Warren (a Pseudonym) v The Queen [2017] VSCA 35

• There must have been a number of other children present in the house at Broadmeadows when those offences were said to have been committed.

• According to the applicant, the Bedford van, which was said to have been the vehicle in which the conduct giving rise to charge 4 had taken place, had been involved in an accident and was off the road for the entire time during which the family lived in Broadmeadows. KP denied that suggestion when it was put to her. She said the van was only off the road, at most, for two weeks. The problem was that the jury asked a question, during the course of their deliberations, as to whether they could convict the applicant of charge 4, if they found that a different vehicle, and not the Bedford van, had been involved. This indicated that the jury may well have accepted the applicant's evidence that the Bedford van was off the road at all material times.

• It defied credulity that NP would have stayed overnight with the applicant in his caravan after she had repeatedly been assaulted by him both in the Broadmeadows house and in the Bedford van.

• It further defied credulity that NP could have pretended to be asleep throughout three separate acts of penile intercourse in the one night, in the caravan. It also defied credulity that the applicant could, physically, have engaged in three such separate acts of penile intercourse within the space of one hour.

• AW's evidence that NP had told her that KP had 'made me do it' (ie make a false allegation to police) was itself credible, and should, on its own, have caused the jury to have a reasonable doubt about NP's credibility.

• It further defied credulity that the applicant would be permitted to resume living with KP and her children in Wodonga if KP truly believed that he had assaulted NP in the caravan.

• It was not credible that, years after the alleged offending, NP, as a young adult, would choose to stay overnight with the applicant if he had previously raped and otherwise molested her. Nor was it credible that she would have asked him to help her pay her bills.

The Crown's contentions re ground one- unsafe or unsatisfactory

42 The Crown submitted that, although there may have been some weaknesses in NP's account, it had been open to the jury to accept her as a generally truthful and reliable witness. Certainly, it could not be said that the jury 'must' have had a reasonable doubt about the applicant's guilt.

43 More specifically, the Crown submitted that it was by no means uncommon, in cases involving sexual offending against children, for convictions to be sustained even where there was no supporting evidence, still less corroboration, of the complainant's account.

44 The Crown submitted that the question as to why the police had not charged the applicant after NP had complained in 1990 about the caravan incidents need not be answered. To do so would involve nothing more than idle speculation, and would, in any event, be irrelevant.

45 With regard to KP, the Crown noted that her evidence was that she could remember at least one occasion when the applicant had been home alone at the Broadmeadows house with NP. KP had added that there could have been other such occasions.

46 With regard to various other points made in the applicant's written case, the Crown submitted that it was important to remember that this trial was conducted under the provisions of the Jury Directions Act 2015. Accordingly, Pt 5 Div 2 of that Act governed directions on delay in making a complaint, and also on matters of credibility.

47 Section 52(4) of the Jury Directions Act provides that in giving a direction in relation to delay on the part of a complainant in making a complaint in relation to sexual offending:

...the trial judge must inform the jury that experience shows that -

(a) people may react differently to sexual offences and there is no typical, proper or normal response to a sexual offence; and

(b) some people may complain immediately to the first person they see, while others may not complain for some time and others may never make a complaint; and

(c) delay in making a complaint in respect of a sexual offence is a common occurrence.

48 The Crown submitted that the directions given to the jury regarding matters of this kind were unimpeachable and, moreover, had not been the subject of any exception.

49 The Crown next submitted that the jury question concerning the Bedford van, and whether it was still possible to convict the applicant of the indecent assault charge in relation to NP's description of what occurred within that van, did not cast any doubt upon the safety of the verdict.

50 With regard to what were said to be unusual or improbable aspects of NP's behaviour at various times, the Crown argued that it had to be borne in mind that at the time the offending took place she had only been 10 or 11 years old.

51 As for the submission that NP's account of the applicant having had penile intercourse with her three times in the space of about an hour was incredible, the Crown simply took issue with that contention.

52 The Crown next submitted that whatever weight was to be accorded to the evidence given by AW regarding her conversation with NP was quintessentially a matter for the jury. Plainly, the jury had the opportunity to see and hear AW first-hand, and to assess the credibility of her evidence accordingly. It was submitted that this Court, working solely from transcript, should not second-guess the jury in such circumstances.

