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

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:

1. The verdicts on charges 4, 5, 6, 10, 18 and 20 are unsafe and unsatisfactory.
2. A substantial miscarriage of justice occurred by reason of the prosecutor being permitted to cross-examine the witness Audrey Meyer in re-examination.
3. 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:

1. 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.
2. 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.
3. In most cases a doubt experienced by an appellate court will be a doubt which a jury ought also to have experienced.
4. 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.

176 In respect of the second and third bases for the application, the prosecutor contended that the witness had given evidence that she had been present with the applicant during conferences with his counsel, and that she had had substantial input into the preparation of the defence case. She had also refused twice to make a further statement to police about matters that emerged in the course of the trial.

177 In response, defence counsel focused his submissions on the application by the prosecutor to cross-examine the witness about the circumstances in which she declined the request by the police to make a further statement during the trial, and on the application by the prosecutor to cross-examine the witness concerning conferences that she attended with counsel for the applicant during the trial.

178 At the conclusion of those submissions, the judge made the following short ruling:

I have heard counsel's submissions in relation both to the provisions of the section and as to broader matters. In my view, the matters identified by the prosecutor enables such an application to be made and leave will be granted for such cross examination. I have made clear during the course of submissions as to the scope of those particular matters upon which cross examination is going to be based, and it seems to me that they are enabled by the provisions. Such leave, in my view, does not create the sort of prejudice or injustice which would flow to the accused under the circumstances, and represents a proper exercise of the ability to cross examine the witness who is unfavourable, and who has made prior inconsistent statements. I will grant leave.

179 On this application, in support of ground 3, counsel for the applicant contended that, by waiting until the conclusion of cross-examination of the witness by defence counsel, the prosecutor gained an unfair forensic advantage in the trial, as he thereby deprived the applicant's counsel at trial of the opportunity to address the matters that had been raised by the prosecutor in cross-examination of Audrey Meyer. In oral submissions, it was contended that the ruling by the judge resulted in an unfairness to the applicant in two particular respects. First, as a result of the timing, the cross-examination of Mrs Meyer by the prosecutor, in re-examination, was 'devastating' to her credit, who was an important witness in the trial on behalf of the defence. Counsel for the applicant submitted that the cumulative effect, of the whole of the cross-examination, that was conducted in re-examination, in highlighting inconsistences between the evidence given by Mrs Meyer in the trial, and her police statement, was destructive of her credit in a manner that was unfair to the defence. Secondly, it was submitted, the prosecutor had engaged in an unfair forensic strategy by waiting until the conclusion of cross-examination of Mrs Meyer by defence counsel in order to seek leave to cross-examine her in re-examination. The prosecutor had been already alerted to the alleged inconsistencies on which he relied in order to be granted leave to cross-examine Mrs Meyer under s 38 of the Evidence Act, but he did not make that application at the conclusion of Mrs Meyer's evidence in chief. Consequently, it was contended, defence counsel felt compelled to open matters in cross-examination which he would otherwise have not raised. In particular, defence counsel felt constrained to adduce from Mrs Meyer evidence of conferences that she had had with him concerning the prosecution case, and that she had sought his advice before declining the request of the police to provide a further statement to them.

180 As already stated, counsel for the respondent, on this application, has correctly conceded that the judge erred in granting leave to the prosecutor to cross-examine Audrey Meyer on the completion of cross-examination of her by counsel for the applicant. There were a number of aspects attaching to the application by the prosecutor to seek leave to cross-examine Mrs Meyer at that stage of the trial, and to the grant of such leave by the judge, that are of particular concern. For the purposes of resolving this application, and to ensure that the same error is not repeated in future cases, it is convenient to consider some of the principles attaching to the grant of leave under s 38.

181 For that purpose, it is relevant to set out s 38, as aspects of it were not given appropriate attention in this case. That section provides:

38 Unfavourable witnesses

(1) A party who called a witness may, with the leave of the court, question the witness, as though the party were cross-examining the witness, about -

(a) evidence given by the witness that is unfavourable to the party; or

(b) a matter of which the witness may reasonably be supposed to have knowledge and about which it appears to the court the witness is not, in examination in chief, making a genuine attempt to give evidence; or

(c) whether the witness has, at any time, made a prior inconsistent statement.

(2) Questioning a witness under this section is taken to be cross-examination for the purposes of this Act (other than section 39).

(3) The party questioning the witness under this section may, with the leave of the court, question the witness about matters relevant only to the witness's credibility.

The rules about admissibility of evidence relevant only to credibility are set out in Part 3.7.

(4) Questioning under this section is to take place before the other parties cross-examine the witness, unless the court otherwise directs.

(5) If the court so directs, the order in which the parties question the witness is to be as the court directs.

(6) Without limiting the matters that the court may take into account in determining whether to give leave or a direction under this section, it is to take into account -

(a) whether the party gave notice at the earliest opportunity of the party's intention to seek leave; and

Note

Paragraph (a) differs from the Commonwealth Act and New South Wales Act.

(b) the matters on which, and the extent to which, the witness has been, or is likely to be, questioned by another party.

(7) A party is subject to the same liability to be cross-examined under this section as any other witness if -

(a) a proceeding is being conducted in the name of the party by or on behalf of an insurer or other person; and

(b) the party is a witness in the proceeding.

182 That provision, which constituted a significant change in the law of evidence from the position at common law, has been the subject of discussion in a number of cases. For the purposes of this application, the principles, stated in the cases, can be briefly summarised as follows:

(1) The exercise of the discretion, by a trial judge under s 38 to permit cross-examination of a witness, must be undertaken carefully in order to ensure that there will be no unfairness in the trial.[46]

(2) In considering whether to grant leave under s 38, it is important to have regard to the factors specified in s 192(2) of the Act, and, relevantly, the extent to which the grant of leave would be 'unfair to a party or to a witness' pursuant to s 192(2)(c).[47]

(3) In particular, the court should be astute to prevent the use of s 38 as a tactical or forensic device which may result in an unfairness to a party or a witness.[48]

(4) As specifically stipulated by s 38(4), questioning under s 38 should ordinarily take place before any other party to the proceeding cross-examines the witness.[49] However, if leave is given to a party to cross-examine its own witness in re-examination of the witness, after the completion of cross-examination of that witness by the other parties, the opposing party should be given the opportunity to further cross-examine the witness after the s 38 examination has been completed.[50]

(5) Section 38(1) only permits a witness to be questioned, by way of cross-examination, about the three topics specified in subsection (1)(a) to (c). Accordingly, leave may only be granted to a party to cross-examine its own witness directed to one or more of those three topics. Such cross-examination may, however, also be directed to establishing the probability of the factual state of affairs in relation to a matter falling within one of those topics.[51]

183 It is readily apparent that, in a number of respects, the principles, that we have set out above, were not followed by the prosecutor or the trial judge.

184 First, the judge granted leave to the prosecutor to cross-examine on each of the three bases outlined by him in argument. Thus, the judge not only granted leave to the prosecutor to cross-examine Mrs Meyer on the aspects of the evidence in respect of which there was a relevant inconsistency, but the judge also permitted him to do so on the basis that the witness was 'unfavourable'. Section 38(1) makes it plain that leave may be granted in respect of evidence given by a witness that is unfavourable. It does not authorise the grant of leave on the grounds that a witness may be 'unfavourable' to a party. On this application, the applicant, correctly, accepted that the judge was entitled to grant the prosecutor leave to cross-examine Mrs Meyer, because there were aspects of her evidence that was inconsistent with the statements that she earlier made to the police. However, due to the ruling given by the judge, and, in particular, the lack of definition in it of the topics on which the prosecutor was entitled to cross-examine Mrs Meyer, the prosecutor, in re-examination, cross-examined the witness on matters that went beyond previous inconsistent statements made by her.

185 Further, and central to the submission made by the applicant, it is abundantly plain that the prosecutor knew of the inconsistencies, well before Audrey Meyer was called to give evidence, and, further, each of the inconsistencies relied on were apparent by the conclusion of her evidence in chief. In addition each of the three inconsistencies were also revealed in the cross-examination by defence counsel of AL. In particular, it was put to AL that her family did not meet the Meyer family until 1981. Defence counsel also cross-examined AL about the incident in which it was alleged that she hugged and kissed the applicant outside the applicant's home. In addition, AL was cross-examined about the colour of the motor vehicles owned by the applicant and his wife. As a result of that cross-examination of AL, on two separate occasions well before Audrey Meyer gave evidence, the prosecutor foreshadowed that he would apply to cross-examine Audrey Meyer when she gave her evidence.

186 Furthermore, each of the three inconsistences, relied on by the prosecution, were elicited in the course of the evidence in chief given by Audrey Meyer. She stated that the first occasion upon which she met the B family was in February, March or April of 1981, when her first child, Glen, was seven or eight months old. In another part of her evidence, the prosecutor asked Mrs Meyer if she recalled that anything 'untoward take place between AL ... and your husband?'. Mrs Meyer responded that she did, because they shared a hug and a kiss at the bottom of their driveway when AL was about 17 years old. She said that she confronted the applicant when he entered the house, and on the next day she confronted AL about it. In another part of her evidence in chief, she was specifically asked about the colour of the two vehicles that she and her husband owned, and responded that one was bronze and the other was white.

