1. Ground 1 concerns the nature of evidence given by AB's mother about what she observed of AB's demeanour when she attended the hospital to offer support to AB in the morning after the night on which the alleged offences occurred. AB's mother's evidence was, in short, that she went to the hospital, walked into the cubicle and saw AB on the bed 'very very distressed'. AB 'was very very upset and very emotional'. We shall refer to this as the 'distress evidence'.
2. AB told her mother that she had been raped, that she was with a friend, and that they got into a car with a man before he raped both of them. They were very frightened because he threatened them and he had a knife.
3. The distress evidence, and the circumstances and manner in which it was left to be used by the jury, is amply described in the judgments of Priest and Niall JJA. In short:

(a) There was no dispute that the distress evidence was admissible as part of the context in which AB complained to her mother about having been raped.

(b) However, the prosecutor told the jury in his closing address that they could use the distress evidence as 'independent' evidence of the events alleged by AB.

(c) In her charge, the judge recorded that the prosecution had invited the jury to use the distress evidence as indirect or circumstantial evidence supporting the case that AB and JJ did not consent to the sexual penetration.

(d) The judge gave the jury a direction on distress, leaving it to the jury to determine whether AB's distress was because she had been raped or for some other reason. Her Honour warned the jury that they could not use AB's distress as indirect evidence supporting the charges unless satisfied that AB was distressed because of the alleged sexual offending and not for some other reason.

1. We understand the terms 'independent', 'indirect' and 'circumstantial' to be used interchangeably and to mean the same as 'corroborative', that is, evidence of the events alleged that is independent of the complainant and, in this case, the accompanying complaint to the mother.
2. We agree with Priest JA that, having regard to the circumstances in which AB's distress was observed, the distress evidence was not capable of being used by the jury as 'independent', 'indirect' or 'circumstantial' evidence of the events alleged by AB (as opposed to evidence of the context in which the complaint was made to the mother). Nonetheless, the jury was invited to do so by the prosecution and the judge left it to the jury to decide whether it was open for it to do so.

1. In R v Sailor,[2] McPherson JA usefully described the evidentiary value of distress in the context of rape or sexual assault. McPherson JA said:

Like bruising, bleeding, and torn clothing, distress is an aspect of the appearance or visible condition of the complainant that of itself is capable of providing independent confirmation of the complainant's account of what happened to her.[3]

1. It has long been accepted that evidence of the distressed condition of a complainant after an alleged sexual offence can in certain circumstances be a form of circumstantial evidence that independently supports a complainant's account.[4] In order to be admissible as such, however, it must be reasonably open to infer from the evidence that there is a causal connection between the distressed condition of the complainant and the alleged sexual offence.[5]
2. As Priest JA points out, evidence of distress and evidence of complaint are conceptually distinct and have different admissibility requirements, although the test of relevance is the same. A complaint is a form of representation; distress is something that is manifest or open to view. As a representation made by the complainant, complaint evidence is not independent evidence: it cannot provide independent confirmation of the complainant's version of events. This is so notwithstanding that the Evidence Act provides that the evidence of the complaint is admissible as to the truth of the facts asserted.
3. However, where a representation in the form of a complaint is admitted under s 66 of the Evidence Act, the circumstances in which the complaint is made are also relevant and admissible, the distress of a complainant when making the complaint being one such circumstance.
4. This use of evidence of distress is logically distinct from its use as independent (or circumstantial) evidence of the offending alleged. For it to be used in the latter way, the connection between the distress and the events alleged must be direct, that is, unmediated by (or independent of) the representations constituting the complaint. The distress must be capable of being viewed as having been directly caused by the events that are the subject of the charges. For, as the Court observed in R v Moana:

[W]hen a question arises as to whether the evidence of a complainant found in a distressed condition might to some extent be corroborated by that condition the real question is whether or not it can be said that the condition itself was involuntary, uncontrived and so independent testimony relating to the statements or allegations that [the complainant] has made.[6]

1. The Court later characterised distress evidence, employed for the purpose of providing independent support, as 'an involuntary manifestation of [the complainant's] feelings'.[7]
2. The distinction between the use of evidence of distress as context for a complaint and its use as independent or circumstantial evidence of the events alleged may not be easy to draw. In Sailor, McPherson JA observed that requiring a jury to distinguish between distress occasioned by the incident itself, and distress prompted by the complainant's recollection of the incident in the course of complaining about it afterwards, introduces a 'further refinement' into a branch of the law already fraught with complexity.[8]
3. As Niall JA points out, distress evidence always emanates from the complainant, whether the distress is occasioned by the events themselves or prompted by the complainant's recollection.[9] In both cases, the complainant is the site of the distress, despite the potential for the distress to qualify as 'independent' evidence of the events alleged. Moreover, except in a rare case such as Redpath, the distress will usually accompany some form of complaint. In order to use the distress as circumstantial evidence of the events alleged, that is, as evidence that is (paradoxically) 'independent' of the complainant notwithstanding that it emanates from the complainant, the jury must be able to negotiate the difficult analytical path of separating the distress from its immediate context, this being the complaint. We agree with Niall JA that this exercise is fraught with difficulty, particularly where the distress is observed some time after the events alleged.
4. Moreover, distress in recalling a traumatic event, even where there have been periods of composure after the event itself, is commonplace. The law now recognises that the nature of sexual abuse is such that it may remain fresh in the memory of a victim for many years.[10]
5. It is also the case, as Niall JA argues, that if the distress renders the complaint (and the complainant) more believable, it will contribute to the proof of the facts in issue. The assessment of the honesty and reliability of AB could rationally affect, at least indirectly, the assessment of the probability of whether the alleged sexual acts were committed by the applicant.[11] However, this may be so even if evidence of distress cannot, in a given case, constitute independent support of a complainant's account. The reasoning which permits evidence of distress on a complainant's part to impact upon an assessment of the veracity of a complaint uttered by such a person does not necessarily proceed on the basis of some causal connection between the distress and the offending.[12] Distress, in such circumstances, may serve to contextualise the complaint, as Niall JA reasons, in a manner that permits the finder of fact to compare 'what was observed of the complainant' with how 'a victim of sexual offending might behave'.[13]
6. Once the crucial difference between distress as contextual evidence of a complaint and distress caused by the events complained of is understood, we consider that the oft-cited statement of Winneke CJ, Pape and Starke JJ in Flannery remains good law and represents a clear expression of the sorts of considerations that might bear upon the decision to admit evidence of distress as independent circumstantial evidence. As to this, their Honours said:

In our opinion, evidence of the distressed condition of a prosecutrix may or may not be capable of amounting to corroboration according to the particular facts of each case. In determining whether it is so capable, regard must be had to such factors as the age of the prosecutrix, the time interval between the alleged assault and when she was observed in distress, her conduct and appearance in the interim, and the circumstances existing when she is observed in the distressed condition. Without attempting to enumerate exhaustively the circumstances in which such evidence may amount to corroboration, we are of opinion that if, regard being had to factors of the kind we have mentioned, the reasonable inference from the evidence is that there was a causal connexion between the alleged assault and the distressed condition, evidence of the latter is capable of constituting corroboration. If such inference is not open, the evidence is not, in our opinion, capable of amounting to corroboration.[14]

1. The Court went on to refer to the desirability of a warning being given to juries when distress evidence is admitted, a matter to which we shall return:

We should add that except in special circumstances such as existed in Redpath's Case ... evidence of distressed condition will carry little weight and juries should be so warned by the trial judge in the course of his charge.[15]

1. Accordingly, if the reasonable inference from the evidence is that there was a causal connection between the alleged assault and the distressed condition, evidence of the latter is capable of constituting corroboration, that is, it may stand as independent evidence of the offending. Whether that inference may be drawn in any given case is the product of a number of different considerations. Flannery sets out in broad terms the factors relevant to determining whether the necessary causal connection exists.
2. The connection is to be assessed having regard to factors such as (a) the age of the complainant, (b) the time interval between the alleged assault and the distress, (c) the complainant's conduct and appearance in the interim, and (d) the circumstances existing when the complainant is observed in the distressed condition. None of these factors stands alone. The question of connection depends on all the circumstances.
3. If, having regard to factors of this kind, no reasonable inference is open that there is a causal connection between the alleged events and the distress, evidence of distress is not capable of going to the jury as independent evidence of the events alleged.
4. The temporal consideration in Flannery (factor (b) above) is fundamental to the character of distress evidence. Once again, McPherson JA's judgment in Sailor is of assistance. Perhaps more than in the case of bruising, bleeding and torn clothing, the value of distress as independent evidence diminishes rapidly with the passing of time.[16] The longer the interval from the alleged events, the more difficult it is to be sure that the distress is not due to some other intervening or unrelated cause:

Eventually a stage in time is reached where, without resorting to testimony of the complainant, it ceases to be possible to link the distress with its alleged cause.[17]

1. When this 'eventually' occurs will depend on the particular circumstances of the case. We observe that in Flannery, the Full Court did not seek to define the time limit in any particular way. We therefore respectfully disagree with Priest JA, in his discussion of Churchill (a pseudonym) v The King[18] at [161] and [162], that it cannot be accepted that distress observed hours, days or months after the alleged offending might be admissible as independent evidence supporting a complainant's account. And we are unable to agree with his Honour's conclusion at [157] that it is necessarily the case that there be a 'close temporal connection between the observed distress and the alleged offence'.
2. In this case, the judge's direction to the jury required them to be satisfied that the alleged events were the only cause of AB's distress. That direction was, like the direction in R v Rogers,[19] 'too favourable to the applicant'. Evidence of distress, as independent circumstantial evidence, may be admitted for this purpose so long as it is not 'intractably neutral' as to its causal connection with the alleged offending.[20] That assessment must be made by reference to the cumulation of circumstantial evidence. The circumstantial evidence of distress is not required to be considered in isolation.[21] As Beach, Taylor and Orr JJA said in Churchill, a direction to the effect that distress evidence can be used as evidence of independent support only if the jury is satisfied there is no other reason why the complainant could have appeared distressed at the relevant time therefore 'overstates the requirement for a causal connection'.[22]
3. The admissibility of distress evidence must be determined having regard to ss 55 and 56 of the Evidence Act.[23] To be relevant, the distress evidence must be able to rationally affect the assessment of the probability of the existence of a fact in issue - in the present case, that AB did not consent to sexual penetration.
4. Hence, in this case in order to be admissible as independent supportive evidence, the evidence of AB's distress, when examined in the context of all the evidence to be adduced at trial,[24] had to be rationally capable of being characterised as attributable to the sexual offending AB alleged, as distinct from having been caused by her fear or shame that her mother would find out that she and JJ had been out on the streets of Melbourne for a number of days working as prostitutes. As will become clear, we do not consider that the evidence of AB's distress possessed this capacity. But even if it did, we agree with Priest JA that if the distress evidence were to go to the jury on the basis that both factors were in play in causing the distress, the probative value of AB's distress as independent evidence would be slight, and would be outweighed by the danger of unfair prejudice, thereby engaging s 137 of the Evidence Act.
5. In this regard, we adopt the observations of the Court of Appeal of New Zealand expressed in R v Collings,[25] appropriately adapted to the circumstances of the present case,[26] namely that there will exist 'borderline case[s]' where evidence of a complainant's distress is 'just capable' of being independently supportive of the complainant's testimony 'but ... certainly not strongly so', and thus it may be 'safer and fairer' for this evidence not to be admitted for such a purpose.[27]
6. We accept, however, that there may be cases where there are several possible causes for a complainant's distress, yet the state of the evidence would permit a properly instructed jury, acting reasonably, to form the view that the distress was causally connected to the alleged sexual offending. In such a case, the proper course would be for the trial judge to leave the evidence to the jury, since the evidence could rationally affect the assessment of the probability of a fact in issue.
7. For the reasons that follow, this is not a case where evidence of AB's distress should have been left to the jury as evidence that was independently supportive of the complainant.

1. AB gave evidence that after the events, she and JJ headed back to 'Steve's' at approximately 6 am. The evidence as to what happened then is as follows:

Um, when we got to Steve's place, um, went in up to Steve's room. His alarm was going off and it was always at six, that's why I know it was six. Um, we told Steve we'd been raped. Um, he wanted us to call the police. We were just a bit shell-shocked and distressed. So, um, we went and had a bath and he went and called the police, I'm thinking. Somebody did, and I'm pretty sure it was Steve.

...

How was it that you felt once you got back to Steve's place at his suggestion that the police should be called?---I didn't really want to get the police involved. I knew they should be because of what had happened to us. Um, I guess, um, I was more concerned about how, um, people would react to what we were actually doing in St Kilda. Um, I was probably - I probably wasn't that scared of the police. I think I was more scared of my mother. Like, so, um - - -

1. When asked what they were 'actually doing', AB said 'Um, selling ourselves on the street'. AB was asked 'Do I take it - that as meaning your mother didn't know?'. She responded 'No, no'.
2. AB then described having a bath with JJ:

We both felt really yuck. Um, just had a quick bath and, um, we talked about how we were going to - because we - we didn't want to go to the police and say we were working on the streets. But we still wanted to report it. So we, um, concocted a story of how we were on the streets. Like, I think we were going to say we were hitch-hiking or something and then we were going to say we were catching a taxi back to home. But yeah, so - because we didn't want to tell the police that we were - had been prostituting ourselves.

That was the discussion that you had with [JJ]?---Yes.

1. AB said that the police arrived pretty soon after they got out of the bath. They were taken to hospital and a medical examination was carried out by an elderly male doctor. AB's mother then 'turned up' at the hospital.
2. When asked whether she saw anyone she knew at the hospital, AB said:

Yeah, um, my mum. That I was scared of telling her. She turned up.

That was [AB's mother], is that right?---Yeah, yes.

When was it that your mum came to the hospital?---I don't exactly remember. But I remember her being there and - and being with me.

What happened when your mum came to the hospital?---Um, we were still sticking to the story that we were hitch-hiking. But yeah, I - she was just there as a support for me. So, yeah.

Do you recall if you had any conversation with your mother - - -?---No.

About what had taken place?---No, I'm sorry. I'm sure I did but I don't remember.

Right. You're able to recall though that you didn't say you'd been working as a prostitute to your mother?---No, I didn't tell her that. At that stage, we weren't saying that.

Now you wanted the police to believe you, didn't you?---Um I wanted to report what had happened to the police.

And you were both worried that if you told the police that you were streetworkers they might not believe you?---Um no I think I was more worried about the fact that my family were going to be totally disappointed with me.

So you weren't worried about getting in trouble?---Well to a degree, yes I was worried about getting in trouble but I - it was more what are my family going to say.

Because you've given evidence that you went to the point of having sex to avoid getting in trouble?---No, I was raped.

Right. Because you wanted to avoid getting in trouble - - - ? ---No.

- - - around to the police station, that was your evidence?---I think, you know, looking back at it I wouldn't have cared if he had taken us to the police station. I wouldn't have been so vulnerable.

1. As to AB's interactions with her mother at the hospital:

Yes, okay. Now, when you were in hospital for that purpose, you said your mum arrived?---Yes.

Yes. And you've already said this, that you didn't tell her the truth about what you were doing on the night? ---That's right.

Or why you were there on that night?---Yes.

Yes. Was she quite upset with you about what - - -?---No, she wasn't upset with me. She was concerned. Her daughter had just been raped.

Yes. Was she interrogating you about why - - -?---No.

You were out or anything like that?---No.

No, okay?---She was being sensitive.

1. For her part, AB's mother gave evidence that she received a phone call asking her to come to the hospital in regard to AB. She went to the hospital, walked into the cubicle and there was AB on the bed 'and very very distressed.' She was asked:

Did you have any conversation with [AB] at that time?---I did.

What was it that [AB] said to you?---She told me that she'd been raped, she was with a friend and they had got into a car with a man and he had raped both of them and that they were very frightened and because he threatened them and he had a knife.

Did she say where it was that this event had taken place?---Well it was somewhere in the night before.

Did she give you any more detail in that conversation of what she said had happened?---No she didn't.

A moment ago you just said that when you observed [AB] that she was, what was your word, did you say that she was upset? ---Yes I think I said distressed.

What was it about her presentation that led you to say that she was distressed?---Well she was just very very upset and very emotional ah but she wasn't yelling or screaming or anything like that but she was very - I knew she was very very upset.

(a) AB and JJ returned to Steve's at about 6 am, having been out all night.

(b) Steve thought that they should report what had happened to them but they were concerned that the police would learn that they had been engaging in sex work.

(d) Before the police arrived, AB and JJ had a bath together and worked out what they would tell the police (and others) about what had happened.

(e) AB and JJ resolved to lie about why they got into the applicant's car and what they were doing in St Kilda that night.

(f) AB was scared her mother would find out that she had been engaging in sex work.

(g) AB was worried about getting into trouble [with the police] for engaging in sex work, but was more worried about her family's response.

(h) AB concealed from her mother that she and JJ were engaging in sex work that night.

1. AB was very distressed when she was observed by her mother upon her mother's arrival at the hospital. AB lied to her mother about what she was doing in St Kilda that night, and knew before her mother arrived that she was going to do so. AB said she was more worried about her mother finding out what she was doing that night than about lying about it to the police.
2. There were plainly a number of reasons for AB to be distressed when she found herself in hospital that morning. There was at least one other substantial cause for the distress observed by AB's mother: AB's concern that her mother would find out she had been engaging in sex work. Allied to this was the imperative to lie to her mother and her decision to lie to the police and perjure herself.
3. By the time AB's mother arrived at the hospital and observed AB's distress, some four hours had elapsed since AB and JJ had returned to Steve's flat. A number of things had occurred in the interim: AB and JJ had spoken to Steve, who had told them they should make a report to the police; they had had a bath together and worked out what they were going to say to the police, which included lying about why they got into the applicant's car and, more generally, about what they were up to in St Kilda that night; they had spoken (and lied) to the police; and they had been taken to hospital for an intrusive medical examination. Following this, AB's mother had arrived and AB had felt compelled to lie to her as well.
4. In these circumstances, AB's distress is not rationally capable of being characterised as attributable to the sexual offending that she described. Although the events were quite recent, a lot had occurred since to put AB under significant stress which could itself have caused the distress, irrespective of the alleged offending. Moreover, AB and JJ had the presence of mind, sitting in the bath together, to work out jointly what they would and would not tell the police. The decision to lie, which was exposed very quickly, must have put significant pressure on them both.
5. In her charge, the judge was at pains to set out the reasons why AB might have been distressed other than because she had been raped:

She might have been upset because she was lying about the fact that - or either lying - either was going to lie, or had already lied to the police about the fact she was not working as a prostitute and how she came to be in St Kilda, knowing that that was something she said on oath, or was under penalty of perjury. So she might have been upset about that or that her mother, generally, might have found out that she was working as a prostitute.

1. However, the judge left it to the jury to decide whether AB's distress was causally connected to the events alleged, such that the distress evidence could independently support her allegations:

It is up to you to decide whether [AB's] distress was because she had been raped, or for some other reason, and what you make of the arguments of counsel. Obviously, you cannot use it as indirect evidence supporting the charges unless you are satisfied that she was distressed because of the alleged sexual offending, and not for some other reason. If you do find that causal connection it is for you to evaluate the weight of the evidence; that is, the extent to which it helps you decide the issues in this case, and in doing this you will use your common sense.

1. No exception was taken to this direction. The defence had accepted that the evidence was admissible as part of the context of AB's complaint to her mother; it was not submitted that the jury was not entitled to use that evidence as circumstantial evidence of the events alleged.
2. In our view, having regard to the other significant possible causes for AB's distress, and the fact that AB and JJ were preparing to commit themselves to a false and perjured account of their activities, it was not possible for the jury to find the requisite causal connection between the alleged events of the previous night and AB's distress at the hospital. The distress evidence was intractably neutral as to its causal connection with the alleged offending.
3. As a result, the distress evidence was not capable of providing independent support for AB's allegations against the applicant. It should not have been left to the jury on that basis.

1. The notion that evidence of distress carries 'little weight' may find its genesis in Redpath. It features in the emphasised part of the following extract taken from the reasons delivered in that case.

So far as any question of indecent assault is concerned, the learned judge told the jury that her distressed condition observed by Mr. Hall and spoken to by Mr. Hall was capable of being corroboration. The point in this appeal is whether that is so. [Counsel for the appellant] has argued that the distressed condition of the complainant is no more corroborative than the complaint, if any, that the complainant makes, and that while the latter merely shows that the story is consistent and is not corroborative, so the distressed condition is not corroborative. This court is quite unable to accept that argument. It seems to this court that the distressed condition of a complainant is quite clearly capable of amounting to corroboration. Of course, the circumstances will vary enormously, and in some circumstances quite clearly no weight, or little weight, could be attached to such evidence as corroboration. Thus, if a girl goes in a distressed condition to her mother and makes a complaint, while the mother's evidence as to the girl's condition may in law be capable of amounting to corroboration, quite clearly the jury should be told that they should attach little, if any, weight to that evidence, because it is all part and parcel of the complaint. The girl making the complaint might well put on an act and simulate distress. But in the present case the circumstances are entirely different. Here is this little girl emerging from the moor in a matter of seconds after the appellant has left, not about to make a complaint at that particular moment and with no idea that she is being observed or that anybody thinks that anything improper has happened. Quite clearly in those circumstances the observation of Mr. Hall, an independent bystander, was very strong evidence, if accepted by the jury, of the little girl's story.[28]

1. As is evident, an instance - according to Redpath - where 'little weight' would be accorded to evidence of distress was where a 'girl goes in a distressed condition to her mother and makes a complaint'. Little, if any, weight should attach to this evidence of distress as independent support for the complainant because 'it is all part and parcel of the complaint'.
2. However, as the passage from Flannery extracted above reveals,[29] the Court in Flannery appears to have expanded the scope beyond what was considered necessary in Redpath for treating distress evidence as evidence that is of 'little weight'.[30]
3. Whether a jury should be warned that distress evidence carries 'little weight' must now be examined in light of the terms of the Jury Directions Act 2015.[31] A warning of this nature would qualify as a 'particular direction ... in respect of ... the evidence in the trial relevant to the matters in issue',[32] and, as such, must be the subject of a request by counsel.[33] The judge 'must give' the direction 'unless there are good reasons for not doing so'[34] and the judge, generally, 'must not' give the direction unless it was requested.[35] A trial judge will retain the ability to give the warning, despite it not having been requested, so long as the judge 'considers that there are substantial and compelling reasons for doing so'.[36]
4. It may be that there will be good reasons for giving such a warning in many cases, although not because victims of sexual assault are prone to 'putting on an act' as was suggested in Redpath. To the contrary. It is now well known that victims are often reluctant to make a complaint. However, because distress involves the expression of strong feelings, and is likely to enliven strong feelings in others, evidence of distress is susceptible to being given more weight than it deserves, especially where there is very limited evidence other than the complaint itself and the case is essentially one of word against word.
5. We therefore agree with Priest JA that rather than reflecting outmoded stereotypes about the typical behaviour of victims of sexual assault, the caution often attaching to evidence of distress reflects an understanding of its capacity to be misused.
6. The risk that a jury may misuse, or place inordinate weight upon, evidence of distress may be seen as the obverse (or as the counterpart) to the risk that juries will undervalue a complainant's evidence of having suffered a sexual assault in circumstances where the complainant expresses no emotion or distress on reporting, or giving evidence about, the offending incident.
7. Thus, the Victorian Law Reform Commission's final report, Improving the Justice System Response to Sexual Offences, included the following recommendation:

New jury directions should be introduced in the Jury Directions Act 2015 (Vic) to address misconceptions about sexual violence on:

1. an absence or presence of emotion or distress when reporting or giving evidence[37]

1. Section 54K(5) of the JDA now provides that if the complainant is to give evidence, the trial judge must inform the jury that experience shows that -

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

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

1. Section 54K was introduced by the Justice Legislation Amendment (Sexual Offences and Other Matters) Act 2022, s 56. In the Second Reading Speech to the Bill,[38] the Minister[39] said:

New Division 5 [of the JDA, including s 54K] requires a trial judge to give a direction on the complainant's distress or emotion while giving evidence, unless there are good reasons for not giving the direction. This will guard against a jury making incorrect assumptions as to these issues, promoting victim-survivors' rights and achieving fairer outcomes in proceedings for sexual offences. Again, these new directions reflect extensive research on common misconceptions about sexual offence victim-survivors, as discussed by the [Victorian Law Reform Commission].[40]

1. Although s 54K applies when evidence is given by the complainant, it tells us something more generally about the weight to be given to evidence of a complainant's response to having been offended against sexually. Just as an absence of distress may not indicate that a rape or assault did not occur, so too the presence of distress may not indicate that it did.
2. The use of evidence of distress must be approached with considerable care. Distress which accompanies a complaint may not say anything about whether asserted facts are true. The complexity involved in disentangling the permitted use of evidence of distress as context for a complaint from its use as circumstantial evidence of the events alleged requires significant caution by trial judges when leaving distress to the jury. In many cases where determining the cause of the distress is left to the jury, a warning concerning the weight to be accorded to distress evidence should be given.
3. Given our conclusion that the evidence ought not to have been admitted in this case, it is unnecessary to decide whether there were 'substantial and compelling' reasons within the meaning of s 16 of the JDA to give the jury a warning as to its use.

