Monforte v The Queen [2018] VSCA 277

Court of Appeal (Vic)|2018-11-01|Before: Mr J, Whelan JA, Niall JA

[2018] VSCA 277 Revision Date: 13 November 2018

DPP v Monforte [2016] VCC 1199 (Judge McInerney)

CRIMINAL LAW - Conviction - Application for extension of time in which to file notice of leave to appeal against conviction - Leave refused - Criminal Procedure Act 2009 (Vic) - , considered.

CRIMINAL LAW - Sexual offending - Direction requested in accordance with Liberato v The Queen [1985] HCA 66; (1985) 159 CLR 507 - Direction not given - No danger that jury understood it could properly reach verdict by choosing between belief in either the complainant's or the applicant's account - No miscarriage of justice.

CRIMINAL LAW - Standard of Proof - Direction given in manner approved in R v Dookhea [2017] HCA 36; (2017) 347 ALR 529.

CRIMINAL LAW - Intervention of trial judge during cross-examination of complainant - No rebuke or deprecation of counsel - No prejudice arising.

CRIMINAL LAW - Direction as to demeanour of witness - Permissible to refer to age of child witness - No infringement of Jury Directions Act 2015 (Vic) s 33.

CRIMINAL LAW - Report of trial judge - Argumentative style - Raimondi v The Queen [2013] VSCA 194 considered.

2 I have had the advantage of reading in draft the reasons for judgment of Taylor AJA. I agree that the application for an extension of time should be refused for the reasons that her Honour gives.

3 On 18 May 2016, after a trial lasting 13 days, the applicant was convicted by a jury in the County Court of three charges of indecent act with a child under 16 and six charges of sexual penetration of a child under 16.[1] On 16 August 2016, he was sentenced to a total effective term of imprisonment of six years with a non-parole period of three years.

4 On 7 March 2018 the applicant, pursuant to s 313 of the Criminal Procedure Act 2009, sought an extension of time in which to file notice of application for leave to appeal against conviction. An affidavit of Joseph Ambrose Barravecchio was filed in support of that application.

5 If granted an extension of time, the applicant's revised application for leave to appeal against conviction proposes the following grounds:

A substantial miscarriage of justice occurred as a result of the trial judge's failure to direct the jury properly in accordance with Liberato v The Queen.[2]
A substantial miscarriage of justice occurred as a result of the trial judge's directions to the jury on the criminal standard of proof. In particular, the trial judge erred by:

(a) deprecating, and directing the jury to disregard, the submissions made by defence counsel on the standard of proof; and

(b) directing the jury in terms that failed adequately to assist them in their application of the standard of proof.

2A. A substantial miscarriage of justice was occasioned by the trial judge's repeated interventions during, inter alia, the complainant's cross-examination by defence counsel.

A substantial miscarriage of justice occurred as a result of the prosecutor's submissions, and the trial judge's comments, calculated impermissibly to:

(a) bolster the credibility of the complainant's evidence by reference to her age; and

(b) impugn the Applicant's account to police.

A substantial miscarriage of justice occurred as a consequence of the cumulation of some or all of the errors and matters pleaded in Grounds 1 to 3.

6 For the reasons that follow, I would refuse the application for extension of time to file notice of application for leave to appeal.

8 In October 2010 her father, BP, commenced employment at a restaurant in Rosebud West. The applicant, born 20 December 1957, was related by marriage to one of the part-owners of that restaurant. Through that connection, the applicant befriended BP and his family, including the complainant.

Charge 1 - indecent act with a child under 16

9 Shortly after commencing work at the restaurant, BP asked the applicant if he could repair damage to the walls in BP's family home. On a date between March 2011 and October 2011, the applicant went to that home to inspect the damage. Whilst there, he went to the complainant's bedroom. The complainant was present in the room. The applicant kissed her on the lips. He then left the bedroom briefly before returning and again kissing the complainant on the lips.

Charge 2 - sexual penetration of a child under 16

10 On an occasion when the complainant was 12 years of age, the applicant picked her up from a Safeway supermarket in his car and then parked in a side street. The applicant and the complainant sat in the car kissing and cuddling. The applicant penetrated the complainant's vagina with his finger, moving his finger in and out.

Charge 3 - sexual penetration of a child under 16

11 On another occasion when the complainant was 12 years of age, the applicant again picked her up from a Safeway supermarket in his car and parked at a football oval. The applicant and the complainant were kissing in the car when the applicant lifted the dress of the complainant and put his hand inside her underwear, penetrating her vagina with his finger.

Charge 4 - sexual penetration of a child under 16

12 On another occasion when the complainant was 12 years of age, the applicant arranged with the complainant to collect her from a Safeway supermarket in his car. He drove to the Rye back beach car park. The applicant and complainant were kissing in the car when the applicant unbuttoned the complainant's jeans and put his hand inside her underwear. The applicant penetrated the complainant's vagina with his finger, moving his finger in and out.

Charge 5 - sexual penetration of a child under 16

13 On an occasion between 1 March 2011 and 6 October 2012, when the complainant was aged between 12 and 13 years of age, the applicant arranged to meet the complainant at the Rye front beach. He then drove to the back beach car park with her. The applicant and complainant were kissing in the car when the applicant penetrated the complainant's vagina with his finger.

Charge 6 - indecent act with a child under 16

14 On the same occasion as charge 5, the applicant grabbed the complainant's hand and put it on his penis.

Charge 8 - indecent act with a child under 16

15 On 24 December 2012, when the complainant was 14 years of age, the applicant took her to a house in Rosebud. The applicant told the complainant to lie down on a bed, before removing her pants, underpants and shoes. The applicant and complainant were kissing when the applicant placed the complainant's hand on his penis.

