Ground 3 The learned prosecutor's comments in closing submissions created an unacceptable risk of a substantial miscarriage of justice. The jury were impermissibly invited to speculate about how to use the absence of DNA evidence for charge 2, such as to cause a substantial miscarriage of justice.

Ground 4 The jury's verdict on charge 4 was unreasonable or cannot be supported having regard to the evidence. A properly instructed jury could not have been satisfied, on the evidence before it, that the touching subject of charge 4 was intentional.

1. For the reasons that follow, I would grant leave to appeal on ground 3 and allow the appeal on that ground. I consider that the remarks made by the prosecutor in her closing address concerning the DNA evidence gave rise to a substantial miscarriage of justice. In light of that conclusion, I would set aside the applicant's convictions on each of the three charges and order a new trial.[6]
2. I would refuse leave to appeal on ground 2, on the basis that it is unnecessary to decide, and I would refuse leave to appeal on ground 4 on the basis that it has no real prospect of success.

1. At trial the prosecution case turned principally on the evidence given by the two complainants. In addition, the prosecution called the informant, and adduced evidence from Lucy Blackburn and Patrick Holt that Lillian Holt had complained to them of the offending the following morning.

1. Lillian Holt's evidence in chief was contained in a VARE conducted on 18 January 2021, the day after the alleged offending. Lillian was 10 years old at that time. Her initial account, at the commencement of the VARE, was that on the evening of 17 January 2021, after she had gone to bed, she was watching a video on her iPad. The applicant had come into her room and 'jump[ed] into bed' with her. She gave him a hug. He then touched her 'butt' - this was the conduct said to constitute charge 1. He then took down her pants and knickers and touched her vagina - this was the conduct said to constitute charge 2. He then licked the finger he had used to touch her. He asked her if she was comfortable, she said that she was not comfortable, and he then left the room. She was then sitting in bed shaking. She said she 'didn't know what to think'.
2. Lillian said that later on the applicant came back into her room and said that he was sorry about what he did. She said that he had said to her 'We'll just keep it our little secret, O.K.?' Then he said 'give me a kiss for poppy [Aaron]', but she didn't want to kiss him after what had just happened. He then kissed her on the cheek - this was the conduct that was said to constitute charge 3, of which the applicant was acquitted. The applicant then left her room.
3. In the course of the VARE, Lillian repeated her account of the events of 17 January 2021 several times. Her account remained largely consistent over the course of the VARE, although there were some discrepancies. For example, she said later in the interview that the applicant had taken off her pants before touching her on the vagina, rather than taken her pants down. She later described him taking down her pants as follows:
   1. O.K. And we've talked about how he put his hand down your pants.
   2. Yeah.
   3. So you're facing away from him. Describe to me how he did that.
   4. Basically, like, he's put a arm around me and started pulling them down.
   5. From the front? Is that what you were - - -
   6. Yeah.
   7. - - - gesturing to?
   8. Yeah.
   9. O.K. How far down did he pull them?
   10. He pulled them about, like, just, like, below - just, like, below my thigh.
   11. O.K., yeah. And tell me about your knickers. Where did they go to?
   12. He pulled them down with them.
4. Lillian also elaborated on what occurred when the applicant touched her vagina:
   1. In as much detail as you can, tell me everything about that, how it happened.
   2. Basically when - when he pulled my underwear he stuck his finger in it and - and he licked his finger. I was just disgusted.
   3. Yeah. He stuck his finger in your vagina?
   4. Yep.
   5. How long did that go for?
   6. About three seconds.
   7. O.K. And then he licked his finger?
   8. Yeah.
5. Later in the VARE Lillian said that the applicant had licked his finger after he had pulled down her pants and 'stuck his finger in' her. She also said that the applicant touched her butt 'only for ... a couple of seconds'.
6. Later in the VARE Lillian described how, the next morning, she had told her grandmother, Lucy Blackburn, what had happened. She also did a drawing of her room, depicting her and the applicant in the bed side by side.
7. Lillian Holt was cross-examined at a special hearing conducted on 18 March 2022, by which time Lillian was 11 years old. The entirety of that cross-examination was as follows:

Now, [the applicant] says that he didn't get into your bed; do you agree with that or do you disagree?---I disagree with that.

[The applicant] says that he didn't touch you on your bottom; do you agree with that or do you disagree?---I disagree.

[The applicant] says that he didn't put his finger in your vagina. Do you agree or do you disagree?---I strongly disagree.

[The applicant] says that he didn't lick his finger; do you agree or do you disagree?---I disagree.

[The applicant] says that he didn't kiss you on the cheek; do you agree or do you disagree?---I disagree.

[The applicant] says that he didn't say sorry to you; do you agree or do you disagree?---I disagree.

[The applicant] says he didn't say anything to you about keeping secrets; do you agree or do you disagree?---I disagree.

