• Pre-Sentence Detention declaration pursuant to s 18(1) of the Sentencing Act 1991:

• Section 6AAA Statement:

• Pursuant to s 34 Sex Offenders Registration Act 2004, the length of the reporting period is 15 years

1. The applicant seeks leave to appeal against his conviction. He has two proposed grounds of appeal. Those grounds are in the following terms:

Ground 1: The verdict of the jury on charge 6 in relation to the applicant is unreasonable or cannot be supported having regard to the evidence.

Particulars:

The prosecution's case did not prove beyond reasonable doubt that the applicant did not believe on reasonable grounds that the complainant was aged 16 or older when charge 6 was allegedly committed.

Ground 2: The refusal of the application to discharge a juror identified as having bias because of their parents being drug addicts resulted in a substantial miscarriage of justice.

Particulars:

The refusal of the application was unreasonable.

1. For the reasons that follow, we are of the view that leave to appeal should be granted on proposed ground 1, that the appeal should be allowed, and that the applicant's conviction should be set aside. A judgment of acquittal should be entered in place of the conviction. It is therefore unnecessary to consider proposed ground 2.

1. The Crown case was that in 1995, or the early part of 1996, the complainant (who was born in May 1981) had a close relationship with Lavery. Lavery had babysat the complainant when the complainant was very young. When the complainant was around 14 or 15 she would visit Lavery at Lavery's house. Lavery and the applicant were at that time in a relationship and living together. Lavery and the applicant were aged approximately 22 and 25 respectively. They had a young child.
2. The prosecution alleged that there were two occasions of sexual activity involving the complainant that occurred at Lavery's house. On the first occasion it was alleged that Lavery kissed the complainant and placed the complainant's hand on Lavery's breast. These events took place in the loungeroom. The applicant was present. On the second occasion it was alleged that Lavery, the applicant and the complainant engaged in sexual activity together on a bed in the adult couple's bedroom. Part of this activity involved the complainant performing oral sex upon the applicant. It was this act of penetration that gave rise to the applicant's charge. The prosecution did not allege that this act was non-consensual. It was also alleged that on this occasion Lavery raped the complainant.

1. The issue raised by proposed ground 1 is, ultimately, quite a confined one.
2. The offence of which the applicant was convicted was the offence of sexual penetration of a child under the age of 16 contrary to s 45(1) of the Crimes Act 1958. At the time of this offence's alleged commission s 45(1) was in the following terms:

45. Sexual penetration of child under the age of 16

(1) A person who takes part in an act of sexual penetration with a child under the age of 16 is guilty of an indictable offence.

...

(4) Consent is not a defence to a charge under sub-section (1) unless at the time of the alleged offence the child was aged 10 or older and -

(a) the accused believed on reasonable grounds that the child was aged 16 or older; or ...

1. For the applicant to be guilty of this offence it was necessary for the prosecution to prove, first, that the applicant had taken part in an act of sexual penetration; secondly, that the applicant intended to commit such an act; and thirdly, that the complainant was aged under 16 when the act of sexual penetration took place.[2]
2. The jury were directed, however, that in certain circumstances consent could be available as a defence to this charge. In the present case, the complainant's age did not preclude the applicant's reliance on consent as a defence; the complainant was 'aged 10 or older' at the relevant time. Nevertheless, and as directed, the applicant could not rely on the defence of consent if the prosecution was able to prove - beyond reasonable doubt - that the applicant did not believe on reasonable grounds that the complainant was aged '16 or older' at the time of the alleged penetration.[3] The prosecution could prove this by establishing, to the required standard, either that the applicant did not believe that the complainant was 16 or older, or that there were no reasonable grounds for such a belief. Thus the jury were directed as follows:

As a result the prosecution must prove beyond reasonable doubt either that [the applicant] didn't believe that [the complainant] was aged 16 or older at the time of the penetration or that [the applicant] did not have reasonable grounds to believe that [the complainant] was 16 or older at the time of the alleged penetration.