Charge 9 - sexual penetration of a child under 16

16 On the same occasion as charge 8, the applicant touched the complainant's vagina and penetrated it with his finger.

Charge 10 - sexual penetration of a child under 16

17 On the same occasion as charge 8, the applicant told the complainant to get on top of him. The pants of the applicant were partially pulled down when the complainant did so. The applicant grabbed her hips and pushed her up and down, penetrating her vagina with his penis.

18 On 29 May 2013, the complainant gave a statement to police by way of video audio recording of evidence ('VARE'). On 31 May 2013, the complainant made a pretext phone call to the applicant which was recorded by police. On 12 July 2013, the complainant gave a second statement to police by way of VARE.

19 On 16 July 2013, the applicant was arrested and interviewed in relation to the alleged offending. He denied each of the allegations made by the complainant. With respect to charge 10, he stated that he had not had sex for five years, since he had lost the ability to do so as a result of a back injury sustained in a car accident.

20 Given the applicant's claim that he had lacked sexual function for five years, the Crown called Deborah Joy Holmes, who stated that she was in a sexual relationship with the applicant for a three to four month period in 2012.

21 Section 275 of the Criminal Procedure Act establishes that an application for leave to appeal against conviction must be made within 28 days after the day on which the person is sentenced or any extension of that period granted under s 313. While the discretion to be exercised under s 313 is unconstrained and to be decided on a case-by-case basis, this Court has developed principles to guide its proper exercise.

22 Those principles were summarised by Redlich JA in Bowling v The Queen as follows:[3]

[16] The time limits set out in the rules of Court are not to be treated as some empty formality. The rules are intended to ensure finality of the litigation and compliance with time limits will be required in the ordinary case. The applicant must generally place material before the Court which will persuade the Court that there are special and substantial reasons to extend the time.[4]

[17] The longer the time which has elapsed since the expiration of the prescribed period, the more special the circumstances will have to be. Where there is a considerable lapse of time, the practice of the Court is not to grant the extension unless the Court is satisfied that there are such merits in the proposed appeal that it would probably succeed. These considerations have been repeated by this Court on numerous occasions.[5]

[18] An applicant who is dilatory or who has acted so as to indicate that they do not intend to appeal has no entitlement to an expectation that the discretion will be exercised in their favour. Even where the applicant demonstrates that there are substantial reasons for delay, if there has been a significant delay, the grant of an extension of time will ordinarily depend upon the applicant establishing that the decision is so attended by doubt as to render it likely that the appeal will succeed.[6]

23 In Madafferi v The Queen this Court said:[7]

The applicant carries the burden of persuading this Court that an extension of time should be granted. When considering the application, it must be acknowledged that time limits exist for sound reasons. Among those reasons is the desirability of achieving finality in criminal proceedings with reasonable expedition (consistently, of course, with the imperative of correcting substantial miscarriages of justice).[8] The Court has a broad discretion whether to grant an extension of time, scrutiny being invited of the reasons for the delay and the merits of the proposed appeal.[9] Although the exercise of the discretion whether to extend time must always be informed by what the interests of justice require in the particular circumstances of the case,[10] the length of the delay - and the reasons for it[11] - and the prospects of success should the extension be granted,[12] are relevant (but not necessarily decisive). The reasons for the delay and the merits of the proposed appeal will not necessarily be in equipoise.[13] Thus, where the merits of the putative appeal are very good, but the explanation for the delay is poor, the court may incline towards granting an extension. Where the merits of the proposed appeal are very poor, however, even a satisfactory explanation for the delay might not justify an extension.[14] The discretion must, as we have said, be exercised according to the individual facts of each case.[15]

24 In the present case, there is a public interest in maintaining the finality of the statutory time limit given the nature of the offending and its impact upon the victim. And there is a 19 month delay between the imposition of the sentence and the application made under s 313 of the Criminal Procedure Act.

25 The affidavit of Mr Barravecchio explains the substantial delay in the present case in the following manner. In June 2016 the applicant made a complaint to the Legal Services Commissioner regarding the conduct of his trial by his then lawyers. In September 2016, the applicant received advice from (his then) counsel (not trial counsel) that he did not have reasonable prospects of success with respect to an appeal against either conviction or sentence. In December 2016 the applicant approached the 'Bridge of Hope Innocence Initiative' seeking help. Mr Barravecchio deposes that the applicant then became despondent. He currently receives treatment in custody for depression and anxiety. In August 2017, the applicant's daughter approached him seeking assistance to file an application for leave to appeal against conviction. Mr Barravecchio then took a number of steps to gather the necessary material before receiving, on 19 December 2017, advice from counsel that the applicant enjoyed reasonable prospects of success on appeal. That opinion was confirmed by further advice by Queen's Counsel on 12 January 2018. On 31 January 2018, Mr Barravecchio briefed those members of counsel to prepare the application for leave to appeal.

26 In oral submissions before this Court, counsel for the applicant stated that, from the outset, the applicant wished to 'clear his name', but based on legal advice he 'went down the wrong path'. It was asserted that part of the reason for the delay was 'bad advice'. He further submitted that the delay was unsatisfactory, but the merits of the proposed grounds of appeal should favour granting the extension of time.

27 The respondent did not join issue with respect to the delay, but submitted that as the proposed grounds of appeal have no prospect of success, the application for an extension of time should be refused.

28 In my view, the delay has not been satisfactorily explained. But even if I was of a different view, I would still refuse an extension of time as the proposed grounds of appeal are without merit.