1. Although no criticism can be made of the trial judge, who was at pains to discuss the treatment of the distress evidence with counsel and carefully followed the bench book in directing the jury, we have concluded that a substantial miscarriage of justice occurred because the jury was invited to use AB's distress as independent support for her account in circumstances where it was simply not open to the jury to find the requisite causal link between the distress and the events complained of. We would grant leave to appeal against conviction; allow the appeal; set aside the applicant's convictions; and order a new trial.

1. Distress and complaint are distinct evidentiary concepts. They owe their admissibility to different considerations. That they are fundamentally different, however, is not reflected in the respondent's arguments, whose submissions were apt to conflate the two.
2. At common law, in a case such as the present, the distressed condition of a complainant, observed shortly after an alleged sexual offence, may constitute corroboration of the complainant's evidence. By its nature, corroboration is independent evidence that

confirms or supports the complainant's testimony.[41], [42] It must tend to connect the person against whom it is given with the alleged crime. As Isaacs J put it in Ridley v Whipp - citing Baskerville[43] - 'the independent evidence must support the story both as regards the alleged crime and the alleged criminal'.[44] That evidence of distress must come from a source independent of the complainant was made abundantly clear more recently in Meyer, a case of rape and indecent assault in which the trial judge directed the jury that the complainant's own evidence of her distress was independent support for her evidence that she was raped and indecently assaulted. Nettle JA observed:[45]

The error is obvious. It is rudimentary that a complainant's testimony is incapable of constituting independent evidence in support of her own allegations.[46] As Barton J put it in Ridley v Whipp,[47] the notion that a complainant is capable of corroborating herself by her own evidence -

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

1. Complaint evidence is an entirely different species of evidence. Whether at common law, or admitted as an exception to the hearsay rule under the Evidence Act 2008 ('the Act'), evidence of complaint cannot provide independent support for the complainant's evidence, since its source is the complainant.
2. At common law, evidence of a recent complaint was admitted simply to buttress the complainant's evidence given in the witness box. It provided 'no evidence at all', and was inadmissible if it stood on its own and the complainant was not called to give evidence. When admitted, it was not corroborative of the complainant's evidence.[48] To be admissible as evidence, the complaint needed to be made at 'the first reasonable opportunity' after the alleged sexual offence.[49] And the jury were to be directed that the complaint could be used as throwing light on the credibility of the complainant to the extent that it showed consistency in the complainant's account of the relevant event.[50]
3. Under the Act, however, complaint evidence - a 'previous representation' - may be admitted not only to assess the credibility of a complainant (by demonstrating that the complainant's account has been consistent), but also to prove the truth of the facts asserted in the complaint. By virtue of s 66(2), evidence of a complaint is admissible if the person who made the complaint 'has been or is to be called to give evidence'; and either, the occurrence of the asserted fact was 'fresh in the memory of the person who made the representation' at the time it was made, or 'the person who made the representation is a victim of an offence to which the proceeding relates and was under the age of 18 years when the representation was made'. But the complaint remains hearsay.[51] And, since it is not evidence from an independent source, cannot constitute corroboration of the complainant's testimony.[52]
4. There can be no doubt that the admissibility of evidence of a complainant's distress was first authoritatively acknowledged in Redpath,[53] a case in which the Court of Criminal Appeal concurrently drew a sharp distinction between evidence of distress and evidence of complaint. (Indeed, as will become clear, the Court in Redpath considered that the strength of the distress evidence in that case lay in the fact that a child was observed in a distressed condition by an independent bystander seconds after an alleged sexual assault in circumstances where the child did not know she was being observed, and was not in the process of making a complaint.) In the wake of Redpath, distress evidence assumed some prominence in - and, more recently, has bedevilled - criminal cases in this State involving alleged sexual offending. Although, following Flannery,[54] the evidentiary rules in Victoria concerning distress evidence appeared to be tolerably well-settled, recent decisions of this Court - principally Charles[55] and Churchill[56] - have thrown the relevant jurisprudence into some disarray. It is against that backdrop that the issues in this case fall to be determined.
5. In the present case, the applicant was convicted at trial in the County Court on 31 August 2022 of kidnapping (two charges - charges 1 and 2); rape with aggravating circumstances (two charges - charge 3 and 12); and gross indecency (four charges - 5, 10, 11 and 14). Subsequently, on 7 March 2023, the judge sentenced the applicant to a lengthy term of imprisonment. By notices filed on 4 April 2023, the applicant sought leave to appeal against both conviction and sentence.
6. Initially, the applications came before a full court (Emerton P, Niall and McLeish JJA) on 7 May 2024. Judgment was yet to be delivered, when reasons for judgment in Churchill were published on 28 June 2024. Given a number of the statements of principle in Churchill concerning distress evidence bore upon the resolution of the first ground in the present case, it was resolved that the Court in this case should be reconstituted as a full bench to hear further argument.[57] In the result, supplementary written submissions were invited from the parties; and, having read the transcript of the hearing of 7 May 2024, Boyce JA and I joined the original members of the Court and heard further oral argument bearing on ground 1 on 22 August 2024.
7. The relevant offending was alleged to have been perpetrated by the applicant more than 37 years ago, on 7 May 1987, against 'AB', then aged 16 years, and 'JJ', then aged 15 years (now deceased), when AB and JJ were working as street prostitutes in St Kilda. With respect to the application for leave to appeal against conviction, the issues in the case revolve around evidence given at trial by 'FR', AB's mother, concerning her observations of AB's distressed condition, made some four and a half hours after the cessation of the alleged offending, and around certain mistakes made by both the prosecutor and defence counsel at trial.
8. In my view, the first ground of appeal, which contends that a substantial miscarriage of justice occurred because, first, the jury was invited to use the complainant's distress as independent support for her account; and, secondly, the jury was not warned that evidence of distress is a species of evidence that carries little weight, must succeed. For the reasons that follow, I would grant leave to appeal against conviction; allow the appeal; set aside the applicant's convictions; and order a new trial.
9. Since I regard much of what was advanced by the respondent concerning the admissibility of distress evidence, and the jury directions necessary if such evidence is introduced at trial, to be untenable, it is unavoidable that, when dealing with the first ground, I repeat a deal of what I said in Seccull: first, as to the principles governing the admissibility of distress evidence; and, secondly, as to the directions required if distress evidence is before the jury. In so doing, it will be necessary to recapitulate in moderate detail the authorities that establish the relevant principles.
10. Furthermore, for the reasons I will give, I consider that ground 2 should also succeed.
11. Given that the evidence in the trial has, however, been summarised in some detail by Niall JA, whose reasons for judgment I have had the considerable advantage of reading in draft, I need only restate so much of the evidence as is necessary to make my own reasons comprehensible.
12. In light of my conclusions on the conviction application, it is unnecessary to consider sentence.

1. The evidence established that after the alleged offending had ceased, the applicant dropped AB and JJ in Grey Street, St Kilda, shortly prior to 6.00 am. They then went to Steve Tatham's boarding house - his six o'clock 'alarm was going off' - and told him that they had been raped. While they were having a bath, someone called police, who arrived at around 8.30 am. Before police arrived, AB and JJ 'concocted' a story that they were hitchhiking and were picked up by the man who had raped them, and that they would not tell anyone they had been engaged in sex work.
2. Police took AB and JJ to the Queen Victoria Hospital, arriving at about 10.25 am. At 11.11 am, AB was medically examined.
3. FR, AB's mother, gave evidence that when she arrived at the hospital she saw AB on a bed in a cubicle. AB was 'very very distressed' and told her that the night before she and a friend had gotten into a car with a man who had then raped both of them. They were very frightened and he had threatened them with a knife. She described her daughter as 'very very upset' and 'very emotional'. Based on the evidence, it is plain that AB's distressed condition was observed by her mother at least four and a half hours after the alleged offending had concluded, in circumstances where there were factors other than the alleged offending which may have explained her distress.
4. In his final address to the jury, it is plain that the prosecutor relied on AB's distress, observed by her mother, as independent supporting evidence. When doing so, he drew a distinction between complaint evidence and distress evidence, making it clear that complaint evidence was not independent evidence, but that AB's observed distress was independent evidence that supported her account. He said:[58]

Now, it's going to be pointed out to you that this complaint, despite me suggesting it stands against any sort of recent invention, a lie told, because it's consistent over time doesn't include saying that she was a prostitute. Of course it doesn't. And what's more, it will be pointed out to you that the source of this information that [sic] [FR] is still [AB]. All you're really getting is the evidence of a conversation where [AB] said something to her mother. It's consistent but it's not independent evidence.

But her mother's observation of the distress that [AB] was experiencing at the time is independent evidence. And that shows that provided you're satisfied that there was a causal connection between the way [AB] was upset in that hospital bed the morning after and the alleged offending, well, you can use your common experience that recounting a stressful experience is accompanied by outward signs of distress.

[AB] told you about her naivete at age 16, about her fears for the relationship with her mother if she found out what she had been doing and how close in time it was to the alleged kidnapping and rape, just a matter of hours. You could be satisfied that [AB] was upset, as observed by her mother, because of what she'd experienced and that is independent evidence that supports her.

1. In brief discussion prior to the applicant giving evidence, the judge told counsel that she will 'be giving directions [to the jury], of course, about the fact there was a recent complaint and distress, what they can make of that'. And after the close of the evidence, in the kind of discussion contemplated by ss 11 and 12 of the Jury Directions Act 2015 ('JDA'), there was the following exchange:

HER HONOUR: I'm going to give a separate distress direction. There was a recent case about distress which I just want to refresh my memory about,[[59]] but essentially what I was going to say about this is; that, 'You heard evidence about [AB's] apparent distress from her mother and, again,' I'll remind the jury of what it was. 'If you find that [AB] was distressed soon after the alleged offence and [her mother's] evidence was not disputed, the prosecution invites you to use this as indirect evidence or circumstantial evidence that supports its case that she did not consent to the sexual penetration with the accused.' And if there are any arguments you make, [defence counsel], I'll put them in as well. 'It's up to you to decide whether [AB's] distress was because she had been raped or for some other reason and whose argument you accept. It's for you to evaluate the weight of this evidence; that is, the extent to which it helps you decide the issues in the case. In doing so, you will use your common sense.'

[PROSECUTOR]: I have no issue - I take no issue with that, Your Honour.

HER HONOUR: [Defence counsel], happy with that?

[DEFENCE COUNSEL]: Yes, Your Honour. I mean, I will be going to the jury on the basis that there were other reasons for distress.

HER HONOUR: You will?

[DEFENCE COUNSEL]: Of course.

HER HONOUR: Yes. Yes, well, I mean, as I say, I'll mention them.

[DEFENCE COUNSEL]: Yes, she was just about to perjure herself, that's one reason to be distressed. But that's what I'll be saying to the jury and I trust that Your Honour will - - -

HER HONOUR: All right.

[DEFENCE COUNSEL]: - - - incorporate those.

1. In the course of her charge, the judge endorsed the notion that FR's evidence concerning AB's observed distress was indirect or circumstantial evidence that could support the prosecution case. The judge gave the following directions to the jury:

Now, I am going to talk to you about distress, and what I mean by that is that you heard some evidence about [AB's] apparent distress from her mother, and I will just remind you of - in fact, I will remind you of what her mother said, because I meant to remind you a bit earlier on.

So her mother says she went to hospital, because she got a telephone call that day and she had to go to a hospital. She did not remember where it was, hurried there and walked - remembered walking into a cubicle and there was [AB] on the bed and very, very distressed. She was asked about a conversation. She said, 'She told me that she'd been raped. She was with a friend and they'd got into a car with a man and he had raped both of them, and that they were very, very frightened', sorry. 'They were very frightened, and because he threatened them and he had a knife', and she was asked when it happened. She said, 'It was somewhere in the night before', and then a bit later she was asked again about her presentation. She said, 'Well, she was just very, very upset and very emotional, but she wasn't yelling or screaming, or anything like that, but she was very - I knew she was very upset'. So that was her evidence.

If you find that [AB] was distressed soon after the alleged offence - and [FR's] evidence was - about that was not disputed - the prosecution invites you to use this as indirect evidence; that is, circumstantial evidence that supports its case that [AB] did not consent to the sexual penetration with the accused. The defence of course dispute this and they say, well, there might be other reasons that she was upset. She might have been upset because she was lying about the fact that - or either lying - either was going to lie, or had already lied to the police about the fact she was not working as a prostitute and how she came to be in St Kilda, knowing that that was something she said on oath, or was under penalty of perjury. So she might have been upset about that or that her mother, generally, might have found out that she was working as a prostitute.

So that is what the defence say, so it is for you to assess those arguments. It is up to you to decide whether [AB's] distress was because she had been raped, or for some other reason, and what you make of the arguments of counsel. Obviously, you cannot use it as indirect evidence supporting the charges unless you are satisfied that she was distressed because of the alleged sexual offending, and not for some other reason. If you do find that causal connection it is for you to evaluate the weight of the evidence; that is, the extent to which it helps you decide the issues in this case, and in doing this you will use your common sense.

1. Noticeably, the judge did not warn the jury that evidence of distress carried little weight.

The applicant's submissions in support of the first ground

1. In their initial submissions in this Court concerning ground 1, counsel for the applicant submitted that the evidence of AB's distress when complaining to her mother was inadmissible as corroboration of AB's account. Too much time had passed between the complainant's alleged trauma and the observed distress for evidence of that distress to be independent supporting evidence. Thus, the alleged offending had concluded by approximately 6.00 am. AB had then complained to Steve Tatham and colluded with JJ to tell the police falsely that their assailant had forced them into his vehicle by threats and to deny they were sex workers. Although there was no evidence of precisely what time her mother, FR, attended the hospital and observed AB's distress, AB herself did not arrive at the hospital until 10.25 am. Therefore, at least four and a half hours had elapsed between the alleged offending and observed distress.
2. The offending, counsel submitted, was not the only potential source of AB's distress. AB had had no sleep, was 'scared' of telling her mother and she lied to her. She was not asked the source of her distress. And the quality of the distress evidence was poor, FR's evidence being given some 35 years after the relevant events, when she had little recollection of the circumstances surrounding the display of distress. The first complaint witness and the other complainant were both deceased, Steve Tatham having died in 2000, and JJ in 2013.
3. Counsel submitted that, even were the evidence of distress admissible as going to the quality of AB's account or to 'context', the jury should not have been invited to use the evidence of distress as independent evidence in support of AB's account. It was not of a kind which could have enabled the jury to find that the distress was involuntary or uncontrived and, in effect, independent testimony.
4. Further, and in any event, counsel submitted, the directions given to the jury were inadequate. The jury were invited to decide for themselves what weight to give the evidence of AB's distress, when instead they ought to have been warned that evidence of distress carried little weight.
5. Counsel submitted that the trial was quintessentially oath against oath. More than 35 years separated the events in question and the applicant's trial. It cannot be said that, absent the errors the subject of this ground of appeal, the applicant's convictions were inevitable. There has occurred a substantial miscarriage of justice.
6. In their supplementary submissions on ground 1, counsel for the applicant submitted that Churchill was wrongly decided, and betrays error in at least four respects.
7. First, the Court's finding that, if the jury had been properly instructed, it would have been open to them to use as corroboration of the alleged crime the complainant's distress when recounting its events 12 months after the alleged sexual assaults[60] is at odds with established authority. There is no warrant, in principle or logic, to depart from the law's traditional insistence that, to qualify as corroboration, observations made of a complainant's distress must occur shortly after the alleged crime and in circumstances independently linking them to it.[61]
8. Secondly, that holding, counsel submitted, manifests a conflation of two distinct types of distress evidence, and their reception and use in a criminal trial. Distress evidence which accompanies a complaint may be admissible to give context to, and to inform the complaint, thereby forming part of the evidence used by a jury to assess the complainant's credibility. On the other hand, distress evidence received to corroborate the complainant - or as indirect or circumstantial evidence of the crime alleged - earns its logical force by remaining separate from a complainant's account. Because it is received and used as corroboration or circumstantial evidence, its assessment and use occur without resort to the complainant's account. To do otherwise would be to use 'bootstraps' reasoning and permit the complainant to self-corroborate. For that reason, the conditions for the reception of distress evidence have traditionally been strict.
9. Thirdly, the Court's finding that a jury which receives evidence of distress does not need to be satisfied, before it uses it as indirect or circumstantial evidence, that the alleged crime is its only reasonable cause,[62] is wrong.
10. Fourthly, counsel contended, the Court in Churchill made material changes to the law governing the reception and use of distress evidence in criminal trials when it is relied upon as corroboration. It did so without identifying which of the earlier authorities are wrong, or why they are wrong.[63] And it did so without (expressly) acknowledging that its material changes to the law represented a departure not just from earlier Victorian authorities, but from those which continue to apply in other Australian jurisdictions.
11. I agree with these submissions concerning Churchill.
12. Counsel for the applicant further submitted that this Court recognised in Paull that distress displayed by a complainant shortly after an alleged sexual offence can in certain circumstances be a form of circumstantial evidence that independently supports a complainant's account.[64] The logical force of such evidence resides in the connection between the alleged incident and the distress.[65] To be admissible, it must be reasonably open to infer from the evidence that there was a causal connection between the distressed condition of the complainant and the alleged sexual offence.[66] In so holding, counsel submitted, the Court cited many authorities of this Court stretching across decades,[67] which have continued to be cited and applied in jurisdictions outside Victoria without any material modification.
13. Counsel submitted that, prior to Charles, only two decisions of this Court represented departures from these authorities. In Charles, the Court held that a complainant's distressed state at the time of her complaint to her partner (some) two or three years after the alleged offending had ceased was reasonably capable of being viewed by the jury as causally connected to the offending.[68] And in Seccull, Niall JA and Kidd AJA left open the question of whether distress which accompanied a complaint by the complainant to her friend, six weeks after the last charged offence and more than four years after the earlier alleged offending, was capable of corroborating the offences alleged.[69] By way of contrast, the Court in Nimely held that a complainant's distress some six weeks after the last alleged offence was incapable of founding the requisite causal connection for its use as corroboration, and was 'inadmissible as evidence providing independent support for the complainant's account'.[70]
14. The applicant's counsel submitted that in Seccull I had emphasised the need for there to exist a close temporal connection between the alleged crime and the distress before distress could be used as corroboration, and that I concluded that the distress evidence had been wrongly admitted for that purpose. I had also held that the conclusion reached in Charles about the distress evidence in that case was plainly wrong. On the other hand, Niall JA and Kidd AJA did not conclude that the evidence had been wrongly admitted. Counsel cited passages of their reasons for judgment,[71] and submitted that error was displayed in one particular passage.[72] Thus, counsel submitted, although Niall JA and Kidd AJA were correct to observe that the cases on distress arose in a context where there was a need for independent evidence to support the word of a complainant in cases of sexual offending, they were not correct to observe that fact underpinned the caution and rigour with which courts received distress evidence in criminal trials. It was (and continues to be) the corroborative purpose for which the evidence is led that governed (and continues to govern) its admissibility. Nor has the reception of distress evidence to date been tied to, or dictated by, a dated understanding of the effects of sexual offending on complainants. Distress which accompanies a complaint is admissible, even when the complaint is delayed. But corroborative evidence of an event, without resort to a complainant's account, demands that the evidence be linked temporally and circumstantially to the event. That is how evidence of distress earns its logical force and how it avoids the error of prohibited self-corroboration and bootstraps reasoning.
15. The distinction between complaint evidence and evidence of distress led as corroboration, both at common law and under the Uniform Evidence Acts, has been discussed in most Australian jurisdictions.[73] Counsel submitted that those cases emphasise that distress evidence is not complaint evidence or a species of complaint. Distress is a manifestation; complaint is a representation.
16. At common law, counsel submitted, evidence of complaint was admissible if it was made shortly after the alleged offence. It was not admissible as proof of the content of the complaint, however, but to enhance the complainant's credibility, by demonstrating consistency with the account subsequently given in court.[74] Under the Uniform Evidence Acts, by reason of s 60, complaint evidence is evidence of the truth of the complaint. It is not, however, 'independent' evidence. Its value depends upon the truthfulness or accuracy of the complainant, who has otherwise given evidence or is available to give evidence.[75] And it does not constitute corroboration of the evidence given by a complainant.[76] It remains hearsay evidence,[77] its admissibility by operation of s 66 of the Act being conditioned on the asserted fact was fresh in the memory of the person who made the representation.[78] But although the Uniform Evidence Acts provide a more liberal framework than the common law within which to receive complaint evidence, they provide no basis to do likewise with respect to distress evidence relied upon as corroboration or indirect evidence.
17. Having cited from MDP,[79] counsel submitted that the rigour with which Courts have traditionally assessed the probative value of distress evidence when it is relied upon as corroboration has little to do with its history or with a dated appreciation of trauma. It has to do with the fact that it must independently - and without resort to a complainant's account - constitute circumstantial evidence in proof of the crime alleged. That is why evidence of distress when it accompanies a complaint - and, in particular, a delayed complaint - can rarely provide indirect support for the crime alleged.[80]
18. Counsel submitted that the test for a trial judge when considering whether evidence of distress should be admitted into evidence and left to the jury as corroboration is whether the evidence is reasonably capable of satisfying the jury - or whether it would be reasonably open to the jury to infer - that the crime alleged was the cause of the distress.[81] If there are competing inferences or explanations but the inference is open, the jury may receive the evidence and be invited to find that it provides indirect support for a complainant's account. But the test for the jury is and has always been a higher one. A jury may not use evidence of distress as corroboration or circumstantial evidence unless the jury finds that it is reasonably explicable only by the alleged crime. Put another way, before a jury can use evidence of distress as corroboration it must exclude, as reasonable explanations for the distress, all potential causes other than the crime alleged. Hence, by characterising the way in which the authorities have to date formulated the jury's task when distress evidence is admitted as an 'overstatement',[82] and concluding that a jury could use evidence of distress as corroboration of a complainant's account without first finding that the crime alleged was the only cause of his or her distress, the Court in Churchill erred.
19. Outside Victoria, counsel submitted, no State or Territory court has expressed an intention to revise or modify the rules relating to the reception and use of distress evidence when relied upon as corroboration. On the contrary, a review of the recent cases decided by intermediate appellate courts reveals a continued and reasoned application of the seminal authorities.
20. In New South Wales, the leading case, Gulliford,[83] applied that Court's earlier decision of McNamara,[84] together with both Schlaefer and Flannery.[85]
21. In South Australia, Kourakis CJ twice recently surveyed the authorities dealing with distress evidence led as corroboration. In Dhir, he likened distress evidence to 'evidence of torn or damaged clothing or a generally dishevelled appearance'.[86] After citing Bycko (No 2),[87] Flannery, Schlaefer and Flora, Kourakis CJ concluded that the evidence in that case of the complainant's distress an hour after one of the alleged assaults was capable of amounting to corroboration; but her distressed state the next day was not.[88] The following year, in SPC,[89] Kourakis CJ cited and applied his earlier judgment in Dhir, referring again to Bycko (No 2), Schlaefer and Flannery.[90]
22. In Queensland, the leading cases are Sailor and Williams.[91] In Sailor, the Court concluded that the complainant's distressed condition - first observed more than eight hours after her alleged assault - was not capable of being corroborative of her claim that she was raped. In Williams, the Court of Appeal quashed the applicant's three convictions for rape because the jury were permitted to consider evidence of the complainant's distress about one month after the last alleged offence as corroboration. In summarising and applying the relevant authorities, Fraser JA referred to Flannery and Sailor.[92]
23. In Western Australia, in the leading case of Eades, the court applied Flannery.[93] And in Grubisic,[94] Buss JA and Hall J in separate judgments cited and applied Gulliford, Eades and Flannery.
24. Finally, in the Northern Territory, in Lynch, the Court referred to and endorsed Gulliford, Schlaefer, Wilson and Flannery (among others).[95]
25. This review of authority, counsel submitted, demonstrates that there is no support for the modifications made by the Court in Churchill to the rules governing the admission and use of distress evidence as corroboration. Ultimately, counsel contended that both Churchill and Charles were wrongly decided. They represent unprincipled departures from established authority.

