DPP v Tupou

1. Section 177(7) of the Criminal Procedure Act 2009 (Vic) ('CPA') provides that an accused may be indicted on a charge in respect of which an earlier prosecution has been discontinued.
2. On 11 February 2025, a direct indictment, being the current Indictment No. G13498847.1, was filed in the County Court and the prosecution of the accused was thus revived. Charges 1-5 are identical to those on the first indictment. Charge 6 is a new charge.
3. The accused submits that the Director's decision to re-prosecute the accused is not supported by the DPP's Policy.[6] I consider that this is of little moment.

The Charges and the Prosecution Case[7]

1. The complainant was born in March 2003. Her mother is Robyn Tupou[8] who commenced a relationship with the accused in 2009 after which time he took on the role of step-father to the complainant during the period of the relationship. Ms Tupou and the accused married in 2014.
2. The family lived in two addresses in Hastings between 2010 and 2016: 25 Readings Parade[9] and 9 Valmont Street.[10] Charges 1-4 and 6 relate to the Readings Parade house.
3. Charges 1 and 2 each allege an indecent act at the Readings Parade address - that between June 2011 and October 2013 the accused licked the complainant's vagina and rubbed his penis against her vagina respectively.
4. Charges 3 and 4 allege two further indecent acts (that the accused licked the complainant's vagina and that he rubbed his penis against her vagina) on a different occasion at the same address also between June 2011 and October 2013.
5. Charge 6 alleges that, on another occasion between March 2014 and March 2016 at the same address, the complainant fell asleep on the lap of the accused and woke to find him rubbing his exposed penis near her mouth.
6. Charge 5 concerns an occasion between September 2013 and December 2015 at the Valmont Drive address when it is alleged the accused placed his hand down the complainant's underwear and touched her vagina.
7. The main evidence relied upon by the prosecution is the evidence of the complainant. This evidence is examined in detail later in these reasons.
8. The prosecution also relies on two complaints pursuant to s 66(2) of the Evidence Act 2008 (Vic) ('Evidence Act'):

(a) A complaint made by the complainant to her mother on 19 June 2016 that the accused had been touching her 'where he's not meant to'; and

(b) A complaint made by the complainant later the same day to Alisa Hendrix[11], a close friend of Ms Tupou, in which the complainant told Ms Hendrix (while pointing to her own crotch) that the accused had touched her and that it was 'disgusting'. When Ms Hendrix asked the complainant if the accused had put his finger or penis inside her, the complainant said 'no'.

1. Ms Hendrix was cross examined at the committal hearing in relation to the matter. When asked about this aspect of her evidence, she said that the complainant 'was adamant on that'.[12]
2. It can be expected that, at trial, the jury will be directed that if they are satisfied that these complaints were made, they can use that evidence as both evidence of the truth of the representations and as part of their assessment of the credibility of the complainant.
3. The prosecution also relies on a number of uncharged acts as well as the six charged acts to establish that the accused had a tendency to have a sexual interest in the complainant and to act on that tendency. A notice pursuant to s 97 of the Evidence Act has been filed.
4. In addition to the six charged acts, five uncharged acts are identified in the Tendency Notice.
5. The source of the evidence of four of those is a statement dated 4 June 2024 made by the complainant ('2024 statement'). The 2024 statement is also the source of the evidence of the conduct making up charge 6. I will return to the significance of this later in these reasons.
6. The prosecution has also filed a Notice of Incriminating Conduct dated 28 April 2025 pursuant to s 19 of the Jury Directions Act 2015 ('JDA'). The two items of conduct said to be incriminating are:

(a) Telling a number of lies in a record of interview conducted on 21 June 2016; and

(b) Promising to buy the complainant anything to ensure she did not complain.

1. The evidentiary foundation for this second matter is also the 2024 statement.
2. I understand that the prosecutor intends to elicit these matters from the complainant as additional evidence in chief over and above her three VAREs. This may only occur by direction of the court which may in turn only be given if the court is satisfied it is in the interests of justice for it to occur.[13]

1. By a response dated 6 February 2026, the accused denies each of the charged acts and each of the uncharged acts: 'The allegations are untrue'.
2. The key questions at trial will be the credibility and reliability of the complainant.
3. In addition to foreshadowing an application for a permanent stay of all of the charges, the accused:

(a) Seeks an explanation about the way in which the evidence of the complainant will be adduced at the trial;

(b) Objects to the admissibility of most of the Record of Interview;

(c) Objects to the admissibility of the evidence the prosecution seeks to rely on as incriminating conduct; and

(d) Objects to the uncharged acts forming part of the tendency notice but accepts that the charges themselves are cross-admissible.