187 In those circumstances, there was no reason why the prosecutor could not have sought leave to cross-examine Mrs Meyer at the conclusion of her evidence in chief, and before defence counsel cross-examined her. Further, it is clear that the prosecutor was alert to the possibility, or indeed the probability, that he would seek such leave when he called Mrs Meyer to give evidence. It is evident that, notwithstanding the clear terms of s 38(4) of the Act, the prosecutor deferred applying for leave to cross-examine Mrs Meyer until the conclusion of the cross-examination of her by defence counsel, for tactical or strategic reasons. When he applied for leave to cross-examine Mrs Meyer, at the conclusion of defence counsel's cross-examination of her, he did not proffer any reason at all why he had not made an application at the conclusion of, or indeed during, evidence in chief.

188 Further, the judge did not, it would appear, give any consideration as to why he should grant leave to the prosecutor to cross-examine Mrs Meyer after the conclusion of the cross-examination of her by defence counsel, as required by s 38(4) of the Act. On this application, the respondent has not advanced any basis upon which the grant of leave to the prosecutor, at that stage of the proceeding, could be justified or maintained. Instead, the respondent has, quite properly, conceded that the judge erred in granting such leave to the prosecutor at that stage of the evidence of Mrs Meyer.

189 The critical question, then, is whether that error by the judge has resulted in a substantial miscarriage of justice pursuant to s 276(1)(b) of the Criminal Procedure Act.

190 The principles, relating to s 276(1)(b) were considered by the High Court in Baini v The Queen,[52] and were conveniently summarised by this Court in Andelman v The Queen.[53] In particular, the High Court noted that there is no universally applicable description that can be applied to the concept of 'substantial miscarriage of justice' for the purposes of s 276(1)(b), because the possible kinds of miscarriage are numerous and various. They include cases where 'there has been an error or an irregularity in, or in relation to, the trial and the Court of Appeal cannot be satisfied that the error or irregularity did not make a difference to the outcome of the trial'. They also include cases where there has been a 'serious departure from the prescribed processes for the trial'.[54]

191 In the present case, as noted, counsel for the applicant contended that the error of the judge, in permitting the prosecutor to cross-examine Mrs Meyer in re-examination, was productive of a serious miscarriage of justice for two reasons. First, he contended, it enabled the prosecutor to conduct a 'devastating' cross-examination of Mrs Meyer, which significantly destroyed her credibility, and thus adversely affected the defence case. Secondly, counsel submitted, as a consequence of the tactics employed by the prosecutor, counsel for the applicant at trial felt compelled to lead evidence, detrimental to the applicant's case, from Mrs Meyer in anticipation of her being cross-examined by the prosecutor, and in order to attempt to reduce the impact of that cross-examination.

192 In respect of the first aspect of injustice contended for by the applicant, it is important to bear in mind that it is not contended, on behalf of the applicant, that the judge erred in granting leave to the prosecutor to cross-examine Audrey Meyer concerning the aspects in which her evidence was different to the contents of the statement that she made to the police. Rather, the point relied on on behalf of the applicant is that the judge erred, because he gave such leave to the prosecutor after defence counsel had concluded his cross-examination of Audrey Meyer.

193 A review of the cross-examination of Audrey Meyer, in re-examination by the prosecutor, reveals that there was nothing about the timing of that cross-examination that affected the content of it, or the responses by Audrey Meyer to the questions put to her by the prosecutor. Indeed, apart from one aspect of the cross-examination, to which we shall shortly refer, it was not suggested, on behalf of the applicant, that the timing of the cross-examination by the prosecutor gave him an advantage in terms of the content of it, or in terms of the issues which he was able to address in cross-examination. In other words, apart from one matter, the cross-examination embarked on by the prosecutor, after Mrs Meyer had been cross-examined by defence counsel, could have been undertaken in the same way by the prosecutor, if he had sought and obtained leave to cross-examine Audrey Meyer immediately after the conclusion of her evidence in chief.

194 Nevertheless, it must be acknowledged that, from a forensic point of view, in the atmosphere of a criminal trial, the opportunity provided to the prosecutor to cross-examine Mrs Meyer, after she had been cross-examined by defence counsel, had the potential to give that cross-examination substantially greater impact. On the other hand, it should also be borne in mind that defence counsel, who clearly anticipated such cross-examination, had the opportunity, before it took place, to enable Mrs Meyer to elucidate matters in a manner in which it might have been more difficult to do had she been required to first address them in cross-examination. Nevertheless, and taking that consideration into account, it cannot be gainsaid that, from the point of view of the atmosphere of the trial, the prosecutor did gain an unfair forensic advantage, which he should not have had, by being able to cross-examine Mrs Meyer after defence counsel had completed his cross-examination of her.

195 In this context, it is relevant that defence counsel did not seek to further cross-examine Mrs Meyer after the prosecutor had cross-examined her. As we have noted, it is well established in the authorities that, ordinarily, defence counsel should be given the opportunity to further cross-examine the witness, in circumstances in which leave has been granted to the prosecutor to cross-examine the witness after defence counsel has cross-examined that witness. The trial was conducted by both sides in a combative manner. It is plain that defence counsel did not decline to seek leave to further cross-examine Mrs Meyer, because he was reticent to do so, or because he was overborne by the atmosphere of the trial.

196 As we have stated, with one exception, the content of the cross-examination of Mrs Meyer, in re-examination by the prosecutor, was not affected by the circumstance that the cross-examination was conducted after defence counsel had cross-examined the witness, rather than at the conclusion of her evidence in chief. That exception concerns the evidence, adduced by defence counsel in cross-examination, concerning her attendance at conferences that took place between the applicant and defence counsel. In re-examination, the prosecutor cross-examined Mrs Meyer about that topic. She said that she had attended two conferences with counsel, one on her own, and one in the company of the applicant. The latter conference concerned what was 'going to be happening in the case'. Mrs Meyer stated that she had produced a large number of photographs for presentation in the defence case, because she had wanted to demonstrate 'how much we had to do with those girls'. She said she did that off her own initiative, and that she had not been asked to do so. She said that she only spoke to counsel about the dates of particular events when it was connected with the photographs.

197 The prosecutor should not have been permitted to engage in that cross-examination of Mrs Meyer, unless it was relevant to the matters on which leave could legitimately have been given, under s 38 of the Evidence Act. It is not apparent, from the transcript, as to how the cross-examination, as to Mrs Meyer's attendances on defence counsel, related to, or assisted, cross-examination by the prosecutor in respect of the inconsistencies in Mrs Meyer's evidence. The cross-examination of Mrs Meyer, on that topic, was therefore contrary to law.

198 The jury could not have been surprised that Mrs Meyer did assist her husband in the defence of the case. At the time of the trial Mrs Meyer and the applicant were still married. The evidence that she gave in evidence in chief was supportive of the applicant. In that context, cross-examination, as to her attendance at conferences with defence counsel, is unlikely to have added significantly to the jury's understanding that Mrs Meyer was, to use the terminology employed by the prosecutor, 'in the defence camp'. Nevertheless, in the context of the trial, it is inevitable that the content of the cross-examination by the prosecutor of Mrs Meyer on that topic, and, more particularly, the timing of it, would have had a material impact on the assessment by the jury of the credibility and reliability of Mrs Meyer's evidence in the trial.

199 That brings us to the second basis upon which it is contended that there was a substantial miscarriage of justice arising from the grant by the judge to the prosecutor of leave to cross-examine Mrs Meyer after defence counsel had cross-examined her.

200 The submissions of counsel for the applicant, on this aspect focused on evidence, led by defence counsel in cross-examination of Mrs Meyer, as to the conferences that she had with defence counsel for the purposes of the trial. In particular, at the commencement of defence counsel's cross-examination, Mrs Meyer stated that after she had been contacted by the police during the trial to go to the police station to make a statement, the applicant contacted defence counsel, and, as a result, Mrs Meyer told the police that if they needed to ask any more questions of her, they could get in touch with the applicant's barrister. Mrs Meyer then said that she had read the statements of the two complainants, the statements contained in the prosecution brief, and had listened to the pretext call. She had also attended at least two conferences with defence counsel with her husband and talked about the case. Later in cross-examination, defence counsel again asked Mrs Meyer why she declined to make a further statement to the police. She said that the policeman who spoke to her told her that she was not obliged to do so, so she replied 'Well then if I'm not obligated, I would rather not'.

