Meyer (a Pseudonym) v The Queen [2018] VSCA 140

Court of Appeal (Vic)|2018-05-31|Before: Mr J, Maxwell ACJ

DPP v [Meyer] (Unreported, County Court of Victoria, Judge Gucciardo, 17 March 2017)

CRIMINAL LAW - Appeal - Conviction - Indecent assault, sexual penetration of child under 16 - Two complainants - Whether verdicts unsafe and unsatisfactory - Unfavourable prosecution witness - Leave to prosecutor to cross-examine after defence counsel's cross-examination - Aggregate of errors - Whether substantial miscarriage of justice - Duties of prosecutor - Leave to appeal granted - Appeal allowed - ,

1 I have had the advantage of reading in draft the reasons for judgment of Priest and Kaye JJA. I gratefully adopt their Honours' comprehensive account of the evidence given at the applicant's trial and of the issues raised by the grounds of appeal.

2 Their Honours would allow the appeal, but only on the basis of the 'aggregate of errors' relied on under ground 4. For reasons which follow, I respectfully disagree. In my opinion, there was no miscarriage of justice and the appeal against conviction should be dismissed.

3 As will appear, I do not regard any of the matters which are now the subject of specific complaint (and which together comprise the 'aggregate') as having caused any material prejudice to the defence case. In almost each instance, I regard the course taken by defence counsel as a powerful indicator of the absence of prejudice. None of the matters now the subject of complaint prompted defence counsel to take any of the following steps:

apply for a discharge of the jury;
apply for the judge to disqualify himself;
seek pursuant to s 12 of the Jury Directions Act 2015 a specific direction about the matter; or
take exception to any aspect of the charge.

4 In James v The Queen, I referred to a series of decisions in the High Court and in this Court which

emphasise that, in the appellate consideration of whether the course of a trial has occasioned a miscarriage of justice, very great significance is attached to informed decisions made by defence counsel about the best way to conduct the trial in the interests of the accused. As will appear, the proposition which underpins those decisions is that, in an adversarial system, the making of such decisions on behalf of an accused is itself an exercise of the right to a fair trial.[2]

5 As the joint judgment notes, counsel who appeared for the applicant at trial has very long experience as defence counsel.[3] Moreover, his conduct of this trial revealed him to be, at every stage, a vigorous defender of his client's interests, astute to take objection whenever he perceived it to be necessary to do so. For example, counsel took a number of exceptions in the course of the judge's charge, each of which resulted in a redirection.

6 The decisions which counsel made, in the atmosphere of this trial, not to seek corrective action in respect of the matters now complained of were decisions made in the exercise of his client's right to a fair trial. There was no miscarriage of justice.

7 Before I turn to ground 4, I wish to emphasise the significance of their Honours' conclusion - with which I agree - that grounds 2 and 3 should be rejected.

8 Ground 2 is the 'unsafe and unsatisfactory' ground.[4] That ground can only succeed if it is shown that it was not reasonably open to the jury to arrive at the verdicts which they returned. Put another way, the verdicts will stand unless the applicant demonstrates that the jury must have had a doubt about his guilt.[5]

9 Priest and Kaye JJA have given detailed reasons for rejecting the unsafe ground. In their Honours' view, it was open to the jury to be satisfied beyond reasonable doubt as to the credibility and reliability of the evidence of the complainant ('AL') as to the events giving rise to charges 4, 5, 6, 10, 18 and 20. Their Honours draw attention, in particular, to what they describe as the 'careful and discriminating approach' which the jury adopted in reaching their verdicts on the charges based on AL's evidence.[6]

10 I respectfully agree with their Honours' analysis of the issues raised under that ground, and with their conclusion. It is thus the unanimous conclusion of the Court that the evidence before the jury established, beyond reasonable doubt, the applicant's guilt of the charges on which he was convicted.[7]

11 I turn to ground 3. This was the only ground contending that a specific 'error or irregularity' in the trial had resulted in a substantial miscarriage of justice.[8] Their Honours have, again, analysed with great care the relevant circumstances and the arguments advanced in support of this ground. They have concluded that, although s 38 of the Evidence Act 2008 was not complied with, that non-compliance did not cause a substantial miscarriage of justice.[9] Once again, I respectfully agree with their Honours' analysis and conclusion.

12 As appears from the joint judgment, one of the principal arguments advanced in support of ground 3 was that the prosecutor's non-compliance with s 38 resulted in the opening up, to the applicant's disadvantage, of the topic of pre-trial conferences which defence counsel had had with the applicant's wife. As their Honours point out, however, any prejudice which resulted was wholly attributable to the decision of defence counsel to open up this topic in the course of his cross-examination of Mrs Meyer.[10]

13 Explaining the course he had adopted, defence counsel said to the trial judge that he had acted 'in a noble and appropriate manner'. He had opened up the topic, he said, 'as a matter of disclosure', in order to pre-empt what he anticipated would be cross-examination of Mrs Meyer on this topic by the prosecutor. As discussed with counsel in the course of argument on this application, however, defence counsel had other options open to him. The most obvious course would have been to seek a ruling from the judge (in the absence of the jury) as to whether this was a topic which the prosecutor could raise with the witness. As the judge said to counsel at the time, quite correctly, the prosecutor would have had no basis for cross-examining on this matter if defence counsel had not raised it himself.

14 Importantly, and in any event, their Honours have concluded that the raising of this topic had little effect on Mrs Meyer's credibility. I respectfully agree. A fair reading of the transcript reveals that Mrs Meyer emerged almost entirely unscathed from the prosecutor's cross-examination. There is no substance in the applicant's contention that her credibility was 'destroyed'.

15 As their Honours point out, the jury could not have been surprised to learn that Mrs Meyer had assisted her husband in the preparation of the case.[11] It was inevitable that she would be associated, in the jury's mind, with the defence side of the case. The jury would, moreover, have appreciated the acute difficulty of the position in which she found herself, as a prosecution witness in the trial of her spouse on very serious charges of this kind.

16 Ground 4 contends that the applicant's trial 'miscarried by reason of an aggregate of errors'. According to the written case, the trial

was marked by a series of incidents, which may not have individually given rise to a substantial miscarriage of justice, but which together have that result.[12]

17 The 'aggregate of errors' is said to comprise the matters relied on under the other grounds, together with eight additional matters. Counsel for the applicant (who did not appear at the trial) emphasised in oral argument that none of the eight additional matters could be said, by itself, to have caused a substantial miscarriage of justice. In relation to item 8, that concession was expressly based on the failure of defence counsel to object to the course taken.[13]

18 It is, of course, open to a court of criminal appeal to conclude that, although no single error or irregularity caused a substantial miscarriage of justice, an aggregation of defects nevertheless denied the accused a fair trial.[14] At the same time, the intrinsic difficulty of this ground will be immediately apparent. When this Court concludes that the individual grounds of appeal are not made out, an 'aggregate of errors' ground advanced in the alternative will almost inevitably fail.[15]

19 Unusually, the 'aggregate of errors' ground here is not simply an alternative to a series of specific error grounds. Instead, the applicant has collected together a multitude of lesser complaints under a 'catchall' ground. That is an approach which has been strongly deprecated by this Court. In Davis (a pseudonym) v The Queen, the Court (Priest and Santamaria JJA and Cavanough AJA) said:

Under the umbrella of ground 5 - which contended that 'an accumulation of errors and irregularities in the trial ... led to a substantial miscarriage of justice' - the applicant's counsel sought to shelter a number of discrete complaints. Although the Court permitted counsel to adopt that course on this occasion, it should not be considered to be an acceptable course to advance distinct complaints - that should properly each be the foundation of separate grounds of appeal - under the cover of a 'catchall' ground. A ground claiming that an aggregate of errors has led a trial to miscarry is only appropriate where an appellant relies separately on distinct grounds of appeal which, when considered individually, might not found a conclusion that there has been a substantial miscarriage of justice, but which, when considered collectively, might found such a conclusion. Any future attempts to bundle up discrete complaints in a single ground alleging an aggregate of errors is unlikely to be received as tolerantly as it was by the Court in the present case.[16]

20 Against that background, I turn to deal with the eight additional matters ('items') relied on in support of ground 4. Priest and Kaye JJA would reject the complaints the subject of items 3 and 7.[17] I respectfully agree with those conclusions, and their Honours' reasons. I turn to deal with the remaining items - 1, 2, 4, 5 and 6.

21 Item 1 concerned the prosecutor's cross-examination of the applicant about his having sought legal advice the day after the pretext conversation. In my opinion, this complaint is without substance.

22 As the joint judgment notes, the trial judge specifically directed the jury not to draw any adverse inference against the applicant because he had consulted a solicitor in this way.[18] Counsel for the applicant in this Court accepted that this was an appropriate direction.

23 This Court must, of course, proceed on the assumption that jurors will follow the directions which they are given.[19] On that assumption, there was no risk of impermissible reasoning.

24 Item 2 concerned a question which the prosecutor asked the applicant during cross-examination. The prosecutor referred to evidence given by the applicant, to the effect that AL had told him that her life was 'in ruins' and that she did not want to see him again. The prosecutor's question was in these terms:

Would you suggest that when she saw you the last time and told you she didn't want to see you again that that, according to you, would be the motivation for her telling all these appalling lies about you?

25 As Priest and Kaye JJA point out, a question of this kind is impermissible for the reasons given by the High Court in Palmer v The Queen.[20] But, as the plurality in Palmer pointed out, it is one thing to describe the asking of the question as improper, it is another thing to decide whether justice miscarried as a result. Brennan CJ, Gaudron and Gummow JJ said:

A firm and clear direction from the trial judge may prevent the impropriety of asking the question from causing justice to miscarry. Nevertheless, as the question is irrelevant to any issue in the case, it ought not be asked.[21]

26 It is notable that this matter was not made the subject of a separate ground of appeal. In other words, the applicant did not contend that the asking of the question 'caused justice to miscarry'. Rather, according to the written case, the asking of the question 'risked diverting the jury's attention from the proper assessment of the credibility of prosecution witnesses'.

27 That contention may be disposed of shortly. First, defence counsel raised a strong objection immediately after the question was asked. A debate ensued, involving defence counsel, the prosecutor and the judge, as a result of which the prosecutor did not press the question. In those circumstances, the jury is likely to have disregarded the entire issue.

28 Secondly, defence counsel sought no corrective action from the judge. Properly alive to the impropriety of the question, as demonstrated by his objection to it, defence counsel could have asked the judge to give a direction to the jury to disregard the question. But he did not do so, evidently concluding that there was no risk of impermissible reasoning. In the circumstances, this was a sound forensic judgment.

