that the allegation making up Charge 1 be tried that must be balanced against the need to ensure that an accused is provided with the procedural and substantive safeguards which the criminal trial process permits. This is also in the public interest. In the particular circumstances of this case I intend to direct that a verdict of acquittal be entered into the record of the court for Charge 1 pursuant to s 241 of the Criminal Procedure Act.

It should be noted that this decision obviously turns solely on the facts of this somewhat unusual application. There is no objection to the evidence which has been led in support of Charge 1 being relied upon by the prosecution as further evidence of uncharged acts. Defence counsel do not [sic] raise any relevant unfairness in that course occurring and the evidence may be relied upon in that matter in the remainder of the trial.

132 Not only did defence counsel not object at the first trial to the relevant evidence being before the jury as an uncharged act relevant to LL, he made it clear in the second trial that he wanted the evidence before the jury. So much was made plain by the applicant's trial counsel in the course of the prosecution's application to admit into the second trial LL's evidence from the first. Counsel said:[123]

... our case theory of course is that [sexual activity] didn't happen. There are certain issues with charge 1 which are very powerful for us. If the application is granted, I'm certainly not going to seek that the evidence of the old charge 1 is actually removed, it actually supports our case theory.

133 Quite plainly, not only was it a deliberate forensic decision by the applicant's trial counsel not to object to the evidence, but he wanted it before the jury to support his 'case theory'. Hence, this was not a case where the prosecution, by use of the evidence as an uncharged act, directly challenged the acquittal on the first charge, or sought to use the evidence so as to materially undermine what was already the subject of a binding judgment and deny the applicant the full benefit of his acquittal.[124] The acquittal was directed on charge 1 in the first trial not on the basis that the sexual penetration of LL could not have taken place, but because it could not have occurred at the particular place alleged at the particular time alleged.

134 It was with the concurrence - and, indeed, insistence - of defence counsel that the impugned evidence was admitted. He wanted it before the jury so as to support his 'case theory'. In the event, both the prosecution and the trial judge treated it as evidence of context, and the trial judge properly directed on its use. As part of her directions, the judge referred to the defence position that the evidence was capable of demonstrating that the dates on which the alleged offences were said to have happened could not be correct.

135 There is no merit in ground 4. It cannot sensibly be concluded that there has been any miscarriage of justice, substantial or otherwise.

136 Under the umbrella of ground 5 - which contended that 'an accumulation of errors and irregularities in the trial ... led to a substantial miscarriage of justice' - the applicant's counsel sought to shelter a number of discrete complaints. Although the Court permitted counsel to adopt that course on this occasion, it should not be considered to be an acceptable course to advance distinct complaints - that should properly each be the foundation of separate grounds of appeal - under the cover of a 'catchall' ground. A ground claiming that an aggregate of errors has led a trial to miscarry is only appropriate where an appellant relies separately on distinct grounds of appeal which, when considered individually, might not found a conclusion that there has been a substantial miscarriage of justice, but which, when considered collectively, might found such a conclusion.[125] Any future attempts to bundle up discrete complaints in a single ground alleging an aggregate of errors is unlikely to be received as tolerantly as it was by the Court in the present case.

137 Those observations having been made, we will endeavour to deal with the different complaints embraced by ground 5 in the order in which they were dealt with by the parties.

138 In this Court, counsel for the applicant submitted that the applicant's trial counsel did not seek severance of the indictment, and separate trials as between complainants. It was submitted that he should have, given that the prosecution did not rely on tendency or coincidence, and, so it was argued, the complainants' evidence was not cross-admissible. Counsel contended that the applicant suffered unfair prejudice as a result of the jury hearing the evidence of the three complainants together.

139 Those submissions cannot be accepted. Trial counsel made a considered forensic decision not to seek severance (and separate trials). The following exchange in the second trial prior to empanelment - occurring in the context of discussion concerning the admission of the recording of LL's evidence from the first trial - makes that abundantly clear:[126]

[DEFENCE COUNSEL]: Yes. Our case theory is, of course, the younger of the twins, [KL], is the one that is controlling the sisters, and that's why there's no application for severance and the trial was ran [sic] from the ---

HER HONOUR: It's a forensic decision. I understand that.

[DEFENCE COUNSEL]: It was a forensic decision to keep all three complainants together to run a consistent case theory with them. It's on that basis that it's opposed because there may be a reason that [LL] was not prepared to lie for her sister any more, but I would need to put that to her. ...

140 Generally speaking, a person in the applicant's position is bound by the forensic decisions made on his (or her) behalf by counsel.[127] Hence, where trial counsel has made what appears to be a rational forensic decision, it is difficult (although, it must be said, not impossible) for this Court to conclude that 'as the result of an error or an irregularity in, or in relation to, the trial there has been a substantial miscarriage of justice'.[128]

141 When pressed during oral argument, counsel for the applicant several times eschewed any suggestion that trial counsel was incompetent. We are thus unable to conclude that there was any error or irregularity in, or in relation to, the trial, or that there has otherwise been a substantial miscarriage of justice flowing from trial counsel's decision not to seek severance (or separate trials).