1. Patrick Holt's evidence in chief was also contained in a VARE conducted the day after the alleged offending. Patrick was 12 years old at that time. He gave evidence about what had occurred on 17 January 2021 prior to the incident, from the time that he and Lillian arrived at Lucy Blackburn's house. He said that when they first arrived, 'nothing was really off' about the applicant. The children had gone out to the shed with the applicant, and it was after they came back in from the shed that it 'started to get a bit sketchy'. Patrick said that the applicant had called Lillian 'beautiful' and had told both children that he loved them and thought of them as his grandkids. He said that he and Lillian had known the applicant since 2016 or 2017, and had trusted him.
2. Patrick said that the applicant, Lillian and he had watched some movies in the lounge room. He described what happened after the movies as follows:
   1. I felt - I felt tired after that, so I went to bed, and I just started watching YouTube on my iPad - - -
   2. Yep.
   3. - - - and then nothing else happens. I just fall - well, he comes into my room to say goodnight - - -
   4. Yeah.
   5. - - - and I noticed when he came to, like, hug me he, like, put his hands around my privates - - -
   6. O.K.
   7. - - - and, like, I wasn't sure if that was on purpose or if that was just an accident, and he was just trying to give me a hug goodnight - - -
   8. Yep.
   9. - - - and then I was like - I was a bit confused, but then I went to bed.
3. As noted above, Patrick also gave evidence about what Lucy Blackburn and Lillian had said to him the following morning:
   1. Next morning, I'm asleep and I wake up to nan and [Lillian] in my room, and they tell me something real serious has happened.
   2. Yep. What did they tell ya?
   3. They told me [the applicant has] tried to touch [Lillian] during the night while she was awake.
   4. Yep.
   5. It just shocked me 'cause, like, when they first said something was wrong, [the applicant] was the last person I thought about, like, I didn't - - -
   6. Yeah.
   7. - - - think he would do anything - - -
   8. Yeah.
   9. - - - I thought maybe my mum or my dad had been in a car accident or something - - -
   10. O.K., yeah.
   11. - - - I didn't, like, I - [the applicant] wasn't even on my mind when she said something bad happened - - -
4. Next Patrick described what Lillian said to him about the applicant's offending:
   1. - - - I asked [Lillian], like, what happened, what was wrong, what happened and - - -
   2. Mm.
   3. - - - [Lillian] told me every single detail that made me wanna be sick - - -
   4. O.K.
   5. - - - told me that, like, he put his hands on her privates and then, like, licked his fingers - - -
   6. O.K.
   7. - - - and touched her bum, and, like, asked her if she was comfortable, saying - and then she said five minutes later he came back in and apologised, and, like - - -
   8. Yeah.
   9. - - - told her to keep it to herself and him, and never even that much trouble, and then he said, "Give me a kiss," - - -
   10. O.K.
   11. - - - like a kiss for goodnight, but [Lillian] just stood there and he came and kissed her on the cheek - - -
   12. O.K.
   13. - - - went to bed, and that's what she said happened - - -
   14. Yeah.
   15. - - - and, like, 'cause he said - I thought, like, he touched her on her pants, around there - - -
   16. Yeah.
   17. - - - but she told me, like, he pulled - tried to pull down her pants and, like - - -
   18. O.K.
   19. - - - touched her, like, he - her knickers, he pulled down her knickers and, like, touched her there - - -
   20. O.K.
   21. - - - and I asked her, "Did he put, like, try to put a finger in or something?" and he - she said, "Yeah, kinda."
   22. O.K.
5. Later in his VARE, Patrick said that on the afternoon of 17 January 2021 the applicant was not 'acting like the [Aaron] I know ... he was acting like a different [Aaron] ... and he's never, like, done anything to [Lillian] or me as far as I know of'. He also described the circumstances during which the applicant, Lillian and he had watched movies together. He then returned to the events after the movie:
   1. You were in bed. So describe to me in as much detail as you can how that - 'cause you said he - he put his hands around you - - -
   2. I wasn't sure if that was on purpose - - -
   3. On purpose or - - -
   4. - - - or if that was, like - - -
   5. Yeah. So - - -
   6. - - - an accident or not.
   7. - - - describe it to me in detail, as much detail as you can, so as he - as he's walked in the room, tell me everything from there to - to what happens.
   8. He said, "What are you doing, mate?" and he, like, put his hand here, and then his hand on the other side of the bed, and he, like, looked at what I was watching. I said, "I'm just watching a video game."
   9. Mm'hm.
   10. And, yeah, and then he said, "Goodnight, mate," and he left the door a bit opened - - -
   11. Mm.

A - - - so that's why I asked [Lillian] to shut it.

