1. Following a trial in the County Court, on 13 February 2024 the jury empanelled to try her by unanimous verdict found the applicant guilty of sexual assault[1] (two charges - charges 1 and 2) and by majority verdict found her guilty of rape[2] (one charge - charge 3).
2. On 29 August 2024, following a plea conducted on 1 July and 22 August 2024, the judge sentenced the applicant to a term of imprisonment.[3]
3. By a notice dated 23 August 2024, the applicant seeks leave to appeal against her conviction on two grounds as follows:
   1. The learned trial judge erred in her directions to the jury concerning the distressed condition of the complainant whilst giving evidence by:

(a) failing to direct the jury in accordance with the requirements of s 54K(5)(b) of the Jury Directions Act 2015; and

(b) directing the jury in such a manner as to permit the jury to take that evidence of distressed condition into account in determining whether the complainant's evidence was truthful and reliable in circumstances where that evidence was inadmissible for those purposes -

with the consequence that there has been a substantial miscarriage of justice.

1. A substantial miscarriage of justice occurred by reason of the failure of defence counsel to adduce positive evidence of the applicant's good character.

1. At the conclusion of oral argument on 2 December 2025, the Court was of the view that ground 1 must succeed. We thus made orders granting leave to appeal against conviction on that ground; allowing the appeal; setting aside the convictions; and ordering that there be a new trial. These are our reason for those orders.
2. Given our conclusions on the first ground, it was unnecessary to consider the second ground concerning conviction, or the applicant's application for leave to appeal against sentence filed on 20 September 2024.

1. Before turning to the grounds of appeal, it is convenient to summarise the evidence at trial, which was to the following effect.
2. In March 2019, the applicant, then aged 44 years, and 'LF', a female aged 41, were voluntary patients at a Melbourne facility providing mental health services. They had not known each other prior to their respective admissions to the facility, but had become friendly. Their rooms were immediately across the corridor from each other.
3. On the night of 20 March 2019, LF was awoken by a noise and saw 'the person who was in the room across from [her]' - that is, the applicant - at her door. The applicant then jumped on LF's bed and got on top of her. She told LF that she had been drinking - which was against the rules of the facility - and not to say anything. LF, who could smell alcohol, told the applicant to 'hop off'.
4. While on top of LF, the applicant put her hand down LF's top. LF could not move because the applicant was on top of her. The applicant touched LF's breast with her hand 'for a couple of minutes' (charge 1 - sexual assault). She then put her hand into LF's pants. The applicant moved her hand under LF's underwear and touched 'the top of [LF's] vagina' (charge 2 - sexual assault). LF was telling the applicant to stop and that it was not funny as the applicant was laughing. The applicant touched LF on her clitoris and 'on the inner' part of her labia (charge 3 - rape). LF gave evidence that 'the nurses' arrived then at her room, and the applicant, who had fallen out of the bed, ran and hid behind the door. LF then took a photo of the applicant.

Section 54K of the JDA

1. So far as relevant, s 54K of the Jury Directions Act 2015 ('JDA') provides:[4]

54K Direction on whether complainant is distressed or emotional while giving evidence

(1) If the complainant is to give evidence, the trial judge must direct the jury in accordance with subsection (5) unless there are good reasons for not doing so.

...

(2) The trial judge must give the direction before the complainant gives evidence unless there are good reasons for not doing so.

...

(5) In giving a direction under this section, the trial judge must inform the jury that experience shows that -

(a) because trauma affects people differently, some people may show obvious signs of emotion or distress when giving evidence about a sexual offence, while others may not; and

(b) both truthful and untruthful accounts of a sexual offence may be given with or without obvious signs of emotion or distress.

1. At the close of evidence, in the discussion between judge and counsel contemplated by s 12 of the Jury Directions Act 2015 ('JDA'), the judge said she was 'looking at 54K', and 'wondering whether that was an appropriate direction to give', given that LF 'was distressed at times in giving her evidence'. A little later the judge observed that she had not had a case 'where a witness has been so emotional in evidence'. She also observed that she previously had not had to give a direction under s 54K of the JDA, but it seemed to her that one 'should be given' and she could not see 'a good reason not to'.
2. Both prosecution and defence counsel accepted that there was no good reason not to give the directions required by s 54K.
3. In the result, in her charge the judge gave the jury the following directions:[5]

You should bear in mind that no witness is generally all one thing or another. A witness might be truthful and accurate on one point and truthful and inaccurate on another point and maybe not truthful at all on another point. It is not an all in all out approach. Do not assume that once one person you have made an assessment here, that that applies throughout. You need to be mindful that when you are considering an important fact for you, that you make individual assessments and compare the relevant evidence when you get to that point.