29 Thirdly, there is nothing to suggest that the jury were diverted from a proper assessment of the credibility of prosecution witnesses. On the contrary, as Priest and Kaye JJA point out, their 'careful and discriminating' approach to their verdicts shows just how scrupulously they approached the question of credibility.[22]

30 Item 4 concerned an intervention by the trial judge during the cross-examination of the complainant, when defence counsel was questioning her about her continued contact with the applicant in the years after the alleged sexual offences. The evident purpose of the questioning was to test the complainant's credibility by pointing out the apparent inconsistency between her allegations that he had sexually abused her and her subsequent continuation of friendly relations with him.

31 When defence counsel asked AL how she felt about the applicant after the last of the alleged incidents, she confirmed that she was friendly towards him because 'he was a family friend'. She further confirmed that she had attended his

32 The question which prompted the judge's intervention was as follows:

If he had done these things to you he wouldn't be a friend, he'd be something - somebody, I suggest, that you would detest.

I think these propositions ... are arguments. I don't want to stray into a discussion about the methodology about why children remain in the circle of offenders, why they keep going back to the sacristy, why battered women keep going back home. These are arguments.

33 For the reasons given in the joint judgment, this intervention was quite inappropriate. Whatever might be said about victims of violence continuing to associate with perpetrators, the judge had no business raising that general topic in the course of what was a perfectly legitimate line of cross-examination. I also agree with their Honours that, given the issues recently ventilated before the Royal Commission into Institutional Responses to Child Sexual Abuse, the reference to 'going back to the sacristy' was particularly inappropriate.

34 I am not, however, persuaded that his Honour's remark caused any material prejudice to the applicant's case. The most powerful indicator of the absence of prejudice is defence counsel's failure to object. The transcript records that counsel simply continued with the cross-examination. Had counsel been concerned that his Honour's remarks might lead the jury to reason impermissibly, or to give the cross-examination less weight than it deserved, he could have applied for a discharge of the jury. He did not do so. Alternatively, he could have asked the judge to direct the jury to disregard the remark. Again, he did not do so.

35 As mentioned earlier, defence counsel is a very experienced criminal barrister. The transcript of this trial shows that he was astute to raise objections, and seek directions, whenever he considered that the applicant's interests necessitated that course. As has often been stated, counsel immersed in the atmosphere of the trial is far better placed than is this Court to determine the likely impact of such a statement on the jury.[23] This Court should be slow, in my opinion, to conclude that an accused person's position was prejudiced when defence counsel evidently did not consider that to be so.

36 Item 5 concerned interventions by the judge during defence counsel's cross-examination of witnesses. The applicant's written case identified five instances of comments made by the judge in the presence of the jury which, it is said, undermined the credibility of counsel. According to the submission, criticism of this kind 'risks conveying that the judge views the defence case as hollow'.

37 Priest and Kaye JJA have described the circumstances in which each of the impugned comments was made, and I need not repeat those details.[24] Importantly, their Honours regard only two of the five comments (the second and the fourth) as being of any real moment. Their Honours have also identified a number of other interventions which were not relied on in the written case.[25]

38 In my respectful opinion, there is no basis for concluding that the judge's comments caused any prejudice to the defence case. The joint judgment sets out the relevant passage from the decision of this Court in Piccolotto v The Queen, which affirms

the power and duty of a trial judge to control and regulate the proceeding before him or her, by requiring worthless methods of examination to be abandoned or by restraining unnecessary prolonged cross-examination, are undoubted. Trial judges on busy courts are expected to ensure that trials are conducted as efficiently as possible.[26]

39 At the same time, the Court in Piccolotto identified the risk that, if the judge 'frequently intervenes by correcting and rebuking defence counsel', the jury may infer that the judge has formed 'an unfavourable view of the merits of the defence case'.[27] In my opinion, nothing said by the judge in this case is likely to have conveyed to the jury any impression about his Honour's view of the merits of the defence case. Once again, I regard the position taken by defence counsel as of very great significance.

40 The position is, I consider, similar to that considered recently in McPadden v The Queen, where the Court (Priest and Hargrave JJA and Kidd AJA) said:

In their totality, the interjections impugned in this case are of a different order to those in Piccolotto and Percival. Certainly, they did not occur with nearly the same persistence. Moreover, save for one comment, the interjections provoked neither an application for the judge to disqualify himself nor an application for the discharge of the jury. Furthermore, no directions were sought with respect to the interjections, presumably because the applicant's counsel did not see any need for directions to guard against any prejudice flowing from the judge's comments. By contrast, in Percival, an application was made to discharge the jury, and directions were subsequently given; and in Piccolotto, an application was made for the judge to disqualify himself on the basis of bias, and directions were also subsequently given.[28]

41 In the present case, defence counsel did protest to the judge - in the absence of the jury - about one of the interventions. But there was no application for a discharge of the jury, and no application for the judge to disqualify himself, and no directions were sought, with respect to any of the judge's comments. Here, as in McPadden, the obvious inference is that defence counsel did not see any need for directions to guard against any prejudice flowing from those comments.

42 Item 6 concerned the use of a screen in court between the applicant and the complainants as they gave their evidence. As the joint judgment points out, this course is permitted by s 360 of the Criminal Procedure Act 2009. At the time of this trial, however, the judge was required by s 361 to warn the jury that they must not draw any inference adverse to the accused, or give the evidence any greater or lesser weight, because of the use of a screen.

43 It is common ground that the judge did not give the direction required by

s 361. But his Honour did explain that the use of a screen was commonplace in sexual assault cases, and the jury would therefore have understood that there was nothing unusual about the applicant's case in this respect. The risk of unfair reasoning was remote.[29]

44 Again, I regard it as crucial that defence counsel took no objection to the direction given. Counsel was, of course, fully aware of the use of the screen. It must be assumed that, if he had had the slightest concern that its use might affect the jury's view of the applicant or of the evidence which the complainants were giving, he would have raised it with the judge.

45 As I said in relation to item 4, counsel was imbued with the atmosphere of the trial. He was much better placed than is this Court to assess the risk of unfair reasoning. We should be slow to substitute our opinion for that of trial counsel.

46 For completeness, I note that s 361 of the Criminal Procedure Act 2009 has since been repealed.[30] The Explanatory Memorandum to the amending legislation stated as follows:

[A]s the use of alternative means and recorded evidence is now commonplace, mandatory directions are no longer necessary. Further, the wording of the direction (particularly the reference to 'adverse influences') may be difficult for jurors to understand. If jurors do understand the directions, research shows that 'limiting' directions such as these may, by placing ideas in jurors' minds, have the opposite effect to that which is intended.[31]

47 Item 8 concerns the following direction which the judge gave in the course of his charge:

Now, yesterday in submissions you heard [defence counsel] say to you rhetorically 'Why say something different in evidence unless you're being untruthful or deceitful?' And I wish to direct you further about not just that comment but what I have just told you in directions of law.

The experience of the law shows that people may not remember the details of a sexual offence, or may not describe the sexual offence in the same way each time, and trauma may affect different people differently, including by affecting how they recall events, and it is common for there to be differences in accounts of a sexual offence, and both - this is important - both truthful and untruthful accounts of a sexual offence may contain differences. It is up to you to decide whether or not any differences in the accounts of [AL] and [HK] are important in assessing their credibility and reliability, and whether you believe some or all or none of their evidence.[32]

48 As can be seen, the giving of this direction was prompted by a rhetorical question which defence counsel had posed in final address. Counsel had emphasised what he described as 'the demonstrated, repeated inconsistency, untruthfulness' of the complainants' evidence. The clear implication of the rhetorical question was that the only explanation for a change in the account which a complainant gave was that she was 'being untruthful or deceitful'.

49 As can also be seen, the direction was expressed to be supplementary to 'what I have just told you in directions of law'. As the joint judgment notes, the preceding section of the judge's charge consisted of the standard directions - properly characterised by his Honour as directions of law - about what use the jury could make of prior inconsistent statements.[33] In the course of those directions, his Honour said:

You should keep in mind the fact that a witness who gives inconsistent accounts is not necessarily lying. While dishonest witnesses are more likely to introduce inconsistencies in their stories, truthful witnesses may make mistakes about details.

50 This was an entirely orthodox direction to which, unsurprisingly, there was no challenge. Relevantly for present purposes, the essential thrust of the impugned direction was to the same effect as the unchallenged direction which preceded it. That is, the judge was applying the general proposition - that truthful witnesses can give inconsistent versions - to the specific context of evidence given by complainants in sexual assault cases. It is wholly unsurprising, in those circumstances, that defence counsel took no objection to the direction which is now the subject of complaint.

51 The failure to take exception is, once again, the most powerful indication that the giving of the direction created no risk that the jury would, as a result, reason in an unfair manner. Had defence counsel perceived any such risk, it must be assumed that he would have taken exception at the appropriate time, and sought a redirection.

52 Importantly, it was the failure of defence counsel to take exception which meant that this direction was not made the subject of a separate ground of appeal. Counsel for the applicant expressly conceded that, because no exception was taken, he could not submit that the direction had produced a substantial miscarriage of justice. As I have explained, I regard the failure to take exception as demonstrating that the giving of the direction caused the applicant no prejudice.

53 In any event, the direction was innocuous. His Honour was merely stating an incontrovertible truth, namely, that a person who is required to recount an event on successive occasions over time is unlikely to give precisely the same account each time. To the extent that defence counsel's question implied the contrary - that is, that a person's successive accounts, if they were true, would be expected to be word-for-word the same - then the judge was right to correct any misapprehension which might thus have been created in the minds of the jury. The requirements of a fair trial for the prosecution justified that correction.

54 As Priest and Kaye JJA have noted, a direction in almost exactly the terms used by the trial judge is now provided for by s 54D of the Jury Directions Act 2015.[34] The Bill which included that provision was introduced into the Victorian Parliament in February 2017, before the applicant's trial commenced, but it was not passed until August 2017 and did not commence until October 2017.[35] (So closely does the impugned direction follow the language of what became s 54D that it may be inferred that the judge was anticipating its enactment.)

