1. In accordance with the applicant's wishes, the applicant's wife and brother-in-law each applied to appear on the applicant's behalf as 'McKenzie friends'. The principles concerning the ability of a 'McKenzie friend' to assist a litigant in person by prompting, taking notes and giving advice, and, in addition, by making submissions on behalf of such a litigant, were summarised recently by Walker JA in Myers v Victorian Civil and Administrative Tribunal.[16]
2. It has been said that a person not legally qualified will only be given leave to address the Court on an unrepresented litigant's behalf in a 'rare and exceptional' case.[17] The respondent did not oppose a grant of leave permitting the applicant to have a McKenzie friend speak on his behalf. At the hearing, the Court granted the applicant's brother-in-law leave to address the Court.

1. The applicant's applications are nearly 15 months out of time. The applicant's reason for needing an extension of time is said to relate to difficulty he experienced in preparing appeal documents. The application to extend time states that the applicant was unable to obtain legal assistance to file the necessary documents due to costs constraints and issues concerning his health and cognition. The applicant also alludes to a misunderstanding that apparently arose with a certain 'individual' who was supposed to handle the appeal process but did not do so. There is little in the way of material filed which is supportive of the application to extend time. The respondent opposes the application to extend time for reasons which include that the proposed grounds of appeal lack merit.
2. When considering an application to extend time, the Court must weigh into the balance matters such as the length of the delay, the reasons for the delay and the merits of the proposed grounds of appeal.[18] It is likely to be inutile to grant an extension of time if there is no merit. It is convenient, therefore, to turn to the merits.

1. The complainant was born in 1996 and was the daughter of 'AB' - the complainant's mother.[19] In 1999 AB began an intimate relationship with the applicant's eldest son 'CD'. When this relationship began, the complainant was aged three. The applicant lived in a town in rural Victoria. He would look after the complainant and the complainant's brother when AB, CD and the applicant's wife socialised together away from the applicant's house.
2. The complainant alleged that the applicant had sexually offended against her in the manner specified on the trial indictment. The complainant said that this offending commenced when she was aged about seven. The offending continued until the complainant was aged approximately thirteen. The offending ceased at around the time the relationship between AB and CD ended. The complainant described four separate occasions when she said that the applicant had offended against her.
3. All of the offending was said to have occurred at addresses in the rural town where the applicant lived. Two of those addresses (what, in these reasons, will be named 'the first address' and 'the second address') were residences where the applicant lived with his wife. The applicant and his wife had built their house at the second address.

1. The first occasion described by the complainant occurred between 2004 and 2005 at the first address. The complainant was a student at a local primary school. The complainant was with the applicant and other family members. They were watching a movie on television. The applicant told the complainant 'I want you to do something for me'. The applicant then instructed the complainant to 'sit on his lap and touch him and rub him'. The complainant was in her pyjamas. Once on the applicant's lap, the applicant placed a blanket over her. The applicant removed his penis from his clothing and told the complainant to touch and rub it. The complainant rubbed the applicant's penis up and down (charge 1 - trial indictment - indecent act with a child under 16). The complainant then pulled her hand back. This activity was concealed by the blanket.
2. The complainant recalled that this was the first time that she had ever touched the applicant's penis. The complainant recalled that the applicant's penis was hard and wrinkled. The applicant's offending went unnoticed by other family members who were present.
3. The jury acquitted the applicant of this charge.
4. The second occasion occurred in January 2005, after the applicant had moved to the second address. One night, between 2005 and 2006, the applicant and the complainant stayed at home while the applicant's wife and AB went to the local bowls club to play bingo. Shortly after the others had gone, the applicant said to the complainant 'Oh, let's go to bed early. I'm tired'. The applicant locked the front door of the house. They both went into the applicant's bedroom and the applicant closed the bedroom door. The complainant got into the applicant's bed. The applicant suggested that he wanted to 'play a game, like touching each other'.
5. The applicant removed the complainant's pyjamas and rubbed her vagina for a short time before inserting a finger into her vagina and moving his finger around (charge 2 - trial indictment - sexual penetration of a child under 16). The complainant gave evidence, led as context evidence, that the applicant tried to insert more fingers into the her vagina but was unsuccessful in doing so. The applicant told the complainant not to cry, but the complainant said that this hurt.
6. The applicant then went down on his hands and knees and said something like 'relax, this won't hurt you, it'll feel nice'. The applicant placed his mouth and tongue on the complainant's genital area. He licked around, and in, the complainant's vagina (charge 3 - trial indictment - sexual penetration of a child under 16). The applicant then made the complainant touch his penis (charge 5 - trial indictment - indecent act with a child under 16). The accused moved the complainant's head down to his penis and forced her to perform oral sex on him, telling her to 'suck' (charge 6 - trial indictment - sexual penetration of a child under 16).
7. After a period of time, the complainant told the applicant that she did not want to do it anymore. She said that she wanted to go to sleep. The applicant told the complainant not to tell anyone. After this, the applicant would often ask the complainant if she was 'horny'.
8. The third occasion occurred between 2005 and 2007 at the address of another of the applicant's sons - 'EF'. 'GH' was EF's female partner. She lived with EF in the same rural town as the applicant. GH had a dog named 'Savage'. The complainant said that she went with the applicant to EF and GH's house to feed Savage. The complainant said that when they arrived the applicant took her to a bedroom with a double bed. The applicant pushed the complainant onto the double bed, and instructed her to open her legs. The complainant complied and the applicant lay on top of the complainant and rubbed against her. As the applicant moved his body, the complainant could feel the applicant's erect penis rubbing hard on the outside of her vagina through her clothing (charge 7 - trial indictment - indecent act with a child under 16).
9. The fourth occasion occurred at the second address between 2007 and 2009. The complainant recalled that CD was home on this occasion. The complainant was aged between eight and 10 years. The complainant recalled that CD went to bed. The applicant then took the complainant to bed and tried to put his hands down her pants. The complainant was worried that CD might hear and said something like 'no, you can't do this now'. The complainant remembered that the applicant then said something like 'can you touch me then?'. The complainant then took off her pyjamas and the applicant made the complainant get on top of him. The applicant tried to put his penis in the complainant's vagina. The applicant's penis did not go in very far but it caused the complainant immediate pain (charge 8 - trial indictment - sexual penetration).
10. The applicant then said to the complainant words to the effect of 'OK, then just rub me'. After approximately 15 minutes, the applicant ejaculated and the complainant remembered seeing 'white stuff' come out of the applicant's penis (charge 10 - trial indictment - indecent act with a child under 16). The applicant left the bedroom and went to the bathroom.
11. The complainant said that the applicant regularly sexually assaulted her by rubbing her vagina; by performing oral sex upon her; and by making her touch the applicant's penis. The complainant said that the applicant would also sometimes try to insert his penis into the complainant's vagina. This evidence was led as context evidence. The complainant said that on one occasion, when she was seven or eight, she showed AB her sore and red vagina. This was after the complainant had stayed the night with the applicant. The complainant made no complaint about the applicant having offended against her on this occasion.
12. Under cross-examination, the complainant recalled telling her mother, in 2012, about the applicant's offending. She told her mother that it happened on nights when bingo was held. She said that she recalled AB and CD separating at some point, but that they then got back together. She said that she didn't have a memory of being babysat by the applicant when the applicant was living at the first address. She said that sometimes when her family visited the applicant and his wife, they would visit and then leave. Sometimes the complainant would stay overnight and the applicant would babysit her. She said that she was at the applicant's 'a lot' and that the complainant's brother was with her most of the time. She said that the applicant, his wife, or both of them together babysat her 'most weekends'.
13. The complainant said that on the first occasion, there were four adults in the room - the applicant, his wife, AB and CD. It was possible that the complainant's brother was there as well. She said that the applicant told her to be quiet.
14. As to the second occasion, the complainant's recollection was that the applicant locked the bedroom door by means of a 'press knob' on the door. The complainant disagreed with the proposition that there was no lock on the bedroom door.
15. The complainant agreed that the fourth occasion took place when the complainant was roughly eight or nine years of age. She said that the fourth occasion occurred after the third occasion. The complainant recalled that when the third occasion took place the dog Savage was a big dog with shaggy hair. She said that on the third occasion Savage was a 'proper dog'. She could not remember exactly when EF and GH had got this dog.
16. In December 2012, the complainant remembered being at a school break-up party. She was there with her friend 'IJ'. She said that she complained to IJ about having been the victim of sexual abuse when she was little. She then saw her mother with IJ and complained a further time. She denied that she said '[CD's first name] raped me', '[CD's first name] touched me'. She said that she complained about the applicant having sexually offended against her.

1. AB said that she gave birth to the complainant in 1996. She gave birth to the complainant's brother a year earlier. AB commenced her relationship with CD in 1999. After forming a relationship with CD she moved to the same rural town where the applicant and his wife lived. At some point AB, CD, the complainant and the complainant's brother moved in with the applicant and his wife. AB and CD later moved into their own house in the same rural town.
2. AB would socialise with the applicant's wife. They went to bingo together nearly every Saturday night. The bingo was held at the local bowls club. This was when AB's family lived in the same rural town as the applicant and his wife. The applicant would mind the complainant and the complainant's brother while AB and the applicant's wife went to bingo. The applicant babysat the children at the first address and the second address. The majority of the time the complainant and the complainant's brother would stay the night with the applicant. The applicant and his wife had separate rooms. At the second address, the complainant and the complainant's brother had separate rooms. The complainant would normally stay with the applicant in his room at the second address. The complainant would sleep in the applicant's bed. This started when the complainant was aged six or seven.
3. AB and CD broke up twice. The first time was in 2007 or 2008. This separation lasted about 12 to 18 months. During this separation, AB, the complainant and the complainant's brother continued to visit the applicant and the applicant's wife. The second separation between AB and CD occurred in 2010. This was a final separation. After the second break up, AB did not socialise with the applicant and his wife.
4. At some point, AB, CD, the complainant and the complainant's brother moved to a neighbouring town some 20 minutes away. After this occurred, visits to the applicant and his wife continued, but they were less frequent.
5. The applicant's wife would also go to Melbourne with AB to visit AB's oldest son who was residing in care. On these occasions, either the applicant or CD would look after the complainant and the complainant's brother.
6. In 2012, AB moved interstate with the complainant. At the end of 2012, the complainant went with her friend IJ to a Christmas break-up party. AB later received a phone call from the complainant. The complainant was very upset and asked to be collected. AB arrived at the party and saw the complainant. The complainant was drunk and upset.
7. The complainant got into the back seat of the car with IJ. The complainant started smashing her head into the car window. AB stopped the car; the complainant got into the front seat. Whilst in the car the complainant said 'I've been raped'. The complainant said '[the applicant] used to, he rapes, he raped me'. The complainant tried to get out of the car while it was moving. The complainant said 'Mum, it was happening all the time'. The complainant said '[the applicant] fucked me ... [he] fucked me every Saturday night when you went to bingo and it's all your fault'. When they got home, the complainant was put to bed. AB rang police the following day.
8. Under cross-examination, AB disagreed with the proposition that after the second separation from CD there was a property settlement which occurred in October 2009. The applicant and his wife were living at the second address when AB and CD first separated. AB said that the applicant didn't always look after the complainant at the same time as the complainant's brother. The babysitting normally occurred on a Saturday night. AB agreed that her mother would go to bingo every Saturday night. AB said that she went less frequently to bingo than her mother. AB disagreed that the applicant's wife did not go to bingo prior to 2008. Sometimes her mother would collect the applicant's wife and take her to bingo.
9. She denied that in 2012, in the car, the complainant said that '[CD's first name] raped me', '[CD's first name] touched me'.