The respondent's submissions on the first ground

1. In summary, the respondent submitted:
   • first, the relevance of evidence of a complainant's distress at the time of making a complaint and the use the jury is permitted to make of it is to be determined in accordance with the provisions of the Act, not the common law principles, which historically governed the circumstances in which evidence of distress could amount to corroboration;
   • secondly, pursuant to s 55(1) of the Act, evidence that is relevant in a proceeding is evidence that, if it were accepted, could rationally affect (directly or indirectly) the assessment of the probability of the existence of a fact in issue in the proceeding;
   • thirdly, pursuant to s 66 of the Act, in specified circumstances, if a person who made a previous representation is available to give evidence about an asserted fact, the hearsay rule does not apply to evidence of the representation that is given by the person who made the representation or a person who saw, heard or otherwise perceived the representation being made;
   • fourthly, where a representation is admitted under s 66 of the Act, the circumstances in which the statement is made are also relevant and admissible, the distress of a complainant when making the complaint being one such circumstance;
   • fifthly, where there is evidence that a complainant is distressed when making a complaint, the logical connection between the distress and the alleged offending, is the fact the complainant is recounting the alleged sexual abuse (it therefore being open for a jury to infer, as a matter of common human experience, that the distress displayed at the time of making a complaint of sexual offending is caused by the complainant having a vivid recollection of the distressing events which they are recounting);
   • sixthly, for this reason, this Court in Churchill and Charles were correct to conclude that it was open for the jury in those cases to infer that the distress accompanying complaints made 12 months and three years after the alleged offending, was causally connected to the offending; and
   • seventhly, to the extent that this Court concluded in Nimely that the complainant's distress observed when making her complaint of the offending approximately one month after the most recent alleged sexual offence, was incapable of being caused by the underlying offending and was inadmissible as evidence supporting her account, that decision is inconsistent with IMM,[96] Bauer[97] and Grattan.[98]
2. Apart from the second and third contentions (and, perhaps, the fourth), I regard these submissions largely to be misconceived.
3. The respondent also advanced the following submissions:
   • first, although the Court was correct in Churchill to decide that it was open for the jury in the circumstances of that case to use evidence of the complainant's distress as indirect evidence which supported her testimony of the offending, the Court was 'plainly in error' in finding that a substantial miscarriage of justice had been occasioned because the trial judge had not directed the jury that they could not use evidence of the complainant's distress as evidence that supported the charges unless they first found a rational causal link between the distress and the alleged offending, and that evidence of distress 'generally carries little weight';
   • secondly, the pre-existing common law rules governing the use of distress as corroboration and the warning the trial judge was generally required to give the jury that the evidence was of little weight, are unhelpful in determining the proper use the jury is entitled to make of distress observed at the time of complaint admitted under s 66 of the Act;
   • thirdly, the applicant's contention that distress is only admissible as independent supporting evidence fails to recognise that any requirement of corroboration in cases of sexual offending has been legislatively abolished.
4. I consider these submissions to be wrong in a number of respects.
5. Further, with respect to relevant jury directions, the respondent submitted:
   • first, the Court in Churchill was 'plainly wrong' to conclude that the trial judge had been required, by virtue of s 16 of the JDA, to direct the jury that 'distress evidence generally carries little weight' and that the absence of such a direction occasioned a substantial miscarriage of justice;
   • secondly, it is clear that general distrust of the credibility of complainants of sexual offences as a class of witnesses significantly underpinned the common law's distrust of distress evidence and the rationale for the warning that such evidence carries little weight, so that, in circumstances where the weight to be afforded to a complaint evidence is a matter for the jury, there is no reason in principle why the weight of the distress evidence should not also be left to the jury;
   • thirdly, one of the main reasons the common law treated evidence of distress as weak is because of the view that distress is easy to feign, but whether they considered the evidence of distress was easy to feign should ultimately be a matter for the jury;
   • fourthly, in some cases, the distress evidence, when considered together with the evidence of complaint, is capable of having significant probative value, so that a direction that the evidence generally carries little weight has the potential to be misleading;
   • fifthly, there is no substantial and compelling reason within the meaning of s 16 of the JDA for a trial judge to give such a direction;
   • sixthly, this Court should follow Flora and Charles and conclude that there was no requirement for the trial judge to direct the jury that distress evidence generally carries little weight, since in neither Flora nor Charles was the jury directed that evidence of distress generally carries little weight, the Court in both cases rejecting the submission that the absence of the direction was an error or irregularity in the trial which occasioned a substantial miscarriage of justice; and
   • seventhly, contrary to the applicant's submissions, a trial judge is not required to direct the jury that they can only find a causal connection between the distress and alleged offending if it is the only reasonable inference available on the evidence, since such a direction is akin to a direction that the jury must be satisfied beyond reasonable doubt of that intermediate fact (which is forbidden by s 61 of the JDA).
6. In my view, none of these submissions has substance.

Distress evidence: admissibility and jury directions

1. As I have said, the admissibility of evidence of a complainant's distress doubtlessly was first authoritatively acknowledged in Redpath, at a time when juries in cases of alleged sexual offending were required to look for corroboration of a complainant's account.
2. In Redpath, the complainant was playing on a moor one afternoon with two friends when a man, whom she identified as the appellant, pulled her to the ground and indecently assaulted her. Her mother gave evidence that the child came home trembling and immediately made a complaint. A witness, Mr Hall, saw a car (later identified as belonging to the appellant's wife) parked at the edge of the moor and a man, whom the witness identified as the appellant, walk towards the girl and later return and drive off in the car. Immediately afterwards, Mr Hall saw the girl come from the moor in a very distressed condition. The trial judge directed the jury that the evidence of the witness of the child's distressed condition was capable of amounting to corroboration of the child's evidence.
3. On appeal, counsel for the appellant argued that the distressed condition of the complainant should be treated in the same way as evidence of complaint. Rejecting that argument, Parker LCJ, giving the judgment of the Court, said:[99]

So far as any question of indecent assault is concerned, the learned judge told the jury that her distressed condition observed by Mr Hall and spoken to by Mr Hall was capable of being corroboration. The point in this appeal is whether that is so. [Counsel for the appellant] has argued that the distressed condition of the complainant is no more corroborative than the complaint, if any, that the complainant makes, and that while the latter merely shows that the story is consistent and is not corroborative, so the distressed condition is not corroborative. This court is quite unable to accept that argument. It seems to this court that the distressed condition of a complainant is quite clearly capable of amounting to corroboration. Of course, the circumstances will vary enormously, and in some circumstances quite clearly no weight, or little weight, could be attached to such evidence as corroboration. Thus, if a girl goes in a distressed condition to her mother and makes a complaint, while the mother's evidence as to the girl's condition may in law be capable of amounting to corroboration, quite clearly the jury should be told that they should attach little, if any, weight to that evidence, because it is all part and parcel of the complaint. The girl making the complaint might well put on an act and simulate distress. But in the present case the circumstances are entirely different. Here is this little girl emerging from the moor in a matter of seconds after the appellant has left, not about to make a complaint at that particular moment and with no idea that she is being observed or that anybody thinks that anything improper has happened. Quite clearly in those circumstances the observation of Mr Hall, an independent bystander, was very strong evidence, if accepted by the jury, of the little girl's story.

The court would only add that there appears to be no authority on evidence of distressed condition in such circum­stances except in the case of Zielinski (1950) 84 Cr App R 198. It is to be observed that in that case, though the point may not have been fully argued, that very experienced judge, Byrne J, in giving the judgment of the court-stated without any doubt that the evidence given by the son of an old lady who claimed to have been assaulted as to her condition - that she seemed frightened, shocked and ashamed - was clearly evidence amounting to corroboration. In these circumstances the court is satisfied that there is nothing in this appeal and that it must be dismissed.

1. Significantly, the Court of Criminal Appeal in Redpath drew a sharp distinction between complaint evidence and evidence of distress. While complaint evidence is admissible to demonstrate consistency (but cannot constitute corroboration), distress evidence may, depending on the circumstances, constitute corroboration; that is, independent evidence supporting the complainant's account.
2. The Court in Redpath was also at some pains to make clear that the circumstances in which the distressed condition of a complainant might constitute corroboration will vary enormously. In some circumstances, little or no weight could be attached to such evidence as corroboration. Thus, if the evidence was that a child went in a distressed condition to her mother and made a complaint, while the mother's evidence as to the child's distressed condition might technically be capable of amounting to corroboration, the jury should be told that they should attach little, if any, weight to that evidence, 'because it is all part and parcel of the complaint', since the child making the complaint might well simulate distress.
3. It is clear that the Court in Redpath considered that the strength of the evidence of distress lay in the fact that the complainant was observed by an independent bystander to emerge from the moor in a distressed condition seconds after her alleged attacker had left, in circumstances where she was not about to make a complaint, and had no idea that she was being observed or that anybody thought that anything improper has happened. It was those circumstances that rendered the observation of the independent bystander, Mr Hall, very strong evidence of the child's version of events. Given the close temporal connection between the alleged indecent assault and the observed distress, it was unlikely that the distress could have been feigned.
4. I pause to note that, despite the holding in Redpath - now quite venerable - that 'the distressed condition of a complainant is quite clearly capable of amounting to corroboration', little attempt has been made in the cases to delineate in any detail the kinds of demeanour that might, for the purposes of the criminal law, qualify as a 'distressed condition'.
5. It might safely be ventured, however, that distress is the outward manifestation of anguish, pain, grief, suffering, agitation, emotional disturbance, or the like.[100] It might also be ventured that, of itself, observed distress tells the observer nothing about the reasons for the perceived distress. Experience shows that distress may be feigned, or may be genuine but related to other causes.[101] And no matter the astuteness of the observer, ostensible distress may defy any accurate assessment of whether it is genuine or feigned.
6. Moreover, although it might be acknowledged that an opinion that a person is in a distressed condition will generally involve more than observation of the person's facial expressions alone, it may sometimes be difficult to distinguish expressions of anger, sadness, happiness, surprise, disgust, shame or other emotional states, one from the other. Often, an assessment of the emotional state of a person from observation will be open to interpretation, and will boil down to the subjective opinion of the observer,[102] based on 'primary facts are not too evanescent to remember or too complicated to be separately narrated'.[103]
7. In my view, the distressed condition of a complainant - taken in isolation - proves little or nothing. Although a state of distress observed in an individual might lead an observer to conclude that the individual is suffering some form of emotional turmoil, of itself the observed distress will, without more, tell the observer nothing of the cause of the distress. So too, without more, evidence of the distressed condition of a complainant will tell a jury very little or nothing of the cause of the distress. In a criminal case such as the present, distress is introduced as part of the prosecution case to found an inference; that is, the complainant is distressed, therefore the complainant must have been the victim of a sexual offence. The process of reasoning that accompanies the use of evidence of observed distress in a criminal trial must be as follows: the complainant was distressed; that distress reflects emotional anguish (or similar); there must be a cause for that emotional anguish; the cause is the alleged sexual offending.
8. Quite plainly, the more removed the observed distress is from the alleged sexual offence, the weaker must be the inference that the distress was caused by the alleged offending. That is particularly so where, as in this case, there have been other intervening factors which might also have been a cause of the observed distress. To risk repetition, it will be remembered that in Redpath, the progenitor of learning on distress evidence, the distressed condition of a seven year old girl was observed by an objective independent bystander within mere seconds of an alleged indecent assault. The child was observed by the witness to 'be terribly white, her eyes were very round, she appeared to be on the brink of tears, [and] she burst into tears'. It was the very close connection in time and circumstances of the child's observed distress to the alleged sexual offending which gave the evidence its strength, and permitted it to be capable of corroborating the child's evidence.
9. As I observed in Seccull,[104] Australian courts were quick to adopt Redpath (albeit not without some expressed reservations). In its wake, criminal courts received evidence of the distressed condition of complainants as corroboration, but only in the kind of 'special circumstances such as existed in Redpath's Case',[105] those 'special circumstances' being set out above.[106]
10. Redpath first appears to have been applied in this State in Flannery, a case which in turn has been applied in all Australian jurisdictions. The Court said:[107]

In our opinion, evidence of the distressed condition of a prosecutrix may or may not be capable of amounting to corroboration according to the particular facts of each ease. In determining whether it is so capable, regard must be had to such factors as the age of the prosecutrix, the time interval between the alleged assault and when she was observed in distress, her conduct and appearance in the interim, and the circumstances existing when she is observed in the distressed condition. Without attempting to enumerate exhaustively the circumstances in which such evidence may amount to corroboration, we are of opinion that if, regard being had to factors of the kind we have mentioned, the reasonable inference from the evidence is that there was a causal connexion between the alleged assault and the distressed condition, evidence of the latter is capable of constituting corroboration. If such inference is not open, the evidence is not, in our opinion, capable of amounting to corroboration. We should add that except in special circumstances such as existed in Redpath's Case, supra, evidence of distressed condition will carry little weight and juries should be so warned by the trial judge in the course of his charge.

1. The authorities make plain that the distressed condition of an alleged victim of sexual offending may be admissible as supporting evidence only if it is reasonably open to infer from the evidence that there was a causal connection between the distressed condition of the complainant and the alleged sexual offence. Evidence of distress has, however, always been received with caution. Thus, King CJ observed in Waye:[108]
   • In order to treat such manifestations [of distress] as capable in law of amounting to corroboration, it is necessary to be able to exclude, on any reasonable view of the evidence, the possibility that they are concomitants of the relation of a fabricated story or of an account which has its only basis in a disordered imagination.
2. Prior to her charge to the jury in the present case, the trial judge apparently read Paull,[109] in which this Court said:[110]
   • Distress displayed by a complainant shortly after an alleged sexual offence can in certain circumstances be a form of circumstantial evidence that independently supports a complainant's account. To be admissible, however, it must be reasonably open to infer from the evidence that there was a causal connection between the distressed condition of the complainant and the alleged sexual offence.[111] Even when admitted, evidence of distress generally will carry little weight. Thus, in Munro, Nettle JA said:[112]
     • In R v Flannery[113] it was held that in determining whether evidence of the distressed condition of a complainant is capable of amounting to corroboration, regard must be had to such facts as the age of the complainant, the time interval between the alleged assault and when she was observed in the distressed condition. If, having regard to such factors, the reasonable inference from the evidence is that there was a causal connexion between the alleged assault and the distressed condition, evidence of the latter is capable of constituting corroboration. Except in special circumstances, however, evidence of distressed condition will carry little weight and the court said that juries should be so warned by the trial judge in the course of the judge's charge.
3. It was made clear in Paull that evidence of the distressed condition of a complainant shortly after an alleged sexual offence can in certain circumstances be a form of circumstantial evidence that independently supports a complainant's account.[114] In order to be admissible, however, it must be reasonably open to infer from the evidence that there was a causal connection between the distressed condition of the complainant and the alleged sexual offence:[115]
   • When it is alleged that a complainant has been subjected to an incident which ordinarily would result in emotional distress, evidence of such distress, observed in circumstances sufficiently connected with the incident, can logically support the complainant's account of it. The logical force of such evidence resides in the relevant connection between the alleged incident and the subsequently observed distress.
4. In Seccull I also observed[116] that, following Redpath, observed distress was permitted to be adduced as independent supporting evidence, but only if it was closely connected in time and circumstances to the alleged offence. Redpath was not, however, embraced universally and without reservation, so that Bray CJ was moved in Byczko (No 2) to lament:[117]
   • The vicissitudes of the status of distress on the part of the prosecutrix, as potentially corroborative of her account of an alleged sexual offence committed upon her, would make an instructive footnote to legal history. It is an example of a doctrine comparatively recently introduced and speedily repented, or at least substantially qualified.
5. Bray CJ went on to underscore the warning in Redpath[118] - that 'the jury should be told that they should attach little, if any, weight' to evidence of distress - observing:[119]
   • Despite this warning it apparently became common in England, and has been not unknown here, for prosecutors to urge, and sometimes for Judges to direct, that distress after the act is potentially corroborative. Courts of appeal in England and in Australia have become disturbed by this and it has been frequently said that the jury should be warned that except in special circumstances little weight should be given to such evidence: Reg v Knight[120]; Reg v Flannery[121]; Reg v Wilson[122]; Reg v Gillard[123]. In Wilson's case[124] Edmund Davies LJ said:
     • We regard it of considerable importance that the type of warning adverted to by Lord Parker CJ in Knight[125] is constantly borne in mind when such cases as the present are before the Courts and that a trial judge cannot be too zealous in heeding that warning.
   • However, those four cases were cases where distress was left to the jury as potential corroboration. It is in those circumstances, in my view, that the warning is necessary and that failure to give it may lead to the conviction being quashed. ...
6. Similarly, in Brdarovski, Nettle JA (with whom Ashley JA and Coldrey AJA agreed), allowing an appeal against a conviction for rape, said:[126]

Although evidence of distress is capable of corroborating a complainant's testimony, authority suggests that it generally carries little weight and as a matter of prudence juries should ordinarily be warned of its inherent limitations. The need for such a warning is also likely to increase where, as here, the observation of the complainant's distressed condition is made at some time after the incident, is equivocal and could have been the result of incidents which did not form part of the charge.

1. Applying authoritative statements drawn from a number of cases, in Seccull I emphasised the need for there to be a close temporal connection between the observed distress and the alleged sexual offending in order for the evidence of distress to be admissible:[127]

The need for a close temporal connection between the observed distress and the alleged sexual offending was highlighted in a number of cases. Thus, in Sailor,[128] it was emphasised that if a stage in time was reached where, without resorting to the testimony of the complainant, it was impossible to link causally her observed distress with the incident of rape she alleged, evidence of that distress ceased to be independent evidence of its cause and to be capable of corroborating the complainant's testimony that she was raped. In Sailor, distress observed a little over eight hours after the alleged offending was held not to qualify as corroboration. In the seminal Victorian case of Flannery, the Court held that evidence of the complainant's distressed condition observed about an hour or so after the alleged incident ought not to have been admitted as corroborative. And in Moana, the New Zealand Court of Appeal said that a period of less than an hour was 'borderline', observing:[129]

It is of course well established that before evidence can be regarded as corroborative of the complaints of a woman in such a case as this it must be independent testimony. So that when a question arises as to whether the evidence of a complainant found in a distressed condition might to some extent be corroborated by that condition the real question is whether or not it can be said that the condition itself was involuntary, uncontrived and so independent testimony relating to the statements or allegations that she has made. It has been said often enough too that in such cases the time element is all-important. If a complainant is found in a distressed condition in point of time very close to the attack about which she complains, that is one situation. But the longer the interval the more cautions one needs to be in attaching importance to evidence of this kind. Considerations of this sort caused us to say in the case of R v Cain (judgment 1 December 1977):

When a question arises as to whether the appearance and emotional state of a complainant in a sexual case may be regarded as capable of corroborating her evidence we think it important to keep in mind that the facts in Redpath (1962) 46 Cr App R 319 were exceptional. In the subsequent case of Knight (1966) 50 Cr App R 122 Lord Parker CJ referred to the earlier decision he had given in Redpath and remarked that there he had 'endeavoured to stress that the distress shown by a complainant must not be over-emphasised in the sense that juries should be warned that except in special circumstances little weight ought to be given to that evidence'. There is always the possibility that an appearance of distress has arisen from a cause which could in no way be regarded as supporting the allegation of the complainant. Where, as here, a period of time has elapsed it is most necessary for a jury to understand that they must guard against attaching undue weight to evidence of distress: that it could only be regarded as corroborative if they were completely satisfied that there had been no possibility of such a cause giving rise to the condition; and that the evidence was entirely unequivocal.

In that case, by reason of the time interval, we were of the opinion that the distressed condition of the girl complainant could not safely be regarded as corroborative.

In the present case a period of nearly an hour passed by before independent witnesses were able to observe the distressed condition of the complainant. Taking that fact into account and the circumstances of the case generally we are satisfied that at best this was a borderline example of distress being capable of corroborating complaints of a sexual assault. ...

In the 60 years since Redpath, appellate courts repeatedly have insisted that, in order for the distressed condition of a complainant in a sexual case to be admissible as supporting evidence, there must be a close temporal connection between the alleged attack and the observed distress. ...

1. A review of the interstate cases dealing with distress evidence demonstrates that Flannery has been regarded as authoritative and followed in the overwhelming number of cases without demur. Thus, in New South Wales, in Gulliford, Wood CJ at CL (Spigelman CJ and Howie J agreeing) - a case decided after the introduction of the Evidence Act 1995 (NSW) - observed that[130]

the distressed condition of a complainant can, dependent upon the circumstances, amount to corroboration. What the authorities cited, along with R v Wilson (1973) 58 Cr App R 304 and R v Schlaefer (1984) 37 SASR 207; 12 A Crim R 345 show is that before it can have that effect, it must implicate the accused and must be reasonably explicable only on the basis of the sexual assault having occurred, not being something that was due to imagination or some other unrelated event. Matters which can properly be taken into account include the time interval between the alleged assault and the observations of the distressed state, any conduct that may have occurred in the intervening period, and the circumstances in which the observation is made: R v Flannery [1969] VicRp 72; [1969] VR 586.

1. In Queensland, in Sailor, McPherson JA (Byrne J agreeing) remarked:[131]

Requiring a jury to distinguish between distress occasioned by the incident itself, and distress prompted by the narrator's recollection of the incident in the course of complaining about it afterwards introduces a further refinement into a branch of the law already fraught with complexity. Although the judgments in reported cases do not directly identify the reason why distress may serve as corroboration in some cases, it can only be that it tends to be circumstantial evidence of the alleged incident. Like bruising, bleeding, and torn clothing, distress is an aspect of the appearance or visible condition of the complainant that of itself is capable of providing independent confirmation of the complainant's account of what happened to her.

The basic weakness of distress in this context is that, more than in the case of the other circumstances mentioned, its value or cogency as independent evidence diminishes rapidly with the passing of time. The longer the interval from the original event, the more difficult it is to be sure that a condition of distress not manifested or observed until well after that event is not due to some other intervening and unrelated cause. Eventually a stage in time is reached where, without resorting to testimony of the complainant, it ceases to be possible to link the distress with its alleged cause. Once it ceases to be independent evidence of its cause, the complainant's distress is no longer capable of corroborating her testimony.

The interval of time that elapses between the incident and the distress is plainly, therefore, an important factor in deciding whether or not they are causally related : see R v Flannery [1969] VicRp 72; [1969] V.R. 586, 591, where, as has been noticed, an interval of about an hour was considered too long. ...

1. Kourakis CJ, in the South Australian case, Dhir, observed:[132] 'In order for distress to be used as corroboration of a victim's account, it must not be reasonably explicable on any basis other than the commission of the offence against the victim'. He cited Flannery[133] as authority for that proposition. And in Schlaefer, King CJ cited the same passage from Flannery with apparent approval, and said:[134]

Clearly, when the Full Court, following Flannery, referred to an inference which the jury could reasonably draw of a causal connection between the alleged assault and the distressed condition, it meant an inference that, having regard to the factors enunciated in the passage cited from Flannery and any other relevant factors, the distressed condition, as a matter of reason and common sense, could only have been caused by a sexual incident of the kind alleged and could not have been simulated, caused by an imagined sexual incident or caused by events which might reasonably have occurred other than the alleged sexual assault.

The role of the trial judge is to determine whether the evidence is capable in law of amounting to corroboration. He must rule whether it is reasonably open to the jury to find that the independently observed signs of distress are consistent only with having been caused by the alleged sexual assault and are not consistent also with having been caused by other events which may reasonably have occurred or by an imagined sexual assault or by simulation. If it is reasonably open to the jury to draw that inference, the evidence should be left as capable of amounting to corroboration. If not, to so leave it to the jury would be appealable error.

Another aspect of the subject of distress as corroboration requires consideration. Distress was left to the jury as potential corroboration on a rather special set of facts in Reg v Redpath. ...

1. Immediately before setting out the oft-cited passage from Flannery, Murray J, in the Western Australian case, Eades, stated (Templeman and Roberts-Smith JJ agreeing):[135]

In a case of sexual assault, or concerning sexual offences generally, there is no question that the distressed condition of the complainant after the events in question may, if it is independently observed, be capable of being corroborative of the truth of her account, particularly in respect of the issue of non-consent. It is a question for the trial Judge whether the evidence is capable of being used in that way. As to that question, the Full Court of Victoria said in R v Flannery ...