55 In the United Kingdom, directions on matters of this kind are governed by the common law. In 2010, in Miller v The Queen,[36] the Court of Appeal (Criminal Division) said:

In recent years, the courts have increasingly been prepared to acknowledge the need for a direction that deals with what might be described as stereotypical assumptions about issues such as delay in reporting allegations of sexual crime and distress ...[37]

[Defence counsel] submitted that this approach offended the common law principle that judicial notice can only be taken of facts of particular notoriety or common knowledge and so provided to juries during the course of a summing up as established without evidence. That, however, is precisely what dealing with these generalisations is intended to do. As Latham LJ explained in R v D ... :

The judge is entitled to make comments as to the way evidence is to be approached, particularly in areas where there is a danger of a jury coming to an unjustified conclusion without an appropriate warning.[38]

56 What his Honour said in the present case should be viewed in the same light. It may be accepted that his Honour had neither judicial nor legislative authority to describe what he said as a direction, rather than as a comment. But, for the reasons I have given, the giving of the direction was in the interests of justice, constituted by ensuring a fair trial for both sides, and was incapable of causing any unfairness to the applicant. In the passage under scrutiny, the judge made unambiguously clear, as he had done in his directions on prior inconsistent statements, that it was for the

jury - and the jury alone - to decide whether the differences in the accounts the complainants had given affected their view of the credibility and reliability of those witnesses.

57 The applicant was charged on indictment with 27 counts of committing sexual offences against two young girls, who were under the age of 16 years, in the period June 1980 to September 1981. After a trial in the County Court, the applicant was convicted of 13 of those charges, and was sentenced to a total effective sentence of six years and six months' imprisonment with a non-parole period of four years. He seeks leave to appeal against his conviction on those charges.

58 The applicant was born on 1 March 1956, and he was 24 years of age at the time of offending. The two complainants, who were sisters, were AL (nee AB), who was born on 29 September 1966 and HK (formerly HB), who was born on 22 September 1967. Charges 1 to 20 on the indictment concerned offences alleged to have been committed by the applicant against AL, and charges 21 to 27 concerned offences alleged to have been committed by the applicant against HK. The applicant was convicted on charges 4, 5, 6, 10, 18 and 20 (involving AL), and each of charges 21 to 27 (involving HK).

59 At the time of the offences, the two complainants lived with their parents, and their younger brother and younger sister, at Mooroolbark. In September 1979, the applicant and his wife, Audrey Meyer, moved into the house at Mooroolbark, which was opposite the complainants' home. Subsequently, the applicant's wife gave birth to two young sons, Glen, who was born in August 1980, and Leigh, who was born in December 1981.

60 After the applicant and his wife moved into the neighbourhood, AL and HK often visited the applicant's family home, either alone or together, to assist the

applicant and his wife care for their infant sons, and to use the applicant's above ground swimming pool. As a result, a friendship developed between the applicant and his wife, on the one hand, and AL and HK. The offences, that were the subject of the charges, took place in the context of the visits by the two complainants to the home of the applicant.

61 In his application for leave to appeal against conviction, the applicant originally relied on four grounds of appeal. Subsequently, he abandoned the first ground. The remaining three grounds are as follows:

The verdicts on charges 4, 5, 6, 10, 18 and 20 are unsafe and unsatisfactory.
A substantial miscarriage of justice occurred by reason of the prosecutor being permitted to cross-examine the witness Audrey Meyer in re-examination.
An aggregation of errors has resulted in a substantial miscarriage of justice.

62 In the course of our consideration of those grounds, in these reasons, it will be necessary to discuss matters which might reflect on the conduct, in the trial, by counsel, and, in particular, by the prosecutor. At the outset, we emphasise that counsel, who represented the applicant and the respondent in this application, were not the same counsel who represented the prosecution and the accused in the trial. Further, it is appropriate to observe that the presentation of the application, both by counsel for the applicant and by counsel for the respondent, was of a particularly high standard, and they both provided substantial assistance to the Court in the determination of the difficult issues involved in this application.

63 In order to address those grounds, it is necessary to summarise, in some detail, the evidence that was given in the trial.

64 AL commenced her evidence by relating the circumstances in which she and her family became acquainted with the applicant and his wife. The first incident, described by AL, was that which involved charges 4, 5 and 6 on the indictment. At the trial, it was referred to as 'the laundry incident'. AL stated that it was the first incident in which Conor Meyer assaulted her. She said that she was 14 years of age. The incident occurred one day in the laundry of the applicant's home after school when she attended the Meyer's home wearing her school uniform. Audrey, the baby (Glen) and the applicant were home. AL said that she was up against the laundry trough and the applicant was in front of her. The applicant started to touch her breasts through her school uniform, then he undid the buttons at the front and touched her bare breasts (these were uncharged acts). The applicant then put his hand down her pants and inserted his fingers inside her vagina (charge 5 - unlawfully/indecently assault a girl under the age of 16 years). He made AL feel his penis with her hand over the top of his shorts (charge 4 - unlawfully/indecently assault a girl under the age of 16 years). The applicant then knelt down, pulled AL's pants down, and put his tongue inside her vagina (charge 6 - unlawfully/indecently assault a girl under the age of 16 years). His penis was erect at the time, and he said 'Now look what you've made me do'. AL noticed that his shorts were wet. After the incident, AL went home.

65 The next incident, described by AL, was that which was the subject of charges 7 and 8 on the indictment, on which the applicant was acquitted. It was referred to as 'the swimming pool incident'. AL stated that on that occasion she, together with a school friend Sharon Sanderson, visited the Meyers, and used their swimming pool. Sharon was wearing a one piece swimming costume, and AL was wearing a bikini. The applicant got into the pool with the two girls, and, a short time later, Sharon got out of the pool. Audrey Meyer then came out to the back door. AL and the applicant were then at the end of the pool. While Audrey was talking to the applicant, the applicant put his hand inside AL's bathers and touched her bottom (an uncharged act). AL then turned around. The applicant pulled her bikini bottoms down exposing her vagina, rubbed his exposed penis between her legs (uncharged act), and partially inserted his penis into her exposed vagina (charges 7 and 8, which were alternatives).

66 AL next described the incident, that was the subject of charges 1 and 2 on the indictment, on which the applicant was acquitted. That incident was referred to as 'the VFL Grand Final incident', because it was alleged by AL to have taken place on the day of the 1980 VFL Grand Final, between Richmond and Collingwood football clubs. AL stated that, on that day, the applicant and she had driven to the milk bar to get some drinks. They then drove to a secluded area located between the football oval and tennis courts in Mooroolbark, where the applicant parked the car. He then lent over, kissed her on the mouth and placed his tongue in her mouth (an uncharged act), put his hand down her pants and inserted his fingers in her vagina (charge 1). He then exposed his penis, placed one of her hands on it and ejaculated into her hand (charge 2).

67 The next incident, described by AL, was the subject of charges 9 to 12, which were alternative charges, and which was described as 'the driveway incident'. The applicant was convicted on charge 10. On that occasion, on one evening AL attended the Meyer premises wearing her school uniform. When she left the Meyer home, the applicant commenced to walk home because it was dark. AL stepped off the applicant's veranda, and her back was pushed up against the house. The applicant then began kissing AL, placing his tongue in her mouth and touching her breasts over her clothes. She told the applicant that people would be able to see them. The applicant responded that that would not happen, because they were in dark shadows. He told her that if she told anyone, they would go to Queensland together, and AL would not see her family again. During the incident, the applicant lifted one of her legs up, moved her underpants to the side, and put his fingers inside her vagina (charge 10 - indecent assault).

68 The next incident, referred to as the 'garage incident', concerned charges 13 and 14, on which the applicant was acquitted. On that occasion, the applicant asked AL to accompany him to the garage to get some drinks from the refrigerator. When they went there, he began to kiss her, and he placed his tongue inside her mouth (uncharged act). He then placed one of his hands down her pants and inserted his fingers into her vagina (charges 13 and 14).

69 AL then described the incident alleged in charges 15 and 16, on which the jury was unable to reach a verdict, and which was referred to as 'the carport incident'. On that occasion AL attended the Meyers' home wearing her school uniform. Later the applicant walked her back home because it was dark. The incident occurred when they reached the carport, that was in front of the garage at AL's home. The applicant placed his hands on AL's shoulders, pushed her to her knees, and positioned her face in his groin. He then forced his erect penis into her mouth, began thrusting it in and out of her mouth, and ejaculated into her mouth.

70 The final incident, involving AL, was the subject of charges 17 to 20. It was described as 'the bedroom incident'. On that occasion, she was present at the Meyer family residence. The offending took place in the master bedroom of the home. AL said that, at the time of the incident, she was lying naked on the bed. She could not recall how she came to be in that position. The applicant, who was clothed, knelt down at the end of the bed. He put his fingers inside her vagina (charge 18 - indecent assault). He then pulled a vibrator out from under the bed and asked her if she knew what it was, to which she replied 'no'. The applicant turned the vibrator on, and put it inside her vagina (charge 20 - sexual penetration of a child aged between 10 and 16 years). As a result, she suffered pain, and asked the applicant to stop. However, he did not do so.

71 AL stated that all the incidents, that she described, took place over a period of four months to six months, while she was 14 years of age. She said that contact with the applicant ceased, when she went to hospital for a gall stone operation. Subsequently, she married her first husband, SR, when she was 19 years of age. In 1990, she suffered health problems, and sought assistance from a medical practitioner, Dr Graeme Edwards. During that period, Dr Edwards provided her with counselling and medication. AL subsequently divorced SR, and then remarried another man, Asim Aganovic, by whom she had two children. Mr Aganovic passed away in September 2008. In 2010, AL suffered medical problems, and became an inpatient of the Maroondah Hospital. She later suffered further health problems in 2010 and she obtained medical assistance from Box Hill Hospital. In about 2008, she also consulted a psychologist, Mr Ross Wall, who provided her with counselling.

72 Subsequently, AL reported the matters, that were the subject of her evidence, to the police at Knox Police Station. She made a statement to the police over a period of eight months. During her dealings with the police, she made a pretext call to the applicant from the Knox Police Station, and a recording of that conversation was played to the jury.

73 In the pretext call, after a brief introduction, in which they discussed their families, AL said that she was now a mother of two children, and she needed to contact the applicant because she had two children and she needed an explanation about 'all those times we were together'. The applicant then responded 'And it was dumb ... it was just a bad bad thing mate'. He told AL she should not blame herself, that he had no explanation other than that she was a 'super attractive girl'. AL responded 'I was just a young girl' to which the applicant said 'I know, it was so wrong'. The applicant then continued 'And I was only a young man meself, I was only 25 or something ... It was just a bad time'. AL said 'I was 14 and I was 15 ...' to which the applicant responded 'No you were 16'. He then named the employer who he was working with at that time. He repeated that he did not want AL to blame herself or think it was her fault. He said he should not have done it, 'I shouldn't have even hugged'. AL responded '... it happened more than once, it wasn't just a once off ...' to which the applicant said 'It did a couple of times ...'.

