1. For that reason I am of the view that great care must be taken where a journal entry made by a complainant of sexual offending is said to be a contemporaneous - and therefore the best - account of the sexual crime alleged. The law recognises that there is no 'typical, proper or normal' response to a sexual act done absent consent.[86] The law also recognises that it is common for there to be differences in the accounts given by a complainant, that trauma may affect how a person recalls an event and that people may not remember all the details of a sexual offence or may not describe a sexual offence in the same way each time.[87] The medium of a journal itself suggests great licence both as to what is recorded and how it is written, particularly if it is in the immediate aftermath of an alleged sexual offence. Accordingly, any judgment of the importance of differences between a near contemporaneous account in a journal and later accounts by a complainant to authorities or in evidence to an assessment of the complainant's credibility and reliability must be approached cautiously.
2. Turning specifically to this case, I would emphasise not the contemporaneity of EF's journal entry in the hours after the incident alleged but the fact that on 12 February 2018, in her complaint to Detective Shanahan, and again on 14 February 2018 during the taking of the first statement by Detective Thexton, EF said nothing that would allow a conclusion that she unequivocally revoked consent to either act of penetration (and communicated that by words or actions to the applicant). While it is the case that a copy of the journal entry was provided to both detectives and the journal entry was adopted by EF as a 'true and accurate representation of events' and incorporated into her first statement, it was EF's failure to then provide any description of her revocation of consent that was critical. As explained by Priest JA, EF was given and took multiple opportunities by Detective Thexton to supplement the narrative and add details.
3. It is the differences between the first statement on the one hand and the second statement and evidence given by EF at trial on the other hand that are material to the assessment of EF's credibility and reliability. Particularly, as said by Priest JA, it can only be concluded that EF's claims that she had told Detective Thexton that she had told the applicant to 'stop' but that Detective Thexton had not included it in the first statement, that she had not reviewed the first statement before signing it and that a 'good portion' of the detail she gave to Detective Thexton was not included in the first statement were deliberate falsehoods. Moreover they were deliberate falsehoods designed to explain away EF's otherwise inexplicable silence as to matters EF had come to understand between the giving of the two statements were critical to the instigation of a prosecution against the applicant.
4. For this, coupled with the other reasons given by Priest JA, I am of the opinion that the jury, acting reasonably, should have entertained a reasonable doubt about the truth and accuracy of EF's evidence and, therefore, the applicant's guilt on each charge. Like Priest JA, I consider there to be a strong possibility than an innocent man has been wrongly convicted.

1. I have had the considerable advantage of having read, in draft, the reasons of Priest JA and Taylor JA. The comprehensive nature of Priest JA's reasons relieves me of the need to make detailed reference to facts and applicable legal principles. The following are my reasons for why I did not join in the orders made on 5 August 2025 granting leave to the applicant and allowing his appeal.

1. Central to the defence's attack upon EF's testimony was that she had not unequivocally told the applicant to stop having sex with her, in any version given by her prior to her second statement made to DSC Black in November in 2018. Consistently with that attack, it was suggested to EF in cross-examination that she had 'added' into her second statement the words 'I don't want that', as well as her repeated assertion that she had told the applicant 'no'. In keeping with that attack made in cross-examination, defence counsel commenced her final address to the jury in the following manner:

Thank you, Your Honour. Go easier, it's too rough, be more gentle. That's the prosecution case at its absolute highest and that's not withdrawal of consent. That's not rape. It's why you should find [the applicant] not guilty of both of these charges.[88]

1. The defence case was that the sex between EF and the applicant was consensual and occurred entirely without incident. It was not contended by the defence, however, that EF had been inconsistent - across her various versions - when it came to her assertion that the applicant's penetration of her had been 'too rough'; that EF had complained of this to the applicant; and that the applicant ignored these complaints and had continued to penetrate EF in a way that EF considered was unacceptably rough.
2. It is convenient, at this stage, to make some brief reference to the evidence which was to this effect. I agree with Taylor JA - for the reasons expressed by her Honour - that caution needs to be applied when assessing the significance of any differences that may be thought to exist between the contents of EF's private journal (which later became the basis of her first statement) and her evidence given at trial. It seems to me that under questioning in the witness box, it is reasonable to expect that a witness in EF's position may properly expand upon matters in her journal account without this necessarily being seen to impugn her credit and reliability. That said, the purpose of the summary of EF's evidence that follows is to compare the version that she gave in her journal with her viva voce evidence at trial, without any regard being had to those parts of her trial evidence that defence counsel contended had been 'added in' to EF's second statement; that is to say, those parts of EF's evidence where she made statements to the effect, or in the nature, of 'stop' and 'I don't want that'.
3. In EF's first statement her version of the first penetration was as follows:

I put a condom on him, he has an average size dick the length of my hand. He doesn't want to do any foreplay, just straight sex with no lube. This guy is an asshole. He pins me again. He either has no idea what he's doing or doesn't care if he hurts me. He's not gentle at all. He's trying to pound me like he's trying to hammer a brick wall. At first its not unbearably painful & I'm trying to endure it. If I call this off early he'll probably want his money back. I say quite a few times to go easier, its too rough/hard, be more gentle. He doesn't listen & doesn't care. I have my hands free but he's pinning me with his weight I try to close my legs & push his hips back with my hands but its not helping much & its getting more painful. I offer to get on top but he says no. I can see that he has come & I tell him to change the condom. He says no, he doesn't want to. I insist & change it for him.

1. In her evidence concerning the first penetration, EF said (placing in parentheses EF's references to having told the applicant 'I don't want that', as well as her repeated assertions to the effect that she had told the applicant 'no'):

[PROSECUTOR]: And I won't spend too long on this particular part, this topic, but you've told us that he was penetrating you, causing you pain, moving in a thrusting motion, I think you said?

[EF]: Yes.

[PROSECUTOR]: How much force was he using when he did that?

[EF]: At the beginning, the first time, the first rape, that is I'm referring to, it was painful but not unbearable. It was progressively escalating as he became more rough, because the more times I said, 'You're being too rough,' he actually became more aroused and would hurt me even more, apply more pressure than he had just had done.

[PROSECUTOR]: And when you say he would apply more pressure than he had done, where was he applying the pressure?

[EF]: He was - he was holding, trying to hold my hips sort of up in this angle. With - with the body that - with the shape that he was kneeling in, it was forcing my hips up in this angle that met his pelvis, and he was holding my arms, pinning my arms down beside me, whether over the top of me or whether parallel next to my body, pushing with extra force into those limbs, and trying to prevent me from wriggling upward and away to escape that deeper penetration.

[PROSECUTOR]: Now, you describe pushing at his hips?

[EF]: Yes

[PROSECUTOR]: Did that have any effect on what he was doing?

[EF]: Yes, I believe that it did. I could -

[PROSECUTOR]: In what way?

[EF]: I could see that by using the heel of my palms and pushing into his hips and away, I could see that it was giving me a little bit, like maybe a couple of centimetres of respite from the - the depth of penetration. And it didn't feel as excruciating in those moments where I was able to hold him a little bit further away from me. It was -

[PROSECUTOR]: Now, sorry, go on?

[EF]: So, it was at that moment that he said, 'I know what you're doing,' became more aroused and then came.

[PROSECUTOR]: Now, when you were pushing him away like that, were you saying anything to him?

[EF]: I was saying, 'You're being too rough. That's too hard. [Please stop]. You're hurting me. [It's too much. I can't take it anymore].'

[PROSECUTOR]: And how were you saying that? What was the tone of your voice as you said that?

[EF]: Panicked, hysterical, breathless because I was struggling to breathe. Um -

[PROSECUTOR]: And apart from saying, 'I know what you're trying to do,' or, 'I know what you're doing,' I think was the words you used, did he say anything else to you at that stage?

[EF]: He said, 'You love it. You can take it.'

[PROSECUTOR]: And how did he say firstly that phrase, 'You love it. You can take it.' What was his voice like when he said that?

[EF]: Husky, deep, aroused. The harder I fought him, the more he hurt me back and the more pressure he applied. It was as - it felt to me as though the more I tried to fight [and the more I verbalised my revoked consent], it was arousing him more and more, and then resulting in me being hurt more.

...

[EF]: It was probably 30 seconds to a minute after he said, 'I know what you're doing,' that he ejaculated, and then withdrew and sort of laid down on - on the bed next to me for a very short amount of time.