201 The applicant's submission, in respect of that evidence, is that, because of the tactics employed by the prosecutor, defence counsel had felt constrained to open the issue of Mrs Meyer's attendance at conferences with him, when he cross-examined Mrs Meyer himself. At the trial, in response to the application by the prosecutor for leave to cross-examine Mrs Meyer at the conclusion of defence counsel's cross-examination, defence counsel revealed that he had elicited that evidence from Mrs Meyer, in order to neutralise any cross-examination of her by the prosecutor. He said he had done so because he anticipated that such cross-examination would portray any contact between himself and Mrs Meyer as being 'nefarious'.

202 The problem with the point, now relied on, is, of course, that the prejudice, contended for by the applicant in this application, could not have been the result of the ruling made by the trial judge. Rather, the prejudice, relied on by the applicant, was the result of the apprehension by defence counsel, at trial, that the prosecutor would seek leave to cross-examine Mrs Meyer, after he himself had cross-examined her.

203 Logically, then, the introduction of evidence, relating to Mrs Meyer's attendance on defence counsel, did not result from any ruling by the judge, but from the tactics employed by defence counsel with a view to neutralising anticipated or feared cross-examination of Mrs Meyer by the prosecutor. That tactic, by defence counsel, was inherently flawed, as indeed the trial judge noted. It would have been unthinkable for the prosecutor to have been entitled to embark on cross-examination of Mrs Meyer, as to her attendance at conferences with defence counsel, if that topic had not already been opened in the course of cross-examination of her by defence counsel. Consequently, it could not be maintained that the prejudice now complained of, by the applicant, constituted an element of a miscarriage of justice occasioned by the ruling of the judge, that was the subject of ground 3 of the application.

204 It follows from the foregoing discussion, that we do not consider that the decision of the judge, to permit cross-examination of Mrs Meyer by the prosecutor after defence counsel had cross-examined her, had a substantial adverse effect on the defence case, other than that, as a matter of trial atmosphere, the cross-examination of her by the prosecutor may have had more impact, than if the cross-examination by the prosecutor had taken place immediately after Mrs Meyer's evidence in chief.

205 Mrs Meyer was certainly an important witness on behalf of the defence. However, in determining the effect of the impact of the cross-examination of her by the prosecutor after defence counsel had cross-examined her, rather than before, it is relevant to bear in mind some further considerations. The inconsistency between Mrs Meyer's statement and her evidence, as to the 'kiss and hug' incident, was fairly minor. As noted in cross-examination of her, she did state, in her statement, that on one occasion she saw her husband hug AL. The discrepancy relating to the colours of the motor vehicles owned by Mrs Meyer and the applicant only concerned a peripheral matter, and was of little moment. Mrs Meyer was able to explain any discrepancies between her evidence, and the statement that she made to the police, on the basis that, she made the statement on the same day, and shortly after, her husband had been arrested and her house searched by police. The jury would have appreciated Mrs Meyer's explanation, of any discrepancies, on the basis that she had felt overwhelmed by those circumstances.

206 Mrs Meyer's evidence was, of course, important, both as to the 'hug and kiss' episode, and also as to her evidence that in 1990 the applicant had confessed to her that he had had an affair with AL. However, her evidence, on those matters, must be considered in the context of the trial, and, in particular, the matters to which we have already referred. The 'kiss and hug' incident, and the 1990 affair, were relevant to the case, because the applicant sought to use them to explain the plain admissions that he had made, in the pretext telephone conversation, as to having a sexually inappropriate relationship with AL. As we have already explained, the applicant's attempt to link the admissions that he made, to the 'kiss and hug' incident, and the alleged 1990 affair, were quite contrived, and strained credulity. In that way, any damage to the credibility of Mrs Meyer, by the manner in which she was cross-examined by the prosecutor, was of significantly less effect than the damage done to the credibility of the applicant on that issue in cross-examination, when he sought to explain the admissions that he had made in the pretext telephone conversation.

207 Taking all those matters into account, while the judge erred in granting leave to the prosecutor to cross-examine Mrs Meyer after defence counsel had cross-examined her, we do not consider that that decision by the judge, or the cross-examination by the prosecutor of Mrs Meyer at that time, taken alone, resulted in a substantial miscarriage of justice to the applicant. For that reason, ground 3 must fail. As we shall later discuss, however, the errors identified under this ground of appeal are relevant to the determination of ground 4.

Ground 4: an aggregation of errors resulted in a substantial miscarriage of justice

208 By ground 4, it is contended that the applicant's trial was affected by a series of incidents, none of which may have individually given rise to a substantial cause of action, but which, taken together, have had that result.[55] In particular, counsel for the applicant relied on eight incidents in the course of the trial, together with the circumstances that were the subject of ground 3 on this application. It was submitted that the collective effect of those matters created an unacceptable risk that the jury might have relied on impermissible reasoning, on evidence that should not have been admitted, or evidence that should not have been adduced in the form that it was.

209 It is convenient to deal with each of those matters in the order in which they were argued. For ease of reference, we shall refer to each of them as an 'incident'.

210 The first incident concerned was cross-examination of the applicant by the prosecutor that, on the day after the pretext conversation, the applicant had sought advice from a lawyer. It was submitted that that evidence was likely to cause the jury to consider that, if the applicant was innocent, he would have had no reason to seek out the lawyer, and so, by contacting one, he had betrayed his guilt. The jury retired for the day after that evidence was given, and the judge did not give any curative direction in relation to it until three days later. However, by then, the jury had advanced sufficiently in its consideration of the issues in the trial as to ask a question as to whether it could deliver a majority verdict.

211 On behalf of the respondent, it was accepted that the prosecutor was quite wrong to have asked the applicant, in cross-examination, whether he had consulted a solicitor on the day after the pretext call. That concession by the respondent is correct. Indeed, the prosecutor not only asked that question of the applicant, but he went further to ask the name of the firm of the solicitors who the applicant spoke to. The prosecutor only desisted from further cross-examination on that issue, after objection from counsel on behalf of the applicant. In the absence of the jury, the prosecutor sought to justify the relevance of the question on the basis that 'the fact that he went to a solicitor the following day makes it very easy to draw the inference beyond reasonable doubt even that he was worried about what had taken place during the telephone call ...'. In that way, that cross-examination was designed, quite impermissibly, to invite the jury to indulge in a form of 'consciousness of guilt' reasoning, which would have been illogical and invalid.

212 As mentioned, that cross-examination took place on 6 March 2017. The trial proceeded over the next three days. On 9 March, the judge charged the jury. In the course of doing so, he specifically directed the jury that it should not draw any adverse inference against the applicant because he consulted a solicitor after the pretext call. The judge directed the jury that any such reasoning would be by way of speculation which was impermissible. He said that 'innocent people as well as guilty people go and see their solicitors when they think that something is up'.

213 Counsel for the applicant accepted that the direction, given by the judge to the jury, was appropriate. In our view, it was sufficient to substantially offset the harm occasioned by the inappropriate, and improper, cross-examination of the applicant by the prosecutor. Nevertheless, and notwithstanding the direction so given by the trial judge, it must be acknowledged that there remained a material residual risk that the impermissible cross-examination of the applicant might have had an adverse effect on the jury's assessment of the applicant's evidence.

214 Counsel for the applicant has pointed out that, after the judge gave that direction, the judge permitted the jury to have a break. When he did so, the foreperson handed a question to the judge, asking whether it is permissible to return a verdict by a majority. We do not consider that any conclusion can be drawn from that question. First, at that stage, the judge had not given the jury a direction as to whether its verdicts must be unanimous. Such a direction was given by the judge to the jury near the conclusion of his charge. Secondly, the fact that the jury asked a question about whether it can deliver a majority verdict did not mean, or entail, that, on any of the charges against the applicant, it had reached a 'majority' verdict in respect to that charge.

215 The second incident concerns questions asked by the prosecutor of the applicant, in cross-examination, suggesting that his case involved a particular motivation for the complainant 'telling all these appalling lies' about him. Counsel for the applicant submitted that that question was impermissible, and it risked diverting the jury's attention from a proper assessment of the credibility of the prosecution witnesses.

216 That cross-examination was directed to the evidence of the applicant that, in 1994 to 1995 after speaking to AL's brother at a building site, he visited AL, who told him that her life was in ruins, and that she wanted no further contact with him. It was in that context that the prosecutor asked the applicant whether he suggested that that conversation with AL was the motivation for her telling lies about him. Defence counsel objected to the question, contending (correctly) that it offended the principles stated by the High Court in Palmer.[56] The judge, and the prosecutor, both debated the issue with counsel in the presence of the jury, and at one stage the judge (incorrectly) suggested that the prosecutor was permitted to ask the applicant whether the complainant was lying. After further discussion, still in the presence of the jury, the prosecutor stated '... I, with respect, totally disagree but I'll leave the question for the moment'.

