1. In the summary of prosecution opening, the prosecution alleged that after the complainant had gone to bed, the applicant and SB stayed up for some time before moving to SB's bedroom. There, so the summary alleged, the applicant made a number of attempts to initiate sexual activity with SB but was rebuffed. It was after this that the applicant asked SB whether he should say goodbye to the complainant and was told by SB not to do so as the complainant was asleep. The applicant then left SB's bedroom and went to the complainant's bedroom.
2. The applicant's counsel objected to the prosecution adducing this evidence.
3. The prosecutor submitted that the evidence was relevant as 'context' and disavowed any reliance on the evidence for tendency purposes. Although not expressed clearly, the prosecutor appears to have wanted to establish that the applicant left SB's bedroom in an aroused but frustrated state. The applicant's trial counsel did not dispute the relevance of the evidence but sought its exclusion under ss 135 and 137 of the Evidence Act 2008 on the basis that the unfair prejudice substantially outweighed the probative value of the evidence. Counsel submitted that the jury would engage in an impermissible line of tendency reasoning and that the applicant's conduct with SB painted him as a womaniser and philanderer.
4. The judge excluded the evidence on the basis that it had limited probative value and that there was a risk that the jury would reason that, because the applicant had been persistent in his attempts to have sex with SB, he would have engaged in similarly persistent conduct in relation to the complainant. The judge also considered that there was a risk that the jury would engage in tendency reasoning by thinking that the applicant was the type of person who would seek to engage in sexual activity even in circumstances where the other person objected or rebuffed him.

1. In her evidence-in-chief, the complainant gave evidence consistent with the prosecution's case, as set out above. She stated that on the night in question, herself, SB, and the applicant - whom she had not previously met - played games and consumed alcohol together. She recalled consuming two glasses of wine, one mixed drink and two shots of tequila, before going into her bedroom to sleep.
2. She said she went to bed and awoke roughly four hours later to the applicant performing oral sex upon her during which he penetrated her vagina with his tongue. She said that he then laid on top of her and inserted his penis into her vagina. She said that she told him 'no, I don't want to do that' and 'you need to stop'. She said after the penetration he put his penis in front of her face, asked or told her to suck it and when she refused he said 'just think of your cat's name' - recalling that earlier in the night she had told him that her cat's name was Surrender. The complainant denied inviting the applicant into her bedroom or inviting him to stay. After the applicant left, the complainant gave evidence that she went into SB's bedroom, distressed and hysterical, and repeatedly asked SB 'why did he come into my room?'. When SB asked whether the applicant had forced himself on her, she stated she had replied 'yes'.
3. The complainant gave evidence that, later that morning at a prearranged breakfast with SB and two other friends, she thought the 'first words that came out of [her] mouth was "I've been raped"'.
4. We interpolate to note that the complainant's evidence-in-chief did not finish that day, and the matter was adjourned until the following morning. When the hearing resumed, trial counsel for the applicant raised with the judge that a friend of the complainant - later identified as RP - had been present in the room while she gave evidence remotely. Counsel informed the judge that RP worked as a media consultant and that it would emerge in cross-examination that the complainant had expressed an ambition prior to the alleged rape to be the public face of a women's group who were campaigning against sexual violence. He did not apply to discharge the jury.
5. When the complainant's evidence resumed, the jury were played the recorded 'pretext call' which occurred two days after the incident between the complainant and the applicant. During the call the applicant told the complainant that they had kissed and the complainant had said 'just don't get me pregnant'. This statement by the complainant, the applicant suggested during the pretext call, was the only reason he 'went to the next level'. The applicant agreed that he performed oral sex on the complainant and had asked the complainant to suck his penis. He also agreed that he had told the complainant to think of the name of her cat. At one point in the conversation, the applicant said that he understood why the complainant was upset, stating:

I wondered how this would play out afterwards actually, 'cause at the time I kind of thought that ... I shouldn't have gone in there. Like... as soon as you said "Stop, I don't want you to do this," then I thought, "fuck," you know, "I shouldn't have ...

1. That concluded the complainant's evidence-in-chief.
2. There was then discussion between the judge, the prosecutor and trial counsel about whether the complainant would be cross-examined in the absence of the jury about any interaction she had had with the friend, RP, who had been present when she gave her evidence. In the result trial counsel did not press cross-examining the complainant on this topic in the absence of the jury and cross-examination commenced.
3. Under cross-examination, the complainant agreed she was a member of an online group called the 'Sacred Circle of Women', with a person called TL. Although the complainant prevaricated, she agreed that TL was attempting to be a voice for women who had been victims of sexual assault. The complainant agreed that she had been a member of an online thread concerning sexual violence against women called 'She Speaks', with a number of other women, including RP. The complainant accepted that during breaks in her evidence she had 'to a degree' discussed the substance of her evidence with RP, who had told her not to overthink things, not to go into it and just take it moment by moment.
4. After the incident, the complainant agreed that she wrote an entry in the thread stating that she had been raped and that:

I am in deep trust that justice will be served and that there is a higher purpose for this tragedy that has occurred at such a pinnacle time in my life.