[PROSECUTOR]: All right. Now, when he said to you, 'I know what you're doing,' what was his tone of voice at that stage?

[EF]: Aroused, but also hateful like -

[PROSECUTOR]: What was it about his voice that led you to form that opinion? What qualities of his voice, if you like, led you to form that opinion?

[EF]: He had this sort of a - a hard edge to his voice, like almost as though I were being told off. He wanted - I felt like he wanted me to just sit still and shut up and be a sex doll, and he was, yeah, very raspy, gritty in his voice, in his tone, very rough.

[PROSECUTOR]: Now, a moment ago you told, you used the phrase, you verbalised your withdrawal of consent?

[EF]: Yes.

[PROSECUTOR]: How did you - what -

[HIS HONOUR]: She said, 'I verbalised my revoked consent.'

[PROSECUTOR]: Revoked. I'm sorry, Your Honour. What did you say at that time? What were you referring to when you verbalised at that point?

[EF]: Well, when I say - what I meant by saying that I revoked consent is when I refer to how I said, 'No, you're hurting me. That hurts too much. [You need to stop.] You need to be more gentle. You need to go easier.' To me, I thought I had been clear in that that was revoking consent because he was hurting me, and I said, 'You are hurting me.'

[PROSECUTOR]: And while you were saying those things, what were you doing physically in relation to him, if that makes sense?

[EF]: Whilst I was saying these things in between, you know, breathless gasps, I was physically trying to force him off of me with whatever strength I had, just by being in a, you know, difficult position.

1. In EF's first statement, her version of being penetrated for a second time was as follows:

He gets on top of me again & is rougher than before. It's just getting worse. I tell him a few more times to be gentle because he's hurting me. He just doesn't care. I try to push him back with my hands on his hips, pushing hard, & trying to close my thighs. He says, 'I know what you're doing'. He grabs my legs & puts them over my shoulders & pins me so I cant resist anymore. Now its too painful & I cant take it anymore. Thankgod for a good amount of this time, the angle is off & he can't put it in. [H]e seems either drunk enough or stupid enough to not realise that he's just rubbing his dick on the outside now. I don't correct him though because I want this to be over.

1. In her evidence concerning the second penetration EF said (again, placing in parentheses EF's references to having told the applicant 'I don't want that', as well as her repeated assertions that she had told the applicant 'no'):

[EF]: I said a number of phrases to him throughout, trying to find - I didn't know if I wasn't being clear enough, so I said it in as many ways as I could think of, to tell him to stop, just in case he didn't get it. So, I said, 'You're hurting me. That's too hard. [You need to stop. Please stop]. You're not listening. I need you to listen to me. You need to be more gentle. [I can't do this anymore. I can't do it anymore.]'

...

[EF]: Yes, and when I say these - these quotations of what I said, it wasn't all rattled off one after the other, after the other. These are - I said no in these various ways, continuously throughout the entire ordeal.

[PROSECUTOR]: And when you said no in those various ways to him, how did he respond?

[EF]: He said, 'No, it's fine, you love it. You can take it. It's fine. I paid for you.' I tried to - tried to say essentially the similar things to what I had - have already said, you know, saying again, ['You need to stop,'] but the more I told him to stop, the more pain he inflicted on me. And I got so scared of him that I thought, you know, the more I keep saying it, what if he just gets progressively more and more violent. I think I just sort of slipped into shock.

...

[EF]: He was penetrating me without my consent.

...

[EF]: I think I said, 'Don't do that, that's too hard, that hurts, you can't do that.'

...

[PROSECUTOR]: I just want to focus on, you've told us you said things to him. How loud was your voice when you said those things?

[EF]: I really believe reasonably loud. It was clearly above a whisper. It wasn't a scream at the top of my lungs because I couldn't breathe very well, but it was distinct and it was frequent. I said, said so many times I just, I can't imagine how he could not have heard me when I said it so many times in so many ways.

...

[EF]: I responded physically by countering his force by trying to push back against him and trying to wriggle away in any way that I could.

...

[EF]: He was saying, 'You love it, you can take it, it's fine, you're fine, don't worry about, you love it, you can take it.

1. Concerning the offence of rape, the jury were ultimately directed by the judge in the following terms:

So in short compass, to prove this crime, the prosecution must prove the following three elements beyond reasonable doubt. First, that the [applicant] intentionally sexually penetrated [EF] in the way alleged; and secondly, element 2, [EF] did not consent to the sexual penetration; and thirdly, the [applicant] did not reasonably believe [EF] consented to sexual penetration. Now each of those must be proved beyond reasonable doubt.

1. The jury were told that the element of intentional sexual penetration was not in dispute. When it came to the requirement that the prosecution prove EF's lack of consent, the jury were instructed as follows:

The second element which the prosecution must prove is that the sexual penetration happened without [EF's] consent. This is an issue that is in dispute in this trial. Consent is a state of mind. The law says that consent means free agreement. So the prosecution must prove that [EF] did not freely agree to being sexually penetrated by [the applicant] at the relevant time.

In respect to Charge 1, in the circumstances of this case, the prosecution submits that at a point in time after consensual sexual penetration occurred, [EF] revoked consent by her words and/or her conduct such that she was no longer freely agreeing to being sexually penetrated. A similar submission was made by the prosecution in respect to Charge 2.

Now, the law says that a person may consent to an act only if they are capable of consenting and free to choose whether or not to engage in or to allow the act. The law says that where a person has given their consent to an act, they may withdraw that consent before the act happens or at any time while it is happening.

So a person will not have freely agreed or consented to sexual penetration if having initially consented to the act, the person later withdraws consent to the act continuing. A person will not have freely submitted to the act of sexual penetration because of force. If you are satisfied beyond reasonable doubt on the evidence that [EF] withdrew consent to the act continuing or that she submitted because of force, you must find that she was not consenting. When you are assessing the evidence, it is important to know that experience shows that just because a person is not physically injured or subjected to violence, that does not mean that they consented. When you are assessing the evidence, it is also important to know that experience shows that people react in different ways to a non-consensual sexual act. There is no typical, proper or normal response.[89]

1. After summarising the arguments of the parties relevant to the lack of consent, the judge turned to the element of rape that concerned the applicant's state of mind. The judge directed the jury as follows:

All right, I now want to turn to the third element which the prosecution must prove and that is that the [applicant] did not reasonably believe that [EF] consented to the sexual penetration.

So this third element relates to the [applicant's] state of mind about [EF's] consent. This element is also in issue.

The prosecution must prove beyond reasonable doubt that at the time of the sexual penetration, the [applicant] did not reasonably believe that [EF] was consenting. This third element will be met in any of the following three circumstances. One, that the [applicant] believed that [EF] was not consenting; two, that the [applicant] gave no thought to whether [EF] was consenting; and three, even if the [applicant] may have believed that [EF] was consenting, this belief was not reasonable in the circumstances.

Now, the prosecution only needs to prove one of those three states of mind. If the prosecution does not prove to you beyond reasonable doubt that [the applicant] had any of these states of mind about [EF's] consent, then you must not find this element proven and you must not find [the applicant] guilty of the offence you are considering.

Now, a belief will be reasonable if there are reasonable grounds for a person in the position of the [applicant] to hold that belief. You must also consider all of the circumstances when deciding whether a belief in consent is reasonable.