217 That cross-examination by the prosecutor of the applicant contravened fundamental principles of cross-examination that have been well established since Palmer's case. It is impermissible for a prosecutor to cross-examine an accused person by asking whether the accused considers or suggests that a witness, who has given evidence against him or her, was lying.[57] It is equally impermissible for a prosecutor to cross-examine an accused person concerning the motive a witness might have to lie about the accused person.[58] In Cupid, Callaway JA explained why a prosecutor is not permitted to ask an accused person either of those questions. His Honour stated:

In Palmer v R and other cases it has been explained that to ask an accused person why the complainant would lie, or to ask that question rhetorically of a jury, is objectionable because (a) it invites the jury to speculate, (b) it is unfair to the accused, who is not in a position to see into the mind of the complainant, (c) it may undermine the onus of proof and (d) the fact that the accused cannot suggest a motive is generally irrelevant.[59]

218 The third incident concerned questions asked by the prosecutor of the applicant in cross-examination concerning the evidence given by him that he had met WB on a building site in 1994, who told him that AL was not well. The prosecutor put to the applicant, and the applicant agreed, that defence counsel had not put questions to WB concerning that meeting. The prosecutor then suggested to the applicant that the conversation with GB never took place.

219 Counsel for the applicant has contended that the prosecutor, having cross-examined the applicant in that manner, failed to proceed to ask the applicant a question that would have elicited the fact that he had given counsel instructions relating to that issue.

220 In our view, there is no substance in this particular complaint. While caution must be exercised in cross-examining an applicant about defence counsel's failure to put to a particular witness matters stated by the accused in evidence,[60] nevertheless it is not suggested that the cross-examination of the applicant, that is the subject of the third incident, was impermissible or inappropriate. It later emerged, in discussions before the judge in the absence of the jury, that the prosecutor was told by defence counsel, and the prosecutor accepted, that the failure to put the matter to WB in cross-examination was an oversight by counsel. In those circumstances, defence counsel, in re-examination, could have asked the applicant questions whether he had provided counsel instructions on that topic. It was not the responsibility of the prosecutor to question the applicant on that matter, and indeed, to do so, could have been quite problematic.

221 The fourth incident, that is the subject of ground 4, is a matter of substantial concern.

222 In the course of cross-examination of AL, defence counsel asked her questions about contacts that had continued between the applicant and AL for some years after the events that were the subject of the charges. Counsel put to AL that 'if he had done these things to you he wouldn't be a friend ... that you would ...'. The judge then intervened in the following terms:

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.

223 As counsel for the applicant has submitted, and the respondent has correctly accepted, there were a number of matters of concern attaching to the judge's intervention. First, the line of cross-examination pursued by defence counsel was quite appropriate and relevant. It was not for the judge to object or interject as he did. The judge's 'objection' to the cross-examination was erroneous. Secondly, and more significantly, the nature of the judge's interjection, and his comment, was most inappropriate. As counsel for the applicant has submitted, it suggested to the jury that the judiciary has special knowledge, which the jury might well accept, that persons, who have been the subject of sexual abuse when they were young, continue to associate with a person or persons who abuse them.

224 In addition, the content of the comment by the judge, and particularly the reference to children 'going back to the sacristy', contained a real sting in terms of its impact on the jury, in light of the substantial amount of recent publicity, in the contemporary media, about allegations of sexual abuse against children by members of the Roman Catholic clergy in previous decades. The implied reference, by the judge, to that publicity, materially added to the already substantial prejudicial effect of his interjection and comment in the presence of the jury.

225 The objection by the judge was calculated to undermine a relevant, and not insignificant, point that was sought to be made on behalf of the applicant in his trial, namely, that the conduct of AL, not only in continuing to visit the applicant in his home in Mooroolbark, but in continuing to associate with him on an amicable basis well after those events, was inconsistent with her complaints. The interjection by the judge, to that line of cross-examination, was in fact repeated, albeit not in the same terms, a little later in the cross-examination of AL, when defence counsel (properly) put to her that if 'these things' were happening to her over a four to six month period, why did she keep going back to him. Before the witness responded to that question, the judge interjected, and told counsel that he had cross-examined the witness about that matter before, saying that counsel had started off 'asking those questions'. That interjection by the judge was incorrect and inappropriate. If the question was objectionable, it was the role of the prosecutor, not the judge, to object to it. However, and in any event the question was not objectionable and the judge should have allowed it.

226 The matters, to which we have just referred, are matters of concern. They should not have occurred. It is to be noted that, after the first interjection by the judge (which is particularly troublesome), defence counsel did not make an application to the judge to discharge the jury, or to give to the jury a form of curative direction. Counsel for the applicant, is an experienced and robust advocate. He conducted the trial, in this case, with particular vigour. It is relevant that he did not apprehend that there was a need to apply for a discharge of the jury, or to seek from the judge a curative direction. The trial was at an early stage, as AL was the first witness in it. There was therefore a sound basis for counsel to have taken either such steps if he had perceived that to do so would be necessary in order to protect the position of his client.

227 Nevertheless, the failure of defence counsel to take either of these steps does not expunge the nature or effect of the interjection by the judge. As noted, the incident occurred at an early stage in the cross-examination of AL. It is unlikely that, by then, such was the nature of the atmosphere of the trial, that defence counsel could have had a different perception of the effect of the interjection than this Court. Indeed, the fact that the interjection occurred at an early stage had the potential to set the trial on a particular, and quite incorrect and unfair, footing, to the disadvantage of the applicant.

228 The fifth 'incident', that is relevant to ground 4, consists of a number of interventions by the judge in the defence case. In particular, it was submitted on behalf of the applicant that the interjections, and comments made, by the judge in the presence of the jury undermined the credibility of defence counsel, and thus of the applicant's case. Counsel for the applicant referred to a number of different incidents in the trial in support of that proposition. In order to address this 'incident', it is only necessary to refer to them in brief compass.

229 The first point arose in the cross-examination by defence counsel of AL. Counsel sought to put to AL that her evidence was inconsistent in relation to how and in what circumstances her memories became unblocked as a consequence of the alleged rape that occurred in 1990. The prosecutor objected to the question, and the judge upheld the objection on the grounds that it was ambiguous. In our view, his Honour was correct to do so. When counsel proceeded to cross-examine in relation to that matter, the judge intervened, in order to ensure that the question was put in its proper context. Again, the intervention by the judge, at that point, was appropriate, and the manner in which the judge intervened could not have had the effect of undermining the credibility of defence counsel before the jury.

230 The second point, relied on by counsel for the applicant, is of more moment. Defence counsel commenced a line of cross-examination of AL, that was designed to highlight the inconsistency between her evidence, and that of Sharon Sanderson, as to whether AL had ever told Sharon about her sexual relationship with the applicant. The prosecutor intervened by drawing attention to a particular word used by Sharon Sanderson in her statement. Defence counsel said 'I'll correct it', and proceeded to cross-examine AL further on that point. Immediately after he had done so, and commenced to ask questions on a different topic, the judge then gratuitously interjected stating (in the presence of the jury):

I might say Mr ..., I don't think it's proper for you to have put to this witness that, paraphrasing when you well knew that what the words in that statement were.

231 Defence counsel responded that he had 'backed (his) judgment without going to the transcript'. The judge, rejecting that explanation, said 'but you were looking at it were you not?' When defence counsel said he did not think he did so, the judge said 'and you chose words specifically that were not what was in the statement'. Defence counsel (with justification) responded 'I utterly and completely reject that'.

232 That interjection by the judge in the presence of the jury was quite inappropriate. It was wrong for the judge to have insinuated, or indeed alleged, in the presence of the jury, that defence counsel was being dishonest in his explanation of the questions that he had put to AL. Subsequently, in the absence of the jury, defence counsel, quite properly, raised the matter with the judge, stating that in 34 years of practice, that was the first occasion on which he had been accused by a judicial officer of effectively being 'a liar and a cheat'. It is a matter of concern that the judge did not apologise to defence counsel, at that stage. It is a matter of greater concern that his Honour did not seek to correct, in the presence of the jury, what he had said.

233 The vice, of the comment made by the judge before the jury, not only lay in subjectively undermining defence counsel, who, as we have said, is quite a robust member of counsel. More significantly, it had the potential to affect the jury's perception of defence counsel, and thus the reliability of the propositions that he made in support of his client, both in cross-examination, and in final address.

234 The next point relied on by counsel for the applicant is, we consider, of little moment. It occurred in the course of cross-examination by defence counsel of HK concerning the incident that was the subject of charge 22. Defence counsel read to the witness a lengthy passage of the evidence of the witness in chief, and compared it with a passage from the evidence that the witness gave at the committal proceeding, to demonstrate an inconsistency as to whether or not the applicant changed the television station after he had been to the kitchen and had a drink. The judge intervened stating 'Come on Mr ... you've just taken this witness through her evidence again, what for that purpose, that he changed the tele?' Defence counsel answered that question in the affirmative, and the judge answered 'Yes go on'.

235 The judge should not have intervened in the manner in which his Honour did, but, it is fair to observe, the inconsistency, sought to be demonstrated by defence counsel, was quite trivial.