29 It is therefore necessary to say something about those grounds.

30 Ground 1 contends that the failure of the trial judge to give a Liberato direction resulted in a substantial miscarriage of justice.

31 The applicant argues that defence counsel sought a Liberato direction under s 12 of the Jury Directions Act 2015, but that the trial judge was not 'enthusiastic' about that request and said, incorrectly, that Liberato directions are not normally given in Victoria. This, it is argued, revealed the mindset of his Honour and contributed to the inadequacy of the direction actually given.

32 The applicant further contends that the request for the Liberato direction was made against the background of the trial judge using the phrase 'black and white' to describe the respective cases of the applicant and the Crown.

33 The impugned direction was in the following terms:

It is clear in this case, in regard to any of these charges, that you could not convict [the applicant] on any of those nine charges unless you were satisfied of the evidence given by the complainant in that regard and that you accepted her evidence.

As the corollary of that is that you must obviously at the same time not accept the comments made in the record of interview by [the applicant], held at the police station, where he denies that he has been involved in any of such matters with the accused. There is no choice in this matter. To convict him you must accept the complainant and you must reject the comments he made in his record of interview. That's the way this - that is this type of case.[16]

34 The applicant contends that this direction, which instructed the jury that it was necessary to both be satisfied of or accept the complainant's evidence, and that they not accept or reject the applicant's comments in his record of interview, heightened the risk that the jury engaged in the process against which the requested Liberato direction would have guarded. His Honour's phrase 'there is no choice in this matter' is characterised by the applicant as 'Delphic'.

35 The applicant submits that while defence counsel did not take exception to the direction given by his Honour, counsel should have done so. Given that the impugned direction concerned a fundamental aspect of the trial, namely the onus of proof, this failure to take exception should not be an insuperable obstacle to success on appeal.

36 The respondent contends that there was no need for a Liberato direction. It submits that when his Honour's charge is considered as a whole, the jury were clearly and repeatedly directed that they could not convict the applicant unless they were satisfied beyond reasonable doubt of the credibility and reliability of the complainant's evidence. Those directions were given in general terms and also with respect to specific directions, such as the direction given as to incriminating conduct.

37 The respondent submits that in the trial the 'battleground was the complainant'. The use of the phrase 'black and white' by the trial judge referred only to the arguments of the parties about the credibility of the complainant. The jury was not invited to determine whether it preferred the evidence of the complainant or the answers of the respondent in the record of interview, but which argument concerning the credibility of the complainant it accepted.

38 The respondent further submits that defence counsel 'faintly pressed' his request for a Liberato direction. And, the fact that defence counsel did not take exception to the impugned direction is telling.

39 The phrase 'black and white' was first used by the learned trial Judge immediately after the opening addresses of the prosecution and defence:

Yes, thank you, [defence counsel]. Members of the jury, we'll have a break. Just a summary, it's pretty obvious that it's black and white for you in this case and the prosecution says to you that these sexual matters took place and you heard that there's a strong denial from [the applicant], denying that there was any relationship. But most importantly, that on these occasions any of the acts ever took place.

So essentially, as detailed then by [defence counsel], you're going to assess very closely, obviously, the credibility of the most important witness of this case, and the reliability of the most important witness in this case, who will be called by the prosecution and that's the girl who is making the allegations. And that's essentially the main witness that you'll be assessing.[17]

40 The phrase was used again by the trial judge on four occasions during the charge. On the first occasion his Honour said:

Now, the submissions made by counsel could not be further apart. To use the phrase 'black and white', I suppose, is an understatement. Mr Doyle, on behalf of the Director, correctly recognised the most important consideration for you to make is of the complainant.[18]

41 The second occasion occurred shortly thereafter, following his Honour's summary of the prosecutor's arguments:

And essentially what Mr Doyle says is that when you look at all of the evidence, even taking in account the criticisms raised by the defence, you should accept the evidence of the complainant in this case as a credible, reliable and a witness that you can be satisfied on to find and convict [the applicant] being satisfied beyond reasonable doubt of the facts so alleged.

When I said we had black and white, the final address of [defence counsel] was the exact opposite of what was put to you by Mr Doyle. Again, fundamentally he concentrated on the creditability of the complainant.[19]

42 The third occasion occurred immediately after his Honour's summary of defence counsel's arguments:

So, essentially when I say to you, they are black and white propositions, such could not be more black and white. One says disregard totally this witness, you could not base anything on her. The prosecution says, yes you can, when you consider all the matters, despite the criticisms, you can conclude beyond reasonable doubt that what she is saying is correct. Well, that is a matter for you members of the jury.[20]

43 The final occasion was at the very end of the charge:

Well, they are the matters as I indicated to you, essentially the addresses were - I have already gone through the addresses from counsel. I have described them as being black and white, depending on which way you want to look at it, I suppose. Certainly the address of Mr Doyle was, to the extent that taking all of the evidence, looking at all the evidence, looking at the reality of this case, you should find the case established beyond reasonable doubt and convict.

[Defence counsel], as I also described to you, addressed you yesterday and went through all of the matters that I have set out, essentially saying that you could not possibly convict on any of these charges. The main witness in this case has no credibility whatsoever. Certainly nowhere to the degree that you need to convict in regard to any of the charges, his client, on the basis that you have to make a determination beyond reasonable doubt.[21]

44 It is clear from these passages and, indeed, from the charge when read as a whole, that his Honour used the phrase 'black and white' to reflect the opposing arguments of counsel about the reliability and credibility of the complainant. The use of the phrase was not an invitation to simply compare the evidence of the complainant with the account of the applicant and decide which one the jury preferred.