1. IJ said that she first met the complainant at high school in Year 10. This was not in Victoria. IJ thought that this occurred in 2012.
2. IJ said that at the end of 2012, she was at a party with the complainant. Later in the evening, at the party, the complainant appeared hysterical and angry. IJ tried to calm the complainant down, but this didn't seem to work. A taxi was called for the complainant. The complainant was so distressed that the taxi driver refused to take her. The complainant was kicking the taxi and punching its windows. The complainant tried to run away.
3. IJ asked the complainant what was wrong. The complainant answered 'I was raped when I was younger'. IJ and the complainant returned to the complainant's house. IJ was pretty sure that the complainant's mother did not pick them up. Later, at the complainant's house, IJ heard the complainant say 'He raped me' or 'He touched me when I was younger'.
4. IJ said that the complainant's mother asked who the complainant was talking about. IJ was then asked about a statement that she had made to police. IJ was asked about the fact that, in this statement, she had mentioned CD's first name as the name of the person that she had nominated. IJ responded to this particular question in the following manner:

I wasn't quite sure what the name that was mentioned. I - I thought it was [CD's first name], but I got mixed up. But I did mention that I wasn't sure.

1. IJ was asked whether, 'as she sat there now' in March 2022, she had a better recollection 'of whose name was used in that conversation'. IJ responded as follows:

I don't. I couldn't say yes, because I don't remember since it was so long ago. Um, I would be lying if I would say - if I said, 'Yes, I do remember the name', because I truly don't remember what name was said in that conversation.

1. IJ said that her police statement was made in 2020.
2. Under cross-examination, IJ agreed that in her police statement she described being at the complainant's house when AB asked the complainant what was wrong. IJ agreed that she had said in her police statement that '[the complainant] then said something like, "[CD's first name] raped me" or "[CD's first name] touched me". I think that is the name she used. I knew [CD's first name] to be her mum's partner a while ago. They'd broken up some time before that'. The witness agreed that she had also said in her police statement:

The morning after or a couple of days later I asked [the complainant] a few questions about what she told me. I asked her she didn't tell her mum and she said it's because she was too young, didn't understand what happened. I asked her how it escalated for him to do such a thing, and she said she didn't know.

...

Over time we had a few other conversations about what happened. I think [the complainant] told me she was about seven years old. I know it wasn't a one-time thing. I think she told me it stopped when her mum broke up with him.

1. IJ said that when she spoke with the police she 'wasn't sure what the name was'. When it was put to IJ that in fact the complainant in 2012 had said to her '[CD's first name] raped me' or '[CD's first name] touched me', IJ replied:

But I did mention that I wasn't sure what name she used, because that's why I said, 'I think that's the name she used' because I wasn't 100 percent certain. I've never met these two men. I - I don't know who they are, I - so I don't remember what name she used.

1. GH said that she had been in a relationship with EF. In 2006 she moved to the same rural town where the applicant lived. In 2006 prior to moving to the rural town, and sometime prior to 26 May of that year, GH obtained a pet dog. The dog's name was Savage. Savage was a black and white kelpie/ blue-healer cross. The dog was a puppy; it was 'just tiny'.
2. It was GH's normal practice to go with EF to Adelaide about once every year or so. The applicant would mind the dog while they were away. The applicant had keys to their residence. The complainant went to their house on numerous occasions to feed the dog. The complainant told GH that she had done so. On one occasion GH returned from Adelaide and saw the complainant and the applicant at the house. GH said that she was told by the complainant that she and the applicant would watch TV at the house.
3. Under cross-examination, GH presumed that the dog's first vaccination would have taken place when the dog was six to eight weeks old.

1. The informant gave evidence of having taken various police statements. He said that he arrested the applicant on 27 March 2015. He said that as part of the investigation he sought to obtain attendance records concerning bingo nights that had been held at the local bowling club in the rural town where the applicant lived with his wife. In September 2014, he ascertained that bingo nights were held on Saturday nights. He discovered that each person who attended bingo was required to 'sign in'. He was told that this information was stored. In December 2014 he went to the bowls club and sought these attendance records. He discovered, however, that the records had been destroyed.
2. The informant gave evidence that the applicant had one prior finding of guilt. This was for theft in 1979; the applicant was fined. The informant said that the applicant denied having offended against the complainant when the allegations were put to him. The informant said, also, that his investigations revealed that there had been no locks on any of the bedroom doors at the second address.

1. In support of the conviction application the applicant filed a notice of application for leave to appeal against conviction ('notice of appeal') listing five proposed grounds of appeal; an 'amended' written case in support of those grounds; an unsworn 'amended' affidavit authored by the applicant's wife,[20] pictures of various telephone text messages, a 'Contract Note' relating to the sale in 2006 of a property located in the neighbouring rural town where AB and CD later moved; and a 'Property history' print out that related to the sale in 2007 of a further property located in that same neighbouring rural town.
2. The applicant's proposed grounds of appeal, which make footnote references to police statements and pages of court transcript, are expressed in the following terms:
   1. The trial miscarried on account of an improper/ unlawful empanelment process being employed in the selection of the jury in that the application [sic] was not allowed nor afforded a proper or adequate opportunity to make an assessment of any and all potential jurors and thus was not afforded the necessary and reasonable opportunity to exercise his rights to make a peremptory challenge.
   2. The Jury:
      1. was not empanelled in accordance with the law; and
      2. was not constituted according to law.
   3. The verdict of the jury was a nullity.
   4. During [IJ's] statement she wrote that [the complainant] was screaming at [a friend] and that she was violent towards the Taxi driver who refused to take her home even [IJ] was concerned about her health because she asked [the complainant] if [the friend] spiked her drink. The DPP witness [IJ] was coerced by the DPP to change her response during [the applicant's] trial, When [IJ] mentioned [CD's first name] as the perpetrator the DPP got [IJ] to change her response to [the applicant's first name] although, her written Affidavit stated clear that it reflected [CD's first name]. [IJ's] statement shows that [the complainant] was not coherent and required assistance going to bed. The miscarriage of justice is that we were unable to cross examine [IJ] to further understand the situation that occurred that night.
   5. During [the complainant's] trial, the initial cross examination by [defence counsel at committal] showed that there was question raised by [the magistrate] about evidence that ... the informant was to get from the [local] Bowling Club and to retrieve emails and text messages between [AB] and [KL],[21] as there were some emails showing that the two women colluded together and had [the applicant] charged and alternately he was wrongly convicted.
3. The notice of appeal and amended written case[22] are not professionally drawn. It is apparent that certain of the arguments that the applicant seeks to make in support of the conviction application cannot be sourced to any proposed ground of appeal. Some of the arguments that the applicant makes can only be gleaned from various of the other documents upon which he relies. For this reason, it is convenient to identify the essential topics that the applicant seeks to raise under general headings, with appropriate footnoted cross-reference to the notice of appeal and amended written case.

1. The first submission that the applicant makes is to contend that a fundamental error occurred concerning the empanelment of the jury. The applicant submits that during the process of jury empanelment the applicant was not afforded adequate opportunity to view prospective jurors so that he might appropriately exercise his rights of challenge either peremptorily or for cause. It was submitted, essentially, that the applicant was not given a 'reasonable opportunity to make [a] peremptory challenge';[24] nor was he given 'an adequate opportunity to view the face of [a] potential juror before the potential juror [was] seated or finish[ed] moving in accordance with [a] direction to move'.[25]
2. In order to assess the merits of this claim, it is necessary to understand the process that was adopted in this case when it came to the empanelment of the jury prior to the applicant's trial.
3. The applicant's trial took place on circuit. The Court, the parties, and, in particular, those representing the applicant, have had the benefit of a video-recording of the empanelment process. This video depicts that, prior to empanelment, the jury panel congregated in a room separate from the court room. It is apparent from the video, however, that those in the panel room and those in the court room were able - at least to some extent - to see each other by means of a television link. It is apparent from the video that it was anticipated that each juror selected from the panel would leave the separate room, enter the court room, and then, once inside the court room, move in a manner so as to give the applicant the opportunity to see the potential juror prior to exercising any right of challenge.
4. Before the process of empanelment commenced, the trial judge discussed with counsel what was to occur. The judge said that he would permit instructing solicitors to be present in the separate room in which the panel was seated during the process of calling over the panel. It is evident from the video that the members of the panel were required to wear facemasks of the type that have become ubiquitous since the Covid-19 pandemic. The judge said that as each panel member was called, the member would be required to stand and pull down their face mask.
5. The judge described to counsel the process that would then follow.

HIS HONOUR: We then empanel. When, because of the size of this thing, what we do is the challenge has to be - there's actual provision to - it's called the movement provision - I can actually make a direction about this - that when they get to the end of the dock they've got to be challenged before then.

PROSECUTOR: Yes.

HIS HONOUR: So they'll come in, go over to that wall, with their mask down ...

PROSECUTOR: So do you mean over this way?

HIS HONOUR: Yes, yes, with their mask down, then back again and the challenge thing, I'll direct, is to occur prior to their - or [the tipstaff] puts the thing around their neck, so prior his Olympic Games presentation - that's that, just so - look, for safety sake my associate doesn't call the next name until we've got a bum on a seat. Just - I'm sure that's probably being paranoid but I just sense someone saying something about that.

PROSECUTOR: Yes.

HIS HONOUR: So that's all good. I don't think there's anything else we need to worry about gents, is there ...

1. It is tolerably clear that the 'movement provision' the judge had in mind was s 39A of the Juries Act 2000 ('Juries Act'), which states as follows:

A trial judge may direct a potential juror to move in a particular direction to distinguish the potential juror from other potential jurors -

(a) to enable the Crown to consider whether to require the potential juror to stand aside in accordance with section 38;[26] and

(b) to enable each person arraigned adequate time and reasonable opportunity to view the face of the potential juror to consider whether to challenge peremptorily the potential juror in accordance with section 39.[27]

1. The court video depicts certain aspects of the empanelment process. In the main, the video depicts only the judge, the judge's associate and the jury panel (positioned in the separate room) each by means of separate cameras. It is apparent, however, that there was an ability for at least one camera to focus on a different part of the court room. For instance, when the applicant was arraigned one of the three cameras altered its default position in order to focus upon the applicant.
2. The video reveals that, indeed, the jury were called over by name, and - as had been discussed - when this occurred each member of the panel stood and removed their mask. It is apparent from the video - although this can't be seen clearly - that the instructing solicitors were present with the panel when the panel was called over. The video then reveals the taking of excuses.
3. The process of empanelment then begins. Just prior to empanelment, the judge's associate said the following to the applicant:

If you wish to challenge them [the selected jurors], or any of them, you will do so as their names are called before the juror passes the end of the dock.