1. If the prosecution was unable to prove beyond reasonable doubt the absence of a belief held by the applicant that the complainant was 16 or older and the absence of reasonable grounds for such a belief, then consent was available to the applicant as a defence to the charge that he faced.
2. In closing argument to the jury, the prosecutor conceded that he could not prove that the applicant's sexual penetration of the complainant took place without her consent. As the prosecutor put it:

Let me talk to you about Charge 6. Charge 6 is the situation, the occasion on the bed where she's being orally penetrated by [the applicant]. It's clear and I'll concede this that, but for this age issue, to that act, [the complainant] was agreeing.

1. The prosecutor in closing also conceded that he could not prove that the applicant did not subjectively believe that the complainant was aged 16 or older at the time of the alleged penetration. As it was put by the prosecutor:

There's no evidence in this case about what [the applicant's] belief in fact was. So you'd move on, and I mean I'd ask you to move on to if you're satisfied of each of the other elements to get to this point, can the prosecution prove there were no reasonable grounds for [the applicant] believing that she was 16 or over.

1. The prosecutor did not concede, however, was that it was reasonably possible that there were reasonable grounds for any belief held by the applicant that the complainant was aged 16 or older.
2. The applicant's primary case at trial (as expressed through questions asked in cross-examination of the complainant) was that the act of penetration alleged against him had not taken place. Nevertheless, a secondary - or alternative - case was developed. This alternative argument relied on the prosecution's inability to prove that there were no reasonable grounds for a belief held by the applicant that the complainant was aged 16 or older at the time of the alleged penetration. As argued by defence counsel:

Now, the next thing I want to address you on, members of the jury, is the defence raised in relation to this offence. You may have noticed that in this trial there has been a question floating around as to whether or not [the applicant] could have known that [the complainant] was under 16 at the time of the alleged offending and that is because even if you find the prosecution has proven all three elements of this offence, [the applicant] will not necessarily be guilty of the offence. This is because in some circumstances, there will be a defence. For [the applicant], there is a defence available if he believed on reasonable grounds that the complainant was at least 16 at the time of the alleged penetration. But as I said earlier, that is not for [the applicant] to prove. This is for the prosecution to disprove.

So as a result, if you have found that [the applicant] did sexually penetrate [the complainant] intentionally when she was under 16, then the prosecution must also prove beyond reasonable doubt that either [the applicant] did not believe that [the complainant] was aged 16 or older at the time of the alleged penetration or that [the applicant] did not have reasonable grounds to believe that [the complainant] was aged or older at the time of the alleged penetration.

Now, members of the jury, I submit to you that the prosecution hasn't even come close to proving either of the elements of this particular factor in this case.

1. It was thus necessary for the prosecution to prove beyond reasonable doubt that there were no reasonable grounds for a belief held by the applicant that the complainant was aged 16 or older at the time of the penetration. Concerning the possible existence of such reasonable grounds, the trial judge gave the jury the following direction:

For there to be reasonable grounds for a belief the belief must be based on facts which could have caused a reasonable person to believe the same thing.

So to prove this second alternative, the prosecution must prove that even if [the applicant] may have believed [the complainant] was 16 or older a reasonable person in his situation could not have reached that conclusion based on the facts known to [the applicant]. If the prosecution has proven beyond reasonable doubt that [the applicant] did not believe on reasonable grounds that [the complainant] was at least 16 years or older at the time, then consent will not be a defence and will not be relevant to your determination of [the applicant's] guilt.

1. The applicant did not contend in this Court that it was not open to the jury to find that the applicant had intentionally sexual penetrated the complainant when she was aged under 16. It was submitted by the applicant that the prosecution was unable to prove, beyond reasonable doubt, that there were no reasonable grounds for a belief held by the applicant that the complainant was 16 or older at the time of the penetration. For this reason, so it was submitted, the verdict of the jury was 'unsafe and unsatisfactory'.
2. Consistently with the manner in which the prosecutor had closed the case to the jury, the respondent did not contend in this Court that it was open to the jury to infer beyond reasonable doubt the absence of a subjective belief on the applicant's part that the complainant was aged 16 or older. The respondent did contend, however, that it was open to the jury to infer the absence of reasonable grounds for such a belief. On this basis, it was submitted that the verdict was not 'unsafe'.
3. In order to determine the merits of these submissions, it is necessary to have some appreciation of the evidence that was adduced at trial.