142 Despite no objection having been taken by defence counsel at either the first or the second trial, the applicant's counsel submitted under cover of ground 5 that a miscarriage of justice resulted from KL being permitted to give evidence that either she or her sister had called the Kids Helpline. There is nothing in this complaint.

143 KL gave evidence that she told her grandmother about the abuse whilst it was occurring, prompting her grandmother to say, 'he [i.e the applicant] just loves us and not to worry'. KL went on to say that either she or her sister called the Kids Helpline around a year later. The applicant submitted that this representation could not be said to be 'fresh in the memory'.[129] As we have indicated, however, no objection was taken to the evidence at trial, and no argument was advanced in this Court as to why it should be determined that the representation was not 'fresh in the memory of the person who made the representation'.[130] Furthermore, it seems to us that the evidence might have been admissible to rebut the defence case that there had been a conspiracy between the complainants to concoct false allegations against the applicant. Indeed, no submission to the contrary was advanced at trial.

144 The submissions advanced by the applicant concerning the evidence of the call to the Kids Helpline are without substance.

KL gave evidence that her older sister had complained of similar abuse

145 In response to a question from the judge, KL gave evidence that her older sister, JL, had said 'something similar had happened to her'. This statement may have appeared - wrongly - to have been an allegation levelled at the applicant. By agreement, however, any misconception was promptly remedied in KL's re-examination, in which KL made it clear that JL had not been referring to any misconduct by the applicant when she asserted that something similar had happened to her.

146 Any perceived difficulty having been promptly - and, in our opinion, satisfactorily - resolved in KL's re-examination, there was no need for the judge to give any direction or take any further action.

JL gave evidence that one of her sisters told her the applicant had touched her

148 JL gave evidence that either KL or LL - she could not recall which - had told her that the applicant had touched her. In this Court, it was submitted by the applicant's counsel that, although this evidence was not objected to by trial counsel, nonetheless it was obtained by 'impermissible leading', and it was open to the further criticisms that it lacked precision and was not admissible as a prior representation. Hence, it should not have been admitted at all, despite the lack of objection.

149 On the other hand, the respondent submitted that the evidence was properly admitted as being capable of rebutting the applicant's assertion that he had never bathed or touched the complainants. Further, the trial judge directed the jury that the evidence was to be used solely for that purpose.

150 There having been no objection to the evidence at trial, it is, in our view, impossible to conclude that the admission of the evidence caused any miscarriage of justice.

151 LL's evidence from the first trial was, as we have said, played to the jury in the second trial. In the course of her cross-examination in the first trial, counsel had suggested that LL had changed her evidence between the committal and that trial. During the trial with which we are concerned, counsel for the applicant wished to rely on suggested prior inconsistent statements supposedly established by the purported changes. He raised this with the judge towards the end of her charge. It seems that counsel suggested to the judge that there was a problem with the transcript from the first trial not adequately disclosing the prior inconsistent statements. A fair reading of the transcript reveals, however, that any confusion was apparently resolved, and that the trial judge directed the jury on the relevance of prior inconsistent statements (and, in particular, directed the jury on the two examples upon which defence sought to rely).

152 The submissions on this aspect were without any substance.

CL was asked in her VARE whether she understood the importance of telling the truth

153 In the course of the VARE statement conducted on 21 March 2013, CL - who was aged 15 years (and thus a child) when the VARE was conducted - was asked whether she understood the importance of telling the truth. By the time that her VARE was played (and adopted by her) during the second trial on 28 October 2015, CL was no longer a child. The applicant submitted that the portion of the VARE in which CL was asked about the importance of telling the truth - questions and answers 6 to 14 - should have been excluded at trial.

154 There is nothing in this argument. CL was a child when the VARE was conducted. It was open to the police conducting the VARE to ascertain whether CL understood the importance of telling the truth, and for the judge to permit the jury to see and hear the impugned portion of the VARE so as to assess CL's reliability and credibility.

The complainants' mother gave evidence of the applicant's improper behaviour towards another young female

155 LK, the mother of the three complainants, gave evidence. She was cross-examined by trial counsel about a dispute concerning money taken by the applicant from the cash register of her business. Despite attempts by defence counsel to confine the witness, after intervention by the trial judge, LK gave evidence that a 19year-old female shop assistant in her business had complained about the applicant 'sitting next to the cash register with his legs a bit open'. In this Court, the applicant's counsel submitted that this evidence was highly prejudicial, and argued that the prejudice was not cured by the judge's directions about it in her charge, those directions being 'too little, too late'.