74 AL then said that it 'pretty involved with things that happened ...'. The applicant said it happened a long time ago, and 'I know it knocked you around a bit'. He said that he should have had more control and that he lacked moral fibre.

75 Further on in the telephone call, AL asked if Audrey knew of the facts. The applicant responded '... she only thinks we kissed, but we went - did a couple of naughtier things than that, but luckily, thank Christ we never had intercourse ... but it was bad enough anyway ... I should never had touched ya it was just ... it was just disgusting'. Further on the applicant said that AL had every right to 'flirt and muck around', but 'it should only be flirt and muck around it, it shouldn't be flirting and then stupid ... it was stupid it was disgusting'. A bit further on in the call, he said that she should forget about 'the terrible thing that happened'. He said it is different if two married people who have lived a life have an affair. He then said 'That's different but you were a kid and I should know - look, I was immature, that's not excuse, but I should have known better'.

76 AL was cross-examined at significant length at the trial. The principal matters, addressed in cross-examination, were as follows.

77 AL agreed that, after the incidents had ceased, she continued to have contact with the applicant and his wife Audrey. In particular, she continued to visit the Meyer household, in order to see Audrey and the baby. She said that she was friendly towards the applicant and he was a family friend. After she married, she visited the applicant's home in Old Kent Road, Mooroolbark. At that time, she did not have any difficulty with the fact that she was seeing the applicant, because she then did not remember what he had done to her. She said that she had forgotten the incidents, that she described in her evidence, for a period of ten years, between 1980 and 1990, during which she had no memory of them. She also said that she did not tell her friends, Sharon Sanderson or Melayne Watson, about the incidents.

78 AL said that she first recollected the incidents in 1990, when the applicant visited the unit in Lilydale in which she was then living with her first husband. The applicant was an electrician, and her husband had asked him to do some work in connection with a house that they were planning to build. On the occasion of that visit, when her husband was not home, the applicant was lying on top of her on the kitchen floor holding her hands above her head, and he raped her. When she struggled, he said to her, 'You didn't put up a fight like this ten years ago'. She said that that remark by the applicant unblocked her memory. She said that it all just 'hit her', and she remembered seeing a brick wall in front of her.

79 Counsel for the applicant then put to AL that in 1990 she and the applicant had engaged in a romantic affair, in which there was hugging, kissing and heavy petting, but no penetrative sexual activities. AL denied those suggestions, and she denied the suggestion that, at that time, she went to the pictures with the applicant and that she went on a drive up a mountain with him.

80 AL denied the suggestion, put in cross-examination, that it was not until August 1981 (the first birthday of the Meyer's baby Glen) that she regularly started to visit the Meyers. She said that after she had a gall bladder operation when she was 15 years and 8 months old, she ceased attending the Meyers', because she was really sick. She agreed that her father, who was strict, had directed her sisters and her to change out of their school uniforms when they got home. Despite that parental direction, she did visit the Meyer home wearing her school uniform.

81 AL was cross-examined about differences between her evidence at the committal proceeding, and the evidence that she gave at the trial, concerning the laundry incident (charges 4, 5 and 6). She said that she had forgotten each of the incidents after they had occurred. In other words, between each incident, she had forgotten about the previous incident. She said after each incident occurred, she would have a shower, and wash the incident away and put it out of her mind.

82 AL was next cross-examined about differences between her police statement, and her evidence, relating to her description of the swimming pool incident, which was the subject of charges 7 and 8, and on which the applicant was acquitted. The cross-examination focused on the position of Audrey Meyer at the time that the incident was said to have taken place. It was also put to the witness that the Meyer swimming pool was not functioning at the time of the alleged offence (the summer of 1980 to 1981), and a photograph of the swimming pool, in an empty state, was produced to the witness.

83 Counsel also cross-examined AL about the Grand Final Day incident, that was the subject of charges 1 and 2, and on which the applicant was also acquitted, and about the carport incident, that was the subject of charges 15 and 16, and on which the jury was unable to reach a verdict. In respect of that incident, she did not accept the suggestion, put in cross-examination, that there was no carport at her parents' house until 1998. AL was then cross-examined at some length about her description of the master bedroom at the Meyers' house, that was the subject of charges 18 and 20 (on which the applicant was convicted). She was cross-examined, in particular, in relation to differences between her description of the bedroom, and a photograph of the bedroom that was shown to her in cross-examination.

84 Counsel next cross-examined AL about her history after the incidents had concluded. She said that she had a mental breakdown after she had split up with her first husband, and she consulted Dr Protassow about her emotional and psychiatric issues. She said she told Dr Protassow about the incidents, which were the subject of her evidence. Her second husband, who she married in April 1997, committed suicide in September 2008. Before that occurred, she was dealing with depression. After his death, she became severely depressed in April 2009, and she was admitted to the psychiatric ward of the Maroondah Hospital for four or five weeks. In October 2010, she again became severely depressed and suicidal. She said that was not due to her husband's death, but because she was having nightmares about the applicant's abuse of her.

85 AL reiterated that she had forgotten about the incidents until 1990, when she was raped by the applicant. She agreed that she had then waited a further 24 years before making a statement to the police. She said that when she was with her second husband, she shut the memories out again, but subsequently she started having nightmares. When her son turned 14, she saw on the television news that a celebrity had been arrested for sexual assault, and she thought that she had to deal with her memories of the applicant's abuse of her.

86 AL agreed that she had never told her sister HK about the details of what the applicant did to her. She said that she did not tell Melayne Watson that the applicant had sexually abused her in the shower. She also did not remember saying to her friend Sharon Sanderson on one occasion that her first sexual experience was with the applicant, and that it was unwanted and unpleasant.

87 In re-examination, AL said that she did not have mental health problems until she was 24 years of age, when she started having nightmares about what had happened. Accordingly, she went to see Dr Edwards and subsequently Dr Protassow. When she met her second husband, she was able to block the memories out. However, in about 2008, when her daughter was about two years of age, she started having flashbacks and nightmares, so she commenced to attend the Eastern Centre Against Sexual Assault (ECASA). At about that time she was hospitalised. Her husband had died suddenly, and the nightmares and anxieties had continued to a point that she could not cope. Finally, she went to the police, because of the work she had been doing trying to learn to cope with her anxiety and nightmares. When she saw the news about the celebrity being charged with sexual assault, she realised it was not her fault, and she could not hold the secret anymore.

88 HK gave evidence as to the circumstances in which she visited the Meyer home, and of the four incidents which were the subject of the charges against the applicant. She said that she came to know Conor and Audrey Meyer shortly after they had had moved into their home. HK was then 13 or 14 years of age. She said that the two families were friends. Her father was strict, and she regarded the Meyers as a young and trendy couple, and their home was somewhere to go to and have fun. Originally, her relationship with Conor Meyer was as a friend, but he would make suggestive comments to her, such as '[She] looked hot, [she] looked nice'. She used the swimming pool at the Meyers' house, she listened to music with them, and danced and watched television with them. In the lead up to the incidents, that were the subject of the charges, the applicant commenced to make comments about her breasts, saying that she had 'grouse boobs'.

89 Each of the incidents described by HK occurred when she visited the Meyer home, and Conor was there, but Audrey was not at home. On the first occasion, HK was dancing with the applicant. He went to the kitchen to get a drink. When he returned, she was facing the window. The applicant came up behind her, put his hands on her hips and kept dancing. He pulled her in close, and his hands went up her top and under her bra. He touched her breasts, and said 'You've got grouse boobs'. HK said 'I have to go home', and she left. That incident constituted charge 21 (indecent assault).

90 The second incident, which comprised charge 22 (indecent assault), again occurred in the lounge room, when HK and the applicant were dancing. On this occasion, the applicant was in front of her. He lifted up her top, told her she had 'grouse boobs, best boobs of anyone', put his head over her shoulder, and touched both of her breasts.

91 The third incident, described by HK, was the subject of charges 26 and 27. On that occasion, she was seated on a green velvet couch in the applicant's house watching television. The applicant went to the toilet. When he returned, he knelt on the floor in front of her between her legs, lifted up her top, and told her she had 'grouse boobs, best boobs around'. He then sucked her left breast (charge 26 - indecent assault), and rubbed HK's thigh with his hand near her groin (charge 27 - indecent assault). HK pushed his hand away and said 'I'm not ready for this'. The applicant responded, 'It's okay it's normal you're beautiful'. The applicant then walked her down the driveway and across the road to her home.

92 The final incident described by HK was the subject of charges 24 and 25. On that occasion, when HK knocked on the front door, the applicant opened it, and she walked into the lounge room. The applicant walked behind her and put his arms over her shoulders as if to hug her. He told her she was beautiful. His arms were crossed over her chest and he rubbed her body and breasts (charge 24 - indecent assault). The applicant's right arm went down her waist inside her underwear and he touched her vagina. She tried to pull his hand away, but he resisted her, and penetrated her labia with his fingers (charge 25 - indecent assault). She pushed his hand away, and said 'I'm not ready for this'. The applicant responded 'It's okay, it's okay, it's natural'. HK then left the house.

93 After that incident, HK kept her distance. She made a point of only visiting the Meyer house when Audrey was home. She said that the assaults had taken place over a period of months. At the time of each assault, she was aged 14 years, attending Year 8 in high school.

94 HK stated that sometime later (in fact in about 2008), her sister AL suffered mental health problems that were like a nervous breakdown. AL first went to the Maroondah Hospital and then to the Box Hill Hospital. At that time, HK attended an appointment that AL had with a psychologist, Ross Wall. He told her that the reason AL had a breakdown was because she had been assaulted as a child, and subsequently, ten years later, again by the same person. At one of the appointments, it was mentioned that the person who did it was a neighbour. When HK heard that, she said, 'I think I know who it is, because he tried stuff on me as well'. Subsequently, HK spoke to the police about her situation. AL had already spoken to the police, and the informant, Detective Senior Constable Luke Collyer, had contacted HK and asked her if she would talk to him.

95 In cross-examination, HK stated that she had first remembered the first incident (the subject of charges 26 and 27) during the period leading up to the committal proceeding. Thus, she first remembered that incident thirty five years after the incident had occurred. She had remembered the other incidents, described by her, after AL had had her breakdown in 2011. She agreed that, therefore, between 1981 and 2011, she had forgotten that the applicant had done those things to her. She only remembered them when AL told her what the applicant had done to her. Initially, AL told her that the applicant had assaulted her. It was only subsequently that AL told her that the applicant had also raped her.