1. As I have said, in the more than half a century since Redpath and Flannery were decided, until relatively recently when Charles and Churchill were delivered by this Court, the law with respect to evidence of distress appeared to have been tolerably well-settled. Putting Charles and Churchill (and the majority reasons in Seccull) to one side, a review of the authorities establishes at least four propositions with respect to the admissibility of distress evidence, and as to the necessary jury directions if that evidence is received.
2. First, for evidence of the distressed condition of a complainant to be admitted as corroboration - that is, supporting evidence - it must come from an independent source. Thus, although a complainant's observed distress may be admissible (if certain criteria are met), a complainant's self-reported distress is not.
3. Secondly, since the value or cogency of distress as independent evidence diminishes rapidly with the passing of time, in order for evidence of a complainant's distressed condition to be admissible as supporting evidence, there must be a close temporal connection between the observed distress and the alleged offence, such that it is reasonably open to find that the independently observed signs of distress are consistent only with having been caused by the alleged sexual assault (and are not also consistent with having been caused by other events).
4. Thirdly, in order for distress to be used as supporting evidence of a complainant's account, the observed distress must not be reasonably explicable on any basis other than the commission of the offence against the complainant.
5. Fourthly, except in 'special circumstances' such as existed in Redpath, evidence of the distressed condition of an alleged victim of a sexual offence will carry little weight, and juries should be so directed.
6. As I followed the arguments of the respondent's counsel in the instant case, however, they contended that these propositions are no longer valid in a post-Uniform Evidence Act world. There appeared to be two principal themes that permeated the respondent's submissions: first, the respondent contended that the Act has altered the way in which distress evidence is to be approached; and, secondly, as I have already observed, the respondent largely bound distress evidence and complaint evidence together. Two allied contentions advanced by the respondent were, first, a trial judge is not required to direct the jury that they can only find a causal connection between the distress and alleged offending if it is the only reasonable inference available on the evidence; and, secondly, a trial judge is not required to direct the jury that evidence of distress generally carries little weight.
7. Without repeating all of the respondent's submissions,[136] counsel contended (among other things) that: the admissibility and use of distress observed at the time of making a complaint is determined by the provisions of the Act, not common law rules, so that Charles and Churchill were correct to conclude that it was open for the jury in those cases to infer that the distress accompanying complaints made years after the alleged offending, was causally connected to the offending; insofar as it was concluded in Nimely that the complainant's distress observed when making her complaint a month after the most recent alleged sexual offence, it is inconsistent with IMM, Bauer and Grattan; and Churchill was plainly in error in holding that the judge was in error to direct the jury that they could not use evidence of the complainant's distress as supporting evidence unless they first found a rational causal link between the distress and the alleged offending, and that evidence of distress 'generally carries little weight'.
8. In my opinion, to the extent that the respondent tethered evidence of distress to evidence of complaint, the respondent's arguments failed to recognise that, although, as a matter of fact, a complaint may be accompanied by distress (or distress by a complaint), for the purposes of the laws of evidence, distress and complaint are distinct species. Thus, in a given case, one may find evidence of a complainant's observed distress unaccompanied by complaint (as was the situation in Redpath, the absence of any complaint imbuing the distress evidence with its strength); and, in another case, evidence of complaint unaccompanied by observed distress. When a complaint is accompanied by observed distress, however, the evidentiary function of the two species of evidence, and the use to which the jury may put each, is different.
9. Acknowledging that the Act effected substantial changes to the common law rules regarding corroboration, it is fallacious to think that the abolition of the need for a complainant's evidence to be corroborated in cases of sexual offending somehow changed the proper use to which evidence of distress can be put, or proscribed the giving of jury directions when distress evidence is relied upon by the prosecution as independent evidence supporting the complainant's account.
10. As to that, s 164(1) provides that it is 'not necessary that evidence on which a party relies be corroborated'.[137] Relatedly, s 164(6) provides that the 'principles and rules of the common law that relate to jury directions or warnings on corroboration of evidence, or the absence of corroboration of evidence, in criminal trials to the contrary of this section are abolished'. Hence, although the Act stipulates that it is not necessary that evidence upon which the prosecution (or other party) relies be corroborated, and the common law principles and rules relating to jury directions or warnings on corroboration (or the absence of corroboration) are abolished, the Act is completely silent as to what, if anything, is required when the prosecution chooses to rely on evidence as independent supporting evidence. Plainly, the Act does not deal separately or distinctly with the topic of distress evidence, and says nothing concerning the admissibility of distress evidence when the prosecution chooses to use and rely upon it as independent evidence to support a complainant's account, or of the jury directions necessary (or advisable) when distress evidence is relied upon in that way. Furthermore, although it effects a number of radical changes to the common law position, it is clear that the Act is not a complete code governing the admissibility of complaint evidence.
11. It is important to understand that, notwithstanding the Act's treatment of corroboration, the rules laid down by the Act governing the admissibility of evidence are at a practical level no different from the common law. For the purposes of the common law, probative evidence - that is, evidence which increased or diminished the probability of the existence of a fact in issue - was, subject to exclusionary rules, admissible. So much is reflected by Chee, in which the Court (McInerney, Anderson and Brooking JJ) described the test of admissibility at common law as follows: [138]

Putting aside exclusionary rules, the test of admissibility of evidence is whether it is probative: i.e. whether it increases or diminishes the probability of the existence of a fact in issue: Director of Public Prosecutions v Kilbourne [1973] AC 729, 757; [1973] 1 All ER 440. If evidence offered has this tendency, it may be said to have probative force.'

1. By way of comparison, s 55(1) of the Act provides that relevant evidence 'is evidence that, if it were accepted, could rationally affect (directly or indirectly) the assessment of the probability of the existence of a fact in issue'. And s 56(1) provides that, except as otherwise provided by the Act, relevant evidence is admissible. Probative value is defined in the Dictionary to the Act to be 'the extent to which the evidence could rationally affect the assessment of the probability of the existence of a fact in issue'.[139]
2. In light of these provisions, in Seccull I observed:[140]

At a fundamental level, evidence of distress - like all other evidence - must be relevant in order to be admissible.[141] Hence, in any given case, the putative evidence of distress must have the capacity rationally to affect the assessment of the probability of the existence of a fact in issue.[142] Where consent is in issue on a charge of rape, the evidence therefore must have the capacity to bear on the assessment of whether the alleged sexual penetration was effected without the complainant's consent. Any probative value that distress evidence will possess must depend on its capacity rationally to go in proof of that issue. The admissibility of distress evidence proceeds on the understanding that sexual offending will ordinarily result in a complainant suffering emotional distress. In that way, independent evidence of the complainant's distress, observed in circumstances sufficiently connected with the alleged offending, can logically support the complainant's account of it. The physical manifestation of the complainant's distress will be relevant only if it is capable of founding an inference that it was the result of the complainant having recently been subjected to non-consensual sexual activity. That is the central reason why the cases almost universally have insisted on there being a close temporal connection between the alleged sexual offending and the observed distress.

As was emphasised in the leading case of Flannery - and the cases it applied and many of the cases in which it has been applied - the significant factors that determine the admissibility of evidence of distress include: the time interval between the alleged assault and when the complainant was observed in distress; the complainant's conduct and appearance in the interim; and the circumstances existing when the complainant is observed in the distressed condition. The whole point of evidence of distress is that - if it is sufficiently connected in time and circumstances of the alleged sexual offending - it may found an inference that the complainant's observed distress was the result of the alleged offending. It is only when there is a sufficiently close temporal connection that it may be concluded that the observed distress may have been caused by the alleged sexual offending.

1. It is clear, in my view, that the Act does not effect any practical change to the manner in which evidence of distress, introduced as a form of circumstantial evidence to support the complainant's testimony, is to be approached. Thus, for the evidence of the distressed evidence of a complainant to be admitted as evidence supporting her account, it must come from an independent source. A complainant's self-reported distress is not capable of being supporting evidence. Furthermore, in order for evidence of a complainant's distressed condition to be admissible as supporting evidence, there must be a close temporal connection between the observed distress and the alleged offence, so that it is reasonably open to find that the independently observed signs of distress are consistent only with having been caused by the alleged sexual assault (and are not consistent also with having been caused by other events). Moreover, in order for evidence of distress to be used as supporting a complainant's account, it must not be reasonably explicable on any basis other than the commission of the alleged offence. Finally, if evidence of distress is admitted, except in the kind of 'special circumstances' that existed in Redpath, evidence of the distressed condition of an alleged victim of a sexual offence will carry little weight, and the jury should be so directed.
2. Given the conclusions set out immediately above, I adhere to the view expressed in Seccull,[144] that Charles - insofar as the Court held that the complainant's distress exhibited when making a complaint in 2007 was reasonably capable of being viewed by the jury as causally connected to the underlying offending that allegedly took place two to three years earlier - was wrongly decided. There simply was too great a temporal gap to enable a reasonable inference to be drawn that observed signs of distress in that case were consistent only with having been caused by the alleged sexual offending.
3. For similar reasons, I consider that Grattan was wrongly decided, insofar as McLellan AJA (Simpson and Rothman JJ agreeing) held that distress accompanying a complaint two months after a traumatic incident of sexual interference could 'be corroborative of the happening of the events complained of'.[145] Although McLellan AJA referred in passing to Flannery, and purported to distinguish Link,[146] no reference was made to the requirement in the cases that the observed distress and the alleged offending be closely temporally connected. Proper application of the principles to be derived from those authorities should have led the Court in Grattan to a different result.
4. I also consider that several aspects of the Court's reasons in Churchill are unsound. First, the Court's finding that it would have been open to the jury - properly instructed - to conclude that a rational causal link had been established between the applicant's alleged offending and the complainant's distress some 12 or more months later (albeit the link was 'weak'), cannot be accepted.[147] That finding is inconsistent with a long line of longstanding authority, insisting that there be a close connection in time between observed distress and the alleged offending. The Court did not explain how that putative finding might have been justified in light of the principles spelled out in those authorities.
5. When discussing the model charge in the Charge Book,[148] the Court in Churchill also said:[149]

First, while the use of the word 'immediately' in the model direction might suggest that pre-trial distress is only relevant if it is observed immediately after an alleged offence, the authorities do not expressly confine the relevance of pre-trial distress only to cases where the distress is immediate. The use of the word 'immediately' is obviously appropriate in a case where the distress was observed immediately after the alleged offence. There may, however, be cases (albeit a limited number) where distress observed at some later point in time can still be causally linked to the alleged offending.[150]

1. It may be uncertain precisely what the Court intended to convey when using the expression 'at some later point in time' in the passage extracted above. If, however, the passage is intended to convey that, as a matter of principle, distress observed hours, days or months after the alleged offending might be admissible as independent evidence supporting a complainant's account, it cannot be accepted. For many years, Courts have insisted that, before evidence of the complainant's distress might be received as supporting evidence, there needed to be a close connection in time between observed distress and the alleged offending. Indeed, as I have said, the 'special circumstances' in Redpath involved observed distress immediately - that is, mere seconds - following a sexual assault. If the Court intended to depart from a long line of authority requiring a close temporal connection, it gave no reasons justifying such a departure.
2. Next, I do not accept the following statement from Churchill (once more dealing with the model direction in the Charge Book concerning distress):[151]

Secondly, the statement in the model direction that distress evidence can be used in the way described only if the jury is 'satisfied there is no other reason why [the complainant] could have appeared distressed [at the relevant time]', overstates the requirement for a causal connection. At the risk of repetition, what is required is that the jury be satisfied that there is a discernible and rational causal link between the alleged offending and the observed distress. The alleged offending does not have to be the sole reason why a complainant could have appeared distressed.

1. There has been an insistence in the cases that, before evidence of distress may be used as independent evidence supporting a complainant's account, the distress must not be reasonably explicable on any basis other than the commission of the alleged offence. The reason for such insistence is obvious. Unless the only reasonable explanation for a complainant's observed distress is the sexual offending alleged by the prosecution, a complainant's distress is simply irrelevant to any issue in the case, and hence is inadmissible.
2. Of course, it must be accepted that the admissibility of distress evidence is now to be viewed through the prism of ss 55 and 56 of the Act (and exclusionary provisions such as ss 135, 136 and 137). To be relevant, therefore, the distress evidence must be such that, if it were accepted, it could rationally affect the assessment of the probability of the existence of a fact in issue - in the present case, that AB did not consent to sexual penetration. If, in a case like the present, the state of the evidence is such that the jury, acting rationally, could not exclude the reasonable possibility that the complainant's distress may have been caused by factors other than the alleged offending, then the distress evidence cannot go in proof of a fact in issue, and thus cannot be said to be relevant. To permit the evidence to go to the jury would be to permit the jury potentially to apply speculative 'reasoning' in proof of guilt. Moreover, on any view, the probative value of the evidence would be slight, and would be outweighed by the risk of unfair prejudice - that is, the risk that the jury would misuse the evidence - thereby engaging s 137 of the Act. For these reasons, the statement in Churchill that the alleged offending 'does not have to be the sole reason why a complainant could have appeared distressed', cannot be accepted at face value. In my view, the observations from Flannery set out above - albeit that they were made in pre-Uniform Evidence Act days - remain apt.[152]
3. As the evidence in the present case discloses, possible alternative causes of the complainant's distress included that she had lied to the police, and that she feared that her mother would discover that she had been involved in sex work (and had lied about hitch-hiking). Self-evidently, if these were the source of her distress, the evidence of distress was wholly irrelevant, since it could not be said to go in proof (or disproof) of any fact in issue in the trial. A direction to the jury of the kind contemplated in Churchill - that they need not be satisfied that the alleged offending does not have to be the sole reason why the complainant could have appeared distressed - would have been an invitation to take into account evidence that potentially was irrelevant to any issue in the case.
4. In my view, if a trial judge is confronted by evidence of distress which the prosecution intends to introduce as independent supporting evidence of a complainant's account, he or she should exclude the evidence unless satisfied that the jury could find that the only reasonable explanation for the observed distress is the alleged sexual offending. Unless the evidence of distress is capable of acceptance by the jury as being explained only by the alleged offending, it possesses no probative value and must be excluded.
5. It is conceivable that there will be cases where there are several possible causes for a complainant's distress, but the state of the evidence is such that it would permit a properly instructed jury, acting reasonably, to exclude all other possible causes for the observed distress, and thereby find that the distress was caused by the alleged sexual offending. In such a case, the proper course would be for the trial judge to leave the evidence to the jury, since the evidence could rationally affect the assessment of the probability of a fact in issue. The judge would, however, be required to direct the jury that distress evidence generally carries little weight.
6. As to that, it will be remembered that the respondent submitted that the Court in Churchill was 'plainly wrong' to conclude that the trial judge had been required to direct the jury that 'distress evidence generally carries little weight', so that the absence of such a direction occasioned a substantial miscarriage of justice.[153] The respondent also submitted that it is 'clear' that general distrust of the credibility of complainants of sexual offences as a class of witnesses significantly underpinned the common law's distrust of distress evidence and the rationale for the warning that such evidence carries little weight. Counsel for the respondent also submitted that one of the main reasons the common law treated evidence of distress as weak is because of the view that distress is easy to feign.
7. In my opinion, there is no occasion to seek to overturn the longstanding requirement that juries should be warned by the trial judge that evidence of the distressed condition of a complainant, relied upon as corroboration, 'will carry little weight'. Although part of the rationale for such a warning has been the notion that distress evidence is easy to feign,[154] another rationale has been that, as a matter of experience, distress is not uncommon in individuals, and may be due to any one or more of a variety of causes other than alleged sexual assault. Distress 'may arise from any of a variety of emotions or sensations, such as rage, frustration, guilt, drunkenness, or pain, whether physical or mental'. It is because of this that 'distress has generally been regarded as of little value as a corroborative circumstance, and therefore as something upon which the jury should ordinarily place little weight'.[155] Rather than reflecting outmoded stereotypes about the typical behaviour of victims of sexual assault, the ongoing caution attaching to evidence of distress reflects an understanding of its capacity to be misinterpreted.
8. Before leaving the topic of distress relied upon as independent supporting evidence, I pause to note the provisions of s 54K of the JDA, which, so far as relevant, provide:

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

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

...

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

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

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

1. Recognising that s 54K is concerned with the complainant 'when giving evidence', in a case like the present, where the prosecution relies on distress as independent evidence supporting a complainant's account, one may readily envisage a jury being somewhat bemused - if not utterly confused - by a judge directing them that a complainant's observed distress can be used as independent evidence supporting the complainant's account, whilst at the same time directing them that because trauma affects people differently, some people may show obvious signs of emotion or distress when giving evidence about a sexual offence, while others may not, and that both truthful and untruthful accounts of a sexual offence may be given with or without obvious signs of emotion or distress. However one looks at the directions required under s 54K, and the legislative policy underpinning them,[156], [157] there is a tension between permitting the prosecution to rely on distress as evidence supporting a complainant's account, whilst at the same time directing as required by s 54K(5).
2. Turning briefly to the admissibility of distress accompanying a complaint, several cases appear to have recognised that a complainant's distress when complaining may be significant when assessing whether the events were fresh in the memory of the complainant for the purposes of s 66 of the Act.[158] Those cases say nothing, however, about the admissibility of evidence of observed distress introduced as independent evidence supporting a complainant's account. In those cases, the relevance of distress was limited solely to an assessment of whether a statutory pre-condition regulating the admissibility of a previous representation - which would otherwise be caught by the hearsay rule - had been met (a matter that was not in issue at the applicant's trial).
3. In Bauer, the Court said:[159]

In Graham v The Queen,[160] a majority of this Court held that, as s 66 of the Evidence Act 1995 (NSW) was then drafted, its use of the word 'fresh' imported a close temporal relationship between the occurrence of the asserted fact and the time of making the representation and hence that contemporaneity was the most important consideration in assessing a representation under that section. Thereafter, sub-s (2A) was inserted into s 66 of the Evidence Act to make clear that the intention of the section is that 'freshness' is not confined to the time which elapses between the occurrence of the relevant event and the making of the representation about that event.[161] Since then, it has rightly come to be accepted by intermediate courts of appeal that the nature of sexual abuse is such that it may remain fresh in the memory of a victim for many years.[162] It depends on the facts of the case.

1. The Court observed that one of the facts that suggested that the sexual offending disclosed by the compliant was 'vivid in [her] recollection at the time of the [complaint] and would remain so for years to come' was her 'highly emotional state at the time'.[163]
2. Assuming, without deciding, that the cases relied upon by the respondent are capable of establishing some general proposition that a complainant's distress at the time of complaining of sexual offending may be used in determining whether 'the occurrence of the asserted fact' was fresh in the complainant's memory, there simply was no issue in the present case as to whether the applicant's alleged sexual offending was fresh in AB's memory at the time she made her complaint to her mother. Presumably, had there been such an issue, AB's distress at the time of complaining to her mother might have been used to determine whether the representations of the offending contained in her complaint were fresh in her memory.
3. Nothing in the cases cited by the respondent's counsel, however, leads to the conclusion that s 66 of the Act has any influence on determining the admissibility of observed distress when relied upon as independent evidence supporting the complainant's account.
4. Since the applicant's counsel conceded that AB's mother's evidence concerning her observations of AB in the hospital were relevant and admissible in assessing the quality of the complaint evidence - I need not pause to consider whether that concession was properly made - it is unnecessary to say anything more of evidence of distress accompanying a complaint, in circumstances where it is not relied upon as independent evidence supporting the complainant's testimony. At a new trial, it will be open to the trial judge under s 136 of the Act specifically to limit the use to be made of any evidence of distress observed by AB's mother.

1. In my view, evidence of AB's observed distress four and a half hours after the cessation of the alleged offending was inadmissible as independent evidence supporting AB's account. Not only was the time between the alleged offending and the observed distress too great properly to establish the necessary causal link, but there were too many alternative explanations for AB's distress to permit a properly instructed jury reasonably to conclude that the only rational explanation for the distress was the alleged offending. The evidence was such that there simply was no basis upon which the jury could prefer one explanation over another. Hence, the evidence was irrelevant, because it could not properly go in proof of a fact in issue; or, alternatively, any probative value that the evidence possessed was so outweighed by the risk of unfair prejudice - thereby engaging s 137 of the Act - that the evidence should have been excluded.
2. But even if I am wrong about that, and it is open to conclude that the evidence was properly admitted as independent supporting evidence, there can be no doubt that the judge's directions were deficient. The jury were left to decide for themselves what weight to give the evidence of AB's distress, without the benefit of the requisite warning that the evidence of distress carried little weight.
3. In my opinion, it cannot be concluded that the applicant's conviction would have been inevitable absent the identified errors. There has been a substantial miscarriage of justice. I would, as I have said, grant leave to appeal; allow the appeal; set aside the convictions; and order that there be a new trial.

1. The circumstances at trial giving rise to ground 2, and the submissions of the parties with respect to it, are set out in the reasons of Niall JA, and need not be repeated. As I have indicated, I respectfully disagree with the majority view that ground 2 should fail.
2. It is clear, in my opinion, that the prosecutor should not have attempted pre-emptively during AB's evidence-in-chief to shore-up her credit. Indeed, the respondent accepted that the evidence adduced by the prosecutor about the second statement was not admissible in evidence-in-chief, its purpose being to fend off an anticipated attack on AB's credit. I accept, however, that when viewed in isolation, the prosecutor's illegitimate attempt to ward off a defence attack on AB's credibility and reliability would not establish a substantial miscarriage of justice.
3. I also consider that, taken in isolation, the failure of the applicant's trial counsel to cross-examine AB on why she changed her statement, would not amount to a substantial miscarriage of justice. In my view, a properly conducted cross-examination of AB would not have risked the tender of JJ's statement. On the other hand, competent cross-examination might well have established that AB's change of story was the product of being caught out in a lie, and, to that extent, significantly impinged upon her credit. But in circumstances in which the failure to cross-examine appears to have been the product of a deliberate forensic decision, it is difficult to conclude on that basis alone that there has been a substantial miscarriage of justice.
4. Of greater moment is that part of the prosecutor's final address in which he wrongly suggested that AB had voluntarily come forward to give her second account, and that she had not done so because she had been caught out. In circumstances where there simply was no evidence as to why AB made the second statement, the prosecutor's suggestion was unjustified, and had the potential to bolster AB's credit unfairly.
5. Although the prosecutor withdrew the submission after objection by the applicant's trial counsel, the seed had been planted that AB had voluntarily revealed her dishonesty. To that extent, AB's credit had been wrongly fortified and the defence case correspondingly illegitimately prejudiced. Notwithstanding that the prosecutor withdrew the suggestion that he had made, and the judge directed the jury not to speculate and to decide the case on the evidence, I consider that irremediable prejudice had been done to the defence case, particularly when viewed in combination with the prosecutor's unwarranted questioning of AB during evidence-in-chief, and the failure

of defence counsel to cross-examine on a material matter going to AB's credit. Even if warned against such reasoning, and instructed to act only upon the evidence introduced at trial, it is not unrealistic to consider that a jury would very likely consider that the prosecutor's submission was based on information to which the prosecution was privy.

1. In my opinion, the combination of factors advanced by the applicant's counsel under cover of ground 2 founds the conclusion that there has been a substantial miscarriage of justice. Ground 2 should therefore succeed.

1. For the foregoing reasons, leave to appeal should be granted; the appeal allowed; the convictions set aside; and a new trial ordered.

1. In August 2022, the applicant was convicted of eight offences which were committed in 1987 against the two female complainants, AB and JJ,[164] when they were 16 and 15 years of age respectively. The offending was serious and comprised two charges of rape with aggravating circumstances, two charges of kidnapping and four charges of gross indecency with a person under 16.
2. At the time of the offending, AB and JJ were soliciting for sex work on a street in St Kilda. It was alleged that the applicant collected them in his car and then committed the offending in two locations over a number of hours before dropping them back in St Kilda shortly before 6:00 am when they returned to their friend Steve Tatham's boarding house. The offences were reported to police. In their first statements to police, AB and JJ deliberately concealed the fact that they were engaged in sex work, telling police that they were heading home in the early hours of the morning when the applicant picked them up.
3. For a very long time, the police investigation did not result in an arrest. In 2019, the applicant was identified as a person of interest based on a DNA match using DNA evidence taken from the complainants on the morning of the attack. AB also identified the applicant during a photo board identification undertaken in March 2020. JJ and Mr Tatham had both died by the time of trial, JJ having died of natural causes in 2013. Although JJ had given written statements to police, the prosecution did not seek to tender those statements on the basis that JJ was unavailable but rather sought to prove the offending against her by the eyewitness account of that offending given by AB.
4. The applicant seeks leave to appeal against both his conviction and sentence. The application for leave to appeal against conviction advances two proposed grounds of appeal:

Ground 1: A substantial miscarriage of justice occurred because:

(a) the jury was invited to use [AB's] distress on 7 May 1987 as independent support for her account; and

(b) the jury was not warned that evidence of distress is a species of distress that carries little weight.

Ground 2: A substantial miscarriage of justice occurred as a result of:

(a) a failure by defence counsel to adduce evidence capable of affecting substantially [AB's] credibility in circumstances where there was no rational forensic reason not to have done so;

(b) the prosecutor impermissibly leading through [AB] in [evidence-in-]chief previous representations by her for a credibility purpose; and

(c) the prosecutor, in his closing address, inviting the jury [to] act upon a foundation not supported by the evidence and (arguably) at odds with the depositions.

1. The applicant also applies for leave to appeal against sentence on the following proposed grounds:

Ground 1: It was an error to impose a conviction and sentence on charge 14 (gross indecency with a person under 16) in circumstances where a single act comprised that charge and the circumstance of aggravation on charge 12.

Ground 2: The learned sentencing judge erred in finding that the applicant 'had not had the matter hanging over['] his head throughout the period of delay.

Ground 3: The individual sentences, orders for cumulation, total effective sentence and non-parole period are all manifestly excessive.

1. For the reasons that follow, I would refuse leave to appeal against the conviction. I would grant leave to appeal against sentence, allow the appeal and resentence the applicant.

