Paull v The Queen [2021] VSCA 339

1 Following a trial, on 22 August 2019 a jury empanelled in the County Court found the applicant guilty of one charge of buggery, charged in the indictment as follows:

CHARGE 1 The Director of Public Prosecutions charges that STEPHEN FREDRICK LLOYD PAULL at YAPEEN in Victoria between the 1st day of May 1978 and the 31st day of December 1979 committed the crime of buggery with [SMA] a person under the age of 14 years.

NOTE: Charge 1 is a Course of Conduct Charge

Statement of Offence - Buggery contrary to s 68(l) of the Crimes Act 1958, as in operation between the 1st day of April 1959 and the 28th day of February 1981.

2 On 24 April 2020, the trial judge sentenced the applicant to six years' imprisonment, with a non-parole period of four years. In the ordinary course, any notice of application for leave to appeal against conviction should have been filed by 22 May 2020.[1] No attempt was made to file the relevant notice, however, until 12 August 2020. As a result, the applicant requires an extension of time. The respondent opposes the grant of an extension.

3 Initially, the applicant sought to rely on a single ground of appeal as follows:

Ground 1 - The verdict of the jury on charge one is unreasonable and/or cannot be supported by the evidence.

Particulars: The evidence in the trial, taken as a whole, did not prove beyond reasonable doubt that the applicant was guilty of the charge.

4 It emerged in the course of the hearing in this Court, however, that the judge's charge to the jury arguably contained a serious misdirection as to the use that could be made of the complainant's distress. As a result, counsel for the applicant sought - and we granted - leave to amend the notice of application for leave to appeal by adding a new ground formulated as follows:

The learned trial judge erred in directing the jury about the complainant's distress whilst giving evidence:

Particulars:

(a) The complainant's distress whilst giving evidence was incapable of adding to the prosecution case as it did not involve the type of evidence typically referred to as 'distress' evidence;

(b) The complainant's 'distress' when giving evidence was too remote in time from the alleged offences to be considered as a form of circumstantial evidence.

5 For reasons that follow, we are of the view that the new ground must succeed. Hence, the application for an extension of time should be granted; leave to appeal against conviction should also be granted; the appeal should be allowed; and a new trial should be ordered.

6 Dealing first with the application for an extension of time, as Madafferi makes plain, 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.[2] The exercise of the discretion whether to extend time must always be informed by what the interests of justice require in the particular circumstances.

7 In the present case, although we consider that the affidavit affirmed by the applicant's solicitor demonstrates that he may not have acted with appropriate expedition to initiate the application for leave to appeal, it does not appear that the applicant was personally responsible for any relevant delay in filing the necessary documents. More importantly, as we have said, we are of the view that the new ground of appeal must succeed. Hence, in circumstances where the respondent cannot point to any particular prejudice resulting from the delay, the interests of justice clearly dictate that the extension of time should be granted.

8 So as to understand the issues raised by the grounds of appeal, it is necessary to summarise the evidence at trial.

9 'SMA', the complainant, was aged 10 or 11 years at the time of the alleged offending.[3] He lived in Campbells Creek.

10 In a record of interview with police conducted on 5 December 2016, the applicant, now aged 76 years,[4] said that he had moved to Campbells Creek - a town near Castlemaine - in 1976 or 1977. Around then, he was asked by the local police sergeant to 'give [him] a hand' with the local Scouts. He took over as scout leader, and performed that role for six or nine months until it became 'too much', and somebody else stepped in.

11 SMA attended the Scout group, and the applicant got to know his mother, with whom he admitted having sex a single time. On occasion, the applicant would drop SMA at home, and on some of those occasions stay for coffee.

12 On 4 October 2016, SMA, then aged 48 years, took part in a VARE[5] interview with police. Amongst other things, the VARE - which was played to the jury as part of the prosecution's case at trial - contained the following narrative:[6]