1. As noted, the central witness at the trial will be the complainant, Ms Evans. As she was a minor when the charges were filed, her evidence consists of three VAREs.
2. On 21 June 2016, the complainant (then aged 13) made her first VARE. The VARE began at 9.49 am but did not proceed smoothly.
3. After 20 minutes, the complainant asked to write certain matters out as talking about them was making her upset. The recording was stopped and during the break, she wrote a one page statement by hand ('hand-written statement').[14] She was permitted to read this aloud when the VARE was restarted at 11.25 am.
4. At 11.37 am, police became aware that the recording had malfunctioned - nothing was recorded between 11.25 am and 11.37 am.
5. With the benefit of some technical assistance, the recording resumed at 12.20 pm at which time the officer sought to 'rehash' the matters discussed but not earlier recorded ('second VARE').
6. During the course of this second VARE, as noted, the complainant gave evidence by reading out her handwritten statement in which she wrote that the accused had licked her 'annie'; that he 'only did it 6 or 7 times'; that's 'mostly what he did every time nothing else'; and 'all the times he did was when I was either on the Xbox or on my iPad and on a bed'.[15]
7. At the conclusion of the second VARE, the complainant was asked if there was anything else that she wanted to tell police and she said 'no'.
8. A third VARE was conducted on 13 June 2017. During that VARE, the complainant:

(a) told police that the only time she had a shower after any offending was an occasion at 9 Valmont Drive; and

(b) said that she had not felt wetness at any time the accused rubbed his 'doodle' on her 'annie'.

1. On 4 June 2024, the Complainant, by then aged 21, made a written statement to Victoria Police. She stated that she had spoken to police on 12 January 2024 and informed them that she now 'wanted to proceed with this matter'. Arrangements were made for Ms Evans to review her three VAREs.
2. In the 2024 statement, she states that she was around 14 when the VAREs were recorded. She adopts the VAREs as true and correct.
3. The complainant explains that, as she watched her VAREs, there were things she remembered that she did not mention because she 'just didn't want to talk about it properly'.
4. The 2024 statement is a lengthy document. It lacks specificity as to times, dates and locations. Counsel for the accused placed particular reliance in this application on paragraphs [13] and [14] which should be set out in full:

[13] [Jason TUPOU] use to work at my school...as a cleaner. I would have been in like Grade 6, at the time. I think I would have been 14 or 15 years old. He used to take me to school early in the morning. We would leave at 6AM, it was just the 2 of us, at this time I think my brother was in high School. There would be some teachers at the school whilst we were there. He used to clean before school started. He would clean the whole school, bathrooms, vacuum. He would even clean the outside rubbish. I'm not sure of his hours, but he was gone before school started. I think there was 2 shifts or something, when he also did it after school. Whilst he was cleaning I would lay in the back of his wagon, until he was done. I was ready for school, I had my uniform and everything on. He would convince me to stay home. He would bribe me with toys, chocolates or Macca's for breakfast, and so as a kid I did. He would just be like, you don't have to go to school if you don't want to. I remember this time, that I had to sneak out of the school, so the teachers didn't see me leave. > > [14] Little did I know, when we would go back home. It would have been the start of school time, like 9AM. No one else was home, when we got back. I don't know where everyone was, I just know I was home with him alone. He would put a movie on, most of the time it was a Kids movie, but it would just be whatever. It was either in the lounge room or my mum's bedroom. If it was in the lounge room it was on the TV, but if it was in the bedroom, it would be on my IPad. As the movie played he would start to feel up on me. I can't provide a specific example, it was just something that happened all the time. He would be touching me on my legs or my body, over clothing. He was touching me with his hands. It would be different every time, where we sat and our positions, so I can't really say. He eventually got to the point where he then proceeded to pull my pants down. It was different each time what I was wearing, so depending on what I was wearing, what he would do. When I say pants I mean both what ever I was wearing and my underpants. Sometimes they were pulled completely off and sometimes they weren't. Or it would just be on one leg, like my pants would hang on one leg. When I say eventually, I mean during the movie this would occur. He would be playing with my vagina. Just like feeling up on it, just like playing with it. Touching my bare skin with his hand, on top, inside, everywhere. Then he would pull his pants down and proceed to insert his penis into my vagina. That didn't happen every time, I can't say how many times that happened. It was the same every time, he would make me lie down on my back, and he would be in between my legs when he inserted his penis inside. He didn't wear a condom. I think there was sometimes that he ejaculated, as it would drip on me, like down into my crack or more wet than usual, meaning my vagina. I didn't have my period yet at this stage, I got it later, like when I was 16 years old or maybe even 17 years old. I didn't get my period until after he left my family for good. It would hurt and it got to the point where I would silently cry. Like I wouldn't be, there would just be tears. He never said anything during it or before it was going to happen, there was no conversation. Once he was finished what he was doing, he would tell me to go and have a shower. He would just stand up and put his pants back on. He would try and help put my pants back on, but I would just do it myself and walk off. Nothing was said afterwards, he would just go back to normal like nothing happened. [16]