1. At about 2:30 am on 7 May 1987, the applicant picked up AB and JJ in his car on a street after they had approached him and asked if he was 'looking for a girl'. Once the complainants were in the car, the applicant lied to them that he was a police officer and that he would 'bust' them for prostitution.
2. The applicant drove the car to a laneway in Elwood. Maintaining the pretence that he was a police officer, he directed AB, who was in the front seat, to remove her clothes. When she declined, the applicant became angry, aggressively telling her that he would take her clothes off. AB succumbed and removed her clothes. The applicant climbed on top of her, after reclining the passenger seat, and penetrated her vagina with his penis, ejaculating inside her. The complainant said 'no' before the act of intercourse.
3. The applicant demanded that JJ watch, threatening to stab or shoot her and feigning to grab something from the driver's door. This conduct comprises charge 3 (rape of AB with aggravating circumstances, the aggravating circumstance being the applicant's insistence that JJ watch, being an act likely to seriously and substantially degrade or humiliate AB).
4. The applicant directed JJ to kiss AB and then suck AB's nipple, which she did (charge 5, procuring an act of gross indecency by a person under 16, the person being JJ).
5. The complainants pleaded with the applicant to take them home to their friend's place in St Kilda. The applicant did not do so, telling the complainants that if he took them back to St Kilda he would have to arrest them and, referring to a pager message he had received, said it was related to an upcoming drug bust. Instead he drove them to a shop in Balaclava.
6. The applicant parked his car near a small toilet block or outhouse at the back of the shop. It was completely dark. The applicant told the complainants to go into the toilet block with him. They obeyed because they were scared. Once inside, the applicant told them to take off their clothes whereupon JJ said 'no'. The applicant then threatened to take her clothes off for her, so she obeyed, as did AB. Thereafter, the applicant dictated a series of sexual acts. The applicant told them both to get on the floor and lick the sides of his penis, which they did. This conduct comprises charge 10 (procuring an act of gross indecency by a person under 16, the person being JJ).
7. The applicant told AB to lick JJ's vagina while JJ was sitting on the toilet seat, which AB did. This conduct constitutes charge 11 (procuring an act of gross indecency with a person under 16, being JJ). The applicant told AB to sit on the toilet seat and spread her legs and JJ to lick AB's vagina while the applicant penetrated JJ's vagina from behind with his penis. The complainants obeyed and the applicant ejaculated. This conduct constituted charge 12 (rape of JJ with aggravating circumstances, the aggravating circumstances being the applicant's instruction to JJ to lick AB's vagina whilst he was penetrating her, being an act likely to seriously and substantially degrade or humiliate JJ) and also charge 14 (procuring an act of gross indecency, namely the licking of AB's vagina, by a person under 16, being JJ).
8. The applicant dropped the complainants off on Grey Street, St Kilda just before 6:00 am.
9. The complainants went to Mr Tatham's boarding house and told him they had been raped. Mr Tatham wanted them to call the police, and AB said that they 'were just a bit shell shocked and distressed'. The police were called, arriving at approximately 8:30 am. Before the police arrived, the two complainants agreed that they would say that they were hitchhiking and were picked up by the man who had raped them and that they would not tell anyone they had been engaged in sex work. In her evidence-in-chief, AB said that she and JJ had together 'concocted' the story that they were hitchhiking because they did not want to tell police they had been engaged in sex work.
10. In her evidence AB said that, when the two complainants had returned to their friend's boarding house, she did not want to get the police involved. She said she knew that the police should get involved but was 'more concerned' about how people would react to knowing what they were doing in St Kilda and, although she was 'probably' not scared of the police, she thought she was 'more scared' of her mother.
11. The complainants were taken to hospital, arriving at around 10:25 am, and AB was medically examined at 11:11 am. AB's mother arrived at the hospital. In her evidence at trial, AB, who was by then 51 years of age, said that she was scared of telling her mother what happened and that, at that time, she was still sticking to the story that they had been hitchhiking.
12. AB recalled her mother attending the hospital and accepted that she likely spoke with her although she could not recall. AB's mother gave evidence that she arrived at the hospital and saw her daughter on a bed in a cubicle. She said that AB was 'very very distressed' and told her that 'somewhere [sic] in the night before', she was with a friend, they had gotten into a car with a man, he had raped both of them, they were very frightened and he had threatened them with a knife. She described her daughter as 'very very upset' and 'very emotional' but not 'yelling or screaming or anything like that'.
13. In order to deal with the grounds it will be necessary, in due course, to refer in some greater detail to the evidence, final addresses and directions to the jury relevant to each ground.

1. The applicant gave evidence on 29 August 2022 that, on the night of 6 May 1987, he had been in St Kilda and while in his car was approached by two complainants who looked to be in their twenties. One said to the applicant 'are you looking for girls?', and he responded with 'ah, yeah, jump in', before they both got into his car.
2. According to the applicant, he asked how old the complainants were and they told him they were 18 years old. They discussed payment, which came to $80 for 'oral and sex' or '$40 each' for sex. The applicant stated that they travelled to a toilet block and that one of the complainants said 'this is where we do our clients'. In the toilet cubicle, the applicant and one of the complainants had sex whilst the other complainant waited in the car. Some time after, the applicant had sex with the second girl in the toilet cubicle. The complainants then ran from the applicant, one holding his wallet and marijuana. The applicant chased after them in his car and then on foot. His wallet and marijuana were thrown back at him before one of the complainants tried to snatch it again.
3. The applicant gave evidence that he said to the complainants 'I should call the cops on the two of youse'. He then left to go back to Fitzroy Street for a coffee.
4. His evidence was that he did not have oral sex with the complainants, he did not tell them he was a police officer, he did not make a threat with a knife, and neither of the complainants said 'no' or indicated that they did not want to have sex with him.

1. On 26 August 2022, as contemplated by s 11 of the Jury Directions Act 2015 ('JDA'), the judge discussed with counsel the type and content of the directions that she would give to the jury. In the course of that discussion, the judge said that she would give the jury directions about the fact that there was a recent complaint and distress. The judge said that she hoped to give counsel a draft of the proposed charge for their comment.
2. On 29 August 2022, the judge returned to the proposed directions and read to counsel part of what she proposed to say to the jury about various topics. The prosecutor raised the topic of distress, which led to the following exchange between her Honour and the parties:

HER HONOUR: I'm going to give a separate distress direction. There was a recent case about distress which I just want to refresh my memory about, but essentially what I was going to say about this is; that, 'You heard evidence about [AB's] apparent distress from her mother and, again,' I'll remind the jury of what it was. 'If you find that [AB] was distressed soon after the alleged offence and [AB's mother's] evidence was not disputed, the prosecution invites you to use this as indirect evidence or circumstantial evidence that supports its case that she did not consent to the sexual penetration with the accused.' And if there are any arguments you make, Mr Kozlowski [trial counsel for the accused], I'll put them in as well. 'It's up to you to decide whether [AB's] distress was because she had been raped or for some other reason and whose argument you accept. It's for you to evaluate the weight of this evidence; that is, the extent to which it helps you decide the issues in the case. In doing so, you will use your common sense.'

PROSECUTOR: I have not [sic] issue - I take no issue with that, Your Honour.

HER HONOUR: Mr Kozlowski, happy with that?

DEFENCE: Yes, Your Honour. I mean, I will be going to the jury on the basis that there were other reasons for distress.

HER HONOUR: You will?

DEFENCE: Of course.

HER HONOUR: Yes. Yes, well, I mean, as I say, I'll mention them.

DEFENCE: Yes, she was just about to perjure herself, that's one reason to be distressed. But that's what I'll be saying to the jury and I trust that Your Honour will - - -

HER HONOUR: All right.

DEFENCE: - - - incorporate those.

HER HONOUR: All right.

1. In his final address, after referring to the complaint evidence of AB's mother, the prosecutor said that the evidence of distress is 'evidence that supports [AB] having been consistent about the core allegations'. He added:

But her mother's observation of the distress that [AB] was experiencing at the time is independent evidence. And that shows that provided you're satisfied that there was a causal connection between the way [AB] was upset in that hospital bed the morning after ... the alleged offending, well, you can use your common experience that recounting a stressful experience is accompanied by outward signs of distress.

[AB] told you about her naivete at age 16, about her fears for the relationship with her mother if she found out what she had been doing and how close in time it was to the alleged kidnapping and rape, just a matter of hours. You could be satisfied that [AB] was upset, as observed by her mother, because of what she'd experienced and that is independent evidence that supports her.

1. The judge then directed the jury in terms that reflected her earlier discussion with counsel. Earlier in the charge, and in conventional form, the judge directed the jury about inferences and circumstantial evidence. Because the judge referred to indirect and circumstantial evidence in the impugned part of her charge dealing with distress, it is useful to refer to what she had said about these forms of evidence. The judge told the jury that she would talk about 'circumstantial evidence and inferences', warning the jury that they were not permitted to speculate but could draw reasonable inferences from the evidence. The judge explained inferential reasoning by a commonplace and easily understood example and then said that 'indirect or circumstantial' evidence was not weaker than direct evidence and that they must take care when drawing conclusions from indirect evidence, consider all of the evidence and only draw reasonable conclusions based on the evidence they accept.
2. Given its importance to the argument, it is desirable to set out what the judge told the jury about AB's mother's evidence:

Now, I am going to talk to you about distress, and what I mean by that is that you heard some evidence about [AB's] apparent distress from her mother, and I will just remind you of - in fact, I will remind you of what her mother said, because I meant to remind you a bit earlier on.

So her mother says she went to hospital, because she got a telephone call that day and she had to go to a hospital. She did not remember where it was, hurried there and walked - remembered walking into a cubicle and there was [AB] on the bed and very, very distressed. She was asked about a conversation. She said, 'She told me that she'd been raped. She was with a friend and they'd got into a car with a man and he had raped both of them, and that they were very, very frightened', sorry. 'They were very frightened, and because he threatened them and he had a knife', and she was asked when it happened. She said, 'It was somewhere in the night before', and then a bit later she was asked again about her presentation. She said, 'Well, she was just very, very upset and very emotional, but she wasn't yelling or screaming, or anything like that, but she was very - I knew she was very upset'. So that was her evidence.

If you find that [AB] was distressed soon after the alleged offence - and [her mother's] evidence was - about that was not disputed - the prosecution invites you to use this as indirect evidence; that is, circumstantial evidence that supports its case that [AB] did not consent to the sexual penetration with the accused. The defence of course dispute this and they say, well, there might be other reasons that she was upset. She might have been upset because she was lying about the fact that - or either lying - either was going to lie, or had already lied to the police about the fact she was not working as a prostitute and how she came to be in St Kilda, knowing that that was something she said on oath, or was under penalty of perjury. So she might have been upset about that or that her mother, generally, might have found out that she was working as a prostitute.

So that is what the defence say, so it is for you to assess those arguments. It is up to you to decide whether [AB's] distress was because she had been raped, or for some other reason, and what you make of the arguments of counsel. Obviously, you cannot use it as indirect evidence supporting the charges unless you are satisfied that she was distressed because of the alleged sexual offending, and not for some other reason. If you do find that causal connection it is for you to evaluate the weight of the evidence; that is, the extent to which it helps you decide the issues in this case, and in doing this you will use your common sense.

1. No exception was taken to this aspect of the charge.

1. On the initial hearing of the application before a bench of three judges, the applicant submitted that the judge erred in permitting the prosecution to rely on AB's mother's evidence of distress, observed at least 4.5 hours after the incidents, as corroboration of the events. The applicant pointed to the following factors:

(a) the passage of time between the incidents and the observed distress;

(b) that in the interim AB had complained to Mr Tatham and conspired with JJ to lie to the police about what had occurred;

(c) that the offending was not the only potential source of distress: AB had had no sleep, was scared of telling her mother that she had been engaging in sex work and lied to her, and may have just submitted to a vaginal medical examination; and

(d) that the witness was not asked why she was distressed.

1. The applicant sought to bolster the argument by observing that the quality of the distress evidence was poor, it was recalled 35 years later, and that Mr Tatham (the first complaint witness) and the other complainant were both deceased.
2. The applicant accepted that AB's mother's evidence as to her observations of AB in the hospital were admissible, at least to the extent of assessing the quality of the complaint evidence. But the applicant argued that the jury should not have been invited to use the evidence as independent evidence of the incidents alleged.
3. The applicant said that the directions were also inadequate because the judge left it to the jury to decide what weight to attach without providing any warning that distress evidence is generally of little weight.
4. As the trial was quintessentially oath against oath, with more than 35 years separating the events in question and the applicant's trial, he argued that it cannot be said that his convictions were inevitable and, therefore, there was a miscarriage of justice.
5. Following the publication of this Court's reasons in Churchill,[165] the Court in this case was reconstituted as a full bench of five judges to hear further submissions regarding matters of principle that arose in that decision and bear upon the outcome of this case. In his further submissions, the applicant contended that Churchill was wrongly decided and betrayed error in four ways:

(a) The Court's finding that it would have been open for the jury, properly instructed, to use the complainant's distress when recounting the alleged events 12 months later[166] was at odds with the law's traditional insistence that observed distress must occur shortly after the alleged offending to qualify as corroboration.

(b) The Court's holding conflated the two distinct types of distress evidence: that which gives context to a complaint and may be used to assess the complainant's credibility, and that which may be used to corroborate the complaint.

(c) The Court's finding that a jury that receives evidence of distress does not need to be satisfied before using it as corroboration that the alleged offending is its only reasonable cause[167] was wrong.

(d) The Court made material changes to the law governing the use of distress evidence without identifying which of the earlier authorities (including authorities in other jurisdictions) are wrong.

1. On the initial hearing, the respondent submitted that there was both a temporal and circumstantial connection between the observed distress and the offending and that it was open for the jury to infer a causal connection between AB's distressed condition and the offending AB described. The respondent said that the distress was observed only hours after the offending, was not produced by questioning or interrogation by her mother and that AB understood that her mother was there to support her. There was no evidence that she told her mother why she was in St Kilda or that she had lied to her mother at that stage. Further, there was no evidence to suggest that the medical examination took place before the observed distress.
2. The respondent contended that the proposed direction was provided to the parties and no exception was taken to it. The failure to include a direction in the form of a warning that little weight should be given to distress evidence did not ultimately cause a miscarriage of justice and the jury was entitled to attribute what weight they saw fit to the evidence, as with any other form of circumstantial evidence.
3. In oral submissions, the respondent emphasised the point that distress evidence is a form of circumstantial evidence the admissibility of which must be assessed by taking the evidence at its highest.[168] The respondent submitted that the evidence of complaint was admissible under s 66 of the Evidence Act 2008 and that, once admitted, its use was not confined to supporting the credibility of the complainant; it was also evidence of the truth of the facts asserted.
4. The respondent submitted that, in R v Bauer,[169] the High Court regarded the fact that a complaint of sexual offending was accompanied by distress as relevant to the assessment of whether the event was fresh in the mind of the complainant and to its overall probative value.
5. In their further submissions before the full bench, the respondent submitted that the Court in Churchill was correct to decide that it was open for the jury to use evidence of the complainant's distress as indirect evidence that supported her testimony of the offending. That was chiefly because the observed distress was admissible as the circumstances in which evidence of a complaint admissible under s 66 of the Evidence Act was made. Given distress evidence is governed in that way by the Evidence Act, the authorities decided under the common law on which the applicant relied do not reflect the present state of the law. Further, given that corroboration is no longer required in a sexual offence case, complaint evidence (including distress which forms the circumstances of the complaint) need not be independent.
6. The respondent also contended that the Court in Churchill was wrong to conclude that the judge was required to direct the jury that distress evidence generally carries little weight and that the absence of such a direction caused a substantial miscarriage of justice. The authority on which the Court relied, Flannery,[170] was decided under the common law and reflected a general distrust of the credibility of complainants of sexual offences. Giving a direction that distress evidence generally carries little weight does not reflect contemporary views regarding the evidence of complainants in sexual offence cases and tends to confuse juries as they are separately required to be directed that the weight of the evidence is a matter for them. Further, the weight to be given to distress evidence is likely to depend on the particular circumstances of the case.
7. Alternatively, there could not be substantial and compelling reasons within the meaning of s 16 of the JDA for the judge to direct the jury that distress evidence generally carries little weight.

1. A person's emotional state may manifest or exhibit itself in a physically observable way. In most cases, emotional responses are neither random nor disordered and so, as a matter of human experience, it is possible from observation to draw conclusions about the nature of a person's mental state (such as that they are happy, distressed or angry) and perhaps in some cases draw some inference about its cause. In the case of upset or distress which might manifest in a range of responses such as tears, particular facial expressions, pallor or even more pronounced physical signs such as shaking or tremors, it may be possible to infer that there has been some negative experience or perception.
2. Again as a matter of human experience, where distress arises in the context of a traumatic event, it may arise in two distinct phases. The first phase is at the occurrence or in the immediate aftermath of the event: the experience of the traumatic event may trigger an observable physiological response. The second phase is where the person later recalls or is asked to recount the event. Distress in recalling a traumatic event, even where there have been periods of composure after the event itself, is commonplace. The idea that traumatic events produce immediate responses which resolve or recede, never to return, is not consistent with the experience of the human condition. In either circumstance, the person carries the mark of the traumatic event.
3. Two further points should be made. First, in the absence of any other information providing context, it is unlikely that an observed emotional response would allow any firm conclusion to be drawn as to the content of the stimulus that induced it. Second, any inference as to cause is likely to be informed by underlying assumptions or premises about how a person might be expected to react in particular circumstances.
4. Shorn of any context, merely recounting the fact of an observed emotional state in another person is unlikely to be of any probative value. A person's emotional state is not constant; some individuals are stoic and others more labile. On the other hand, when combined with other information, an observed emotional state may be powerful evidence that an event has occurred and even what that event might have entailed. But as already alluded to, its power may be a product of unstated and perhaps unsound assumptions.
5. In the context with which I am presently concerned, namely sexual offending, a distressed condition may arise at the inception by the relevant event or later on retelling or remembering the incident. It is appropriate to recall at this point the observation of the High Court that 'it has rightly come to be accepted by intermediate courts of appeal that the nature of sexual abuse is such that it may remain fresh in the memory of a victim for many years' and whether it does so depends on the facts of the case.[171] In such cases, the prosecution may seek to adduce evidence of an observed distressed condition of a complainant to prove, directly or indirectly, that the alleged sexual assault occurred. It can only do so if the evidence is relevant to a fact in issue and not excluded by any of the exclusionary rules in the Evidence Act. Questions of relevance turn on how the proposed evidence is intended to be used.

Distress evidence may be relevant in two distinct respects

1. The authorities in this Court and elsewhere demonstrate that evidence of distress, including in the context of complaint evidence, may be used in two quite distinct ways. The first, more general, way is that evidence of distress provides the context in which the complaint is made and the jury can take that evidence into account in assessing the credibility of the complainant.[172] The second, more specific, way is that the jury can infer that the distress is itself a direct product of the offending so that the distress evidence may have weight independently of the account of the complainant.[173]

1. The applicant accepts that AB's mother's evidence of what she heard and observed when she spoke with AB in the hospital was admissible on the first basis (although not as independent evidence in support the incidents alleged). It is as well to explain why that is so.
2. Section 66(2) of the Evidence Act allows the admission of evidence of a previous representation by a person who saw, heard or otherwise perceived the representation being made, provided that the person who made the representation is called to give evidence and either the representation was made when the occurrence of the asserted fact was 'fresh in the memory' of the representor, or the person is a victim of an offence and was under the age of 18 years when the representation was made.
3. In Papakosmas v The Queen, the High Court considered the question whether a recent complaint of sexual offending was admissible to prove the truth of the contents of the complaint.[174] At common law, evidence of a complaint of sexual offending was not admissible for a hearsay purpose; rather, evidence of recent complaint was admissible as evidence bearing on the credibility of the complainant and in particular on the consistency of their behaviour and their allegations.[175] In Papakosmas, the High Court explained that this common law rule had been displaced by s 66 of the Evidence Act 1995 (NSW) with the consequence that, subject to meeting the requirements of that section, evidence of recent complaint is admissible to prove the truth of the contents of the complaint.[176] Relevantly for present purposes, the conditions under the Evidence Act include that the complainant is called to give evidence and either of the following two circumstances apply: at the time the complaint was made to the witness the occurrence of the asserted fact was fresh in the memory of the person; or the person who made the representation is a victim of an offence to which the proceeding relates and was under the age of 18 when the representation was made.[177]
4. As AB was under 18 years of age when she spoke with her mother, and as she was called to give evidence, her representations to her mother, conveniently referred to as the 'complaint evidence', were admissible. As to whether the representations were fresh in the memory of AB, as required by the other limb of s 66(2), the representations were made about 4.5 hours after AB and JJ were returned to St Kilda and around eight hours or so after they entered the applicant's car.
5. Section 66(2A) provides that, in determining whether or not the occurrence of the asserted fact was fresh in the memory of the representor, the Court may take into account all matters that it considers relevant, including the nature of the event concerned, the age and health of the person, and the period of time between the occurrence of the asserted fact and the making of the representation.
6. Once admitted, the evidence was evidence of the truth of the facts asserted.[178] Although it is somewhat artificial to separate the evidence of what AB said and what her mother observed during the conversation, it is necessary to do so for the purpose of analysis. The critical representation was that AB had been raped by a man who had picked her and JJ up in his car. AB's mother's evidence was relevant to the credit of AB and by s 66 it was also evidence of the truth of the facts asserted by AB.
7. As already observed, AB's mother also said that AB was 'distressed' and 'very very upset and very emotional'.
8. In their reasons, Gleeson CJ and Hayne J observed that the distinction that the common law recognised between evidence of consistency with the allegations and evidence that proved the allegations directly may not be one that is easy for a jury to comprehend or apply.[179] That difficulty arose in a context in which there was also evidence of distress exhibited by the complainant at the time of her complaint. As their Honours explained, there was evidence from the complainant herself and from a number of witnesses that, 'almost immediately after the intercourse had occurred, the complainant was in a very distressed condition, crying uncontrollably, and saying that she had been raped'.[180] Their Honours observed that '[e]vidence of her condition, and her distress, was admissible, and in the circumstances could be considered by the jury in determining whether or not she was telling the truth when she said that she had not consented to what occurred'.[181]
9. Justice McHugh also considered the admissibility of distress evidence. He said:

So far as relevance is concerned, no distinction can be drawn between complaint of sexual assault and other forms of evidence that are always regarded as relevant to proof of the charge. Evidence of distress on the part of a complainant is always relevant, within the meaning of s 55(1), to a charge of sexual assault. A complainant who has been sexually assaulted may, but will not necessarily, display outward signs of distress after the assault. Evidence of distress tends to prove that the complainant had been sexually assaulted. Indeed, so much was conceded by the appellant, who also conceded that evidence by a complainant to the effect that 'I did not consent' was also relevant and admissible, as was an out-of-court statement to that effect that was part of the res gestae. Yet in terms of relevance, it is difficult to see any distinction between the content of these concessions and the content of recent complaint evidence.[182]

1. It is notable that in Papakosmas the complaint which was accompanied by shaking and sobbing was made within a very short time after the alleged sexual assault.[183]
2. As noted, the applicant does not dispute that the jury were entitled to use the mother's evidence that AB appeared distressed and very upset in assessing the credibility of AB's account. The evidence provides context to AB's account of the offending to her mother, evidence of which was admissible for the reasons already stated. In bolstering AB's account in that way, the evidence of distress is relevant to establishing the critical facts in issue, including whether the sexual offending occurred as alleged. However, the pathway of reasoning is somewhat attenuated because the evidence of distress is first used to render AB's account more believable and, once the account is accepted, the evidence goes to proving the ultimate facts in issue.

1. There is another distinct way that distress evidence has been used that does not operate by bolstering the witness's credit but operates independently of any representation. And the applicant says this is only permissible when the distress is observed shortly after the relevant incident and is not otherwise affected by factors that might provide an alternative reason for the distress.[184]
2. Thus, although the requirement for corroboration has been abrogated,[185] a prosecutor may still seek to use distress evidence as a form of corroboration, or as independent evidence, building on the reasoning in the cases dealing with distress evidence as corroboration. The applicant submits that this is what the prosecution did, and the judge impermissibly allowed, in this case.
3. The applicant submits that there is a clear line of authority that, if the jury are to be invited to use distress evidence as 'independent' evidence that does not depend on the complainant's account, the evidence must be closely related in time and circumstance to the occurrence of the event that is sought to be proved. As the survey of the earlier cases conducted in Seccull demonstrates, there has been a longstanding caution in allowing prosecutors to rely on evidence of observed distress as 'independent' evidence that supports a witness's account.[186]
4. Thus, in Flannery, Winneke CJ, Pape and Starke JJ said:

In our opinion, evidence of the distressed condition of a prosecutrix may or may not be capable of amounting to corroboration according to the particular facts of each case. In determining whether it is so capable, regard must be had to such factors as the age of the prosecutrix, the time interval between the alleged assault and when she was observed in distress, her conduct and appearance in the interim, and the circumstances existing when she is observed in the distressed condition. Without attempting to enumerate exhaustively the circumstances in which such evidence may amount to corroboration, we are of opinion that if, regard being had to factors of the kind we have mentioned, the reasonable inference from the evidence is that there was a causal connexion between the alleged assault and the distressed condition, evidence of the latter is capable of constituting corroboration. If such inference is not open, the evidence is not, in our opinion, capable of amounting to corroboration. We should add that except in special circumstances such as existed in Redpath's Case, supra, evidence of distressed condition will carry little weight and juries should be so warned by the trial judge in the course of his charge.[187]

The differences between the two lines of reasoning

1. Because the applicant submits that there are two distinct ways in which distress evidence might be used and that in the context of this case only one was open, with the result that the judge was wrong to permit the prosecution to rely on evidence of distress as independent or corroborative, it is necessary to further interrogate the differences between the two approaches.
2. As already observed, distress may be used to bolster the credibility of the complainant's account. The prosecution case depended on the jury accepting the complainant's evidence to the criminal standard. If the distress evidence bore on the assessment of the honesty and reliability of the complainant, then it could rationally affect, at least indirectly, the probability of whether the sexual acts were committed by the complainant.[188]
3. The distress evidence bore on the reliability of her account that there had been sexual intercourse without consent and that she was held against her will, in a context where it was said that she had fabricated that account. It did so because distress might be taken by the jury as being behaviour consistent with her allegations. Without wishing to elide distress and complaint evidence, it may be observed that the process of reasoning is similar to that which was adopted by the common law in respect of complaint evidence.
4. It depends on the jury accepting that the distress is consistent with someone having been the victim of sexual assault. It involves a comparison with what was observed of the complainant and how the jury perceives a victim of sexual offending might behave. In other words, the reasoning proceeds on the basis of some causal connection between the distress and the offending. It also entails a form of inferential reasoning.
5. Bearing in mind that sexual assault may be fresh in the memory of a complainant for a long period with persistent consequences, there does not appear to be any reason to confine that reasoning to the period immediately after the event. Because the credibility reasoning based on consistency depends on assumptions or expectations by a jury as to the effects that sexual assault might have and how they might manifest, its force may depend on the accuracy of those assumptions.
6. The second or alternative pathway of reasoning is different but shares some common features. Both have, as an underlying theme, some causal connection between the event and the distress, albeit that the former use may rise no higher than a conclusion that the observed distress is consistent with the allegations and therefore bolsters, or makes more believable, the account of the complainant. The critical feature of the second alternative is that the observed distress can be treated by the jury as being independent of the complainant. That is because the circumstances of the distress, being very close in time to the alleged event, makes either confabulation or an alternative explanation very unlikely. Rather, it is the spontaneous physiological response to an act with which it was closely associated in time, place and circumstance.
7. It is these features of authenticity that gives the evidence of distress its probative force. It enabled it to be relied on to meet the common law requirement of corroboration in the context of sexual offending.
8. It is an historical fact that the cases which characterised distress evidence as being capable of being used by a jury as being 'independent' arose in a context where corroboration was required for sexual offences.[189] At that time, a judge had to caution a jury that it would be unsafe to convict on the uncorroborated evidence of a complainant and, for that reason, it was necessary for the judge to identify the evidence that was capable in law of amounting to corroboration.[190] Corroboration in this context did not carry any legal or technical connotation and could be paraphrased by words such as support or supporting evidence. One limitation was the notion that a person could not corroborate their own account. It was in this context that distress which was capable of being regarded as independent could amount to corroboration.
9. Although the requirement for corroboration in sexual offence cases has been abrogated,[191] to use distress evidence as independent of the complainant's account may still be a powerful argument, especially where there are difficulties surrounding the credibility or reliability of the complainant.
10. Although, as I have just observed, there are differences between the two modes of reasoning, both involve inferential reasoning and, to that extent, the evidence of distress is circumstantial evidence in both cases.[192]

The admissibility of distress evidence in direct proof of the offence

1. The issue then arises as to how the use of this distress evidence is to be accommodated within the framework of the Evidence Act and the JDA. Once the evidence was admissible on the basis that the applicant accepts then, subject to the Evidence Act, it was admissible for all purposes.[193] Of course, if the evidence is sought to be deployed for a particular use, it has to be relevant to that end. That requires further recourse to the test of relevance embodied in s 55 of the Evidence Act and whether the evidence could rationally affect the assessment of the probability of a fact in issue in the manner or use contended for. Thus, in Paull v The Queen, the Court explained:

When it is alleged that a complainant has been subjected to an incident which ordinarily would result in emotional distress, evidence of such distress, observed in circumstances sufficiently connected with the incident, can logically support the complainant's account of it. The logical force of such evidence resides in the relevant connection between the alleged incident and the subsequently observed distress.[194]

As to the question of admissibility, I take the law to be that, if it were reasonably open to draw the inference that there was a causal connection between the alleged rape and the distressed condition of the complainant, the evidence of distress was capable of constituting corroboration and thus, subject to the overriding discretion to exclude it on the basis that its prejudicial effect exceeded its probative value, the evidence was properly to be left to the jury as capable of corroborating the complainant's testimony. Here, in my view, there can be no doubt that it was open to infer that the complainant's distress was causally connected to the alleged rape.