... In 1978 ... there's a picture of myself ... going to the ANZAC Day parade in Campbells Creek and I was 10. And there's a photo of me in the backyard in my Scout uniform. ... [A]nd we went and marched in the ANZAC Day parade. The ANZAC Day memorial was out the front of the Campbells Creek school and we all stood there, and was soldiers in those days. And ... that's that photo of myself walking down the street with the rest of the scouts and Stephen Paull there. ... I think we were going back to the Five Flags up that way, the general store or go back to the Scout hall which is just around the corner, not far. ... So I was a Scout. ... [I] basically remember talking to Stephen Paull, I remember him asking me about you know what I enjoyed and I [said] I like playing tennis. And he said, 'Maybe one day we can go out and play some tennis'. ... I think I ended up asking my mother if that was O.K. and obviously she said, 'Yes', him being the Scout leader, it was a good thing for him to do. And especially since ... I didn't have a father around, and it's a good thing to do go and be around an adult male and spend that time and play some tennis. ... [W]e always used to go and play tennis at the Yapeen tennis court. I always ... found it peculiar in Campbells Creek they had their own tennis court and I used to wonder why we used to drive past it. And I'd often say to him that, you know, there was no-one playing on those courts, 'We should stop there', and he used to say, 'No', ... and we'd go out to the Yapeen one which is, I dunno, a few K's up the road, enough to be ... well out of the way. And I don't know, I'm sure I'm missing lots of things but ... that's basically where ... we used to pay our tennis. And at the end of the tennis game I would be sexually assaulted in the clubrooms there. So it's funny, there's lots of details I know ... I'm just a bit nervous, that's all, it's hard to remember them all. Often we used to drive out there rather than going on the main road, we used to go up ... a road called Donkey Gully Road and go the back way. And that was a bit of fun 'cause he used to drive along in his ute which I remember had New South Wales Plates. And it was always a bit fun driving on the dirt road and someone doing some skids and so on. And, yeah, we'd drive out the back way and that was a way of approaching the tennis court which wasn't on the main road. ... [A]nd go out there, it was nice to actually - the game of tennis I enjoyed that and [we would] play the tennis and I [would] always see him looking away at a house up the corner. And in reflection I know that he was looking to see if there was anyone around 'cause it's quite an isolated place, and there was a house over there and he used to check it. ... The first time it happened ... I remember going to the tennis and him ... asking me to stand in one position which was against the wall in front of where you actually put the equipment. And he - I remember him telling me to turn around and obviously I was standing there facing the wall, he asked me to turn around, and he was standing there - the door was shut - he was standing there. And for some strange reason he was standing there leaning against the door of the frame and he had his erect penis in his hand, masturbating. And I just remember standing there and looking at the hair on his testicles which I found strange at that stage ... [A]nd after a while neither of us really said anything, he was just looking at me and I was looking at the base of his penis. And then after a while I just turned around and went back to where I was standing, as in just turned my body around, so I was still standing in the same position. [And] that was [kind of] the first time anything like that happened. That was after we played our game of tennis. The second time it happened we played the game of tennis and the same thing, went into the storeroom or equipment room, whatever it was called, and he ... asked me ... to stand in the same spot. [And] I ended up in this kind of ritual of I would take my shoes off but ... because I had the ledge in front me I would hold on to the ledge while I took my shoes off and I was to stand on top of my shoes. I was to have my feet a certain distance apart, when I was standing on my shoes he would show me where he wanted me to actually be standing. And then I would take off my pants ... and I was to do that without my pants touching the floor, it was dusty concrete, and not to leave a mark to make ... my pants dirty. And he would take them and fold them up and put them aside. And God knows what he was up to behind me, but basically ... I don't know how else to say it ... he would penetrate me with his penis anally. And I remember the first two times ... I cried a fair bit but I was quiet, I didn't say anything. And I remember asking him, you know, 'Why?'. And he would say that this is what men did, which is pretty fucked. ... So I remember it used to hurt a lot, to this day if I ever think about it ... I actually feel sore inside, in my rectum ... It was always the same position. When we'd finished our game of tennis obviously he had the keys, I'm guessing he's a member of the local tennis club to have the keys. I used to go in, there was lots of equipment to the right, and we'd go in. I remember once he left - which I found peculiar - he left a ... tube of tennis balls and unopened, and I remember him saying that, you know, they were there for me, I was quite amazed that we were pretty poor. ... [T]hey were his gift to me. ... [W]hen we used to talk it was nice 'cause he would listen and chat with me. And often one of our main topics of discussion was the badges, 'cause I was pretty keen on getting some more Scout badges and I suppose it was a common thread to talk about. And he used to encourage me to go for different badges and ask me what skills I did have ... so that he could basically, you know, I suppose, fast track me, get me some badges. ... [A]nd that was all pretty exciting for me. ... I found it good, I suppose, that, you know, I had that connection with him because, you know, most of the kids they had very few badges, but, you know, I ended up looking like a five star general with all of those badges sewn to my arms. Which upon reflection I paid pretty dearly for. And obviously without realising most of the badges were given, I found it, I dunno, interesting. I thought I was pretty fortunate that my mother was seeing him at the time, simply out of the fact that we'd made that connection through Scouts. And he never lived with us, only lived about 500 metres up the road in the main kind of Campbells Creek, main street. So I suppose he had access to me through ... my mother. He used to come and pick me up from my place which was on the main road Campbells Creek. ... I remember looking down when I was being sexually assaulted, buggered in the equipment shed that I would be able to see the light underneath the outside of the tin. Different seasons had different lights, I remember them distinctly. I remember being cold as I was undressed in the tennis court rooms. And also realising the nature of the deciduous trees obviously it was winter, and we played until dusk. I remember my mum asking me how could I possibly see the tennis balls when it was so dark. ... I remember it being in the tennis equipment shed ... I remember when he was sexually assaulting me I remember seeing his sperm arrive on the floor beside me. I remember to the right of me there was always toilet paper that looked like it had been sitting in his back pocket. ... And I remember it was single pieces of toilet paper but, you know, two pieces and it was folded, and there was usually a stack of them. And that was myself and then for him to clean up whatever was on my bottom, my anus, whatever, around there to clean that up. I remember after I'd done it he'd always check. I remember prior to that, I remember once when he ... picked me up from my house, I didn't wanna go the toilet beforehand and he insisted I did ... And I remember distinctly him sticking his face in my face aggressively and saying that he'd rather blood than shit. 'Cause obviously upon reflection he wanted me to empty my bowels out for when he assaulted me. Back to the clubrooms I remember one of the things he used to do was - I remember him wiping up his ejaculate and obviously it had made some type of wet stain on the dust, it was a dusty area. I remember him washing it down through the wall, it was only tin against concrete. ... [From there we would] lock up and go back to Campbells Creek and I'd get dropped off at the house, it was pretty simple. ...

