Nenna (a pseudonym) v The Queen [2021] VSCA 183

1 On 25 July 2019, following a nine day trial in the County Court, the applicant was found guilty of one charge of committing an indecent act with or in the presence of a child under 16 (charge 1) and three charges of incest (charges 2, 3 and 4). On 13 September 2019, following a plea hearing on 3 September 2019, the applicant was sentenced to a total effective sentence of 18 years, with a non-parole period of 14 years.[2]

2 The applicant now seeks leave to appeal against conviction and sentence. His proposed grounds of appeal against conviction are as follows:

1. A substantial miscarriage of justice was occasioned by the trial judge's directions or comments to the jury that:

(a) it is usual in cases such as the applicant's that there are no eyewitnesses to any of the sexual acts;

(b) the absence of eyewitnesses in the applicant's case was not a particularly remarkable or unusual factor.

1. A substantial miscarriage of justice was occasioned by the trial judge's endorsement during her charge, of the complainant's 'courage' in coming forth and disclosing her sexual abuse.
2. A substantial miscarriage of justice occurred as a result of:

(a) the judge's adoption of the terms 'disclosure' and 'disclose' in preference to the terms 'complaint' and 'complain'; and

(b) the judge's alignment with the complainant.

3 In advancing the first two of his proposed grounds of appeal, the applicant placed considerable reliance upon the High Court's decision in McKell v The Queen[3] concerning the 'right' of a trial judge to comment on disputed questions of fact.[4] Before examining McKell, however, it is necessary to summarise the Crown case and give a brief description of the trial.

4 The complainant is the applicant's daughter. She was born in Africa in July 1992. The applicant's relationship with the complainant's mother was of short duration. The complainant was placed in the care of various relatives until, at the age of seven, the applicant assumed care of her. The Crown case was that, when the complainant was about nine, and after a woman with whom the applicant had been living moved out, the applicant began to indecently touch and then sexually penetrate the complainant.

5 The applicant and the complainant arrived in Australia in March 2008, when the complainant was 15. On arrival, they lived with the applicant's then partner, Linda Sefu.[5]

6 Within a week of their arrival, the applicant asked Ms Sefu to take the complainant for a pregnancy test. The test confirmed that she was pregnant. The complainant told Ms Sefu that the applicant had been having sex with her since she was a child, and that he was responsible for the pregnancy. The applicant arranged for the complainant to have the pregnancy terminated.

7 Not long after the termination, the applicant discovered that the complainant had told Ms Sefu that he had been sexually abusing her and that he was responsible for the pregnancy. The Crown case was that the applicant berated the complainant for telling Ms Sefu, and said that he would rape her 'for real'. He then exposed his erect penis, grabbed her and pulled down her underwear. The complainant struggled, resisted and tried to run away. The applicant chased her and she fell, hurting her ankle. The applicant did not proceed to rape the complainant, as he had threatened (charge 1 - indecent act with child under 16).

8 In 2009, a pregnancy test confirmed that the complainant was again pregnant. The Crown alleged that the applicant directed the complainant to invite a young man, SA, to their house and have unprotected sex with him, so that he could be blamed for the pregnancy. By arrangement, the applicant walked in and caught them having sex. SA soon left the house. The applicant then penetrated the complainant's vagina with his penis (charge 2 - incest). The complainant miscarried soon after.

9 In 2010, the complainant went to Sydney for a short time to stay with some friends. On her return, the applicant accused her of having had sex with a young man who was part of the family group that she was staying with, and demanded that she prove to him that she had not. The Crown alleged that the applicant then penetrated the complainant's vagina with his penis (charge 3 - incest).

10 The complainant became pregnant again. The applicant directed the complainant to have the pregnancy terminated. The complainant went on her own to the clinic where the termination was to be performed.

11 When she turned 18, the applicant took the complainant to a nightclub. She had not previously drunk alcohol. The applicant gave her several alcoholic drinks. The complainant became intoxicated. The Crown case was that, when they arrived home, the applicant took the complainant to his bedroom, undressed her, and penetrated her vagina with his penis (charge 4 - incest).

12 In 2012, the relationship between the applicant and the complainant deteriorated. The applicant collected together the complainant's possessions and clothing. He took them out of the house, put them on the nature strip, and told her to leave home.

13 The pastor at the complainant's church, FB, heard that she had been told to leave home and was showing signs of having been physically abused. He spoke to her. The complainant told him that she had been physically and sexually abused by the applicant. Upon being told this, FB took the complainant to the Knox police station where she ultimately made a statement detailing the abuse.

14 On 12 September 2013, about 12 months after the complainant made her statement to police, the applicant was interviewed. He denied any sexual misconduct. In May 2014, the applicant met the complainant. She had been provided with a recording device by police and recorded the conversation ('the recorded conversation'). The complainant confronted the applicant with being responsible for having made her pregnant. He did not deny that he had done so, although he made no admissions of any sexual contact with the complainant.

15 The principal witness at trial was the complainant. She gave evidence in conformity with the Crown case. The complainant was cross-examined, at some length, over the course of two days. It was put to her that none of the sexual misconduct she described occurred, and that the offences she described simply did not happen. At trial, the credibility of the complainant's evidence was very much a live issue. As the prosecutor described it in his final address to the jury, the cross-examination 'was a sustained attack on [the complainant's] credit'. In the course of the cross-examination, it was repeatedly put to the complainant that she was lying.

16 A significant portion of the cross-examination of the complainant dealt with the relationship that she had with the applicant. This included various disputes they had had, including an occasion when the applicant had told the complainant that she was 'not [his] daughter anymore'. The complainant agreed that by the time the applicant 'had kicked [her] out of the house', their relationship had broken down entirely. She denied, however, that she was a person who was 'determined to punish' the applicant or that she had lied when she recounted the applicant's sexual offending against her.