53 Finally, the Crown submitted that there was nothing at all unusual about a child victim of sexual offending having continued to have contact with the offender thereafter, particularly given the family setting. Likewise, there was nothing remarkable about the fact that, years later, NP had borrowed money from the applicant.

54 All in all, when the evidence was considered as a whole, there was nothing to suggest that this jury were bound to acquit.

55 NP was, of course, cross-examined at considerable length. We have studied her evidence closely, both in-chief and under cross-examination. A number of matters were put to her, in accordance with the applicant's instructions, and in compliance with the rule in Browne v Dunn.[12] Some of those matters might be taken to have weakened her credibility. On our reading, however, NP withstood cross-examination well, and certainly did not resile from any of her allegations. Moreover, although there were several inconsistences in her account, these were to be expected, and none of them were of any great substance.[13]

56 Fundamentally, this was classically a case of oath against oath. Each and every facet of NP's evidence was analysed, and the jury were addressed, at length, as to why she should not be accepted as a credible and reliable witness.

57 The judge's charge was, if we may say so, impeccable. There is, of course, an issue relating to the direction given as to 'forensic disadvantage', to which we shall shortly return. However, at least as regards grounds one and two, it is relevant to note that the directions given were balanced, clear and helpful.

58 We could go through, in elaborate detail, each and every one of the points made on behalf of the applicant in support of ground one. It is sufficient for present purposes simply to say that we consider the Crown's responses to those points to be compelling. More particularly, nothing whatever can be drawn from the fact that, in 1990, the police chose not to charge the applicant with any offending arising out of the caravan incident. It is by no means clear what NP told her mother about what took place there that night, still less what she told the Wodonga police at the time.

59 In addition, as the Crown submitted, the state of the law regarding sexual offending against children was somewhat different in 1990 than it is today. It would not have been particularly unusual at that time for the police to decline to charge someone with offences of that kind in the absence of any supporting evidence, or corroboration. It is nothing more than sheer conjecture to infer from the failure to bring charges in 1990 that the police formed the view that NP would not be a credible or reliable witness. Even if such an inference could be drawn, it is difficult to see how it could possibly be said to render the convictions in this case unsafe or unsatisfactory.

60 The various criticisms levelled by the applicant at NP's conduct, both at the time of the alleged offending and thereafter, must be considered in light of the fact that she was a young child when these alleged incidents took place. She would undoubtedly have been frightened, and reluctant to come forward.

61 Thereafter, there is nothing about her conduct as an adult that should give any great cause for concern as to whether the jury, acting properly, could accept her as a witness of truth.

62 In short, we are not persuaded that the evidence taken as a whole meant that the jury 'must' have rejected NP as a credible witness, and 'must' therefore have acquitted. Having considered the whole of the evidence for ourselves, we do not entertain a reasonable doubt as to the applicant's guilt. Proposed ground one does not enjoy sufficient prospects to warrant the grant of leave to appeal.

The applicant's contentions re ground two - inconsistent verdicts

63 In his written case, the applicant first noted, in support of this ground, that NP's evidence was that he had raped her on two separate occasions, a week apart, in Broadmeadows. The Crown had accepted that its case turned entirely on NP's credibility. If the jury did not accept her evidence on the rape charge, they should also have rejected her evidence on all other charges.

The Crown's contentions re ground two - inconsistent verdicts

64 The Crown submitted that it was trite law that a jury would be entitled to accept some parts of a complainant's evidence, and not others. Of course, in this case the jury were given the standard 'separate consideration' direction by the judge. Merely because, for whatever reason, they were not satisfied beyond reasonable doubt as regards every element of charge 3, did not mean that they must have concluded that NP was not a credible witness, whose testimony they were obliged to reject.[14]

65 In its written case, the Crown put forward several hypotheses by way of explanation for the convictions on charges 1 and 2, and the acquittal on charge 3. It must be said that some of these hypotheses seem to us to be somewhat improbable. They included the 'unusual' nature of the charge of rape, said to contrast starkly with the allegations of incest brought under charges 7, 8 and 9. The Crown argued that the juxtaposition of these charges may itself have resulted in confusion, leading the jury somehow to decide to give the applicant the benefit of the doubt on charge 3. As will be seen, we reject that submission.