13 It may be gleaned from his VARE that SMA alleged that the offending commenced in 1978, when he was aged 10. (He later said that the offending ended shortly before he went to England to visit family for three months in 1979.) SMA alleged that the applicant took him to the Yapeen tennis courts - Yapeen is also a town near Castlemaine - and, whilst inside the equipment shed that stood at the courts, penetrated his anus with his penis. This was alleged to have occurred after an initial act in which the applicant masturbated in the presence of SMA inside the shed. The complainant alleged that, apart from that first occasion, the applicant penetrated his anus with his penis in the equipment shed at Yapeen tennis courts many times. On those occasions, the method was always the same. The applicant would show SMA how to stand (on his shoes) with his feet a certain distance apart. SMA would take off his pants without them touching the dusty floor. After the sexual penetration, the applicant would ejaculate on the floor. SMA would then wipe around his anus with toilet paper that the applicant had with him for that purpose, and the applicant would also wipe up his ejaculate and wash it down through the wall (which was only tin against concrete). They would then lock up, the applicant having keys to the equipment room.

14 As will become important when considering the contention that the jury's verdict is unreasonable or cannot be supported by the evidence, in his VARE the complainant described the building in which the offending took place as being a 'creamy coloured' weatherboard, with 'timber slats running length ways', and with a tin roof and concrete floor.

15 SMA also gave evidence at a special hearing, during which he was cross-examined by the applicant's counsel. During that cross-examination, he confirmed that the alleged offending occurred in 1978 and some part of 1979. He said that he first met the applicant at Scouts. SMA also said that his mother and the applicant 'went out and had dinner', and that his mother told him that they were seeing each other and were in a relationship.

16 Further, in the course of cross-examination SMA confirmed that, a couple of months before his VARE in 2016, he went to the Yapeen tennis courts and took photographs of a shed - located about 400 or 500 metres from where it had originally stood - in which he believed the offences took place. The complainant could not be '100 per cent' certain that it was where the offending occurred, but said that the shed had the same proportions, weatherboards, and angled roof. He said that the shed was 'around the corner from where it was originally located'. SMA confirmed that he was certain that the shed was locked, and that the applicant had a key. He also stated that buildings located at the Yapeen tennis club at the time of his complaint were not there at the time of the offending. His evidence included the following:

[DEFENCE COUNSEL]: Was that the first time you'd been back to the Yapeen Tennis courts since the alleged offending?---That is correct. I've driven past. You can see it from the road, but physically stopped there no.

When you went back to your day to the Yapeen Tennis courts, did you have any information to suggest that the shed that these offences occurred in had been moved?---No I had no idea.

Is it literally that you went past the shed when you were out there that day and recognised it as the place that the offences took place?---Yeah, I was walking down to see his line of vision when he was playing the, playing the tennis to see what it was he was looking at and I walked around the corner and saw it there.

How certain are you that this is the shed that the alleged offences occurred in?---Because it's of the same era I would say I'm not - definitely not 100 per cent simply because - I don't know, the same builder might have built a similar one around the corner for all I know. But I know it's the same proportion. I know that it's got the same weatherboards. The ah, the angle of the roof is what I remember. So that's as close as I can come to recollecting it.