1. The complainant was also cross-examined about her past alcohol consumption and was asked whether there had been instances when her excess consumption of alcohol had caused gaps in her memory. After some prevarication, the complainant agreed that there had been times when she was young where she had too much to drink and could not remember what had occurred.
2. The complainant was cross-examined extensively about inconsistencies in her various accounts.
3. It is not necessary to further rehearse all of the evidence adduced at the trial in order to explain our reasons for decision. It is useful at this point to identify some of the features of the contest at trial which the applicant seeks to emphasise:

(a) the complainant's accounts of the offending were not entirely uniform and there was scope for an attack on her credibility based on these inconsistencies and shifting levels of detail in her account;

(b) although there was no dispute at trial or in this Court that the complainant complained to SB about the offending in the early morning, whether that complaint was made immediately after the applicant had left the apartment or after a period of time (perhaps up to a few hours) was disputed in this Court;

(c) there was evidence that showed that around the time of the offending, the complainant identified herself as an advocate or spokesperson against sexual or violent offending against women;

(d) as is not uncommon, the complainant gave evidence remotely. What emerged at trial was that when she gave her evidence she was accompanied by a support person, RP, who worked as a 'brand consultant'. The inference being that RP supported the complainant in establishing her role as an advocate against sexual violence; and

(e) the applicant sought to establish that the complainant was attracted to a close friend of the applicant, RE, and that the allegation of sexual offending was a lie to cover up consensual sexual activity in order to not harm her chances of establishing an intimate relationship with RE.

1. In his closing address, trial counsel submitted that the complainant had motive to lie for two reasons. First, that only two days before the alleged rape the complainant had expressed an ambition to be a spokeswoman for the movement denouncing sexual violence against women. Counsel said it was a remarkable coincidence that, having expressed that ambition, two days later she was herself a victim of sexual offending. Secondly, the complainant had engaged in disinhibited behaviour with the applicant which may have affected her chance of establishing a relationship with the applicant's friend, RE.
2. Trial counsel made a direct attack on the honesty of the complainant, submitting that the complainant had falsely denied being involved in a campaign against sexual assault against women. He backed up this submission by reference to the online messages that were sent by the complainant on the 'She Speaks' thread. Counsel submitted that the complainant had also been dishonest in her denial of flirting with the applicant's friend, and on the question of her past alcohol consumption and its impact on her memory. Counsel also explored inconsistent statements made by the complainant, including as to the consumption of alcohol on the night, the time at which the various events occurred, and about the sexual offending itself.

1. The applicant's application was filed on 30 May 2024 - approximately 18 months outside the permitted time period. The applicant submits that the delay in filing his application for leave to appeal against conviction is attributable to a lack of funds and his incarceration. He submits that delays in accessing a computer, receiving relevant documents and material, and other time constraints associated with his incarceration prevented him from filing his application prior to the expiration of the permitted time period. As stated, the applicant is also unrepresented in this proceeding.
2. The respondent opposes the grant of an extension of time for the application on the basis of the significant duration of the delay and that the lack of merit of the application renders any grant of an extension of time futile.
3. The principles governing when this Court will grant an extension of time are well-established and were helpfully summarised in Madafferi v The Queen.[11]
4. We accept that the applicant's lack of representation in these proceedings and the obstacles arising as a consequence of his incarceration are sufficiently explicable of the approximate 18-month delay in the filing of the application for leave to appeal against conviction. We would grant the extension of time.

Grounds 1, 2 and 5: incompetence of trial counsel

1. Grounds 1, 2 and 5 each concern alleged failures of the applicant's defence counsel at trial. The proposed grounds are set out as follows:

Ground 1: a substantial miscarriage of justice occurred due to the incompetent failure of defense [sic] counsel, despite instruction, to adequately challenge inconsistent and unreliable testimonies, significantly impacting the trial's fairness and the jury's judgment.

Ground 2: a substantial miscarriage of justice occurred due [sic] the incompetent failure of defense [sic] counsel, despite instruction, to adequately challenge procedural errors and biases in the investigation and trial process, including the improper handling and collection of evidence and a disregard for exculpatory information.

Ground 5: a substantial miscarriage of justice occurred due to the ineffective assistance of counsel, which failed to adequately challenge the prosecution's case or present a coherent defence strategy.