96 HK stated that she had tried to forget the events, and that she had done that successfully by putting them to the back of her mind and moving on. In addition, she had waited a number of years after AL had a breakdown before she made her statement to the police, because she did not want to face it herself. She was then more concerned about the health of her sister.

97 HK agreed that after the incidents occurred, she continued to have contact with the applicant and Audrey. She invited them to her wedding in 1987, because she wanted Audrey to attend. She agreed that after the third incident (the subject of charges 26 and 27), she told the applicant she did not want him to do what he was doing. But she returned to the Meyer home one week or so later, when the fourth incident occurred. She could not explain why she had returned to their house, so shortly after the third incident.

98 HK agreed that, when she and her siblings were children, they were directed to change out of their school uniforms when they got home. She did not remember visiting the Meyer home while she was in her school uniform. She said that she did not tell her father what had happened, because her father was quite scary. She was concerned that if she told her father she would be told that she had wanted it and liked it.

99 HK said that on each occasion when the incidents occurred, it was obvious to her, shortly after her arrival at the Meyers', that Audrey was not home. Nevertheless, she was happy to remain at the house. She continued to visit the Meyer home until they moved to Old Kent Road. However, she would only do so if she knew Audrey was there. She could tell that Audrey was home, by seeing if her car was in the driveway.

100 Melayne Watson gave evidence that she attended Mooroolbark Primary School and Mooroolbark High School with AL. They were good friends. During that time, she came to know the applicant and his wife Audrey, and she would visit them with AL. On one occasion, after they had visited the applicant and Audrey, AL said to her, 'Melayne, promise me don't go to [Conor] and [Audrey]'s by yourself'. Subsequently, AL had another conversation with Melayne about the applicant, within a year of Melayne leaving school at the age of 16. AL told her that the applicant used to 'touch her up, feel her up, something sexual, but I can't remember'. AL told her that it always happened in his house, and she also said that something had happened once in the shower. Melayne said that AL became angry with her while they were talking, because she did not think that Melayne was taking it seriously.

101 In cross-examination, Ms Watson said that they never discussed the matter again. She also said that she never swam in the Meyers' swimming pool. She always got on very well with the applicant and Audrey, and she invited them to her wedding in 1985. She also visited the Meyers in their home in Old Kent Road, and he acted always appropriately towards her and her husband.

102 Sharon Rogers (formerly Sharon Sanderson) also gave evidence as to her friendship with AL when they attended Mooroolbark East Primary School and Mooroolbark High School together. In the course of that friendship, she came to know the applicant and his wife Audrey, and she visited their home three or four times. On one occasion, when she was 14 or 15 years old, she was walking home from school in company with AL and another school friend, Jacquie Burgess. Jacquie brought up her first sexual encounter. AL said that her first sexual encounter was with her neighbour Conor, and that it was forced on her. She was unemotional when she said this, and Sharon was quite shocked. Subsequently, after AL married her first husband SR, Sharon visited their home in Mount Evelyn. AL told her that she was struggling with her marriage, because of what had happened previously, when she had been raped in her first sexual encounter.

103 In cross-examination, Ms Rogers said that she had a vivid recollection of the conversation that took place at the Mount Evelyn home, because of the unemotional way in which AL had said that she had been raped in her first sexual encounter.

104 SR, AL's first husband, said that he had commenced a relationship with AL when she was 16 years of age. He regularly visited her home in Mooroolbark, and he came to know the applicant and Audrey. After they were married, and were living in Lilydale, they had plans to build a home on a block of land they had purchased. SR asked the applicant to provide a quotation for the cost of the electrical work. On one occasion, when SR went home earlier than expected, he saw a yellow van parked outside that looked like the applicant's vehicle. When he pulled up he saw the applicant coming out of the unit looking flustered. The applicant was in a hurry, and he drove off quickly. SR walked into the kitchen. AL seemed quite upset. She said that the applicant had come onto her, that he was trying to kiss her, and that she fought him off. She was distressed, but she did not want to call the police. SR said that it looked as if AL had been in a struggle, her clothes and hair were disarranged. SR did not see the applicant at their home in Lilydale again after that occasion.

105 SR said that after that incident, his relationship with AL changed, because she became more remote. She sought medical treatment, seeing her general practitioner, Dr Protassow, and a counsellor. Some years later, after SR and AL had divorced, he met her at a birthday party at a mutual friend's house. AL pulled him aside and asked if he would be a witness, because she wanted to sort out the occasions when she was raped. SR said that he was shocked to understand that she had been raped. She told him it had occurred when they were married.

106 In cross-examination, SR said that after AL had told him that he had tried to have sex with her, he wanted to pursue the applicant, but she told him not to. He denied that on the occasion on which he came home and saw the applicant, AL was having a cup of tea with him.

107 SR also said that AL commenced to see Dr Protassow in 1991. She saw him often. A year later, in 1992, AL told SR that she wanted to separate from him. It was 20 years later, at the party, that AL said that she wanted to talk to him about being raped. He said that information came out as a 'bolt out of the blue'. Before that night, AL had spoken to him about things that had happened to her before they were married. She told him she had been taken advantage of, and she had come close to thinking she might have been pregnant earlier. She did not know when it happened, but she thought it was when she was 15 or 16 years old.

108 The next witness was CB, the mother of AL and HK. CB gave background evidence about their home, and AL's health problems. She said that neither AL nor HK had ever spoken to her about the assaults, that were alleged to have been committed by the applicant. At one stage, she was told by AL that she was going to go to the police, and that HK would support her. Subsequently, HK told CB that the same person had also tried to assault her. However, neither AL nor HK told her the identity of the person who was responsible for the assaults.

109 In cross-examination, CB stated that her children had been required to change out of their school uniforms into civilian clothing when they got home. She confirmed that AL had never told her about the sexual assaults alleged by her. The only time she learnt about them was when, at the request of AL, CB and her husband attended a consultation with the counsellor, Ross Wall, who told them about them. On the way home after that consultation, HK said, 'He tried the same thing on me but did not get anywhere'. HK refused to say who the culprit was. CB and her husband were not friends with Conor Meyer, and they were not happy that the Meyers were invited to the weddings of AL and HK. However, but both girls wanted the Meyers to attend them.

110 GB, the father of AL and HK, gave evidence, concerning a number of background matters. He said that he did not find out about the sexual assaults, alleged by AL, until after she had been an inpatient at Maroondah Hospital and Box Hill Hospital. When he learnt of the assaults, GB asked AL who had perpetrated them, but she would not tell him. She said, 'I'm not going to tell you because he's threatened to harm our family'. GB also stated that he and his wife attended a meeting with the counsellor, Ross Wall. AL and HK were present. At the meeting, Mr Wall said that AL had been raped when she was 14 years of age, and subsequently when she was 24 years of age.

111 In cross-examination, GB stated that he had built the carport to his premises in 1998. He first learnt of any allegations of sexual abuse of AL after AL and her first husband (SR) had split up, when she told him that she had been sexually assaulted and raped when she was 24. She said that she had told her husband what had happened, but he would not believe her. GB told AL she should go to the police, but she said she was not ready to do so. She said she was already speaking to a counsellor about it.

112 WB, the brother of AL and HK, also gave evidence. He said that after AL had her second breakdown and was hospitalised in Maroondah Hospital, he became aware that she was making allegations of sexual assaults. She told him that she had been molested as a child, and that in later years the same person had raped her. GB said that on one occasion, when AL told him about those matters, HK was also present. HK said that she had been molested by the same man, but it was not as bad as AL.

113 Dr Graeme Edwards had conducted a medical practice in a clinic in Mooroolbark in the early 1990s. He was first consulted by AL in about 1991. Unfortunately, the clinic, where he had left his notes, was burnt down and his notes were not available to him. However, he recalled that, on the first consultation, AL was the most psychologically emotionally distressed person he had ever seen. During the whole of the first two consultations, which each lasted about half an hour, she sat in his room and cried. On the third consultation, she told him that she had been raped by a man in her own home recently. She was totally distraught and she did not go into much detail. In subsequent consultations, she described the incident in more detail. She said she had been well acquainted with that person over some period of time. Dr Edwards said that he diagnosed AL to suffer from post-traumatic stress disorder. He prescribed medication and sent her to a psychologist. He himself continued to see AL quite regularly for two years, and less regularly for a further three years. During subsequent consultations, it emerged that she had been sexually assaulted in the past by the same person, who had raped her more recently. Dr Edwards understood that he was the first person who AL had told about the assaults. He referred her to counselling and in addition AL undertook self-defence classes that were beneficial for her.

114 In cross-examination, Dr Edwards disagreed with the suggestion that post-traumatic stress disorder can result from a large number of different circumstances. He said that there is only a small number of circumstances that can give rise to such a disorder. Dr Edwards stated that AL had told him that the rape incident at her home had brought back a flood of memories from the past of sexual assaults on her. She told Dr Edwards that she had been sexually assaulted over a significant period of time.

115 Mr Ross Wall, a registered psychologist, saw AL in April 2008 to treat her for post-traumatic stress disorder. AL gave him a history of a sexual assault in her childhood. In October 2008, Mr Wall contacted the Box Hill Sexual Assault and Child Offence Unit of Victoria Police, so that a police member could give AL information as to what might happen, if she was to report the matter to the police. In May 2009, Mr Wall called a meeting with AL and her family to discuss her situation. It was a general discussion about the sexual assaults of AL in her childhood. Further meetings took place in subsequent months, which were mainly concerned with guiding family members to support AL. Subsequently, in November 2010, Mr Wall contacted Box Hill police and spoke to a police officer requesting that AL be given information as to procedures that would apply if she made a complaint of sexual assault. A meeting took place between AL and police on 25 November. However, AL was extremely anxious, and the meeting did not last long. A further meeting took place in December, because AL had been admitted into the intensive psychiatric unit in Maroondah Hospital.

116 In cross-examination, Mr Wall said that AL had told him that she was 13 or 14 years of age when she was sexually assaulted. Mr Wall diagnosed that she had post-traumatic stress disorder as a consequence of that abuse. Mr Wall said that AL had not told him that her memories had been blocked, or that there was any triggering incident that caused her memories to become unblocked.