156 We reject the applicant's submissions. In our view, albeit that the directions in the charge were not given until three or four days afterwards, the judge's instructions to the jury would have cured any prejudice flowing from the impugned evidence. Thus, the judge directed the jury as follows:

Now you will recall during the evidence the complainants mother, [LK], was questioned about the argument between herself and the [applicant] which arose at their restaurant where he was doing renovations. During evidence [LK] said a student working on the cash register said the [applicant] was sitting nearby with partly opened legs and asked he be moved.

Now I direct you that this is not evidence of other sexual misbehaviour by [the applicant]. The fact that a female student effectively told [LK] she didn't like the way he was sitting, does not mean he was doing anything sexual. He could have been sitting there quite unconsciously. You must not reason this is sexual behaviour; there is simply no evidence that it was. It has no relevance at all.

You must not use this evidence in any way against [the applicant], and especially you may not use it to in any way reason he is guilty of the charges against him. Does that make sense to you, ladies and gentlemen? It could have just been anything. It might have been a very young student. You just do not know enough about it, and it has no relevance. In fact, it is not part of the evidence against [the applicant] at all. Its only relevance was about whether there was an argument between them.

So this evidence is relevant only as part of differing versions about how a dispute allegedly arose between [the applicant] and [LK and another]. Otherwise, it has no relevance at all.

157 Criminal trials are conducted on the fundamental assumption that - generally speaking - juries will understand, and act on, judicial directions.[131] We have no reason to think that the jury would not faithfully have applied the judge's directions concerning the non-use of the allegedly prejudicial evidence.

158 The applicant's counsel criticised various aspects of the record of interview. It was suggested that the interview was unfair because police had impermissibly cross-examined the applicant, and because of possible difficulties associated with the use of an interpreter.

159 None of the applicant's submissions concerning the record of interview can be accepted. The record of interview was edited by agreement, and no objection was made by the applicant's counsel at trial to any part that was played to the jury. Moreover, counsel at both ends of the Bar table made submissions to the jury on aspects of the interview.

160 The applicant's contentions concerning the record of interview are bereft of merit.

Prosecutor's final address about the failure to call a witness

161 PN, it will be recalled, was the applicant's son. The applicant criticised the prosecutor's final address insofar as there was reference to PN. It was suggested that the prosecutor's submissions were apt to reverse the onus of proof. In our view, however, the criticisms advanced are without substance.

162 During his final address to the jury, the prosecutor said:

I just want to say something very quickly about [PN]. You heard a number of questions during the course of cross-examination of [LL] in particular. [PN] will say this, [PN] will say that, and we didn't hear from [PN]. That doesn't matter. All it means is that those questions that were asked of [LL] about what [PN] might say, you can ignore, because that evidence wasn't called.

Now, there's no criticism there, these things can happen. But you just ignore those questions, because as her Honour will tell you, it's the answer that is the evidence, not the question. And if the question has got no foundation, like all of those things that [PN] was going to say, then that's the end of those matters. You can just ignore them completely.

163 These submissions by the prosecutor were entirely appropriate. They did not have the capacity to reverse the burden of proof. They simply drew the jury's attention to the fact that the questions of counsel did not constitute evidence. They were entirely proper, given that questions that defence counsel had asked had been prefaced with the suggestion that PN would say certain things,[132] yet PN was not called to give evidence.

164 There is no substance in the criticism levelled at the prosecutor's address insofar as it related to PN.

165 It was submitted that, although the judge gave a forensic disadvantage direction, it was inadequate with respect to part of the evidence of KL on charge 4.

166 KL, it will be remembered, gave evidence that she bled from the vagina after the applicant digitally penetrated her in the living room. Her evidence included the following:

[PROSECUTOR]: You said you were in the living room and the others have gone, maybe to the kitchen. What happened?---Yes. He came behind me and put his - - -

Take your time?---Put his hand in my pants and then he got his finger and then there will be two fingers into my vagina.

...

Did anyone interrupt or come into the room?---No.

And how did it stop? How did this incident come to an end?---Maybe when somebody was approaching into the room.

Do you recall how it came to an end?---I don't remember.

But it stopped?---Yes.

Physically did that cause anything to happen, what he did with his fingers?---Yes. I started bleeding.

And what did you do about that?---Nothing.

Did you tell anyone about what had just happened?---No, not straight away.

...

How long did the bleeding last?---Not a long time. I don't know. I didn't really see until later when I went to the toilet.

Was that at the parents' house or was that later and somewhere else?---Later at home.

Later at home, okay. And what did you notice? You've gotten home. You've said nothing about this, you're now at home. What did you notice?---Just blood on my underwear.

Did you tell anyone about that?---No.

Did you show anyone the underwear or do anything with the underwear?---No.

167 Among other things, the judge's directions on the forensic disadvantage flowing from delay included the following:[133]

... The complainants are unable to precisely identify the occasion in which the offences are alleged to have occurred with any specificity and it makes it very difficult for him to do anything other than raise a defence of denial. It makes it also extremely difficult ... to perhaps, bring forth alibi evidence. He simply cannot do that because of the lapse of time.