1. As set out above, the applicant's submissions on grounds 1, 2 and 5 concern alleged incompetence of trial counsel.
2. In accordance with established practice,[12] the Court invited the applicant's trial counsel to respond to the applicant's allegations if he wished to do so. Trial counsel availed himself of this opportunity and filed a brief affidavit. He was cross-examined at some length by the applicant in this Court.
3. Trial counsel deposed that he had conferred extensively with the applicant while the applicant was on bail in the lead up to the trial, throughout the trial and up to the return of the jury verdict. He notes that he prepared the defence response following discussions with the applicant, and provided the applicant with a copy. The applicant did not raise any complaint about the contents of the document. Counsel notes that the applicant did not raise any complaints about the running of the trial at any stage, including in respect of any failure to follow instructions.
4. Counsel said that he sought instructions from the applicant in respect of the issue of the complainant's motive, and advanced arguments at trial consistent with those instructions.
5. When cross-examined on the issue of the duration of the period between the offending and the complainant entering SB's bedroom, trial counsel said that while he can recall this issue being raised - whether the complainant had immediately complained to SB or whether she had waited for a period of time first - it did not strike him as a critical issue nor of significant weight, given the directions that the jury would likely be given.
6. In respect of the applicant's submissions that the investigation was improperly conducted, counsel said that he explained to the applicant that it would be undesirable and ineffective to raise this at trial. The applicant accepted this at the time and counsel said he acted in accordance with those instructions.
7. Trial counsel said that the issue of the complainant giving evidence remotely was also discussed with the applicant. He noted that he gave advice to the effect that the court would likely permit this and that it would be undesirable to have the complainant physically present in court. He deposed that he had instructions to consent to the complainant giving evidence remotely. Further, he said that the issue of the complainant giving evidence in the presence of a support person was not raised initially and nothing was said about it at the time. Once it became known that the support person was an associate of the complainant who also worked as a 'brand consultant', counsel said that this was raised with the judge, and that he acted under instructions not to seek a discharge of the jury.
8. In respect of the evidence of SB about the events which occurred in her bedroom prior to the incident giving rise to the charges, counsel deposed that he viewed this evidence as relevant for context. He notes that the admissibility of this evidence was raised in pre-trial discussion and the advantages of seeking to exclude this evidence were raised with the applicant. He deposed that the application to exclude this evidence was made pursuant to instructions.
9. The applicant also gave evidence under oath at the hearing of the application for leave to appeal in this Court and was cross-examined on that evidence by the respondent's counsel. The applicant agreed with the evidence of trial counsel, that prior to the commencement of the trial, he was consulted on the preparation of the defence response and continued to retain him, despite having disagreements with him. The applicant accepted that in his cross-examination of the complainant and in his closing address, trial counsel had pressed inconsistencies in the complainant's account of the offending, her memory issues arising from alcohol consumption, the purported incongruity and unreasonableness of her attendance at a prearranged breakfast following the offending, and the complainant's potential motives to lie, albeit he said this was done 'inadequately' and in an 'incompetent' manner.
10. The applicant did not accept that he had instructed trial counsel not to cross-examine the police informant about bias in the investigation, and to not seek a discharge of the jury once the profession of complainant's support person, RP, became known. In respect of the evidence concerning the sexual contact between SB and the applicant, the applicant accepted that trial counsel had discussed the advantages of excluding this evidence, however, deposed that he remained strongly of the opinion that the evidence should be included and gave instructions to that effect, but was 'overruled' by trial counsel.

1. In respect of ground 1, the applicant submits that, against his instructions, defence counsel failed to adequately challenge inconsistencies in the complainant's testimony. He submits that the complainant provided five accounts of the incident which he characterises as 'distinct' and 'inconsistent'. Those accounts are:

(1) The account given to GH at the beach in the hours following the incident (the 'first account'). The applicant submits that in this account, [the complainant] recounted that she was given oral sex by the applicant and he left at her request. He submits that this account did not include details of the penile penetration.

(2) The statement given by [the complainant] to police at the hospital (the 'second account'). The applicant submits that in this account, [the complainant] first reports that she was woken up by the applicant performing oral sex on her and that he penetrated her with his 'flaccid' penis. He notes that she did not mention his use of his hands to insert his penis.

(3) The account given by [the complainant] at the committal hearing (the 'third account'). The applicant submits that in this account, [the complainant] suggests that he penetrated her with his penis a second time.

(4) The statement given to prosecutors by [the complainant] on 3 August 2022 in which, the applicant submits, that she first raises smelling SB on the applicant prior to asking him to stop and leave, and that SB told her that she had engaged in oral sex prior to the applicant entering [the complainant]'s bedroom (the 'fourth account').

(5) The account given by [the complainant] at trial in which, the applicant submits, the applicant's use of his hands to insert his penis was first raised, and the applicant's penis is described as 'semi-flaccid' (the 'fifth account').