When you say the angle of the roof, are you referring there to the fact that it's a pitched roof or an A-frame?---Yeah, the pitch of the roof, the angle of the roof, yes, it's what I'm referring to.

17 We pause to observe that, although he was aged 48 years when he participated in the VARE on 4 October 2016, and 50 at the time that he gave evidence - with an intermediary present[7] - at the special hearing on 17 May 2019, SMA's VARE and evidence recorded at the special hearing constituted his evidence before the jury. Such a course is permitted in a criminal proceeding for a sexual offence only if the complainant is a person under the age of 18 years (which the complainant was not) or is a person with a cognitive impairment.[8] For these purposes, a cognitive impairment 'includes impairment because of mental illness, intellectual disability, dementia or brain injury'.[9] When the Court enquired of the applicant's counsel as to the nature of the cognitive impairment under which SMA was labouring, we were informed that there was evidence that he suffered from depression and anxiety.[10] Counsel also informed us that he had made a deliberate decision pre-trial not to challenge the claim that SMA had a cognitive impairment. In those circumstances, we did not further explore the nature and extent of the complainant's cognitive impairment (if any). We note, however, that the term cognitive impairment contemplates a deterioration or diminution in a person's mental processes, including compromised comprehension, thinking, concentration, memory or capacity to process information (such compromise ordinarily being associated with mental illness, intellectual disability, dementia or brain injury). Of course, the VARE and special hearing arrangements (including the assistance of intermediaries) statutorily provided for represent a departure from the traditional processes of a criminal trial. They exist to protect witnesses who are vulnerable because of age or cognitive impairment, and should not be invoked simply for the sake of expediency.

18 Returning to the evidence, the applicant did not himself give evidence in the trial. He placed particular reliance, however, on the evidence of two prosecution witnesses, husband and wife Les Stuchbree and Judy Stuchbree, concerning any structures located at the Yapeen tennis courts. They, with others, had formed the Yapeen Tennis Club in about 1979 or 1980. Prior to that, Judy Stuchbree had from time to time played social tennis at the Yapeen tennis courts. From the time the Club was inaugurated until 2005, Judy Stuchbree was a committee member and the club treasurer. Although he did not play tennis, Les Stuchbree was also an inaugural committee member. He would go to the courts relatively frequently from the late 1970s onwards to do maintenance and building work.

19 The evidence revealed that, when the Stuchbrees made their statements to police in 2019, they did so without the assistance of the minutes of the Yapeen Tennis Club's annual general meetings, the book containing the minutes only being located by Judy Stuchbree shortly before she gave evidence on voir dire.

20 In her evidence before the jury, Judy Stuchbree also produced photographs of a 'tin-shed' (Exhibit C), which both she and her husband said was the first structure ever built on the site of the Yapeen tennis courts. (We would note that, to our observation, the building shown in two photographs is markedly dissimilar to the building described by SMA.) Les Stuchbree gave evidence that he, with others, was present and involved in the construction of this 'tin shed', which occurred at around the time that the Yapeen Tennis Club was formed and commenced playing competitive tennis. Both Stuchbrees gave evidence that this tin shed was needed since, prior to its construction, there was nowhere to store tennis equipment such as nets.

21 In the result, the date that the 'tin shed' was built was a significant issue in the trial. When making her statement to police, Judy Stuchbree had estimated that the 'tin shed' was built in 1986. By way of contrast, in his statement to police, Les Stuchbree had said that the tin shed was constructed in the 'late 1970's'. And at trial, both gave different evidence about the date they believed the first structure was built at the Yapeen tennis courts. They both explained that they had changed their estimate after having discovered a book containing minutes of the annual general meeting of the Yapeen Tennis Club, held on 11 August 1981. A relevant excerpt, under a heading 'General Business', read: 'A note of thanks to all those who attended the working bees to construct the new shed'. The minutes were signed by 'V. Olliver', whom Judy Stuchbree identified as 'Vince Olliver', the then president of the Yapeen Tennis Club. Although she did not recall being present at the meeting, her presence was recorded in the minutes. Having referred to this minute, Judy Stuchbree said that she believed that a 'tin shed' was built '[s]omewhere between 1980 and - or '81 and '82'. She added that the 'tin shed' was a lockable structure that could only be accessed with a key, and said that she believed only 'office bearers and members of the committee' would have 'had access to the keys'. There was no public access to the tin shed.

22 On the back of one of the two photographs of the shed produced by Judy Stuchbree was the notation '1994'. She said that notation may have referred to the date the tin shed was knocked down and replaced with the brick building that presently remains at the Yapeen tennis courts.