17 Having regard to the terms of proposed ground 1, it is necessary to make reference to one further aspect of the complainant's evidence. The complainant gave context evidence of uncharged acts. She said that the applicant started having sex with her when they slept in the same bed in Africa. She said she was about seven when this started. In her evidence-in-chief she said that she and her father lived in the same house 'with lots and lots of people' (at least 15 uncles and aunts, and maybe double that number of cousins). She described their sleeping arrangements as follows:

Well, I know some of my uncles - sorry, I know some of my uncles slept in one room, and my aunties and the kids slept in another room, and then some slept in the living room except in the corners of the house. My dad and I slept in one corner on a mattress.

18 The complainant's evidence was that it was on this mattress that the applicant sexually penetrated her on a regular basis, both anally and vaginally.

19 On the topic of whether the sexual abuse perpetrated by the applicant on the complainant in Africa occurred in the presence of other people, the complainant was asked and answered the following questions:

What I want to suggest to you is that there were always other people in the room that you slept in with your father on the mattress. What do you say about that?---That's true but they weren't on the same mattress of my dad [sic]. They had their own corners. It was far away enough that there was privacy. Nobody was in each other's face, sorry.

What I'm suggesting to you is that you were sleeping in a room on a mattress and that there were other people, large numbers of people also sleeping in that room?---Yes that's what I said.

20 As to the balance of the evidence given at trial, in addition to the complainant, the prosecution called SA, FB, two friends of the complainant to whom she had made complaints about the applicant abusing her (CP and PR) and the informant, Detective Sergeant Clover. By agreement, the evidence of Ms Sefu, and Ms Sefu's sister, KT, was read to the jury; as was some medical evidence, described during the course of the trial as 'the agreed medical evidence'. This evidence may be briefly summarised as follows.

21 SA gave evidence that he first met the complainant in Africa sometime between 2000 and 2005. He met up with her again in Australia in around 2008. On an occasion in 2008 or 2009, the complainant rang him and invited him over - telling him that her father would be in Adelaide. SA accepted the invitation. He and the complainant had lunch. Later they had sexual intercourse in the complainant's bedroom, using a condom (we interpolate that if SA's evidence about using a condom is accepted then, as was pointed out by defence counsel in his final address to the jury, this was inconsistent with the Crown's case that sexual intercourse was supposed to occur without a condom[6] so that SA could be identified as the father of the complainant's pregnancy). In any event, when SA and the complainant finished having intercourse, SA noticed the applicant standing in the doorway. There was a subsequent discussion between them, and SA left shortly thereafter. SA described the applicant's mood at the time as 'calm'.

22 CP gave evidence that she met the complainant in February 2011 when they attended the same college. They became friends. After a time, the complainant told her that her father was having sex with her. The complainant also told her that she had become pregnant to her father and that her father had accused her of sleeping around and that was the reason why she was pregnant. She told CP that her father punished her for that, but that she knew 'without a doubt' that it was the applicant's child.

23 PR gave evidence that she met the complainant in a 'gap year course several years ago'. They became very close. The complainant told her that, before she came to Australia, her father had raped her and made her pregnant. PR also said that the complainant told her that there was a lot of abuse, and that her father had beaten her until she agreed to have an abortion.

24 FB gave evidence that the complainant had been attending church for about 12 months when, in September 2012, he had a conversation with her about her family life. About a week earlier, FB had observed the complainant to have a black eye. As he put it, 'we felt prompted to ask if there was any abuse going on'. The complainant told him that there was physical and verbal abuse. As the conversation progressed, she said that there was also sexual abuse. FB said the complainant told him that her father had been having sex with her since she was very young. She also told him that she had become pregnant to her father when she was 16, but that she had lied to DHS about whose baby it was. FB then accompanied the complainant to the Knox police station to report the matter.

25 Detective Sergeant Clover gave evidence that the complainant first attended the Knox police station in September 2012, and subsequently made a statement to police. In September 2013, the applicant was brought in for an interview. During the course of Detective Sergeant Clover's evidence, the applicant's record of interview of 12 September 2013, in which he denied any sexual contact with the complainant, was played to the jury. In cross-examination, Detective Sergeant Clover gave evidence that he had performed a search of the LEAP database, which revealed that the applicant had never been charged with a criminal offence. A search of police notes revealed that police had attended the residence where the applicant and the complainant lived on two separate occasions, each time attending what was described as 'a family incident report'.

26 Ms Sefu's evidence (which, as we have said, was read to the jury) was that the complainant told her in around March or April 2008 that the applicant had been sleeping with her since she was a child. The complainant told her that 'when my stepmother travelled to America and I was left in the house with my father alone, it started around then'. She also told Ms Sefu that the applicant was responsible for her pregnancy.

27 KT's evidence (also read to the jury) was that she knew the applicant in Africa. She met him sometime between 2003 and 2004. They were living in a refugee camp and they went to the same church. Initially, they lived in tents, but then people started building brick houses. They never actually lived with each other, the applicant 'just spent a lot of time between both places'. The complainant was always with the applicant. KT's evidence was that during the time she spent with the applicant and the complainant in Africa, 'they slept in the same bed every night in the refugee camp'.

28 The medical evidence that was read to the jury as 'the agreed medical evidence' was that the complainant saw a general practitioner on 25 March 2008. She was found to be pregnant, although she did not provide any information on who she thought was the father of her child. She received a referral to a day surgery for a termination which took place some six days later. A little over two years later, on 9 June 2010, the complainant saw another doctor and was found to be pregnant. She was referred to a fertility control clinic where a termination was done a few days later. Following that termination, the complainant had a contraceptive implant inserted in her left arm.