236 The next intervention, relied on by counsel for the applicant, occurred in the cross-examination by defence counsel of SR. Defence counsel read to SR a lengthy passage from his statement to the police concerning the circumstances in which AL told him, in 2013, that she had been raped by another person while she was married to SR. In the statement, SR said that that was the first time that AL had told him that she had been raped. The judge intervened, stating to counsel that he had just read exactly what the witness had already stated in his evidence in chief, and the judge asked counsel what was the purpose of reading the whole paragraph out to the witness. Counsel responded (the transcript may be incorrect here) 'Well I think about the giving of assistance ...' to which the judge responded 'whatever'.

237 Two observations should be made about this passage. First, the interjection by the judge was inappropriate. Although the cross-examination was repetitive, it was quite legitimate, because it highlighted an important aspect of the case, namely, that on the evidence of SR, the first occasion on which he learnt of the allegation by AL that she had been raped during their marriage was in 2013. Secondly, the terse response of the judge to counsel's explanation, again in the presence of the jury, 'whatever', was quite regrettable, being dismissive of the point sought to be emphasised by counsel for the applicant.

238 The final point, in respect of the 'fifth incident', arose from an incident in the presence of the jury in which the judge engaged in some banter with the prosecutor that, it is submitted on behalf of the applicant, 'poked fun' at cross-examination by defence counsel. The incident occurred during the cross-examination by defence counsel of Dr Edwards, who had treated AL in about 1991, and diagnosed that she suffered from post-traumatic stress disorder. In cross-examination, counsel sought to suggest to the doctor that there are a large number of possible causes of post-traumatic stress disorder. He used a number of fictional scenarios as examples, using particular fictitious first names of persons, to illustrate the point that he was making. After that questioning had proceeded over a period of time, the prosecutor objected, on the basis that the questioning had 'now gone in the realms of the absurd'. The judge, in a light hearted manner, said that he was finding the different fictitious first names, chosen by counsel, to be quite interesting, and he and the prosecutor speculated whether the people involved were 'Ted and Alice and Bob and Tom'. It was, perhaps, unfortunate that the judge chose to engage in such jocularity before the jury, but it is understandable that his Honour did so, in light of the nature of the questions that were being asked. Viewed objectively, we do not consider that his Honour's levity, at that point, did any damage to the defence case.

239 In addition to the matters relied on by counsel for the applicant, there were a number of other instances in which the judge, of his own motion, intervened during the cross-examination by defence counsel of AL, in circumstances in which the prosecutor had not made any objection to the line of cross-examination then being undertaken by defence counsel. In particular, the judge intervened, in that way, during cross-examination concerning the following matters: cross-examination directed to demonstrating an inconsistency in the evidence of AL about the circumstances of the rape in 1990; cross-examination concerning whether Audrey Meyer was present during the aspect of the swimming pool incident that was the subject of charge 8; cross-examination, based on the witness's evidence at the committal proceeding, concerning a detail attaching to the Grand Final incident (the subject of charges 1 and 2); cross-examination concerning the circumstances that were the subject of charges 18 and 20; and cross-examination as to the reason why AL and her first husband (SR) broke up.

240 Without analysing those matters in any detail, in our view each of the interjections were not warranted and should not have occurred.[61] One instance will suffice. In the course of the cross-examination concerning the bedroom incident that was the subject of charges 18 and 20, counsel addressed questions relating to the witness's recollection of matters of detail relating to the Meyer bedroom, including the colours of the doona on the bed, the type of the pillows on the bed, and the colour of the carpet and curtains. He then put to the witness, who agreed, that she had no recollection of how she came to be lying naked on the bed in that room, and as to how she left it. He asked the witness to explain why she could remember, in detail, the furnishings in the bedroom, but she could not say anything about how she got there or how she left it. The judge (without there being any objection by the prosecutor) interjected that the question was problematic, because it was an argument. While, it must be acknowledged, there were some issues relating to the question, nevertheless, it was a legitimate matter to be addressed in cross-examination as a basis for a submission later to be made to the jury by defence counsel in final address.

241 In addition to those matters, counsel for the applicant also sought to rely on some interventions by the judge in the course of the trial that, it was submitted, were of assistance to the prosecution. Without canvassing those interventions, it may be fairly said that they did provide some assistance to the prosecution, but, overall, not unfairly so. We do not consider that any of them add to the force of the point sought to be made in respect of the fifth incident.

242 The principles, relating to the intervention by a judge in the course of a criminal trial, or indeed any trial, have been discussed in the authorities over a number of years, and are well understood.[62] The relevant principles were stated by the Full Court of this State in R v Mawson,[63] in which the Court (consisting of Winneke CJ, Adam and Barber JJ) stated:

It is clearly established by a long line of authority that excessive interference or involvement by a trial judge in the conduct of a trial may constitute such a departure from the due and orderly processes of fair trial as to amount to a miscarriage of justice. In those circumstances, such a miscarriage may result for any of a number of reasons. It may, for instance, involve an impairment of a party's opportunity of putting his defence fully and fairly to the jury. An illustration of that kind of miscarriage is shown by the case of R v Clewer (1953) 37 Cr App R 37. The miscarriage may result from preventing witnesses at the trial from telling the full account of the facts as they understand them to be. An illustration of that kind of miscarriage is provided by the case of R v Bateman (1946) 31 Cr App R 106. Such a miscarriage may result from an apparent identification by the trial judge with one or other party to the litigation. A miscarriage of that kind is illustrated by the case of R v Cain (1936) Cr App R 204, or again the miscarriage may result from the jury being led to believe from the judge's intervention that he is himself convinced of the guilt of the accused person. The illustrations given are sufficient to indicate how this kind of departure from the due and orderly processes of trial may result in a miscarriage. It also becomes apparent that a departure from due and regular process in any such respect as those mentioned, may infringe another fundamental principle of criminal law, namely, that criminal justice must not only be done but must also appear to be done.[64]

243 In more recent years, the principles were restated by this Court in Piccolotto v The Queen:

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. A trial judge who does not intervene to prevent undue delay or to ensure that the parties focus upon the critical issues may otherwise be the subject of criticism by an appellate court. That said, it is to be expected that such objections to improper or irrelevant cross examination, at least in the first instance, should be raised by the prosecutor. If the trial judge felt that the prosecutor was not discharging his duty, he should have raised those concerns with the prosecutor in the jury's absence so that it would not be necessary for the judge to intervene in the jury's presence and be seen to be stepping into the arena of dispute.

Secondly, as the conduct of counsel affected the proper course of the proceedings, the judge was entitled to reprove counsel to ensure that witnesses were treated fairly and that the court's time was not wasted. In doing so, judges, being human, can be expected to react with impatience or irritation from time to time. They may sometimes have to be strong and forceful but they should, no matter the provocation, comport themselves with dignity.

If the trial judge frequently intervenes by correcting and rebuking defence counsel, even where the interference is justified and the mode of intervention is restrained, the risks may arise that the jury will infer that the judge has formed an unfavourable view of the merits of the defence case or, at least, of counsel whose conduct is in issue. A judge's comments must not convey the impression, whether by intervention or otherwise, that the defence is 'hollow.' Further, and quite distinct from the risk that the jury might conclude that the judge did not view the defence case with favour, trenchant criticism of counsel carries with it the danger that the jury, acting upon the impression created by the judge, may have concluded that counsel's conduct reflected a lack of judgment, or incompetency, so that valid arguments or points taken by counsel would then not receive the consideration due to them. For such reasons any sustained reproof or detailed criticism should be advanced as far as possible in the absence of the jury.[65]

244 As we have discussed, there were a number of interventions by the judge in the case, which are matters of concern. The preponderance of them did occur during the cross-examination by defence counsel of AL. Thereafter, the judge, while not refraining from intervening, was less intrusive in the conduct of the case by both the prosecutor and more particularly by defence counsel. It was not put, on this application, that the interventions alone were sufficient to constitute a substantial miscarriage of justice. However, a number of the interventions, and the recurrence of them during the cross-examination of AL, who was a key prosecution witness, were, as discussed, matters of concern as to their potential to impact on the fairness of the trial, in the manner described in the foregoing passages from the judgments in Mawson and Piccolotto.

245 The sixth incident, that is relied on in respect of ground 4, arises from the circumstance that, when each of the complainants gave their evidence, a screen was placed in the Court in order to block the applicant from the direct line of sight of the witnesses as they gave their evidence, as permitted by s 360 of the Criminal Procedure Act 2009. As a consequence of that arrangement, s 361 of the Act required the judge to warn the jury that it must not draw any inference adverse to the accused, or give the evidence any greater or lesser weight, because of the making of those arrangements. Although the judge gave the jury some directions concerning the arrangements, and why they were in place, he did not give to the jury the direction mandated by s 361. On this application it was submitted that the legislature, having seen fit to require that a particular direction be given to the jury, the absence of that direction must be treated as a matter of some substance, regardless of the fact that defence counsel at trial did not take any exception to the direction actually given to the jury by the judge.