45 And the request for the Liberato direction preceded, necessarily, the use of that phrase during the charge. The request was not, therefore, made 'against the background' of its repeated use.

46 The request for a Liberato direction was in the following terms:

[Counsel]: Azzopardi,[22] Liberato.

His Honour: You want that, Azzopardi?

[Counsel]: Yes.

His Honour: I don't know about Liberato. We don't normally give a Liberato direction in this State.

[Counsel] It's not oath on oath but it's record of interview versus oath.

His Honour: Pardon?

[Counsel]: It's not oath on oath bit it's record of interview versus oath.

His Honour: It's not oath on oath and indeed I always make it sure that the jury understand that the record of interview comes before them by way of evidence because it's presented by the Crown.

[Counsel]: Yes.

47 It is apparent that the request for the Liberato direction was done with unusual brevity. Irrespective of the accuracy of his Honour's observation that a Liberato direction is not normally given in Victoria, I am of the view that his Honour's observations were in the nature of an invitation to counsel to develop an argument why a Liberato direction was warranted. Counsel either did not appreciate or accept that invitation.

48 Nonetheless counsel did, pursuant to s 12 of the Jury Directions Act, make a request. Accordingly, under s 14 of that Act, the trial judge was required to give the direction unless there were good reasons for not doing so.

49 In my view, there were good reasons. That they were not articulated by his Honour in the exchange is explicable by the manner in which the request for the Liberato direction was made. As already stated, the entire focus of the trial had concerned the reliability and credibility of the complainant and there was no danger that the jury could have apprehended that their task was reduced to choosing between the evidence of the complainant and the record of interview of the applicant. And, his Honour gave clear and repeated directions as to the burden and standard of proof. There is no basis for inferring that the jury had any misapprehension of the type a Liberato direction is designed to dispel.

50 Further, the impugned direction was a small portion of a charge in which his Honour repeatedly and correctly directed the jury about the onus and standard of proof, particularly that the jury could not convict the applicant unless they accepted the credibility and reliability of the complainant beyond reasonable doubt. Although this was a case in which the evidence of the complainant was critical and fundamentally conflicted with the version of events stated by the applicant in his record of interview, the charge, considered as a whole, did not expressly or implicitly create an impression that the verdict could be properly reached by choosing between belief in either the complainant's or the applicant's account. Further the charge did not suggest that the jury's assessment of the applicant would in any way relieve the Crown of the onus to establish guilt beyond reasonable doubt.

51 As stated by Redlich JA in R v KDY,[23] a Liberato direction is not required as a matter of law, but is appropriate

where there is a reasonable likelihood that the jury would otherwise obtain the impression that the evidence on which the accused relies can give rise to a reasonable doubt to his guilt only if they believe that evidence to be true.' Both dissenting judgments in Liberato emphasised that the answer to such a question must be accompanied by clear and unequivocal direction about the criminal onus and standard of proof so that there is no risk that the jury will treat the making of a 'choice' between the witnesses as the real question or as concluding the issue whether the prosecution has proved beyond reasonable doubt the issues which it bears the onus of proving.[24]

52 The use of the phrase 'there is no choice in this matter' by his Honour in the impugned direction was an instruction to the jury that they could not simply choose between the evidence of the complainant and the answers of the applicant given in his record of interview.

53 In the context of the charge when considered as a whole, the impugned direction contains no error.

54 Accordingly, this proposed ground of appeal enjoys no prospect of success.

55 Ground two contends that the trial judge's directions to the jury on the standard of proof resulted in a substantial miscarriage of justice.

56 The applicant contends that his Honour deprecated the submissions made to the jury by defence counsel on the standard of proof and directed them to disregard those submissions. The applicant further contends that his Honour directed the jury in terms that failed to adequately assist them in their application of the standard of proof.

57 In his closing address, defence counsel introduced a set of cascading states of mind with respect to the onus of proof. He said:

Another general concept, beyond reasonable doubt, very important words, members of the jury. Highest standard known to our law. Different to the civil standard, which is on the balance of probabilities, working out things like car accidents, you know, who is at fault in the car accident. Fifty one percent, forty nine percent, that's good enough for a civil case in the circumstances.

Let me put it this way. I'll put no too fine a point on it, members of the jury. If you thought that at the end of your deliberations, you thought the accused man might be guilty, the prosecution haven't proven their case. At the end of your deliberations you were suspicious that the accused man was guilty of these offences, then they have not satisfied you, members of the jury. If you thought at the end of your deliberations, you thought that an accused had possibly committed these offences then again the Crown haven't satisfied you, members of the jury. And if you thought at the end of your deliberations, you thought the accused was even - and I don't even suggest you'd get anywhere near it in this case - probably guilty, the Crown still haven't satisfied you. That's the standard of beyond reasonable doubt. It's beyond probable, possible, beyond all those states of mind, beyond might, probably, possibly, suspicious, all of those things.

58 The applicant submits that this explanation of the standard of proof is not only entirely unobjectionable and commonplace, but sanctioned by the High Court in R v Dookhea.[25]

59 The applicant argues that there was no occasion for the trial judge to direct the jury to disregard defence counsel's exposition on the gradations of standards of proof and thereby suggest to the jury that defence counsel had done something wrong. Further, it is argued that the trial judge denied the jury the benefit of submissions that could only have assisted them and his own directions fell short of 'clear and unequivocal directions about the ... standard of proof'.[26]

60 His Honour's direction was in the following terms:

Fundamental, as I said, your task is the basis of our criminal system. You, I, [the applicant], each of counsel are presumed in our system of law to be innocent of crime. The presumption of innocence applies to every member of our community. It is only rebutted - and in this case, is only rebutted in regard to [the applicant] in regard to any of these nine charges you are considering - when you that is the jury determine that you are satisfied beyond reasonable doubt that the prosecution has proved the case it brings against [the applicant]. That is the only time that the presumption of innocence that applies to all of us, in this particular case, against [the applicant], can be rebutted.