29 During the course of the Crown case, the recording of a pretext conversation which took place between the complainant and the applicant in May 2014 was tendered and played to the jury. The Crown accepted that the applicant did not admit anything during the course of this conversation. It relied on the conversation because it contained what the prosecution described as 'an accusation inherent in what the complainant says about her becoming pregnant to him that called for a response'. As the prosecution argued at trial, by not denying this 'inherent accusation', the applicant effectively admitted responsibility for the complainant's pregnancy.

30 Also tendered in evidence were the medical records of the fertility control clinic which the complainant attended in June 2010.

31 The applicant did not give evidence, or call any witnesses, at trial.

32 The final addresses of counsel centred on the credibility of the complainant. A substantial part of the prosecutor's address was devoted to supporting the proposition that the complainant was a witness of truth. As the prosecutor put it:

Now, I made it clear right at the start, the Crown case here is that [the complainant] told you the truth.

33 The prosecutor referred to the sustained attack on the complainant's credit that occurred during cross-examination, and the fact that it had been repeatedly put to her that she was lying. The prosecutor said:

When you look at the way she presented in court, body language, the look on her face, and even the tone of her voice when she was being asked to recall details of these events, you could see, I would suggest, that she was just recalling what had happened to her. What I mean by that is that she was not shaping her answers in a way to attempt to sell you anything. She was not trying to convince you of anything. She was just telling you what she knew, and it was based on her memories.

34 On a number of occasions the prosecutor came back to this theme, saying that the complainant 'was not trying to remember a script'; 'just a genuine memory'; 'it is impossible for [the complainant] to have made [it] up'; 'her evidence was compelling, detailed where you'd expect it to be detailed, and you [would] reject the argument that she's just a liar'. Referring to parts of the complainant's evidence, the prosecutor said, 'that rings out as just being a truthful and realistic way that she coped with what had happened to her'.

35 As the prosecutor put it, 'the primary issue' in the trial was whether the complainant was truthful and whether her evidence could be relied upon.

36 In relation to the recorded conversation, the prosecutor told the jury:

I'm going to say that although the accused does not admit anything in that recording, there is an accusation inherent in what the complainant says about her becoming pregnant to him that called for a response, and that by not denying it, he was effectively saying, 'I got you pregnant, I'm responsible for that pregnancy'.

Now, her Honour will tell you that's not evidence of any of the charges, but it is evidence, I say, if you are satisfied with it, that shows you there was a sexual relationship between the two of them, and with that background you'd find some support for what the complainant says about the four charged acts. It's a powerful piece of evidence.

37 In his final address, defence counsel accepted that the truthfulness of the complainant was the primary issue. He did not shirk from calling the complainant a liar (or at one stage, a 'bare-faced liar'). He said:

If she told you that it was raining outside, you just wouldn't accept it unless you went out there and felt the rain on top of your head.

She's just a person who's taken an oath ... to tell you the truth and has just told you a deliberate pack of lies. And what I say is that when you look at some of the objective circumstances, you are drawn inexorably to the conclusion that she is a person who has told you lies.

38 Defence counsel identified a number of examples of what he submitted were lies told by the complainant. The most significant of these related to what the complainant was recorded to have said to the fertility control clinic in June 2010 when she underwent the termination of the pregnancy she alleged was caused by her father at that time. Specifically, those records set out the complainant's history at the time as follows:

• the 'partner in pregnancy' was a 19 year old student;
• the complainant had not told her father of the pregnancy; and
• the phone number the complainant had provided to the clinic was 'not to be used', because it was her father's number and he was not aware of the pregnancy.

It [the entries in the notes to which we have just referred] doesn't sit particularly well with the fundamental position that she's advancing, which is that her father was the partner in the pregnancy, and that has always been her position.

40 Defence counsel also relied upon the statement in the fertility control clinic notes that the complainant had given a history of 'losing her mum in the wars when she was only three years old'. In his final address, defence counsel identified this as another lie, 'because her mother is [KE] who's lived in Australia for a long time now apparently and who accompanied her to court'.

41 In relation to the recorded conversation, defence counsel submitted to the jury that they needed to examine the whole of the conversation in context. He made two specific points: first, much of the conversation is difficult to follow and there is no clear assertion of wrongdoing on the part of the applicant; and secondly, the conversation took place in a context where the applicant had already been interviewed by police and had the complainant's allegations of wrongdoing put to him. Counsel put it to the jury:

Before you can use the omission [to deny an allegation] against him, ... you would need to be well and truly satisfied that he understood at that point what it was that she was in fact saying, that she was making a specific accusation at that stage. You'd have to be satisfied that he deliberately chose not to answer a specific allegation.

My submission is to you that the entire snippet of conversation is just shrouded in this kind of uncertainty, and it arises against a backdrop where he's already been interviewed in relation to these matters. That he understands that this is what she's saying, that he's the father of her child, and it arises in the way that it does. It arises against a backdrop of the consideration of ... her pregnancy.

He's been told about it by the police, and she's talking about a 'frigging' rapist and he just says, 'Oh, well, whatever. I mean I know that's what you're saying'. Why does he need to respond to that?

43 The judge commenced her charge late on day six of the trial. The charge was not the first occasion on which the judge gave the jury directions. Her Honour had given the jury various directions during the course of the trial, commencing with directions she gave prior to the opening addresses of counsel. It is necessary to refer to the judge's initial directions to the jury, in order to give the proper context in which her Honour delivered her charge.

44 Immediately after the jury was empanelled, the judge provided each juror with a document entitled 'Jury Guide For Criminal Trials' ('the jury guide'). The judge described the booklet to the jury as a 'jury guide', saying it was divided into two parts, both of which were designed to assist the jury in their role as jurors. Her Honour then said that the first part of the guide was called 'preliminary directions' and dealt with some of the matters that she was about to tell the jury orally and in more detail. Her Honour identified the second part as being a 'discussion guide' which may not be of immediate assistance, but was likely to be of assistance when the jury came to consider its verdict.