117 Dr Andrew Protassow also gave evidence. He took over AL's case after Dr Edwards left the clinic. Dr Protassow diagnosed that AL had an anxiety problem that was difficult to treat. In cross-examination, he said that he did not recall anything specific about her case or the cause of her anxiety. In particular, he did not recall AL saying to him anything about a sexual assault. The first occasion, on which he heard of any allegation of sexual abuse of AL, was when the informant spoke to him in 2015.

118 Audrey Meyer, was the next witness. She married the applicant in 1978. They moved into the address at Mooroolbark in September 1979. She said that she did not meet the B family until 1981, following which the children, and, in particular, AL and HK, attended their home at different times. When they moved into the property, there was an above ground swimming pool in place. The family used it for the first summer, but it was removed in 1982. Initially, AL and HK would come to their home together, but subsequently they did so separately. Each girl would help her with the babies, who were born in August 1980 and December 1981 respectively.

119 Mrs Meyer said that she did not see anything untoward take place between AL and her husband, except on one occasion, which occurred when AL was about 17 years of age. Mrs Meyer happened to be looking out the front window, and she saw her husband and AL share a hug and kiss at the bottom of their driveway. When the applicant came home, she confronted him, and he apologised. On the next day, when AL visited, Mrs Meyer confronted her and they had a discussion about it. Mrs Meyer also gave evidence about the circumstances in which the search warrant was executed on their premises on 9 June 2015 and the applicant was arrested.

120 In cross-examination, Mrs Meyer said that the B family did not commence to visit her home until February or March 1981. AL always was very friendly towards the applicant, and she was a very 'touchy feely' sort of person. AL and HK were not wearing their school uniforms at all when they visited their home. They would leave before dark, because they had to be home for dinner.

121 Mrs Meyer described her daily routine when her children were young. There was no occasion when AL came to her place and she left her alone with the applicant. She said that more often, when AL visited, she would be home, and the applicant would be working. Mrs Meyer said that she had a very good relationship with AL, until she and her husband left the Mooroolbark home in 1985. AL and her husband SR came to visit them in their new house in Old Kent Road. In addition, Mrs Meyer held a surprise 30th birthday party for the applicant (in 1986), which AL attended with her husband.

122 Mrs Meyer said that in 1990, she learnt that her husband and AL had an affair, when the applicant told her about it. He said he had been seeing AL, and he felt bad about it. He described it as a 'waist up affair', with no sex involved.

123 Mrs Meyer then said that she remembered the Grand Final Day of 1980, because the applicant and his family were Richmond supporters, and Richmond defeated Collingwood on that day (this evidence was relevant to charges 1 and 2, on which the applicant was acquitted). She said that the applicant attended the match, and, after it, the whole family, including the applicant, assembled at his parents' home in Box Hill for a celebration. Mrs Meyer also gave detailed evidence about the layout and furnishing of their bedroom at the Mooroolbark home (which was relevant to charges 18 and 20, on which the applicant was convicted). She denied that she had a vibrator when they were living at Mooroolbark, and said that she and her husband only acquired two of them when they had moved into the Old Kent Road premises.

124 Mrs Meyer then gave evidence about the location of the above ground swimming pool at the Mooroolbark premises (that evidence was relevant to charges 7 and 8, on which the applicant was acquitted). She said that it was a shallow pool, and any person standing in the pool could be easily seen from the back doorway. She also said that the pool was not functional during the summer of 1980 to 1981, because there was a tear in the liner of it, and the applicant and she did not have sufficient funds to replace it. The witness then produced photographs of the weddings of AL and HK, and of their engagement parties.

125 Mrs Meyer said that when she made a statement to the police after the applicant was arrested, she did not mention the incident, when she observed the hug and the kiss between the applicant and AL, because she could not think straight on that day. She said it was an overwhelming and 'horrendous' day. She said that she could not recall if Sharon Sanderson ever swam in their swimming pool. Nor could she recall that the applicant walked either AL or HK home. She said that, at the beginning of the trial, the police had contacted her to provide a further statement, but she did not do so, because she had consulted with the applicant's counsel.

126 The prosecutor then successfully applied for leave to cross-examine Mrs Meyer, for the purposes of re-examination, pursuant to s 38 of the Evidence Act 2008. As noted, that ruling, by the judge, is the subject of ground 3 of the application for leave to appeal.

127 In cross-examination by the prosecutor, Mrs Meyer stated that, in 1990, the applicant confessed to her about the affair that he had had with AL. She denied that he first confessed to her about that matter in 2015. She said the confession had had a detrimental effect on their marriage, and she had attended counselling in Croydon. She could not remember the location of the service, the name of the service or the name of the counsellor. She was cross-examined as to why she did not include, in her statement, reference to the incident, in which she had seen AL and her husband kissing. She responded that her head was a 'mash mush' that day, as her house had been raided by police. She had said in her statement that one night she looked out the window and had seen Conor giving AL a 'big hug', but she did not refer to the kiss, because she did not think of it at that time. She said she felt overwhelmed on that day. She said that she did not think it was inappropriate for people, who knew each other, to engage in a hug. She agreed that she did not mention, in her statement, that in 1990 her husband had confessed to having an affair with AL. Again, she explained that her head was a 'mush' on that day, and she could not concentrate properly.

128 She said that after speaking to the police, she saw an independent barrister, who she told that her statement was not correct. She agreed that, at an early stage, in the trial, a member of Knox Police telephoned her asking her to make a further statement. She said that she needed to talk to her husband's barrister, which she did. She then said that she spoke to counsel who acted for the applicant. She also agreed that she had attended two conferences with the barrister at which her husband was not present.

129 The next two witnesses were members of the Knox Sexual Offences and Child Abuse Investigation Team of Victoria Police. Leading Senior Constable Diane Kelly gave evidence about the arrest of the applicant on 9 June 2015 and the execution of a search warrant at his home in Old Kent Road. She described how a vibrator was found in the bedroom of the home. The informant, Detective Senior Constable Luke Collyer gave evidence that he was first contacted by AL on 7 April 2015, and he commenced to take a statement from her on 1 May 2015. There were difficulties with that process, because AL became very nervous and she was experiencing an anxiety issue. Subsequently, a number of appointments took place over the next four and a half months, and a statement was ultimately signed on 24 October 2014. On 30 October, Senior Constable Collyer met with HK and she made a complaint. He took a statement from her between that date and 18 December 2014. Senior Constable Collyer gave evidence as to the manner in which the pretext call was set up between AL and the applicant. He also had researched the date of the patent of the vibrator that was located at the Old Kent Road premises, and he ascertained that the patent was originally filed in September 1975.

130 In cross-examination, Senior Constable Collyer confirmed that the applicant, who was then 61 years of age, had no previous convictions. He had found no record linking the applicant to the vehicle described by AL in relation to the incident (that comprised charges 1 and 2, on which the applicant was acquitted). He said that when he first spoke to AL, she said that she had been raped on multiple occasions by the applicant when she was aged 14 years.

131 After the prosecution closed its case, the applicant gave evidence. He denied committing any of the offences charged against him. He said that he first met the B family in March or April 1981. Following that, he had contact with AL and HK, until the applicant and his wife sold their home in Mooroolbark in 1985. When AL visited their home in Mooroolbark, she was very friendly, and she liked to touch him. She complained that her father was very strict. He said that he never went for a drive in the car with AL, and he did not walk her home at night. The applicant said that AL did not visit their home wearing her school uniform, and she was not at their home when it was dark or at night time.

132 The applicant said that his wife, Audrey, was a 'stay at home' mother. Whenever he got home after work, she was either preparing the meal or bathing the children. He said that the swimming pool at the house was not operative in the summer of 1980 to 1981. It was leaking a lot of water, so he drained the pool. He described how he attended the 1980 Grand Final, and subsequently attended the family celebration at his mother's house in Box Hill. He said that he brought the first vibrator two years after they had moved to the Old Kent Road property (1987).

133 The applicant said that on an occasion in January or February 1983 he had kissed and hugged AL at the bottom of the driveway. When he went inside his home, he 'got the rounds of the table' from his wife and he apologised to her profusely. He said after they left the Mooroolbark premises and lived in Old Kent Road, he saw AL a couple of times when she visited them there. Both AL and HK attended his 30th birthday party (in 1986). Audrey and he were invited to the weddings of both HK and AL.

134 The applicant said that subsequently, in 1990, he bumped into AL at a service station on the Maroondah Highway. They chatted, and she said she would like to catch up. As a result, he visited her home in Lilydale. When he arrived, her husband was not at home. After having a cup of coffee, they moved to the couch, where they kissed and were 'fooling around'. When they heard AL's husband pull up in the driveway, they separated, and he left ten minutes later. He said that, after that, AL and he would meet. He would pull his vehicle up behind her vehicle. One of them would get into the other's vehicle. Their relationship was very intense and physical, with kissing and fondling of the breasts and rubbing each other, but it was 'all above the waist'. On one occasion, they went for a drive in the country, but they realised that their relationship was not going anywhere, so they agreed not to continue. Following that, SR telephoned him, and told him to leave his wife alone, and the applicant responded 'I already have'.

135 The applicant said that, in late 1990, he could not keep his relationship with AL to himself anymore, so he confessed to his wife about it. He was emotional and apologised to her, and he told her that they did not have sex. Following that, his relationship with his wife was strained, and they saw a counsellor together in Croydon.

136 The applicant said that the next occasion on which he spoke to AL was on 3 March 2015, which was the occasion of the pretext call. He said that when he said, in that conversation, that their relationship was 'dumb', he was referring to the affair that they had had in 1990, and not to when she was younger. When AL referred to the fact that she was young, only 13 or 14 years of age, and the applicant said she was 16 years old, he was then referring to the occasion when they kissed and hugged in 1983. The applicant said that in the pretext conversation, he described that conduct as 'wrong and disgusting', because it was disgusting to kiss another woman when you are married. The applicant said that when he had said, in the pretext call, that Audrey only knew that AL and he had kissed, 'but we did a couple of naughtier things than that', he was thereby referring to the affair in 1990, and not to any conduct between them when AL was younger.

137 In cross-examination, the applicant repeated in chief, that he had last seen AL, after he had spoken to her brother WB at a building site, and WB told him that she was not doing well. He said that WB suggested that the applicant go and visit her. The applicant was then cross-examined by the prosecutor as to why those matters were not put to WB in cross-examination.

138 The prosecutor then cross-examined the applicant, at some length, about the pretext call. He was asked whether he had seen a solicitor on the day after that telephone call to receive legal advice. After objection by his counsel was overruled, he said that following that call, he saw a solicitor. He did not tell his wife that he had received the call from AL on that day, or on the next day, or up to the time when the police executed the search warrant. He denied that, in the pretext call, he had made admissions that he had sexually assaulted AL when she was under 16 years.