23 Les Stuchbree gave evidence that the tin shed was the first structure he recalled at the Yapeen tennis courts. He was involved in building it, and estimated that it was built in 'the early '80's'.

24 In the course of their evidence, both Judy and Les Stuchbree were shown photographs of the weatherboard building that SMA had photographed in 2016, which he claimed was either the actual - or very similar looking - building that had stood at the Yapeen tennis courts in 1978 and 1979. Both were adamant that such a building had never stood at the Yapeen tennis courts.

25 Judy and Les Stuchbree each gave evidence that the applicant was not a person they knew or were familiar with. Judy Stuchbree said that the records of the Yapeen Tennis Club showed that a 'Stephen Paull' had owed some money for outstanding membership fees at one stage, but that this person was not the applicant. Rather, the 'Stephen Paull' referred to in the Yapeen Tennis Club minutes was a person with whom her husband had worked in the 1980s. That person - who had the same name with the same spelling as the applicant - also lived in the Castlemaine area during the relevant time.

26 It seems that SMA first made a complaint about the applicant's alleged sexual offending to Patrick Kavanagh, a medical practitioner and psychotherapist, who had been treating SMA since 1994. Dr Kavanagh gave evidence that, during a session in June 2014, SMA said that since their previous session 'he had found memories of being abused by his mother's boyfriend, who was also the scoutmaster, had become overwhelming during that week'. He had not previously discussed those memories with Dr Kavanagh. SMA's 'intrusive' memories 'were about anal penetration', but they 'didn't go into further details about how often the abuse occurred'. Dr Kavanagh then assisted SMA 'to make a report to the royal commission'.[11]

27 In his record of interview, produced by the informant, Detective Senior Constable Jaime Coles, the applicant denied ever playing tennis with SMA at Yapeen, or knowing that SMA liked playing tennis. He also denied masturbating in front of SMA, or penetrating his anus with his penis.

Ground 1: Is the verdict unreasonable or incapable of being supported by the evidence?

28 In support of the first ground, counsel for the applicant submitted that the prosecution case depended on SMA's evidence. The critical issue was whether SMA's memories were sufficiently reliable to prove the charge to the criminal standard.

29 The applicant's counsel submitted that SMA's unequivocal evidence was that the offending always occurred inside a particular shed that stood at the Yapeen tennis courts in 1978 and 1979. His allegations, counsel submitted, 'were intrinsically linked with the time and place that they occurred'. SMA described the building in which the offending took place as being a 'creamy coloured' weatherboard, with 'timber slats running length ways', and with a tin roof and concrete floor.[12] The photographs that he took depict a weatherboard building with an 'A-frame' roof.[13] SMA gave evidence that the shed was locked and had to be opened with a key - a fact he said he recalled '100 per cent' - and the applicant had possession of the key.[14] Ultimately, the applicant's counsel submitted that the evidence of Judy and Les Stuchbree - including the minutes of the 1981 annual general meeting of the Yapeen Tennis Club produced by Judy Stuchbree - rendered SMA's account of the alleged offending 'impossible'.

30 Counsel for the respondent submitted that the state of the evidence was not such as to preclude a jury acting reasonably from being satisfied of the applicant's guilt. This was not a case where the jury must have had a reasonable doubt.

31 The respondent's counsel pointed to a number of inconsistencies in the evidence of Judy and Les Stuchbree. For example, in her statement to police Judy Stuchbree said that there may have been two toilets at the courts in 1979. She had also said that the tin shed was built in 1986 after the club received funding from the Newstead Shire Council. Moreover, counsel submitted, her evidence that she started playing social tennis at the courts in 1979 was 'just an estimate'. And Les Stuchbree said that before the tin shed was built in the 'early '80's', there was nothing there, although he had earlier told police that a tin shed had been built on the site in the 'late '70's'.[15]

32 In considering the first ground, we must ask ourselves whether we think that it was open to the jury upon the whole of the evidence to be satisfied beyond reasonable doubt that the applicant was guilty.[16] As the majority of the High Court observed in M:[17]

In most cases a doubt experienced by an appellate court will be a doubt which a jury ought also to have experienced. It is only where a jury's advantage in seeing and hearing the evidence is capable of resolving a doubt experienced by a court of criminal appeal that the court may conclude that no miscarriage of justice occurred. That is to say, where the evidence lacks credibility for reasons which are not explained by the manner in which it was given, a reasonable doubt experienced by the court is a doubt which a reasonable jury ought to have experienced. If the evidence, upon the record itself, contains discrepancies, displays inadequacies, is tainted or otherwise lacks probative force in such a way as to lead the court of criminal appeal to conclude that, even making full allowance for the advantages enjoyed by the jury, there is a significant possibility that an innocent person has been convicted, then the court is bound to act and to set aside a verdict based upon that evidence. In doing so, the court is not substituting trial by a court of appeal for trial by jury, for the ultimate question must always be whether the court thinks that upon the whole of the evidence it was open to the jury to be satisfied beyond reasonable doubt that the accused was guilty.