45 Having provided the jury with the jury guide, and having made these brief opening remarks, the judge then allowed the jury to retire to its jury room so that they could have a 'quick scan of it'. Her Honour said that they 'did not have to read it word for word'. The jury was also told that they could make any telephone calls they needed to make telling people that they had been empanelled on a jury. The jury then left the court.

46 Approximately 20 minutes later, the jury returned to court. Over the following 40 minutes, the judge gave the jury various preliminary directions. In the course of these directions, the judge told the jury that they were required to obey directions given by her (sometimes the judge said 'directions', and sometimes she said 'directions of law').

47 The judge told the jury that they were required to decide the case 'in accordance with the directions of law that I give you'. She then explained the elements of each of the charges, telling the jury that they had to give separate consideration to each charge, and would ultimately be required to give unanimous verdicts. The judge identified categories of evidence. She told them that what she said was not evidence, but constituted directions that would help the jury frame the evidence. She dealt with a number of topics which were set out under the heading 'preliminary directions' in the jury guide, but not all of them.[7]

48 In the preliminary directions section of the jury guide there was reference to 'comments made by the judge or the lawyers'. Her Honour did not refer to, or discuss, this section of the jury guide in her oral directions to the jury. The section, however, provided:

What about comments made by the judge or the lawyers?

The lawyers may make comments about the case. These may take the form of statements or arguments. I may also make comments (eg to help you understand the evidence). My comments are different from directions on the law. You must follow the directions on the law that I give you, but you are not required to accept any comments I make about the evidence. I will make it clear whether I am directing you or commenting on the evidence.

Comments made by me or the lawyers are not evidence. If you agree with a comment, accept it. If you do not agree with it, disregard it.

49 Returning to the charge itself, at its commencement, the judge reminded the jury that she had given them the jury guide at the start of the trial. She then said that part two of the guide was a 'deliberation guide', which she suggested to the jury that they now look at. The only reference the judge made to the first half of the guide (containing the passage we have extracted above) was when the judge said that she had taken the jury through that part of the document in her initial directions. As the judge put it:

But now is the time to look at that deliberation guide part of it, and to use it to assist in framing your thinking about the way you might like to go about your deliberations when you do retire tomorrow.

50 A little later, again in the course of her introductory remarks given on day six of the trial, the judge said that it was essential that the jury not make up their minds until they had heard her final directions:

because there are some very important directions I must give you about your approach to certain parts of the evidence, so as to make sure ... that you do not apply some evidence in a way you are not allowed to, or that you do not miss out on applying some evidence in a way that you are allowed to.

51 The following day, after dealing with some further introductory matters, the judge identified the complainant's credibility as 'the central issue in the trial'. Her Honour said that the case turned on whether the complainant was accepted as a truthful and reliable witness.

52 After giving some directions about the way the jury might assess particular witnesses, the judge referred to the arguments of counsel concerning what the jury should make of the truthfulness and reliability of the complainant, before saying:

As is usual in cases such as these, there are no eyewitnesses to any of the sexual acts. Sexual activity, lawful or unlawful, faithful or adulterous is usually conducted in private. Sometimes sexual activity can occur without people around; other times it can occur with people around, people in the same room or house, or in the presence of, or around other people. Sometimes people may have a suspicion that there is some sexual activity occurring, because of the way they see people interact. Other times social, familial or community associates may have no knowledge, no inkling that there is any sexual activity occurring between two people. Even people they have regular contact with or people they know well. Sometimes sexual activity can occur covertly in the presence of other people, but without the others being aware of it. You can use your own experience of life, not necessarily your own personal lives but your experience of life generally in appreciating the force behind that comment of mine, and thinking about that in terms of the evaluation. But it is common that there are no eyewitnesses to sexual activity, so whilst that is a fact that you take into account, it is not a particularly remarkable or unusual factor for this case, as opposed to other cases involving allegations of sexual misconduct or sexual, criminal sexual activity.

53 It is this passage of her Honour's charge that is the subject matter of the applicant's proposed ground 1.

54 The judge then identified the relevant evidence given and tendered during the trial. Her Honour observed that the evidence came mainly from the complainant, and 'what the [applicant] said to police in [his record of] interview'.

55 In the course of summarising the evidence given at trial, the judge identified a topic which she described as 'the evidence of the disclosures made by [the complainant] over the years that her father had been sexually abusing her'. Her Honour said:

The next topic then of evidence I wanted to deal with was the evidence of the disclosures made by [the complainant] over the years that her father had been sexually abusing her. I use the term disclosure. The law has, for a long time, used the term complaint, but it is not always a particularly accurate term and so disclosure seems to me to be a more neutral term, referring to matters that are revealed or disclosed but without the emotive content that the word 'complaint' can have.

So where counsel in the course of their arguments had been talking to you about complaint, I am using the word 'disclosure' but we are talking about the same thing and I just wanted to explain my reasoning for that.

So let us deal with the evidence of disclosures, because that covers a fair range. The first disclosure in point of time goes back to Africa ...

56 Her Honour then summarised what she described as 'the disclosure evidence'. In doing so, her Honour repeatedly referred (as she said she would) to 'disclosures' having been made, but also used the language of complaints or statements. It is this section of the charge that is part of the subject matter of the applicant's proposed ground 3.

57 Having summarised the 'disclosure' (complaint) evidence, the judge then gave directions pursuant to s 53 of the Jury Directions Act 2015. In giving those directions, her Honour said that there may be good reasons why a victim of sexual assault may delay or hesitate in complaining about such an offence. Her Honour identified those reasons as including ignorance about the nature, quality and character of the act performed; feelings of powerlessness; fear of family dissolution or punishment for the offender; having been sworn to secrecy, or feeling compelled to secrecy by threats of harm to themselves or to other people; having feelings of responsibility, guilt or blame for the acts that occurred; having feelings of shame or embarrassment; having a fear of bringing disgrace to the family; and having a fear of not being believed. In giving these directions, in large part, the judge adopted a written draft s 53 direction handed up by the prosecutor.