5. At paragraph [15] of the 2024 statement, the complainant also describes an occasion when the accused sexually offended against her while she was sitting on the back seat of his Holden Commodore Wagon. She says this was when the accused was working at 'Jason's Cleaning Place'. Ms Evans states that the accused played with her vagina over her underpants.
6. Finally, at paragraph [16], the complainant describes a sexual assault by Mr Tupou when she was 'maybe 11 or 12 years old'.
7. It is apparent from the 2024 statement that the complainant is now alleging that, when she was about 14 or 15 years old, on at least two, and perhaps more occasions, in both the lounge room and her bedroom, the accused used his penis to penetrate her vagina to the point of ejaculation. She is also alleging that he assaulted her in his car on at least one occasion. These allegations are clearly additional to those made in the VAREs and which are the basis of the current charges 1-5 (and all 5 charges on the original indictment).
8. The allegation in para [16] of the 2024 statement forms the basis of charge 6. Otherwise, no further charges have been brought against the accused based on what are clearly very serious allegations in the 2024 statement.

1. Ms Roodenburg, who appeared for Mr Tupou, submitted that there are significant differences between the accounts in the VAREs and what appears in the 2024 statement. I accept that this is so. There are at least two explanations for this:

(a) As an adult, the complainant is better able to describe the offending; or

(b) She has not been honest in either her earlier accounts or this more recent account.

1. If the jury is satisfied of the latter, or at least has a reasonable doubt about the complainant's credibility, this will obviously be a matter of considerable significance in circumstances where her credibility is the central question in the trial.
2. For example, the complainant could be challenged about the difference between her account to Ms Hendrix in which she disavowed 'adamantly' any penetrative offending with the account in the 2024 statement that the accused had on several occasions penetrated her vagina with his penis to the point of ejaculation.
3. However, if counsel for the accused adopts this account, she would have to place before the jury evidence they would not otherwise hear of these very serious allegations which the complainant can be expected to say are true. Ms Gurry, who appeared to prosecute, conceded that this was forensically powerful material. This is the 'forensic bind' to which Ms Roodenberg refers. I will return to this issue.

The manner in which the prosecution uses (and does not use) the 2024 statement

1. Central to the accused's argument is the use (and non-use) of the 2024 statement by the prosecution to now present a different case to that which the accused originally faced in 2018. The accused submits that the prosecution has 'cherry picked' aspects of the 2024 statement to bolster the credibility of the complainant.[17]
2. This is rejected by the prosecution which argues that the allegations of sexual penetration lack sufficient detail to form the basis of charges as is often the case.[18]
3. In written submissions, counsel for the accused contends that the manner in which the prosecution proposes to use the 2024 statement in the current trial is unfair.
4. In summary, the prosecution is using the 2024 statement to:

(a) File an additional charge (charge 6) based on paragraph 16;

(b) Provide the basis for several uncharged acts which are relied upon to prove that the accused has a sexual interest in the complainant as tendency; and

(c) Provide a basis for one aspect of an incriminating conduct notice (based on paragraph 17).

1. However, the prosecution makes no use in its re-formulated case of the very serious allegations the complainant makes about penetrative offending she says were perpetrated on her by the accused.

1. The accused now seeks a permanent stay based on a combination of the following matters which, in combination, he contends prevent him from receiving a fair trial:

(a) The delay since the aborted trial in 2018;

(b) The missing part of the VARE;

(c) The impossible forensic choice he faces in deciding whether or not to cross-examine the complainant on the contents of her 2024 statement;

(d) The complexity associated with the complainant's evidence; and

(e) The inability of the trial judge to direct the jury to ameliorate any prejudice.