In deciding whether the prosecution has proved that the [applicant] did not have a reasonable belief in consent, you may take into account any personal attributes or characteristics of the [applicant] or the circumstances of the [applicant]. In this case, this would include circumstances that the penetration has commenced consensually on both occasions and that [the applicant] has, according to the defence, language issues which may be relevant if you were to accept that all that [EF] did or said was that which was contained in her journal, and I will come to that shortly.[90]

1. The judge then summarised the arguments of the parties made in respect of the applicant's state of mind.
2. If, according to these legal directions, the applicant's conviction of rape was contingent upon EF having said to the applicant what she was alleged by defence to have 'added' in to her second statement - namely statements to the effect that she told the applicant 'I don't want that' and made repeated assertions of 'no' - then I agree, for the reasons expressed by Priest JA and Taylor JA, that it would not have been open to the jury to have been persuaded of the mental element (element three) of the crime of rape.
3. But, according to the legal directions given to the jury, extracted above, the applicant's conviction was not so contingent. According to those directions, in order to establish EF's lack of consent, it was necessary for the prosecution to prove that '[EF] did not freely agree to being sexually penetrated by [the applicant] at the relevant time'. The jury were also told that 'a person will not have freely agreed or consented to sexual penetration if having initially consented to the act, the person later withdraws consent to the act continuing', and that, 'If you are satisfied beyond reasonable doubt on the evidence that [EF] withdrew consent to the act continuing or that she submitted because of force, you must find that she was not consenting'.
4. I consider that it was open on all the evidence for the jury to infer that EF did not freely agree to the sexual penetration of her by the applicant - on both occasions - after she had at least made her displeasure, concerning the rough nature of the applicant's penetration of her, known to the applicant. It was open to infer that EF did not freely agree to such rough sexual penetration. Her consistent account was that she voiced her displeasure at this treatment by the applicant. EF's later distressed state confirmed her lack of prior free agreement.
5. I consider, also, that once EF's lack of free agreement to the rough nature of the applicant's penetration of her became evident, it was open to the jury to infer that the rough nature of the penetration (on both occasions) either continued at the same level of intensity, or that it in fact intensified; and that this penetration continued in the absence of EF's free agreement.
6. Moreover, I consider that on EF's consistent account, across her various versions, it was open to the jury to conclude, to the required standard, that EF's displeasure at the forceful nature of the applicant's penetration of her was brought to the applicant's attention on both occasions; and that the applicant ignored EF's entreaties by continuing to penetrate her, either with the same level of force, or perhaps even with greater force. Fixed with that awareness, it seems to me that it was then open to the jury to find that the applicant's continued sexual penetration of EF occurred in circumstances where the applicant did not reasonably believe that EF had consented to such sexual penetration, in particular, by reference to each of the three specific ways that the judge had directed that such lack of reasonable belief could be established.
7. Unsurprisingly, the prosecution case at trial was that everything EF said in evidence was true; including that EF had made statements to the applicant, on the occasion of each penetration, to the effect of 'stop' and 'I don't want that'. But the judge directed the jury that they could accept parts of what any witness said and reject other parts.
8. Even if the jury agreed with the defence argument and considered it at least reasonably possible that EF had untruthfully added into her second statement that she had told the applicant 'I don't want that' and 'no'; and even if the jury considered that EF had positively lied about what she had told DSC Thexton, and the circumstances surrounding his taking of the first statement; none of this rendered it necessary that the jury reject the core of EF's consistent account that has been described above. Once the judge's legal directions are applied to that consistent and core account, I am unable to see why it was not open to the jury to convict.
9. Towards the end of her closing argument to the jury, defence counsel dealt with the topic of 'rough sex' as opposed to 'rape'. Defence counsel encouraged the jury not to believe a word of what EF had had to say, but argued, alternatively, as follows:

[B]ut if you do accept any version of her account, it could only be what she puts in those notes, the ones that she takes shortly after, that end up in the first statement. The ones that aren't tainted by anything else, those thoughts that she takes down immediately after. That version is not tainted by police, it's not tainted by research. Those are her recollections that she put a notation on that they are true and correct.

What they describe, if you accepted them, is rough sex and that's not what [the applicant is] charged with. He's charged with rape.

1. When it came to any awareness on the part of the applicant that EF was not consenting, defence counsel argued that such lack of consent 'would've had to have been conveyed in very explicit terms'. Defence counsel asked the jury to pay heed to the 'setting' in which the sex, in this case, had occurred. Defence counsel then put the following argument:

But also remember that the sex in this setting, it's not the same as with a partner or someone you've met socially and I don't mean that in any disrespectful way to sex workers or to the people that use their services, that's not what I'm saying. What I'm saying is of course sex workers have the right to say no, like everybody else. What I'm highlighting is that the dynamics here are different. It's a different arrangement and so that arrangement was contractual and for that contract to be terminated, it would need to be clear and unequivocal that that's what had happened but when you look at her words, they're not clear and unequivocal, if you accept that she said them. 'I tell him a few more times to be more gentle because he's hurting me. Go easier, be more gentle.' That's not the withdrawal of consent. That's not the end of the transaction.

1. The 'dynamics' in this case may have been 'different', in the sense that there was an element of commerciality apparent in the sexual exchange that took place between the applicant and EF. A term of the agreement reached by the applicant and EF was that the applicant could sexually penetrate EF. But there was nothing about this agreement that deprived EF of the ability to set conditions concerning the nature of such penetration. More particularly, there was nothing inherent in the agreement that prevented EF requiring that the applicant's penetration of her not be such as to cause her pain and discomfort. In this sense EF was in no different position to a romantic partner or someone a person has 'met socially'.
2. Simply because EF had not articulated to the applicant that all penetration was to cease and desist immediately, but that it might continue only so long as certain conditions were satisfied, meant - in my view - that it was open to convict the applicant if the conditions that EF set remained unsatisfied. In such an instance it was open to the jury to conclude, (a) that the applicant was either aware of, or gave no thought to, EF's lack of free agreement to such penetration, or (b) that the applicant considered that - in reality - EF's entreaties were disingenuous and that what she really wanted was for the rough sex to continue. It was thus open to the jury to find proven that the applicant did not reasonably believe that EF was consenting. Convictions on this basis are at one with EF's consistent version of events. The act of sexual penetration cannot be divorced from the circumstances of its commission.
3. I do not consider that the verdicts of guilty are unreasonable or against the weight of the evidence. With great respect, I am unable to uphold ground 1.

1. Nor, respectfully, can I agree that a substantial miscarriage of justice arose because of the failure of the trial judge to discharge the jury as a result of the publication of the Age article - the article entitled 'Sex Workers Are Sick of Rapes, Assaults and Want Protection'.
2. This was a case of alleged media publicity that arose during the trial. There are cases where alleged prejudicial media publicity arises pre-trial. In those instances an accused may seek a temporary or permanent stay. In this case defence counsel sought a discharge of the jury.
3. It may be thought that there are obvious differences between the situations pre-trial and mid-trial when it comes to potentially prejudicial media publicity, and the means that are at a trial judge's disposal to protect against unfairness to an accused. One such difference is perhaps that, in the instance of pre-trial publicity, jurors can apply to be excused from jury service on the basis that exposure to such publicity has deprived them of an ability to be impartial.[91]
4. It is instructive, nevertheless, to consider the High Court's decision in Dupas v The Queen ('Dupas')[92] - a case where an accused sought a permanent stay of a charge of murder on the basis that pre-trial publicity gave rise to irremediable prejudice that would preclude his fair trial. This is so, because - as will be seen - although Dupas was a case concerning pre-trial publicity, the High Court's reasoning bears directly upon the issue that requires resolution in the present case.
5. The appellant in Dupas argued that the trial judge had erred by failing to order a permanent stay. Having upheld his appeal on other grounds, the appellant in Dupas submitted, also, that the Court of Appeal should not have directed a retrial and should have stayed any further trial either permanently or until further order on account of the prejudicial pre-trial media publicity.
6. The appellant in Dupas had, in the years prior to trial, been convicted twice of having murdered women. On each such conviction he was sentenced to life imprisonment with no minimum term. The appeal in Dupas concerned the killing of a third woman - Ms Halvagis. As it was described by the High Court in Dupas: 'The killings of all three vulnerable women had been by knife attack and characterised by extreme violence and brutality'.[93]
7. The High Court summarised the media reporting concerning the appellant that arose prior to the appellant's trial of murder connected with the killing of Ms Halvagis:

The two convictions for murder, the refusal of each of the leave applications, and the third murder charge had received wide media publicity, adverse to the appellant, and on the stay application Cummins J received a body of evidence of that publicity. This included publicity over some seven years, on seven internet sites, in approximately 120 newspaper articles and four books, all of which related either wholly or extensively to the appellant. The appellant had also been referred to in a number of television programs, and his image had been depicted in some of those programs. The appellant was identified in the media from an early stage as a suspect in regard to the murder of Ms Halvagis.