58 Her Honour then referred to the arguments of counsel on these topics, before saying:

Again, what you make of those arguments put by [counsel] is a matter for you and I am not going to buy into that and express any view of my own. I am not going to impinge upon your responsibility to make the decision or in any way be seen to influence you or to be thought to be influencing you. You must consider this properly yourselves, but do bear in mind that this is a direction of law that I have given you that there may be good reasons why a victim of sexual assault may delay or hesitate in complaining, and those matters include all of those matters that I have listed.

59 Immediately following that direction, her Honour said, in terms that formed no part of the prosecutor's draft s 53 direction:

There are, you may think, members of the jury, and this now is a comment of mine as opposed to a direction of law, times in some people's lives, sometimes earlier, sometimes later, where there is some form of trigger or impetus where a need arises to make a disclosure or to speak out. It is not an easy thing to do, you might think, and it may take some courage to do so. Again, that is a matter for you to consider whether it has any application in the circumstances of this case.

60 It is this latest passage in her Honour's charge which is the subject of the applicant's proposed ground 2.

61 Having regard to the issues raised by the applicant in proposed grounds 1 and 2, it is not necessary to refer further to the terms of the judge's charge. The judge completed her charge at lunchtime on day seven of the trial. Some exceptions were taken by counsel for the defence,[8] but these did not relate to those passages in the charge that the applicant now seeks to impugn. During the course of their deliberations, the jury asked for further directions about the meaning of the expression 'beyond reasonable doubt'. The judge gave those directions in conventional terms, and the jury returned with verdicts of guilty on all four charges at the end of day nine of the trial.

62 As we have already said, the applicant's proposed grounds of appeal rely in large part on the High Court's decision in McKell. McKell was a case where the trial judge, in the course of his charge, had made comments, on disputed questions of fact, which were unfavourable to the accused. The High Court held that the trial judge's comments during the course of his summing up were so lacking in balance that a miscarriage of justice had occurred.[9] As part of its analysis in reaching this conclusion, the plurality observed that a trial judge's charge 'is not an occasion to address the jury in terms apt to add to the force of the case for the prosecution or the accused so as to sway the jury to either view'.[10]

63 In seriously considered dicta, the plurality then went on to discuss the 'right' of a trial judge to comment on disputed questions of fact. Their Honours said:

It should be made clear that the risk of unfairness, to either side, involved in the exercise by a trial judge of a 'right' to comment that goes so far as to suggest how a disputed question of fact should be resolved is such that that risk should not be courted by trial judges.[11]

64 In the course of their reasoning, the plurality referred to the High Court's previous decisions in RPS v The Queen[12] and Castle v The Queen.[13] After referring to the observations of the plurality in each of RPS[14] and Castle,[15] their Honours said:

The point made in the observations of the plurality in each of RPS and Castle is that there is a risk that comments that are unnecessary for the performance of the duty to give fair and accurate instructions to the jury may occasion a miscarriage of justice, and so a trial judge should be astute to avoid that risk by refraining from comment that is not so required. These points are most compelling in relation to expressions of opinion by a trial judge as to the determination of disputed issues of fact.[16]

65 Their Honours then made two points: first, it is the jury that is the 'constitutional tribunal for deciding issues of fact', and expressions of opinion by a trial judge as to the determination of a disputed issue of fact is not consistent with the function of the trial judge as it is now understood;[17] and secondly, there is 'no little tension between suggesting to the jury what they "might think" about an aspect of the facts of a case and then directing them that they should feel free to ignore the suggestion if they think differently'.[18] The plurality then said that there was much force in the observations of the British Columbia Court of Appeal when it said, in R v Pavlukoff,[19] that:

It seems an absurdity for a judge after telling the jury the facts are for them and not for him, then to volunteer his opinions of facts followed then or later by another caution to the jury that his own opinion cannot govern them and ought not to influence them.[20]

66 Their Honours concluded, in respect of the right of a trial judge to comment, as follows:

In the course of argument, it was said for the respondent that to accept the appellant's submission would tend to blur the 'bright line' around the 'right' of the trial judge to comment, and so introduce undesirable uncertainty in the conduct of criminal trials. In particular, it was said that there may be difficulties in identifying the point at which permissible comment crosses the line into impermissible expression of an opinion on the determination of a disputed question of fact. But there should be little difficulty in a trial judge refraining from expressions of opinion on the determination of disputed issues of fact. Once it is accepted that the trial judge's 'right' to comment is best understood as a judicial power or discretion to be exercised judicially for the purpose of ensuring that the jury have a fair and accurate understanding of what they need to know to do justice in deciding the issues of fact that arise for their determination, any concern about the blurring of what is said to have been previously a 'bright line' can be seen to be illusory. The provision by a trial judge of fair and accurate instruction to a jury is not always a matter of 'bright lines'. It is, however, always concerned with practical fairness to both sides, as has been recognised in statements of high authority such as the passages from RPS with which these reasons commenced.[21]

67 While Gageler J agreed in the result in McKell, he found it unnecessary, in order to dispose of the appeal, to address the general question of when a trial judge may or may not express an opinion on a disputed question of fact consistently with the due administration of justice.[22]

Proposed ground 1: absence of eyewitnesses not being unusual

68 The applicant submitted that, in saying that it was not unusual for there to be no eyewitnesses to sexual offending, and referring to the jury 'appreciating the force behind that comment of mine', the trial judge entered the arena.

69 The prosecution case was that the applicant routinely preyed upon the complainant, including when she was a very young child, living in close quarters with others in Africa. The complainant was cross-examined at trial so as to adduce evidence drawing attention to the lack of privacy in the living arrangements of the applicant and the complainant in Africa. This occurred in the context of a statement by the applicant, in his record of interview, that the complainant's allegations of sexual abuse in Africa amounted to her 'literally saying I was having sex with her in the [sic] public'.