The onus of rebutting that proposition is upon Mr Doyle, representing the director. No one else, no one else in our system bears onus of proof. The onus of proof never moves. In our system, the director, for whom Mr Doyle appears, and you would think in our system that is fair enough. You come into court and you say this man has committed a crime, you prove it, and you prove it beyond reasonable doubt.

Now, those words mean what they say. You must be satisfied beyond reasonable doubt before you can convict [the applicant] on any of these nine charges. That concept has been applied by juries in this particular court for probably the last 15 years of its existence and in Victoria since colonial times. In criminal cases, it is the highest standard of proof that exists in our system.

You have had mentioned to you by counsel, an alternative standard, which is the civil standard, beyond reasonable doubt, and that is best represented to juries by the scales of justice. And in a civil case, all you have to do is tip the scales of justice. That does not apply here. You must be satisfied beyond reasonable doubt in regard to each of these charges to convict [the applicant]. There is no better explanation that I can give you of that concept but to tell you it means what it says.

Defence counsel perhaps put to you a few gradations of what it may mean. Can I ask you, when you are considering this concept, you disregard any gradation. You must be satisfied beyond reasonable doubt in this case, to the highest standard possible, which is the standard in the criminal courts: beyond reasonable doubt.

61 The respondent submits that his Honour gave the jury a conventional direction as to the meaning of beyond reasonable doubt. He directed the jury that it was the highest standard known to law and contrasted it with the civil standard of proof. This was the ordinary practice in Victoria which was approved in Dookhea.

62 The respondent further submits that the language used by defence counsel in his address was not the same as that found in either s 64 of the Jury Directions Act or that used in Dookhea. It was open to the trial judge to instruct the jury to disregard gradation. The manner in which his Honour did so was neither disparaging of counsel nor intimated that counsel had acted improperly.

as authority stands, it is generally speaking unwise for a trial judge to attempt any explication of the concept of reasonable doubt beyond observing that the expression means what it says and that it is for the jury to decide whether they are left with a reasonable doubt (and in certain circumstances explaining that a reasonable doubt does not include fanciful possibilities[27]), the practice ordinarily followed in Victoria, as it was in this case, and often followed in New South Wales, includes contrasting the standard of proof beyond reasonable doubt with the lower civil standard of proof on the balance of probabilities.[28] That practice is to be encouraged. It is an effective means of conveying to a jury that being satisfied of guilt beyond reasonable doubt does not simply mean concluding that the accused may have committed the offence charged or even that it is more likely than not that the accused committed the offence charged. What is required is a much higher standard of satisfaction, the highest known to the law: proof beyond reasonable doubt.[29]

65 On the other hand, during his closing address defence counsel introduced a sliding scale of proof. Without concluding that it is not open to counsel when addressing a jury to expand upon the onus of proof, in this instance the manner in which defence counsel did so was apt to be confusing. Counsel's reference to 'beyond probable, possible, beyond all those states of mind' posed the risk of unnecessary distraction of the jury.

66 That was clearly the view of his Honour. Immediately after the conclusion of the defence address his Honour raised the issue of the gradations given by defence counsel. His Honour said:

There's only one standard: beyond reasonable doubt. It means what it says. When you start talking about 'beyond probability' et cetera, that's the sort of thing we talk about in the alternate charge, if it's called for. You can talk about all these other aspects gradations when you're talking about other matters, but when you talk specifically about the standard of proof, it's most improper, in my view, for you to be venturing into that task.

67 Defence counsel submitted that the propositions he put made sense, to which his Honour replied:

Doesn't matter whether they make sense. It's not for you to be putting them. Quite improper to be bringing those things up when you're talking to a jury about the standard of proof that applies in a criminal matter. There's one standard, it's beyond reasonable doubt, and they mean exactly what they say.

68 The portion of his Honour's charge in which he instructed the jury to put aside gradation when considering the standard of proof was, with respect to defence counsel, said with a very light touch. It is simply not possible to read that passage as being deprecating of counsel or to suggest that counsel had done something wrong.

69 Accordingly, this proposed ground of appeal lacks merit.

70 The applicant contends that, particularly during defence counsel's cross examination of the complainant, the trial judge intervened repeatedly in a manner that was critical of the conduct of defence counsel. He submits that the number and nature of these interjections was calculated to undermine the credibility of defence counsel and, as a result, the applicant's case. The applicant detailed some 10 or so occasions on which the interventions took place. And the applicant contrasted these interventions with those made with respect to the prosecutor, both in number and nature.

71 The applicant characterises the failure of defence counsel to seek a discharge of jury on this basis as regrettable, but not one which represents an insurmountable obstacle to success on appeal.

72 The applicant relies upon the following passage of his Honour's charge to the jury as an 'implied admission' that his treatment of defence counsel was unfair or improper. His Honour said:

As this matter has progressed - a little over a week now - we are all modern new-age Judges and we talk well and we never are rude to people but who knows, you might have felt in my response to one or other of counsel at any time, I might not have been new-age Judge. If I was not, then that should be disregarded by you. I have nothing to do with you making a determination. It would be quite wrong of you to think that by any comment I make I am reflecting on the case or I am suggesting that you make a determination one way or other. I am totally irrelevant to your decision. Yours, as I will tell you, is a totally dispassionate, intellectual task.