1. In evidence-in-chief, the complainant said that she grew up in a rural town in Victoria. She lived there until she was seven. The complainant remembered being babysat by Lavery a few times when she was in primary school. Lavery was friends with the complainant's mother. The last time that the complainant was babysat by Lavery was at Lavery's house. The complainant thought that she was aged six when this occurred. The complainant would have been in primary school. She remembered getting a taxi from Lavery's place to school the next morning.
2. When the complainant turned seven she moved interstate with her mother and stepfather. She lived interstate until she was 14. She then returned to the town of her upbringing in Victoria. By this stage the Department of Human Services was involved in her life. The complainant lived with her brother and father. She said that at that point she was in Year 8 or 9 and enrolled at a local high school.
3. After her return from living interstate, the complainant said that she would go to Lavery's house and socialise with Lavery and the applicant. Initially, the complainant's father drove the complainant to Lavery's house. After a while the father refused to drive her and so the complainant would ride her bike. She remembered that it was a pretty long way. The complainant remembered that Lavery, the applicant and the adult couple's daughter (then aged roughly between 12 and 18 months) were all living together.
4. The complainant remembered a particular occasion when she visited Lavery. She was 14. They were all sitting around in the loungeroom, drinking and smoking bongs. Lavery gave the complainant 'half a pill', which the complainant took. The complainant was not sure what they were drinking, but she remembered that it was in a can. The complainant said that she took the pill because she wanted to fit in. The complainant began to feel the effect of the pill. Lavery walked into the room with her top off. Lavery asked the complainant whether her nudity made the complainant feel uncomfortable. The complainant said that she wanted to 'fit in', and so she replied, 'yeah, nah; that's fine', or something to that effect.
5. Lavery then asked the complainant to 'prove it'. By this she meant that she wanted the complainant to remove her top. The complainant said that she was unable to remove her top properly because of the effect of the drug that she had taken. Lavery then removed the complainant's 'top clothing' and took the complainant's hand. Lavery placed the complainant's hand on Lavery's breast. The complainant said that the last thing she remembered was laying on the floor in front of the couch and Lavery taking the complainant's jeans off. There was no further conversation. The applicant was in the loungeroom on the couch by the door. He was just sitting there, watching. He didn't say anything.
6. The complainant said that Lavery kissed the complainant 'at some stage'. This was after the removal of the complainant's top and the placement of her hand on Lavery's breast. The complainant described the nature of Lavery's kiss. She said that Lavery's tongue went straight in her mouth. She said that it was 'very lustful'. The complainant said that she was unable to respond because of the effect of the drug. The complainant said that she had no further recollection of that night, and didn't remember going home.
7. The complainant said that she returned to Lavery's house about a week or so later. She assumed that it was around summer time because the weather was warm. It was the summer of 1995, or so the complainant thought. The complainant said that she was enrolled at a local high school and that she was in either Year 8 or 9. The complainant said that on this occasion she, Lavery and the applicant 'were all having sex'.
8. The complainant said that she was desperate for friends, and that in order 'to be friends with [Lavery] ... I was prepared to do anything'. The complainant said that she had decided that this was what Lavery and the applicant wanted in exchange for being friends.
9. The complainant said that she, Lavery and the applicant were having sex on the bed. At one point the complainant performed oral sex on the applicant. The applicant's penis was in the complainant's mouth. She was sucking on it and moving it so it went in and out of her mouth. The complainant said that Lavery tried to instruct her on how to do this properly. Lavery tried to get the complainant to do it another way. The applicant told Lavery that what the complainant was doing was 'fine', and to leave the complainant alone.