1. Prior to the selection of the first juror, for empanelment, it is apparent from the video that the defence instructing solicitor was given permission to sit in the dock with the applicant, so as to assist him in the process of making challenges.
2. Once a juror's name was selected, that juror exited the separate panel room. The video does not depict the selected juror entering the court room; nor does the video depict where the juror moved once the juror was inside the court room (that is, prior to the juror taking his or her place in the jury box). Nevertheless, it is apparent from the video that there is a lapse of time between the point at which the selected juror can be seen leaving the panel room and when the next potential juror is selected.
3. Importantly, it is readily apparent from the video that the applicant exercised two peremptory challenges. It is apparent, also, that the Crown stood one selected juror aside. It can be seen from the video that those three jurors made their way back into the separate panel room.
4. At the oral hearing of this matter, it became clear that the basis upon which it was contended that the applicant did not have proper opportunity to exercise his rights of challenge was that the court video did not depict the movement of each selected juror once that person had entered the court room. That this was the essence of the applicant's submission became clear during the following exchange which took place between the applicant's representative and Priest JA:

APPLICANT'S REPRESENTATIVE: Well, your Honour, when they - when the jury was selected, and I've got no objections about the um - the way they balloted it and everything else, but when the jury was brought into the court we couldn't - the video didn't show us how they were brought in, but all you know is that they went and sat down. They didn't stop. [The applicant] didn't have an opportunity to look at the people that were brought in.

PRIEST JA: How do we know that?

APPLICANT'S REPRESENTATIVE: Well, that's the point. We can't see it.

1. It is true, as was submitted, that the court video does not depict each selected juror's movement once they entered the court room. The video does not depict the physical positioning of any such juror relative to the applicant from the point of the juror's entry into the court room until when they took their seat in the jury box. But it can be confidently assumed that the selected jurors did enter the court room and that a jury was struck from those jurors who were not challenged by the applicant, nor stood aside by the Crown.
2. The video has its limitations in terms of what it depicts; but beyond the assertion that the video does not depict the movement of prospective jurors once in the court room, no evidence - by way of affidavit or otherwise - has been tendered, adduced or referred to on this application which calls into question the fact that the applicant did have a reasonable opportunity to view the selected jurors. That no-one officiating, appearing or representing the parties during the process of empanelment at the trial raised any concern in this respect is a strong indicator that the process adopted did in fact satisfy the relevant conditions of the Juries Act. That the applicant, with the assistance of his instructor, did in fact successfully exercise his right of peremptory challenge on two occasions would appear to put the matter beyond any shadow of a doubt. In short, there is simply no basis to conclude that the applicant did not have adequate opportunity to exercise his rights of challenge, and indeed every reason to conclude to the contrary.
3. This basis upon which the applicant relies to overturn his convictions cannot be sustained.

The prosecution's failure to call the applicant's wife as a witness[28]

1. Prior to the conclusion of the complainant's evidence-in-chief, the prosecutor announced in court that he was not going to call the applicant's wife as a witness as part of the prosecution case. The prosecutor made a similar announcement in respect of EF. A debate then ensued concerning the propriety of the prosecutor's decision not to call the applicant's wife.[29]
2. The essential complaint made by the applicant in this Court, both in writing and orally, was that a 'substantial miscarriage of justice' was caused as a result of the decision taken by the prosecutor not to call the applicant's wife as a witness. It was submitted by the applicant that his wife could have given relevant evidence concerning whether the applicant had an opportunity to offend against the complainant. It was submitted that the applicant's wife could have given relevant evidence concerning whether, and, if so, how often, she had gone to bingo at the local bowls club over the relevant period covered by the charges.
3. To test the merits of the applicant's submission in this respect it is necessary to examine the debate that took place at trial concerning the prosecutor's decision not to call the applicant's wife.
4. The prosecutor initially told the judge that he had 'two letters'; one from the applicant's wife and one from EF. These letters were 'attached to the brief' and were signed. But the prosecutor said that there were no police statements taken from either the applicant's wife or EF. Each had, apparently, 'declined to make a statement'. The prosecutor characterised any evidence that the applicant's wife might give as 'mostly peripheral'. The prosecutor characterised any such evidence as going to 'opportunity', in the sense that the applicant's wife said 'things like':

'I didn't go to bingo at this time', when the complainant says it happened at bingo and the times don't match up; the dates don't match up.

1. Crucial to the prosecutor's decision not to call the applicant's wife was evidence, of which the prosecutor was aware, of a meeting that had taken place between the applicant's wife and GH after the police investigation into the applicant had commenced. The prosecutor said that GH described the applicant's wife as having arrived at some stage at GH's house armed with a recording of the applicant's police record of interview. GH said that the applicant's wife made GH watch this record of interview. GH apparently asked why the applicant had lied in the record of interview. According to GH, the applicant's wife responded: 'He didn't lie. He just got his words mixed up.'
2. The prosecutor told the court that it was clear that the applicant's wife had had access to the applicant's record of interview and had played that interview to GH with the 'clear motive' of obtaining 'some favourable concessions' from GH. The prosecutor sought to couple this event with what the prosecutor described as 'the antics outside court room earlier this week'[30] and 'the [the applicant's wife's] antics ... at the arrest of [the applicant] ... where she calls all the police officers individually liars and creates a ruckus'.
3. The prosecutor submitted that he '[got] the firm impression that [the applicant's wife] will not give reliable evidence' and that '[s]he's entirely partisan and will say whatever it takes that in her mind will assist [the applicant] to beat these charges'.
4. Importantly, the prosecutor outlined that he had given consideration to calling the applicant's wife and then making an application to cross-examine her pursuant to s 38 of the Evidence Act 2009 ('Evidence Act'). But he submitted that if he was 'compelled to cross-examine' the applicant's wife he would be required to do so by reference to the applicant's record of interview (which, it may be inferred, contained a lie told by the applicant). The prosecutor indicated that, prima facie, he had chosen not to lead the applicant's record of interview in the Crown case out of fairness to the applicant. Additionally, the prosecutor indicated that were he to cross-examine the applicant's wife he would have to allege that she had played the applicant's record of interview to GH in an attempt to change GH's evidence. The prosecutor submitted to the judge that if he did cross-examine the applicant's wife in this manner, he feared that the jury 'may well decide this case not on the evidence that relates to the accused man'.
5. In summary therefore, the prosecutor's position was that the applicant's wife was an unreliable witness but that if he was required to expose such unreliability through cross-examination, doing so would cause substantial unfairness to the applicant. It was for these reasons that the prosecutor had decided not to call the applicant's wife.
6. Defence counsel submitted that the applicant's wife appeared to be a relevant witness given what she was able to say about when she went to bingo, when the babysitting of the complainant commenced and when such babysitting ceased.
7. Nevertheless, the judge - it seemed - developed a rather firm view of the evidence that the applicant's wife might give. His Honour expressed the view that the applicant's wife was going to 'blow the jury, isn't she? I mean, we've got to be realistic about this'. As the judge put it:

My real fear here would be, that if that went haywire, and that witness was called at your request, I wouldn't be discharging any juries. And I think that's there a very real chance from what I've read and seen so far, that her performance may well end up getting your client convicted.

I accept what my learned friend states about the reason for his view, and I accept that, therefore, it's within his discretion not to call a witness. I just want - I'll put it on transcript, that my view is, one, the issue of when they went to bingo, and when they started babysitting, and when they finished babysitting, is pretty central to the complainant's narrative, and it would appear that, that is a witness who could give evidence on that.

I've drawn it to my learned friend's attention, I understand it that the Crown still doesn't want to call her, and therefore, all I can do is operate the trial on the following basis, that the Crown is not calling [the applicant's wife] ...

1. Defence counsel thus acknowledged that he would conduct the trial on the basis that the Crown would not be calling the applicant's wife; that the Crown would not lead any evidence concerning the applicant's wife's attempts to alter GH's evidence (or, as defence counsel put it: the 'attempt to pervert'), and that the Crown would not lead the applicant's record of interview beyond the fact of the applicant's bare denials of having offended against the complainant. The judge responded that defence counsel's approach amounted to 'very sound forensic reasoning, in my view'.
2. The judge then put to defence counsel: 'You can call the wife if you want to.' The judge indicated, also, that in the event that the prosecutor cross-examined the applicant's wife, he would not be limiting such cross-examination 'in advance'. As the judge put it '[the prosecutor's] got open slather, as long as it's relevant'.
3. At this point defence counsel sought a ruling from the judge that if the Crown was going to conduct its case in the manner described, then the prosecutor ought be prevented from cross-examining the applicant's wife on the 'supposed lie in a record of interview, when the jury hadn't heard it'.
4. But the judge would have none of this. The judge indicated that he was not going to constrain the Crown in terms of cross-examination. Indeed, the judge went even further. The judge went so far as to indicate that if the applicant's wife was called as a witness by defence and ended up abusing the prosecutor from the witness box, then the judge would 'not be discharging the jury' and that that would be '[defence counsel's] forensic decision which [he's] made on instructions' and 'that's the way it is'.
5. Defence counsel then inquired of the judge whether the situation had arisen 'where the court is saying that the Crown should be calling [the applicant's wife]'. The judge responded: 'I don't think they should. I think they shouldn't'. The judge indicated, yet again, that were the applicant's wife to be called by the defence it would be difficult to constrain the cross-examination of her by the prosecutor. Defence counsel then indicated that he was ready to proceed.
6. This summary of events reveals that the judge accepted, and considered correct, the Crown's decision not to call the applicant's wife on the basis of her perceived unreliability. Moreover, the discussion reveals that if the defence chose to call the applicant's wife it is unlikely that the prosecutor would have been constrained in his cross-examination of her. Thus it seems likely that had the prosecutor called the applicant's wife, and then sought leave to cross-examine her pursuant to s 38 of the Evidence Act, the prosecutor would have been permitted to put to the wife that she had attempted to alter GH's evidence. This would, in turn, likely have revealed a lie told by the applicant in his record of interview. The evidence of the lie would not otherwise have been before the jury. Yet it seemed to be agreed that any evidence that the applicant's wife might give, at its highest, went only somewhat indirectly to opportunity and did not it seems provide a firm alibi.
7. The applicant's submission focusses attention upon the prosecutor's decision not to call the applicant's wife as a witness in the prosecution case.
8. In R v Apostilides ('Apostilides'),[31] the High Court stated six propositions that apply in respect of a prosecutor's duty to call witnesses:
   1. The Crown prosecutor alone bears the responsibility of deciding whether a person will be called as a witness for the Crown.
   2. The trial judge may but is not obliged to question the prosecutor in order to discover the reasons which led the prosecutor to decline to call a particular person. He is not called upon to adjudicate the sufficiency of those reasons.
   3. Whilst at the close of the Crown case the trial judge may properly invite the prosecutor to reconsider such a decision and to have regard to the implications as then appear to the judge at that stage of the proceedings, he cannot direct the prosecutor to call a particular witness.
   4. When charging the jury, the trial judge may make such comment as he then thinks to be appropriate with respect to the effect which the failure of the prosecutor to call a particular person as a witness would appear to have had on the course of the trial. No doubt that comment, if any, will be affected by such information as to the prosecutor's reasons for his decision as the prosecutor thinks it proper to divulge.
   5. Save in the most exceptional circumstances, the trial judge should not himself call a person to give evidence.
   6. A decision of the prosecutor not to call a particular person as a witness will only constitute a ground for setting aside a conviction if, when viewed against the conduct of the trial taken as a whole, it is seen to give rise to a miscarriage of justice.[32]
9. In further explication of the first proposition, the Court in Apostilides referred to the prosecutor's duty as being a 'lonely one' and a 'heavy one'.[33] In respect of a decision whether or not to call a person whose name appears 'on the indictment and from whom the defence wish to lead evidence'[34] the Court noted that this decision must be made 'with due sensitivity to the dictates of fairness towards an accused person'.[35] As the Court in Apostilides held:

A refusal to call the witness will be justified only by reference to the overriding interests of justice. Such occasions are likely to be rare. The unreliability of the evidence will only suffice where there are identifiable circumstances which clearly establish it; it will not be enough that the prosecutor merely has a suspicion about the unreliability of the evidence. In most cases where a prosecutor does not wish to lead evidence from a person named on the indictment but the defence wishes that person to be called, it will be sufficient for the prosecutor simply to call the person so that he may be cross-examined by the defence and then, if necessary, be re-examined.[36]

1. In Whitehorn v The Queen,[37] Dawson J observed, as follows, in respect of a decision by a prosecutor not to call a witness who is considered to be unreliable:

All available witnesses should be called whose evidence is necessary to unfold the narrative and give a complete account of the events upon which the prosecution is based. In general, these witnesses will include the eye-witnesses of any events which go to prove the elements of the crime charged and will include witnesses notwithstanding that they give accounts inconsistent with the Crown case. However, a prosecutor is not bound to call a witness, even an eye-witness, whose evidence he judges to be unreliable, untrustworthy or otherwise incapable of belief. And if the number of witnesses available for the proof of some matter is such that in the circumstances it would be unnecessarily repetitious to call them all, then a selection may be made. All witnesses whose names are on the indictment, presentment or information should nevertheless be made available by the prosecution in order that they may be called by the defence and should, if practicable, be present at court.[38]

1. And speaking generally about the circumstances in which a failure by a prosecutor to call a witness will give rise to a miscarriage of justice (the sixth proposition extracted from Apostilides set out above) the High Court in Apostilides stated:

In our formulation of the sixth proposition we have omitted the reference to misconduct, intending thereby to broaden the approach so as to focus directly on the consequences, objectively perceived, that the failure to call the witness has had on the course of the trial and its outcome. It is not necessary to postulate misconduct of the prosecutor as an essential condition precedent to a miscarriage of justice. No doubt in the great majority of cases of this kind an appellate tribunal which finds a miscarriage of justice to have occurred will trace that miscarriage to a wrong exercise of judgment by the prosecutor which led to the witness not being called. In cases where there has been no error of judgment there will be less likelihood of a miscarriage resulting from the failure to call the witness. Nevertheless the absence of testimony from a witness may lead to a miscarriage of justice without any error having occurred. ... So, if a prosecutor fails to call a witness whose evidence is essential to the unfolding of the case for the Crown the central question is not whether his decision constitutes misconduct but whether in all the circumstances the verdict is unsafe or unsatisfactory.[39]

1. One is able to glean from the exchanges between counsel and the judge, summarised above, that there did not seem to be any dispute that the applicant's wife - armed with the applicant's record of interview - had attended upon GH and had attempted to persuade GH to alter her evidence so that it might conform with the applicant's version of events given in his record of interview. Indeed, it seemed not to be in issue that this conduct on the part of the applicant's wife was apt to be characterised as an 'attempt to pervert'.
2. It is apparent that the prosecutor had given close consideration to whether he was able to fulfil his duty as a Minister of Justice by calling the applicant's wife but then cross-examining her so as to reveal the wife's unreliability. But this, so the prosecutor determined, was not possible; to have done so would necessarily have revealed that the applicant lied in his record of interview. In circumstances where the prosecutor was not otherwise disposed to tender the applicant's record of interview in evidence as part of his case, such cross-examination would likely have caused considerable prejudice to the applicant. But not only that; also, as the trial judge observed, the apparent partiality of the applicant's wife may in itself have redounded significantly to the applicant's detriment.
3. It is difficult to fault the prosecutor's approach. The prosecutor's stance concerning the applicant's wife's perceived unreliability was justified. The applicant's wife had refused to make a formal statement and the evidence of her interaction with GH was troubling. To the extent that the prosecutor's ability to cross-examine the applicant's wife might be thought to have influenced his duty to call witnesses it is apparent that this could not happen absent significant unfairness caused to the applicant. Looked upon most favourably (from the descriptions given during discussion between counsel and the judge), it is not apparent that any evidence that the applicant's wife might have given provided the applicant with a firm alibi.
4. In assessing whether the failure of the Crown to call a particular witness produced a miscarriage of justice it is difficult, also, to overlook the fact that at trial defence counsel did not seek any direction in accordance with s 43 of the Jury Directions Act 2015. As part of such a direction a trial judge 'may inform the jury that it may conclude that the witness [not called] would not have assisted the prosecution's case'.[40] But such a direction may only be given if the trial judge is satisfied that the prosecution '(a) was reasonably expected to call or question the witness' and '(b) has not satisfactorily explained why it did not call or question the witness'.
5. In all these circumstances I consider that the prosecutor's decision not to call the applicant's wife did not give rise to a miscarriage of justice. As such, this basis for impugning the applicant's convictions cannot be sustained.

Whether the prosecution coerced IJ to change her evidence[41]

1. Under this heading, it was submitted that representatives of the respondent had 'coerced' IJ to change her evidence. That evidence concerned IJ's presence at the complainant's home in 2012, after having been at a party with the complainant, when she heard the complainant respond in terms of CD's first name when AB asked the complainant who had raped her. Complaint is made, also, that the applicant was hampered in his cross-examination of IJ when it came to this issue.
2. As the evidence given by IJ established at trial, in her original statement to police she said that she thought that she had heard the complainant say CD's first name when the complainant responded to AB's query, but that she wasn't sure. IJ's position at trial was that she couldn't remember what name the complainant said in answer to her mother's question.
3. There was thus an apparent alteration in IJ's evidence from the time of her statement to the time of trial. It is apparent, also, that the jury were fully apprised of what IJ had said in her police statement. To the extent that there was any alteration in IJ's position, concerning what she said that she had heard, there is no basis to conclude that such alteration was brought about by any coercion on the part of the respondent. Nor was the applicant compromised or restricted in any manner concerning his ability to cross-examine IJ as to this issue.
4. No substantial miscarriage of justice arose by virtue of this matter.

Investigators' alleged failure to obtain records[42]

1. The applicant submitted that a substantial miscarriage of justice was caused by a failure on the part of investigators to obtain certain records. It was submitted, first, that at the applicant's committal hearing in 2020 a question was raised as to whether the informant was able to obtain records from the local bowls club concerning the frequency of, and attendance at, bingo nights held at or around the time of the alleged offending. The evidence revealed that in late 2014 the informant attended at the relevant bowls club in order to investigate whether such records were in existence. By this stage, however, those records had been destroyed. It was submitted by the applicant that the informant had failed in his duty by delaying attending at the local bowls club.
2. The applicant also submitted that investigators had failed to obtain text and Facebook messages between AB and 'KL' - a later partner of CD. KL is the mother of the two children against whom the applicant offended as alleged in the plea indictment. The applicant relied on screenshots of text communications between AB and KL. Copies of these screenshots were included in the applicant's materials. It was argued that these messages established that AB and KL had colluded to influence the complainant to make false allegations against the applicant.
3. At the hearing of this matter it was explained by the Court to the applicant's representative that, generally speaking, a party is bound by the manner in which their counsel chooses to run the case. In response, the Court was informed by the applicant's representative that, in fact, the applicant's legal representatives at trial had been in possession of the text messages now relied upon by the applicant but had chosen not to use them. It was submitted on the applicant's behalf that this decision showed incompetence on the part of the applicant's legal representatives at trial.
4. The applicant's submissions under this topic are not persuasive. First, it is apparent - as summarised above - that the evidence of when the informant attended at the local bowls club, and the informant's discovery that the bingo attendance records had been destroyed, was adduced before the jury by defence counsel during his cross-examination of the informant. It is apparent, also, that such cross-examination was conducted by defence counsel in order to lay the foundation for a submission to the effect that the applicant had suffered prejudice on account of delay. The delay suffered by the applicant, and the consequent loss of an ability to test the complainant's story against certain objective facts such as the attendance records, formed the basis of a forensic disadvantage direction given by the judge in his charge to the jury. It is thus apparent that defence counsel was alive to the effect of delay and, in particular, how the loss of records such as the attendance records from the local bowls club could be used forensically in his client's favour.
5. It can also be well understood why defence counsel took the decision at trial not to utilise any text message exchange between AB and KL in support of an allegation of collusion between these two women. First, having read the messages relied on by the applicant, it is not readily apparent that their content would sustain a suggestion of collusion in the first place. Secondly, and in any event, any contention of collusion would carry the obvious risk of ventilation before the jury of the circumstances of the applicant's offending committed against KL's two children. It is thus readily explicable why defence counsel did not use the text messages in the manner now described.
6. It is a cardinal principle of the adversarial system under which criminal trials are conducted that, as a general rule, and subject to certain carefully controlled qualifications,[43] parties are bound by the manner in which they conduct those proceedings, including the manner in which the proceedings were conducted by a party's legal representative.[44]
7. There was a rational foundation to defence counsel's approach when it came to the matters relied on by the applicant under this topic or heading. The applicant's convictions cannot successfully be impugned on these bases.