1. The applicant submits that these accounts evidence inconsistencies in the complainant's account of the incident. Specifically, he identifies inconsistencies in the lack of reference to penile penetration in the first account; the description of his penis as 'flaccid' in the second account but as 'semi-flaccid' in the fifth account; the lack of reference to the use of hands until the fifth account; the mention of smelling SB on the applicant, and the purported reference to a second incident of penile penetration in the third account. The applicant also highlights in his written submissions other inconsistencies which were not challenged by defence counsel, including the time that the complainant entered SB's bedroom after the incident, the complainant's purported interest in becoming a spokesperson against sexual violence prior to the incident or her romantic interest in RE - a friend of the accused - and her consumption of alcohol and state of distress following the incident. This, he submits, should have undermined the complainant's credibility and the reliability of her evidence at trial, and should properly have been the subject of challenge by defence counsel. Failure of defence counsel to do so, the applicant submits, gives rise to a substantial miscarriage of justice.
2. In respect of ground 2, the applicant submits that defence counsel failed to challenge what he characterises as the 'procedural errors' and 'investigative biases' of the police that occurred in the handling and presentation of the evidence for trial. Specifically, he complains of the police's purported failures to consider the complainant's alleged interest in becoming a spokesperson against sexual violence; purported failures to obtain potentially exculpatory statements from relevant witnesses; alleged manipulation of witnesses statements and failure to correct false statements; and making a range of assertions and assumptions in relation to the DNA evidence, the applicant's motivations and the incident, which the applicant characterises as 'false'.
3. The applicant also submits that defence counsel, against his instruction, failed to address two procedural issues that arose during the trial. The first issue, he submits, arose by the complainant giving evidence remotely with a support person present in the room but off-camera, who worked as a 'brand consultant'. The second issue arose by the exclusion of SB's statement about the events which occurred in her bedroom prior to the incident. The applicant submits that these events were critically important to his defence and that, without them, the jury would not have been able to assess the state of mind of the complainant or the applicant, or assess the DNA and forensic evidence. He further notes the judge's comment that, had his Honour known that the complainant was aware that SB and the applicant had engaged in sexual activity prior to the incident, he may have ruled that SB's statements were admissible.
4. In respect of ground 5, the applicant submits that defence counsel acted against instruction on other occasions, including by challenging the admissibility of SB's statements about the events prior to the incident; failing to adequately challenge the forensic evidence presented at trial; and failing to adequately challenge SB's evidence. The applicant also reiterates his submissions made under grounds 1 and 2 about the incompetence of counsel in respect of the failure to address inconsistencies in the accounts of the incident given by the complainant; failure to challenge the complainant's motivations; and failure to challenge the presence of the complainant's support person. These failures of counsel, the applicant submits, gave rise to a substantial miscarriage of justice.

1. The respondent submits that the defence case was organised around a sound forensic theory - that the complainant was motivated to lie or reconstruct the incident due to her interest in becoming a spokesperson against sexual violence, and her romantic interest in the applicant's friend, RE.
2. The respondent further submits, citing Borg v The Queen¸[13] that even if incompetence of trial counsel is established, this does not provide a basis for appellate intervention, unless the incompetence was such as to occasion a substantial miscarriage of justice. They submit that this is to be assessed by whether, objectively, counsel's conduct is explicable on the basis that it could have produced a forensic advantage or avoided disadvantage.[14] They note that simply not acting on a client's instruction is insufficient to establish a substantial miscarriage of justice and the discretion of counsel in running the case is very wide.
3. The respondent also notes that the applicant's counsel cross-examined the complainant and raised inconsistencies in her evidence in his closing address. The jury was also directed, consistent with s 54D of the Jury Directions Act 2015, about how to treat differences in the complainant's account, and were thus entitled to accept beyond a reasonable doubt the account provided by the complainant.
4. The respondent further submits that none of the matters complained of by the applicant could have caused the jury to have a reasonable doubt.
5. In respect of the asserted inconsistency that the complainant reported vomiting after the incident but SB did not witness this, the respondent notes that the complainant denied at the committal hearing that SB would have witnessed this, as she used the main bathroom, rather than the ensuite bathroom located off SB's bedroom.
6. In respect of the contended for inconsistencies in relation to the complainant's alcohol consumption, the respondent notes that witnesses at trial were consistent in their observations about the complainant's level of intoxication, and that this accorded with the complainant's evidence that she was 'tipsy' and that her 'head was spinning' after consuming a cigarette before she went to bed.
7. In respect of the purported inconsistency surrounding what time the complainant entered SB's bedroom after the incident, the respondent notes that SB gave evidence that the complainant entered her bedroom between 2:00 am and 6:00 am. The respondent further submits that the precise time at which the complainant entered SB's bedroom was not a fact required to be proved beyond reasonable doubt.
8. In respect of the exclusion of evidence relating to the sexual contact between SB and the applicant prior to the incident, the respondent notes that after the evidence was ruled inadmissible, the judge was told that, inconsistently with how the objection had proceeded, there had been oral sex between the applicant and SB. However, the respondent says that no application to revisit the ruling was made by defence counsel. They also submit that this was a sound decision by counsel, and that admitting this evidence carried significant forensic risk and limited advantages, such as the risk that the prosecution would have made arguments to the effect that the applicant had been 'persistent and concerted' in his attempts to engage in sexual intercourse with SB; that the jury would perceive the applicant as a 'womaniser or philanderer'; or would have morally disapproved of his conduct. Further, the respondent submits that this evidence did nothing to rebut the prosecution's theory that the applicant opportunistically engaged in the charged acts because he was seeking personal sexual gratification and that there was a risk that the jury would speculate that, having been unsatisfied because of SB's rebuff, he took advantage of the complainant.
9. In respect of the submissions made in relation to the presence of the complainant's support person, RP, the respondent notes that the complainant was cross-examined on her relationship with RP and clarified that their friendship preceded RP's employment as a brand consultant. They submit that this did not cause the trial to miscarry, nor did defence counsel seek a discharge.
10. Finally, the respondent submits that the contentions made by the applicant against the informant have no evidentiary basis and pursuing them in the trial would likely have detracted from the clarity of the defence's case. They submit that defence counsel was correct to focus his submissions on the facts at issue in the trial.
11. The respondent submits that none of the emails filed by the applicant indicate that the applicant was dissatisfied with defence counsel's conduct. They submit that this is notable, given that the emails evidence the close involvement of the applicant in the running of the case, and given the two emails both dated 13 August 2022 were sent at a late stage in the trial, following the close of evidence. They further note that the emails do not request that witnesses be recalled or rulings be revisited.