1. Shut it. Tell me more about the - the cuddle he gave you, the - when he put his arm - - -
2. I just, like, leant up and just gave him, like, a hug - - -
3. Yeah.
4. - - - it was just, like, a normal hug.
5. Yep. And tell me what happened with his arms.
6. They just went around my back.
7. Yep.
8. Yeah. It was just when he leant down and - to see what I was watching he, like - - -
9. Oh. So it was when he leant down?
10. Yeah.
11. Oh, O.K. Describe - can you describe that to me so I can see in my mind what happened?
12. Like, this is, like, my genitals and he, like, put his hand down like that and that on the other side - - -
13. Oh, O.K. So he - - -
14. - - - and he lefted his hand there for a bit - - -
15. O.K.
16. - - - and then he got up.
17. All right, O.K. Did he say anything about that or - - -
18. Anything about, like, touching me there?
19. Yeah.
20. No.
21. Yeah. And you were a bit sort of unsure?
22. Yeah. I was unsure 'cause in the morning I was like, did he do that on purpose - - -
23. Yeah.
24. - - - or did he, like - like - or did he, like, do it on purpose or did he do it on accident?
25. Yep, yep. Has he ever accidentally grabbed your genitals before?
26. Nup.

1. Patrick also gave evidence that when Lucy Blackburn and Lillian told him about what Lillian said had happened to her, he told Lucy 'straight up' what the applicant had done to him.
2. Towards the end of the VARE, the interviewer asked Patrick if there was anything else he could remember that might be important. He said this:
   1. Like, first, like, I thought, like, he touched her, like, through the pants, but I didn't know. [Lillian] said, like, he tried to, like, try to stick a finger or, like, not up - in there, but, like, touch her around - - -
   2. Yeah, yep, O.K.
   3. - - - and stuff like that - - -
   4. Yeah.
   5. - - - and, like, then he, like, after he did that, he, like, licked his fingers and stuff.
   6. Oh. He did - he licked his fingers after he - - -
   7. He licked his fingers, like, as soon - like, he, like, pulled away and then he, like, licked his fingers.
3. Patrick was cross-examined at the special hearing. The totality of his cross-examination was as follows:

Now, [the applicant] says that he never went into the room that night - into your room; do you agree or disagree?---I disagree.

[The applicant] says that he just said goodnight to you in the doorway of that room; do you agree or do you disagree?---I disagree with that.

And [the applicant] says that he never touched you on the penis; do you agree or do you disagree?---I disagree.

1. Lucy Blackburn gave evidence about how she had come to be in a relationship with the applicant. She had owned a supermarket at which he had been employed as a driver, and four or five months later they started a relationship in 2016. The relationship ended in 2021. She said that the applicant had met Lillian and Patrick around 10 times in the course of that relationship, generally in the school holidays.
2. Lucy Blackburn said that she had gone to bed at around 9.30 pm on 17 January 2021. She had quickly gone to sleep and only woken briefly when the applicant came to bed, and again when he got up to get a drink. She did not see Lillian or Patrick again that evening after she had gone to bed.
3. Lucy then gave evidence about what happened on the morning of 18 January 2021:

And when did you first see [Lillian]?---I saw [Lillian] at approximately 8 o'clock in the morning, she came walking through the family room, I could see her through the window from the deck and I noticed she had a very distressful look on her face.

Was anything said?---She came out through the door, um, her look was so horrifying to me, my first reaction to her was, what is wrong?

How did she respond?---She looked at me, she said the words something bad happened to me last night Nan.

And what happened then?---I said to her darling what happened?

How did she respond?---And she said, [the applicant] came into my bedroom last night. Of which I said to her what did he do? And then she followed through with he got into my bed, he pulled my pyjama pants down and he started playing with my vagina. I then said to her, did he touch your vagina, did he put his fingers into your vagina? And she said, yes. I said did he put his penis near your vagina? She said, no. Then we both were just howling and I told her to wait there, to go and grab my phone, and at that stage I straight away called the police.

I'm sorry, at that stage?---At that stage, I went inside to grab my phone - - -

Yes?--- - - - and I called the police.

1. Lucy also gave evidence about what Patrick had said to her:

When you left [Patrick's] room whereabouts were the two children? ---The two children were together in um, [Patrick's] bed.

When you returned to [Patrick's] bedroom, um, what was said?---[Patrick] in a very strong was very distressed and he said, do you know what [Lillian] just told me? And I said, I'm aware um, something serious has happened, I said, the police are on the way um, and then he said, he came into my room last night as well. I said, did anything happen, he said no, he said, he leant over the bed and said, good night to me and then left the room.

Did [Patrick] give you any other detail of anything that had happened in his room?---In his room?

In his room?---Um, not that I can recall.

...

Have you told the jury everything that [Patrick] told you after you had called Triple 0?---He did make a suggestion to me that when [the applicant] leant over the bed that he - his hand may have brushed across his penis, but he said, he may have done that accidentally.