33 The High Court once more endorsed that approach in Pell, and said:[18]

The function of the court of criminal appeal in determining a ground that contends that the verdict of the jury is unreasonable or cannot be supported having regard to the evidence,[19] in a case such as the present, proceeds upon the assumption that the evidence of the complainant was assessed by the jury to be credible and reliable. The court examines the record to see whether, notwithstanding that assessment - either by reason of inconsistencies, discrepancies, or other inadequacy; or in light of other evidence - the court is satisfied that the jury, acting rationally, ought nonetheless to have entertained a reasonable doubt as to proof of guilt.

34 As was made clear from Pell, when assessing whether the jury's verdict is unreasonable or cannot be supported by the evidence, the Court must assume that the jury assessed SMA's evidence to be both credible and reliable. The Court's task is to examine the whole of the evidence to see whether SMA's reveals inconsistencies, discrepancies or other inadequacies, such that the Court is satisfied that the jury, acting rationally, should have entertained a reasonable doubt about guilt, notwithstanding their assessment that his evidence was credible and reliable.

35 In our opinion, contrary to the primary submission of the applicant's counsel, the evidence of Judy and Les Stuchbree did not make SMA's account 'impossible'. Thus, the jury might well have accepted SMA's evidence about the essential features of the offending, whilst considering that he was mistaken about the structure in which it took place. On the other hand, given the inconsistencies in their evidence, the jury may well have regarded the evidence of Judy and Les Stuchbree concerning any structure on the site of the Yapeen tennis courts, and the time at which any structure was built, to be unreliable. In either case, we consider it to have been well-open to the jury to be satisfied beyond reasonable doubt by SMA's evidence that the applicant had on occasions after tennis anally penetrated him.

37 As we have indicated, it emerged in the course of the hearing in this Court that the judge's charge to the jury arguably contained a serious misdirection as to the use that could be made of the complainant's distress. Leave therefore was given to the applicant to amend the notice of application for leave to appeal to add a new ground, and the parties were invited to file written submissions addressing the issue.

38 Turning to the judge's charge, when instructing the jury as to the assessment of witnesses, the judge gave the following directions:[20]

... Now as I mentioned at the start of the trial and just a moment ago, in assessing the witness' evidence, some matters which may concern you include their credibility and reliability. Now, it is for you to judge whether the witnesses told the truth and whether they correctly recalled the facts about which they gave evidence. This is something you do all the time in your daily lives. There is no special skill involved. You just need to use your common sense in analysing the evidence.

The manner of giving evidence might be a matter that you take into consideration, but you need to exercise some care when doing that. As I noted at the start of the case, giving evidence in a trial, or indeed, in the circumstances of a police interview, whether the interview of the accused with police, when he is suspected of committing an offence or indeed, in giving a complaint about a sexual offence in the case of [SMA], this sort of thing is not common for people and it may have been a stressful experience. People react and appear differently. Witnesses come from different backgrounds, have different abilities, vulnerabilities, values and life experiences.

So there are many variables and perhaps too many to make the manner in which a witness gives evidence the only, and even the most important factor in your decision. So this is a caution about how much weight you give to that and the care you should take about it. By all means, it is relevant and admissible for you to take into account how a witness may appear, but you do have to take care with that and do not jump to conclusions, without careful consideration and balance and analysis.

So in making your decision, do not consider just the witness' testimony and the manner that they give evidence. Look at all the exhibits, and compare the evidence, consider all of the evidence given in the case. Use what you believe is true and reject what you disbelieve. Give each part of the evidence the importance which you as judge of the facts, think it should be given, and then determine what in your judgment are the true facts. Consider the submissions of counsel as they have each addressed the issue, particularly of reliability of the witnesses in this case.

Now in that context, you will have observed that [SMA] became visibly and audibly distressed in his interview when recounting the alleged offence. The prosecution invites you to use this as indirect evidence that supports the complainant's account. In other words, the prosecution says that this distress supports a conclusion that [SMA] was remembering and recounting a traumatic event. Given the circumstances, the prosecution say that this traumatic event was the alleged offence committed by [the applicant].

The defence dispute this and say that there may be many reasons why a person may become emotional in recounting an event real or imagined, and if [SMA] is not lying and he has just mistakenly, perhaps, got the wrong offender, he would still be showing distress.