In response to questions from the trial judge as to the currency of the pre-trial publicity and as to how easy it was to access, the appellant's counsel referred to three periods of intense media publicity - late 2000 (relating to the murder of Ms Patterson), late 2004 (relating to the murder trial where the victim was Ms Maher), and early 2005 (where the appellant was named as a suspect in the murder of Ms Halvagis); counsel referred also to material currently available on the internet and to the use of the Google search engine to access articles electronically stored on the World Wide Web. A summary of the pre-trial publicity can be found in the reasons of Ashley JA. The essence of the appellant's submission before Cummins J was that 'the ubiquity and pervasiveness of the accused's reputation as a serial killer, is such that no fair trial can now be had.' It was contended that, if a permanent stay were not granted, any subsequent conviction would necessarily constitute a miscarriage of justice.[94]

1. In the context of an application for a permanent stay, the High Court in Dupas regarded as 'authoritative'[95] the following statement of principle made by Mason CJ and Toohey J in R v Glennon ('Glennon'):

[A] permanent stay will only be ordered in an extreme case and there must be a fundamental defect 'of such a nature that nothing that a trial judge can do in the conduct of the trial can relieve against its unfair consequences'. And a court of criminal appeal, before it will set aside a conviction on the ground of a miscarriage of justice, requires to be satisfied that there is a serious risk that the pre-trial publicity has deprived the accused of a fair trial. It will determine that question in the light of the evidence as it stands at the time of the trial and in the light of the way in which the trial was conducted, including the steps taken by the trial judge with a view to ensuring a fair trial.[96]

1. The High Court noted that at the appellant's trial certain prejudicial material was admissible because the jury would inevitably learn of the appellant's history including at least one of his prior convictions for murder. The Court observed that the trial judge directed the jury, prior to the jury's empanelment, at the outset of the trial, and in the charge to the jury, of the 'need to act fairly, calmly, without prejudice and solely on the evidence led in court and to exclude from their considerations anything that they may have read or seen outside the court'.[97] These directions, the Court noted, 'were designed to ensure that the jurors would not be affected by the pre-trial publicity in bringing in their verdict'.[98] After extracting in full the directions given by the trial judge at the outset of the trial, the Court noted that '[t]hese proper directions demonstrate the capacity of the trial judge to relieve against the unfair consequences of the pre-trial publicity without staying the criminal proceedings'.[99]
2. The High Court then observed that:

It is often said that the experience and wisdom of the law is that, almost universally, jurors approach their tasks conscientiously. The point was made as follows by Hughes J, with the endorsement of the English Court of Appeal, in R v Abu Hamza:

Extensive publicity and campaigns against potential defendants are by no means unknown in cases of notoriety. Whilst the law of contempt operates to minimise it, it is not always avoidable, especially where intense public concern arises about a particular crime and a particular defendant before any charge is brought. Jurors are in such cases capable of understanding that comment in the media might or might not be justified and that it is to find out whether it is that is one of their tasks. They are capable of understanding that allegations which have been made may be true or may not be and that they, the jury, are to have the opportunity and responsibility of hearing all the evidence which commentators in the media have not and of deciding whether in fact the allegations are true or not. They are not surprised to be warned not to take at face value what appears in the media, nor are they these days so deferential to politicians as to be incapable of understanding that they should make no assumptions about whether any statements made by such people are justified or not. They are also capable of understanding and habitually apply the direction that they are given about the standard of proof.[100]

1. Noting that Windeyer J had observed in Gammage v The Queen[101] that the jury room might not be a place of 'undeviating intellectual and logical rigour',[102] the Court in Dupas stated that

[t]he assumed efficacy of the jury system of which Windeyer J spoke, whereby the law proceeds on the basis that the jury acts on the evidence and in accordance with the directions of the judge, represents the policy of the common law and is more akin to a species of 'constitutional fact', in the sense of that term explained by Heydon J in Thomas v Mowbray.

Whilst the criminal justice system assumes the efficacy of juries, that 'does not involve the assumption that their decision-making is unaffected by matters of possible prejudice'. In Glennon, Mason CJ and Toohey J recognised that '[t]he possibility that a juror might acquire irrelevant and prejudicial information is inherent in a criminal trial.' What, however, is vital to the criminal justice system is the capacity of jurors, when properly directed by trial judges, to decide cases in accordance with the law, that is, by reference only to admissible evidence led in court and relevant submissions, uninfluenced by extraneous considerations. That capacity is critical to ensuring that criminal proceedings are fair to an accused.[103]

1. The High Court in Dupas made reference to the following observation of the dissentients in Glennon (Deane, Gaudron and McHugh JJ), namely that

one cannot exclude, as a matter of law, the possibility that an 'extreme' or 'singular' case might arise in which the effect of a sustained media campaign of vilification and prejudgment is such that, notwithstanding lapse of time and careful and thorough directions of a trial judge, any conviction would be unsafe and unsatisfactory by reason of a significant and unacceptable likelihood that it would be vitiated by impermissible prejudice and prejudgment.[104]

1. The Court in Dupas, by reference to that observation, noted:

However, the reference by their Honours to impermissible prejudice and prejudgment gives insufficient effect to the policy of the common law respecting the efficacy of the jury system. No doubt that policy must give way, for example, in specific instances of apprehended jury tampering and other criminal misconduct. But that is far from the present case. This is not a case of an apprehended defect at the retrial of such a nature that (to adopt what was said by Mason CJ and Toohey J in Glennon) nothing that the trial judge could do in the conduct of the retrial could relieve against its unfair consequences.[105]

1. Noting that, in Tuckiar v the King,[106] where the 'certain knowledge' of an accused's guilt was revealed publicly by his own counsel, the Court in Dupas went on to state that

[t]here is a difference between media opinion as to guilt and a public revelation of guilt by an accused's own counsel. The unfair consequences of the former can be relieved against by direction from the trial judge whereas the unfair consequences of the latter cannot be remedied.[107]

1. The High Court concluded its judgement in Dupas by recognising that

[t]here is nothing remarkable or singular about extensive pre-trial publicity, especially in notorious cases, such as those involving heinous acts. That a trial is conducted against such a background does not of itself render a case extreme, in the sense that the unfair consequences of any prejudice thereby created can never be relieved against by the judge during the course of the trial.

...

The apprehended defect in the appellant's trial, namely unfair consequences of prejudice or prejudgment arising out of extensive adverse pre-trial publicity, was capable of being relieved against by the trial judge, in the conduct of the trial, by thorough and appropriate directions to the jury.[108]

1. In the present case, in his charge to the jury, the trial judge gave the jury directions of a nature similar to those considered by the High Court in Dupas to be sufficient to protect against unacceptable unfairness.[109] Having told the jury that '[y]ou make your decision from all of the evidence that has been given in this trial' the trial judge in the present case instructed the jury as follows:

What is evidence. I have told you that it is your task to determine the facts in this case. In determining the facts, you must consider all of the evidence that you have heard from the witness box and that includes evidence given from the remote witness room and also that evidence of [the brothel manager] which was recorded and played back to you.

As I told you, you must not draw any adverse inference against either party because evidence was given either remotely or by way of pre-recording and you must not speculate on why it was done that way. I remind you also that it is the answers the witnesses give that is the evidence, not the questions that they were asked. So questions asked by counsel or indeed even by the police in the [applicant's] record of interview are not evidence unless the person being asked agrees with what is suggested in the question.

You might recall the example I gave you at the outset of this trial, where counsel put to a witness that the car was blue, was it not. If you have forgotten, I am happy to remind you of it, but as I say, it is the answer that a witness gives that is the evidence, not the question.

You must also take into account the exhibits that have been tendered. They consist of the exhibits that are in the jury book as well as the CCTV footage. When you go to the jury room to decide this case, those exhibits will go with you and you can examine them there. There are also facilities in the room as I understand it that will allow you to play the recordings that have been tendered. So you consider those exhibits along with the rest of the evidence in exactly the same way.

Now, it is your duty to decide this case only on the basis of witness testimony and the exhibits. You should consider the evidence which is relevant to a particular matter in its individual parts and as a whole and come to a decision one way or another about the facts.

As I have told you, in doing this, you must ignore all other considerations, such as any feelings of sympathy or prejudice you may have for anyone involved in this case. Such emotions have no part to play in your decision. So it would be wrong for any feelings of sympathy or bias you may have for any person involved in this case to have any bearing on your determination of whether [the applicant] is guilty or not guilty of any charge.

Remember, you are judges of the facts and that means that in relation to all of the issues in this case, you act as judges. That means you weigh the evidence dispassionately, logically and with an open mind, not according to your passions or feelings. I should also say this and counsel have alluded to it in their closing address, but you must not let the fact that [EF] worked as a sex worker or the fact that [the applicant] attended at a brothel in any way impact on the way you assess the evidence. This is a court of law, not a court of morals. The only evidence relevant to the fact that [EF] worked as a sex worker and the fact that [the applicant] attended the brothel is that it explains how the two came to interact with each other on 11 February 2018.