70 The applicant contended that it was not for the trial judge to raise by way of comment for the first time, and without warning, in her charge, that the absence of eyewitnesses in the applicant's trial was 'not a particularly remarkable or unusual factor'. The comment made by the judge portrayed a failure on her part to exercise the kind of circumspection said by the High Court, in McKell, to be a necessary part of her Honour's function, and was impermissible in the light of the High Court's decision in McKell. Moreover, read in context, the comment was more akin to a direction when her Honour, after referring to 'the force behind [her] comment', directed the jury:

But it is common that there are no eyewitnesses to sexual activity, so whilst that is a fact that you take into account, it is not a particularly remarkable or unusual factor for this case ... .

71 In response, the respondent contended that the judge did not 'go so far as to enter the arena'. The respondent accepted that the complainant had given evidence of instances where she shared a bed with the applicant in a room with other people. The respondent referred, however, to an answer in cross-examination where the complainant said that they were 'far enough away that there was privacy'.

72 The respondent accepted that it was now established that a trial judge should refrain from comments which convey his or her opinion as to the proper determination of a disputed issue of fact. It submitted that the comment sought to be impugned in this instance, however, 'did not weigh on the question of whether or not the offending took place nor did [it] bolster the credit of the witness'.

73 The respondent submitted that the present case could be distinguished from McKell because of the 'brief nature of the comment ... where [the judge] was not encouraging impermissible reasoning nor was she disparaging defence counsel'. The respondent submitted that the comment was innocuous and added no force to the prosecution case, although in all the circumstances it was regrettable.

74 Before the High Court's decision in McKell, it was commonplace for jury charges to contain an introductory direction telling the jury that the facts were solely for them, but that the judge may or may not make one or more comments during the course of the charge. Juries were told that any comments that might be made by the judge were merely for assistance, and that the jury was free to disregard any comment that they did not accept, in the same way that they were entitled to disregard any submission made by counsel. Such directions made it clear that the jury was bound to comply with directions of law given by the judge, but absolutely free to disregard any comment that may or may not be made.

75 Additionally, before McKell, it was standard practice for a judge who made a comment in his or her charge, to preface the comment with a statement that what he or she was about to say was a comment, and to remind the jury that they were free to disregard it if they did not find it of assistance. So, for example, the trial judge in Hermanus (a pseudonym) v The Queen,[23] who was also the trial judge in the present proceeding, introduced comments she made in the charge in that case (including a comment in very similar terms to the one the subject of proposed ground 2) by saying:

What I am going to do now is make some observations or suggestions which I am going to suggest to you as a matter of common sense, and applying your experience of life, you may want to consider when deciding in this case whether there was good reason for delay and whether that delay affects your assessment of [SE's] credibility. So this is a comment of mine which you can accept or reject, this part I am just about to deliver, so it stands in contrast to the directions I have given you to date.[24]

76 The charge in the present case was given some five months after the High Court delivered judgment in McKell. It contained no introductory direction of the kind to which we have just referred. Further, the specific comment sought to be impugned by the applicant was not prefaced by any statement that her Honour's observation was a comment, still less a comment which the jury were free to accept or reject as they saw fit.

77 The respondent submitted that any defect in the charge not containing an introductory direction or prefatory comment of the kind to which we have referred was of no moment because of the passage in the jury guide extracted at [48] above.

78 We reject that submission. First, the passage in the jury guide relied upon by the respondent was not specifically referred to by the judge in any oral directions given during the course of the trial. Secondly, the judge never actually required the jury to read the jury guide. As we have already said, when her Honour gave the jury the jury guide, she told them that they 'did not have to read it word for word', and that they could have a 'quick scan of it'.

79 The judge's comment that it was common that there were no eyewitnesses to sexual activity, and that this was not a particularly remarkable or unusual factor, was one that should not have been made in the context of this case. While there may be cases where such a comment is appropriate (for example, where there is no dispute that the alleged offending is said to have occurred in private), the comment was not appropriate in a case where, on the complainant's account (as identified by the applicant in his record of interview), the applicant engaged in sexual offending against the complainant in a room in which other people were present.

80 Moreover, the judge's comment significantly undermined a substantial plank of the applicant's defence - namely, the unlikelihood of the complainant's account of sexual offending against her of the kind described in a room where other people were present. Put shortly, if the complainant was disbelieved on that part of her evidence then that would have a significant effect on the credibility and reliability of the balance of her account. The judge was wrong to make the comment she made, and wrong to refer to the comment as having 'force behind [it]'.

81 Additionally, there is a real risk that the jury may have regarded the judge's comment as a direction which they were bound to follow. The failure of the judge to make explicit that what she was saying was a comment which could be disregarded, leaves open the real possibility that the jury might have been improperly influenced by it.

82 This case was not one where conviction was inevitable. There was a live issue about the credibility and reliability of the complainant's evidence. The fact that the reliability and credibility of the complainant's evidence was amenable to real challenge, and the fact that conviction was not inevitable, can be seen from the content of the medical notes referred to by defence counsel in his final address.

83 The judge's comment concerned an important disputed question of fact, in a case where the credibility of the complainant was a central issue. The comment was not made with the circumspection required by McKell and the authorities referred to in that decision. Subject to one final consideration, the making of the comment, in the circumstances of this case, gave rise to a substantial miscarriage of justice.

84 It remains to consider the respondent's contention that, because no objection was taken by trial counsel to the judge's comment, the comment did not occasion any miscarriage of justice. In reality, seeking a redirection would not have been likely to be helpful. Any redirection would have reminded the jury of the judge's original comment. Moreover, it is difficult to see how any corrective direction which the judge might have been prepared to give would have assisted the applicant.