10. Lavery then got 'really angry' and penetrated the complainant's vagina with a 'child's toy' - a 'centre of a pyramid ring-toss game'. The complainant said that she told Lavery not to do this and said 'no'. But Lavery continued to push the toy up inside the complainant, as far as it would go. This hurt the complainant. Lavery told the complainant that this was all that the complainant was going to have inside her and that she wasn't going to let the applicant do that to her. Lavery told the complainant that she wasn't going to let the applicant 'fuck' the complainant. Lavery only stopped penetrating the complainant when the applicant told her to stop.
11. The complainant said that Lavery then tried to 'dissolve' the situation. Lavery wanted the complainant to sleep with the couple. The complainant didn't want to do this. She slept by herself in the daughter's room.
12. The complainant said that her mother found out about this incident when she found the complainant's diary. The complainant said that her mother 'reacted very inappropriately'. She said that she thought that these events occurred when she was 14. The complainant later said, in response to a question asked by Lavery's counsel, that she never told her mother about these incidents. The complainant thought that she first reported the matter to police in 2015. During cross-examination by Lavery's counsel, it was put to the complainant that she first reported the matter on 12 February 2016; the complainant accepted this. The complainant didn't finish her police statement until about 2017. This delay was due to the complainant's trauma.
13. In answer to further questions asked by Lavery's counsel, the complainant said that she could not remember when or how she came to be babysat by Lavery. She thought that the first time was when she was living in Melbourne but could not confirm this. This was possibly when her mother was married to the mother's second husband. She remembered being six when Lavery visited her at her home in Ballarat after the complainant had moved there from Melbourne. This was a different occasion to the time when she used a taxi.[4] The complainant confirmed that she was 14 when the sexual assault occurred.
14. The complainant agreed that she had used cannabis while she was living interstate and that her mother had raised the issue of her smoking cigarettes. The complainant said that she continued using cannabis regularly after she returned to Victoria. She said that she used to bring it to Lavery's house. She said that she supplied Lavery, and the applicant, with cannabis 'for free'. She thought that she did this when she was 14. She wasn't working and had no income. She said that her father gave her the cannabis. She was not close to her father; but she had previously tried to protect her father by not disclosing the fact that he had given her the cannabis.
15. The complainant said that she went over to Lavery's house with a 'handful of joints'. To the best of her recollection she provided the drugs 'most of the time'. She said that she drank alcohol when she lived interstate, and that she continued to drink alcohol after she returned to Victoria. The complainant agreed that, well after the present offending, she had attended two licenced venues on two separate occasions. This was when the complainant was still under 18. She couldn't remember how she reconnected with Lavery after she returned to Victoria.
16. The complainant said that Lavery knew her age because 'she knew me from when I was a younger kid'. She said that Lavery didn't need to ask her age - 'she knew how old I was'. The complainant couldn't remember if Lavery asked her how old she was. The complainant agreed that she wanted Lavery, and the applicant, to treat her like an adult. She didn't agree, however, that she wanted Lavery and the applicant to think that she was older than she was. She said that there were other occasions when she was dropped off by her father at Lavery's place.
17. The complainant said that she wanted to spend time with Lavery; that she generally had cannabis with her; and that she started riding her bike to Lavery's place because she wanted to see Lavery. She said, however, that she had 'no care' for the applicant. She said that no one forced her to go back to Lavery's - even after she was first assaulted. As the complainant described it:

I was just so desperate, so desperate for this woman to care for me and have me as her friend that I would just put up with anything ... to the point of me being an imposition in their life.

1. The complainant said that she went to Lavery's place

because we were having a sexual relationship, so I felt like we were in a relationship. And so I felt like I could just go anytime I wanted to.

1. The complainant agreed that she went to Lavery's 'to try and be an adult and to try and just be friends'. She said that

I had to have sex with those people in order to assert my adulthood and maintain being [Lavery's] friend.

1. The complainant said that if she told Lavery and the applicant that she had been working, she would have been talking to them about work experience that she undertook when she was attending the local high school. This was the only work that she did. The complainant conceded that it was possible that she had told Lavery that she was working when in fact she wasn't. But the complainant said:

I had no reason to try and convince this woman that I was older than I was because she knew how old I was.

1. The complainant assumed that the applicant was living with Lavery. She did not remember them discussing their relationship with her. The applicant was there every time that the complainant went over. As the complainant described it, the applicant seemed to be there in the 'capacity as [Lavery's] partner and father of her child'.
2. The complainant conceded that she experienced 'issues' with her memory due to the alcohol and cannabis that she had consumed over the years. She had suffered multiple head injuries and had self-medicated by consuming other drugs such as 'acid' and mushrooms. She had also taken synthetic cannabis.
3. The complainant said that, despite the lapse of almost 30 years, she remembered the incidents. Nevertheless, she admitted that there were 'large details' that were 'vague' and 'fuzzy'. She said that the best that she could say was that the offending took place in the summer of 1995, because it was warm. By summer she meant the end of 1995 and early 1996. She said that she couldn't tell the 'exact time' but it was ''95'. This was the best that she could say.
4. The complainant said that the reason why she was unsure whether she was in Year 8 or 9 when she returned from interstate was because the classes interstate were different. She said that she didn't know whether she was enrolled at her local high school at the start, middle or end of the school year. She didn't know if the first incident at Lavery's house occurred on a school day or on a weekend. She did not know if it was during school term or the holidays. She didn't know what day of the week it happened. She said that she thought that it took place in the evening. She said that she was not sure about the dates and times but she was sure that 'these things happened'.
5. She wasn't sure how long after the first incident the second incident occurred. They were all smoking cannabis. They did this always. She said that she took the pill to 'fit in'. She said that on this occasion she could have left, but she chose to stay. She didn't say or do anything to indicate that she did not want to take her top off. She didn't say or do anything to indicate that she didn't want to kiss Lavery or touch Lavery's breast. She said that she was barely able to think at that point.
6. She said that she wanted Lavery to like her. She said that she 'loved' Lavery. The complainant thought of Lavery as an older sister. She said that she might have had a 'younger crush' on Lavery. But she said that she didn't think it was possible or appropriate for her to have that kind of relationship with Lavery until 'they [Lavery and the applicant] instigated the incident'. The complainant said, 'we had sex'. She said that she didn't feel hurt or rejected 'until the end when they discarded me'.
7. The complainant said that she was prepared to perform oral sex upon the applicant more for the benefit of Lavery's friendship. As the complainant put it: 'they wanted me to do so, so that's what I did'. She admitted her criminal history and denied the suggestion put to her by Lavery's counsel that the sexual activity with Lavery never happened.
8. In answer to questions asked by the applicant's counsel in cross-examination, the complainant said that she did not know the applicant before she moved interstate. Her best recollection was that she first met the applicant in 1995, in the summer of 1995-96. She did not believe that this meeting would have occurred later in 1996. She did not know the exact times.
9. The complainant agreed that she went to Lavery's premises a number of times when the applicant was there. When she went there, she tried to be friends with Lavery; she did not try and be friends with the applicant. She wanted to fit in with the adults. She said that she wanted to be an adult; she tried to behave like an adult and wanted to be treated like an adult.
10. She said that smoking cannabis made her feel accepted and part of the group. It made her feel included, like an adult. She consumed alcohol for the same reasons. She said that she didn't care about the applicant; she wanted to spend time with Lavery. She said that she did not remember having any conversation with the applicant at all.
11. The complainant said that she had no reason to tell the applicant that she was under 16 'because everyone knew how old [she] was'.[5] She said that just because she was a 14-year-old who was drinking and smoking didn't imply that she was of an older age. She again admitted to getting drunk, smoking cannabis in bongs, and smoking cigarettes. She repeated that sometimes she arrived at Lavery's unaccompanied, that she associated with the adults, and that she stayed at Lavery's into the evening. She said that she did everything to fit in with the group.
12. The complainant said that she did not remember being left alone with the applicant very often, or for long periods; it would only have been for a couple of minutes here and there. She said that she didn't remember doing anything to suggest that she was under 16. She said that Lavery knew exactly how old she was, but she didn't remember ever conversing with the applicant.
13. She did not remember the first time that she met the applicant. She did not remember going to Lavery's house with alcohol. She did not remember if her father went inside the house when he dropped her off. She denied that she told the applicant that she was in VCE. She denied that she showed the applicant an ID card showing that she was 18.
14. She said that she had probably been drinking and smoking cannabis on the night of the toy incident, although she didn't remember.
15. She denied that the sexual penetration allegation that she made against the applicant was untrue.
16. In re-examination, the complainant emphasised that the offending against her had occurred in 1995. She said that she knew this because she turned 15 in 1996 and in that year she had moved out into secure welfare. She said that she had been in a youth hostel for a couple of months.