Now, at the start of the trial, I also told you that you must not base your decision on any information you may have obtained outside this courtroom. For example, you must completely ignore anything that you have seen or heard in the media about this case or about the people involved in it. You must consider only the evidence that has been presented to you here in court. You may recall the instruction I gave you at the outset as to why this was an important consideration. It would be both wrong and unfair for your decision to be influenced by anything other than the evidence that you have seen and heard in this courtroom. Outside information, whatever it be, is not evidence in the case and must not be used to assist you to arrive at your verdicts. As I earlier told you, such information may be wrong or inaccurate. The prosecution and defence will not have had an opportunity to test it. They would not even know about you considering it and I would not know whether I need to give you directions of law on how you would use or how you should use that information and importantly, acting on outside information would not be true to the oath or affirmation you each took to give a true verdict according to the evidence. You have now received or heard in court all of the information that you need to make your decision and that is only information you obtain inside this courtroom.

1. Keeping in mind the principles described by the High Court in Dupas, together with the nature of the directions given to the jury in the present case, it is appropriate to consider the substance of the Age article that prompted the application for the discharge of the jury.
2. The contents of the article are summarised in the judgment of Priest JA.[110] The main point of the article was to draw attention to the situation of sex workers who work outside the scheme of licencing that was maintained by the government; that is to say, those workers who take bookings and meet clients privately and not within the confines of a licenced brothel.
3. The article describes the 'new normal' as a situation where sex workers take bookings online and meet clients in hotels. This means of engaging in sex work is described as 'illegal - and dangerous'. The article describes that those who conduct their business in this way often feel disinclined to report assaults to the police for fear of being charged with working without a proper licence. The article refers to a 'long-awaited review of the state's sex industry laws' in light of fears that the 'current system' was 'emboldening predators' and that '[s]ome of these predators end up attacking the wider public'. In this respect, the article requests the reader to '[t]hink [of] Adrian Bayley'. As the article states:

In Victoria, street prostitution is a crime but selling sex at registered brothels, escort agencies, or as a private sex worker is permitted under strict licencing conditions. But to obtain a licence, sex workers must register with the government's Business Licensing Authority, which some fear will 'out' them or risk their privacy.

There are also many complex rules and regulations governing everything from advertising to health - 253 pages alone relate solely to sex work. Regulations include laws making it illegal for a self-employed private sex worker to take a client into their home or a motel without council permits or licensing approval. Faced with stigma, few bother to jump through the hoops, risking a range of fines or even jail.

'consider decriminalisation of all sex work in Victoria as per other systems recognised internationally by human rights organisations'.

1. The article recounts the experiences of a 'private sex worker' who was filmed without her consent, and refers to other accounts of stalking, harassment and blackmail. Reference is then made to a suspicion that there is a 'serial rapist and fraudster' who targets women in a certain area of Melbourne, and that this person uses 'fake names and phony bank details'. A survey of 'workers' found that only 24 percent had reported crime to police, and 40 percent of that cohort had reported a 'negative experience' when they had done so.
2. The article also makes reference to the fact that sex work had been decriminalised in NSW since 1995; and that there were moves to do likewise in other parts of Australia. The article notes that

[d]ecriminalisation would help build trust with police, improve health outcomes by allowing sex workers to be 'out' to their doctors and mental health profession [sic] and reduce some of the negative stereotypes they face...

1. On the assumption that at least one member of the jury had read the Age article, it may be accepted that the article carried with it a certain degree of prejudice for the applicant. But the article made no reference to the applicant. Indeed, the article related to a particular set of circumstances that did not arise in the present case. To repeat, the article concerned the vulnerability to assault of sex workers who operated illegally outside the applicable licencing regime, not those who worked within the confines of a licenced brothel. There was no suggestion that the employees at Le Boudoir were doing so illegally. In other words, the applicant did not fit readily into the category of person who it might be thought could be disposed to take advantage of a sex worker's unlicensed status in the manner described in the article.
2. The High Court's decision in Dupas emphasises, despite its status as a case of pre-trial publicity, the capacity of jurors to apply judicial directions requiring them to put aside material to which they have been exposed in the media and that could bear upon the issues at trial that require determination. Unlike in Dupas, the Age article in this case bore only very indirectly upon the circumstances of the applicant's case. The judge's directions in this case which instructed the jury to ignore media comment, were - in effective substance - no different to the directions given by the trial judge in Dupas and which were considered by the High Court sufficiently to protect that appellant against unfair prejudice.
3. I am not persuaded, in all the circumstances, that a substantial miscarriage of justice was caused by the judge's failure to discharge the jury on account of the Age article. Indeed, I consider that the judge was correct not to have upheld the discharge application.

Ground 3 _ - EF's behaviour during cross-examination_

1. As Priest JA's reasons relate,[111] this application to discharge the jury was made on four bases: first, the dislocated nature of EF's evidence; secondly, the unlikelihood that EF's evidence could be completed without further disruption; thirdly, the prejudicial effect of EF's conduct, and the necessity for frequent and extended breaks in her evidence; and fourthly, the cumulative effect of the first three factors in combination with the prejudicial effect of the Age article.
2. The applicant submitted that whilst EF's evidence-in-chief had been given in a coherent and straightforward manner, her evidence in cross-examination was disjointed. There had been frequent breaks. As defence counsel described it, in the four days that had elapsed since the commencement of evidence, a little over five hours of evidence had been heard. There had, it was submitted, been only five hours and three minutes of evidence in a possible 18 hours of hearing time. Defence counsel submitted that the jury should be discharged, but it was submitted that EF's evidence could continue in the jury's absence and be recorded for the purposes of being played to a further jury. It was argued that a future jury could watch the recording of EF's evidence in an uninterrupted fashion; the narrative could flow without interruption and the jury would be better able to follow the evidence. Defence counsel emphasised that although the trial had been running for five days, 'it still is at an early stage of proceedings'.
3. Defence counsel submitted, also, that there was a risk that the trial would extend beyond the estimate of time that had initially been given and that the jury might therefore feel rushed in their deliberations. It was submitted that the jury were 'only human' and that it was likely that they would allow feelings of sympathy for EF illegitimately to affect their deliberations.
4. The prosecutor opposed the discharge application. He submitted that it was not uncommon for there to be breaks in a trial, and that the jury would ultimately be supplied with a transcript of the evidence which they could then follow without interruption, and which would remind them of the evidence that they had heard. The prosecutor submitted that if a recording of EF's evidence was to be played to a new jury, any repetition in questioning that arose caused by breaks taken would still be evident. It was submitted that it was not uncommon for complainants to become distressed in cases of the present nature.
5. During discussion on the discharge application, it became evident that the judge was concerned in the main by the fact that the cross-examination of EF had been at times disjointed. The judge had his staff prepare for him a 'timetable of the breaks'. It was apparent that the judge had properly apprehended the correct chronology of events.
6. One aspect of the alleged disjointed nature of the cross-examination relied on by defence counsel was the fact that, at one point during her cross-examination, EF had simply left the room where she was giving evidence at the remote location; she did this without permission from the trial judge. Importantly, in this respect, the judge observed during discussion that the jury 'might take the view that she left because the questioning was getting difficult'. The judge considered that it was 'equally open' for the jury to think this. Indeed, at one point during the discussion, the judge expressed the view that the jury might 'feel some hostility' towards EF; and that 'the manner in which [EF] gives her evidence is not one that's likely to [engender] any sympathy for her'.
7. Ultimately, the judge refused the application to discharge. The judge's ruling was expressed as follows:

I do not consider that we have reached a point in this trial where there is a high degree of need to discharge the jury. That view may change if the behaviour of [EF] continues.

1. I am not persuaded that the judge's failure to discharge the jury on this occasion gave rise to a substantial miscarriage of justice. I agree with the judge that the only real basis upon which a discharge could have been ordered was on account of the disjointed nature of EF's cross-examination. But, while it was far from ideal that EF's cross-examination did not proceed in a more orderly fashion, the need for a complainant to take breaks during evidence, in a case like the present, is - as the prosecutor submitted - hardly uncommon; and, perhaps more importantly, there is no reason to doubt the reliability of the judge's observation that - objectively assessed - there was at least some forensic benefit to the applicant in EF's need to take so many breaks, namely, that this state of affairs stemmed from EF's inability to cope with the substance of what was being put to her in cross-examination.
2. Consistently with the judge's expressed impression, it is apparent that defence counsel made some forensic use in her closing of EF's need to take breaks during cross-examination. As defence counsel argued to the jury in closing submissions:

Now, every time she was challenged or many of the times she was challenged about inconsistencies or things she'd added, she retreated to either I don't remember to wanted a break to look at materials or came back to that mantra of those words that she added into the second statement about I said stop, I can't do this, no, et cetera. Words that she knew that she had to add because that first statement hadn't disclosed a rape. So she did her research to make sure the second one did.