85 The question of whether the applicant's trial counsel should have applied for a discharge of the jury is a difficult one. It would have been a difficult question for trial counsel balancing the unfairness of the comment with the need to put his client through a further trial. In the end, we are not persuaded that the failure of the applicant's trial counsel to seek a discharge of the jury should disentitle the applicant to relief in this Court. It follows that leave to appeal should be granted, the appeal allowed and the applicant's convictions and sentences set aside.

Proposed ground 2: taking courage to speak out

86 The defence case at trial was that the complainant was a liar, motivated by her hatred for her father. Against this background, the applicant submitted in this Court that the judge's comment (or direction) to the jury that they might think that it 'may take some courage' for a disclosure of sexual offending to be made was 'apt to weigh in favour of the prosecution case that the complainant was a credible and reliable witness'. As the applicant put it:

Her Honour's reference to 'a trigger' lent her comment its context. And her remark that the jury 'might think' the complainant courageous for having made her disclosures, conveyed in emotive language and unmistakably to the jury, that the trial judge herself regarded the complainant as an honest and reliable witness.

87 Additionally, the applicant observed that the very phrase 'you might think', employed by the judge, was the language of an advocate which was specifically disparaged by the High Court in McKell.[25]

88 The applicant submitted that in inviting the jury to think that the complainant was courageous, the judge entered the arena on the central issue in the case, namely, the credibility and reliability of the complainant.

89 In response, the respondent contended that there was no miscarriage of justice occasioned by the trial judge's 'mention of the complainant's "courage" in disclosing her sexual abuse'. The respondent submitted that the comment was 'very brief' and that the jury 'could not have been overawed by her Honour's words'.

90 The respondent submitted that, moreover, just prior to the judge making the comment sought to be impugned by the applicant, the judge told the jury that she was not going to 'impinge upon your responsibility to make the decision or in any way be seen to influence you or be thought to be influencing you'. The respondent accepted, however, that it would have been 'preferable' for her Honour not to have used the impugned phrase.

91 Prior to the High Court's decision in McKell, the appropriateness of the trial judge making comments about the circumstances in which victims of sexual offending might make complaint had been the subject of a number of decisions, including in the Court of Appeal (Criminal Division) of England and Wales in R v MM,[26] and in this Court in KRI v The Queen,[27] AC v The Queen,[28] and Hermanus.[29] Those cases show, to varying degrees, that comments of the kind made by the judge in the present case are at least problematic - even if they have not led to any uniform view that, if made, they will give rise to a substantial miscarriage of justice.

92 The cases to which we have referred (MM, KRI, AC and Hermanus) are, however, cases that turn on their own facts and circumstances. They should not be treated as laying down rules of law. As had been said before, decisions on the facts of one case do not really aid the determination of another case.[30] It follows that there is little to be gained by reviewing the charges given in these cases, or in any other cases decided prior to McKell. Moreover, as the plurality observed in McKell, 'little would be gained by a review of the practice of trial judges in earlier times',[31] having regard to what the High Court in fact held in McKell.

93 Additionally, we would observe that the cases decided before the High Court's decision in McKell involve charges that were subject to different statutory regimes from the one given in the present case. For example, the charge in Hermanus was given at a time when the now repealed s 61 of the Crimes Act 1958, a predecessor to the current ss 52 and 53 of the Jury Directions Act 2015, contained sub-s (2) which provided that nothing in s 61(1) 'prevent[ed] a judge from making any comment on evidence given in the proceeding that it is appropriate to make in the interests of justice'. Sections 52 and 53 of the Jury Directions Act do not contain any provision equivalent to the former s 61(2) of the Crimes Act.

94 There is force in the applicant's criticisms of the judge's statement to the jury that they might think that it may take some courage to 'make a disclosure or to speak out'. While the judge did not specifically say that the jury might think that it took the complainant some courage to make her disclosure, in the context of other statements made by the judge about the complainant, in this part of the judge's charge, the jury may well have understood the judge to be suggesting that it took courage for the complainant to make her allegations. On one view, it would only take such courage if those allegations were true. The truth of the applicant's allegations was, as we have already said, a hotly contested issue at trial.

95 In addition, while the judge on this occasion prefaced what she said by saying 'this now is a comment of mine as opposed to a direction of law', she did not explain that distinction, or say that the jury was free to accept or reject what the judge said. There is again a risk that the jury would have understood the comment to carry undue weight. It is also to be observed that the judge's 'courage' comment was made without notice to the parties and without the prosecutor having advanced any such argument in his final address. In the circumstances of this case, and consistently with McKell, it is a comment which the judge should not have made. While, on its own, the making of this comment may not have amounted to a substantial miscarriage of justice, it adds to the unfairness which we have concluded was created by the judge's comments which gave rise to proposed ground 1.

96 As with the comment the subject of proposed ground 1, we do not think that the applicant's trial counsel can be criticised for not seeking any redirection in relation to the comment the subject of this ground. Any redirection that might have been given would simply have drawn the unfavourable comment to the attention of the jury again, and was unlikely to be of any assistance to the applicant. So far as counsel's failure to seek a discharge in relation to the comment, we repeat what we have said on this issue in relation to proposed ground 1.

Proposed ground 3: the use of the terms 'disclose' and 'disclosure'

97 The applicant observed that her Honour used the terms 'disclose' and 'disclosure' throughout the trial, commencing when she gave some introductory directions to the jury at the start of the trial. The applicant submitted that this was unorthodox, and that there was no warrant for it in div 2 of pt 5 of the Jury Directions Act (ss 48-54) - which talks in terms of 'complaints' and 'delay in complaint'. The applicant also submitted that there was no warrant for her Honour's change in terminology from that used in the jurisprudence dealing with complaint evidence at common law.