The question of what, if any, weight was then to be given to the evidence was a matter for the jury; although, as has been observed, it has been held in this State and in some other States that, except in special circumstances, juries should be warned that evidence of distress will carry little weight.

As has been observed, the judge in this case did not direct the jury in those precise terms, but instead told them that they could not treat the evidence as corroborative of the complainant's testimony unless satisfied that it was the only inference reasonably open on the evidence. If anything, however, that direction was too favourable to the applicant.[195]

1. Put that way, the inquiry is ultimately directed to the question whether the jury could rationally conclude that the observed distress was causally related to the alleged offending. I would interpolate to observe that, if it was not rationally possible to causally connect the observed distress with the alleged assault, it could not bolster the credibility of the account. Self-evidently, distress will not be causally related to the offending if it is feigned or caused by something else. Like any causal relationship, an issue may also arise as to whether the event to be proved has to be the sole or only cause of the distress in order for it to be relevant.
2. There is much to be said for the view that to describe the evidence of distress as independent of the complainant adds an unnecessary level of complexity to the analysis. Distress evidence always emanates from the complainant.[196] Indeed, the descriptor 'independent' can only be applied once the evidence has been considered and assessed by the jury as being the autonomous product of the offending. It is ultimately a statement of conclusion. It is particularly anomalous to regard distress as 'independent' where the distress is accompanied by complaint. In such cases, the distress might be a direct product of the offending but cannot meaningfully be described as independent, and fine distinctions about how the evidence can be used are likely to mystify a jury.[197] Further, I consider that a jury could find distress evidence to be causally related to the offending and therefore directly relevant to whether the alleged event occurred in a range of circumstances provided that there was a basis to connect them, including by reference to what the complainant says, but without being asked to treat the evidence as independent of the complainant.
3. The range of circumstances in which distress evidence has been permitted to be left to a jury as 'independent' have been constrained by two limiting factors: time and the availability of other potential causes.

1. A moment's reflection reveals that there is a distinction between a temporal connection and a causal connection: correlation does not mean causation. In the present context, a close temporal connection between the event and the observed distress may support the existence of a causal connection because distress is likely to be associated with the occurrence of a traumatic event; the shorter the time period, the less opportunity for fabrication, feigning or an alternative intervening cause.
2. In Redpath, Parker LCJ observed that '[t]he girl making the complaint might well put on an act and simulate distress' and therefore such evidence of distress ought be accorded little if any weight.[198] On the other hand, the observation of distress 'a matter of seconds' after the accused person left the scene in circumstances where the child complainant did not know that she was being observed would provide very strong evidence if accepted by the jury.[199] In other cases, the distress has been observed in the immediate aftermath of the alleged offending.[200]
3. In Flannery, the Full Court identified a number of factors that may bear on the question whether there is a causal connection between the observed distress and the alleged incident, including the time interval between the alleged assault and when the complainant was observed in distress.[201] The Court did not seek to define the time limit in any particular way.
4. It is not correct to treat the authorities as mandating any particular time limit or as erecting any bright line test. The time interval between the event and the observed distress is plainly relevant to the assessment of whether there may be a causal connection between the incident and the distress. But it is not the only factor. Evidence of distress is circumstantial evidence.[202] As such, its probative value is to be assessed having regard to the totality of the evidence.[203] Further, as already adverted to, sexual offending may remain fresh in the mind of a complainant for an extended period of time and, although the longer the period of time, the more opportunity for fabrication or intervening events, there may still be a causal connection between sexual offending and distress occasioned by the later recounting of the event.
5. For this reason, as was said in Churchill, the authorities 'do not expressly confine the relevance of pre-trial distress only to cases where the distress is immediate' and a jury should not be directed as a matter of course that they can only use distress evidence if it was observed immediately after the alleged incident.[204]

1. In addition to the passage of time, it is not possible to draw any firm conclusions as to the cause of distress without taking into account the possibility that there may be other causes.
2. As Rogers makes plain, it was not necessary for the judge to exclude the possibility that the observed distress was caused by other factors before leaving the distress evidence to the jury.[205] Evidence of distress was not rendered inadmissible simply because of competing theories as to its cause.[206] Provided the jury were reasonably able to conclude that the distress was caused by the offending, it was up to the jury to decide whether or not there was a different cause.

1. In R v Byczko (No 2), Bray CJ said that a direction in relation to observed distress should include a statement that distress evidence should ordinarily bear 'little weight'.[207] In Flora, this Court similarly noted that a judge was required except in special cases 'to warn the jury that evidence of distressed condition would carry little weight'.[208]
2. A recurring theme in some of the authorities is the perceived risk of feigned distress and the potentially illegitimate use of distress as independent if there is the risk that it is either fabricated or induced by another cause. These concerns have underpinned the general practice to warn juries that the evidence carries little weight.
3. It will be apparent from the above that, whether used as evidence of consistency or as 'independent' evidence of the alleged incident having occurred, distress evidence proceeds from an understanding or expectation that people who have been sexually assaulted may or will likely react in a particular way.
4. In more recent times, there has been an acknowledgment that victims of sexual offending do not always react in a particular way. Thus, juries are directed that people may not remember all of the details of a sexual offence or may not describe a sexual offence in the same way each time and trauma may affect different people differently, including by affecting how they recall events.[209] Any requirement to warn the jury about the dangers that may lurk in the background and of which they may not otherwise be aware now has to be analysed in accordance with the provisions of the JDA.

1. The applicant submits that the judge impermissibly left a line of reasoning to the jury that was not open.
2. The gravamen of the applicant's complaint is that, having regard to the period of time involved and the intervening events, and the number of causes that might have informed the observed distress, it was not open to the jury to use the evidence in the way the prosecution invited and the judge permitted. The respondent says that it was well open to the jury to use the evidence as independent support of AB's account, just as it could use the evidence in its assessment of AB's credibility.
3. The first issue relates to how the judge directed the jury. The prosecutor told the jury that they could rely on the mother's evidence as 'independent' of AB. He said her mother's evidence was 'independent evidence that supports [the complainant]'.
4. In her directions to the jury, the judge set out the competing arguments. In referring to the prosecutor's address, the judge said that the prosecution 'invites you to use this as indirect evidence; that is, circumstantial evidence that supports its case'. The judge did not describe the evidence as 'independent' and, reading these comments in context, it is plain that the judge directed the jury to assess the mother's evidence in the light of AB's evidence. Given that the judge directed the jury that they could only use the evidence as supporting the charges if they were satisfied that she was distressed because of the alleged offending, the jury could not have accepted that evidence without regard to what AB had said. There was no risk that the jury would have assessed the evidence independently of their assessment of the complainant.
5. Reading the charge fairly and as a whole, I do not consider that the judge invited the jury to treat the distress evidence as independent corroboration of the account. For that reason, ground 1(a) must fail.
6. Even if I am wrong in that conclusion, I am not persuaded that it was not open to the jury to use AB's distress (which was attested to by her mother) as evidence that she had been sexually assaulted.
7. AB's mother's observations occurred a relatively short time after the events. True it is that a number of hours had passed, but the alleged events occurred over a number of hours and were of a very dramatic and traumatic kind. The immediate aftermath of the incidents and AB's experience of them were not likely to fade in a few hours. It is well open to regard AB as being still caught up emotionally in the incident and feeling its effects when she got to the hospital. When reporting the incident to her mother, AB was not recounting an episode that had resolved or had long passed. Indeed, even if AB had been silent and had not made a complaint of sexual offending at the time, the fact that she was observed in a very distressed state within a matter of hours of the alleged offending would provide a rational basis for an inference that the distress was caused by the offending.
8. Conceivably, AB might have been experiencing distress for other reasons. As the applicant submits, she was young, had been engaged in sex work for a couple of days, was deprived of sleep, was frightened about what her mother would think and had concocted a story with JJ to conceal the fact that she had been engaging in sex work.
9. However, the distress evidence was not intractably neutral[210] as between the competing causes and it was open to the jury to conclude that AB's distressed condition was caused by the offending.

1. Finally, in the particular circumstances of this case, I would not uphold the applicant's further argument that the judge's direction to the jury was defective because it did not warn them of the weaknesses inherent in evidence of distress. The judge told the parties what she proposed to say on distress. Both parties agreed that the direction should be given. No further or other direction was sought by the applicant. For that reason, the trial judge was not permitted to give the jury the additional direction unless there were substantial and compelling reasons for doing so.[211]
2. In the circumstances of this case, there were no such reasons. This was not a case where the defence had no viable explanation for AB's distress, so that there was a substantial and compelling need for a direction regarding the weight to be given to distress evidence on that basis. As counsel for the applicant told the jury, there might be a number of reasons why AB was upset, including that she was concealing from her mother that she had been in St Kilda engaging in sex work and was planning to lie to the police. In the circumstances, the directions on distress were adequate.[212] The jury were told that they could only act upon the evidence of observed distress in proof of the sexual offending if satisfied that they were causally linked. In this respect, they were directed by reference to the parties' arguments to consider factors such as the proximity of the observed distress to the sexual offending (or lack thereof), and whether there were other explanations for the presentation of AB's distressed condition.
3. In this way, the jury were called upon to focus carefully on the connection between AB's distress and her account of the offending. This served to ameliorate the risk that the jury would place unwarranted weight on the distress evidence. There were not substantial and compelling reasons for directing the jury further that, as a general matter, distress evidence will carry little weight. The weight to be given to the evidence was a matter for the jury. The risk that the distress was not related to any offending was well ventilated and was not hidden from the jury.
4. In the result, I reject ground 1(b).

1. On 8 May 1987, AB signed a written statement to police, the jurat to which stated that it was true and correct and made in the belief that a person making a false statement in the circumstances is liable to the penalties of perjury. In that statement, AB did not say that she was working as a sex worker at the time of the alleged offending. She also said that, when the applicant said something to the effect of 'you're busted for prostitution', she and JJ told him they 'weren't prostitutes'.
2. On 9 May 1987, AB made a second statement to police, in which she noted that she had said in her first statement that she 'wasn't working at St Kilda as a prostitute at the time' and that she 'lied' about this because she was 'scared and didn't know what to do'. In the same statement, AB said that she was aware that JJ had made a second statement to police on the same day and that JJ had given AB her statement to read. In JJ's second statement, she said that she was working as a sex worker and had consensually entered the applicant's car.
3. In AB's evidence-in-chief, the prosecutor sought to address AB's second statement to police. Given the focus of ground 2, it is convenient to set out the evidence. By way of introduction, the prosecutor had elicited evidence about AB's mother visiting her at the hospital:

[PROSECUTOR:] Right. You're able to recall though that you didn't say you'd been working as a prostitute to your mother?---No, I didn't tell her that. At that stage, we weren't saying that.

Is it the situation that the following day, 8 May, you made another statement to police?---Yes.

Where you did say that you'd been working---?---Yes, um, we - we were honest to the police about how the situation - we'd ended up in the situation.

I followed that. So, there's an initial statement you made to police?---Yes.

Which is untrue about how you get - or the reason you were in St Kilda?---Yes.

Because you were leaving out that you were working as a prostitute ---?---Yes.

For a couple of days. And then a second statement where you were honest about that?---Yes.

What about the details of the sexual activity you described? Had you ever said anything to the police differently to what you say?---No, I don't think so. I'm a bit confused about your question, sorry.

It was a long question, I apologize for it. Effectively, the limits of the lie that you had told was to why you were in St Kilda?---Yeah.

Not what happened thereafter?---Yes.

1. In cross-examination, AB was taxed about the false statement she initially made to police. Indeed, the first questions were directed to her understanding of perjury and it was immediately put to her that she had knowingly lied. Over a number of questions, individual passages from AB's first statement were read to her and it was put to her that these passages contained lies, in response to which AB agreed. That cross-examination established, although it could not be gainsaid, that in her first statement AB had knowingly lied to police in a number of respects. The cross-examination included the following exchanges:

[DEFENCE:] You understood that making a false statement to the police that you've made on the day constitutes perjury?---Yes.

Yes, and when you've made your statement to the police and you've made two statements, didn't you, or three?---Yes.

Yes. On 8 May 1987 you've signed a declaration on the bottom of it?---Yes.

...

And was everything you've said in that first statement true and correct?---No.

And in fact you knowingly told lies in the statement, didn't you?---Um about what we were doing there, like I explained before.

So is it your evidence that the only thing you lied about in that statement was - your first statement to the police - was about what you do?---Um as in the leadup to um when we first experienced um the car um that was not true as in we didn't tell them we were working on the street as sex workers.

No. In fact you said that you weren't, didn't you?---Well, yeah, I was scared.

Yes, all right. What were you scared of?---Like I said, my - I was probably more scared of my mother than actually how the police would react to it. I knew that it would really disappoint my family and yeah.

...

So there was a number of lies that you've told in the statement?---Yes.

...

And these were planned lies, weren't they?---We had discussed it briefly sitting in the bath how - what we were going to say about what we were doing there[.]

1. In his closing address, the prosecutor told the jury:

Two things. Who revealed that they'd told that lie? Was [AB] ever caught out in a lie? No. She went to the police the next day and made a second statement admitting that that first part of what she'd told of the events of the evening was not true, but maintained that everything else she'd said about what the accused had done was true.

Secondly, she told you why it was that she'd told that lie. As a 16 year old she said she didn't understand the gravity of perjury but it wasn't really fear for police that had made her say those things and she rejected out of hand the suggestion that saying she was a prostitute might mean she wasn't believed.

No, [AB] gave a reason that I'm going to suggest was pretty understandable. She didn't want her mother to be disappointed in her, her family to be disappointed in her, that she was working as a prostitute, and she told you she had been doing that for four days with [JJ].

1. In the absence of the jury, counsel for the defence took exception to this part of the address on the basis that there was no evidence before the jury as to the reason why AB had given a second statement. In fact, as counsel pointed out, in AB's second statement she had said that she had gone to police after having read JJ's second statement. Counsel submitted that for the prosecutor to say that AB had made a second statement off her own bat, and that this went to her honesty, was not factually correct.
2. In the course of considering the exception, the judge noted that the prosecutor had given the impression that she had not been caught out on her lie but that this was unfair given that the police must have known the position before AB came forward to make her second statement. After discussion with the judge, the prosecutor withdrew the submission. He told the jury:

Thank you, Your Honour. Ladies and gentlemen, I need to correct something I said and withdraw it. What I said to you in my address was that [AB] had not - it's not as if she'd been caught out in a lie when she made another statement. In fact there is no evidence in this trial as to why it was [AB] made her second statement and I withdraw my earlier comment. Thank you.

1. The following morning, defence counsel applied for the discharge of the jury. He said that the withdrawal of the submission had not sufficiently remedied the problem. He said that the jury were left with the impression that AB had not been caught out and there was no evidence as to why she made her second statement. The judge responded that the jury were not left with that impression because the prosecutor had withdrawn the proposition. Counsel submitted that the only way to remedy the situation would be for the judge to tell the jury that AB had in fact been caught out lying about the circumstances in which she came to be in the applicant's car. The judge declined to do so on the basis that the prosecutor's statement had been withdrawn.
2. Counsel persisted in his submission, observing that once the seed was planted it would not go away and that the jury would proceed on the basis that AB had voluntarily come forward without prompting. He said that he had made a forensic decision not to cross-examine on the reasons why AB made the second statement because of the risk that it would introduce JJ's statement, which was not before the jury. However, the prosecutor had put a version of events that was not consistent with the evidence and which bolstered AB's credit.
3. The judge refused the application. The judge considered that the directions she would give would be enough to cure any possible prejudice. The judge observed that, since defence counsel had said before the jury that he wanted to raise an issue about the prosecutor's address and the next thing the jury heard was the prosecutor withdrawing the submission, the more powerful inference was that the prosecutor was wrong about why AB made a second statement. The jury were also given directions not to engage in speculation, and to decide their verdict based on the evidence.

1. The applicant's submission on ground 2 has three interrelated components:

(a) First, the prosecution in evidence-in-chief impermissibly led AB in an effort to rehabilitate AB's credit in advance of cross-examination and did so in a way that was apt to mislead the jury.

(b) Second, defence counsel failed to cross-examine AB on the reasons why she gave her second statement and to point out to her that the only reason she did so was that she had been caught out lying because the police already knew the explanation in her first statement as to how she came to be in the applicant's car was untrue.

(c) Third, the prosecutor wrongly made a submission that was not open on the evidence, was inconsistent with the material in possession of the prosecution and was not cured by the withdrawal of the submission.

1. The applicant submits that AB's reasons for making the second statement and the content of the second statement could have been the subject of a very powerful challenge in cross-examination. While defence counsel adduced evidence as to the scope of the lie, he did not adduce evidence as to the circumstances of its correction, being that AB did not correct her earlier lie until she had no practical alternative, since JJ had already told the police that they were working as sex workers at the time of the offending. The applicant says that, if properly performed, there was no risk that the cross-examination would enable the prosecutor to adduce JJ's second statement.
2. The applicant says that the failure was compounded by the prosecutor's closing address to the jury in which he told the jury that AB had not been caught out in a lie but had voluntarily gone back to the police to make a correcting statement. The prosecutor's withdrawal was insufficient to cure the prejudice to the applicant. Further, he submits that the judge's direction might have meant that the jury stopped short of finding that AB went to the police a second time proactively. However, the withdrawal and direction did not address the prosecution's assertion of consistency of account, nor did they overcome the failure to cross-examine on the reasons for a change of story in circumstances where the prosecutor had put a version of events to the jury that was not open on the evidence.
3. The applicant contends that he suffered a substantial miscarriage of justice as a result.
4. As to the first issue, the respondent accepts that the evidence adduced by the prosecutor about the second statement was not admissible in evidence-in-chief. Its purpose was to forestall an anticipated attack on the credit of AB and it was in an impermissible leading form that sought to confine the inconsistent statement or 'the limits of the lie' to the fact that the complainants had been engaging in sex work and the circumstances of how they came to be in the applicant's car.
5. The respondent submits that the making of a second statement and the extent to which the second statement departed from the first statement was inevitably going to be the subject of attack in cross-examination. Once the second statement was the subject of cross-examination, the prosecutor would have been entitled to re-examine in order to have the witness identify the extent of the differences between the two statements. For that reason, no forensic disadvantage to the applicant and no miscarriage arose by reason of the inadmissible evidence-in-chief.
6. As to the second issue, the respondent submits that AB's prior inconsistent statement, which AB admitted was untrue, was fully exposed in the trial. Notwithstanding that the applicant had copies of the second statements provided by JJ and AB and that, in her second statement, AB said that she had read JJ's second statement before giving police the second version of her account of the circumstances in which she was picked up by the applicant, neither the applicant nor prosecutor sought to adduce evidence as to the circumstances in which AB changed her statement.
7. The respondent submits that the decision of trial counsel not to cross-examine AB on why she changed her statement was rational because the explanation AB would give would necessarily require AB to disclose that she had read a statement from JJ. That might have led to the possibility that that statement would be adduced by the prosecutor or might have left the jury with the impression that JJ had given a supportive statement.
8. The respondent submits that the decision not to cross-examine AB on the change of statement was also rational because the material did not unequivocally establish that AB only changed her account once she knew she had been caught out lying in her first statement. On the contrary, there was simply no evidence as to the circumstances in which AB came to make her second statement and it was possible that, if asked why she did so, she might have given favourable evidence. Even if the applicant could have established that the change of story was a product of AB being caught out in a lie, that would not have materially altered the landscape in circumstances where there was a direct attack on AB on the basis that she had been willing to lie to police on the first occasion.
9. As to the third issue, the respondent submits that, in circumstances where the prosecutor's erroneous statement in his closing submissions as to the circumstances in which AB made her second statement was almost immediately objected to and corrected, and the trial judge gave directions to the jury not to speculate as to why AB made her second statement and that the jury needed to decide their verdict solely on the evidence, the prosecutor's submission could not possibly have affected the outcome of the trial. There was no risk that the jury would have relied on the prosecutor's submission in that context.

1. I am unpersuaded that either individually or collectively the three limbs of this ground give rise to a substantial miscarriage of justice.
2. First, as was fairly conceded by the respondent, the prosecutor ought not to have attempted to bolster AB's credit in order to anticipate the likely attack. That said, the questions asked by the prosecutor did not have the effect of adducing evidence that would not otherwise have been before the jury, did not immunise AB from attack, and did not blunt the force of the cross-examination based on the lies told by AB.
3. The clumsy attempt by the prosecutor to try to confine the extent of the lie should not have occurred. However, it is difficult to see any disadvantage to the applicant in having AB confine her evidence in a way which still left open the full scope of an attack based on the many different representations contained in the two statements.
4. Further, it was not permissible for the prosecutor to ask AB the following question:

What about the details of the sexual activity you described? Had you ever said anything to the police differently to what you say?---No, I don't think so. I'm a bit confused about your question, sorry.