The complainants' own recollection of the events have faded. So they have not been able to provide some specific details of the alleged offences. They could not be medically examined close to the time to provide evidence contradicting the allegations. ...

168 In our view, the judge's direction concerning the lack of opportunity for contemporaneous medical examination was directly responsive to KL's evidence on charge 4 that she bled from the vagina and that blood was deposited in her underwear.

169 The attack on the forensic disadvantage direction cannot be upheld.

170 The applicant has not persuaded us that any of the alleged multiple errors agglomerated under cover of ground 5 can be substantiated. The ground cannot be upheld.

171 As we have mentioned, the sole ground of appeal as to sentence asserts that the sentence is manifestly excessive.

172 In support of the ground, counsel relied principally on the written case, in which it was submitted that the applicant is currently aged 44 years, with no prior or subsequent convictions, and has not been in custody before. He has had a good employment history. The last alleged offending of which he was convicted occurred in 2007, and there was significant delay in the case coming to trial which was not attributable to the applicant. It was submitted the sentencing judge failed to give sufficient weight to the rehabilitation of the applicant post-2007. Ultimately, it was submitted the sentencing judge must have failed to give sufficient weight to the matters in mitigation and imposed a sentence which is manifestly excessive.

173 On the plea, the judge was informed that the applicant's family in a South East Asian country had become scattered during a time of civil war. At the end of the civil war the applicant returned to his family and operated a wholesale cigarette business selling cigarettes to another South East Asian country. The applicant's brother migrated to Australia in 1985 from a refugee camp, and he sponsored his parents who followed in 1995.

174 The applicant arrived in Australia in 1997. He was described as an honest person and hard worker. When he arrived in Australia, the applicant had commenced work installing spas, and he thus acquired plumbing skills. The applicant most recently had been assisting his younger brother in his roofing business. Counsel informed the judge that the applicant had divorced his wife in 2013, they having separated in February 2012. Their marriage had been an arranged one. The applicant's former wife, however, remained supportive. Their child, PN, was born in 1993.

175 Counsel tendered a psychologist's report and a number of character references (although the judge refused the tender of a petition, signed by 36 people, which asked that the applicant not be imprisoned). The applicant had not been in trouble with police since arriving in Australia.

176 The offending (as found) was, according to the applicant's counsel, 'opportunistic' and a 'shocking breach of trust'. There was no remorse and the applicant maintained his innocence. It was conceded that a substantial term of imprisonment was appropriate.

177 Victim impact statements of all three victims were tendered and read on the plea. The prosecutor noted the age of the complainants and the lack of remorse, and submitted that the applicant's prospects of rehabilitation were relevant. The prosecution did not, however, seek a disproportionate sentence.

178 In her sentencing remarks, the judge described the offending as having played havoc with the complainants' lives. They had been marginalised and shunned by their community for airing the allegations, and their own parents had been unsupportive. CL had been in Year 12 at the time of the original trial and did not do well in her VCE.

179 The judge said that the applicant was 'utterly remorseless' and continued to deny the offending. Her Honour described as 'nonsense and rubbish' the applicant's suggestion that the allegations resulted from 'some sort of vendetta by the girls' mother over some financial dispute'.

180 Her Honour described the offending as 'persistent, opportunistic, exploitative' and 'a terrible breach of trust'. Only a sentence of imprisonment was appropriate.

181 The judge took into account the clear evidence that the applicant had otherwise been a hardworking man with no other history of criminal offending, although the weight of the applicant's previous good character was said to be much reduced. Further, the judge took into account that there had been some delay, with the offending not being reported until late 2012 or early 2013.

182 It will be seen that the two highest individual sentences - each of two years and six months' imprisonment - were imposed on charges 4 and 6, which, given that KL was aged under 10, attracted a maximum penalty of 25 years' imprisonment. Given the seriousness of the applicant's offending, and the absence of much in the way of mitigation, we are unable to see anything wrong in these sentences. Moreover, the individual sentences of 18 months' imprisonment on the other charges of sexual penetration, and of nine months on the indecent act charges, impress us as being entirely appropriate. Furthermore, the amount of cumulation ordered as between the sentences on individual charges strikes us as proper.

183 A finding that a sentence is manifestly excessive is a conclusion that does not admit of sustained argument or analysis. Once all of the factors relevant to sentence are intuitively synthesised, the sentence either appears to be outside the range appropriate in the sound exercise of discretion, or it does not. We have been unable to conclude that it might soundly be argued that the sentence in this case is manifestly excessive.

184 The applications for leave to appeal against conviction and sentence must both be refused.

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

[2] Crimes Act 1958, s 45(1). Since, on charges 4 and 6, the victim was under the age of 10 years, the maximum penalty was 25 years' imprisonment (see s 45(2)(a)); and on charges 2, 3, 5 and 7, the maximum penalty was 10 years' imprisonment (see s 45(2)(c)).

[3] Crimes Act 1958, s 47(1). The maximum penalty was 10 years' imprisonment.