66 The Crown also referred to the charge of rape having necessitated a direction not merely as to the element of absence of consent (which did not apply to the charges of incest) but also having required the extraordinarily complex direction as to the mens rea of rape that was delivered. The Crown posited that the jury may not have been satisfied to the requisite degree that the applicant was sufficiently aware of the possibility that NP might not be consenting, and acquitted him of rape for that reason. Once again, that particular hypothesis seems unlikely, given the particular facts of this case.

Analysis of proposed ground two - inconsistent verdicts

67 The principles that govern inconsistency of verdicts as a ground of appeal are clear.

68 In MacKenzie v The Queen,[15] Gaudron, Gummow and Kirby JJ said in a joint judgment:

1. A distinction must be drawn between cases of legal or technical inconsistency and cases of suggested factual inconsistency. The former will generally be easier to resolve. On the face of the court's record there will be two verdicts which, in law, cannot stand together. Examples include the case where the accused was convicted both of an attempt to commit an offence and the completed offence or of being, in respect of the same property and occasion, both the thief and the receiver. There are other like cases. Where technical or legal inconsistency is established, it must be inferred that the jury misunderstood the judge's directions on the law; compromised disputes amongst themselves; or otherwise fell into an unidentifiable error. The impugned verdict or verdicts must be set aside and appropriate consequential orders made.

2. Suggestions of factual inconsistency have arisen both as between different verdicts affecting the same accused and different verdicts affecting co-accused or persons tried separately in relation to connected events. The last-mentioned problem is an inevitable risk of the trial system where accused offenders are tried separately...

3. Where, as is ordinarily the case, the inconsistency arises in the jury verdicts upon different counts of the originating process in a criminal trial, the test is one of logic and reasonableness. A judgment of Devlin J in R v Stone is often cited as expressing the test:

'He must satisfy the court that the two verdicts cannot stand together, meaning thereby that no reasonable jury who had applied their mind properly to the facts in the case could have arrived at the conclusion, and once one assumes that they are an unreasonable jury, or they could not have reasonably come to the conclusion, then the convictions cannot stand.'

4. Nevertheless, the respect for the function which the law assigns to juries (and the general satisfaction with their performance) have led courts to express repeatedly, in the context both of criminal and civil trials, reluctance to accept a submission that verdicts are inconsistent in the relevant sense. Thus, if there is a proper way by which the appellate court may reconcile the verdicts, allowing it to conclude that the jury performed their functions as required, that conclusion will generally be accepted. If there is some evidence to support the verdict said to be inconsistent, it is not the role of the appellate court, upon this ground, to substitute its opinion of the facts for one which was open to the jury. In a criminal appeal, the view may be taken that the jury simply followed the judge's instruction to consider separately the case presented by the prosecution in respect of each count and to apply to each count the requirement that all of the ingredients must be proved beyond reasonable doubt. Alternatively, the appellate court may conclude that the jury took a 'merciful' view of the facts upon one count: a function which has always been open to, and often exercised by, juries... In R v Kirkman, in the Supreme Court of South Australia, King CJ (with the concurrence of Olsson and O'Loughlin) observed:

'[J]uries cannot always be expected to act in accordance with strictly logical considerations and in accordance with the strict principles of the law which are explained to them, and courts, I think, must be very cautious about setting aside verdicts which are adequately supported by the evidence simply because a judge might find it difficult to reconcile them with the verdicts which had been reached by the jury with respect to other charges. Sometimes juries apply in favour of an accused what might be described as their innate sense of fairness and justice in place of the strict principles of law. Sometimes it appears to a jury that although a number of counts have been alleged against an accused person, and have been technically proved, justice is sufficiently met by convicting him of less than the full number. This may not be logically justifiable in the eyes of a judge, but I think it would be idle to close our eyes to the fact that it is part and parcel of the system of administration of justice by juries. Appellate courts therefore should not be too ready to jump to the conclusion that because a verdict of guilty cannot be reconciled as a matter of strict logic with a verdict of not guilty with respect to another count, the jury acted unreasonably in arriving at the verdict of guilty.'