1. The evidence of the complainant's father did not bear upon the issue under consideration.

1. The informant said that he was contacted by the complainant in November of 2017. The complainant first contacted police a year earlier, in February 2016. The informant obtained a copy of an unfinished statement that the complainant had prepared in 2016. He arranged for the complainant to finish her original statement. The informant arranged for the complainant to conduct a 'pretext call' with Lavery in April 2018. This call failed to produce any incriminating evidence.
2. Under cross-examination by Lavery's counsel, it was established that the complainant had prior convictions. School records indicated that the complainant had enrolled at her local high school on 30 January 1996 in Year 10, and that she exited the school at the completion of the school year on 20 December 1996. There were no records to show that the complainant had attended the high school in 1995.

1. The applicant argued that the prosecution had failed to prove, beyond reasonable doubt, that the applicant did not believe on reasonable grounds that the complainant was 16 or older at the time of the alleged penetration.
2. The applicant submitted that, in the absence of any evidence concerning a 14 or 15-year-old's appearance or general demeanour, as a matter of basic human experience it was possible to mistake a person of such an age for a person aged 16. It was emphasised that in the present case no evidence was led concerning the complainant's appearance, or general demeanour, at the time of the alleged offending. It was submitted, however, that there was evidence adduced which made it more likely that the applicant may reasonably have mistaken the complainant for a 16-year-old.
3. The applicant emphasised that the complainant and applicant were unacquainted prior to the point at which the complainant began visiting Lavery. The applicant's knowledge of the complainant was confined to what occurred at the house. There was no evidence that the complainant had ever told the applicant her age. There was no evidence that the complainant had ever spoken to the applicant. Whilst Lavery might have known the complainant's age, there was no evidence that she had conveyed such information to the applicant.
4. The applicant relied on the evidence which described the complainant smoking cannabis and drinking alcohol when she attended Lavery's house. The complainant engaged in such activity in the presence of Lavery and the applicant. The complainant brought cannabis to Lavery's home. The complainant took a pill. She engaged in the earlier sexual activity with Lavery in the presence of the applicant. The applicant submitted that the complainant was trying to behave like an adult. This evidence increased the likelihood of the applicant having reasonable grounds for a belief that the complainant was 16 or older.
5. It was submitted that, whilst there was some evidence which suggested that the complainant was not yet 15 when the offending took place, this evidence was uncertain. There was evidence, for instance, that the complainant thought that she might have gone to Lavery's house in the spring of 1996. Adding to such uncertainty was the complainant's evidence that she might have told Lavery that she had undertaken work experience. The complainant's evidence was that she had engaged in work experience whilst at high school, and the informant's evidence was that the complainant had enrolled in high school in 1996.