[4] By agreement, her evidence from the first trial was played to the jury as part of the defence case.

[5] Supplementary written submissions of the respondent dated 20 September 2016 [2]. The respondent's assertion to this effect was not contradicted by the applicant in his written submissions in response dated 28 September 2016.

[6] On the hearing of the application, counsel expressly eschewed any reliance on s 25(2)(c) or any other provision of the Charter of Human Rights and Responsibilities Act 2006.

[7] Citing R v Symons [1981] VicRp 33; [1981] VR 297 ('Symons').

[8] Citing R v Darmody [2010] VSCA 41; (2010) 25 VR 209. Compare, in relation to earlier and different corresponding legislation, R v Talia [1996] VicRp 33; [1996] 1 VR 462, especially at 476; Director of Public Prosecutions v B (1998) 194 CLR 566, 576-78; R v Gee (2012) 113 SASR 372, especially at 418-22, [200]-[217].

[9] No such provision was contained in the predecessor to s 212 of the CPA, namely s 359A of the Crimes Act 1958.

[10] The respondent here referred to the explanatory memorandum for the Criminal Procedure Bill 2008. The respondent observed that the explanatory memorandum also stated that the time limitation after a successful appeal had been added to ensure compliance with the Charter of Human Rights and Responsibilities Act 2006 s 25(2)(c).

[11] Citing Lowe v The Queen [2015] VSCA 327.

[12] [2012] VSCA 19; (2012) 34 VR 193.

[13] (1998) 194 CLR 355, especially 388-91 [91]-[93] ('Project Blue Sky').

[14] The respondent cited s 4(1) of the County Court Act 1958 as the source of relevant jurisdiction. See also s 36A of the County Court Act 1958.

[15] Symons was also the only case that had been cited by the applicant's counsel in the relevant part of his filed written case.

[16] As indicated above, on 24 March 2015, shortly after the discharge of the jury, Judge Meredith had adjourned the proceeding and fixed the second trial for 26 October 2015.

[17] The whole of s 247 of the CPA is set out above. For convenience it is noted that s 247(3) provides:

(3) It is not necessary that an order be made under subsection (1) if a ruling made, or direction given, by the court provides for the extension or abridgment of time.

[18] Citing Project Blue Sky (1998) 194 CLR 355, 388-90 [91]-[93] (McHugh, Gummow, Kirby and Hayne JJ).

[19] Referring to s 36A(2) of the County Court Act 1958; Director of Public Prosecutions v Edwards [2012] VSCA 293; (2012) 44 VR 114 (Warren CJ, Weinberg JA and Williams AJA); Director of Public Prosecutions v Johnstone (No 2) (2010) 31 VR 20 (Cavanough J).

[20] See, generally, Project Blue Sky (1998) 194 CLR 355, 381-2 [69]-[70] (McHugh, Gummow, Kirby and Hayne JJ), recently applied in Independent Commissioner Against Corruption v Cunneen [2015] HCA 14; (2015) 256 CLR 1, 20-1 [31]. See also Pearce and Geddes, Statutory Interpretation in Australia (8th ed, 2014) [4.1].

[21] Cf Ho v King (1994) 34 ALD 510, 517 [20] (Moore J), cited in Pearce and Geddes, above n 20, [6.40].

[22] Cornwell v The Queen [2007] HCA 12; (2007) 231 CLR 260, 294 [88] (Gleeson CJ, Gummow, Heydon and Crennan JJ); Director of Public Prosecutions v Guariglia [2012] VSCA 105; (2012) 35 VR 445, 449-50 [20] (Nettle JA).

[23] See especially ss 182 and 205 of the CPA.

[24] The definite article is used in the same way in s 211, which contains corresponding time limits for the trial of a person for an offence other than a sexual offence.

[25] [2003] VSCA 113; (2003) 9 VR 154, 157 [8].

[26] See Deal v Father Pius Kodakkathanath (2016) 334 ALR 37, 47 [37] (French CJ, Kiefel, Bell and Nettle JJ); Comcare v Martin [2016] HCA 43 [42].

[27] R v Ng [2002] VSCA 108; (2002) 5 VR 257, 273-4 [31] and fn 35 and the cases there cited. See also Director of Public Prosecutions for Western Australia v Brown (No 2) [2011] WASC 191, [2], [37]-[38]; Jenkins v Director of Public Prosecutions [2013] NSWCA 406, [39]-[43]. And, for an indication that a judicial direction fixing a hearing date could well be treated as an implicit extension of time pursuant to a provision corresponding with s 247 of the CPA, see Director of Public Prosecutions v BDX (No 2) (2010) 27 VR 536, 541 [25].

[28] See Tilbury & Lewis Pty Ltd v Marzorini [1940] VicLawRp 41; [1940] VLR 245; Pearce & Geddes, above n 20 [11.21].