1. The primary aspect of the applicant's case, as articulated under this heading, was to submit that in 2007 the complainant was 'out of the applicant's life' and thus had no contact with him. It was put that there was thus simply no opportunity for the applicant to have offended against the complainant. In apparent support of this submission the applicant relied on various documents. These documents were included in the bundle of materials upon which the applicant relied which are described above. They were, in particular, the 'Contract Note' relating to the sale in 2006 of a property located in the neighbouring rural town some 20 minutes away where AB and CD later moved, as well as the 'Property history' print out that related to the sale in 2007 of a further property located in that same neighbouring rural town. These documents were, it seems, relied on to establish that AB, CD and the complainant had indeed moved to the neighbouring rural town.
2. A secondary aspect to the applicant's case under this topic related to the evidence concerning the occasion of offending when the complainant said she had visited GH's house to feed the dog Savage. It was emphasised by the applicant that at the time when the complainant said that she had visited GH's house Savage must only have been a puppy and not a dog of the nature described by the complainant - a big dog with shaggy hair, a 'proper dog'. It was submitted, also, that there could have been no opportunity for the complainant to have fed this dog, not only because the complainant was living at the nearby rural town at the relevant time, but also because - so it was said on the applicant's behalf - it was GH's practice to take Savage with her to South Australia.
3. A third aspect of the evidence relied on by the applicant relevant to this topic was the apparent inconsistency between the evidence of the complainant and the informant concerning whether there was a lock on the applicant's bedroom door.
4. The respondent submitted that it was well open to the jury to convict the applicant in light of the clear evidence that had been given by the complainant. It was submitted that the acquittal on charge 1 of the trial indictment was perfectly explicable in view of the different quality of evidence that was adduced in respect of that charge. Unlike the other offending on the trial indictment, on the complainant's account others were present and in close proximity when the charge 1 offending took place.

1. The principles that apply when a contention is made that a verdict is unreasonable or cannot be supported having regard to the evidence[46] are well known.[47] All of the evidence must be considered and the court must ask itself whether it was open to the jury to be satisfied beyond reasonable doubt of the guilt of the accused.
2. Importantly, in Pell v The Queen ('Pell'), the High Court held that this analysis is to be undertaken by a court proceeding on 'the assumption that the evidence of the complainant was assessed by the jury to be credible and reliable'.[48] The court 'examines the record to see whether, notwithstanding that assessment - either by reason of inconsistencies, discrepancies, or other inadequacy; or in light of other evidence - the court is satisfied that the jury, acting rationally, ought nonetheless to have entertained a reasonable doubt as to proof of guilt.'[49]
3. This Court in Gardner (a pseudonym) v The King ('Gardner),[50] referred to the principles to be applied and stated that the relevant question is whether 'upon an examination of the record, the jury ought, acting rationally, to have entertained a reasonable doubt as to proof of the applicant's guilt, whether by reason of inconsistencies, discrepancies or other inadequacy in the complainant's evidence, or in light of other evidence' - in other words, 'whether, having regard to those matters, the jury must (rather than might) have entertained a doubt as to the applicant's guilt'.[51] That assessment must occur giving 'full allowance ... to the advantages enjoyed by the jury in having seen and heard the witnesses give evidence in the unfolding criminal trial'.[52] The Court in Gardner expressly disavowed an approach by which the court first asks whether it has a doubt about the conviction and then considers whether the conviction is explicable by the advantages enjoyed by the jury, observing that such an approach would 'invert the process' and 'blur the functional or "constitutional" demarcation between the province of the jury and the province of the appellate court.'[53]
4. Recently, in Parker (a pseudonym) v The King,[54] this Court observed, when considering a ground of appeal which alleged that the verdict of a jury was 'unsafe and unsatisfactory':

As Pell makes clear, the starting point for this Court is to accept that the jury found the complainant's account credible and believable. It does not necessarily follow that that assumption requires this Court to assume that the jury believed every aspect of the complainant's account, rather than a sufficient amount as to enable them to be satisfied beyond reasonable doubt of the applicant's guilt.

...

The critical inquiry is whether, having regard to these discrepancies, the jury was bound to have a doubt as to the applicant's guilt. As explained in Pell, it is necessary first to identify whether there is a discrepancy, inconsistency or other inadequacy, and then to ask whether, by reason of that discrepancy, it was not rational for the jury to conclude that the applicant is guilty.[55]

1. I consider that it was open on the evidence adduced by the prosecution at trial for the jury to have been persuaded beyond reasonable doubt of the applicant's guilt. On the assumption that the evidence of the complainant was assessed by the jury to be credible and reliable, an examination of the record reveals that, notwithstanding that assessment, there are no inconsistencies, discrepancies, or other inadequacies in the prosecution evidence, or other evidence, that leads to the conclusion that the jury, acting rationally, ought nonetheless to have entertained a reasonable doubt as to proof of the applicant's guilt.
2. The complainant gave clear and cogent evidence in support of each charge. To the extent that the applicant submitted that the complainant was, in essence, 'out of his life' after the complainant had moved to the nearby rural town, this assertion was simply not reflected in the evidence. Indeed, this submission ran contrary to the evidence that was adduced at trial. The same can be said of the submission which had it that there was no opportunity for the complainant to have fed the dog Savage because the dog was taken to South Australia.
3. Any discrepancy or inadequacy concerning the complainant's description of GH's dog Savage was not of a nature, I consider, that meant that the jury ought to have entertained a reasonable doubt about the applicant's guilt on charge 7, or more generally. The complainant's description of how Savage appeared was hardly central to the complainant's account; and, given the frequency with which GH said that the applicant and the complainant attended at her premises for the purpose of feeding Savage, it was open to the jury perhaps to doubt the complainant's version of the chronology of events without doubting the central aspects of her claims. Later photographs taken of the applicant's bedroom which did not reveal the presence of a lock, similarly, was not evidence of the type of inconsistency that compelled rejection of the complainant's account again when it came to the essence of what she said the applicant had done to her.
4. This ground of appeal cannot be upheld.

1. For completeness it is necessary to deal with a number of additional complaints that were raised by the applicant, and that can be found in his materials or that were mentioned orally, but which do not find expression in the proposed grounds of appeal.

The judge's statement to the jury panel about date ranges

1. The applicant complained about the fact that the judge said the following while addressing the jury panel prior to taking excuses:

The allegations are of a sexual nature against a child in [the name of the rural town where the applicant lived] in the early 2000s up until around about 2009, 2010.

1. It was submitted that in fact the date ranges of the charges contained on the trial indictment spanned from January 2004 until December 2009. It was argued that the apparent expansion of the relevant period by the judge in what he had said orally to the jury panel would have influenced the empanelled jury to think that there was additional offending committed by the applicant beyond what was specified on the trial indictment.
2. I do not consider that there is anything in this point. What the judge said to the jury, as a broad description of the period actually charged, was basically accurate. In the end, having regard to the manner in which the jury were directed (which included that they must 'decide the case according to the evidence') there was no risk that the jury might have been diverted from their proper task by what the judge said to the jury panel. It is perhaps relevant to note, in this regard, that the applicant's legal representatives at trial saw no such risk in what the judge had said, for no exception to the judge's remarks now impugned was forthcoming.

A failure to repeatedly administer the separation oath to the jury

1. Evidence closed during the trial late on a Friday morning. It was planned that addresses would not commence until the following Monday. On the Friday morning, after the close of evidence, the judge informed the jury that he wished to have a discussion with counsel. He said that he was unable to sit during the afternoon due to a medical appointment. Before allowing the jury to go home over the weekend, the judge reminded the jury that he had 'asked [them] previously not to discuss the evidence with any other person'. But then the judge went further and had the separation oath and affirmation administered to the jury. The relevant oath and affirmation is set out in Schedule 5 to the Juries Act. The judge said:

I do this when there's a weekend coming up. A couple of beers and a barbeque and it could get started.

1. The jury then went home for the weekend. On the following Monday proceedings commenced with addresses of counsel. The judge's charge to the jury began after the luncheon adjournment on that day. The judge's charge finished at 3:27 pm on the Monday afternoon. The judge then allowed the jury to retire to consider their verdict. The jury were told, however, that they would be permitted to go home - as in formally separate - after 'about 30 seconds'. The power to permit jurors to separate after having retired to consider their verdict is found in s 50 of the Juries Act. The exercise of this power is conditioned, inter alia, upon each separating juror having taken an oath or made an affirmation 'in the form of' Schedule 5 to the Juries Act.
2. Before the jury left the court, the judge reminded the jury that they had 'taken the oath not to discuss [the case] with anybody'. The jury deliberated the following day until 3:12 pm after which time they were again permitted to separate. It appears that the judge is likely to have again warned the jury that they had either affirmed or taken an oath not to discuss the case with anybody, although the transcript relating to this is not clear. Before the judge permitted the jury to separate on this occasion he said to them:

So if you can start at 9.30 and just to make sure (indistinct words) and we'll go from there.[56]

1. The jury returned the following day (Wednesday) and at 11:15 am delivered their verdicts.
2. The applicant submitted that a material irregularity had occurred because the judge had failed to administer the separation oath and affirmation prior to the jury separating on the Monday and the Tuesday. As a result of this failure it was submitted that due to the length of the jury's deliberation there was a high probability that the members of the jury had discussed the trial with other members of the community. This, so it was submitted, brought the verdicts into disrepute.
3. As argued orally, the applicant's submission was couched in the following terms:

Well, we believe that they didn't get it on the - they were given the oath we believe on the Friday, which was the end of the day, and then they went home for the weekend. They came back in on Monday, they deliberated Monday, they left Monday, they come in on Tuesday, they left on Tuesday and come back Wednesday.

We believe that they should have been given the oath on the Monday and the Tuesday, because they were separated, as the law states in the Act, that if you're separating you're supposed to be given the oath or affirmation, and they never got that on the Monday or the Tuesday.

1. In R v Patton,[57] the jury at the applicant's trial of various offences retired to consider their verdicts. When the jury had not reached verdicts by the end of the first day of deliberations, the judge took an undertaking on oath from each juror pursuant to s 51A of the Juries Act 1967. The judge then released the jury until the following morning. The jury continued its deliberations throughout the following day. During the course of that day, the jury indicated that they had reached verdicts on all but one count. The trial judge then gave the jury a Black v The Queen[58] direction. When the jury had not reached a verdict by the end of that day, the judge again discharged the jury overnight. This time, however, he did so without having taken from the jury a further undertaking of the type contemplated by s 51A. Early on the following morning, the third day of deliberations, the jury returned verdicts. The applicant was found guilty of some counts, but was acquitted of others.
2. On appeal counsel contended that s 51A required an undertaking to be taken from the jury prior to 'each and every' separation. It was argued that this section had to be read in light of the common law requirement that juries should not be permitted to separate after retirement, to avoid the risk of communicating with third persons. The Court (Phillips CJ, Winneke P and Southwell AJA) rejected the applicant's submission in the following terms:

It can be accepted that, at common law, juries were required to be cloistered after retirement and until verdict. Section 51A however was clearly designed to modify the strictness of the common law practice in favour of convenience to jurors, provided that the requirements imposed by the section were complied with. It was because the requirement was not complied with in the case of R v Taylor (unreported, Court of Appeal, 10 May 1996) that the court concluded that there must be a new trial.