139 The applicant repeated that when he referred, in the pretext call, to AL being 16 years of age, and not 13 or 14, he was referring to the occasion of the kiss and the hug. He was cross-examined about a number of occasions on which he had said in the pretext call that what had occurred between himself and AL was wrong. In response, he insisted that he was then referring to the affair that they had had in 1990. He denied that he raped AL in 1990. He said that, on the occasion when they were nearly caught by her husband, they were on the couch together, and they did not have sexual intercourse. He said that he did not tell his wife of the pretext call, because he was concerned as to how AL had obtained his telephone number. He denied that he knew that the telephone call related to matters that were unrelated to the affair or the kiss, but were very serious matters. When cross-examined about the counselling service that he said he and his wife attended in 1990, he was unable to recall the name of it, who ran it, or the name of the counsellor.

140 The next three witnesses, Katherine Green, Julie Costello, and Patricia Mattea, were all members of the applicant's family. They each gave evidence relevant to charges 1 and 2, that the applicant attended the VFL Grand Final in 1980, and then was present at the celebration after the match at the applicant's parents' home in Box Hill.

Ground 2: the verdicts on charges 4, 5, 6, 10, 18 and 20 are unsafe and unsatisfactory

141 In support of ground 2, counsel for the applicant submitted that the verdicts of guilty, on charges 4, 5, 6, 10, 18 and 20 referred to, are unsafe, because it was not open to the jury to find that the recollection of AL of the events described by her were sufficiently credible and reliable in order to be satisfied, beyond reasonable doubt, of the guilt of the applicant on those charges. In making that submission, counsel for the applicant accepted that it was open to the jury to find that there was an improper sexual relationship between the applicant and AL when AL was under 16 years of age. However, he submitted, it was not open to the jury to accept the evidence of AL as to the precise events, which were the basis of each of the charges on which the applicant was convicted.

142 In support of that submission, counsel for the applicant relied on a number of propositions. First, AL said that after each incident occurred, she had completely forgotten about it, so that she was happy to continue to visit the applicant's house after each incident. In cross-examination, defence counsel put to AL eight particular sexual acts that she had alleged had been committed against her by the applicant, and she agreed that she had forgotten each of them after they had occurred, until her memory was revived in 1990. Counsel submitted that in such a case, where the complainant had no recall of the particular events, that were the basis of the charges, for an extended period of time, it was not open to the jury to be satisfied beyond reasonable doubt on the complainant's evidence of the occurrence of those events.

143 Second, counsel submitted that AL's evidence lacked credibility in respect of the circumstances in which she described the return to her, of her memory, ten years later. In her evidence AL only had a limited memory of the incident, in 1990, in which she alleged that she was raped by the applicant. She could not recall the lead up to the rape, how she happened to be beneath the applicant on the floor of her house, or how she came to be naked from the waist down. Nor could she recall anything that happened between the occurrence of the rape, and, an unspecified time later, when she was sitting in a corner waiting for her husband to return home. In addition, the prosecution chose not to charge the applicant with the rape.

144 Thirdly, counsel for the applicant submitted that the memory of AL changed in relation to a number of the charged events. She spent eight months making her statement to the police. Evidence given by her at the trial was inconsistent with some of the matters that she described in her statement. For example, although at trial she stated that on each occasion the applicant drove her to the oval, he digitally penetrated her, in her statement she said that there was no penetration except on the occasion of the charged incident. In relation to the incident that occurred in the laundry, AL asserted a specific memory of the applicant's baby being asleep in the house, but she did not include that in her statement. In relation to the incident that occurred in the swimming pool, AL said that Sharon Sanderson was wearing a one piece swimming suit, whereas, in her statement, she said that Sharon was wearing a bikini.

145 Fourthly, it was submitted that the evidence of AL was inherently improbable. The submissions, relating to that proposition, were based on the improbability of the events that she described that took place in the swimming pool, and which were the subject of charges 7 and 8 (on which the applicant was acquitted).

146 Fifthly, it was submitted that the evidence of AL was inconsistent with verifiable facts. In particular, the incidents, that were alleged to have occurred in the carport, in the swimming pool, and on the day of the 1980 VFL Grand Final, were contradicted by other verifiable facts.

147 Sixthly, counsel for the applicant submitted that AL had difficulties in recalling other, unrelated, sexual offences, that she claimed to have been committed against her by other persons. In particular, it was submitted, there were inconsistencies in her evidence relating to a physical assault that she alleged occurred in a shopping centre car park, and in respect of another incident in which a man exposed himself to her.

148 Finally, it was submitted that there were aspects of the pretext conversation that were inconsistent with AL's account. In particular, at no stage, did AL challenge the applicant's assertion that the sexual acts committed between them were mutual, that they occurred only on a couple of occasions when she was 16 years of age, and they did not involve sexual intercourse.

149 Finally, counsel for the applicant relied on the evidence that the applicant was of good character, and that he gave sworn evidence denying the charges. In addition, the jury was required to take into account the forensic advantage to the applicant that was a consequence of the delay of more than three decades between the alleged incidents and the date of the trial.

150 In response, counsel for the respondent submitted that it was open to the jury to conclude that the complainant's recollection of the incidents, that were the subject of charges 4, 5, 6, 10, 18 and 20, were credible and reliable. In particular, it was open to the jury to accept the evidence of AL, that she had blotted recall of the incidents from her memory for a period of ten years, and that those memories were 'unlocked' in 1990 while she was being raped by the applicant. Although there were limitations in AL's evidence concerning that incident, nevertheless she recalled the year, and the location of it, and of the reason why the applicant was present in her home.

151 Counsel for the respondent noted that the jury had been particularly careful in the manner in which it determined its verdicts on the charges that were based on the evidence of AL. The jury had deliberated for an extended period of time, and its verdicts demonstrated that it had made a careful and critical evaluation of the evidence of AL. In particular, it acquitted the applicant on charges, in which it was either a serious inconsistency within the evidence of AL, or in which the evidence of AL was in conflict with other evidence in the trial.

152 Counsel for the respondent further pointed out that the applicant has relied on three examples in which, it was submitted, the evidence of AL had changed. Two of them related to charges in respect of which the applicant had been acquitted, namely, charges 1 and 2, and charges 7 and 8. In respect of the laundry incident (that was the subject of charges 4, 5 and 6), the evidence of AL, concerning the baby, was not inconsistent. Further, it was submitted that the complainant's evidence was not inherently improbable. The experience of the courts is that brazen offending of this kind does occur. In addition, experience has demonstrated that ongoing contact between a child, as she becomes an adult, and an offender, is certainly not rare or exceptional.

153 Counsel for the respondent further pointed out that the jury did not convict the applicant on the charges on which there were verifiable facts contradicting AL's account. In particular, the jury acquitted the applicant on charges 1 and 2, and charges 7 and 8, and were unable to reach a majority verdict in respect of charges 15 and 16.

154 Finally, it was submitted that the pretext call between AL and the applicant was 'damning'. In it, the applicant admitted to sexual contact with the complainant, albeit that he denied that it occurred when she was 14 or 15 years of age, but asserted that it was when she was 16 years of age. The applicant repeatedly admitted that his conduct was wrong, that it should not have happened, and that it was not the complainant's fault. The applicant's explanation, in his evidence, that those comments referred to an affair that occurred when the complainant was an adult, was inherently incredible, and inconsistent with the tenor of the pretext call. Further, it was submitted, the complaint evidence, given by both Melayne Watson and Sharon Sanderson, bolstered the account given by AL.

155 The ground of appeal, relied on by the applicant, is based on s 276(1)(a) of the Criminal Procedure Act 2009 (Vic), which provides that the court must allow an appeal, if the appellant satisfies the court that the verdict of the jury 'is unreasonable or cannot be supported having regard to the evidence'.

156 In its recent decision in R v Baden-Clay,[39] the High Court emphasised the stringent nature of the approach which must be adopted by an appellate court in considering such a ground. The Court pointed out:

It is fundamental to our system of criminal justice in relation to allegations of serious crimes tried by jury that the jury is 'the constitutional tribunal for deciding issues of fact'. Given the central place of the jury trial in the administration of criminal justice over the centuries, and the abiding importance of the role of the jury as representative of the community in that respect, the setting aside of a jury's verdict on the ground that it is 'unreasonable' within the meaning of s 668E(1) of the Criminal Code is a serious step, not to be taken without particular regard to the advantage enjoyed by the jury over a court of appeal which has not seen or heard the witnesses called at trial.[40]

157 The principles, that apply to the ground relied on by the applicant, have been restated on a number of occasions during the last 24 years since the decision of the High Court in M v The Queen.[41] In Libke v The Queen,[42] Hayne J (with whom Gleeson CJ and Heydon J agreed) expressed the test in the following terms:

But the question for an appellate court is whether it was 'open' to the jury to be satisfied of guilt beyond reasonable doubt, which is to say whether the jury 'must', as distinct from might, have entertained a doubt about the appellant's guilt. It is not sufficient to show that there was material which might have been taken by the jury to be sufficient to preclude satisfaction of guilt to the requisite standard.[43]

158 In R v Klamo,[44] this Court noted that the approach, that is required of appellate courts to such a ground of appeal, involves the following steps:

The court of criminal appeal must ask itself whether, upon the whole of the evidence, it was open to the jury to be satisfied beyond reasonable doubt that the accused was guilty.
In considering that question, the appeal court must bear in mind that the jury has the primary responsibility of determining guilt or innocence and has had the benefit of seeing and hearing the witnesses.
In most cases a doubt experienced by an appellate court will be a doubt which a jury ought also to have experienced.
It is only where a jury's advantage in seeing and hearing the evidence is capable of resolving a doubt experienced by a court of criminal appeal that the court may conclude that no miscarriage of justice occurred.[45]

159 As mentioned, counsel for the applicant, realistically, accepted that it was open to the jury to be satisfied that the applicant had had an improper sexual relationship with AL when she was under the age of 16 years. That concession was inescapable, in light of the contents of the pretext call between the applicant and AL, and also in light of the complaint evidence given by both Melayne Watson and Sharon Sanderson.