1. Of these, it is the third - forensic choice - that is the most significant in my view. The other issues are routinely confronted in re-trials and can all be accommodated by appropriate prosecutorial presentation of the case and jury directions. For example, leave may be granted for the complainant to give viva voce evidence in chief in addition to her VAREs. Any forensic disadvantage associated with delay can be ameliorated by jury directions.
2. Before considering the accused's arguments, it is necessary to summarise the applicable legal principles.

1. The applicable legal principles are not in dispute. They were recently summarised by the Court of Appeal as follows:

The power to permanently stay proceedings to prevent an abuse of process 'protects the integrity of the adversarial system of justice and the maintenance of the rule of law'. It enables a court to ensure that 'its processes are used fairly by State and citizen alike', protecting its ability to function as a court of law, and thereby maintaining public confidence in the administration of justice. > > Continuation of proceedings that are unjustifiably and unfairly oppressive will amount to an abuse of process. So will continuation of proceedings where it is not possible to conduct a fair trial. > > A person seeking a permanent stay 'bears the onus of proving that the trial will be unfair or will involve such unfairness or oppression as to constitute an abuse of process'. The onus is a heavy one, and the power to grant a stay will be exercised only in an exceptional case, as a measure of last resort. > > ... > > Whether 'any given case will constitute an abuse of process must fall to be determined on a close and careful consideration of the facts of the case'.[19]

2. An accused person is not entitled to a perfect trial. A degree of unfairness is countenanced. The question on an application like this is to determine if the trial will be 'unacceptably unfair'. In other words, whether the further prosecution of the case will be an abuse of process.[20]
3. The cases to which the court was referred generally involve unfairness to an accused arising from having to refer at a re-trial to prior acquittals.[21] That of course is not the present situation. Counsel were unable to refer the court to a case similar to this one and the court's researchers were no more successful. It is therefore necessary to determine the application by reference to general principles.
4. The interests of an accused person in receiving a fair trial must be considered in light of the 'especially strong' public interest in bringing allegations of sexual offences against children to trial.[22] That is a particularly important consideration where the allegations have not been tested at all as is here the case. As noted, this is in contrast to many of the cases in this area of the law where the issue is whether a re-trial should be conducted.

1. The requirements of a 'fair trial' are numerous.[23] However, for the resolution of this application, one particular requirement looms large. It is the ability of counsel for a person accused of a crime to test the evidence upon which the prosecution relies. Such testing is achieved by confrontational cross examination. 'Confrontation and the opportunity for cross-examination is of central significance to the common law adversarial system of trial'.[24]
2. Where, as here, there is one principal witness in the prosecution case, the ability to test that witness' evidence by cross examination is central to the requirements of a fair trial.