In making your assessment you should appreciate, as I said before, that recounting of an alleged sexual offence in a police interview is not a common experience and it may be a stressful one and you should not jump to conclusions based on how a witness gives evidence. Looks and actions can be misleading and as I said, people react and appear differently according to circumstances and personal vulnerabilities. So you may take into account the evidence of distress, as I have just directed you, and consider each counsel's submissions but you should exercise caution and consider it in the context of all the evidence in the case.

39 In the passage extracted immediately above the judge directed the jury that they could use the complainant's distress during the VARE - which the judge characterised as 'evidence of distress' - 'as indirect evidence that supports [his] account'. That was a significant misdirection.

40 Distress displayed by a complainant shortly after an alleged sexual offence can in certain circumstances be a form of circumstantial evidence that independently supports a complainant's account. To be admissible, however, it must be reasonably open to infer from the evidence that there was a causal connection between the distressed condition of the complainant and the alleged sexual offence.[21] Even when admitted, evidence of distress generally will carry little weight. Thus, in Munro, Nettle JA said:[22]

In R v Flannery[23] it was held that in determining whether evidence of the distressed condition of a complainant is capable of amounting to corroboration, regard must be had to such facts as the age of the complainant, the time interval between the alleged assault and when she was observed in the distressed condition. If, having regard to such factors, the reasonable inference from the evidence is that there was a causal connexion between the alleged assault and the distressed condition, evidence of the latter is capable of constituting corroboration. Except in special circumstances, however, evidence of distressed condition will carry little weight and the court said that juries should be so warned by the trial judge in the course of the judge's charge.

41 In our view, it is abundantly clear that SMA's distressed condition during the VARE could not be characterised as circumstantial evidence capable of independently supporting his account. More than three and a half decades had intervened between the alleged offending and his observed distress. It simply was not open to infer that there was a causal connection between his distressed condition and the alleged sexual offending of the kind which renders the distress capable of being part of the circumstantial evidence in the case.

42 When it is alleged that a complainant has been subjected to an incident which ordinarily would result in emotional distress, evidence of such distress, observed in circumstances sufficiently connected with the incident, can logically support the complainant's account of it. The logical force of such evidence resides in the relevant connection between the alleged incident and the subsequently observed distress.

43 In the present case, SMA's distress, which was the subject of the judge's direction, occurred when he recounted the alleged offending in the VARE interview - which became his evidence in chief in the trial - almost four decades after it was said to have occurred. Given those circumstances, it could not fairly be concluded that the distress of the complainant had such a sufficient connection with the alleged offending - as distinct from his four decades old recollection of it - as to rationally support the reliability of his account of the incidents in question.

44 Furthermore, the judge's direction invited 'bootstraps' reasoning. As to that, Meyer[24] was a case of alleged rape in which directions concerning distress were impugned on appeal. In that case, the trial judge directed the jury that evidence of the complainant's distress shortly after the alleged rape could be used as independent support for her evidence. (The complainant in that case had called a friend, Stephen Marotta, to pick her up from premises where the alleged rape occurred.) Nettle JA, with whom Vincent and Redlich JJA agreed, said:[25]

It is contended that the judge erred in the directions which she gave the jury concerning corroboration, in particular by directing the jury that:

'Also evidence which is capable of being relied upon [by] you for distress is evidence [given by the complainant] of her conduct after that first call in getting dressed, packing her bag and sitting with her back against the door for the time it took Mr Marotta to drive to Melbourne from Wangaratta.'

And that:

'If you do find that [the complainant] was distressed, then you can rely on that evidence of distress as independent support for [the complainant's] evidence that she was sexually assaulted, that is, raped, and indecently assaulted.'

The error is obvious. It is rudimentary that a complainant's testimony is incapable of constituting independent evidence in support of her own allegations.[26] As Barton J put it in Ridley v Whipp,[27] the notion that a complainant is capable of corroborating herself by her own evidence -

'... reminds one of the familiar simile of a man trying to lift himself off the ground by his bootstraps. If one part of a person's evidence is relied on for corroboration of the remainder, the answer instantly arises that the part relied on is as much under the original reservation as the part sought to be corroborated.'

45 Nettle JA held that the conviction could not be saved by the application of the proviso. Redlich JA agreed, and added:[28]

The direction that such evidence was independent evidence supporting the complainant's testimony constituted a serious miscarriage which cannot be saved by the application of the proviso. The misdirection may have affected the jury's preference for the complainant's account. Consequently, in considering whether the proviso should be applied, this Court cannot take into account the jury's verdict or its view as to the complainant's credibility which is inherent in its verdict. For these and the reasons given by Nettle JA the proviso cannot be applied.