Of course a witness's behaviour when they are giving evidence is a factor that you can take into account. As I directed you at the outset it is not by any means the most important factor, and given the distress of giving evidence, people might behave differently than you might expect. I am going to give you a direction now specifically to [LF]. You will have observed that she became quite distressed at points when she was giving her evidence, when she was crying and indeed we needed to have a break so she could recover her composure.

There are two things that I want to say about that distress that she was experiencing. It may, when we see somebody distressed, it is a common thing to feel compassion for that person. Do not let any feelings of compassion you may have felt, if you did, for [LF] when she became upset, do not allow those to colour your assessment. Do not go on, 'Oh, she's a sad lady, I want to believe her'. That is not a rational process. That is an emotional process. You will remember I told you very firmly to use your heads and not your heart.

Now as to how important [LF's] behaviour in the witness box was, I am giving you this direction of law. Experience shows that because trauma affects people differently, people behave differently when they are speaking about a past event. One person when they are talking about a traumatic past event might be cold and robotic. Another person might be extremely distressed. It is difficult therefore to use how someone behaves as a powerful factor in your decision-making process about whether their behaviour in the witness box convinces you as to their truthfulness and reliability.

Now you will have noticed that I cast that in terms of people. I am not assuming and giving you that direction that [LF's] allegations are true and that she is indeed traumatised, I am just giving you a general direction that trauma affects people differently and how people then speak about traumatic events may be very different from person to person.

I am going to repeat now some of the other general directions about people's responses to sexual offending. ...

1. Neither the prosecutor nor defence counsel took any exception to these directions.

Submissions of the applicant's counsel in this Court

1. In support of the first ground of appeal, counsel for the applicant in this Court submitted that in the directions set out immediately above the judge did not, in terms or in substance, inform the jury that 'experience shows' that 'both truthful and untruthful accounts of a sexual offence may be given with or without obvious signs of emotion or distress' as required by s 54K(5)(b) of the JDA. By reasons of s 54K(1), such a direction was a mandatory component of a direction under s 54K(5). Thus, the applicant was deprived of the benefit of a direction - to which she was statutorily entitled - which included informing the jury that the experience of the law is that untruthful accounts of sexual offending may be given with obvious signs of emotion or distress.
2. Counsel for the applicant submitted that although it does not automatically follow that a substantial miscarriage of justice will result from every failure to give a mandatory direction prescribed by the JDA,[6] in this case the failure to give the mandatory direction in s 54K(5)(b) has done so.
3. The applicant's counsel submitted that the trial judge's directions permitted the jury to treat LF's distress whilst giving evidence (at least) as a factor in determining that she was a truthful and reliable witness. Given the extent of LF's distress whilst giving evidence, the s 54K(5)(b) direction - by alerting the jury to the experience of the law that untruthful accounts of sexual offending may be given with 'obvious signs of emotion or distress' - would have provided an appropriate and necessary balancing direction, or warning, to the jury. Absent the s 54K(5)(b) direction, there was a real risk that the jury might overvalue or place too much weight upon LF's distressed condition while giving evidence in assessing her credibility and reliability. Given that the outcome of the trial turned upon the jury's acceptance of LF as a truthful and reliable witness, it is not possible to conclude that the failure to give the s 54K(5)(b) direction 'did not make a difference to the outcome of the trial'.[7]
4. Furthermore, the applicant's counsel submitted that LF gave evidence at trial on 6 February 2024, nearly five years after the alleged commission of the charged acts on 20 March 2019. The effect of the trial judge's directions was to permit the jury to treat LF's distressed condition when giving evidence - her 'behaviour in the witness box' - as a factor in assessing her 'truthfulness and reliability'. In effect, the jury were directed that they were permitted to use - or, at least, the jury were not directed that they could not use - LF's distressed condition while giving evidence as a form of circumstantial evidence (that is, independent of the substance of LF's evidence as to what had happened on 20 March 2019) which bolstered her credibility and reliability. That was a misdirection. The jury's observation of LF's distressed condition could not be used for that purpose.
5. Counsel submitted that the misdirection had potential wrongly to bolster LF's credibility and reliability in the jury's assessment. Given that the jury's assessment of LF's credibility and reliability was crucial to the outcome of the trial, there has been a substantial miscarriage of justice. The fact there was no objection to the directions in issue cannot save the convictions in those circumstances.[8]