73 The respondent submits that the interventions of his Honour were designed to assist with the clarity of the evidence. It was therefore appropriate for him to make such interventions, particularly with respect to the complainant who was a child witness. Further, when his Honour did intervene his manner was gentle and respectful.

74 The respondent further submits that despite the argument now made, defence counsel perceived some sensitivity about his Honour's intervention only on a single occasion. Defence counsel had sought for that single passage to be excised from the special hearing played to the jury. It was.

75 The interventions about which complaint is made occurred during the special hearing. It is instructive to examine a number of examples.

76 At one stage the questioning and intervention proceeded as follows:

I want to put this to you, that what you told the police about going to stay with [the applicant] and ending up having sex at his daughter's house, that wasn't right was it? - - - It was right. That's what happened.

I want to ask you about a number of other matters. On 15 October 2012, so that was a few months before, you were speaking to a police officer on the day that you said that you were physically mistreated by your father? - - - Yes.

Is that right? - - - Yes.

You were making an allegation about being physically mistreated by your father; is that right? - - - Yes.

You certainly at that stage, didn't want to go back to the family home at that time? - - - Yes.

His Honour: Wait on, just by way of introduction to the ― perhaps you'd better introduce this so the jury know where you are. So we've been having questions as to the end of December and you're now taking us back to October 12, is that right?

[Counsel]: That's right.

His Honour: Is that right?

[Counsel]: Yes October of 2012.

His Honour: Right and this is a situation ― just so the witness understands, you're going to ask her about questions of some issue with her father; is that correct?

[Counsel]: I'm going to ask her what she said about the accused man on 15 October.

His Honour: The accused man?

[Counsel]: The accused man, on 15 October 2012.

His Honour: Again, if you're going to put a matter of inconsistency, it has to be done in an appropriate way.

77 At that stage there was a break in proceedings and, in the absence of the jury, an exchange occurred between defence counsel and the trial judge. The applicant seeks to characterise that exchange as 'castigation' of defence counsel. His Honour told defence counsel that particularly in a special hearing with an underage witness, it was important that everyone understood the chronology of his questioning. His Honour told defence counsel that he didn't follow where defence counsel had been going and reminded counsel of the correct way to put a prior inconsistent statement.

78 A further example of judicial intervention was in the following terms:

I'll read from the transcript and we'll make sure that this is absolutely clear for you, all right [name of complainant]? - - - Okay.

I'm asking you about the answers you gave yesterday, all right? - - - Okay.

I asked you, 'Now I'm just asking you about' - this is a question that I'd asked you. 'I'm just asking you about whether those words were the words that you said to Ms Abrahams or not.' Sorry, I'll just go back up. I've got a bit further forward. I put this to you. 'You stated these words to Ms Abrahams, "I lied to the cops. Jack did not bash me and he tried to protect me."' Now I asked you that question yesterday didn't I? - - - Yes.

Yes and the prosecutor corrected what I'd said in the question and it was, 'he just tried to protect me.' You had the prosecutor make that amendment to my question yesterday? - - - Yes.

I put this question to you, 'now those are words and I'm just asking you about whether the words he said to Ms Abrahams or not' ― I asked you that question yesterday? - - - Yes.

And your response was, 'No I didn't say that to her.' Those were the words you said yesterday? - - - Yes.

We can take from that can't we [name of complainant] that I put to you exactly the same question yesterday and yesterday you stated that you didn't say those words to Ms Abrahams. That's right isn't it? - - - Yes.

Today you say you did say those words to Ms Abrahams? - - - Um, I'm just trying to think - - -

I'm just asking you about the difference now [name of complainant].

His Honour: Just let the witness think. Do you understand what's been put to you? --- Yes. Um, I'm pretty sure I did say that to her. Um about Jack Potter.

[Counsel]: So when you said yesterday that you didn't say those words to Michaela Abrahams, that was wrong. That's right isn't it? --- Yes_._

His Honour: That's not my recollection. I might be wrong to but that's why ― I haven't got the transcript in front of me. Can you print the transcript out me, those last couple of pages? My notes are that she did speak to Michaela and told him, 'I did not bash him to protect her.' That's my notes. I don't know whether it's necessarily helping the jury to be quite blunt, but anyway. It's hard enough to understand background when you're going over two lots of transcript with a young girl as to what she said yesterday, over the same material. It's somewhat difficult but we'll try and get through it. Just the cross-examination from ― all right.

[Counsel]: Yes, yes. Perhaps just do it in order so that she understands, [defence counsel].

[Counsel]: I'll take you back a bit then. Yes, Your Honour. (To witness) I'll take you back a bit, miss [name of complainant].

His Honour: Well, look, if you do it from today, that's probably the easiest way isn't it? (To witness) Today, you've told the jury that when you spoke to Michaela Abrahams, you said to her 'I lied to the cops. Jack did not bash me, he was trying to protect me.' Right? - - - Yep.

Now, it's being put to by [defence counsel] that yesterday, when you were asked about that, you said that you didn't tell Michaela that? - - - Um.

What's the position? - - - Well, how can I say ― um, I did say that in the first lot but then ― oh, wait. Yet, no. I've always said that, that he was always - - -

Always said what? - - - Um, that he was just ― he didn't bash me, he was just trying to protect me.

And did you say that to Michaela? - - - Yes.

Right. Now, what you're being asked now is yesterday, you gave evidence that you didn't say that to her? - - - I was confused.

So you're saying that you'd always said that it to her ― the Department ― that he didn't hit you and that you had lied to the police? - - - Yes.

Yes. That probably clarifies it, doesn't it?

79 The italicised portion of that extract was the intervention by his Honour that defence counsel successfully sought to have excised from the special hearing before it was played to the jury.