1. Although the question was impermissible, the equivocal answer to the question went nowhere and, again, defence counsel was able to cross-examine on the extent of any inconsistencies.
2. Second, as to the failure to cross-examine AB on her reasons for changing her story, it is clear, as was frankly acknowledged by trial counsel for the defence, that a deliberate forensic decision was made. It was made having regard to the possibility that cross-examination may have permitted the prosecution to adduce the substance of JJ's statement, which in important respects confirmed the account given by AB. Even though there were some inconsistencies between the accounts given by AB in her second statement and JJ in her second statement, it would not have been forensically sound to cross-examine on JJ's statement because, if it was permitted to be adduced, it would not have assisted the defence case.
3. At least at the point of AB giving her evidence, the decision not to cross-examine on the reason why there had been a change of story was not so unwise or unreasonable as to constitute a miscarriage of justice. The applicant had the benefit of a direct attack on the basis that AB had lied in her first statement. Even if AB had only made a second statement in the knowledge that the police were already aware that she and JJ were engaged in sex work, that was not inconsistent with her seeking to tell the truth in her second statement. Her account of wishing to conceal the fact that she was engaged in sex work was not implausible and, once JJ had exposed the truth, the jury may well have considered that there was little reason for AB to persist with her false account. But that did not mean that the rest of her account was tainted. As submitted by the respondent, in my view the applicant has overstated the forensic advantage of taxing AB on the reasons for changing her story.
4. If the applicant had sought to establish that AB had only changed her statement once she knew that the lie could not be maintained, it was highly likely that, either in the cross-examination or re-examination, AB would have said that she made the decision either because of or having read the statement of JJ. Depending on how the questioning was conducted, it may have led to the prosecutor seeking to adduce JJ's second statement. Further, it seems inevitable that AB would refer to the fact that she had read JJ's statement. That fact alone would have presented a challenge for the defence because the jury may well have speculated as to the content of the statement and inferred that it was supportive.
5. Additionally, although it is a clear inference that AB only changed her account once she knew that JJ had done so, given the opportunity, AB may simply have explained that once the truth was out, there was no point in maintaining the lie but this did not impact on whether or not she was otherwise telling the truth. If the applicant's forensic point was that AB had lied in the past and therefore could not otherwise be believed in her account of what transpired, then that point was sufficiently made in the cross-examination that was undertaken. It cannot be said that the decision not to cross-examine AB on why she made her second statement was not a rational forensic decision. The failure to cross-examine on that topic did not constitute a miscarriage of justice.
6. Third, the prosecutor's final address wrongly stated that AB had voluntarily come forward to give her second account and was not doing so because she had been caught out. The correct position was that there was simply no evidence as to why she made the second statement. The prosecutor withdrew the submission in a satisfactory manner, shortly after it was made following the objection of trial counsel for the defence. In withdrawing the statement, the prosecutor observed that in fact there was no evidence as to why AB made her second statement, leaving the jury with a correct appreciation of the state of the evidence on the issue. During the charge, the jury were directed not to speculate and to decide their verdict based on the evidence. In the circumstances, the combination of the prosecutor's withdrawal and the judge's directions meant that any risk of the jury relying on the prosecutor's incorrect statement was significantly reduced. In my view, the erroneous address did not result in a substantial miscarriage of justice.
7. Ground 2 fails.
8. Finally, although not put this way, both grounds 1 and 2 are concerned with the credibility of AB and I have considered whether, cumulatively, the matters complained of are such as to give rise to a substantial miscarriage of justice. As to ground 1, I acknowledge that the judge did not give a warning to the jury not to overstate the significance of the distress evidence. It was explicable in this case because of the forensic decisions made by trial counsel for the defence and the positive explanation given by counsel as to why AB might have been distressed. Nevertheless, it is a direction that should ordinarily be given. Further, as to ground 2, the statement in the prosecutor's address as to the circumstances in which AB made her second statement was wrong. Again, I have found no irregularity because the misstatement was corrected and appropriate directions given. I remain satisfied that, taken individually or collectively, these two matters did not amount to a substantial miscarriage of justice. That remains the case even accepting the importance of AB's credibility on which the prosecution case depended.

1. The application for leave to appeal against conviction must be refused.

PART C: SENTENCE

1. Following a plea on 17 January 2023, the applicant was sentenced on 7 March 2023 as follows:

• Rape of AB with aggravating circumstances[215]

• Gross indecency with a person under 16 (AB and JJ)[216]

• Gross indecency with a person under 16[217] (JJ)

• Gross indecency with a person under 16 (AB and JJ)[218]

• Rape of JJ with aggravating circumstances[219]

• Gross indecency with a person under 16 (AB and JJ)[220]

1. Pursuant to s 6F of the Sentencing Act 1991, the applicant was sentenced as a serious sexual offender in respect of charges 10, 11, 12 and 14.
2. Pursuant to s 34 of the Sex Offenders Registration Act 2004, the length of the reporting period was life.

1. After setting out the circumstances of the offending, the judge turned to the applicant's personal circumstances.[221] In part, that account was taken from a psychological report of consulting psychologist Warren Simmons dated 30 September 2022.
2. At the time of sentence the applicant was 61 years old. He was born in Greece and moved to Australia in 1970 when he was nine years old. The applicant's parents struggled as recently arrived immigrants and worked long hours in a factory.[222] The applicant found school difficult both academically and socially, leaving school part way through Year 12.[223]
3. In his twenties, the applicant started using cannabis and amphetamines, but ceased using illicit drugs in his late twenties. The judge noted that the applicant had a good work history, most recently working as a labourer and forklift driver continuously in the 13 years prior to remand.[224]
4. The judge observed that the applicant had a significant, although relatively confined, criminal history between 1984 and 1989. In 1984, the applicant was convicted of trafficking a drug of dependence for which he received a six-month term of imprisonment. In 1987, he was convicted of assault and, in 1989, the applicant was sentenced to 12 months' imprisonment for kidnapping and assault with intent to commit an indictable offence.[225] The judge noted that the circumstances of this offending were not known but, at the same time, the applicant was acquitted of indecent assault and intentionally causing injury. The judge noted that a police summary relevant to this offending showed that in 1986 the applicant picked up a woman while driving a taxi and made repeated unwelcome sexual advances towards her.
5. Turning to the objective gravity of the offending, the judge took into account that the victims were children and were 'totally at the mercy of their would-be customers and failed to appreciate the danger' of offering sexual services to strangers on the streets of St Kilda.[226] The judge found that the applicant had taken advantage of the situation by pretending to be a police officer and threatening to charge the complainants. The judge described a protracted, frightening and degrading ordeal involving threats of violence and multiple unprotected sex acts during which the applicant ignored the complainants' distress and maintained the lie that he was a police officer.[227]
6. The judge observed that the crimes were sadistic and vile and the ramifications for the victims long-lasting.[228]
7. The judge considered that the repeated offending in the face of the complainants' distress increased his culpability and that, after the first rape in Elwood, the applicant had the opportunity to reflect and desist from further offending but did not.[229]
8. The judge observed that, even though the applicant was to be sentenced for historical offences, the Court was required to have regard to current community attitudes and evolution in the knowledge of the impact of sexual offending.[230] Consistent with the principle of equal justice, the judge also took into account sentencing practices that applied at the date of the offending. In that respect, the judge was taken to six cases,[231] which did not demonstrate that the sentencing practices that applied in 1987 would have resulted in the applicant receiving a materially shorter sentence had the applicant been sentenced when the offending occurred.[232]
9. The judge noted the far-reaching consequences of the offending on AB and the daughter of JJ, both of whom provided victim impact statements.[233]
10. In terms of rehabilitation, the judge noted the applicant had committed no further offences in the almost 36 years that had passed between the offending and the time of sentence. Her Honour noted that the applicant had a loving relationship with his children and he was supported by them in court and the judge referred to references provided by his children, sister and friend.[234]
11. The judge accepted that there was a risk of deportation given the gravity of the offending, the length of the sentence and the fact that the applicant was not an Australian citizen.[235] In terms of the burden of imprisonment, the judge accepted that, given the applicant was a man of 61 years of age, although in reasonable health, prison would likely be harder for him than for a younger man. Further, a term of imprisonment would likely represent a greater proportion of the balance of his life. The judge noted the uncertainty and worry about deportation and that, by reason of the offending, the applicant had spent time in protective custody. The judge also took into account the burdens that the COVID-19 pandemic has had on his period of incarceration.[236]
12. As to whether there were any mitigating factors, the judge considered that the publicity in relation to the case did not reach a level that warranted a discount in sentence. On the issue of delay, the judge noted the applicant's submission that there was delay caused by the matter not being properly investigated in the first place. The judge concluded:

[I]t seems to me the thoroughness of the original investigation is entirely speculative. Further, this is not a case where you have had the matter hanging over your head for many years. You were first spoken to by the police in February 2020 and thereafter the matter proceeded with the usual pace, covid, [sic] allowing. The delay has certainly meant that you face prison as an older person, but it has also been to your advantage in allowing you to demonstrate rehabilitation. It must also not be forgotten that, while you were able to get on with your life believing you had got away with your crimes, your victims were left to suffer.[237]

1. In relation to the purposes of sentencing, the judge considered the principles of denunciation, general deterrence and just punishment were paramount.[238]

1. In his application for leave to appeal against sentence, the applicant propounds three proposed grounds. It is convenient to deal with them in order.

1. By this ground, the applicant contends that it was an error to impose a conviction and sentence on charge 14 (gross indecency with a person under 16) in circumstances where a single act comprised that charge and the circumstances of aggravation on charge 12.
2. In support of the ground the applicant points out that the act relied on to establish the circumstance of aggravation in respect of charge 12 was the instruction to JJ to lick AB's vagina during the act of rape. The act comprising the gross indecency in charge 14 is particularised in the indictment as 'procured or incited [JJ] to lick [AB]'s vagina'. The applicant contends that it was impermissible for the applicant to be punished twice for a single act.[239] As a result, the conviction and sentencing orders relating to charge 14 should be quashed.
3. The respondent argues that the act for which the applicant was punished by charge 12 was the vaginal penetration of JJ without her consent, whereas by charge 14 the applicant was punished for the instruction to JJ to lick AB's vagina, those being separate acts. The prosecution relied on a separate circumstance (being the presence of the other complainant at the time of penetration) as a circumstance of aggravation in relation to both charges of rape with aggravating circumstances. Having regard to the judge's reasons,[240] it appears that the judge did consider that the circumstances of aggravation in charge 12 comprised the conduct constituting charge 14, and afforded a significant degree of concurrency in the sentence. If the judge fell into error, the respondent submits that no different sentence should be passed and that, absent any error, a greater portion of the sentence on charge 14 ought to have been cumulated on the base sentence.
4. In oral submissions, the applicant responded that, even if the other complainant's presence were an act and that act was a circumstance of aggravation, the judge nonetheless relied on the conduct the subject of charge 14 as a circumstance of aggravation in relation to charge 12.

1. In his final address, the prosecutor told the jury that charge 12 was concerned with the rape of JJ in aggravating circumstances and that the aggravation the prosecution relied on was not only the fact that the applicant penetrated JJ in the presence of AB but also that he had JJ perform a sexual act on AB at the same time (the sexual act referred to being JJ licking AB's vagina). In the charge to the jury, the judge told the jury that the aggravating circumstances in relation to charge 12 were that the penetration of JJ occurred in the presence of AB and that, while the penetration occurred, the applicant instructed JJ to lick AB's vagina.
2. In the reasons for sentence, the judge identified the aggravating circumstances relevant to charge 12 as being the giving of an instruction to JJ to lick AB's vagina whilst the applicant was penetrating JJ.[241]
3. Charge 14, which involved procuring an act of gross indecency by JJ was particularised in the indictment as being procuring or inciting JJ to lick AB's vagina.
4. It seems clear that the relevant act of aggravation relevant to charge 12 included instructing JJ to lick AB. The mere presence of AB was also relied on as an act of aggravation. In relation to charge 14, the relevant conduct of the applicant was not the physical act that occurred, which was the act of JJ, but rather the encouragement or inducement of that act by the applicant.
5. The principles that apply when a sentencing court is faced with two charges with overlapping elements were discussed by the High Court in Pearce v The Queen[242] and by this Court in many cases, including R v Sessions.[243] The principles were helpfully summarised by this Court in Hutchison v The Queen.[244]
6. The issue arises both in the context of conviction and sentence. Although the proposed ground of appeal refers to there being an error on conviction and sentence, as a matter of form, there is no separate ground of appeal relating to the conviction on charge 14. In any event, there is no impediment in principle in treating the facts comprising one offence as aggravating another offence that is committed at the same time. The issue is one of punishment and sentence rather than conviction.
7. The relevant principle discerned from the cases is that a single act or omission should not give rise to multiple punishments. As the majority observed in Pearce:

[...] the punishment to be exacted should reflect what an offender has done; it should not be affected by the way in which the boundaries of particular offences are drawn. Often those boundaries will be drawn in a way that means that offences overlap. To punish an offender twice if conduct falls in that area of overlap would be to punish offenders according to the accidents of legislative history, rather than according to their just deserts.[245]

1. Where there are common features to two or more charges, the extent to which there is double punishment for the same act or omission will be revealed both by the individual sentences imposed and by the orders for cumulation or concurrency.
2. Factually, there was a large overlap between the conduct making up the aggravation relevant to charge 12 and the conduct comprising charge 14. However, the two charges were not entirely coincident.
3. Procuring JJ to lick AB's vagina was appalling and disgraceful behaviour. It was plainly harmful to both complainants and constituted an independent offence. The conduct also rendered the circumstances in which the rape of JJ seriously and substantially degrading and humiliating. The aggravation of the rape of JJ did not capture the entire criminality of the conduct, nor did the charge of gross indecency. The judge was alive to the risk of double punishment and imposed a moderate amount of cumulation.
4. I would reject this ground.

1. By this ground, the applicant says the judge erred in finding that the applicant had not 'had the matter hanging over [his] head' throughout the period of delay. Delay was not irrelevant just because there was not an inordinate period between charge and sentence.
2. The applicant argues that, based on the jury's verdict, the applicant must at least have known he had committed offences in a car traceable to him and that he left his DNA. He did not abscond or create any barrier to the conduct of an investigation such as would prevent him being able to call in aid the fact of delay. Further, delay is an important matter in mitigation independently of the rehabilitation it enabled the applicant to demonstrate.
3. The respondent submits that the judge correctly took account of the delay between the applicant becoming aware he was under suspicion and the finalisation of the proceeding, and that the proceeding was not conducted in a dilatory manner. Further, there was nothing to suggest that the prospect of the charges was hanging over the applicant's head prior to February 2020. The respondent says that there is no basis for asserting that the applicant was or would have been aware that DNA samples were taken from the victims, that 'cold case' samples were being tested or that a match had been made. The judge correctly took into account the impact of the delay in charging the applicant on his rehabilitation and that he faced imprisonment as an older man.

1. The judge's observation that, during the period of time that elapsed between the commission of the offences in 1987 and the applicant's contact with police in 2020, the applicant did not have the matter 'hanging over his head' was both unremarkable and unimpeachable. There was no basis to conclude that, during this period, the applicant was somehow anxious that his crimes might be detected or was racked with guilt for the commission of the offences. As to the former, it is entirely speculative to submit, as the applicant does, that he may have feared detection because he left DNA evidence at the scene of the crime. As to the latter, the applicant pleaded not guilty to the charges.
2. The delay between the offending and the charges was not found to be due to any dereliction of duty or inadequate investigation on the part of police; indeed, the judge regarded such a submission to be entirely speculative. The fact that the offending remained uncharged for so long is not a mitigating factor. Indeed, the applicant avoided a period of jail and the opprobrium that would have attached to a timely conviction for a long period of time and was able to lead a life without these matters coming to light.
3. However, the judge was still required to take into account the fact that the applicant was a man of relatively advanced age when he came to be sentenced. He was facing jail as an older person and this carries with it the potential for difficulty. Undoubtedly, incarceration will account for a significant proportion of the applicant's remaining years. The judge took these matters into account.
4. The delay also had the consequential advantage for the applicant that he was able to demonstrate a long period of time of law-abiding behaviour. In the usual course, judges are required to make an assessment as to the prospects of rehabilitation and the risk of future offending. With the long passage of time in this case, the issue was not so much one of prediction but of acknowledging that fact.
5. Ultimately, there was no specific error in the judge's treatment of delay.

1. By this ground, the applicant contends that the individual sentences, orders for cumulation, total effective sentence and non-parole period are all manifestly excessive.
2. The applicant submits that the maximum sentence for the offences of kidnapping and rape with circumstances of aggravation was 20 years' imprisonment at the time of the offending, which is less than the currently-applicable maximum sentence of 25 years' imprisonment and qualifies any reliance on contemporary sentencing practice.
3. The applicant argues that the kidnapping sentences are substantial even relative to sentences imposed pursuant to a 25-year maximum sentence, and that the sentences are close to the highest imposed during the period between 1985 and 1987, referring to statistics and authorities from that period. The sentences for the aggravated rapes are also very substantial by reference to both the current maximum sentence and other sentences imposed when the 20-year maximum applied.
4. Finally, the applicant submits that it was necessary to avoid double punishment in three respects:

(a) It was necessary not to count the circumstances which led to the conviction of aggravated rape rather than rape simpliciter as additional aggravating circumstances of the offending.

(b) There was considerable overlap between the kidnapping and at least charge 3 (rape with aggravating circumstances) where the withdrawal of consent to be in the vehicle and to having sex arose from the same circumstances, namely the applicant pretending to be a police officer and making threats.

(c) The 'gain' relied on in respect of the kidnapping was the sexual gratification obtained from the rapes.

1. As for the gravity of the offending, the applicant argues that the offending did not constitute a planned kidnapping and rape but rather was opportunistic.
2. The applicant also relies on the delay between the offending and his sentencing, his demonstrated rehabilitation, the onerousness of imprisonment (given his age, prospect of deportation and the COVID-19 pandemic) and the principle of totality.
3. The respondent contends that the applicant failed to discharge the burden of establishing manifest excess, having regard to the following:

(a) There is nothing to suggest that the judge had regard to the current maximum penalties when sentencing.

(b) The sentences imposed ranged from 35 to 50 per cent of the relevant maximum penalties and cannot be said to have been wholly outside the available range.

(c) None of the statistics relied on by the applicant were provided to the judge, and only two of the cases referred to were provided to her Honour. Neither of those cases is comparable to the present one. The statistics do not include data that would reveal whether the other cases were comparable. Further, unlike in the historical cases, the judge was required to consider the paramount sentencing principle of community protection in relation to the majority of sexual offences (in relation to charges 10, 11, 12 and 14).

(d) Her Honour correctly factored into the instinctive synthesis the fact that sentences for the offences of which the applicant was convicted were generally somewhat lower at the time of the offending than at present.

(e) The absence of planning as an aggravating feature does not of itself mitigate sentence, especially having regarding to the other circumstances of the offending already noted.

(f) The applicant engaged in serious offending and was not entitled to a sentencing discount applicable to a guilty plea. There was no evidence of remorse and he had been charged with kidnapping and sexual offences of a similar kind about five months before the offending the subject of the charges.

(g) The judge took into account the relevant mitigating factors referred to by the applicant.

(h) The need to avoid double punishment and the principle of totality were reflected in the modest orders for cumulation.

(i) The non-parole period represented 60 per cent of the head sentence and was at the lower end of the usual range.

1. The judge's reasons for sentence are carefully crafted and well considered. Neither of the two specific complaints have been established and it is not otherwise suggested that the judge failed to take into account a relevant consideration or misapplied principle.
2. In order to make out this ground, which focuses on the outcome of the sentencing process, the applicant must establish that the sentence arrived at (either the individual sentences or the total effective sentence) was wholly outside the available range open to the judge and the sound exercise of the discretion. There are any number of authorities in this Court that emphasise the stringency of the test and the nature of the hurdle that must be overcome in order to succeed on a ground of manifest excess.[246]
3. The charges were undoubtedly serious. Dealing first with the two charges of rape, at the time of the offending the maximum penalty for rape was 10 years' imprisonment.[247] However, if the rape occurred in the context of one or more of the aggravating circumstances set out in s 46(1) of the Crimes Act 1958, the maximum penalty was 20 years' imprisonment.[248]
4. The rapes were aggravated and the jury must have accepted beyond reasonable doubt that the applicant did an act that was likely to seriously and substantially degrade or humiliate AB and JJ. In relation to AB (charge 3), the aggravating feature was requiring JJ to watch the sexual assault of AB. As already discussed, in relation to JJ (charge 12), the aggravating features entailed procuring JJ to lick AB's vagina as well as the mere presence of AB.
5. Although it is sometimes said that the absence of aggravating features found in other examples of the offence ought not be treated as a mitigating factor and the convicted person should be sentenced for what he or she has done rather than not done, two points of present significance arise. First, the acts of aggravation are important because, once established, they double the maximum penalty. Second, and relatedly, when assessing the relative gravity of the offending, it is necessary to have regard to other sentences imposed for the aggravated form of rape. In that context, it is relevant to observe that other forms of aggravation include the infliction of serious personal violence and the possession of an offensive weapon. Moreover, the circumstances that might be seriously and substantially degrading and humiliating are likely to be varied and involve a potentially very broad range of conduct, both in terms of form and impact.
6. It is relevant that the more serious kinds of aggravating features, such as violence and possession of a weapon, found in other cases were not present in this case. It is also important to recognise, as the judge did, that aspects of the aggravating features were also relevant to the other charges and there remained a real risk of double punishment.
7. It is significant that the victims were young and vulnerable and that the applicant, by posing as a police officer, exploited that vulnerability. That the complainants were engaged in sex work had absolutely no mitigatory effect in relation to the charges; indeed, it provided the context for the exploitation and, as the judge fairly recorded, the complainants were naïve and at the mercy of their would-be customers.
8. The kidnapping and gross indecency charges were also significant. Recognising that there were two victims and the offending occurred over a period of time meant that the offending could not easily be seen as a single course of conduct and some measure of cumulation was required. Totality was also an important consideration.
9. As is not uncommon, the delay between the offending and the conviction added greatly to the difficulty of the sentencing task. It affected the relevance of current sentencing practice and it was relevant to take into account the range of sentences that might have been imposed at the time of the commission of the offences for this kind of offending insofar as it engages the principle of equal justice.[249] Having regard to six cases relied on by the applicant on the plea, the judge was not satisfied that the sentencing practice in 1987 would have resulted in a 'materially lesser sentence', all things being equal, had he been sentenced at that time.[250]
10. In my view, the judge understated the difference in sentencing between 1987 and the present. The maximum penalty has increased from 20 to 25 years' imprisonment and, as this Court noted in DPP v Za Lian, there can be little doubt that sentences for rape (and other forms of serious sexual offending) have increased somewhat in recent years.[251] It is neither possible nor desirable to further quantify the extent of the change, but the increase over time is noticeable.
11. Another aspect of the delay is the long period, exceeding over three decades, during which the applicant has not offended and has made a very valuable contribution in caring for his family. Although protection of the community is undoubtedly an important factor, including by reason of the serious offender provisions of the Sentencing Act 1991,[252] there was little room, if any, for specific deterrence. Although it may have been a factor in 1987 when the applicant was a young man and had recently engaged in the offending (as well as other relevant offending), it was not a factor in 2023 when he came to be sentenced as a 61-year-old man.
12. Denunciation and general deterrence were important factors in sentencing the applicant and the passage of time has not rendered the offences less serious. The charges called for a substantial period of imprisonment. That said, I am of the view that the individual sentences on the aggravated rape charges and the total effective sentence are manifestly excessive. I would grant leave to appeal against sentence, allow the appeal, set aside the sentence and resentence the applicant as follows.

• Gross indecency with a person under 16 (AB and JJ)

• Gross indecency with a person under 16 (AB and JJ)

• Gross indecency with a person under 16 (AB and JJ)

[1] These reasons will refer to the complainant as 'AB' and her friend as 'JJ'.

[2] [1993] QCA 23; [1994] 2 Qd R 342 ('Sailor').

[3] Sailor [1993] QCA 23; [1994] 2 Qd R 342, 346 (McPherson JA, Byrne J agreeing at 349). See also 347-9, where Pincus JA proceeded on the basis that distress evidence is capable of constituting corroboration.

[4] See, e.g., R v Redpath (1962) 46 Cr App R 319 ('Redpath').

[5] See, e.g., R v Flannery [1969] VicRp 72; [1969] VR 586 ('Flannery').

[6] [1979] 1 NZLR 181, 184-5 (Woodhouse, Cooke and Richardson JJ) (emphasis added) ('Moana').

[7] Moana [1979] 1 NZLR 181, 185 (Woodhouse, Cooke and Richardson JJ).

[8] Sailor [1993] QCA 23; [1994] 2 Qd R 342, 346 (Byrne J agreeing at 349).

[9] See SB v The Queen [2020] NSWCCA 207, in which the New South Wales Court of Criminal Appeal concluded that the trial judge was wrong to refer to complaint evidence as 'independent': at [113] (Rothman J, Hoeben CJ at CL agreeing at [1], Hamill J agreeing at [178]-[179]).

[10] R v Bauer ('a pseudonym') [2018] HCA 40; (2018) 266 CLR 56, 99 [89] (Kiefel CJ, Bell, Gageler, Keane, Nettle, Gordon and Edelman JJ); [2018] HCA 40.

[11] See BQ v The King [2024] HCA 29; (2024) 98 ALJR 1008, 1015 [34] (Gageler CJ, Gordon, Edelman, Steward, Gleeson, Jagot and Beech-Jones JJ); [2024] HCA 29.

[12] Niall JA's reasons, [254].

[13] Niall JA's reasons, [254].

[14] Flannery [1969] VicRp 72; [1969] VR 586, 591.

[15] Flannery [1969] VicRp 72; [1969] VR 586, 591.

[16] Sailor [1993] QCA 23; [1994] 2 Qd R 342, 346 (Byrne J agreeing at 349).

[17] Sailor [1993] QCA 23; [1994] 2 Qd R 342, 346 (Byrne J agreeing at 349). See also Moana [1979] 1 NZLR 181, 185 (Woodhouse, Cooke and Richardson JJ).

[18] [2024] VSCA 151, [48] (Beach, Taylor and Orr JJA) ('Churchill').

[19] [2008] VSCA 125, [18]-[20] (Nettle JA, Redlich JA agreeing at [22]).

[20] Flora v The Queen (2013) 233 A Crim R 320, 331-8 [57]-[94] (Redlich, Weinberg and Coghlan JJA); [2013] VSCA 192 ('Flora').

[21] Flora (2013) 233 A Crim R 320, 336 [82] (Redlich, Weinberg and Coghlan JJA); [2013] VSCA 192.

[22] Churchill [2024] VSCA 151, [49].

[23] And exclusionary provisions such as ss 135, 136 and 137.