1. In a case such as the present, the main forensic goal of those representing the accused will be to seek to undermine the credibility and reliability of the complainant. The purpose of such a strategy is of course to place a doubt in the minds of the jury about whether the complainant can be believed when she gives evidence about the allegations giving rise to the charges.
2. One common way of doing this is to point out inconsistencies in accounts given by a complainant (especially accounts given on oath).
3. Where inconsistent accounts are given, a jury will generally be directed that they can take into account any inconsistencies in their assessment of the credibility and reliability of the complainant. They will also be directed that they may use either the account as evidence in the case.[25]
4. In this trial, counsel for the accused may well wish to challenge Ms Evans's credibility by asking her about the conflict between the account she swore was true on 5 April 2018 and the account in the 2024 statement. As noted earlier there are significant differences that are apparent from a comparison of the two of which two are of particularly significance in the determination of this application.
5. The first concerns whether the accused ever penetrated the complainant's vagina with his penis. In her VAREs and handwritten statement, Ms Evans said that there was 'nothing else' beyond the accused licking her vagina. She expressly denied ever feeling 'wet' after any of the offending. This is consistent with what Ms Hendrix says the complainant told her on 19 June 2016.
6. By contrast, in her 2024 statement, the complainant gave police a detailed account of multiple occasions of penile penetration during which the accused did not wear a condom. She said that she thought he sometimes ejaculated and told her to have a shower afterwards.
7. The second inconsistency concerns the location of the alleged offending. In her sworn evidence, the complainant only outlined offending in her bedroom when she was playing with her iPad or Xbox. However, her 2024 statement contains a detailed description of a sexual assault that occurred while the accused was driving his car and she was seated on the backseat.
8. As noted earlier, the prosecution has not included any of these further allegations of serious offending as part of its case either by way of further charges, evidence to support the tendency or as context. As Ms Gurry submitted, the prosecution determined to adopt this course in the exercise of its discretion. For sound reasons of policy, these are not decisions with which a court will generally interfere.[26]
9. It will be open to the accused's counsel to cross examine the complainant about these parts of her 2024 statement. It seems likely to me that when challenged, Ms Evans will tell the jury that the events she describes in her 2024 statement occurred. The jury will then have before it an account of sexual offending which is, on any view, more serious than the charges it is considering.
10. There is also a significant inconsistency between what the complainant says about penetrative conduct in her 2024 statement and the account she gave to Ms Hendrix. A complaint made about alleged offending can be compelling evidence in a case such as this. As noted, Ms Hendrix's evidence goes beyond the 'usual' complaint evidence. She is expected to tell the jury that she quizzed the complainant on the issue of penetration and that Ms Evans was 'adamant' it had not occurred.
11. Ms Hendrix's evidence about this is only as strong as the evidence of Ms Evans. If Ms Evans's credibility is damaged in cross examination, the impact of the complaint evidence is correspondingly weakened. A strong part of the prosecution case becomes a weakness.
12. However, for her credibility to be challenged fully, defence counsel must take the complaint in detail through her account of penetrative sexual offending including the details of ejaculation.
13. Ms Roodenberg, who appeared for Mr Tupou, submitted that such a challenge to the complainant's credibility would involve a 'dangerous and potentially highly prejudicial course' for the defence.[27] I accept that this is the case. This is the 'forensic bind': the accused can either cross examine about these matters running the risk that the jury will conclude that they occurred or he can not use any of this material leaving him with considerably less to challenge the complainant about.
14. None of this is to suggest that the complainant is necessarily lying in her VAREs or in the 2024 statement. There may well be explanations that she can give for the significant discrepancies. What is important for determining this application is that I accept that the accused has a real chance of securing an acquittal on some or all of the charges by pursuing the course identified by his counsel. However, by pursuing that course he also risks making matters considerably worse for himself and thereby increasing the likelihood of being convicted. This is the forensic dilemma.
15. Ms Gurry, for the prosecution questioned whether there would be any forensic advantage to the accused in his counsel adopting such a course as the complainant's answers may merely explain 'the delayed complaint in the context of the passage of time and maturity'.[28] Ms Gurry submitted that Mr Tupou still has available to him the basis for any challenges to Ms Evans's credibility that he had in 2018.
16. Ms Gurry went further and submitted that the accused may actually benefit from introducing the account of penetrative conduct in the 2024 statement 'as it may tend to suggest that there was insufficient evidence in relation to those allegations in order to found a charge'.[29] However, I consider that it is at least as likely that the jury may conclude that the accused has been convicted of those matters in another trial or that he is facing another trial. As the prosecution concedes, 'introducing speculation as to the circumstances surrounding why allegations do not form the basis of a charge is undesirable'.[30]
17. While it 'may be commonplace for an accused to have to decide whether or not to attack a witness' credibility by introducing uncharged acts',[31] this is a most unusual, perhaps even exceptional, case. The decision that the accused must make results from deliberate forensic decisions made by the prosecution in its selective use of the 2024 statement. Further, the uncharged acts that would be introduced are considerably more egregious than the charged acts. Finally, as explained in the next part of these reasons, any directions that might be given to the jury would be complex and would necessarily emphasise the evidence of the uncharged acts.
18. This is not a case where, on the material before the court, there is ample scope to attack the complainant's credit without introducing the contents of the 2024 statement.[32] Further, there is considerable benefit to the defence in introducing the contents of the statement albeit that doing so carries the considerable risks that have been discussed earlier.
19. It is necessary next to consider whether any directions to the jury could sufficiently ameliorate the identified unfairness in the event that counsel makes full use of the 2024 statement in cross examination.

1. If counsel for the accused utilises the 2024 statement in full to attack the credibility and reliability of the complainant, the directions that would be required in this case would, in my view, be considerably more complex than those usually required in a case of such a nature. For example, the jury would have to be informed that:

(a) It could only use the evidence of the complainant (which I assume would be that the penetrative sexual offending she described in fact occurred) in its assessment of her credibility and reliability and for no other purpose;

(b) In particular, it must not decide the case based on prejudice arising from what it has heard about the accused;[33] and

(c) Further, it must not use that evidence (other than certain discrete parts of it which would need to be identified) as tendency evidence.[34]