Could I please get you to tell the jury as best you can, the actual words that he used and any other demonstration he may have made?---He leant over the bed in this motion (witness demonstrates) and his hand touched the bed where [Patrick] believed his penis was and then removed it and then [Patrick] said, I don't know if that was an accident or it was deliberate, he said I don't know.

1. The informant gave evidence about the conduct of the investigation into Lillian's and Patrick's allegations. This included evidence about the police obtaining scrapings from under the applicant's fingernails and testing them for DNA, and the fact that no DNA was found in those scrapings that could be attributed to Lillian Holt. I return to that evidence in greater detail below, when considering ground 3.
2. The informant also gave evidence that he had conducted an interview with the applicant on 18 January 2021. An edited version of the video recording of that interview was played to the jury. In the record of interview the applicant denied the offending.

1. As noted above, the applicant gave evidence in his own defence, in which he denied the offending. His account of his interaction with Lillian and Patrick, once they were in bed, was as follows:

And [Lillian] walked off to bed because she just got off the couch she'd been sleeping on. I put my hand on her shoulder, um, I walked to the room and when I got to the room, um, I grabbed the blanket that they were laying under and I took the blanket and put it on the end of the bed and I immediately - I walked in front of [Lillian] and sat down on the end of the bed and, um, I didn't see [Lillian] but [Lillian] hopped in the left-hand side of the bed and scooted over to the right-hand side where there was a little table and lamp. And there was a tele in the room and I thought - I said, '[Lillian], I'll plug the tele in'. And she said, 'I don't really need it I've got my laptop'. And I, and I thought to myself, look, I'm going to plug it in anyway because I was under the impression that [Lucy] was working the next day and I was supposed to babysit the kids for the day. So I thought if I plugged the tele for her the kids can watch tele in there and I can get a bit of a sleep-in because it was quite late at that stage. So I plugged the tele in, turned around, said, 'are you all right'. And she said that she was scared. And I said, 'Are you comfortable'? And she said, 'I'll tell people if I'm not comfortable'. And I walked - and the doorway for - the room [Lillian] was sleeping in there, the doorway that [Patrick] was - the room was sleeping in there so I virtually stood at the door. I could see [Lillian] and I could see [Patrick]. I leant on the door and I said, 'are you okay, mate'. And I remember, I point my thumb out like that and he says, 'yes, I'm okay'. I said, 'the hallway lights are on'. ... I said, '[Patrick], you know where the toilet is, don't you, it's just down the end'. I said, ... 'I'll leave these lights on for you. You've got your light on in the bedroom'. And then I said, 'good night'. And that was it I went to bed.

1. In short, he admitted going into Lillian's room and sitting on her bed, but denied any physical contact with her, and he denied going into Patrick's room, or going anywhere near his bed, at all.
2. The applicant also called four witnesses to give evidence of his good character:

(a) his sister;

(b) his best friend of 42 years;

(c) a former employer who had become a friend; and

(d) a friend and former co-worker from a time when he and the applicant were working with intellectually and physically disabled people, including children.

1. Importantly, each character witness gave evidence that they had children with whom the applicant had interacted over the years and that they had never observed any concerning behaviour on his part. They also gave evidence that, knowing of the charges against the applicant, they would have no difficulty with him having contact with their grandchildren (who, it may be inferred, were minor children at the time).

Ground 3: impermissible invitation to speculate about the absence of DNA?

1. Ground 3 concerns the manner in which the DNA evidence was dealt with by the prosecution in the closing address to the jury. Before turning to the relevant passage, it is appropriate to set out evidence concerning DNA that was before the jury. That evidence was adduced through the informant, as follows:

Detective, as part of the investigation were fingernail scrapings obtain from [the applicant's] hands?---Yes, they were.

And was he cooperative with that process?---Yes, he was.

Were those fingernail scrapings subsequently forensically analysed?---Yes, they were.

And is it the case that there was nothing, no DNA found that could be attributed to [Lillian Holt]?---That is correct.

1. Defence counsel cross-examined the informant about the DNA evidence, as follows:

Detective. When [the applicant] was arrested on 18 January, he was cooperative with all the arresting officers, that's correct?---That's my information, yes.

You gave evidence earlier that he consented to a fingernail scraping?---Yes, he did.

He also consented to provide a DNA mouth sample?---Yes, he did.

And [Lillian] was subjected to what's called an 'early evidence kit'?---Yes, she was.

And some items were seized for analysis from Ms [Blackburn's] home? ---Yes, correct.

And those included a pink t-shirt that [Lillian] was wearing? ---Yes.

And a pair of underwear that [Lillian] was wearing?---Yes.

And a pillowcase and two bedsheets from the bed she was sleeping in?---That's correct.

And the analysis from all of those came back of nil value, is that correct?---The ones that were analysed, yes.

