For the reasons given above, the applicant's appeal against conviction must be allowed on proposed ground 1 and a retrial ordered of charges 2 to 10.
[2]
In telling the jury in his final address that the accused had chosen 'to produce videos, screenshots and posts of messages of his own' but that 'one thing that hasn't been produced is a single shot from [the complainant] to [the applicant] in which she expresses her love for him or his love for her', the prosecutor reversed the onus of proof. The statements were clearly wrong. They should not have been said.
Moreover, the vice of these statements was not ameliorated by the 'topping and tailing' of them with what some might think was, in the circumstances in which the prosecutor's improper argument was made, a ritualistic incantation that 'the accused does not have to prove anything'.
While it is important for any criminal jury to be told that, no matter whether the accused has called or not called evidence, there is never any onus on an accused to produce any evidence on any topic, any statement that an accused has failed to produce some item or evidence risks reversing the onus of proof, no matter what allegedly panacean statement might be made before or after the making of some assertion that the accused has not produced some item at trial that the jury might think material.
The judge correctly recognised the vice of the prosecutor's statements and said that she would give directions about them in her charge. Unfortunately, her Honour failed to do so. Also unfortunately, neither defence counsel, nor the prosecutor, reminded her Honour about the matter.
While there were opportunities for defence counsel to remind the judge during breaks in her Honour's charge, it may be accepted that to have raised the matter (by way of an exception) at the end of the charge had its own difficulties. A corrective direction on the prosecutor's improper argument at the conclusion of the charge would have tended to highlight the argument, with the concomitant problem that the jury may have been moved to observe that there was an absence of loving messages from the complainant to the applicant.
Given defence counsel's failure to raise the judge's failure to give a direction of the kind her Honour said she would give in relation to the prosecutor's improper argument, we may not have upheld this appeal if ground 2 were the only ground of appeal. However, given our conclusion on ground 1, it is not necessary for us to resolve that question. It is sufficient for us to say that the failure of the judge to give a corrective direction about the prosecutor's improper argument during the course of the charge fortifies us in our conclusion that this appeal should be allowed.
[3]
Leave to appeal will be granted and the appeal will be allowed. The applicant's convictions and sentences on charges 2 to 10 on Indictment M12418103 will be set aside and we will order that the applicant be retried on those charges.
[4]
[1] To ensure that there is no possibility of the identification of a victim of sexual offending, this judgment has been anonymised by the adoption of pseudonyms in place of the name of the respondent and his victim.
[3] Contrary to the common law. The jury acquitted the applicant of a charge of making a threat to kill, contrary to s 20 of the Crimes Act 1958. The alleged victim was again the complainant.
[5] In context, these were the audio recording relating to charge 8 and the videorecording relating to charges 9 and 10.
[9]
[6] Other evidence included evidence from the informant; evidence from a doctor who examined the complainant on 15 July 2021; evidence from friends of the applicant's family; evidence from a person who employed the applicant in 2017/2018; and conflicting evidence about the warmth (or lack thereof) of the relationship between the complainant and members of the applicant's family.
[10]Karam v The King[2023] VSCA 318, [216] (Beach, McLeish and Kennedy JJA); Allen v The King[2024] VSCA 128, [18] (Taylor, Lyons and T Forrest JJA) ('Allen').