1. Those directions would have to be given in the context of directions identifying those parts of the evidence based on the 2024 statement that are able to be used as tendency evidence. For example, the distinction between the evidence in row 8 of the Notice that 'on more than one occasion the complainant's vagina felt wet and sticky' (based on para 12 of the 2024 statement), and the (unused) evidence of ejaculation after penetration (see para 14) is troubling. The jury may well speculate about it. At the very least it will cause confusion.
2. The jury will also be receiving directions on incriminating conduct, including conduct based on the evidence in paragraph 17 of the 2024 statement.
3. While I proceed on the basis that juries follow judicial directions, as Kaye JA observed in the recent appeal of Bennett, '... in a criminal trial, there may come a point where, if a judge gives too many directions of the kind that would be necessary in this case, the impact of those directions on the jury would be correspondingly diminished'.[35]
4. In my view, that point would be reached in this trial.
5. Therefore, and contrary to the submissions of the prosecution, I do not accept that the unfairness described earlier in these reasons could be sufficiently ameliorated by directions that could be given to the jury in this case.

1. The prejudice to the accused in this case is not simply presumptive, but actual and substantial. In my view, the combined weight of that prejudice necessarily strikes at the very heart of his right to a fair trial. I do not consider that it could be sufficiently offset by appropriate directions to a jury. Notwithstanding any such directions, I have concluded that a trial of the charges brought against the accused would be so unfair as to result in a process which would be quite alien to the fundamental principles that underlie the system of justice administered in this State.
2. Central to the result in this case is the forensic bind argument. The other grounds relied upon by Ms Roodenberg, while not sufficient by themselves to justify a stay, do bolster her argument about unfairness. In other words, it is the combination of matters that has led the court to conclude that any trial of Mr Tupou on the indictment before the court will be unacceptably unfair.
3. I have reached this conclusion well aware of:

(a) the primacy given by the courts to the Executive in determining whether criminal proceedings should be commenced and maintained;

(b) the strong public interest that criminal charges be determined at trial particularly in the case of offences such as those alleged to have been committed by the accused in this case; and

(c) the accused not having faced a complete trial in this case.

1. I am also acutely conscious of the likely impact of the ruling on Ms Evans. It is most unfortunate that the manner in which the prosecution has sought to use her 2024 statement in its reformulated case against the accused has led to this outcome.
2. Finally, I have determined this application without finding it necessary to assess the accused's argument that the prosecution in this case has engaged in conduct that is 'not befitting of the Prosecution'.[36] I take this to be a reference to the suggestion of 'cherry picking'. It is the effect of the prosecution's conduct and not what may have motivated it that is significant.

1. For the reasons explained above concerning this exceptional case, I consider that the application for a permanent stay should be granted and the Court orders that the charges against the accused be permanently stayed.

[3] Transcript of Trial Proceedings 5 April 2018, 90.

[4] A criminal trial commences when the accused pleads not guilty on arraignment in the presence of the jury panel - see s 210 of the CPA.

[6] Defence Submissions dated 10 March 2026, 11 [27]-[28] ('Defence Submissions').

[7] Summary of Prosecution Opening dated 28 April 2025 ('Opening').

[12] Transcript of Proceedings on 20 October 2017, 8.16-18.

[16] Depositions, 50-51 (emphasis added).

[17] Defence Submissions (n 6) 11 [29], 16 [45].

[18] Prosecution Submissions dated 18 March 2026 ('Prosecution Submissions'), [34].

[19] Rowan v DPP [2026] VSCA 44, 22-23 [102]-[105] (references omitted) ('Rowan').

[20] Bennett v R [2025] VSCA 208 ('Bennett'), 50 [223].

[21] Ballard v The King [2024] VSCA 26 ('Ballard'); Horner (unreported CCV 31 May 2024)

[23] See the useful summary in the judgement of Kiefel J (as her Honour then was) in Lee v New South Wales Crime Commission (2013) 251 CLR 39, [190].

[24] Lee v The Queen [1998] HCA 60; [1998] 195 CLR 594, 9 [32]; see also Stack v Western Australia [2004] WACSA 300 at [76]-129].

[25] Judicial College of Victoria, Criminal Charge Book (Web Page), 4.14.2 .

[26] Likiardopoulos v The Queen (2012) 247 CLR 265, 1 [2].

[27] Defence Submissions (n 6), 16 [49].

[28] Prosecution Submissions (n 16), 9 [41]

[29] Ibid [43], citing R v Storey [1978] HCA 39; (1978) 140 CLR 364.

[31] Brown v The Queen [2020] VSCA 26 [35] ('Brown').

[35] Bennett at [259] (his Honour dissented as to the result of the appeal); see also Green [2017] VSCA 277 at [105].

[36] Defence Submissions (n 6) 18 [52].