80 As these two examples illustrate, the interventions by his Honour were designed to enhance the clarity of the evidence elicited. Primarily, his Honour intervened with respect to matters in which the complainant was challenged by prior inconsistent statements and also with respect to the timeframe of the topic under cross-examination.

81 Having watched the video recording of the special hearing, it is also apparent that the demeanour of the trial judge during these interventions was patient and calm. There was nothing in his Honour's manner to suggest that he was rebuking or demeaning defence counsel. In this respect, it is telling that defence counsel sought only one intervention to be excluded from the version of the special hearing played to the jury.

82 Further, where he thought it necessary to do so, his Honour also intervened with respect to the prosecutor's approach to witnesses. And, his Honour's comment to the jury about perhaps not having been a 'new-age judge' was expressly made with respect to both counsel.

83 Accordingly, his Honour's treatment of defence counsel caused no prejudice to the applicant and this proposed ground of appeal cannot be sustained.

84 The applicant contends that the trial judge made comments which were calculated, impermissibly, to both bolster the credibility of the complainant's evidence and impugn the applicant's account to police.

85 The applicant refers to three passages during his Honour's charge where it is submitted that the reference to the age of the complainant was an attempt to bolster or rehabilitate the credibility of the complainant. The applicant also refers to three occasions during the charge where it is submitted that his Honour descended into the arena by giving an unbalanced remark or by lending his imprimatur to the submissions advanced by the prosecutor.

86 The applicant submits that the necessary corollary of s 33(c) of the Jury Directions Act must be that a trial judge or trial counsel is precluded from suggesting in any way that the evidence of a child is more reliable solely on account of the child's age.

87 The respondent submits that his Honour referred to the age of the complainant in the context of the assessment of her demeanour as a witness and not with respect to whether, as a child, she was more or less credible or reliable. The respondent submits that there was nothing either unbalanced or unfair in the trial judge doing so.

88 It is necessary to set out the challenged passages.

89 The first passage where it was said that his Honour attempted to bolster or rehabilitate the credibility of the complainant was in the following terms:

Now, [defence counsel] said to you in his submission that you should look closely at this witness in particular, the complainant's demeanour. He said to you he thought in fact she was sniggering at some stage. Now, I do not know what stage he meant but you should remember, the issue of demeanour one has to be very careful about, in considering a person, and in particular in this you are considering a young girl. When she gave her VARE, or her initial interview, she was aged only 14, and she still only 17 when she has given the evidence to you. And you have to, it seems to me, take all those circumstances into account when you are considering [defence counsel's] criticism about her demeanour.

Mr Doyle, on behalf of the Director, correctly recognised the most important consideration for you to make is of the complainant. He asks you to look at her initial statement made when she was 14 and submitted to you that there is no acting or lying here. He asks you to not only consider her evidence then, but see how she reacted in cross-examination, which he submitted was a lengthy cross-examination.

And in that regard, to take into account the various things I have just said to you about her age and the importance of accepting her credibility and the allegations made against her and how she handled herself when she was responding to such allegations. And he said that as a response of that assessment, you should accept her as a reliable witness.

Also, in regard to lies, he makes the point that the lie that he does rely on in regard to these matters is when she was asked about these comments to the police and the DHS after the 24th incident, she denied that she ever said that she went to the beach, that she had had two days at the beach, 'I didn't make that statement'. And he puts that as a lie to you that she clearly did tell, because it is in the Department records, it was a lie and he says there is another lie told directly to you.

But of course in that regard, the prosecution has said to you, 'You got to remember, here is a young girl, she made some statements in her VARE when she was 14, here she is making at 17, is it a deliberate lie or is it just as she said she's got confused and didn't remember her earlier statement'.

92 The first passage where it is said that his Honour descended into the arena was in the following terms:

Now, necessarily in considering the evidence which applies to the charges, that will involve you in a process of discernment in regard to a lot of things you have heard in this case. If we take the [surname] family, for example, there appears to have been, in the upbringing of this young girl, a myriad of issues. The allegations of other alleged sexual offences against her, the allegations of physical assaults upon her, would not normally come before you. You are considering only the allegations against [the applicant]. That is what you are considering.

Equally, as I said to you, DHS material would not normally come before you, because it is privileged with a child and there are obligations upon the Department to look after a child and that material is private and privileged between the Department and the child. However, in the record of interview there were matters that you have heard raised by [the applicant] as to his role and as to certain matters that either he has been told or his carer Mary has been told. And consistent with that, his counsel has been allowed to explore these issues.

93 The second passage was in the following terms (after his Honour had detailed quite extensively defence counsel's arguments about the provable lies told by the complainant):

Now, these are matters for you to consider and are very important criticisms. The only point I would make I suppose as comment, they are not evidence on oath, they are evidence to the DHS and the police and they are said in a context, and again, what is her answer to these matters, they are said in a context, 'I am hiding the relationship'. And that is what the prosecution asked you to consider in regard to that.

94 The third passage was in the following terms (after his Honour had detailed the Crown argument with respect to the pretext telephone call):

Now, equally, [defence counsel] says to you, 'well, look at the whole tape'. In that tape, he says, "'I've done nothing wrong, we have done nothing wrong'". Well, I suppose, that depends on what you view as being wrong. You might view having a romantic relationship with a young girl not as being wrong. It is a question for you, members of the jury, how you interpret it.

95 Section 33 of the Jury Directions Act prohibits either a trial judge or trial counsel from suggesting to a jury four things. First, that children as a class are unreliable witnesses. Second, that the evidence of children as a class is inherently less credible or reliable, or requires more careful scrutiny, than the evidence of adults. Third, that a particular child's evidence is unreliable solely on account of the age of the child. Fourth, that it would be dangerous to convict on the uncorroborated evidence of a witness because that witness is a child.