[29] Accident Compensation Commission v Murphy [1988] VicRp 52; [1988] VR 444, 447; Brygel v Stewart-Thornton [1992] VicRp 70; [1992] 2 VR 387, 397-9; Halwood Corporation Ltd v Roads Corporation [1998] 2 VR 439, 445-6; Gahan v Frahm [1999] VSC 410, [10]; Adams v Lambert (2006) 228 CLR 409, 414 [14], 420 [29]; Booth v Ward [2007] VSC 364; (2007) 17 VR 195, 210 [56]; Lansen v Minister for Environment and Heritage [2008] FCAFC 189; (2008) 174 FCR 14, 26-7 [34]; Tsolacis v McKinnon (2012) 38 VR 260, 277 [64]. In our view, s 45 of the Interpretation of Legislation Act 1984 is not applicable. It deals with the interpretation of 'may' and 'shall' (not 'must'). In any event, it is expressed to relate to provisions conferring powers. In our view, s 212 of the CPA is not such a provision: cf R v Harris (No 1) [1990] VicRp 26; [1990] VR 293, 299. See also the discussion of s 45 in Pearce and Geddes, above n 20, [11.13].

[30] [2012] VSCA 19; (2012) 34 VR 193.

[31] [1990] VicRp 26; [1990] VR 293 ('Harris').

[34] [1947] HCA 53; (1947) 75 CLR 409.

[35] Harris [1990] VicRp 26; [1990] VR 293, 300-1.

[36] (2010) 27 VR 536 (Warren CJ and Redlich and Harper JJA).

[38] CPA, s 1(a) (emphasis added).

[39] [2012] VSCA 19; (2012) 34 VR 193.

[40] The reasoning in MAC v The Queen would not, without more, cover that question.

[41] [2012] VSCA 293; (2012) 44 VR 114. And see also, now, NH v Director of Public Prosecutions (2016) 334 ALR 191.

[43] Here his Honour invited comparison with Yrttiaho v Public Curator (Qld) [1971] HCA 29; (1971) 125 CLR 228, 241 (Gibbs J).

[44] [1997] HCA 20; (1997) 188 CLR 114.

[45] See MAC v The Queen [2012] VSCA 19; (2012) 34 VR 193, 199 [24].

[47] His Honour drew a comparison with Re Testro Bros Consolidated Ltd [1965] VicRp 4; [1965] VR 18, 34 (Sholl J).

[48] [1990] VicRp 26; [1990] VR 293, 300-1.

[49] Broom's Legal Maxims (6th ed, 1884) 116-20; Jeffery v Jeffery (1949) 78 CLR 570, 588-9 (Dixon J); Hartley Poynton Ltd v Ali [2005] VSCA 53; (2005) 11 VR 568, 600 [65].

[50] MAC v The Queen [2012] VSCA 19; (2012) 34 VR 193, 201 [36].

[52] [1997] HCA 20; (1997) 188 CLR 114, 152.

[53] These observations of Kirby J, as applied by Nettle JA, have since also been applied by judges of the Trial Division in relation to other procedural requirements of the CPA: see Director of Public Prosecutions v Bryar (2014) 241 A Crim R 172, 190 [71]-[73]; Guss v Commissioner of Taxation [2015] VSC 259 [49].

[54] MAC v The Queen [2012] VSCA 19; (2012) 34 VR 193, 202 [38].

[55] Nettle JA drew a comparison with Minister for Immigration and Multicultural Affairs v Bhardwaj [2002] HCA 11; (2002) 209 CLR 597, 613 [46] (Gaudron and Gummow JJ).

[56] MAC v The Queen [2012] VSCA 19; (2012) 34 VR 193, 202 [39]-[40] (citations in original).

[57] [1965] VicRp 4; [1965] VR 18, 32, 35.

[59] Cf R v Snow [1915] HCA 90; (1915) 20 CLR 315; NH v Director of Public Prosecutions (2016) 334 ALR 191.

[60] [1989] HCA 46; (1989) 168 CLR 23 ('Jago').

[61] Ibid 54. It is true, of course, that in Victoria the common law position has been affected by the various forms of speedy trial legislation that have existed in this State since 1983: see Richard G Fox, 'Criminal Delay as Abuse of Process' (1990) 16(1) Monash Law Review 64, 66. See also, now, s 25(2)(c) of the Charter of Human Rights and Responsibilities Act 2006, which provides that a person charged with a criminal offence is entitled without discrimination to be tried without unreasonable delay. However, the applicant has not suggested that what occurred in the present case involved unreasonable delay. Further, what his counsel said on his behalf at the hearing before us clarified that the applicant did not, either, suggest that s 25 or any other section of the Charter bore upon the proper construction of the provisions of the CPA with which this case is concerned.

[62] MAC v The Queen [2012] VSCA 19; (2012) 34 VR 193, 202 [39]-[40]. See also and compare Lo Presti v County Court [2005] VSC 79, [10]-[11].

[63] (1998) 194 CLR 355, 388-9 [91]. See also at 390-1 [93].