[24] See Flora (2013) 233 A Crim R 320, 335-6 [79]-[80] (Redlich, Weinberg and Coghlan JJA); [2013] VSCA 192.

[25] [1976] 2 NZLR 104 ('Collings') cited in Moana [1979] 1 NZLR 181, 185 (Woodhouse, Cooke and Richardson JJ).

[26] The relevant passage taken from Collings concerns jury directions on corroboration.

[27] Collings [1976] 2 NZLR 104, 118 (McCarthy P, Richmond and Cooke JJ)

[28] Redpath (1962) 46 Cr App Rep 319, 321-2 (Parker CJ, Winn and Brabin JJ).

[29] See [22] above.

[30] And directing juries in such terms.

[32] JDA, s 12(b).

[33] JDA, s 12.

[34] JDA, s 14.

[35] JDA, s 15.

[36] JDA, s 16.

[37] Victorian Law Reform Commission, Improving the Justice System Response to Sexual Offences (Report, September 2021) 441.

[38] Justice Legislation Amendment (Sexual Offences and Other Matters) Bill 2022.

[39] Minister for Corrections, for Youth Justice, for Victim Support, and for Fishing and Boating.

[40] Victoria, Parliamentary Debates, Legislative Assembly, 4 August 2022, 2892.

[41] In DPP v Hester [1973] AC 296 (a case concerned with whether the unsworn evidence of a child admitted under s 38(1) of the Children and Young Persons Act 1933 could constitute corroboration of the sworn evidence of another child), Lord Pearson observed (at 321) that 'the word "corroboration" in itself has no special legal meaning: it is connected with the Latin word "robur" and the English word "robust" and it means "strengthen": perhaps the best synonym is "support".' And Lord Diplock observed (at 325):

An examination of the basic 19th-century cases makes it plain that in the judgments 'corroboration' was not used in any other sense than 'confirmation'. This is the expression actually used in six out of the seven cases approved in Rex v Baskerville [[1916] 2 KB 658]. Even in Rex v Baskerville itself the terms 'corroboration' and 'confirmation' are used interchangeably. I conclude, therefore, that the word 'corroborated' as used in the proviso to section 38(1) of the Children and Young Persons Act 1933 is not a term of legal art, and that the proviso bears no different meaning from that which it would have borne if the word, commoner in ordinary usage, 'confirmed' had been substituted for it.

[42] In R v Apostilides (1983) 11 A Crim R 381, 401-2, Kaye J suggested that, when directing a jury on corroboration, the expression 'supporting' should be avoided (a view apparently endorsed in R v Kehagias [1985] VicRp 10; [1985] VR 107, 112). But in R v Rosemeyer [1985] VicRp 90; [1985] VR 945, 949-50, Young CJ made it clear that no 'particular words' were required.

[43] R v Baskerville [[1916] 2 KB 658] (1916) 12 Cr App R 81, 91 (Lord Reading CJ).

[44] Ridley v Whipp [1916] HCA 76; (1916) 22 CLR 381, 392.

[45] R v Meyer [2007] VSCA 115, [9] (Nettle JA, Vincent and Redlich JJA agreeing) ('Meyer'). See also Seccull v The King [2022] VSCA 219; (2022) 69 VR 454, 467 [40] (Priest AP) ('Seccull').

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

[47] [1916] HCA 76; (1916) 22 CLR 381 at 389.

[48] R v Freeman [1980] VicRp 1; [1980] VR 1, 4 (Starke, McInerney and Murphy JJ) ('Freeman'). See also Papakosmas v The Queen (1999) 196 CLR 297, 305 [17] (Gleeson CJ and Hayne J) ('Papakosmas').

[51] SB v The Queen [2020] NSWCCA 207, [116] (Rothman J, Hoeben CJ at CL and Hamill J agreeing) ('SB').

[53] R v Redpath (1962) 46 Cr App Rep 319 (Parker LCJ, Winn and Brabin JJ) ('Redpath').

[54] R v Flannery [1969] VicRp 72; [1969] VR 586 (Winneke CJ, Starke and Pape JJ) ('Flannery').

[55] Charles (a pseudonym) v The Queen [2022] VSCA 166 (Emerton P, Kyrou and T Forrest JJA) ('Charles').

[56] Churchill (a pseudonym) v The King [2024] VSCA 151 (Beach, Taylor and Orr JJA) ('Churchill').

[57] On 7 November 2024, the High Court granted special leave against this Court's decision: R v Churchill (a pseudonym) [2024] HCASL 283.

[59] Paull v The Queen [2021] VSCA 339 (Priest, Kaye and Niall JJA) ('Paull') was published on 7 December 2021. Presumably, Paull was the case that the judge had in mind, since judgment in Seccull was delivered on 14 October 2022, after the applicant's trial had concluded.

[63] Cf Seccull, 469 [47] (Priest AP).

[64] Paull, [40] (Priest, Kaye and Niall JJA).

[67] Including Flannery; R v Rogers [2008] VSCA 125, [18]-[20] (Nettle JA) ('Rogers'); Flora v The Queen (2013) 233 A Crim R 320, 333 [69] (Redlich, Weinberg and Coghlan JJA) ('Flora'); R v Munro [2005] VSCA 260, [49] (Nettle JA) ('Munro'); R v Meyer [2007] VSCA 115 ('Meyer').

[70] Nimely (a pseudonym) v The King [2023] VSCA 20, [26] (Priest, Taylor and Kaye JJA) ('Nimely').

[73] Counsel cited Papakosmas, 305 [17], 305 [20] and 307 [23] (Gleeson CJ and Hayne J); SB, [113]-[127] (Rothman J, with whom Hoeben CJ at CL and Hamill J agreed); Meyer, [12] (Nettle JA), citing R v E (1996) 39 NSWLR 450, 460 (Sterling J); R v McCaskill [2017] QCA 172, [58] (Douglas J with whom Sofronoff P and McMurdo JA agreed) ('McCaskill'); R v MDP [2023] QCA 134, [58] (Henry J, with whom Mullins P and Morrisson JA agreed) ('MDP'); Akkerman v WA [2021] WASCA 51, [62] (Vaughan JA) ('Akkerman').

[80] Counsel cited R v Waye (1984) 14 A Crim R 391, 393-4 (King CJ) ('Waye'); R v Schlaefer (1984) 37 SASR 207, 216 (King CJ) ('Schlaefer'); R v Sailor [1993] QCA 23; [1994] 2 Qd R 342, 346 (McPherson JA) ('Sailor'); and Meyer, [12] (Nettle JA).

[81] Counsel cited R v Dhir (2019) 133 SASR 452, 465-6 [68]-[69] (Kourakis CJ) ('Dhir'), applying Schlaefer and Flannery. See also Akkerman, [62] (Vaughan JA), and Lynch v The Queen [2020] NTCCA 6, [75].

[83] R v Gulliford [2004] NSWCCA 338; (2004) 148 A Crim R 558 ('Gulliford').

[84] R v McNamara [2002] NSWCCA 248; (2002) 131 A Crim 140, [35] ('McNamara').

[85] Gulliford, 588 [150]-[151] (Wood CJ at CL, with whom Spigelman CJ and Howie J agreed).

[86] Dhir, 466 [70] (Stanley and Doyle JJ agreeing).

[87] R v Byczko (No 2) (1977) 17 SASR 460 ('Byczko (No 2)').

[89] SPC v The Queen [2020] SASCFC 43 ('SPC').

[90] SPC, [39]-[42] (Nicholson and Bampton JJ agreeing).

[91] R v Williams [2010] 1 Qd R 276 ('Williams').

[92] Williams, 285-287 [37]-[42] (Cullinane and Jones JJ agreeing). See also MDP, [55]-[59].

[93] Eades v The Queen [2001] WASCA 329 ('Eades'). See also Azarian v WA [2007] WASCA 249; (2007) 178 A Crim R 19.

[94] Grubisic v WA [2011] WASCA 147; (2011) 41 WAR 524.

[95] Lynch v The Queen [2020] NTCCA 6, [75]-[81] (Grant CJ, Blokland and Hiley JJ) ('Lynch').

[96] IMM v The Queen [2016] HCA 14; (2016) 257 CLR 300 ('IMM').

[97] R v Bauer (a pseudonym) [2018] HCA 40; (2018) 266 CLR 56 ('Bauer').

[98] R v Grattan [2005] NSWCCA 306 ('Grattan').

[100] And see [169] below.

[101] If an example be needed, one is provided in the background facts of DPP v Whiteside [2000] VSCA 142; (2000) 1 VR 331, a sentencing case involving manslaughter. In that case, a young woman had an argument with her boyfriend in a car whilst he drove. She exited the car at a set of lights, and, having resisted her boyfriend's coaxing to get back into the car, went into nearby public gardens. Whilst she was there, 'in an obviously distressed condition', a group came upon her. When asked the reason for her ostensible distress, she falsely complained that she had been sexually assaulted by two men. Members of the group then remained with the distressed woman, as two others scoured the gardens with the intention of locating the persons responsible for the rape they believed had been committed upon her. In their search, they encountered two entirely innocent men, whom they assaulted as retribution for the alleged rape, causing injuries of such severity to one of the men that he died. The distress that had been observed in the young woman had nothing at all to do with any sexual assault perpetrated upon her - it related solely to upset arising from the argument with her boyfriend - yet it had been mistaken for distress caused by such an assault.

[102] As to which, see Evidence Act 2008, s 78.

[103] See Lithgow City Council v Jackson [2011] HCA 36; (2011) 244 CLR 352, 373-4 [48] (French CJ, Heydon and Bell JJ).

[104] Seccull, 465 [34]. (Citations as in original.)

[105] Flannery, 591. See also Schlaefer, 217 (King CJ).

[106] At [119], [123] and [128].

[107] Flannery, 591. (Emphasis added.)

[108] R v Waye (1984) 14 A Crim R 391, 393.

[109] See [84] above.

[110] Paull, [40]. (Citations as in original.) See also Seccull, 463 [31].

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

[112] R v Munro [2005] VSCA 260, [49] ('Munro'). (Citation as in original.)

[113] [1969] VicRp 72; [1969] VR 586 at 591.

[114] Distress evidence was also described as a form of circumstantial evidence in Flora, 333-4 [69]-[72], 335 [79] (Redlich, Weinberg and Coghlan JJA). The suggestion that it should be treated the same as 'post-offence conduct', and be governed by the same rules (at 334-7 [72]-[85]), however, finds no support in the authorities.

[115] Paull, [42]. See also Seccull, 464 [32].

[119] Byczko (No 2), 463. (Citations as in original; emphasis added.)

[120] [1966] 1 WLR 230.

[121] [1969] VicRp 72; [1969] VR 586 at p 591.

[122] (1973) 58 Cr App R 304.

[123] (1977) 1 Crim LJ 51.

[124] (1973) 58 Cr App R 304, at p 312.

[125] [1966] 1 WLR 230.

[126] R v Brdarovski [2006] VSCA 231; (2006) 166 A Crim R 366, 379 ('Brdarovski').

[127] Seccull, 465-7 [38]-[39]. (Emphasis and citations as in original.)

[128] R v Sailor [1993] QCA 23; [1994] 2 Qd R 342, 344-5 ('Sailor').

[129] R v Moana [1979] 1 NZLR 181, 184-5 (Woodhouse, Cooke and Richardson JJ) (emphasis added).

[130] Gulliford, 588 [151]. (Emphasis added.)

[131] Sailor, 346. (Emphasis added.)

[133] See [130] above.

[134] Schlaefer, 216-7. (Emphasis added; footnotes omitted)

[136] See [112]-[116] above.

[137] An exception is made in the case of perjury or a related offence. See ss 164(2) and (5).

[138] R v Chee [1980] VicRp 32; [1980] VR 303, 308.

[139] Any determination of the extent to which the evidence could rationally affect the assessment of the probability of the existence of a fact in issue requires that the possible use to which the evidence might be put be taken at its highest: IMM, 313 [44] (French CJ, Kiefel, Bell and Keane JJ).

[140] Seccull, 468 [43]. (Emphasis added; footnotes as in original.)

[141] Evidence Act 2008, s 56(1).

[142] Evidence Act 2008, s 55(1).

[143] Seccull, 468-9 [44]. (Emphasis added.)

[144] Seccull, 468-70 [45]-[47]. Cf 482 [103] (Niall JA and Kidd AJA).

[146] R v Link [1992] QCA 127; (1992) 60 A Crim R 264 ('Link').

[148] Judicial College of Victoria, Victorian Criminal Charge Book (the 'Charge Book').

[149] Churchill, [48]. (Citation as in original.)

[150] Seccull [2022] VSCA 219; (2022) 69 VR 454, 464 [32] (Priest AP), 481-2 [97], [100] (Niall JA and Kidd AJA); [2022] VSCA 219; Nimely [2023] VSCA 20, [27] (Priest, Taylor and Kaye JJA).

[151] Churchill, [49]. (Emphasis added.)

[152] See [130] above.

[154] See [125] above.

[155] R v Berrill [1982] Qd R 508, 527 (McPherson J). See also Sailor, 345.

[156] Section 54K was introduced by the Justice Legislation Amendment (Sexual Offences and Other Matters) Act 2022, s 56. In the Second Reading Speech relating to the Justice Legislation Amendment (Sexual Offences and Other Matters) Bill 2022, the Minister for Corrections, for Youth Justice, for Victim Support, and for Fishing and Boating stated (Parliamentary Debates, Legislative Assembly, 4 August 2022, 2892):

New Division 5 [of the JDA, including s 54K] requires a trial judge to give a direction on the complainant's distress or emotion while giving evidence, unless there are good reasons for not giving the direction. This will guard against a jury making incorrect assumptions as to these issues, promoting victim-survivors' rights and achieving fairer outcomes in proceedings for sexual offences. Again, these new directions reflect extensive research on common misconceptions about sexual offence victim-survivors, as discussed by the [Victorian Law Reform Commission].

[157] Recommendation 78 of the Victorian Law Reform Commission's final report, Improving the Justice System response to Sexual Offences, published September 2021, included at [20.48] (emphasis added):

78 New jury directions should be introduced in the Jury Directions Act 2015 (Vic) to address misconceptions about sexual violence on:

a. an absence or presence of emotion or distress when reporting or giving evidence ...

[158] See, e.g., IMM, 319-20 [72]-[73] (French CJ, Kiefel, Bell and Keane JJ); IMM v The Queen [2014] NTCCA 20, [27] (Kelly J, Riley CJ and Hiley J agreeing); Bauer, 101-2 [92] (Kiefel CJ, Bell, Gageler, Keane, Nettle, Gordon and Edelman JJ).

[159] Bauer, 99 [89]. (Citations as in original; emphasis added.)

[160] (1998) 195 CLR 606 at 608 [4] per Gaudron, Gummow and Hayne JJ; see also at 614 [34] per Callinan J (Gleeson CJ agreeing at 608 [1])

[161] Australian Law Reform Commission, New South Wales Law Reform Commission and Victorian Law Reform Commission, Uniform Evidence Law (December 2005), pp 255-256 [8.122]-[8.124]; Victoria, Evidence Bill 2008, Explanatory Memorandum, p 22.

[162] See, e.g., R v XY [2010] NSWCCA 181; (2010) 79 NSWLR 629 at 646-648 [91]-[92], [98]-[99] per Whealy J (Campbell JA and Simpson J agreeing at 630 [1], [2]); LMD v The Queen [2012] VSCA 164 at [24] per Harper JA (Bongiorno JA and Davies AJA agreeing at [39], [40]); ISJ v The Queen [2012] VSCA 321; (2012) 38 VR 23 at 37 [48]; Clay (a pseudonym) v The Queen [2014] VSCA 269; (2014) 43 VR 405 at 413-414 [38]-[48]; Pate v The Queen [2015] VSCA 110; (2015) 250 A Crim R 425 at 437-438 [62]-[65] per Weinberg JA (Dixon AJA agreeing at 456 [150]).

[164] To avoid the possibility of identifying the alleged victims of sexual offences, this judgment has been anonymised by the adoption of pseudonyms in place of the names of the complainants.

[165] Churchill (a pseudonym) v The King [2024] VSCA 151 ('Churchill').

[166] Ibid [54] (Beach, Taylor and Orr JJA).

[168] IMM v The Queen [2016] HCA 14; (2016) 257 CLR 300, 313 [44] (French CJ, Kiefel, Bell and Keane JJ); [2016] HCA 14.

[169] R v Bauer (2018) 266 CLR 56; [2018] HCA 40 ('Bauer').

[170] R v Flannery [1969] VicRp 72; [1969] VR 586 ('Flannery').

[171] Bauer [2018] HCA 40; (2018) 266 CLR 56, [89] (the Court); [2018] HCA 40.

[172] See, for example, Flora v The Queen (2013) 233 A Crim R 320, 333-4 [70]-[71] (Redlich, Weinberg and Coghlan JJA); [2013] VSCA 192 ('Flora'); Azarian v Western Australia [2007] WASCA 249; (2007) 178 A Crim R 19, 32 [50] (Pullin JA); [2007] WASCA 249.

[173] Flannery [1969] VicRp 72; [1969] VR 586, 590-1 (Winneke CJ, Starke and Pape JJ); R v Munro [2005] VSCA 260, [37], [49] (Nettle JA, Eames JA agreeing at [1], Ashley JA agreeing at [61]); R v Rogers [2008] VSCA 125, [18] (Nettle JA) ('Rogers'); Seccull v The King [2022] VSCA 219; (2022) 69 VR 454, 480 [91] (Niall JA and Kidd AJA); [2022] VSCA 219 ('Seccull'); R v Sailor [1993] QCA 23; [1994] 2 Qd R 342, 344-5 (McPherson JA, Byrne J agreeing at 349); R v Gulliford [2004] NSWCCA 338; (2004) 148 A Crim R 558, 588 [151] (Wood CJ, Spigelman CJ agreeing at 563 [1], Howie J agreeing at 596 [192]; [2004] NSWCCA 338; R v Dhir (2019) 133 SASR 452, 463-66 [61]-[69] (Kourakis CJ, Stanley J agreeing at 469 [85], Doyle J agreeing at 469 [86]); [2019] SASCFC 55.

[174] (1999) 196 CLR 297; [1999] HCA 37 ('Papakosmas').

[175] Papakosmas (1999) 196 CLR 297, 305-6 [20] (Gleeson CJ and Hayne J); [1999] HCA 37; R v Lillyman [1896] UKLawRpKQB 126; [1896] 2 QB 167, 170 (Hawkins J); R v Osborne [1905] UKLawRpKQB 45; [1905] 1 KB 551, 561 (Ridley J).

[176] Papakosmas (1999) 196 CLR 297, 309-10 [33]-[53] (Gleeson CJ and Hayne J), 312-13 [45]-[47] (Gaudron and Kirby JJ), 324 [89] (McHugh J); [1999] HCA 37.

[177] Evidence Act, s 66(2).

[178] Evidence Act, s 66; Papakosmas (1999) 196 CLR 297, 309-10 [33]-[53] (Gleeson CJ and Hayne J), 312-13 [45]-[47] (Gaudron and Kirby JJ), 324 [89] (McHugh J); [1999] HCA 37.

[179] Papakosmas (1999) 196 CLR 297, 305 [20] (Gleeson CJ and Hayne J); [1999] HCA 37.

[183] Ibid 300 [5] (Gleeson CJ and Hayne J).

[184] Flannery [1969] VicRp 72; [1969] VR 586, 591 (Winneke CJ, Pape and Starke JJ); Paull v The Queen [2021] VSCA 339, [40] (Priest, Kaye and Niall JJA) ('Paull'); Seccull [2022] VSCA 219; (2022) 69 VR 454, 464 [32] (Priest AP), 480 [91] (Niall JA and Kidd AJA); [2022] VSCA 219.

[185] Evidence Act, s 164.

[186] Seccull [2022] VSCA 219; (2022) 69 VR 454, 463-7 [30]-[39] (Priest AP), 480 [90]-[91] (Niall JA and Kidd AJA); [2022] VSCA 219.

[187] Flannery [1969] VicRp 72; [1969] VR 586, 591.

[188] See BQ v The Queen [2024] HCA 29; (2024) 98 ALJR 1008, 1015 [34] (the Court); [2024] HCA 29.

[189] See R v Redpath (1962) 46 Cr App Rep 319 ('Redpath').

[190] See, for example, Flannery [1969] VicRp 72; [1969] VR 586, 589.

[191] Evidence Act, s 164.

[192] See Festa v The Queen (2001) 208 CLR 593, 597 [5] (Gleeson CJ); [2001] HCA 72 ('Festa').

[193] Evidence Act, ss 55, 56, 60, 136.

[194] [2021] VSCA 339, [42] (Priest, Kaye and Niall JJA).

[195] [2008] VSCA 125, [18]-[20] (citations omitted).

[196] See SB v The Queen [2020] NSWCCA 207, in which the New South Wales Court of Criminal Appeal concluded that the trial judge was wrong to refer to complaint evidence as 'independent': at [113] (Rothman J, Hoeben CJ at CL agreeing at [1], Hamill J agreeing at [178]-[179]).

[197] Papakosmas (1999) 196 CLR 297, 305 [20] (Gleeson CJ and Hayne J); [1999] HCA 37.

[198] (1962) 46 Cr App Rep 319, 322 (Parker LCJ, Winn and Brabin JJ).

[200] Papakosmas (1999) 196 CLR 297, 300 [5] (Gleeson CJ and Hayne J); [1999] HCA 37; Flora (2013) 233 A Crim R 320, 323 [9]-[10] (Redlich, Weinberg and Coghlan JJA); [2013] VSCA 192.

[201] Flannery [1969] VicRp 72; [1969] VR 586, 591 (Winneke CJ, Pape and Starke JJ).

[202] Flora (2013) 233 A Crim R 320, 325 [79] (Redlich, Weinberg and Coghlan JJA); [2013] VSCA 192; see also Festa (2001) 208 CLR 593, 597 [5] (Gleeson CJ); [2001] HCA 72.

[203] Flora (2013) 233 A Crim R 320, 325 [79] (Redlich, Weinberg and Coghlan JJA); [2013] VSCA 192.

[204] Churchill [2024] VSCA 151, [48] (Beach, Taylor and Orr JJA).

[205] [2008] VSCA 125, [11] (Buchanan JA), [20] (Nettle JA), [22] (Redlich JA).

[206] Bauer [2018] HCA 40; (2018) 266 CLR 56, 91-2 [69]; [2018] HCA 40; Rogers [2008] VSCA 125, [11] (Buchanan JA).

[207] (1977) 17 SASR 460, 463.

[208] Flora (2013) 233 A Crim R 320, 329-30 [53] (Redlich, Weinberg and Coghlan JJA); [2013] VSCA 192.

[210] See Flora (2013) 233 A Crim R 320, 330-8 [57]-[90] (Redlich, Weinberg and Coghlan JJA); [2013] VSCA 192.

[211] JDA, ss 15, 16.

[212] See Seccull [2022] VSCA 219; (2022) 69 VR 454, 482 [100] (Niall JA and Kidd AJA); [2022] VSCA 219.

[213] Contrary to Crimes Act 1958, s 63A.

[216] Contrary to Crimes Act 1958, s 50(1)(b), as amended by the Crimes (Sexual Offences) Act 1980.

[220] Contrary to Crimes Act 1958, s 50(1)(b), as amended by the Crimes (Sexual Offences) Act 1980.

[221] DPP v Tsalkos (County Court of Victoria, Judge Carlin, 7 March 2023), [14]-[24] ('Reasons').

[231] R v Wilde (Supreme Court of Victoria, Crockett, King and Tadgell JJ, 13 October 1987); DPP v Margetts (Supreme Court of Victoria, Murray, Fullagar and Hampel JJ, 4 September 1987); R v Steels (1987) 24 A Crim R 201; R v Poacher (Supreme Court of Victoria, Murray, McGarvie and Nicholson JJ, 10 March 1987); R v Murray (Supreme Court of Victoria, Young CJ, Murray and Ormiston JJ, 1 December 1987); R v Brown (Supreme Court of Victoria, Crockett, King and Tadgell JJ, 7 October 1987).

[239] Relying on Interpretation of Legislation Act 1984, s 51; R v Sessions [1998] 2 VR 304; R v Langdon (2004) 11 VR 18; [2004] VSCA 205.

[242] (1998) 194 CLR 610; [1998] HCA 57 ('Pearce').

[243] [1998] 2 VR 304.

[244] (2021) 64 VR 450, 457-60 [34]-[45] (Kyrou, Emerton and Sifris JJA); [2021] VSCA 235.

[245] Pearce [1998] HCA 57; (1998) 194 CLR 610, 623 [40] (McHugh, Hayne and Callinan JJ); [1998] HCA 57.

[246] For example, Clarkson v The Queen [2011] VSCA 157; (2011) 32 VR 361, 384 [89] (Maxwell ACJ, Nettle, Neave, Redlich and Harper JJA); [2011] VSCA 157.

[247] The offence was an offence at common law but s 45(1) of Crimes Act 1958 provided for the maximum penalty.

[248] Crimes Act 1958, s 45(3).

[249] Stalio v The Queen [2012] VSCA 120; (2012) 46 VR 426, 440-1 [52]-[54] (Neave, Osborn JJA and King AJA); [2012] VSCA 120.

[251] [2019] VSCA 75, [60] (Ferguson CJ, Kaye and Weinberg JJA).

[252] Part 2A, especially s 6D.