In our view the section must be given a workable interpretation. Subsection (1), in the light of its obvious purpose to which we have referred, gives the judge the power to 'allow the jury to separate at any time' during the period expressed to be 'between it [the jury] retiring to consider its verdict and the verdict being given ...'.

We cannot accept that this section requires a trial judge to extract an oath on more than one occasion during the period referred to, even though that period might run into more than one day. To suggest that the section requires a further undertaking on oath on each and every occasion that the jury, within the period contemplated, separates is, in our view, to give the section an interpretation which the words do not command and which would or could lead to an absurd imposition upon the jurors. Once the jurors have sworn on their oath that they will not discuss matters concerning the inquest with persons other than members of the jury, it should be assumed that they will understand that such oath will continue to bind them if, within the designated period, they are permitted to separate again. Whilst, no doubt, it is appropriate that the section should be construed against the background of the common law position, it is clear that the legislature by using the words, 'despite anything to the contrary in any rule of law or practice', intended to confer a discretion upon the judge, notwithstanding the previous position at law, to allow the jurors to separate 'at any time' during the designated period upon the security of those jurors giving the relevant undertaking. The discretion conferred upon the trial judge is not a discretion to allow the jury to separate 'at any time and from time to time, upon the giving of an undertaking'. On the contrary it is a discretion to be exercised by the trial judge when, during the deliberation process, he considers that it is appropriate to allow the jury to separate 'at any time' within that process. In our view the words of the section suggest that when the time first arrives, the individual jurors must give the undertaking required of them. To require them to renew the undertaking on each occasion thereafter of separation during the same deliberation process would be an extravagance not contemplated by the section. This was the meaning given to the section by this court in the case of [Appleby]. Although counsel for the applicant in this case contended that the views of the court in Appleby were expressed by way of obiter dicta, they are in our view, strongly supportive of the interpretation which we believe should be accorded to the section.[59]

1. This passage was cited with approval by this Court in Youssef (a pseudonym) v The Queen ('Youssef').[60] Youssef was a case where a number of jurors were permitted to separate, and leave the precincts of the court, during deliberations over a lunch break. That separation occurred without the judge's permission. The separated jurors had been seen walking through the Melbourne CBD otherwise than in the company of a jurykeeper.
2. After an analysis of relevant authority, and apposite to this case, the Court in Youssef observed in respect of the statutory power to permit jurors to separate in accordance with s 50 of the Juries Act that:

[I]t was a cardinal common law principle that in a criminal jury trial jurors not separate during deliberations. It is also clear that the legislature sought to mitigate the strictness of that principle through the introduction of provisions such as s 50 of the Act. In so doing, however, the legislature was astute to ensure that the separation of a criminal jury after retirement was subject to safeguards specifically designed to promote the integrity of the trial process and to minimise the risk of the jury's communication with third parties. Hence, before permitting the separation of a jury after retirement, a trial judge must affirmatively be of the opinion that there is a 'good reason' to permit separation, and must ensure that an appropriate oath (or affirmation) is taken by the jurors involved that they 'will not discuss with any person other than another member of this jury any matter relating directly or indirectly to the evidence in this trial or the deliberations'.[61]

1. The Court in Youssef considered that the separation of jurors over the lunch break in that case constituted a 'serious departure from the prescribed processes of a trial (the impact of which cannot be determined) such that there has been a substantial miscarriage of justice'.[62] But, before coming to that conclusion, the Court observed further in respect of s 50 of the Juries Act, that:

We consider that, notwithstanding that they modify the strictness of the common law, provisions such as ss 49 and 50 of the Act are safeguards imposed by the legislature which are designed to protect jury deliberations from contamination. Such provisions also serve a secondary function, preventing the perception that there has been any opportunity for unauthorised communications with the jury. As Hampel J observed in Chaouk (albeit with respect to the position at common law), it is of fundamental importance that the basic rules relating to the processes of a criminal trial - particularly in relation to jury deliberations - should be strictly adhered to; and, given that the jury system and its operation are under constant public scrutiny, it is 'essential to ensure not only that no irregularities occur which may adversely affect jury deliberations, but also that no such irregularities appear to take place'.[63]

1. Noting that it was 'highly undesirable' that there be 'no uniform practice with respect to the separation of juries and the use of jurykeepers', the Court in Youssef offered this final observation which is of particular importance and bears upon the present aspect of the applicant's case:

[W]e consider it to be desirable that the practice followed in the Trial Division of this Court also be adhered to in the County Court. Although it still sometimes occurs, it is no longer the invariable practice to keep juries sequestered following retirement, so that they commonly return to their homes in the afternoon or early evening after deliberating during the day in their jury room (or other suitable space). Whilst deliberating, however, they remain subject to the supervision of suitably sworn (or affirmed) jurykeepers, and do not leave the court unaccompanied by keepers. When first permitted to separate after deliberations commence, the jury take the separation oath (or affirmation) under s 50, and, as a minimum, thereafter are reminded that they are bound by that oath (or affirmation) each time that they separate until being finally discharged. Strict adherence to that practice will go some way towards avoiding the material irregularity which occurred in this case.[64]

1. In a footnote to this passage, the Court added that the 'preferable course is to administer the separation oath (or affirmation) on every occasion that the jury is permitted to separate'.[65]
2. The applicant's submissions cannot be accepted. Section 50(2) of the Juries Act permits a court to allow the jury, or a juror, to separate after the jury has retired to consider its verdict in accordance with s 50(1) 'only if each separating juror has taken an oath or made an affirmation in the form of Schedule 5'. In this case the members of the jury had administered to them the separation oath or affirmation prior to their having retired to consider their verdict. The jury were subsequently reminded of the oath or affirmation that they had taken when they later separated.[66] In accordance with the approach adopted in Patton (by reference to the now superseded s 51A) and in accordance with the terms of s 50 (as that section has been interpreted in Youssef) it was strictly unnecessary for the trial judge to administer oath or affirmation again on the afternoons of the Monday and Tuesday prior to the jury separating after they had deliberated on those days. This is so even though it would have been prudent for this to have occurred.
3. The applicant's submission cannot be upheld.

The complainant's attestation of the truth of her VARE

1. At the start of the trial, the prosecutor indicated that he would call the complainant as a witness. The following exchange then occurred between the prosecutor and the trial judge:

PROSECUTOR: If it please the court Your Honour I call [the complainant].

HIS HONOUR: Has she seen this or watched it?

MR HUTTON: Yes we need to swear her in first, Your Honour?

HIS HONOUR: No, no, my practice is normally to play the VARE and swear them in afterwards.

PROSECUTOR: Thank you, Your Honour.

1. Thus, in this case, the jury had played to them the evidence of the complainant contained in her VARE recording prior to her being formally called and sworn as a witness. When the complainant was called, and sworn, she did adopt the truth of the contents of her VARE and the VARE was tendered through her as an exhibit for identification. The complainant then gave some further evidence-in-chief and was then cross-examined.
2. The applicant submitted that it was an error for the jury to have had the complainant's VARE played to them prior to it having been adopted as true by the complainant. This submission was made orally in the following terms:

Also, your Honour, during the pre-trial, during the trial [the complainant's] VAREs was read to the jury and the prosecutor at the time approached the judge and asked the judge that she needs to be, have the oath before the VAREs were shown and read. The judge turned around and said no, no I usually do it at the end and at the end of the VAREs the end of the Court, [the applicant] left and she was never given the oath while she was giving the VAREs in the trial.

1. It appears that the admissibility of the complainant's VARE, in this case, was governed by Division 5 of Part 8.2 of the Criminal Procedure Act 2009 ('CPA').[67] Section 367 of the CPA allowed for the complainant to give evidence-in-chief, in whole or in part, by means of the VARE procedure. Section 368(1)(c) of the CPA stipulated that the complainant's VARE was 'admissible as evidence' at the trial 'as if its contents' were the complainant's 'direct testimony' but only so long as the complainant at trial:

(i) identifie[d] ... herself and attest[ed] to the truthfulness of the contents of the recording; and

(ii) [was] available for cross-examination and re-examination.

1. Notably, s 368(1)(c) did not place any relevant restriction upon the timing of a complainant's attestation to the truthfulness of her VARE so as to make what occurred in this case erroneous.
2. In the present case the conditions of s 368(1)(c) of the CPA were satisfied; and, as such, the applicant's complaint of error cannot be sustained.

Credibility evidence etc. and an allegation of incompetence

1. Finally, in the applicant's amended written case are located the following written submissions:

1. A substantial miscarriage of justice was occasioned by the treatment by the prosecutor for not allowing the accused any witnesses in that:

a) credibility evidence was adduced in circumstances where s 103(1) had not been satisfied; > > b) [The complainant] and [AB] was [sic] cross-examined as to matters relevant only to her [sic] credit in circumstances where leave had not been granted to do so under s 38(3) Evidence Act; > > c) irrelevant and highly prejudicial evidence was adduced; > > d) there was a failure to comply with the rule in Browne v Dunn;

1. The applicant submits that the credibility of [the complainant] was not seriously challenged, nor was it put to her that she was lying or mistaken about her description of applying individual to the complainant.
2. The submissions which appear at subparagraphs a) to d), extracted above were neither expanded upon nor explained in writing, and nor were they developed orally. They were not tethered to any particular aspect of the trial proceeding. The specific complaints at subparagraphs a) to d) appear to be related to 'treatment by the prosecutor'. It is perhaps enough to record that the issue of 'credibility evidence' did not arise at trial; the prosecutor did not seek leave to cross-examine prosecution witnesses pursuant to s 38 of the Evidence Act and nor was there a suggestion that the prosecutor had failed to accord with the rule in 'Browne v Dunn'. No point was raised about the prosecutor having adduced 'irrelevant and highly prejudicial evidence'.
3. The last paragraph of the submissions extracted above must be taken to relate to defence counsel. Again, it is sufficient to record that defence counsel at trial cross-examined the complainant as to her credit and reliability and put to the complainant that the offending had not occurred.
4. These last, and undeveloped, complaints cannot be sustained.

1. The applicant's proposed grounds of appeal are without merit. It is therefore inutile to grant the applicant an extension of time. The application for an extension of time within which to seek leave to appeal against conviction must therefore be refused.

1. The details of the sentences imposed on the applicant are contained in the table set out above at the commencement of these reasons.