1. Insofar as the delivery of EF's evidence during cross-examination was disjointed due to breaks taken, as the prosecutor prophesied, the jury were ultimately provided with a transcript of the evidence for their consideration during their deliberations.
2. I am unable to uphold the second part of the applicant's ground 3.

1. This ground of appeal concerns the contention that a substantial miscarriage of justice arose by virtue of EF's distress that became apparent to the jury when, in cross-examination, EF was required to listen to a recording of DSC Thexton taking EF's first formal police statement.
2. It is submitted that there was no rational forensic advantage - objectively assessed - in defence counsel playing the Thexton recording to EF in this manner; or that if there was, then such advantage was only slight in comparison to the prejudice that was caused in having the jury watch EF listen to a lengthy recording during which it was apparent that she was clearly in a highly distressed state. It was submitted that the approach adopted by defence counsel gave rise to a substantial miscarriage of justice. In one sense, the applicant's contention was, essentially, that his counsel had been incompetent in adopting such an approach.
3. As the reasons of Priest JA describe, not only did defence counsel not apply for a discharge of the jury once it became apparent that EF was experiencing distress; counsel in effect 'doubled-down' on the procedure and eschewed other suggested approaches which may have mitigated the perceived prejudice.[112]
4. It is important to record that we were not shown any footage of how EF appeared when she listened to the Thexton recording; and, as such, we are reliant on the observations of the judge and counsel that were expressed at the time and are evident from the transcript. Priest JA has, in his Honour's reasons, summarised what was said in this respect. I need therefore make reference only to those aspects of the observations made that I consider to be necessary.
5. The judge stopped the playing of the Thexton recording because his Honour considered that EF was 'visibly distressed'. The judge remarked that 'I don't think that it's appropriate that I continue with her in that state. It's not fair to her and it's certainly not fair to the [applicant]'. The prosecutor remarked that 'it's not appropriate for the jury to sit for an hour and watch [EF] become distressed during that time'.
6. As alluded to above, various suggestions were canvassed concerning how the procedure adopted might continue, with some alteration, so that any distress on EF's part would not become evident to the jury. One solution that was mooted was the placement of a coffee cup over the camera situated at the remote location where EF gave her evidence and which depicted EF. Defence counsel expressed the firm desire that the process hitherto adopted continue in the same manner. The judge ultimately agreed. It is helpful to set out the following exchange:

[DEFENCE COUNSEL]: There's really two issues. One is this isn't the manner in which the evidence commenced.

[HIS HONOUR]: Yes.

[DEFENCE COUNSEL]: That now the jury has seen that she's become upset, we've had a break and then we'll come back and there'll be -

[HIS HONOUR]: Yes.

[DEFENCE COUNSEL]: - another manner of giving evidence which again has the real risk of arousing sympathy in the jury for [EF] -

[HIS HONOUR]: Yes.

[DEFENCE COUNSEL]: - because arrangements have had to be made in order for her to continue. Against the backdrop of everything else that's happened in the trial that is a real concern.

[HIS HONOUR]: Yes.

[DEFENCE COUNSEL]: The other aspect is that she is still in the middle of her evidence. She's under cross-examination. The idea that she can participate in that process without being seen or heard troubles me somewhat particularly that she could be saying or doing anything while that recording is going on and the jury doesn't have the opportunity to observe her doing that.

[HIS HONOUR]: Yes.

[DEFENCE COUNSEL]: Those are really the concerns about this course and certainly - not that we're seeking to cause her further distress or have her distress ongoing throughout this process.

[HIS HONOUR]: Yes.

[DEFENCE COUNSEL]: It had only been going for a short time. Hopefully as it wears on she may calm into the process of listening to it but I think there are real difficulties with adopting this course -

[HIS HONOUR]: Yes.

[DEFENCE COUNSEL]: - part way through the evidence.

[HIS HONOUR]: Look [prosecutor], I agree with [defence counsel].

[The prosecutor]: Your Honour, I don't have any issue if that's what occurs.

[HIS HONOUR]: No.

[PROSECUTOR]: But if my learned friend wants the jury to see [EF's] demeanour as she listens to this recording then it's the whole demeanour.

[HIS HONOUR]: It's part of the trial process, isn't it?

[HIS HONOUR]: Well it's not normally in my submission, Your Honour but I understand why my learned friend perhaps wants to do it here but there cannot - if [EF] becomes upset that's just as much demeanour evidence as her responding in other parts of it in different ways.

[HIS HONOUR]: Well [defence counsel] understands that because she's asking for the proceeding to continue without the camera being covered.

[PROSECUTOR]: I'm really only raising this particularly right now, Your Honour, because I think Your Honour quite rightly raised a concern about the jury watching [EF] becoming upset earlier. Now if my friend -

[HIS HONOUR]: Well it wasn't just that but also the unfairness to her of being -

[PROSECUTOR]: Us watching her.

[HIS HONOUR]: - in a state of distress.

[PROSECUTOR]: Yes.

[HIS HONOUR]: Witnesses in sex cases frequently become upset.

[PROSECUTOR]: Yes, sir.

[HIS HONOUR]: Breaks are normal -

[PROSECUTOR]: Yes, sir.

[HIS HONOUR]: - to accommodate that.

[PROSECUTOR]: And certainly if this is the course my friend's seeking I don't oppose it.

[HIS HONOUR]: All right.

[PROSECUTOR]: But it may be we need to keep a watching eye.

[HIS HONOUR]: Yes.

[PROSECUTOR]: And asking Your Honour for a break. If Your Honour pleases.

[HIS HONOUR]: All right. I'll have a word to [EF] before we get the jury in.

[PROSECUTOR]: Thank you, Your Honour.

[HIS HONOUR]: If someone can remove the coffee cup please I'd be grateful.

[PROSECUTOR]: It's come off I think now.

1. With the coffee cup removed, the Thexton recording continued to be played to EF with the jury able to see her. As defence counsel had observed, to the point when the judge raised the issue of EF's distress, the recording had only been 'going for a short time'. In a later break in the evidence, and in the absence of the jury, the judge observed:

[HIS HONOUR]: Look she's been at a certain level of distress through it but she seems to be composed.

...

[HIS HONOUR]: When I say that I know because she's reaching across and grabbing a tissue and wiping her nose and her eyes.

...

[HIS HONOUR]: She wasn't too bad in my opinion.

1. The following day the procedure continued, and then, during a break, the prosecutor 'put on the transcript' that during the break (and thus in the jury's absence) EF was 'hyperventilating'. After the playing of the Thexton recording had ended, the cross-examination and re-examination of EF continued without apparent incident.
2. The forensic reason for playing the Thexton recording to EF, it seems to me, was clear. It was the defence case that EF had told obvious and demonstrable lies. Such lies included that EF had told DSC Thexton that she said 'stop' to the applicant, but that DSC Thexton had failed to include any reference to this in the first statement. These lies included that EF had not reviewed the first statement before signing it; and that a 'good portion' of the detail that she gave to DSC Thexton was not included in this statement. The proof of these lies lay in the Thexton recording itself. In order to achieve maximum effect in impugning EF's credit through exposing these lies, it is apparent that defence counsel wanted EF - in effect - to stew in the cauldron of her own mendacity by being made to listen to the entirety of the Thexton recording whilst on full display to the jury. As defence counsel expressed it to the judge during the first break in proceedings:

[HIS HONOUR]: [Defence counsel], why does it need to be played to her?

[DEFENCE COUNSEL]: It was being played to her out of fairness to the witness so that she could respond given the answers that she has. There's really two aspects. One is she's given a number of answers both in her evidence, at committal, in her statement about the treatment by Detective Thexton. The omissions that he's made. She's really painted a picture of how that statement was taken, that it was not the way in which she believed it should be.

[HIS HONOUR]: Yes.