[65] Howard v Bodington (1877) 2 PD 203, 211 (Lord Penzance).

[66] Cf Graeme Hill, 'Applying "Project Blue Sky" - When Does Breach of a Statutory Requirement Affect the Validity of an Administrative Decision?' (2015) 80 AIAL Forum 54, 55 fn 11. With respect to the learned author, we see nothing to the contrary in the case to which he refers in this respect, namely Berowra Holdings Pty Ltd v Gordon [2006] HCA 32; (2006) 225 CLR 364, 374-5 [28]. As the author himself notes (at 68 and fn 147), in Jenkins v Director of Public Prosecutions [2013] NSWCA 406, [34], the New South Wales Court of Appeal applied Project Blue Sky to the situation of a District Court Judge in connection with a statutory power to permit a jury to separate while considering their verdict.

[67] Australian cases relating to jury trials include R v Janceski [2005] NSWCCA 281; (2005) 64 NSWLR 10; R v Hellwig [2006] QCA 179; [2007] 1 Qd R 17; Jenkins v Director of Public Prosecutions [2013] NSWCA 406. In England, in R v Soneji [2006] 1 AC 350, the House of Lords applied Project Blue Sky in relation to statutory procedural requirements attending the making of confiscation orders following conviction of criminal offences.

[74] See, eg, SAAP v Minister for Immigration and Multicultural and Indigenous Affairs [2005] HCA 24; (2005) 228 CLR 294.

[75] [1991] HCA 9; (1991) 172 CLR 84, 136 (citations omitted), cited recently by French CJ, Kiefel and Bell JJ in NH v Director of Public Prosecutions (2016) 334 ALR 191, 212 [68].

[76] [2007] NTSC 64.

[77] Ibid [9]-[11] (citations in original, emphasis added).

[78] [1917] UKPC 2; [1917] AC 170, 175.

[79] [2000] TASSC 181; (2000) 9 Tas R 418.

[80] Ibid [17] (citation in original).

[81] [1917] UKPC 2; [1917] AC 170, 175.

[82] [2007] NTSC 64.

[83] [2000] TASSC 101; (2000) 9 Tas R 203.

[85] [2007] NTSC 64.

[86] [2000] TASSC 181; (2000) 9 Tas R 418.

[87] (1987) 7 NSWLR 560, 566 (citations in original).

[88] (1876) 2 QBD 199, 208.

[89] (1877) 2 CPD 562, 566.

[90] [1960] HCA 92; (1960) 105 CLR 214, 247.

[91] [1976] 1 WLR 455.

[92] [1988] VicRp 52; [1988] VR 444.

[93] [1999] VSC 410.

[94] R v Resource Management and Planning Appeal Tribunal; Ex parte Wilson [2000] TASSC 101; (2000) 9 Tas R 203, 208 [19]-[20] (emphasis added).

[95] [1986] HCA 87; (1985) 159 CLR 522, 529-30.

[96] [1976] 1 WLR 455.

[97] [2002] EWHC 30; [2003] 1 WLR 1655.

[98] [2005] UKHL 49; [2006] 1 AC 340.

[99] [2000] UKHL 53; [2014] 1 Cr App R 18.

[100] Ibid 261 [42], 262 [45]. Compare R v Janceski [2005] NSWCCA 281; (2005) 64 NSWLR 10; New South Wales v Corbett [2007] HCA 32; (2007) 230 CLR 606, 630 [97]-[98].

[101] [2015] VSCA 197; (2015) 326 ALR 198.

[103] [2014] NSWCA 404 [156] (citations in original).

[104] [2003] NSWCA 322.

[105] (1986) 7 NSWLR 560.

[106] [2005] UKHL 49; [2006] 1 AC 340.

[107] Victoria, Parliamentary Debates, Legislative Assembly, 4 December 2008, 4985 (Mr Hulls, Attorney-General).

[108] Presumably the reference to a substantial miscarriage of justice was included because of the provisions of s 267 of the CPA.

[109] See Baini v The Queen [2012] HCA 59; (2012) 246 CLR 469; Andelman v The Queen [2013] VSCA 25; (2013) 38 VR 659; T Alexander and D Ternovski, 'War of the Words: The New Meaning of Substantial Miscarriage of Justice' (2014) 88(4) Law Institute Journal 43. Compare Wilde v The Queen [1988] HCA 6; (1988) 164 CLR 365, 373; Jenkins v Director of Public Prosecutions [2013] NSWCA 406, [67].

[110] Cf Wallace Corporation v Waikato Regional Council [2011] NZCA 119; [2011] 2 NZLR 573, where the Court of Appeal of New Zealand, in coming to the conclusion that even if, contrary to its view, prosecuting authorities had been required to obtain leave from a District Court judge or registrar before laying informations against the appellants under the Resource Management Act 1991 (NZ), held that, nevertheless, having regard to R v Soneji [2005] UKHL 49; [2006] 1 AC 340 and other cases in the same line, the convictions of the appellants were saved by s 204 of the Summary Proceedings Act 1957 (NZ) (which provided that no conviction etc and no process or proceeding shall be quashed etc by reason only of defect, irregularity, omission or want of form, unless the Court is satisfied that there has been a miscarriage of justice).