98 The applicant also observed that, 'as it happened, the complainant also used the judge's preferred nomenclature during her evidence in chief'. The applicant submitted that the distinction, and its potential significance, was borne out during the complainant's cross-examination when, asked about her complaint to PR, she said, 'Don't say complain, I wasn't complaining', following which the judge immediately said that the word 'complain' was 'maybe a lawyer's term' and suggested the word 'disclose'.

99 The applicant submitted that the vice in the judge's choice of the terms 'disclosure' and 'disclose', and with her directions to the jury, is that they were prone to, and did, reverse the onus of proof. The word 'complaint' accommodates representations that are true or untrue. It is neutral. The word 'disclosure' was submitted to be synonymous with 'revelation' - 'referring to matters that are revealed'. It presumes the truth of that which is disclosed.

100 As to her Honour's direction that 'disclosure' was the equivalent of 'complaint', the applicant submitted that this was not effective in addressing the problem that the judge had created by her constant use of the word 'disclosure' throughout the trial.

101 In response, the respondent contended that no substantial miscarriage of justice was occasioned by the judge's use of the words 'disclosure' and 'disclose' because the judge made it clear to the jury that the word 'complaint' had the same meaning, for present purposes, as the word 'disclosure'. Moreover, the judge then used the terms interchangeably in her charge. This was submitted to be consistent with the judge having told the jury that, when counsel used the word 'complaint', and she (the judge) used the word 'disclosure', they were talking about the same thing.

102 While the respondent contended that there was no substantial miscarriage of justice occasioned by the use of the words 'disclosure' and 'disclose', counsel for the respondent accepted that it was less than ideal for her Honour to have chosen terminology which was capable (absent her Honour's explanation that she was using these words interchangeably with the word 'complaint') of being understood as conveying that the matter 'disclosed' had in fact occurred. This also, the respondent conceded, was regrettable.

103 In our view, there is force in the applicant's criticisms of the judge's use of the words 'disclose' and 'disclosure'. As the judge herself put it in the course of her charge, the term 'disclosure' refers to 'matters that are revealed or disclosed'. This connotes the revealing or disclosing of something that actually occurred - rather than the making of an allegation which is disputed.

104 That said, we do not accept that her Honour's use of these terms, on their own, amounted to a substantial miscarriage of justice. The respondent was correct to concede that her Honour should not have departed from 'complain' and 'complaint' in favour of 'disclose' and 'disclosure'. Counsel was also correct to observe that there was an ameliorating effect in her Honour's statement that the terms were relevantly equivalent. We would, however, counsel against the use of 'disclose' and 'disclosure' in future cases.

105 Again, while we are not persuaded that her Honour's use of the terms 'disclose' and 'disclosure' led to a substantial miscarriage of justice, they added to the unfairness which we have already found was created by her comment that the lack of eyewitnesses was not particularly remarkable or unusual in this case.

106 We have concluded that, in making the 'no eye-witnesses not being unusual' comment, the judge made a comment favourable to the prosecution that bore on a disputed factual question of considerable significance to the trial. The comment was one that should not have been made, and its making in the circumstances of this case constituted a substantial miscarriage of justice.

107 Additionally, the complaints of error made in proposed grounds 2 and 3 are made out. While individually the errors established under those proposed grounds do not amount to a substantial miscarriage of justice, in combination with the error established under proposed ground 1 we would conclude that the totality of the errors identified in her Honour's charge amount to a substantial miscarriage of justice.

108 Accordingly, we will make orders granting the applicant leave to appeal, allowing the appeal, setting aside the convictions and sentences imposed, and ordering a retrial. In the circumstances, it is not necessary for us to deal with the application for leave to appeal against sentence.

[1] To ensure that there is no possibility of identification of any victim of sexual offending, this judgment has been anonymised by the adoption of pseudonyms and initials in place of the names of the applicant and witnesses.

[2] DPP v Nenna (a pseudonym) [2019] VCC 1512.

[3] [2019] HCA 5; (2019) 264 CLR 307 ('McKell').

[5] Linda Sefu is a pseudonym used by the judge in her reasons for sentence.

[6] We note for completeness, however, that the complainant's evidence was that SA did not use a condom.

[7] Other topics covered in her Honour's preliminary directions included keeping an open mind, not discussing the case outside the jury room, the capacity for the jury to ask questions, sitting times and the course of the trial.

[8] Not counsel who appeared for the applicant in this Court.

[9] McKell [2019] HCA 5; (2019) 264 CLR 307, 322-3 [45] (Bell, Keane, Gordon and Edelman JJ), 327 [58] (Gageler J).

[10] Ibid 312-3 [3] (Bell, Keane, Gordon and Edelman JJ).

[12] [2000] HCA 3; (2000) 199 CLR 620 ('RPS').

[13] [2016] HCA 46; (2016) 259 CLR 449 ('Castle').

[14] RPS [2000] HCA 3; (2000) 199 CLR 620, 637 [41]-[42].

[15] [2016] HCA 46; (2016) 259 CLR 449, 470-1 [61].

[16] McKell [2019] HCA 5; (2019) 264 CLR 307, 324 [48].

[19] (1953) 106 CCC 249, 266-7.

[20] McKell [2019] HCA 5; (2019) 264 CLR 307, 325 [51]-[52].

[23] [2015] VSCA 304; (2015) 49 VR 486 ('Hermanus').

[24] Ibid 518 [137] (emphasis added).

[25] McKell [2019] HCA 5; (2019) 264 CLR 307, 324-5 [50].

[26] [2007] EWCA Crim 1558 ('MM').

[27] [2012] VSCA 186 ('KRI').

[28] [2014] VSCA 71; (2014) 42 VR 278 ('AC').

[29] [2015] VSCA 304; (2015) 49 VR 486.

[30] Teubner v Humble [1963] HCA 11; (1963) 108 CLR 491, 503 (Windeyer J, McTiernan J agreeing).

[31] McKell [2019] HCA 5; (2019) 264 CLR 307, 324 [48].