[DEFENCE COUNSEL]: It certainly loses its impact if the [applicant] has to wait for that to be played until the informant. So a decision was made to do that now, both to give her the opportunity to respond and both for the jury to be able to follow the evidence that as she's being asked questions about the taking of that statement that now the evidence that rebuts the position that she's taken is to be played. That's why it's being played now.

1. It is apparent that defence counsel did not anticipate quite how EF would initially react to having the Thexton recording played to her. As defence counsel observed, during the first break in proceedings: 'Certainly we didn't anticipate this type of reaction from this.' But it is apparent that defence counsel - who hitherto had been scrupulous in ensuring fairness to her client by, at this point of the trial, having already made two applications to discharge the jury - did not see in the procedure adopted any apparent unfairness caused to her client; and certainly did not perceive such unfairness as might have warranted the making of a further application to discharge the jury.
2. The principles that apply when it is asserted that a substantial miscarriage has arisen due to counsel's alleged incompetence are summarised by Priest JA in his Honour's reasons.[113]
3. As best as the situation can be assessed objectively, from this standpoint, I can see no reliable basis to conclude that there was no actual or potential forensic benefit to the applicant in the approach to the Thexton recording adopted by defence counsel. Nor, again from this vantage point, is it possible - objectively - to conclude that any forensic benefit gained was only slight in comparison to any prejudice suffered. In fact, as I have indicated, I can see a rational basis for defence counsel proceeding as she did.
4. The observations of the judge and prosecutor do not, in my view, provide a basis to conclude otherwise. It is true that, at the first break, the judge expressed the view that it would have been unfair to the applicant and EF for the procedure adopted by defence counsel to 'continue' while EF was visibly distressed. But it is not apparent that the visible distress hitherto experienced by EF did 'continue'; or that if it did, that it did so with the same level of intensity. The judge at the most recent discharge application had observed that he might consider that there was a high degree of need to discharge the jury 'if the behaviour of [EF] continues'. Albeit that defence counsel did not apply to discharge the jury consequent upon EF's initial distress at being played the Thexton recording, there is no suggestion in the judge's comments - at this point - that had such an application been made, it might have been granted. Indeed, to the contrary, the judge in fact agreed with defence counsel that the procedure adopted should continue.
5. The prosecutor, it is true, at the first break indicated that it was not appropriate for the jury to sit for a 'hour' and watch the complainant be distressed. But at that stage the recording had only been played for a 'short time'. Again, it is apparent that when the balance of the recording was played to EF her condition improved.
6. On the material at our disposal, I am not persuaded that a substantial miscarriage of justice arose due to defence counsel's decision to play the whole of the Thexton recording to EF during her cross-examination. I am thus unable to uphold this ground of appeal.

1. In my view none of the applicant's proposed grounds of appeal have merit. I would thus refuse the application for an extension of time.

[1] Contrary to s 38(1) of the Crimes Act 1958, as amended by the Crimes Amendment (Sexual Offences and Other Matters) Act 2014.

[2] The judge imposed a sentence of four years and six months' imprisonment on the first charge, and five years' imprisonment on the second. He ordered that one year of the sentence on the first charge be served cumulatively with the sentence on the second.

[3] The applicant was due for release in September 2025, by which time he would have served the whole of the head sentence.

[4] 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'. The judge imposed sentence on the applicant on 22 July 2020, but the notice of application for leave to appeal was not filed until 17 September 2024, more than four years outside the prescribed period.

[5] For convenience, the grounds have been renumbered.

[6] See Criminal Procedure Act 2009, s 277(1)(b).

[7] Section 36(2) set out the circumstances in which a person does not consent to an act.

[8] Section 36B dealt with the effect of intoxication on reasonable belief. Notably, however, counsel for both parties requested that the trial judge not direct on intoxication, defence counsel submitting that 'it just muddies the waters'.

[10] See [23]-[26], and [50], below.

[12] See JDA, s 46(3)(a).

[13] See JDA, s 46(3)(b).

[14] See JDA, s 46(3)(c)(ii).

[15] See JDA, s 46(3)(d)(i).

[16] M v The Queen [1994] HCA 63; (1994) 181 CLR 487, 493 ('M'). See also Jones v The Queen [1997] HCA 56; (1997) 191 CLR 439, 452; MFA v The Queen (2002) 213 CLR 606, 614-5 [25] (Gleeson CJ, Hayne and Callinan JJ), 623-4 [55]-[59] (McHugh, Gummow and Kirby JJ); R v Hillier [2007] HCA 13; (2007) 228 CLR 618, 629-30 [20] (Gummow, Hayne and Crennan JJ); R v Nguyen [2010] HCA 38; (2010) 242 CLR 491, 499-500 [33] (Hayne, Heydon, Crennan, Kiefel and Bell JJ); SKA v The Queen [2011] HCA 13; (2011) 243 CLR 400, 405-6 [11]-[14] (French CJ, Gummow and Kiefel JJ); Filippou v The Queen [2015] HCA 29; (2015) 256 CLR 47, 54 [12] (French CJ, Bell, Keane and Nettle JJ), 75-6 [82] (Gageler J) (an appeal arising from a judge alone trial); R v Baden-Clay (2016) 258 CLR 308, 328-9 [65]-[66] (French CJ, Kiefel, Bell, Keane and Gordon JJ); Pell v The Queen [2020] HCA 12; (2020) 268 CLR 123, 145 [38] (Kiefel CJ, Bell, Gageler, Keane, Nettle, Gordon and Edelman JJ) ('Pell'); Dansie v The Queen [2022] HCA 25; (2022) 274 CLR 651, 659-60 [12]-[15] (Gageler, Keane, Gordon, Steward and Gleeson JJ) ('Dansie'); R v ZT (2025) 422 ALR 165, 167-8 [6]-[7] (Gageler CJ, Gleeson, Jagot and Beech-Jones JJ) ('ZT').

[17] M, 494-5 (Mason CJ, Deane, Dawson and Toohey JJ). (Emphasis added; footnotes omitted.)

[18] ZT, 169 [9] (Gageler CJ, Gleeson, Jagot and Beech-Jones JJ).

[21] M, 493; Pell, 146-7 [42]-[45] (Kiefel CJ, Bell, Gageler, Keane, Nettle, Gordon and Edelman JJ); Dansie, 657-8 [8]-[9] (Gageler, Keane, Gordon, Steward and Gleeson JJ).

[25] I do not ignore the fact that, prior to making her journal notes concerning the relevant events, EF had given a brief description to 'Sasha', another sex worker, in the course of making a complaint. In context, however, that description appears to relate to the second incident of sexual penetration. See [57]-[58] below.

[26] Closed circuit television. The brothel had both external and internal CCTV cameras.

[28] Resourcing Health & Education (RhED) provides services, programmes and resources to Victorian sex workers.

[29] See Evidence Act 2008, s 66(2).

[32] Dr Maaike Moller, a forensic physician, conducted the medical examination at 6.50 pm. She gave evidence that although EF suffered from dermatillomania - a compulsive skin-picking mental health condition which leaves self-inflicted injuries - she had no external or internal genital injuries. Dr Moller said that the absence of visible genital injury 40 hours after an event did not exclude penetration. Under cross-examination, Dr Moller agreed that EF suffered from endometriosis, which can cause vaginal sexual intercourse to be painful.

[33] See Criminal Procedure Act 2009, s 47(1).

[34] Although the record of interview played to the jury had apparently been edited by agreement between the parties, as I observed in oral argument, I consider parts of it remained highly objectionable. Since no issue as to its admissibility was taken in this Court, however, I will say no more about it.

[35] See Criminal Procedure Act 2009, s 360(a).

[36] Not long after this evidence was given, during a break in EF's evidence, the trial judge addressed defence counsel and said: 'I interjected a number of times during the evidence-in-chief. I don't know whether you want me to or not, but I'm not inclined to keep doing that. I think it can become unfair to the witness if I keep interjecting. As I say, I don't know whether you wanted to object to the matters I intervened in or not'. Defence counsel replied that 'on balance' she had made a decision not to object. She said that if matters 'had strayed into areas that [she] was very concerned about [she] would have made the objection, but a decision was made not to in the circumstances'. Since defence counsel's failure to take proper objections to evidence given by EF that was inadmissible or otherwise prejudicial was not put in issue in this Court, however, I say no more about it.

[37] As far as possible, the grammar, syntax and punctuation of the original has been preserved, but emphasis has been added.