1. It is apparent from this passage that the scraping from the applicant's fingernails was taken on 18 January 2021, which was the day after the offending was said to have occurred.
2. In re-examination, the following exchange occurred:

Just to make things quite clear, in terms of the DNA testing of the sheets and clothing and so forth, when you say, 'nil value', do you mean that there was nothing whatsoever to link those items to [the applicant]?---Correct

1. The prosecution did not call any expert evidence about the DNA evidence. Nor did the defence. Thus the only evidence concerning DNA was the evidence given by the informant, which was that there was no DNA evidence that linked the applicant to the alleged offences and, in particular, that the scrapings taken from under his fingernails did not contain any DNA that could be attributed to Lillian Holt.
2. As already noted, the applicant gave evidence in his own defence. In the course of cross‑examination, the following exchange occurred:

And you told the police that you stayed there all night, didn't get up for a piddle until about 5 o'clock this morning that's what you said?---Yeah, somethin', yep.

And was that the truth?---Yes.

You said that you used - you used the ensuite?---Yes.

And that was the truth?---Yes.

Is it your habit to wash your hands after you pass water?---Um, generally I do.

Did you do so on that night?---Ah, can't really remember, if I had no clothes on, sometimes I don't because I don't have to touch myself to go to the urinal.

Well you said, so you can't say whether or not you washed your hands on that occasion?---No, but yeah, if I went to the toilet other business, I'd always wash my hands.

1. The applicant's ground 3 turns on a particular submission made by the prosecutor in her closing address. It is appropriate to set out the relevant passages in full (emphasis added):

[The informant] told you that scrapings were taken from underneath the accused man's fingernails and a reference sample from his mouth. He told you that [the applicant] was cooperative with the process. He told you that the scrapings were analysed and no DNA was found that could be attributed to [Lillian Holt]. He told you that testing of the clothing taken from [Lillian's] bedroom did not produce any result to implicate [the applicant].

Now I just want to make a brief submission concerning the issue of DNA evidence, members of the jury. [Lillian] said in her VARE, her video and audio-recorded evidence, that after inserting his finger into her vagina the accused man licked that finger. When he was cross-examined the accused man gave this evidence: 'And you told the police that you stayed there all night, didn't get up for a piddle until about 5 o'clock this morning, that's what you said?' And he said, 'Yeah, something, yeah'.

He was asked, 'And was that the truth?' And he said yes. He was asked, 'You said that you used the en suite?' And he said yes. He was asked, 'And that was the truth?' And he said yes. He was asked, 'Is it your habit to wash your hands after you pass water?' And he said, 'Um, generally I do'. He was then asked, 'Did you do so on that night', and said, 'Ah, can't really remember, if I had no clothes on, sometimes I don't because I don't have to touch myself to go to the urinal'. He was asked, 'Well, you said - so you can't say whether or not you washed your hands on that occasion?' And he said no.

Now, members of the jury, you there have at least one opportunity for DNA evidence to be potentially removed from the finger concern[ed], if you accept [Lillian Holt's] evidence. Irrespective of that I'd submit, members of the jury, the DNA evidence - clearly DNA results do not support the Crown case, but no more can be said than that. Not every case can rely upon DNA and the absence of DNA support does not prevent the procedure of a trial going before a jury. I'd submit the absence of DNA support does not disprove the Crown case. At times it can be of assistance, at times it's not.

In this case you've heard evidence of brief touching in the course of penetration. So ultimately, members of the jury - and that of course is a submission from me, it's not evidence. What's in evidence is that there's no DNA to support the Crown case.

Ultimately the Crown case stands or falls on the evidence of [Lillian Holt] concerning Charges 1 to 3 and on the evidence of [Patrick Holt] concerning Charge 4. They are the primary and only witnesses because self-evidently at the time of the alleged offending on the evidence of either child there's only two people in the bedroom at any time: the accused man and the child concerned. I'm urging you to accept [Lillian Holt] and [Patrick Holt] as credible or honest and reliable witnesses.

1. Defence counsel did not object to the prosecutor's remarks. Nor did he seek any specific direction from the trial judge in relation to them, or seek to have the jury discharged.
2. In the course of his closing address to the jury, defence counsel addressed the DNA evidence as follows:

And you also heard from the informant that [the applicant] undertook fingernail scraping, under his fingernails for DNA analysis. That didn't corroborate the accounts. You heard from the informant that [Lillian] undertook an early evidence kit for forensic analysis. Various items of clothing and bedding were seized for analysis; none of that corroborated her account. All you have is what [Lillian] says and what [Patrick] says.

In his interview [the applicant] said, 'I've heard the allegations and they're pretty disgusting and it's just not me. I just wouldn't do it. I just - I know I can say that until I'm blue in the face, but I just can't - I don't know what's got into her head'. What more can he do but continue to say it until he's blue in the face? He did not do it. He gave his DNA, submitted to fingernail scrapings, spoke to the police, gave evidence before you. What more can he do?