1. The respondent accepted that, as a general proposition, in the absence of any detail concerning the appearance and demeanour of a 14 to 15-year-old it was objectively possible to mistake such a person for someone aged 16. But the respondent submitted that there was sufficient evidence adduced at trial permitting the inference to be drawn beyond reasonable doubt that there were no reasonable grounds for a belief on the applicant's part that the complainant was 16 or over at the time of the penetration.
2. The respondent relied on the fact that the complainant had said that she had been to Lavery's home several times prior to the offending, and that the applicant was present on all these occasions. The complainant was driven to Lavery's by her father. Sometimes the complainant arrived on her pushbike. There was no evidence, for instance, that the complainant had ever driven to Lavery's home.
3. The respondent submitted that the evidence suggested that the complainant had no real interest in the applicant, and that she was more interested in Lavery. The complainant was enamoured with Lavery, who was eight years older than the complainant. It was submitted that the complainant was 'eager to be involved in everything, eager to be accepted'. The complainant would turn up at Lavery's whether invited or not. There was 'no evidence that [the complainant was] the dominant or directive partner in the sexual activity'. It was contended that, on both occasions when there was sexual activity, '[the complainant was] receiving direction or instruction from Lavery and she effectively [did] what Lavery [told] her to do'; the complainant was 'effectively doing things as directed by the co-accused'; the complainant was 'in the thrall of and responsive to the much older co-accused and her conduct in the course of the sexual activity'.
4. The respondent submitted that the complainant did not ultimately accept that the offending could have taken place in the spring of 1996. As submitted by the respondent: 'Really, the evidence suggests that it was 1995 or early 1996.' As to the school records, the respondent submitted that '[t]he school records do show that [the complainant] was enrolled for the year of 1996. However, they don't show how often she attended'.
5. For these reasons, the respondent submitted that there was sufficient evidence adduced in the prosecution case from which it was open to the jury to infer, beyond reasonable doubt, that the applicant did not have reasonable grounds for a belief that the complainant was aged 16 or over.

1. The applicant relies upon s 276(1)(a) of the Criminal Procedure Act 2009. This section provides that this Court must allow an appeal against conviction if satisfied that 'the verdict of the jury is unreasonable or cannot be supported having regard to the evidence'. In applying this section, the Court is required to ask itself whether it 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'.[6] The Court must make its own independent assessment of whether, on the evidence as a whole, there is a reasonable doubt as to the guilt of the applicant.[7]
2. As recently emphasised by a plurality of the High Court,[8] in answering the question posed by s 276(1)(a)

the appellate court must not disregard or discount either the consideration that the jury is the body entrusted with the primary responsibility of determining guilt or innocence or the consideration that the jury has had the 'benefit of having seen and heard the witnesses'. To the contrary, the appellate court is obliged to pay 'full regard to those considerations' as follows:

• 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.

(Emphasis added, footnotes omitted.)[9]

1. The respondent did not contend that the jury, in this case, had an advantage in seeing and hearing any evidence that was capable of resolving a doubt experienced by this Court. The complainant gave evidence in June of 2022. She was, by that stage, a mature woman. The prosecution's case that sought to exclude the reasonable possibility that the applicant believed on reasonable grounds that the complainant was at least 16 was in one sense a circumstantial one. It arose only on the alternative defence case (which admitted the relevant act of penetration) as a precursor to the existence of a possible defence of consent.
2. In determining a ground of appeal of the present nature in the context of a circumstantial case, or one that is substantially circumstantial,[10] the court must 'weigh all the circumstances in deciding whether it was open to the jury to draw the ultimate inference that guilt has been proved to the criminal standard'.[11] A circumstantial case must not be considered 'piecemeal'.[12] The court is required to form its own judgment as to whether 'the prosecution has failed to exclude an inference consistent with innocence that was reasonably open'.[13]