[111] (1990) 19 NSWLR 570 (Needham J).

[112] Especially R v Tonkin; Ex parte Federated Ship Painters and Dockers Union of Australia [1954] HCA 38; (1954) 92 CLR 526, 528.

[113] Cf Ha v The Queen (2014) 44 VR 319, 333 [96].

[114] Section 22 of the 2013 Act defined conduct and incriminating conduct:

conduct means the telling of a lie by the accused, or any other act or omission of the accused, which occurs after the event or events alleged to constitute an offence charged;

incriminating conduct means conduct that amounts to an implied admission by the accused -

(a) of having committed an offence charged or an element of an offence charged; or

offence charged includes any alternative offence.

[115] Section 20(1) of the 2015 Act provides:

(1) The prosecution must not rely on evidence of conduct as evidence of incriminating conduct unless -

(a) the prosecution has given notice in accordance with section 19; and

(b) the trial judge determines that, on the basis of the evidence as a whole, the evidence of conduct is reasonably capable of being viewed by the jury as evidence of incriminating conduct.

[116] Different counsel appeared for the applicant in this Court.

[118] See Weiss v The Queen [2005] HCA 81; (2015) 224 CLR 300, 317-8 [45]-[46]; Baini v The Queen [2012] HCA 59; (2012) 246 CLR 469, 479 [26]; Andelman v The Queen [2013] VSCA 25; (2013) 38 VR 659, 677-8 [85]-[86].

[119] See, for instance, R v Clarke and Johnstone [1986] VicRp 64; [1986] VR 643, 661-2; R v Gallagher [1998] 2 VR 671, 681 (Brooking JA); R v Wright [1999] VSCA 145; [1999] 3 VR 355, 356 [2] (Phillips CJ and Charles JA); R v GAM [2003] VSCA 185, [10] (Winneke P, with whom Phillips JA and Eames AJA agreed). Compare Clay (a pseudonym) v The Queen [2014] VSCA 269; (2014) 43 VR 405.

[120] See generally Division 7 of Chapter 8 (ss 378 to 387) of the CPA.

[121] Counsel cited R v Storey [1978] HCA 39; (1978) 140 CLR 364 and R v Young [1998] 1 VR 402 ('Young').

[124] Young, 423; Washer v The Queen [2007] HCA 48; (2007) 234 CLR 492, 509 [38]-[39]; R v VN [2006] VSCA 111; (2006) 15 VR 113, 135-6 [86]; JRW v The Queen [2013] VSCA 255, [36].

[125] See R v Ireland [1970] HCA 21; (1970) 126 CLR 321; R v Gibb & McKenzie [1983] VicRp 78; [1983] 2 VR 155; R v Appleby (1996) 88 A Crim R 456; R v Kotzmann [1999] VSCA 27; [1999] 2 VR 123; R v Glennon (No 3) (2008) 12 VR 421; R v Gell [2006] VSCA 255; R v LRG (2006) 16 VR 89.

[127] TKWJ v The Queen [2002] HCA 46; (2002) 212 CLR 124; Nudd v The Queen [2006] HCA 9; (2006) 225 ALR 161; Patel v The Queen [2012] HCA 29; (2012) 247 CLR 531. See also R v Arundell [1998] VSCA 102; [1999] 2 VR 228, 249-50 [53]-[54] (Callaway JA); R v Mateiasevici [1999] VSCA 120; [1999] 3 VR 185, 196 [37] (Chernov JA); MB v The Queen [2012] VSCA 248, [45] (Maxwell P); Greensill v The Queen [2012] VSCA 306; (2012) 37 VR 257, 271 [55] (Redlich, Osborn and Priest JJA); Parsons (a Pseudonym) v The Queen [2016] VSCA 17, [78] (Maxwell P, Redlich and Priest JJA). Compare Allen (a pseudonym) v The Queen [2016] VSCA 59, [61]-[86].

[129] Evidence Act 2008, s 66(2).

[130] For example, see Clay (a pseudonym) v The Queen [2014] VSCA 269; (2014) 43 VR 405; Pate (a pseudonym) v The Queen [2015] VSCA 110; Hermanus (a pseudonym) v The Queen [2015] VSCA 304.

[131] Gammage v The Queen [1969] HCA 68; (1969) 122 CLR 444, 463 (Windeyer J); Gilbert v The Queen (2000) 201 CLR 414, 425-6 [31]-[32] (McHugh J).

[132] An example of cross-examination relating to PN is:

And [PN] is going to say that sometimes he was playing with the PlayStation at his auntie's house without [ON]. You would agree with that?---I'm not sure.