1. Before coming to the applicant's specific complaints it is necessary to set out the well-established principles that this Court must apply in considering a ground of appeal that contends that trial counsel ran the trial incompetently.

1. The authorities make clear that in criminal trials, parties will generally be bound by the conduct of their counsel,[15] and counsel is 'ordinarily instructed on the implied understanding that he is to have complete control over the way in which the case is conducted'.[16] Wide discretion is conferred on counsel to determine the manner in which he or she contests the matter.[17]
2. In D'Orta-Ekenaike v Victoria Legal Aid,[18] McHugh J, reviewing the relevant principles, observed that:

The particulars of incompetence generally involve issues concerning admissions or failure to adduce or failure to object to certain evidence. Wrongly advising the accused not to give evidence is a common complaint. Cross-examination is the other main area of challenge - the failure to pursue inconsistencies, the failure to put certain questions. More unusual examples include intoxication, advising the client to plead not guilty and raising character during examination-in-chief without properly checking the accused's antecedents.

On many occasions appellate courts have reiterated the caution with which such allegations are approached. The Victorian Court of Appeal said:

• No doubt there will be many decisions made by counsel which, in retrospect, might appear to have been ill advised. However the mere fact that such decisions have been made and appear in retrospect to have been unwise will not, of itself, lead a court of criminal appeal to quash a conviction, for the simple reason that the making of those decisions is part and parcel of the process of a fair trial... A court of criminal appeal is poorly equipped to review decisions made by counsel during the course of a criminal trial, many of which have to be made on the spur of the moment or in circumstances with which an appellate court cannot hope to be familiar. Usually there must be something akin to flagrant incompetence of counsel before it will be moved to intervene.[19]

1. In TKWJ v The Queen,[20] Gleeson CJ observed:

For a trial to be fair, it is not necessary that every tactical decision of counsel be carefully considered, or wise. And it is not the role of a Court of Criminal Appeal to investigate such decisions in order to decide whether they were made after the fullest possible examination of all material considerations. Many decisions as to the conduct of a trial are made almost instinctively, and on the basis of experience and impression rather than analysis of every possible alternative. That does not make them wrong or imprudent, or expose them to judicial scrutiny. Even if they are later regretted, that does not make the client a victim of unfairness. It is the responsibility of counsel to make tactical decisions, and assess risks.[21]

[W]here decisions taken by counsel contribute to a defect or irregularity in the trial, the tendency is not to inquire into counsel's conduct, as such, but, rather, to inquire whether there has been a miscarriage of justice... In that exercise, the question whether the course taken by counsel is explicable on a basis that has or could have resulted in a forensic advantage is a relevant, but not necessarily a decisive, consideration.

The question whether there has been a miscarriage of justice is usually answered by asking whether the act or omission in question 'deprived the accused of a chance of acquittal that was fairly open'. The word 'fairly' should not be overlooked. A decision to take or refrain from taking a particular course which is explicable on the basis that it has or could have led to a forensic advantage may well have the consequence that a chance of acquittal that might otherwise have been open was not, in the circumstances, fairly open.

One matter should be noted with respect to the question whether counsel's conduct is explicable on the basis that it resulted or could have resulted in a forensic advantage. That is an objective test. An appellate court does not inquire whether the course taken by counsel was, in fact, taken for the purpose of obtaining a forensic advantage, but only whether it is capable of explanation on that basis.

As already indicated, if there is a defect or irregularity in the trial, the fact that counsel's conduct is explicable on the basis that it resulted or could have resulted in a forensic advantage is not necessarily determinative of the question whether there has been a miscarriage of justice. It may be that, in the circumstances, the forensic advantage is slight in comparison with the importance to be attached to the defect or irregularity in question. If so, the fact that counsel's conduct is explicable on the basis of forensic advantage will not preclude a court from holding that, nevertheless, there was a miscarriage of justice.[22]