1. The respondent's counsel acknowledged that, although the judge's directions accorded with s 54K(5)(a) of the JDA, they did not conform to s 54K(5)(b). Counsel submitted that no substantial miscarriage of justice resulted, however, and the failure to give the required direction did not have the capacity to affect the outcome of the applicant's trial.
2. Counsel for the respondent drew attention to the fact that s 54K was introduced into the JDA by the Justice Legislation Amendment (Sexual Offences and Other Matters) Act 2022, to implement recommendations made by the Victorian Law Reform Commission ('VLRC').[9] The respondent's counsel also drew attention to the Explanatory Memorandum[10] and the Second Reading Speech,[11] which she submitted made clear that the introduction of the requirement to inform the jury of the matters in s 54K was intended to dispel misconceptions in order to address possible unfairness to a complainant of a sexual offence who did not appear distressed when giving evidence. It must follow, counsel submitted, that Parliament did not intend that any failure of a trial judge to comply with s 54K would constitute a fundamental defect in the trial requiring a conviction to be set aside on appeal.
3. The respondent's counsel submitted further that, to demonstrate that a substantial miscarriage of justice has occurred because of the failure of the trial judge to give the 'second aspect' of the s 54K(5) direction, the applicant must establish that the failure had the capacity to affect the result of the trial. The failure to direct the jury in accordance with s 54K(5)(b) did not have the capacity to divert the jury from its task in assessing the credibility and reliability of the complainant and therefore could not have made a difference in the outcome of the trial.
4. Counsel for the respondent additionally submitted that the judge did not give a direction which invited the jury to treat the complainant's distress when giving evidence as independent evidence that bolstered the credibility of her account. It is uncontroversial that the jury is entitled to assess not only what a witness says in the witness box but also the manner in which they give their evidence. There was no error in the trial judge's direction, which, in effect, permitted the jury to have regard to the complainant's demeanour in the witness box - including her distress - in assessing her credibility and reliability.

1. In our view, a substantial miscarriage of justice resulted from the judge's failure to give a direction that conformed to s 54K(5)(b) of the JDA.
2. The directions provided for in both limbs of s 54K(5) are mandatory. As is made clear by s 54K(1), the trial judge must direct the jury in accordance with both limbs 'unless there are good reasons for not doing so'.
3. In the present case, as we have mentioned, the trial judge observed that, although she had not previously given a direction under s 54K, it seemed to her that one 'should be given' since she could not see 'a good reason not to'; and both counsel accepted that that there was no good reason for not giving the required directions.
4. Notwithstanding that the judge and trial counsel all apparently recognised that there was no good reason for not giving the directions required by s 54K(5), however, the trial judge in effect gave the direction required by s 54K(5)(a), but inexplicably not the direction required by s 54K(5)(b).
5. The transcript of the trial does not reveal why the direction required by s 54K(5)(b) was not given (or, for that matter, why no exception was taken to the failure to give it). Given the circumstances, however, it is probable that the failure to give the direction (and to take exception) was inadvertent rather than deliberate.
6. The evident purpose of s 54K(5) is to ensure that juries understand that 'experience shows' both that a truthful account of a sexual offence may be given with or without obvious signs of emotion or distress, and that an untruthful account of a sexual offence may also be given with or without obvious signs of emotion or distress. By enacting s 54K(5)(b), the legislature clearly considered that, in cases where a complainant's account in evidence is 'given with ... obvious signs of emotion or distress', it was important that (among other things) the trial judge bring home to the jury that experience shows that untruthful accounts may be given with such obvious signs of emotion or distress.
7. In recognising that a substantial miscarriage of justice resulted from the judge's failure to give the 'balancing' direction required by s 54K(5)(b), it is important to understand that the convictions in this case turned on the jury being satisfied beyond reasonable doubt that LF's account was truthful. Absent being given the kind of mandatory balancing direction provided for in s 54K(5)(b), there is a risk that the jury might too readily have assumed that the account given by LF with 'obvious emotion or distress' was truthful. Failure to direct the jury to the effect that experience shows that untruthful accounts (like truthful accounts) may be given with obvious emotion and distress may well have influenced the way in which the jury assessed LF's evidence; in particular, the weight they attributed it. In those circumstances, we find it impossible to conclude that, in the absence of the direction, conviction was inevitable (noting that the verdict on charge 3, rape, was by a majority).
8. Awad was a case in which the judge in a trial for a drug offence failed to comply with s 44J(b) of the JDA, which provides that, when an accused person has given evidence, a trial judge must not direct the jury that the accused gave evidence because (i) a guilty person who gives evidence will more likely be believed; or (ii) an innocent person can do nothing more than give evidence. One of two accused had given evidence - his evidence effectively exculpating the other - and the judge had given the jury directions prohibited by s 44J(b). In their joint reasons, Kiefel CJ and Gleeson J observed that the JDA does not itself spell out the consequences of a failure to comply with s 44J(b).[12] Given that it was not possible to conclude that, absent the error, conviction would have been inevitable, they accepted that there had been a substantial miscarriage of justice.[13] Gordon and Edelman JJ in their joint reasons also concluded that there had been a substantial miscarriage of justice.[14] Importantly, they observed:[15]