1. In respect of the sentence application the applicant filed an 'amended' notice of application for leave to appeal against sentence (which purported to include a 'written case' containing written submissions) as well as various medical documents.
2. As to the applicant's proposed grounds of appeal in the sentence application, they are as follows:
   1. There has been a miscarriage of justice in the procedural fairness to Anthony Frendo.
   2. It appears that His Honour was more interested with the Impact statement than the facts of the case.
   3. The sentence imposed on the charges, orders for cumulative on charges total effective sentence and non-parole period is manifestly excessive in view of:

a. The appellant's personal circumstances:

i. First time offender;

ii. Age at the time of the offending;

iii. Plea of guilty

1. There was little discussion about the evidence presented during the trial and the material that was discussed was bias and related to the victim's evidence and nothing from the defendant.

1. At the applicant's plea the applicant was arraigned on the plea indictment and the facts of that matter were outlined. The two victims of the offending on the plea indictment were the children of CD and KL. CD and KL's relationship began in 2009. The applicant was paternal grandfather to these two children. These children may be referred to as 'MN' and 'OP'. MN was between four and six years' of age at the relevant time, he being born in 2012. OP was four, she having been born in 2013.
2. The applicant and his wife visited CD, KL and their two children at their address. The applicant's wife and KL were in the kitchen. The applicant was playing in the backyard with MN and OP. CD was at the front of the house. The applicant put his hands inside the back of MN's pants and underwear and touched MN's anus before removing his finger (charge 1 - plea indictment - sexual assault of a child under 16). The applicant washed his hands using a tap nearby. MN cried and went inside. MN told the applicant's wife about what had occurred. MN did not, at this stage, tell KL about what had happened.
3. The applicant and his wife visited CD, KL and their children on another occasion. On this occasion the applicant was playing on the trampoline in the backyard with the two children. The applicant put his hand inside the back of OP's pants and underwear and touched her anus and made a tickling motion (charge 2 - plea indictment - sexual assault of a child under 16). He then removed his finger from her pants and they continued to play on the trampoline.
4. During a later recorded interview conducted with OP she recalled, in 2018 or 2019, playing hide and seek on the applicant's boat that had been parked at the second address. OP hid on the boat with the applicant while MN looked for them. Whilst the two were hiding, the applicant placed a blanket over her and told her to close her eyes. The applicant then touched the outside front area of OP's vagina through her pants and underwear (charge 3 - plea indictment - sexual assault of a child under 16).
5. Delivering his plea, defence counsel emphasised the applicant's age. The applicant was almost 75 at the time of the plea. Counsel listed various problems that concerned the applicant's health - Type 2 diabetes; cholesterol issues and heart problems. It was conceded, however, that the applicant would be appropriately treated for these complaints while he was in custody.
6. Counsel submitted that due to the applicant's age, each year that the applicant had left took on greater significance. As it was put by counsel:

[T]he realistic situation is any sentence Your Honour imposes will represent the vast majority of the remainder of his years.

1. Counsel encouraged the judge to impose a non-parole period that allowed for 'hope in respect of having time in the community before he dies'.
2. The prosecutor told the judge that, as a result of the applicant's offending, the applicant would spend the rest of his life on the sex offenders' register. The prosecutor told the judge, also, that it was necessary in respect of charge 2 on the plea indictment that a 'standard sentence' of four years' imprisonment be taken into account.[68]

1. In his reasons for sentence,[69] the judge took into account that the applicant pleaded guilty to the second indictment. The judge took into account that the applicant was 'effectively now 75 years of age' and that 'for these purposes' the applicant had no prior convictions.[70] The judge found that he was precluded from finding that the applicant was remorseful concerning the offending on the trial indictment. The judge considered that 'in so far as the plea of guilty to the second matter[71] is concerned, it is not exhibitive of remorse in any way, shape or form'.[72] The judge observed that the applicant's 'attitude throughout the trial and throughout the plea' was indicative of a lack of remorse.[73] Indeed, the judge addressed the applicant in the following terms during the delivery of the reasons for sentence:

[T]o the extent yesterday where you were shaking your head while the victims were reading their impact statements [this] indicates a total lack of remorse and insight.[74]

1. The judge considered that the applicant's lack of remorse did not 'aggravate the situation, it just simply takes away what would have been an extremely important mitigating factor in this sentencing exercise'.[75]
2. The judge noted that charge 2 on the plea indictment attracted a 'standard sentence' of four years' imprisonment.[76] The judge took into account that from charge 5 on the trial indictment, the applicant was to be sentenced as a 'serious sex offender'[77] in which case community protection became the principle sentencing purpose and cumulation was presumed unless the judge otherwise ordered. The judge indicated that there needed to be some cumulation.[78]
3. The judge then summarised the applicant's offending on the trial and plea indictments. The judge observed that the applicant had breached a duty of trust owed to his victims who were 'very young indeed, very vulnerable, and unable to defend themselves or do anything about it'.[79]
4. The judge described the breach of trust involved in the applicant's offending as 'massive' and emphasised the need to protect children from offending of the nature committed by the applicant.[80] The judge placed particular weight upon general deterrence. In this respect the judge observed that

people in [the applicant's] situation who have the arrogance to simply think that they can do this to children over an extended period of time for their own perverted pleasures and think they can get away with it might think twice. The sentences have to be ... significant enough ... to deter other likeminded men.[81]

1. The judge considered specific deterrence in the applicant's 'particular situation' to be of 'no real value' because of 'the length of the sentence and because of [the applicant's] age'. In terms of 'community protection', the judge considered that 'the odds of [the applicant] offending again in this way once [he was] released, if [he was] released, ultimately from prison would be very low indeed'.[82]
2. The judge considered that denunciation 'must be shown' and 'the punishment must be effective'.[83] The judge remarked that he was

very conscious of [the] ultimate sentence, very conscious of totality, and ... conscious of the need where possible, to not impose a crushing sentence.[84]

1. The judge noted that all the charges carried a maximum penalty of 10 years' imprisonment.[85]
2. The judge afforded the applicant some mitigation on account of the utilitarian benefit that flowed from the pleas of guilty entered on the plea indictment. Nevertheless, the judge considered that 'one must bear in mind' that in that particular matter 'the two children ... went through special hearings and effectively the trial in so far as they were concerned was complete before you pleaded'.[86] The judge allowed the applicant further mitigation given that he had indicated pleas of guilty on the plea indictment during a time when the court lists were congested due to the Covid-19 pandemic.[87] As to Covid-19, the judge indicated that 'certainly the initial stages of [the applicant's] sentence will be undergone in Covid circumstances'.[88]
3. The judge observed that he would take the applicant's age 'into account' in accordance with 'authority on age'. Nevertheless, his Honour again addressed the applicant in the following terms, namely:

If you seek to offend in that way as an old man, you will be jailed as an old man and you will have to simply wear the consequences.[89]

1. The judge observed that the applicant had been born overseas just after the Second World War and had then emigrated to Australia. The applicant had always worked since the age of 15 and had a 'very good work record'. The applicant had been married for 55 years and had two children. It was noted that it would cause the applicant difficulty and anxiety being separated from his wife for a 'very significant period of time, which may prove to be the rest of [the applicant's] life'. The judge took into account anxiety that the applicant would likely experience as a result of potential loss of property due to civil action taken by the victims.[90]
2. The judge placed a degree of emphasis upon the profound effect that the applicant's offending had upon the complainant the subject of the trial indictment. This complainant had suffered severe depression and anxiety due to the applicant's offending; this suffering was to the point, it seems, of the complainant feeling suicidal and needing substantial professional assistance. The applicant's offending had caused this complainant real torment.[91]
3. The judge also took into account the effect that the applicant's offending had upon the complainant's mother. The mother felt that she had failed in her responsibility to her child by entrusting the complainant to the applicant's care.[92]
4. The mother of the victims of the applicant's offending on the plea indictment said that she felt 'betrayed', 'manipulated' and 'deceived'. The effect of the applicant's offending upon MN was particularly profound given that MN was on 'level two autism spectrum disorder' and suffered from 'ADHD'.[93]

1. At the hearing of the sentence application it was acknowledged that proposed ground 1 had in effect been argued as part of the conviction application. It was not pressed further. Proposed grounds 2 and 4 were argued as particulars of proposed ground 3.
2. Under proposed ground 3, it was submitted by the applicant that the sentences imposed upon the applicant were manifestly excessive for a person who was to be treated as a first-time offender, a person who was aged 75, and someone who had pleaded guilty in respect of the plea indictment. It was also contended that the judge had placed undue weight on the victim impact statements that were tendered on the plea.
3. The respondent submitted that the sentences were not manifestly excessive. The respondent emphasised that the applicant's offending occurred on numerous different occasions; that the offending involved complainants who were 'very young' and 'very vulnerable'; and that the applicant had committed significant breaches of trust given that he was either actually, or in substance, the complainants' grandfather. The respondent emphasised, additionally, that the judge had taken into account totality and had ordered significant concurrency between the individual sentences. It was submitted that the judge was required to take into account the effect of the applicant's offending upon victims[94] as well as a victim's 'personal circumstances'[95] and that he had not placed undue weight upon these matters.

1. A ground of manifest excess will only succeed if it can be shown that the sentence imposed was wholly outside the range of sentencing options available to the sentencing judge.[96] That is, it must be shown that it was not reasonably open to the sentencing judge to come to the sentencing conclusion which he or she did, if proper weight had been given to all of the relevant circumstances of the offending and to the offender. As has also been said many times, this is a stringent requirement, difficult to satisfy.[97]
2. In a case that involves an offender of advanced age, this Court has stated that while it is a 'weighty consideration that the offender is likely to spend the whole or a very substantial portion of the remainder of their life in custody', nevertheless it may, depending upon the circumstances, 'be appropriate to impose a minimum term which will have the effect that the offender may well spend the whole of his remaining life in custody'.[98]
3. I consider that, in all the circumstances, that the individual sentences imposed upon the applicant in respect of charges 6, 8, and, most particularly, 3 are stern paying particular regard to the applicant's age at the time of sentence and the applicable maximum penalty of 10 years' imprisonment. Nevertheless, in light of the pleas of not guilty and the applicant's complete lack of remorse I do not consider that these sentences are manifestly excessive. I consider, however, that, in all the circumstances, all the other individual sentences imposed upon the applicant are well within range.
4. I have, however, come to a different conclusion when it comes to certain of the orders for cumulation that were made by the sentencing judge. As the judge made clear in his reasons for sentence, the applicant was to be sentenced as a 'serious sexual offender' on all charges save for charges 2 and 3 on the trial indictment.[99] One consequence of this was that the presumption of concurrency as between individual sentences was reversed.[100]
5. The order for cumulation of two years on the individual charge 3 sentence of six years in respect of the trial indictment invites a degree of scrutiny. The applicant was not to be sentenced as a 'serious sexual offender' on this charge and thus the presumption of concurrency applied. Also, the offending connected with this charge was perhaps not the most serious aspect of the offending which took place during the second incident described by the complainant at trial; and it formed part of a series of offences that were committed over the course of this incident. These matters underscored the need for concurrency when it came to the charge 3 sentence on the trial indictment.
6. In these circumstances, I consider that the order of cumulation of two years ordered on the charge 3 sentence was manifestly excessive and must be reduced.
7. Save in one respect, I consider that all the other orders for cumulation made in connection with the trial indictment are unremarkable. That, for example, the judge chose to cumulate one year of the two-year sentence imposed on charge 7 is to be expected where, on charge 7, the applicant was sentenced as a 'serious sexual offender' with the consequent reversal of the presumption of concurrency that is entailed. Also, the charge 7 offending stood in isolation as its own separate incident (unlike, say, the charge 3 sentence) and was apt - for this reason - to attract a greater degree of cumulation.
8. It was open, I consider, for the judge to order two years' cumulation on the charge 8 sentence. Again, the applicant was a 'serious sexual offender' for the purposes of this offence and it was the most serious offence committed as part of the fourth occasion on the trial indictment. But the order of one year's cumulation made in respect of the two-year sentence imposed for charge 10 was, I consider, manifestly excessive notwithstanding the applicant's characterisation as a 'serious sexual offender' for the purposes of this charge. I consider that this is so in circumstances where the offending connected with this charge formed the least serious aspect of the offending that made up the fourth occasion on the trial indictment.
9. Having found that the orders for cumulation made concerning charges 3 and 10 are manifestly excessive, I would reduce each of those orders of cumulation to orders of six months in duration.
10. I consider that, in all the circumstances, the individual sentences and orders for cumulation imposed in respect of the plea indictment are all within range as is the order for cumulation of 18 months on the plea indictment.
11. The effect of the proposed reduction in the orders for cumulation made in connection with charges 3 and 10 on the trial indictment will reduce the applicant's total effective sentence across both indictments to a period of 12 years' imprisonment. There having been a reduction to this total effective sentence, there ought also be a consequent reduction to the non-parole period. I would therefore set aside the non-parole period of 10 years and, in lieu thereof, impose a new global non-parole period of 8 years and 6 months.