TKWJ reinforced earlier decisions which had emphasised that where it is contended on appeal that a trial went wrong because of counsel's 'flagrant incompetence', what must be investigated is whether the process failed so as to result in a miscarriage of justice; rather than upon why - that is, the alleged incompetence of counsel - the process failed. But the importance of TKWJ is that it was stated or agreed in by four of their Honours, with more or less emphasis, that in determining whether the process failed, the subjective reason why counsel took the course complained of - it might be not seeking a particular direction, or making a particular submission, or not adducing particular evidence - was ordinarily irrelevant. The question whether the process failed, in the kind of case now under discussion, was to be resolved by deciding whether the course taken, objectively ascertained, was capable of explanation as having been taken for the purpose of obtaining a forensic advantage (although the fact that a forensic advantage might be objectively perceived did not necessarily mean that there had been no miscarriage of justice). Framing the enquiry that way gave due recognition to the fact that counsel will likely make many forensic decisions in the course of a trial, and an accused is ordinarily bound by the way in which his or her counsel conducted the trial.[23]

1. By way of general observation in the context of sexual offending, it may be added that community attitudes towards sexual offending have changed over recent times. Aspects such as delay in complaining of sexual offending and changes in the level of detail given by a complainant when questioned on different occasions, which may once have been problematic for the prosecution, may now be seen as a product of this type of offending, rather than as indicative of a complainant's unreliability or a lack of credibility. Judicial directions required to be given to juries reinforce these changing community attitudes. Trial counsel are routinely met with difficult forensic decisions as to the best way to cross-examine a complainant in sexual offending, wary that cross-examination not be viewed by a jury as insensitive or overly confronting. Such difficulties find reflection in the principles that apply to challenges to the manner in which a trial is conducted.

1. As already described, the applicant contends that his trial counsel did not adequately challenge, explore or respond to various matters at trial. In summary form they are:

(a) failure to challenge the five inconsistent 'versions' of the offending given by the complainant;

(b) failure to challenge other inconsistencies in the complainant's account (eg the timing of the complainant entering SB's room, whether the complainant vomited, and observations made of the complainant before and after the offending);

(c) seeking evidence of the applicant's attempts to have sex with SB prior to the charged acts be excluded;

(d) failure to request a discharge regarding the complainant's support person, RP;

(e) failure to adequately challenge forensic evidence; and

(f) failure to challenge the informant regarding 'investigative bias'.

1. Having carefully read the transcript of the trial, reviewed the evidence of trial counsel in this Court and the parties' written and oral submissions on the application, we are not persuaded that any of the matters relied upon by the applicant could reasonably found a conclusion that the trial miscarried due to incompetence on the part of the applicant's trial counsel.
2. Trial counsel contested the applicant's case in a competent manner and based upon apparently sound forensic decisions that were open to him at the time. The cross-examination of trial counsel in this Court largely proceeded on a misconception about the issues in this Court. Even if the applicant could establish that trial counsel had not followed his instructions, that would not be sufficient to make good his ground. The issue is whether there has been a substantial miscarriage of justice and whether the course taken by Counsel reflected the exercise of reasonable forensic judgment.
3. In evidence given in this Court, the applicant accepted that, in his cross-examination of the complainant and in his closing address, trial counsel made submissions in respect of the inconsistencies in the complainant's account of the offending and the circumstances surrounding the offending, as well as her potential motives to falsify her account of the offending.[24] It is also notable that in the correspondence sent from the applicant to his solicitor and trial counsel on 4 February 2022, and twice on 13 August 2022 he does not make the claims that trial counsel had failed to follow instruction with respect to the exclusion of the evidence concerning the sexual contact between himself and SB, the purported bias in the police investigation; or failure to seek a discharge of the jury as a result of the complainant giving remote evidence in the presence of RP. We accept the evidence of trial counsel that he discussed the options available during the trial and acted in accordance with his instructions including in respect of whether or not to discharge the jury.

1. Trial counsel challenged the various inconsistent accounts of the offending given by the complainant. Those issues were sufficiently raised in the evidence. In his closing address, trial counsel highlighted the purported inconsistencies in the accounts given by the complainant of the offending and the circumstances surrounding the offending.
2. Other purported inconsistencies in the complainant's evidence were also challenged by counsel at the trial. Counsel challenged the complainant about her alcohol consumption, and in his final address submitted that the complainant 'had problems with her memory and ... she wasn't honest about that aspect of it'. After recounting the answers given by the complainant at the trial on the topic of her prior history of alcohol consumption, counsel adequately pressed the submission that the complainant had not been truthful in this respect, making the submission that:

In my argument to you, another example of [the complainant] not being an honest witness and why wasn't she being an honest witness about the alcohol? Because it was such a critical feature of this case and she didn't want to admit the truth about it. So she attempted to deflect or to lie about the issue.

1. The applicant placed considerable store in the potential inconsistency as to whether the complainant told SB immediately after the applicant had left or sometime later. In our view, this was adequately ventilated and understandably was not a central feature. First, on any view there was a complaint shortly after the alleged incident. Even the longest possible time period between the applicant leaving the residence and the complaint would have provided little opportunity for the complainant to formulate and express a false account to SB. Second, the judge directed the jury as to the various circumstances in which a person might complain and that complaints may not occur immediately following the offending. These directions undercut any force that any focus on delay would have attracted in the mind of the jury.
2. Similarly, in cross-examination of SB and various other witnesses, counsel established that the complainant wanted to be a spokesperson for an anti-sexual assault movement and therefore had a motive to lie about being the victim of sexual assault. Counsel submitted that:

[The complainant] had apparently, only two days before the events the subject of the charges here, expressed an ambition to be a face or spokeswoman for a movement denouncing sexual violence against women... Obviously, the defence say, well, that seems like a remarkable coincidence, that someone would be saying that only days before saying, "Well, guess what?" Not only did [I] want to embark on this, but what do you know, almost instantly that I have decided or voiced my decision to do it or my ambition to be it, what a remarkable chance, here I am, the event happens that now qualifies me to say hey, I am a victim and I can now be the face because I speak from a position of knowledge and authority. I know what it's like.