246 At the commencement of the trial, the judge gave some preliminary directions to the jury. In doing so, he told the jury that in Victoria in cases in which it is alleged that a sexual assault has occurred, provisions have been made for alternative arrangements for the giving of that evidence, such as that which was to be adopted in the present case. The judge told the jury that this was not an exceptional arrangement, but that it occurred 'in all cases'. He described to the jury the variety of differing arrangements that can be made in order to facilitate the giving of evidence by persons who complained of sexual assault. He explained that because the evidence may involve recounting allegations in respect to which there are strong emotions, one method that is utilised is to screen or shield the witness from the accused person. The judge emphasised that that process was 'not an unusual procedure, it happens very often, and it's done because like all the other alternative arrangements they are seen fit to facilitate rather than create problems inside the Court'.

247 On the next day, AL was called to give evidence. The judge again pointed out to the jury the arrangement that was in place, and then AL proceeded to give her evidence.

248 Clearly, the judge did not direct the jury in the terms specified by s 361 of the Act. That omission was of some moment. By enacting s 361, the legislature had sought to address a particular risk that the jury might engage in unfair reasoning against the accused arising from measures, permitted by s 360, that are designed to make the experience of a complainant, in giving evidence, less daunting. The judge did explain to the jury that the arrangements, that were adopted in that case, were commonplace in all cases involving allegations of sexual assault. That explanation, repeated during the preliminary direction, was addressed to the concern to which s 361 is directed. However, it lacked the direct impact that a direction, in the terms specified by s 361, would have had. In particular, it failed to expressly negate the risk that the jury might draw an adverse inference against the applicant arising from the steps taken to assist the complainants to give evidence against him. Defence counsel did not object to the direction so given by the judge to the jury. However, the fact that he did not do so did not detract from the right that the applicant had, as an accused person, to have the jury directed in the terms specified by s 361.

249 The seventh incident concerns evidence adduced by the prosecution as to the very significant mental health problems suffered by AL after the breakdown of her two marriages. It was submitted that the prosecution should not have been permitted to adduce expert evidence that there was no other possible cause of the difficulties suffered by AL, other than the sexual abuse of her by the applicant. Counsel for the applicant contended that the evidence, so admitted, bolstered the complainant's credit, by suggesting that the abuse had in fact occurred. It was contended that the evidence involved a boot-straps form of reasoning, because the opinions, of the medical practitioners and counsel, to that effect, were entirely dependent on the acceptance of the complainant's own account.

250 In response, counsel for the respondent contended that the applicant did not object to the calling of Dr Edwards, Dr Protassow and Mr Wall for a good reason. In particular, defence counsel sought to rely on those witnesses in order to impugn the credibility of AL, concerning the details of the complaint that she made to them, the timing of those complaints, and other events that occurred in the complainant's life at the time of her diagnosis. Further, the prosecutor was not permitted to elicit evidence of opinion from those witnesses as to the veracity or reliability of the account given by AL. Their evidence was limited as to whether their diagnoses were consistent with the history given by the complainant.

251 As already noted, in her evidence in chief, AL gave evidence as to her circumstances after her first marriage failed, and after her second husband died. That evidence was connected with the circumstances in which AL ultimately came to make a complaint to the police about the allegations of sexual assault against her by the applicant. That evidence was not objected to. Indeed, AL was cross-examined about it, and in particular she was cross-examined in some detail, concerning the two severe bouts of mental illness that she suffered in 2009 and 2010. That cross-examination was directed to impugning the circumstances in which, and reason why, AL attended the police, and to undermining the quality of her memory of the events described by her in her evidence. In our view, the evidence adduced from Dr Edwards, Dr Protassow and Mr Wall was relevant to that issue. It is not put that the witnesses did not have sufficient expertise to express the opinions given by them in evidence. They were, correctly, precluded from expressing any opinion as to the credibility or otherwise of the complaints made to them by AL.

252 Further, it was quite evident to the jury, that the validity of the diagnoses made by each of the two doctors and the counsellor was dependent upon the validity of the history given to them by AL. Juries are regularly instructed, and understand, that the quality and validity of an expert witness's opinion is necessarily dependent on the accuracy of the information on which the opinion is based. We do not consider that the views, expressed by the two medical practitioners and Mr Wall, did enable the prosecution to engage in a 'boot-straps' form of reasoning in the present case. Accordingly we do not consider that the sixth point, relied on in support of ground 4, is of substance.

253 The eighth incident concerns a direction given by the judge to the jury in his final charge. The judge, having given to the jury the standard directions relating to the use which it might make of inconsistent statements made by witnesses, told the jury (quite correctly) that the fact that a witness gives inconsistent accounts does not mean that that witness has lied. His Honour then gave the following direction, which is the subject of this aspect of ground 4 of the application:

Now, yesterday in submissions you heard Mr ... for the defence 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.

254 The judge then drew to the jury's attention a number of the matters, relied on by defence counsel, as inconsistencies in the evidence of the two complainants.

255 The direction, set out in the passage above, conforms with a direction that a trial judge is now required to give to the jury, in a criminal proceeding relating to a charge of sexual offence, pursuant to s 54D of the Jury Directions Act 2015. However, that provision was inserted into that Act by the Jury Directions & Other Acts Amendment Act 2017, which commenced on 1 October 2017, seven months after the trial in this proceeding. At the time of the trial, there was no basis, at law, for the direction so given by the judge to the jury.

256 In submissions before us, counsel for the respondent suggested, somewhat faintly, that the direction might have been justified at common law under the principles described by this Court in R v Miletic.[66] It would, to say the least, be extraordinarily exceptional for a judge to give a 'Miletic' direction to a jury in support of a prosecution case. In the experience of this Court, that has never been done in this State. In any event, the principles, stated in Miletic, could not provide an appropriate justification for the judge having given such a direction to the jury.

257 Accordingly, it was erroneous for the judge to give the direction to the jury in the terms that he did, namely, as a direction of law, which the jury was required to adhere to. The detrimental effect, of the direction, was, to a limited extent, palliated, by the judge attaching it to the more general directions that he gave to the jury about the use which it might make of previous inconsistent statements by witnesses. Further, the direction did encapsulate what would ordinarily be the understanding of a lay jury. It could be expected that a jury would understand that a complainant, describing a sexual assault that occurred many years previously, might not remember relevant details relating to the assault, and might, on different occasions, give differing accounts of the incident constituting the assault. Nevertheless, it was wrong for the judge to elevate that consideration to a direction of law. By doing so, the judge, erroneously, gave a direction that had the potential to impact, unfairly, on matters raised by the defence in relation to inconsistencies by both complainants in the evidence that they had given to the jury.

258 It should be added, in fairness to the judge, that neither the prosecutor nor defence counsel took exception to the direction so given by the judge to the jury, and did not ask him to correct it. The failure, particularly of the prosecutor, to do so, is troubling. In that context, and in the context of other matters we have discussed relating to the conduct of the trial, it is important to emphasise that if a judge gives a direction to a jury which is incorrect or inappropriate, it is the duty of the prosecutor, as a minister of justice, to draw that matter to the attention of the judge, in order to ensure that the directions given to the jury are correct.[67] In that context, it is relevant to bear in mind the iconic statement of principle by Young CJ in R v Bazley:

... the long tradition of prosecutors is that they should perform their task as ministers of justice rather than as advocates seeking a particular result. It is, of course, clearly their task to present the Crown case fairly and fearlessly but to present it in a detached way and not to appear to urge a conviction. Moreover, experience suggests that the fairer the prosecutor the more devastating so far as the defence is concerned. Juries have been known before now to react against overzealous prosecutors.[68]

259 In summary, then, we are satisfied that a number of the matters, identified by the applicant under ground 4, did constitute errors in the conduct of the trial of the applicant. In addition, we have concluded, under ground 3, that the judge erred in granting the prosecutor leave to cross-examine Audrey Meyer after defence counsel had completed cross-examination of her. The critical question, under ground 4, is whether the combination or aggregation of those errors were such as to constitute a substantial miscarriage of justice for the purposes of s 276(1)(b) of the Criminal Procedure Act.[69]

260 As already discussed, in accordance with the principles expanded in Baini, that question involves a consideration of whether, in the context of this case, the Court can be satisfied that the combined effect of the errors and irregularities did not make a difference to the outcome of the trial of the applicant, and also whether the aggregation of those errors constituted a serious departure from the prescribed processes for trial of the applicant.

261 In light of the matters that we have already discussed, the resolution of those questions is by no means straightforward. In particular, in determining whether the combined effect of the errors did not make a difference to the verdicts of the jury, it is necessary to bear in mind the limitations of this Court, in not having had the advantage of hearing and observing the witnesses, and in being detached from the atmosphere of the trial.