The more absurd the outcome of requiring a new trial or an acquittal for any breach of a legislative provision, the less likely that Parliament intended that outcome. Although it might be expressed in mandatory terms, in circumstances where a statutory provision can be contravened in a variety of ways, with effects that range from the most serious to the very trivial, Parliament should rarely be taken to have intended that any breach of the provision be treated as a substantial miscarriage of justice. This reflects the position at common law.

1. As we have indicated, by enacting s 54K(5)(b), Parliament clearly intended that, in cases such as the present, where a complainant's account in evidence is given with obvious signs of emotion or distress, it is important that the trial judge ensures that the jury understands that experience shows that untruthful accounts may be given with such obvious signs of emotion or distress. Given that LF's evidence was pivotal to conviction, the failure to comply with the mandatory provisions of s 54K(5)(b) cannot be dismissed as a trivial contravention.
2. For these reasons, as we have said, the first ground had to succeed. We therefore granted leave to appeal on this ground; allowed the appeal; set aside the convictions; and ordered that there be a new trial.

[1] Crimes Act 1958, s 40(1). The maximum penalty is 10 years' imprisonment.

[2] Crimes Act 1958, s 39(1). The maximum penalty is 25 years' imprisonment.

[3] The judge sentenced the applicant to 12 months' imprisonment on charge 1; 18 months' imprisonment on charge 2; and five years' imprisonment on charge 3; and ordered that one month of the sentence on charge 1, and two months of the sentence on charge 2, be served cumulatively with the sentence on charge 3. As a result, the total effective sentence was five years and three months' imprisonment, upon which the judge fixed a non-parole period of two years and nine months.

[6] Counsel cited Awad v The Queen [2022] HCA 36; (2022) 275 CLR 421, 329-31 [17]-[23] (Kiefel CJ and Gleeson J); 447-8 [86]-[91] (Gordon and Edelman JJ) ('Awad').

[7] Counsel cited Baini v The Queen [2012] HCA 59; (2012) 246 CLR 469, 479 [26] (French CJ, Hayne, Crennan, Kiefel and Bell JJ) ('Baini'); and Awad, 431-2 [26] (Kiefel CJ and Gleeson J).

[8] Seccull v The King [2022] VSCA 219; (2022) 69 VR 454, [50] (Priest JA).

[9] VLRC, Improving the Response of the Justice System to Sexual Offences, (Report No 42, September 2021).

[10] Explanatory Memorandum, Justice Legislation Amendment (Sexual Offences and Other Matters) Bill 2022, 53-55.

[11] Hansard, Legislative Assembly, 4 August 2022, 2908.