1. Counsel also pursued the complainant's purported motive to lie due to her interest in pursuing a relationship with the applicant's friend RE.
2. The applicant was also critical of his trial counsel for excluding the evidence of the applicant having engaged in sexual activity with SB before entering the complainant's bedroom. There were very sound forensic reasons to exclude that evidence. As the judge observed in his ruling excluding the evidence, there was a real risk that the jury would misuse the evidence and treat the applicant as a person who had a tendency to persist in making sexual advances. There was a high chance the evidence, had it been admitted, would have reflected poorly on the applicant. There was no miscarriage of justice in having it excluded.
3. We turn next to the applicant's contention that counsel should have applied to discharge the jury because of the presence of the support person, RP, in the room with the complainant while she gave evidence remotely.
4. RP's presence was first raised in the context of the trial judge's consideration of closing the court for the purposes of the complainant's evidence and whether any exceptions ought be made for persons to remain in the courtroom. The prosecutor sought an exemption to allow RP to be present in the room with the complainant whilst she gave evidence remotely. Trial counsel did not object to RP's presence, seeking only that she be described as a 'support person' and that the jury be informed that 'such an arrangement is commonplace'.
5. Notwithstanding the absence of objection, the judge said:

I am a little concerned about this procedure, and it should be made clear to the witness... that the support person is not there to support her in giving her evidence or to make any indications to her or do anything other than sit there as a support person. But I can't see into the room. That's my concern.

1. The prosecutor noted that the court would be able to see the complainant, that any interaction with RP would be visible, and that the complainant is aware of what a support person can and cannot do while she gives evidence. The judge also said to the complainant, in respect of RP's presence, 'she is not to have any part in saying anything or doing anything without my permission'.
2. In our view, the intervention of the judge was adequate to deal with any potential risk of interference with the witness.
3. It follows that none of the complaints about the conduct of trial counsel provide a basis for impugning the verdict.

1. Grounds 3 and 4 both complain of alleged misconduct by the prosecution. The proposed grounds are set as follows:

Ground 3: a substantial miscarriage of justice occurred through prosecutorial misconduct, including the presentation of misleading arguments and failure to correct known inaccuracies in the testimony to the jury.

Ground 4: a substantial miscarriage of justice occurred by virtue of the prosecutor in closing address making misleading and inaccurate statements which invited the jury to invert the onus of proof and place it on the applicant.

1. Under these grounds, the applicant submits that the conduct of the prosecution during the trial, specifically during the closing address, which he characterises as 'misconduct', gave rise to a substantial miscarriage of justice.
2. Under ground 3, the applicant submits that the prosecution misled the jury in several ways during his closing address. Specifically, he submits that the prosecutor mischaracterised the nature of the first account given by the complainant to friends following the incident as containing 'no details'; failed to correct purportedly inaccurate evidence given by the complainant in respect of the time that she entered SB's bedroom following the incident and her motivations; made misleading claims in relation to the forensic evidence that the abrasion identified on the complainant was caused by the applicant's penile penetration; mischaracterised a statement given by SB in a manner designed to suggest that a friend of the applicant thought him to have been capable of offending in this way; and the prejudicial characterisation of the complainant as 'vulnerable' and the applicant as someone who was 'horny' and out to get what he wanted. The applicant also submits that the prosecution engaged in inappropriate rhetoric by suggesting that the complainant sought to entrap the applicant through a 'grand conspiracy'. This characterisation, he submits, was intended to inappropriately ridicule the defence case and obfuscate inconsistencies in the complainant's evidence.
3. Under ground 4, the applicant submits that the prosecution's closing address had the effect of inverting the onus of proof. He argues this on the basis that, through the prosecutor's assertion that the abrasion found on the complainant during the medical examination was caused by the applicant penetrating her with his penis, the onus of proof was, in effect, reversed and the applicant was required to demonstrate that he did not cause the abrasion.