262 Bearing those limitations in mind, having reviewed and analysed the evidence at the trial, it can be fairly concluded that the prosecution case, on the charges on which the applicant was convicted, was strong. In particular, the prosecution case, in respect of charges 21 to 27 (in which HK was the complainant) was coherent and quite convincing. The transcript does not reveal that any substantial damage was occasioned to the evidence, or credibility, of HK in cross-examination. She was able to explain why she had not complained of the indecent assaults that the applicant had committed against her, and why she waited until after her sister, AL, had regained her health, to approach the police about them. Nevertheless, material issues were raised concerning the credibility and reliability of HK as a witness, particularly relating to her lack of memory of the incidents, described by her in her evidence, for more than three decades, and the delay by her in making any complaint to the police. While, as we have stated, HK's answers to questions, relating to those matters, appear to be quite coherent from the transcript, any assessment of her credibility and reliability by this Court must, necessarily, be limited.

263 There were some genuine issues relating to the credibility of AL. Nevertheless, the prosecution case, in respect of the charges involving her, and on which the applicant was convicted, was quite strong. Her evidence was supported by the complaint evidence, and, in respect of the occurrence of the alleged rape in 1990, by her first husband. Most importantly, her evidence was quite powerfully supported by the contents of the pretext call.

264 On the other hand, notwithstanding the strength of the prosecution case, it could not be concluded that the case against the applicant was so overwhelming that, even if the errors in the trial had not occurred, the applicant would have been convicted. As we have mentioned, and as is ordinarily the position in cases of this kind, there were material issues that were explored in cross-examination relating to the reliability and credibility of both complainants. The applicant's case did gain some support from the evidence of his wife. The applicant himself gave evidence denying the occurrence of the incidents in respect of which he was charged. As noted, his explanations, of the contents of the pretext call, were somewhat contrived, and challenged credulity. Nevertheless, having reviewed the evidence as a whole, it could not be maintained that, notwithstanding the errors that occurred in the conduct of the trial, the applicant was bound to be convicted of the charges on which the jury found him guilty.

265 The question, then, is whether it could be concluded this Court that the errors in the trial did not make a difference to the outcome of the trial. In order to consider that question, it is necessary to return, briefly, to the conclusions that we have already reached concerning those errors.

266 As we have already found under ground 3, the error, in granting the prosecutor leave to cross-examine Audrey Meyer after defence counsel had cross-examined her, did not affect the content of the cross-examination by the prosecutor. However, it did involve an unfair forensic disadvantage to the defence, as the matters raised by the prosecutor would have had a more substantial effect as a result of the timing of his cross-examination of her, than if the prosecutor had been granted leave to cross-examine Audrey Meyer after the conclusion of her evidence in chief.

267 Audrey Meyer was an important defence witness in respect of a number of matters, including, first, when she first met the B family, secondly, concerning her observations of the 'kiss and hug' incident, and, thirdly, concerning the revelation to her by the applicant of his affair with AL in 1990. As we have noted, it is unlikely that Audrey Meyer's evidence would have been accepted, in relation to when she met the B family, because it was contrary to a significant body of evidence called by the prosecution. In addition, we expect that little damage was occasioned to Audrey Meyer's evidence concerning the 'kiss and hug' incident, since she did describe, in her statement to the police, an incident in which she observed the applicant and AL hug each other.

268 The principal effect, of the cross-examination of Audrey Meyer, concerned the question of when the applicant revealed to her the affair that he alleged that he had had with AL in 1990. That matter was important to the defence, in that, if the jury accepted that the affair might have taken place in 1990, there was at least some foundation for the applicant's claim, in his evidence, that parts of the pretext call related to that matter. As already noted, his explanation, in his evidence, to that effect, strained credulity. Nevertheless, the damage occasioned to Audrey Meyer's evidence, about that matter, might have adversely affected his case on that point. As discussed, the same damage would have been occasioned to the defence case, if the prosecutor had sought, and obtained, leave to cross-examine Audrey Meyer at the conclusion of her evidence in chief. However, as already discussed, the context and timing of the cross-examination of Audrey Meyer, by the prosecutor in re-examination, had the potential to add materially to the damage inflicted on the defence case arising from that cross-examination.

269 Thus, the error, identified in ground 3, was not of itself of sufficient moment to give rise to a substantial miscarriage of justice in the trial. However, it did have an unfair effect on the defence case which should not have occurred. In that way, it is a relevant factor to take into account in determining whether, as a consequence of the aggregation of errors complained of, there was a substantial miscarriage of justice in the trial.

270 We turn, then, to the various incidents that were considered under ground 4. We have upheld the matters raised by the applicant in respect of the first, second, fourth and eighth incidents, and we have also upheld the complaints concerning a number of the matters raised under the fifth incident.

271 The first incident concerned the reaction by the applicant to the pretext call made to him by AL. The thrust of the impermissible questions, asked of the applicant by the prosecutor, was to infer that he had a 'consciousness of guilt' concerning the content of the matters discussed in the telephone conversation. While that matter impacted particularly on the defence by the applicant of the charges in which AL was the complainant, it also had the potential to adversely affect the credibility of the defence case as a whole.

272 Similarly, the second incident, which involved impermissible cross-examination under the principles stated in Palmer, again involved a material unfairness to the case of the applicant. While it directly impacted on his defence of the charges involving AL, the impermissible cross-examination by the prosecutor had the potential to obscure the onus of proof, generally, by suggesting that, in some way, it was for the defence to explain why the two complainants might have invented their evidence against him. The principles, discussed in Palmer, and in subsequent cases, have been borne from the longstanding understanding of the courts that, in the atmosphere of a criminal trial, the proscribed questioning as to the motive of a witness to tell an untruth, has a dangerous potential to have an unfair adverse effect on the defence in a criminal trial.

273 As already discussed, the remark made by the judge, in the presence of the jury, that was the subject of the fourth incident, was quite inappropriate. It was made in response to cross-examination by defence counsel of AL as to why she continued to maintain a relationship with the applicant, notwithstanding the incidents in which she claimed that she was abused by him. The comment, made at that stage, was calculated to have an adverse effect on the line of cross-examination that was being legitimately and appropriately pursued by defence counsel. In addition, and even more significantly, as earlier discussed, the content of the interjection had a significant prejudicial potential, arising from the reference by the judge to children returning to the sacristy. There was, we consider, a material risk that the comment made by the judge might have had a lingering effect on the manner in which the jury considered the charges against the applicant.

274 The majority of the matters, which we have upheld under the rubric 'fifth incident', were, again, directed to the charges involving AL. In particular, most of the interruptions by the judge, in cross-examination of a witness, occurred in the course of the evidence of AL. There was one interruption during the cross-examination of HK, but, as we have already noted, it constituted a, perhaps understandable, expression of frustration by the judge in relation to a trivial and peripheral inconsistency being pressed by defence counsel at that stage.

275 As discussed, the direction that the judge gave to the jury, as to the use of screens during the evidence of the complainants, did not conform with the requirements of s 361 of the Criminal Procedure Act. The direction, given by the judge, did explain the reason why the screens were in place during the complainant's evidence, and to that extent partially, but not sufficiently addressed the potential unfairness to the applicant that is intended to be offset by a direction under s 361.

276 Finally, the impermissible direction given by the judge to the jury, which we have considered under the rubric 'the eighth incident', was, we apprehend, of some effect in the trial. As already discussed, the error lay in the judge investing, with the authority of a judicial direction, a matter which, it might be expected, the jury would already have understood. To that extent, the direction, erroneously, had the potential to detract from the effect of the defence arguments that were based on the inconsistencies between the accounts given by the complainants in their evidence, with the accounts given by them to the police.

277 That review, of the effect of the errors, reveals that most of them were directed to, and affected, the prosecution case against the applicant on the charges in respect of which AL was the complainant. The prosecution did not serve a notice of tendency evidence, and it was not contended, at trial, that the evidence, relating to one complainant, was cross-admissible in respect of the charges involving the other complainant, as tendency evidence pursuant to s 97 of the Evidence Act. The jury was given a correct direction that it must consider each charge separately in light of the evidence that applied to that charge.

278 Nevertheless, in the atmosphere and context of the trial, it is conceivable, if not probable, that the effect of the errors, concerning the charges involving AL, might have had adverse consequences in respect of the jury's appreciation of the evidence relating to the charges against HK. In the dynamic context of a criminal trial, the damage to a defence case, in respect of one charge, may not be hermetically quarantined from any adverse effect in respect of a jury's consideration of another charge. In particular, in the present case, the unfair prejudice to the case of the applicant, in respect of the charges concerning AL, necessarily affected his credibility, not only in relation to those charges, but generally. Further, although the jury was directed to consider each of the charges separately, the incidents, that formed the subject of each of the charges, were alleged to have occurred in the same context in which the two complainants regularly visited the home of the applicant.