160 Clearly, then, the jury could safely conclude that, notwithstanding that AL had forgotten about the incidents, described by her in her evidence, for a period of ten years, nevertheless she did accurately recall the fact that the applicant had engaged in improper sexual conduct towards her when she was under the age of 16 years. There is no reason why her recovered recall could only be confined to a recollection by her of the fact that the applicant had engaged in improper sexual conduct with her, and why it could not, also, include a renewed recall of instances of that conduct. Thus, it was open to the jury to conclude that the return to AL of a recollection of that relationship was accompanied by the recall by her of particular events, which involved inappropriate sexual conduct by the applicant to her. That being so, we do not consider that it can be maintained that, nevertheless, it was not open to the jury to be satisfied beyond reasonable doubt that, when AL was able to again recall those matters, they included the events described by her in her evidence, and which were the subject of the charges on which the applicant was convicted. That is, there is no reason why, having accepted that AL was able to regain her recollection of improper sexual conduct by the applicant to her, she could not have been able to recall the particular events, involving that conduct, in the manner described in her evidence.

161 That conclusion is reinforced by the manner in which the jury determined the charges that were based on the evidence of AL. It is clear that the jury took a careful, and discriminating, approach to determining its verdicts in relation to those charges, in particular, by acquitting the applicant on charges in respect of which there was conflicting evidence (for example, charges 1 and 2, charges 7 and 8). The jury was also discriminating in its verdicts in relation to the aspects of the particular events described by AL, and which were the basis of charges on which the applicant was convicted. In that respect, it is noteworthy that, in considering its verdicts in respect of the 'driveway incident' (charges 9 to 12), the applicant was only convicted on charge 10. Consistent with its verdicts on charges 7 and 8, the jury acquitted the applicant on charges 11 and 12, which involved allegations of penile penetration. Those verdicts were consistent with the passage in the pretext call in which the applicant, having repeatedly taken the blame for the improper conduct that had occurred between them, and having admitted that they 'did a couple of naughtier things' than kissing, remarked 'but luckily ... [they] never had intercourse ...'.

162 Certainly, there were gaps in the account given by AL of the alleged rape in 1990, which she said unlocked her memory of the previous sexual conduct by the applicant to her. Nevertheless, AL did have some detailed recollection of the event, including where it occurred, why the applicant happened to be in her home, and the clothes she had been wearing. On the account given by both AL and the applicant, there had been some contact between them in 1990, and the applicant had visited her home. In addition, it was common to the accounts given by both of them that there was some form of sexual activity between them, albeit that the applicant said that that conduct was consensual, and AL maintained that it was not.

163 In addition, the evidence of AL, as to the incident, was supported by the evidence of her former husband, SR, who described the occasion in which he returned to their home in Lilydale early. It will be recalled that SR stated that, on that occasion, he saw the applicant hurriedly leaving the flat, and that when he entered the kitchen, AL seemed to be upset and distressed, saying to her husband that the applicant had tried to kiss her against her will. Taken together, those matters were sufficient to entitle the jury to be satisfied that the event, which AL said unlocked her memory in 1990, did occur.

164 Certainly, there were problematic features relating to that aspect of the case. In particular, the applicant was not charged with rape. AL said that her husband did not wish her to report the matter to the police, whereas he said that she did not wish to do so. Nevertheless, her evidence, concerning that event, was not so improbable, or inconsistent, that the jury would most necessarily have rejected that event as being the trigger for the return to AL of her recollection of the events that were the subject of the charges.

165 As noted, counsel for the applicant relied on aspects of the evidence of AL which, he submitted, were inconsistent with other versions of the events given by AL, or, alternatively, were inconsistent with verifiable facts. In particular, he submitted that there were internal inconsistencies in the account given by AL in three particular respects. However, two of those matters were concerned with charges on which the applicant was acquitted, namely, the charges relating to the VFL Grand Final incident (charges 1 and 2) and the charges relating to the swimming pool incident (charges 7 and 8). Similarly, the point made by counsel, as to the improbability of part of the account given by AL, related to the swimming pool incident. The instances, in which the applicant's evidence was inconsistent with verifiable facts, and relied on by counsel for the applicant, concerned, again, the VFL Grand Final incident and the swimming pool incident, and also concerned the circumstances of charges 15 and 16, on which the jury was unable to reach a verdict.

166 Counsel for the applicant did point to an inconsistency relating to an aspect of the evidence of AL in respect of the laundry incident, that was the subject of charges 4, 5 and 6. However, the inconsistency relied on, in that respect, was minor and of little moment. In her evidence in chief, AL stated that when she arrived at the Meyer home on the evening in question, Audrey Meyer was home, but she later went out and left the baby at home. In cross-examination, AL said that she remembered seeing a sleeping baby that day, but she could not recall where it was. It was pointed out to the witness that, in her statement to the police, she had not referred to the presence of the baby at the time of that incident. In context, that omission, from the witness statement of AL, was hardly an inconsistency, but, in any event, it concerned a matter of peripheral relevance to the incident described by her.

167 Counsel for the applicant also submitted that the evidence demonstrated that AL had difficulty recalling other unrelated sexual offences, that she claimed to have been committed against her. In particular, she claimed that she had been to the police about a violent physical assault on her in a shopping centre carpark. She also alleged that at that time a man had exposed himself in front of her. The police records only referred to the exposure, and not the assault. That point, while relevant, was offset, however, by the evidence of SR, AL's former husband, who was able to recollect that AL had told him that someone had tried to attack her in the Eastland Carpark. When reminded of evidence given by him at the committal proceeding, he recalled that AL had told him that someone had attempted to rape her in the carpark.

168 It was submitted on behalf of the applicant that the complaint evidence did not assist the prosecution case, because it was general in nature, and, in addition, AL had denied that she had made complaints to Sharon Sanderson and Melayne Watson. We do not accept that submission. As noted, the complaint evidence was relevant, and indeed significant, in light of the evidence of AL that she had forgotten about the incidents, that she described in her evidence, for a period of ten years. The fact that AL was unable to remember complaining to her two friends bolstered the credibility and reliability of the evidence of those two witnesses, since it could not be suggested that they had, in any manner, collaborated with AL about their evidence.

169 Finally, we do not consider it is of any significance that AL did not take issue with the applicant, when, in the course of the pretext conversation, he asserted that the sexual acts between them were mutual, that they occurred on a couple of occasions, when she was 16 years of age. Having listened to the pretext conversation, it is clear that AL remained, substantially, silent, while the applicant was, to all intents and purposes, confessing that he had had an inappropriate sexual relationship with AL when she was young.

170 Each of the matters raised by counsel for the applicant, in support of ground 2, were relevant for consideration by the jury. However, we do not consider that they individually, or collectively, are of such moment that it was not open to the jury to be satisfied beyond reasonable doubt that the complainant's recollection of the events that were the subject of charges 4, 5, 6, 10, 18 and 20 was both reliable and credible. As discussed, the complainant's evidence did gain support from both the contents of the pretext call, and the evidence of Sharon Sanderson and Melayne Watson as to the complaints that she made to them. In particular, the pretext call was a powerful piece of evidence supporting the prosecution case. The applicant's attempts, in his evidence, to explain the admissions made in the course of that telephone call, as relating to the 'kissing' incident, and to the affair that he claimed to have had with AL in 1990, were barely credible. For example, in the pretext call, he said that what had occurred was 'disgusting'. In his evidence, he tried to explain that remark as referring to the incident in which, he claimed, he and AL had hugged and kissed when AL was 17 years of age. His explanation, that 'any time you kiss another woman or have an affair it is disgusting', strained credulity. In addition, immediately before he had so described his conduct as 'disgusting', he told AL that his wife 'only thinks we kissed, but we went - did a couple of naughtier things than that, but luckily ... we never had intercourse ...'. It is clear, therefore, that it was that conduct that he described as 'disgusting', not a simple hug and kiss with a 17 year old girl.

171 Similarly, it was well open to the jury to reject the applicant's evidence that some of the admissions, that he made in the pretext call, referred to the affair that he claimed to have had with AL in 1990. First, it was well open to the jury to reject the applicant's claim that any such affair occurred. Secondly, it is clear from the context that, when the applicant made the admissions in the pretext call, he was referring to an earlier time, when he was 'only 25 or something' and (he considered) AL was 16 years of age.

172 Taking those matters into account, in our view it was open to the jury to be satisfied beyond reasonable doubt as to the credibility and reliability of the evidence of AL as to the events that were the subject of charges 4, 5, 6, 10, 18 and 20. It follows that ground 2 of the application must fail.

173 Ground 3 is directed to the decision of the judge to permit the prosecutor to cross-examine the witness Audrey Meyer, in cross-examination pursuant to s 38 of the Evidence Act. Counsel for the respondent has conceded that the judge erred in granting leave to the prosecutor to cross-examine Audrey Meyer at that stage of her evidence. That concession by counsel for the respondent is entirely correct and appropriate. The critical issue, in respect of ground 3, is whether the error by the judge, in granting leave to the prosecutor to cross-examine Audrey Meyer in re-examination of her by the prosecutor, resulted in a substantial miscarriage of justice pursuant to s 276 of the Criminal Procedure Act 2009. In order to deal with ground 3, it is necessary to summarise, briefly, the submissions made to the judge by the prosecutor, and the ruling of the judge, that is in question.

174 As earlier mentioned, after defence counsel had completed cross-examination of Audrey Meyer, the prosecutor, in the absence of the jury, sought leave to cross-examine the witness, by way of re-examination, pursuant to s 38 of the Evidence Act. The prosecutor stated that there were three bases for the application. First, he maintained, there were inconsistencies between the witness' statement to the police and the evidence given by her in examination in chief and cross-examination. Secondly, the prosecutor based his application on the 'fact that the witness is in the defence camp, incredibly if I may say so your Honour ...'. Thirdly, the prosecutor based the application on the refusal of the witness to provide a further statement to police 'in the face of matters arising during the course of the trial suggesting that her evidence contained in her original statement was not an accurate account of what the witness knew relevant to the charges before the Court'.

175 In respect of the first basis, the prosecutor sought to rely on three alleged inconsistencies between the police statement made by the witness and her evidence in chief or cross-examination. First, in her statement to the police, the witness had not referred to the substantial lapse in time between September 1979, when she and her husband moved into their home in Mooroolbark, and 1981, when the witness, in evidence, stated that she first met the B family. Secondly, Audrey Meyer did not, in her statement, mention the 'kissing incident' between AL and the applicant, and she did not refer to subsequent conversations which she had about it with the applicant and AL. Thirdly, there was an inconsistency between the statement of Audrey Meyer, and her evidence in the trial, as to whether the applicant and she at one stage owned a green coloured motor vehicle.

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