1. Quoting the New South Wales Court of Criminal Appeal in R v Livermore, the respondent submits that:

[I]t is not suggested that a formulaic approach may be taken in assessing whether or not a Crown address exceeds the proper boundaries. On occasions, it may be that the overall tenor or impression made upon a jury by a Crown address which exhibits few, if any of these features nonetheless gives rise to the prospect that an accused has not received a fair trial. However, where a number of these features are present in a Crown address, there is a very real risk that a ground of appeal based upon the unfairness occasioned to an accused by such an address will succeed.[25]

This approach, the respondent submits, has been endorsed in this Court.[26]

1. The respondent submits that nothing in the prosecution's closing address could be described as intemperate nor did it contain improper attacks based on materials which were not in evidence. The respondent submits that the prosecutor did not ridicule the defence case as a 'grand theory', but merely pointed to eight pieces of evidence which might be of assistance to the jury in determining that the Crown's case had been proven beyond a reasonable doubt. These were:

(1) the circumstances of the applicant entering the complainant's bedroom;

(2) the complainant's account of what occurred in the bedroom;

(3) the complainant's actions in SB's bedroom immediately following the incident;

(4) the complainant's complaint to others shortly after the incident;

(5) the complainant's attendance at hospital;

(6) the complainant's account to police;

(7) the pretext call; and

(8) the forensic evidence, including the injury to the complainant's vagina and the DNA evidence.

1. The respondent submits that the intention of the prosecution's closing address was to rebut the defence's suggestion that the complainant sought to convict the applicant at any cost, and by submitting that had this been the case, she would not have taken actions such as showering and expressing doubts about whether she should report the incident.
2. Further, the respondent submits that references made to the applicant being 'horny' were not intemperate but rather, sought to illustrate the prosecution's case - that the applicant's offending was opportunistic. They submit that, given the applicant had admitted that he had engaged in sexual activity with the complainant during the pretext conversation, the fact that he was 'horny' was not in dispute.
3. In respect of the applicant's submissions under ground 4, the respondent submits that the prosecutor did not invite the jury to invert the onus of proof. Rather, the prosecutor's address noted that the prosecution bore the onus of proof and that the defendant was presumed innocent until found guilty. They note that this was reiterated by the judge in his charge. Accordingly, they submit, the jury could not have been under a misapprehension as to which party bore the onus of proof in the trial.
4. Further, the respondent submits that given the substantial duration of the prosecution's closing address, even if isolated comments were impermissible, they would not have overwhelmed the jury such as to give rise to a substantial miscarriage of justice.

1. We do not accept that the prosecution address exceeded the bounds of legitimate advocacy. Nor has the applicant established any misconduct on the part of either the police or prosecutor. The prosecutor went through the main items of evidence on which the prosecution relied. As the applicant accepted, the trial largely centred around whether the jury were able to accept the evidence of the complainant to the criminal standard. Nothing the prosecutor said distracted the jury from the central issues in the case nor undermined the standard and burden of proof.

Ground 6: whether a substantial miscarriage of justice occurred due to an aggregation of errors under grounds 1-5

1. The applicant's final proposed ground of appeal is expressed as follows:

Ground 6: ... a substantial miscarriage of justice occurred by virtue of an aggregation of errors contained under grounds 1-5, cumulatively affecting the trial's outcome and the integrity of the conviction.

1. The applicant submits under this ground that, when viewed in their entirety, the cumulative effect of the errors contained in grounds 1-5, as set out above, give rise to a substantial miscarriage of justice.

1. The respondent rejects this proposed ground. They submit that, as no error can be established on any of the applicant's proposed grounds of appeal, this ground therefore has no substance and must fail.

1. As no error can be made out under the grounds 1-5 of the applicant's proposed grounds of appeal, this proposed ground is futile and we would refuse leave to appeal.

[1] DPP v Esler [2022] VCC 1788, [60]-[62] (Judge Georgiou) ('Reasons'). The applicant was sentenced to 5 years' imprisonment (charge 1) and 6 years and 3 months' imprisonment (charge 2).

[6] Ibid [8]. This conduct gave rise to charge 1 - rape.

[7] This conduct gave rise to charge 2 - rape.

[11] [2017] VSCA 302.

[12] Knowles (a pseudonym) v The Queen [2015] VSCA 141, [127] (Ashley, Redlich and Priest JJA).

[13] [2024] VSCA 65.

[14] Citing TKWJ v The Queen [2002] HCA 46; (2002) 212 CLR 124, 132-133 [24]-[28] (Gaudron J); [2002] HCA 46.

[15] R v Birks (1990) 19 NSWLR 677.

[16] TKWJ v The Queen [2002] HCA 46; (2002) 212 CLR 124, 147-50, [74]-[77], [79]-[80] (McHugh J); [2002] HCA 46.

[18] (2005) 223 CLR 1; [2005] HCA 12.

[19] Ibid 65 [197]-[198] (citations omitted).

[20] (2002) 212 CLR 124; [2002] HCA 46.

[22] Ibid 133, [25]-[28] (emphasis in original) (citations omitted).

[23] Knowles (a pseudonym) v The Queen [2015] VSCA 141, [131] (Ashley, Redlich and Priest JJA) (citations omitted).

[25] [2006] NSWCCA 334; (2006) 67 NSWLR 659, 667 [31]-[32] (the Court); [2006] NSWCCA 334.

[26] Citing Basic v The Queen (2015) 251 A Crim R 91, 102-3 [64] (Priest JA, Ashley and Redlich JJA agreeing at [29]); [2015] VSCA 109.