279 Taking all those matters into account, we are not satisfied that the combined effect of the errors and irregularities in the trial, that we have discussed, did not make a difference to the outcome of the jury's consideration of the charges on which the applicant was convicted by the jury. Further, a significant number of them impacted materially on the fairness of the trial. In our view, the cumulative effect of those errors, taken in combination, was to deprive the applicant of a fair trial of the charges against him. Accordingly, we consider that the aggregated and combined effect of those errors did result in a substantial miscarriage of justice in the trial. It follows that the conviction of the applicant, on charges 4, 5, 6, 10, 18, 20, and 21 to 27 (inclusive), should be set aside. As we have concluded, under ground 2, that it was open to the jury to convict the applicant on charges 4, 5, 6, 10, 18 and 20, and as no such ground was relied on in relation to charges 21 to 27, it follows that a new trial should be ordered in respect of those charges.

280 For the foregoing reasons, the applicant should be given leave to appeal on grounds 2, 3 and 4. The appeal should be upheld, under ground 4, in respect of the applicant's conviction on charges 4, 5, 6, 10, 18, 20 and 21 to 27, and a new trial ordered in respect of those charges.

[1] To ensure that there is no possibility of identification, this judgment has been anonymised by the adoption of pseudonyms in place of the name of the applicant.

[2] [2013] VSCA 55; (2013) 39 VR 149, 152 [4].

[3] See below [226].

[4] Criminal Procedure Act 2009 s 276(1)(a).

[5] R v Klamo [2008] VSCA 75; (2008) 18 VR 644, 653-4 [38]-[39].

[6] See below [160]-[172].

[7] Cf Weiss v The Queen [2005] HCA 81; (2005) 224 CLR 300, 316 [41].

[8] Criminal Procedure Act 2009 s 276(1)(b).

[9] See below [191]-[207].

[10] See below [202]-[203].

[11] See below [198].

[13] See [52] below.

[14] R v Kotzmann [1999] VSCA 27; [1999] 2 VR 123, 157 [114] and the cases there cited ('Kotzmann'); Ghebrat v The Queen (2011) 214 A Crim R 140, 142 [6].

[15] See, eg, R v Ferguson [2009] VSCA 198; (2009) 24 VR 531, 593 [381]; Ho v The Queen (2011) 219 A Crim R 74, 86 [54]; DPP (Cth) v Fattal [2013] VSCA 276 [59]; Booysen v The Queen [2014] VSCA 150 [23].

[16] [2016] VSCA 272 [136] (emphasis added).

[17] See below [220], [252].

[18] See below [212].

[19] See, eg, Dupas v The Queen [2010] HCA 20; (2010) 241 CLR 237, 247-8 [26]-[28]; R v Mokbel (2009) 26 VR 618, 638 [90]; Mwamba v The Queen [2015] VSCA 338 [44].

[20] [1998] HCA 2; (1998) 193 CLR 1, 7-9 ('Palmer').

[22] See below [161].

[23] See, eg, Arico v The Queen [2018] VSCA 135 [142]; Cooper v The Queen [2013] VSCA 153 [14]; R v Wright [1999] VSCA 145; [1999] 3 VR 355.

[24] See below [228]-[238].

[26] [2015] VSCA 143 [41] (citations omitted) ('McPadden'). See Papazoglou v The Queen (2010) 28 VR 644.

[28] [2018] VSCA 57 [52] (citations omitted).

[29] See R v Moroz and Mendelis [2007] VSCA 30 [51]-[52].

[30] See Jury Directions and Other Acts Amendment Act 2017 s 13(1).

[31] Explanatory Memorandum, Jury Directions and Other Acts Amendment Bill 2017, 16.

[33] See below[253].

[34] See below [255].

[35] See Jury Directions and Other Acts Amendment Act 2017.

[36] [2010] EWCA Crim 1578.

[37] Ibid [23] citing R v MM [2007] EWCA Crim 1558, R v D [2008] EWCA Crim 2557 and R v Breeze [2009] EWCA Crim 255.

[39] [2016] HCA 35; (2016) 258 CLR 308 ('Baden-Clay').

[40] Ibid 329 [65] (citations omitted).

[41] [1994] HCA 63; (1994) 181 CLR 487.

[42] [2007] HCA 30; (2007) 230 CLR 559.

[43] Ibid 596-7. See also R v Nguyen [2010] HCA 38; (2010) 271 ALR 493, 500 [33] (Hayne, Heydon Crennan, Kiefel and Bell JJ); SKA v The Queen [2011] HCA 13; (2011) 243 CLR 400, 405-06 [11]-[14] (French CJ, Gummow and Kiefel JJ); Baden-Clay [2016] HCA 35; (2016) 258 CLR 308, 330 [66].

[44] [2008] VSCA 75; (2008) 18 VR 644.

[45] Ibid 653-4 [38] (Maxwell P, Vincent and Neave JJA). See also O'Reilly v The Queen [2015] VSCA 19 [22]; Meade v The Queen [2015] VSCA 171 [11].

[46] R v Kneebone [1999] NSWCCA 279; (1999) 47 NSWLR 450, 471; R v Fowler [2000] NSWCCA 142 [120] (Wood CJ at CL); Burrell v The Queen [2007] NSWCCA 65; (2007) 190 A Crim R 148, 205 [234]-[235] (McClellan CJ at CL) ('Burrell').

[47] Adam v The Queen (2001) 207 CLR 96, 116 [64] (Gaudron J).

[48] R v Parkes [2003] NSWCCA 12; (2003) 147 A Crim R 450, 462-3 [72]-[76] (Ipp JA); Burrell [2007] NSWCCA 65; (2007) 190 A Crim R 148, 203-5 [240]-[245]; Burrell v The Queen [2009] NSWCCA 163; (2009) 196 A Crim R 199, 240 [190] (Beasley JA, Grove and Howie JJ).

[49] Burrell [2007] NSWCCA 65; (2007) 190 A Crim R 148, 202-3 [237].

[50] R v Milat (1996) (Unreported, Supreme Court of New South Wales, Hunt CJ at CL); Burrell [2007] NSWCCA 65; (2007) 190 A Crim R 148, 202-3 [237], 204 [243].

[51] R v Le [2002] NSWCCA 186; (2002) 54 NSWLR 474, 481 [55], 486 [67] (Heydon JA); Doyle v The Queen [2014] NSWCCA 4 [293]-[294] (Bathurst CJ); Kanaan v The Queen [2006] NSWCCA 109 [83] (Hunt AJA, Buddin and Hoeben JJ).

[52] [2012] HCA 59; (2012) 246 CLR 469 ('Baini').

[53] [2013] VSCA 25; (2013) 38 VR 659, 677-8 [85] (Maxwell P, Weinberg and Priest JJA).

[54] Baini [2012] HCA 59; (2012) 246 CLR 469, 479 [26].

[55] See Kotzmann [1999] VSCA 27; [1999] 2 VR 123, 157 [114]-[115] (Batt JA).

[56] [1998] HCA 2; (1998) 193 CLR 1 ('Palmer').

[57] R v Buckley [2004] VSCA 185; (2004) 10 VR 215, 218 [9] (Nettle JA); R v Bajic [2005] VSCA 158; (2005) 12 VR 155, 169 [73]-[74] (Eames JA).

[58] Palmer [1998] HCA 2; (1998) 193 CLR 1, 7 [7]-[8], 9-10 [10] (Brennan CJ, Gaudron and Gummow JJ); R v Cupid [2004] VSCA 183 [28] (Callaway JA) ('Cupid'); Bajic [2005] VSCA 158; (2005) 12 VR 155, 169-70 [77] (Eames JA).

[59] Cupid [2004] VSCA 183 [28] (citations omitted).

[60] Cf MWJ v The Queen [2005] HCA 74; (2005) 222 ALR 436, 440-1 [18], 449 [41]; R v SWC [2007] VSCA 201; [2007] 175 A Crim R 71, 74 [13].

[61] R v Sharp [1994] 1 QB 261, 273.

[62] See, eg, Yuill v Yuill [1945] 1 All ER 183; Jones v National Coal Board [1957] EWCA Civ 3; [1957] 2 QB 55; R v Perks [1973] Crim LR 388.

[63] [1967] VicRp 23; [1967] VR 205 ('Mawson').

[64] Mawson [1967] VicRp 23; [1967] VR 205, 207-208. See also R v Campbell, Godfrey & Moran [1970] VicRp 16; [1970] VR 120, 127-8 (Winneke CJ, Gowans and Newton JJ); R v Esposito (1998) 45 NSWLR 442, 472 (Wood CJ at CL); R v Lars (1994) 73 A Crim R 91, 125-26 (Wood, Mathews and Badgery-Parker JJ).

[65] Piccolotto v The Queen [2015] VSCA 143 [41]-[43] (Redlich, Santamaria and Beach JJA).

[66] [1997] 1 VR 593 ('Miletic').

[67] See R v Caine (1990) 48 A Crim R 464, 475.

[68] R v Bazley (1986) 21 A Crim R 19, 29.

[69] Kotzmann [1999] VSCA 27; [1999] 2 VR 123, 157 [114] (Batt JA).