1. In the judge's charge, her Honour made a brief reference to the DNA evidence as follows:

Now, the officer in charge also told you of other investigations that he undertook, including asking for analysis of certain items including bedclothes and taking fingernail scrapings and a DNA swab from the accused. No forensic evidence resulted. Counsel have addressed you on this. My only direction is that none of these investigations produced any further prosecution evidence.

1. The applicant submitted that the manner in which the prosecution dealt with the absence of DNA evidence linking the applicant to the offending occasioned a substantial miscarriage of justice. I accept that submission, for the reasons that follow.
2. The remarks made by the prosector were made in a context where the evidence before the jury was that there was no evidence that Lillian Holt's DNA was underneath the applicant's fingernails the next morning. There was, of course, no expert evidence about whether the presence of DNA was to be expected in such circumstances. However, the absence of DNA meant that there was no independent corroboration of Lillian Holt's evidence about what had occurred. That was the principal manner in which the defence relied on the evidence concerning the absence of DNA. It may be accepted that a case based on an absence of corroboration is, as the respondent pointed out, different from a defence case that the absence of DNA made it less likely that Lillian Holt was telling the truth. Nonetheless the absence of corroboration was important to the applicant's case before the jury. This was a case where his defence was a denial that the offending took place. In that context the absence of corroboration was important, and the case was closed to the jury on that basis. The defence also emphasised the applicant's cooperation in providing his fingernail scrapings and his DNA, as part of his defence.
3. The prosecutor plainly saw the absence of Lillian Holt's DNA in the fingernail scrapings as sufficiently significant to the prosecution case that it needed to be addressed. Thus, during cross-examination, the prosecution asked the applicant a series of questions about whether he had washed his hands after urinating. The only purpose that I can discern for these questions was to provide the foundation for the closing submission concerning the explanation for the 'missing' DNA.
4. In the closing address itself, the prosecution addressed the DNA evidence at some length. The discussion of the DNA evidence was introduced by referring to Lillian's evidence that the applicant had 'licked his finger' after penetrating her vagina. The prosecution then revisited, at some length, the applicant's evidence about using the ensuite, and whether he had washed his hands. Then the prosecution said 'you there have at least one opportunity for DNA evidence to be potentially removed from the finger concern[ed], if you accept [Lillain Holt's] evidence'.
5. This aspect of the prosecution address is capable of being understood in various ways. Taken on the basis most generous to the prosecution, it invited the jury to speculate about how DNA might have been removed from the applicant's finger. In effect the submission invited the jury to assume that Lillian's DNA would have been present underneath the applicant's fingernails, and to conclude that it had been removed. The submission in question could, less generously, be regarded as the prosecutor giving evidence from the Bar table about a manner in which DNA might be removed from under a person's fingernails, namely by the person washing their hands (because the submission followed the extended reiteration of the applicant's evidence on that topic). But there was simply no evidence before the jury about how DNA might come to be removed from under a person's fingernails - in particular, there was no evidence about whether handwashing was such a mechanism. The prosecution could have called expert evidence on those matters, but chose not to. Yet the prosecutor's submission invited the jury to conclude that the applicant washing his hands could have resulted in the removal of incriminating DNA.
6. The use of the words 'at least one opportunity' also meant that the jury was invited to speculate about other ways that incriminating DNA evidence might have been removed. One such possible mechanism for removal of DNA was the applicant licking his finger after he had penetrated Lillian Holt's vagina, which was the first thing that the prosector mentioned after introducing the topic of the DNA evidence. Again, there was no evidence to support that suggestion. These words also invited the jury to speculate about whether there might have been other, unknown ways in which incriminating DNA evidence might have been removed.
7. In the course of the hearing of the appeal, the respondent quite properly accepted that the remarks the prosecutor made in the course of her closing address 'should not have been made', went 'too far', and went beyond the evidence adduced at the trial. Ultimately, the respondent contended that the prosecutor's remarks concerning the DNA were 'corrected', and in effect cured, by the remarks made immediately following - namely that:

(a) '[i]rrespective of that [ie the opportunity for DNA to be removed] I'd submit, ... - clearly DNA results do not support the Crown case, but no more can be said than that';

(b) 'that of course is a submission from me, it's not evidence. What's in evidence is that there's no DNA to support the Crown case'; and

(c) 'the Crown case stands or falls on the evidence of [Lillian Holt] concerning Charges 1 to 3 and on the evidence of [Patrick Holt] concerning Charge 4'.