1. The application to extend time in respect of the sentence application is granted; leave to appeal is also granted on the sentence application and the appeal allowed. The applicant will be re-sentenced in accordance with the conclusions that appear above.

[1] Contrary to s 45 of the Crimes Act 1958, as amended by the Crimes (Amendment) Act 2000.

[2] Contrary to s 45 of the Crimes Act 1958, as amended by the Crimes (Amendment) Act 2000.

[3] Contrary to s 47 of the Crimes Act 1958, as amended by the Crimes (Sexual Offences)Act 1991.

[4] Contrary to s 45 of the Crimes Act 1958, as amended by the Crimes (Amendment) Act 2000.

[5] Contrary to s 47 of the Crimes Act 1958, as amended by the Crimes (Sexual Offences)Act 1991.

[6] Contrary to s 45 of the Crimes Act 1958, as amended by the Crimes (Amendment) Act 2000.

[7] Contrary to s 47 of the Crimes Act 1958, as amended by the Crimes (Sexual Offences)Act 2006.

[8] Contrary to s 49D(1) of the Crimes Act 1958, as amended by the Crimes Amendment (Sexual Offences) Act 2016.

[9] Contrary to s 49D(1) of the Crimes Act 1958, as amended by the Crimes Amendment (Sexual Offences) Act 2016.

[10] Contrary to s 49D(1) of the Crimes Act 1958, as amended by the Crimes Amendment (Sexual Offences) Act 2016.

[11] McKenzie v McKenzie [1971] P 33.

[12] See Powers of Attorney Regulations 2015, sch1, form 1.

[13] See Powers of Attorney Act 2014, s 28 ('POA Act').

[15] See Carson (a pseudonym) v The Queen [2020] VSCA 202.

[16] [2024] VSCA 206, [6]-[9].

[17] Nepal v Minister for Immigration and Border Protection [2015] FCA 366; (2015) 327 ALR 89, 93 [17] (Edelman J).

[18] See Madaferri v The Queen [2017] VSCA 302, [11] (Priest, Hansen and Coghlan JJA).

[19] AB also had a son who lived with her and who was approximately a year older than the complainant. This son will be referred to in these reasons as 'the complainant's brother'. AB had another son older than both the complainant and the complainant's brother. This older brother resided in special care in Melbourne. The eldest brother plays no role in the events which form the subject matter of this case.

[20] This document was treated, by agreement at the oral hearing, as amounting to further written submissions made in support of the proposed grounds of appeal.

[22] In respect of both the conviction and sentence applications.

[23] Grounds 1-3 of the notice of application for leave to appeal against conviction ('notice of appeal').

[24] Juries Act 2000, s 39(2A) ('Juries Act').

[25] Ibid s 39(2B).

[26] Juries Act, s 38 concerns the Crown's right to stand aside jurors in a criminal trial.

[27] Juries Act, s 39 concerns an accused person's right to make peremptory challenges.

[28] 'Ground 2', as described in the applicant's amended written case.

[29] It is not apparent that any issue was taken with the prosecutor's decision not to call EF.

[30] These antics - presumably on the applicant's wife's part - were not the subject of any more detailed description.

[31] (1984) 154 CLR 563; [1984] HCA 38 ('Apostilides').

[32] Ibid 575 (Gibbs CJ, Mason, Murphy, Wilson and Dawson JJ).

[34] As it happens, the name of the applicant's wife was included among the list of witnesses on the indictment. It was, however, marked with an asterisk. Above the list of witnesses included on the indictment the following was recorded: 'Subject to the exercise of the prosecutor's discretion at the trial, the Director of Public Prosecutions proposes to call all witnesses except those whose names are marked with an asterisk.'

[35] Apostilides [1984] HCA 38; (1984) 154 CLR 563, 576 (Gibbs CJ, Mason, Murphy, Wilson and Dawson JJ); [1984] HCA 38.

[37] (1983) 152 CLR 657; [1983] HCA 42.

[39] Apostilides [1984] HCA 38; (1984) 154 CLR 563, 577-8 (Gibbs CJ, Mason, Murphy, Wilson and Dawson JJ); [1984] HCA 38.

[40] See s 43(3) of the Jury Directions Act 2015.

[44] R v Birks (1990) 19 NSWLR 677, 683-5 (Gleeson CJ); TKWJ v The Queen [2002] HCA 46; (2002) 212 CLR 124, 134 [31] (Gaudron J), 147-8 [74], 148 [76]-[77], 149-50 [79]-[81] (McHugh J); [2002] HCA 46; Ali v The Queen [2005] HCA 8; (2005) 79 ALJR 662, 677 [99]-[100] (Callinan and Heydon JJ), 666 [23], 666-7 [25]-[26] (Hayne J); [2005] HCA 8; Nudd v The Queen [2006] HCA 9; (2006) 80 ALJR 614, 618-9 [7]-[9], 622 [20] (Gleeson CJ), 622 [24] (Gummow and Hayne JJ), 635 [100] (Kirby J), 645 [162] (Callinan and Heydon JJ); [2006] HCA 9; Seymour v The Queen [2006] NSWCCA 206; (2006) 162 A Crim R 576, 581-2 [20]-[21] (Hunt JA); [2006] NSWCCA 206.

[46] Criminal Procedure Act 2009, s 276(1)(a) ('CPA').

[47] M v The Queen [1994] HCA 63; (1994) 181 CLR 487, 492-3 (Mason CJ, Deane, Dawson and Toohey JJ); [1994] HCA 63 ('M'); R v Baden-Clay (2016) 258 CLR 308, 329-30 [65]-[66] (French CJ, Kiefel, Bell, Keane and Gordon JJ); [2016] HCA 308; Pell v The Queen [2020] HCA 12; (2020) 268 CLR 123, 145 [38]-[39] (Kiefel CJ, Bell, Gageler, Keane, Nettle, Gordon and Edelman JJ); [2020] HCA 12 ('Pell').

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

1. [50] [2024] VSCA 83.

[51] Ibid [85] (Emerton P, McLeish and Macaulay JJA).

[53] Ibid [88], citing Pell [2020] HCA 12; (2020) 268 CLR 123, 145 [38] (Kiefel CJ, Bell, Gageler, Keane, Nettle, Gordon and Edelman JJ); [2020] HCA 12; M [1994] HCA 63; (1994) 181 CLR 487, 493-4 (Mason CJ, Deane, Dawson and Toohey JJ); [1994] HCA 63.

[54] [2024] VSCA 209.

[55] Ibid, [83]-[84] citing Pell [2020] HCA 12; (2020) 268 CLR 123, 145 [39] (Kiefel CJ, Bell, Gageler, Keane, Nettle, Gordon and Edelman JJ); [2020] HCA 12.

[56] Whilst reserved the Court corresponded with the parties concerning whether they had any objection to the Court viewing a video of the trial judge uttering these particular instructions. With the consent of the parties the Court viewed the video. It was impossible to discern precisely what the judge said at the part where the transcript records 'indistinct words'.

[57] [1998] 1 VR 7 ('Patton').

[58] [1993] HCA 71; (1993) 179 CLR 44, 51-2 (Mason CJ, Brennan, Dawson and McHugh JJ); [1993] HCA 71.

[59] Patton [1998] 1 VR 7, 11-12 (emphasis added).

[60] [2019] VSCA 240, [48] (Priest, Beach and Weinberg JJA).

[66] Even if, contrary to the practice described in Youssef, the judge did not remind the jury of their oath or affirmation prior to the jury's final separation on the Tuesday (see paragraph 132 above), there is no basis - in the circumstances of the present case - to conclude that the importance of adhering to their oath or affirmation would have been overlooked by the jury in view of the fact that they had already been warned to this effect.

[67] Although the complainant was over 18 years' of age when she gave evidence, it appears that she was under 18 years at the time her VARE was recorded: see s 368(2) of the CPA.

[68] See Sentencing Act 1991, ss 5A & 5B ('Sentencing Act').

[69] DPP v Frendo (Unreported, County Court of Victoria, Judge Smallwood, 6 April 2022) ('Reasons').

[77] Sentencing Act, pt 2A, s 6E.

[87] Worboyes v The Queen (2021) 96 MVR 344; [2021] VSCA 169.

[94] See Sentencing Act, s 5(2)(daa).

[95] See ibid s 5(2)(da).

[96] See Clarkson v The Queen [2011] VSCA 157; (2011) 32 VR 361, 384 [89] (Maxwell ACJ, Nettle, Neave, Redlich and Harper JJA); [2001] VSCA 157.

[98] R v RLP [2009] VSCA 271; (2009) 213 A Crim R 461, 476 [39] (Neave and Redlich JJA, Hollingworth AJA); [2009] VSCA 271.

[100] See Sentencing Act, s 6E. See also Gordon v The Queen [2013] VSCA 343, [74] (Redlich JA); McL v R (2000) 203 CLR 452, 476-7 [76] (McHugh, Gummow, and Hayne JJ); [2000] HCA 46.