96 There is nothing in that section that prohibits counsel or a judge suggesting to a jury that a child's age should be taken into account in their assessment of that child as a witness. It is simply not the case that a witness who is a child is excluded from the general direction given to a jury as to the care needed when considering the manner in which a witness gave his or her evidence. The standard direction refers in terms to witnesses having, amongst other things, different abilities and life experiences.

97 In any event, his Honour did not suggest that the complainant was more reliable or credible because of her age. Nor did he give unbalanced remarks or lend his imprimatur to submissions made by the prosecutor.

98 The first two passages about which complaint is made fell clearly into the category of the general warning as to a witness's manner. The third passage complained of does nothing more than summarise the arguments of each party. The fourth passage refers to the context of factual matters before the jury about which his Honour makes no comment. The fifth passage again contrasts the respective arguments of the parties about a matter in issue. The fact that his Honour makes a comment does not cloak the prosecutor's argument with the authority of the judge. His Honour had earlier and correctly directed the jury that any comment he might make was not a suggestion to the jury to make a determination one way or another. The final passage arose as a result of the request by defence counsel for a redirection and in terms directs the jury that the interpretation of the evidence is a matter for them.

99 Accordingly, this proposed ground of appeal is without merit.

100 The applicant contends that if the matters relied upon with respect to grounds 1 to 3 do not result in a substantial miscarriage of justice, collectively they do so.[30]

101 The respondent referred to the difficulty of this catchall ground and noted that this Court has held that when it concludes 'that the individual grounds of appeal are not made out, an aggregate of errors ground advanced in the alternative will almost inevitably fail'.[31]

102 The analysis above shows that each proposed ground considered individually is devoid of merit. It is axiomatic that, when considered collectively, that position is not altered.

103 In this matter the Court received a report from the trial judge pursuant to s 316 of the Criminal Procedure Act.

104 Counsel for the applicant submits that the report strengthened the application before the Court in so far as it revealed that the trial judge was defensive of his position and referred in terms to the written submissions of the respondent filed before this court. In short, it is submitted that as the report revealed the partiality of the trial judge this Court should take that fact into account.

105 The respondent made no submissions with respect to the relevance of the trial judges report, stating that it didn't add anything to what was in the material.

106 In this matter I have not had regard to the report. Nonetheless I observe that it is unhelpful to have reports written in an argumentative style. As was observed by Redlich JA in Raimondi v The Queen:

As I said in G A P v The Queen,[32] where a trial judge has expressed an opinion on a matter on which the appellate court is in as good a position as the trial judge to form an opinion, the trial judge's opinion should be given little or no weight by the appellate court.[33] Further it was not appropriate that the trial judge express an opinion on the very issues that it was for this court to resolve.[34]

107 For the foregoing reasons, the application for an extension of time must be refused.

[1] The applicant was acquitted, by direction, of one charge (charge 7) of indecent act with a child under 16.

[3] [2013] VSCA 87 [16]-[18] ('Bowling') (citations in original).

[4] See R v O'Keefe [1979] VicRp 1; [1979] VR 1, 4; R v Darby (Unreported, Supreme Court of Victoria, Gowans, Crockett and Lush JJ, 2 May 1975).

[5] R v Davis [2003] VSCA 173; (2003) 6 VR 538; DPP v Hayden [2006] VSCA 152; R v Croft [2008] VSCA 61.

[6] R v Davis [2003] VSCA 173; (2003) 6 VR 538, 539 [6] (Winneke ACJ); R v Croft [2008] VSCA 61 [21] (Kellam JA).

[7] [2017] VSCA 302 [11] ('Madafferi') (citations in original).

[8] Jopar v The Queen [2013] VSCA 83; (2013) 44 VR 695, 707 [59] (Priest JA) ('Jopar').

[10] Kentwell v The Queen [2014] HCA 37; (2014) 252 CLR 601, 613 [30] (French CJ, Hayne, Bell and Keane JJ).

[12] Ibid 614 [33]. See also Rapovski v The Queen [2017] VSCA 175 [25] (Priest JA).

[16] Applicant, 'Applicant's Revised Written Case (Conviction)', 17 September 2018 (emphasis added).

[17] Transcript of Proceedings (2-6, 9-13, 16 and 17 May 2016) 473 ('T').

[22] A reference to Azzopardi v The Queen [2001] HCA 25; (2001) 205 CLR 50 (citation added).

[24] Ibid 279 [26] (citations omitted).

[25] [2017] HCA 36; (2017) 347 ALR 529, 544 [41] ('Dookhea').

[27] Green v the Queen [1971] HCA 55; (1971) 126 CLR 28, 33.

[28] See, eg, R v Neilan [1992] VicRp 5; [1992] 1 VR 57, 71; R v Chatzidimitrou [2000] VSCA 91; (2000) 1 VR 493, 495 [5], 496-7 [8]-[9] (Phillips JA), 509 [46] (Cummins AJA); R v Hettiarachchi [2009] VSCA 270 [59], [61].

[29] Dookhea [2017] HCA 36; (2017) 347 ALR 529, 544 [41] (citations in original).

[30] Citing Davis (a pseudonym) v The Queen (2016) 262 A Crim R 492, 529 [136].

[31] Meyer (a pseudonym) v The Queen [2018] VSCA 140 [18].

[32] [2011] VSCA 173 (Neave JA, Hansen JA agreeing).

[34] [2013] VSCA 194 [59] (citations in original).

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