1. Those remarks may well have reflected an appreciation by the prosecutor that she had, indeed, gone 'too far' - although as I have said, an attempt to provide a foundation for this submission occurred during the prosecutor's cross-examination of the applicant. Regardless of such an awareness, the later remarks did not, in my opinion, undo the damage that had been done by the earlier remarks. They did not constitute a withdrawal of what had been said. Indeed, to some extent the later remarks affirmed the earlier remarks, by describing them as a 'submission' (albeit as 'not evidence').
2. The respondent also sought to rely upon the judge's directions in relation to the DNA evidence, in particular the judge's statement that 'no forensic evidence resulted' from the fingernail scrapings, and her Honour's further statement that 'none of these investigations produced any further prosecution evidence'. The difficulty is that these brief general remarks did not address the prosecutor's impugned remarks. Rather, the judge simply reminded the jury that counsel had addressed them on the forensic evidence, with the implication that those addresses were sound and that the judge needed to say little more. This did not convey to the jury that they could not engage in the path of reasoning upon which the prosecutor had invited them to embark.
3. Section 276(1) of the Criminal Procedure Act 2009 relevantly provides that this Court must set aside a conviction if the appellant satisfies it that there has been a substantial miscarriage of justice, whether by reason of an error or irregularity in relation to the trial (s 276(1)(b)) or 'for any other reason' (s 276(1)(c)). In Baini v The Queen, the High Court made it clear that there is no single universally applicable definition of a 'substantial miscarriage of justice', because the possible kinds of miscarriage of justice dealt with by s 276(1) of the Criminal Procedure Act are 'too numerous and too different to permit prescription of a singular test'.[7] The Court said that whether there has been a substantial miscarriage of justice 'ultimately requires a judgment to be made.'[8]
4. In the present case, I consider that the prosecutor's remarks concerning how the jury were to approach the DNA evidence constituted a substantial miscarriage of justice. As I have explained, those remarks went well beyond the evidence adduced in the trial and invited the jury to assume that incriminating DNA evidence had been present and then to speculate about how that incriminating evidence might have come to be removed. On one view, the remarks involved the prosecutor giving evidence from the Bar table. I consider that these remarks may have affected the result of the trial, given the significance of the absence of incriminating DNA evidence to the applicant's case. I also observe that the prosecution did not seek to establish that the conviction was inevitable.
5. True it is that defence counsel did not object to the manner in which the prosecutor dealt with the DNA evidence. But, as the prosecution quite properly accepted, that is not an insurmountable barrier to this Court concluding that there has been a substantial miscarriage of justice. There is no inflexible rule that an exception must be taken at trial; rather, this Court has a discretion to allow a new point to be raised on appeal, and a duty to rectify a substantial miscarriage of justice.[9] In the present case, there could be no suggestion that there was a sound forensic basis underlying defence counsel's failure to object to the prosecutor's comments, given the importance of the absence of relevant DNA to the defence case.[10]
6. It necessarily follows that the conviction on charge 2 - to which the prosecutor's remarks were principally addressed - must be set aside.
7. The respondent submitted that even if the conviction on charge 2 was set aside, the convictions on charges 1 and 4 could stand. I do not accept that submission.
8. In my opinion, it is also necessary to set aside the conviction on charge 1, because charges 1 and 2 concerned the same complainant and were so closely connected in time and circumstances that there is a real risk that the jury's reasoning in relation to charge 1 would have been affected by their reasoning in relation to charge 2.
9. I also consider that the conviction on charge 4 must be set aside, even though it concerned a different complainant. Again, the conduct said to constitute charge 4 was so closely connected in time and circumstances that there is a real risk that the jury's reasoning in relation to that charge would have been affected by their reasoning in relation to charge 2. Furthermore, there is a likelihood that, once the jury concluded that the applicant was guilty of charges 1 and 2, they would have put to one side the good character evidence that the applicant had called in his defence. That deprived him of a real chance of an acquittal on charge 4.

1. By ground 4 the applicant contended that the jury's verdict on charge 4 was unreasonable or cannot be supported by the evidence because a properly instructed jury could not have been satisfied, on the evidence before it, that the touching the subject of charge 4 was intentional.
2. In relation to charge 4, the prosecution was required to establish that:

(a) the applicant touched Patrick Holt;

(b) the touching was intentional;

(c) the touching was sexual; and

(d) the touching was contrary to community standards.

1. The defence case was that the applicant did not touch Patrick Holt at all. The applicant gave evidence to that effect. He said he stood at the doorway and did not enter Patrick's bedroom. He did not give evidence that he touched Patrick, but that he did not touch Patrick's penis. Nor did he give evidence that he had touched Patrick's penis, but that such touching was accidental.
2. It is plain from the evidence set out above that Patrick was unsure, both at the time of the incident and the next morning, whether the applicant's touching of his penis was accidental or deliberate. The defence case on ground 4 was that this aspect of Patrick's evidence required the conclusion that the jury's verdict was not open. The applicant submitted as follows:

In the circumstances of a person leaning down and putting their hands on the bed to look at what the child was watching on the iPad and then giving a hug good night, a jury could not rationally choose between the act being intentional or accidental based on the fact of the touching alone. The complaint did not give any other observation to differentiate between the two possibilities. Leaving the hand "there for a bit" is qualified by only being for the period the Applicant leant down to look at the iPad. If a jury could not rationally choose between intentional or accidental, the jury could not rationally infer that the touching had to be sexual because of the region of the body that was touched.