46 In the present case, of course, the complainant had not given evidence that he was distressed after the offending. Rather, his distressed condition when recounting the alleged offending in the VARE was observable when viewing the VARE. That did not render it independent evidence supporting his testimony. That is, logically it did not provide rational support for the proposition that his evidence as to the alleged offending was reliable.

47 Ground 2 is made out. It is impossible to conclude that the judge's error did not result in a substantial miscarriage of justice. Plainly, the jury's assessment of SMA's credibility and reliability was critical to conviction. The impugned direction had the potential wrongly to bolster his reliability, and thereby the jury's acceptance of his evidence. As a result, the applicant's conviction cannot be permitted to stand. A new trial must be had.

48 Before departing this ground, there is one final matter we should mention. The respondent's counsel drew our attention to the fact that the directions impugned in the present case appear to have been drawn from the following model directions in the Charge Book:[29]

If you find that NOC was distressed when [describe circumstances of recounting the alleged offence], the prosecution invites you to use this as indirect evidence that supports the complainant's account that [describe the issue the evidence may support (e.g. "s/he did not consent to the penetration"). In other words, the prosecution says that the distress supports a conclusion that NOC was remembering and recounting a traumatic event. Given the circumstances, the prosecution say that the traumatic event was the alleged [identify relevant offence].

49 In our view, as the cases earlier discussed illustrate, the second and third sentences in the extracted passage from the Charge Book are misleading, and should be deleted.

50 The application for an extension of time within which to file a notice of application for leave to appeal against conviction, and the application for leave to appeal against conviction, should be granted, and the appeal allowed. A new trial should be ordered.

[1] Section 275(1) of the Criminal Procedure Act 2009 requires a notice of application for leave to appeal against conviction to be filed 'within 28 days after the day on which the person is sentenced or any extension of that period granted under section 313'.

[2] Madafferi v The Queen [2017] VSCA 302, [11] (Priest, Hansen and Coghlan JJA).

[5] Video and audio recorded evidence. See Criminal Procedure Act 2009, s 367; and Criminal Procedure Regulations 2009, Part 2.

[7] See Criminal Procedure Act 2009, Part 8.2A (ss 389A to 389K).

[8] See Criminal Procedure Act 2009, ss 366(2) and 369(2).

[9] See the definition of cognitive impairment in Criminal Procedure Act 2009, s 3(1).

[10] We note that, in the Summary of Prosecution Opening, the prosecution asserted that the complainant had a cognitive impairment because he 'suffers the mental illnesses of Major Depressive Order [scil, Disorder] with recurrent episodes and Panic Disorder', and 'suffers relatively acute symptoms as a result of his mental illnesses - including severe anxiety, recurrent, unexpected panic attacks and depressed mood most of the day, nearly every day - and has done so for more than a decade'.

[11] Presumably the Royal Commission into Institutional Responses to Child Sexual Abuse.

[12] See [14] above.

[13] See [16] above.

[14] See [13] and [16] above.

[15] See [21] above.

[16] M v The Queen [1994] HCA 63; (1994) 181 CLR 487, 493 (Mason CJ, Deane, Dawson and Toohey JJ) ('M').

[18] Pell v The Queen (2020) 268 CLR 123, 145 [39] (Kiefel CJ, Bell, Gageler, Keane, Nettle, Gordon and Edelman JJ) (citation as in original) ('Pell').

[21] R v Flannery [1969] VicRp 72; [1969] VR 586, 591 (Winneke CJ, Pape and Starke JJ); R v Rogers [2008] VSCA 125, [18]-[20] (Nettle JA); Flora v The Queen (2013) 233 A Crim R 320, 333 [69] (Redlich, Weinberg and Coghlan JJA).

[22] R v Munro [2005] VSCA 260, [49] (citation as in original).

[23] [1969] VicRp 72; [1969] VR 586 at 591.

[24] R v Meyer [2007] VSCA 115 ('Meyer').

[25] Ibid [8]-[9] (emphasis added; citations as in original).

[26] R v Christie [1914] UKLawRpAC 20; [1914] AC 545 at 557; R v Whitehead [1929] 1 KB 99 at 102; Eade v The King [1924] ArgusLawRp 24; (1924) 34 CLR 154 at 157; Heydon, Cross on Evidence, Aust. Ed. at [15185].

[27] [1916] HCA 76; (1916) 22 CLR 381 at 389.

[28] Meyer, [24] (footnote omitted).

[29] Victorian Criminal Charge Book, Judicial College of Victoria, [4.9.1].