[38] This sentence apparently commenced on an a previous page of the journal which was not reproduced. It seems that EF was describing one of the brothel's other sex workers.

[39] During the hearing in this Court, counsel for the applicant abandoned a ground of appeal that contended that a substantial miscarriage of justice occurred as a result of the trial judge directing the jury that they could use distress exhibited by the complainant as indirect evidence that the complainant had withdrawn her consent, in circumstances where: (a) the prosecutor had not relied upon distress in that way in his closing address to the jury; and (b) the complainant's distress was not capable of being used in that way.

[40] I note that there was very extensive - and, perhaps, not very productive - cross-examination of EF (and other witnesses) by defence counsel as to whether the standard, 'girlfriend experience' service offered at the brothel included kissing, and whether EF knew that it did. See, for example, [55], [57] and [59] above. I have not taken the time to summarise that cross-examination, since it strikes me as being of little importance to the critical issues in the case.

[41] By reason of s 4A of the JDA, I must reason in accordance with s 54D of the JDA. Among other things, I must decide whether or not any differences in EF's account are important in assessing her credibility and reliability.

[42] See [58] above.

[43] Maric v The Queen (1978) 52 ALJR 631 634 (Gibbs ACJ; Mason J agreeing at 636; Jacobs J agreeing at 636; Aikin J agreeing at 637). See also Dragojlovic v The Queen [2013] VSCA 151; (2013) 40 VR 71, 110 [169]-[170] (Redlich and Weinberg JJA and Bell AJA); Gul v The Queen [2017] VSCA 153, [57] (Ashley and Priest JJA); Carson (a pseudonym) v The Queen [2019] VSCA 317, [90] (T Forrest JA, Niall JA and Ashley JA agreeing); Matthews v The Queen [2021] VSCA 20, [32] (Kaye and Niall JJA); Qadir (a pseudonym) v The Queen [2023] VSCA 155, [24] (Priest, Walker and Kaye JJA); Papaioannou v The Queen [2023] VSCA 43, [65] (Priest, Taylor and Kaye JJA); Rohen v The Queen [2024] VSCA 1, [83]-[84] (Boyce JA, Priest JA and Taylor JA agreeing); Doyle v The King (2024) 73 VR 202, 218 [58] (Priest and Kaye JJA).

[44] R v Boland [1974] VicRp 100; [1974] VR 849, 866 ('Boland').

[45] Najibi v The Queen (2016) 260 A Crim R 491 ('Najibi').

[46] Dupas v The Queen [2010] HCA 20; (2010) 241 CLR 237 ('Dupas').

[47] DPP v McDermott (Ruling No 8) [2016] VSC 820 (Jane Dixon J) ('McDermott').

[48] The judge did not subsequently provide detailed reasons.

[49] See [117] below.

[50] See [104] below.

[52] By virtue of s 360(c) of the Criminal Procedure Act 2009, the court may permit a person, chosen by the witness and approved by the court, 'to be beside the witness while the witness is giving evidence, for the purpose of providing emotional support to the witness'.

[54] I note that, after the judge had ruled, and prior to EF's evidence resuming before the jury, the judge told EF that the court was 'not going to tolerate [her] just bolting out of the witness room'.

[55] At [127] et seq below.

[56] Jago v District Court (NSW) [1989] HCA 46; (1989) 168 CLR 23, 56-57 ('Jago').

[57] Jarvie v Magistrates' Court of Victoria [1995] VicRp 5; [1995] 1 VR 84, 90 (Brooking J, Southwell J and Teague J separately agreeing at 100).

[58] R v Vaitos (1981) 4 A Crim 238 ('Vaitos').

[60] R v Gallagher (1987) 29 A Crim R 33 (Crockett, O'Bryan and Brooking JJ) ('Gallagher').

[64] Gilbert v The Queen (2000) 201 CLR 414, 420 [13] (Gleeson CJ and Gummow J).

[65] Moore (a pseudonym) v The King [2024] HCA 30; (2024) 419 ALR 169, 181 [42] (Gageler CJ, Edelman, Steward, Gleeson and Beech-Jones JJ).

[67] Among others, the judge gave the following directions in his charge:

Now, at the start of the trial, I also told you that you must not base your decision on any information you may have obtained outside this courtroom. For example, you must completely ignore anything that you have seen or heard in the media about this case or about the people involved in it. You must consider only the evidence that has been presented to you here in court. You may recall the instruction I gave you at the outset as to why this was an important consideration. It would be both wrong and unfair for your decision to be influenced by anything other than the evidence that you have seen and heard in this courtroom. Outside information, whatever it be, is not evidence in the case and must not be used to assist you to arrive at your verdicts.

[68] See [31]-[36] above.

[69] See [43]-[44] above.

[70] Emphasis added to this and passages following.

[72] Nudd v The Queen [2006] HCA 9; (2006) 80 ALJR 614 ('Nudd').

[75] TKWJ v The Queen [2002] HCA 46; (2002) 212 CLR 124, 135 [33] ('TKWJ').

[76] Ibid 133 [27]-[28] (emphasis added; footnotes omitted).

[77] Knowles (a pseudonym) v The Queen [2015] VSCA 141, [131] (Ashley, Redlich and Priest JJA) ('Knowles').

[78] A term used by Gleeson CJ, when his Honour was Chief Justice of the New South Wales Supreme Court, in R v Birks (1990) 19 NSWLR 677 ('Birks').

[80] And see [151] below.

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

[82] See [148] above.

[83] See, for example: R v Patton (1995) 80 A Crim R 595; Kotvas v The Queen [2010] VSCA 309 [72] (Redlich JA, Maxwell P and Harper JA agreeing); CRR v The Queen [2011] VSCA 142; (2011) 32 VR 321, 325 [19]-[24] (Ashley JA and Hargrave AJA).

[84] Rabey v The Queen [1980] WAR 84, 95-96. See also DPP (Nauru) v Fowler [1984] HCA 48; (1984) 154 CLR 627; R v Bartlett [1996] VICSC 47; [1996] 2 VR 687 ('Bartlett'); R v Thomas (No 3) [2006] VSCA 300; (2006) 14 VR 512; R v Tang [2007] VSCA 144.

[85] Bartlett, 699 (Winneke P); Dyers v The Queen [2002] HCA 45; (2002) 210 CLR 285, 314-5 [82]-[83] (Kirby J). See also Corns C, The Discretion of the Court of Appeal to Order a New Trial or Verdict of Acquittal (2006) 30 Crim LJ 343, where a useful summary of the principles may be found.

[91] See Dawson v R [2021] NSWCCA 117; (2021) 108 NSWLR 96, 124 [112] (Adamson J); [2021] NSWCCA 117.

[92] Dupas v The Queen (2010) 241 CLR 237; [2010] HCA 20 ('Dupas').

[93] Ibid 241 [6] (French CJ, Gummow, Hayne, Heydon, Crennan, Kiefel and Bell JJ).

[96] Ibid, quoting R v Glennon [1992] HCA 16; (1992) 173 CLR 592, 605-6; [1992] HCA 16 ('Glennon').

[97] Dupas [2010] HCA 20; (2010) 241 CLR 237, 246 [21] (French CJ, Gummow, Hayne, Heydon, Crennan, Kiefel and Bell JJ); [2010] HCA 20.

[101] [1969] HCA 68; (1969) 122 CLR 444, 463.

[102] Dupas [2010] HCA 20; (2010) 241 CLR 237, 248 [27] (French CJ, Gummow, Hayne, Heydon, Crennan, Kiefel and Bell JJ); [2010] HCA 20.

[103] Ibid 248-9 [28]-[29] (citations omitted).

[104] Ibid 249 [31], quoting Glennon [1992] HCA 16; (1992) 173 CLR 592, 623-4; [1992] HCA 16.

[105] Dupas [2010] HCA 20; (2010) 241 CLR 237, 249-50 [32] (French CJ, Gummow, Hayne, Heydon, Crennan, Kiefel and Bell JJ); [2010] HCA 20.

[106] [1934] HCA 49; (1934) 52 CLR 335.

[107] Dupas [2010] HCA 20; (2010) 241 CLR 237, 250 [34] (French CJ, Gummow, Hayne, Heydon, Crennan, Kiefel and Bell JJ); [2010] HCA 20.

[109] See the directions of Cummins J that are extracted in Dupas at 246 [21].