The only person who could give evidence as to the direct observations that might assist in differentiating the possibilities was Patrick Holt. His evidence had an understandable lack of precision given his age. But this did not mean the jury could just draw the inference beyond reasonable doubt and fill in the gaps. Rather, the imprecision highlighted the importance to the jury of that direct observation Patrick Holt did make that in all of the circumstances he experienced and observed he remained unsure whether the Applicant deliberately touched his genital region or accidentally touched that area.

1. The fundamental difficulty with ground 4 is that Patrick Holt did not know, and could not give probative direct evidence about, the applicant's state of mind. Should authority be required to support that proposition, it may be found in the decision of this Court in R v Cahill.[11] In that case a man was convicted of aggravated burglary on the basis that

he had entered the complainant's home as a trespasser with intent to rape. The complainant gave evidence that she was terrified because she believed that the man was going to rape her. As this Court there explained, the complainant's belief about the man's intent was not admissible to prove the man's state of mind.[12]

1. I accept that, in this case, Patrick's evidence that he was uncertain whether the applicant's touching of his penis was accidental or not was admissible in the trial, as part of the narrative and/or pursuant to s 78 of the Evidence Act 2008. Nonetheless, that evidence did not require the jury to have a reasonable doubt about whether the applicant's touching of Patrick's penis was intentional.
2. Furthermore, the applicant gave evidence that he had not entered Patrick's room and had not touched him at all. I accept the prosecution submission, based on the reasoning of the High Court in R v Baden-Clay, that, once the jury had disbelieved the applicant's evidence that he had not touched Patrick, they were entitled to conclude that the possibility that he accidentally touched Patrick's penis was not a reasonable one.[13]
3. In short, Patrick's evidence was no barrier to the jury concluding, beyond a reasonable doubt, that the applicant touched Patrick's penis intentionally.
4. For these reasons, I would refuse leave to appeal on ground 4 on the basis that it has no prospect of success.

1. In light of the above, I would grant leave to appeal on ground 3 and allow the appeal. I would set aside the applicant's convictions on charges 1, 2 and 4 and make an order for a new trial.

1. I have also had the advantage of reading the reasons of Walker JA in draft. I agree with her Honour's reasons and with the orders that her Honour proposes.

[1] Pseudonyms have been used in relation to all of the witnesses in order to protect the identity of the complainants.

[2] Contrary to s 49D of the Crimes Act 1958.

[3] Contrary to s 49A of the Crimes Act.

[4] Contrary to s 49D of the Crimes Act.

[5] Ground 1 was effectively abandoned in the course of the hearing of the application for leave to appeal. The applicant required, and sought, an extension of time within which to file his notice of application for leave to appeal. The Registrar of the Court of Appeal granted the extension on 13 June 2024.

[6] The applicant also sought leave to appeal against sentence. In light of my conclusion concerning his conviction appeal, it is not necessary to address this application.

[7] Baini v The Queen [2012] HCA 59; (2012) 246 CLR 469, 479 [26] (French CJ, Hayne, Crennan, Kiefel and Bell JJ); [2012] HCA 59 ('Baini').

[8] Baini [2012] HCA 59; (2012) 246 CLR 469, 479 [26] (French CJ, Hayne, Crennan, Kiefel and Bell JJ); [2012] HCA 59

[9] See, eg, R v Clune [No 2] [1996] VicRp 1; [1996] 1 VR 1, 6 (Callaway JA, Winneke P agreeing at 2, Crockett AJA agreeing at 6); R v Wright [1999] VSCA 145; [1999] 3 VR 355, 361 [20] (Callaway JA, Phillips CJ and Charles JA agreeing at 356 [1]); [1999] VSCA 145.

[10] Contrast McDonald v The Queen [2013] VSCA 128, [55] (Buchanan, Priest and Coghlan JJA); Arico v The Queen [2018] VSCA 135; (2018) 272 A Crim R 450, 476 [142]-[143] (Maxwell ACJ and Weinberg JA); [2018] VSCA 135 - cases where failure by defence counsel to object to the judge's charge, or seek additional directions, was regarded as a rational decision by counsel, who was imbued with the atmosphere of the trial.

[11] [1998] 4 VR 1 ('Cahill').

[12] Cahill [1998] 4 VR 1, 2-3 (Ormiston JA), 10 (Phillips JA), 10-11 (Batt JA).

[13] (2016) 258 CLR 308, 327 [57]-[58] (French CJ, Kiefel, Bell, Keane and Gordon JJ); [2016] HCA 35.