1. We do not consider that it was open to the jury to be satisfied beyond reasonable doubt that the applicant did not have reasonable grounds for a belief that the complainant was aged at least 16 at the time of the alleged penetration.
2. There was no evidence adduced at trial that was descriptive of the complainant's physical appearance, or general demeanour, when she attended at Lavery's house. It was not known, for instance, how tall the complainant was, how her voice sounded, or whether she seemed generally mature, or perhaps immature, for her age. There was no evidence concerning how the complainant was dressed, or whether - for instance - she wore make up. There was, of course, no evidence that the complainant had ever told the applicant her age. There was no evidence that the applicant and complainant had ever spoken to one another. The was no evidence that Lavery had ever told the applicant the complainant's age.
3. As noted above, the respondent accepted that, absent detail of this nature, as a general proposition it was possible to mistake a person of 14 or 15 for a 16-year-old.
4. But then there was the evidence of the complainant's drinking and drug-taking, as well as her apparent willingness to engage in sexual activity with the adults. There was also the complainant's ability to supply cannabis. Evidence of this type, depending on the context, may be neutral when it comes to the particular issue under consideration. But, in this case, this evidence could not have reduced the objective likelihood of relevant error on the applicant's part.
5. Equally, other circumstances relied on by the respondent did not operate to reduce the possibility of such error. The complainant's apparent obsession with, and willingness to take direction from, Lavery might just as easily have been expected of a 16-year-old. A 16-year-old might equally be expected to be driven by her father to visit a friend, or ride a bike if a lift is not forthcoming. This evidence told the reasonable observer little about whether the complainant was 14 or 15 rather than 16.
6. There was thus insufficient evidence from which it was open to the jury to infer, beyond reasonable doubt, that the applicant did not have reasonable grounds for a belief that the complainant was 16 or older. This being so, we consider that the applicant's conviction was unreasonable or cannot be supported having regard to the evidence. The applicant's proposed ground 1 must be upheld.

1. In view of the above, leave to appeal is granted and the appeal is allowed. The applicant's conviction sustained in the County Court is set aside and - in lieu thereof - a judgment of acquittal is entered.

[1] Contrary to s 45(1) of the Crimes Act 1958, as amended by the Crimes (Amendment) Act 2000.

[2] The jury were directed in these terms. There is no suggestion that the judge erred in her description to the jury of the elements of this offence.

[3] See R v Deblasis and Deblasis [2007] VSCA 297; (2007) 19 VR 128, 129-131 [1]-[10] (Vincent JA, Coldrey and Curtain AJJA); [2007] VSCA 297. We note, for completeness, that the imposition of an onus on the prosecution to prove an absence of reasonable belief was altered by the legislature in 2006, by s 9 of the Crimes (Sexual Offences) Act 2006. That section amended s 45(4)(a) of the Crimes Act so as to require the accused to satisfy the court on the balance of probabilities that he or she had the relevant belief on reasonable grounds. However, because the alleged offending in the present case occurred in 1995 or 1996, that legislative amendment had no application: see Crimes Act, s 606A(2).

[5] The jury were directed to ignore this statement.

[6] M v The Queen [1994] HCA 63; (1994) 181 CLR 487, 493 (Mason CJ, Deane, Dawson and Toohey JJ); [1994] HCA 63 ('M '); Pell v The Queen [2020] HCA 12; (2020) 268 CLR 123, 147 [45]-[46] (Kiefel CJ, Bell, Gageler, Keane, Nettle, Gordon and Edelman JJ); [2020] HCA 12.

[7] M [1994] HCA 63; (1994) 181 CLR 487, 494 (Mason CJ, Deane, Dawson and Toohey JJ); [1994] HCA 63.

[8] R v ZT (2025) 99 ALJR 676; [2025] HCA 9.

[9] Ibid 679-80 [7] (Gageler CJ, Gleeson, Jagot and Beech-Jones JJ).

[10] Dansie v The Queen [2022] HCA 25; (2022) 274 CLR 651, 659-60 [12] (Gageler, Keane, Gordon, Steward and Gleeson JJ).

[11] Ibid; Coughlan v The Queen [2020] HCA 15; (2020) 267 CLR 654, 674-5 [55] (Kiefel CJ, Bell, Gageler, Keane and Edelman JJ); [2020] HCA 15 ('Coughlan').

[12] R v Hillier [2007] HCA 13; (2007) 228 CLR 618, 638 [48] (Gummow, Hayne and Crennan JJ); [2007] HCA 13.

[13] Coughlan [2020] HCA 15; (2020) 267 CLR 654, 675 [55] (Kiefel CJ, Bell, Gageler, Keane and Edelman JJ); [2020] HCA 15.