...

5. Nevertheless, a residue of cases will remain where the different verdicts returned by the jury represent, on the public record, an affront to logic and commonsense which is unacceptable and strongly suggests a compromise of the performance of the jury's duty. More commonly, it may suggest confusion in the minds of the jury or a misunderstanding of their function, uncertainty about the legal differentiation between the offences or lack of clarity in the judicial instruction on the applicable law. It is only where the inconsistency rises to the point that the appellate court considers that intervention is necessarily required to prevent a possible injustice that the relevant conviction will be set aside. It is impossible to state hard and fast rules. 'It all depends upon the facts of the case.'

6. The obligation to establish inconsistency of verdicts rests upon the person making the submission. But if, because of inconsistency between verdicts, the appellate court is persuaded that a verdict cannot stand, it must make consequential orders. In the case of a criminal trial, where the verdict has been followed by conviction and sentence, these must be set aside. Where the inconsistency is found between verdicts of acquittal and a verdict of guilty, the appellate court (statute apart) may not disturb the acquittal. It may be appropriate to enter a verdict of acquittal on the subject count(s) on the footing that this merely carries forward the logic of the other acquittal verdict(s). But once again, the relief which is appropriate depends upon the facts of the particular case. [16]

69 In Avery v The Queen,[17] Weinberg JA referred to the High Court's subsequent decision in MFA v The Queen,[18] where the principles laid down in MacKenzie were affirmed.

70 The appellant in MFA had been found guilty of two counts of sexual abuse against a youth, but was acquitted of a further seven counts. The sexual acts to which the nine counts related were alleged to have occurred on four separate occasions. The counts upon which the appellant was convicted related to one particular occasion. The appellant argued that the verdicts of guilty were unreasonable or could not be supported having regard to the evidence, and could not be reconciled with the verdicts of not guilty on the other counts. It was submitted that the acquittals must have involved the non-acceptance by the jury of the complainant's evidence. That in turn must have impacted upon the complainant's evidence with respect to the guilty counts.

71 In dismissing the appeal in MFA, Gleeson CJ, Hayne and Callinan JJ rejected the notion that an earlier decision of the Court in Jones v The Queen,[19] had endorsed such an approach. Their Honours said that Jones had not stood for the proposition that:

where multiple offences are alleged involving the one complainant, then verdicts of not guilty on some counts necessarily reflect a view that the complainant was untruthful or unreliable, and that an appellate court should consider the reasonableness of guilty verdicts on the basis that the complainant is a person of damaged credibility.[20]

72 Their Honours specifically characterised that view as 'erroneous', adding that it:

overlooks the principles stated in MacKenzie, which were not qualified in Jones, and the considerations mentioned ... [earlier in MFA]. Jones is not to be understood as establishing a set of legal propositions, separate or different from the test formulated in M, which must be applied in deciding whether a conviction on one or more counts of sexual offences, when the accused was acquitted on other counts, is unreasonable, or cannot be supported, having regard to the evidence.[21]

73 In their joint judgment in MFA, McHugh, Gummow and Kirby JJ also rejected that particular view of Jones. Their Honours added that '[i]t always remains for a court of criminal appeal whose jurisdiction is invoked to examine any differentiation in the verdicts to see if it can be justified'.

74 As noted in Avery, the principles laid down in both MacKenzie and MFA have been applied by this Court on many occasions. The authorities all make it plain that an applicant who relies upon inconsistency of verdicts, in a factual sense, as a ground of appeal carries a heavy onus. What must be shown, according to MacKenzie is no less than 'an affront to logic and common sense' which is unacceptable, and strongly suggests a compromise of the performance of the jury's duty. If there is any possible explanation for the different verdicts arrived at which is reasonably plausible, the ground will fail.

75 The particular act of sexual intercourse that gave rise to charge 3, the charge of rape, was said to have taken place at about the same time as the two acts of indecent assault that formed the basis of charges 1 and 2. Of course, neither the first nor second of those charges involved allegations of penile penetration. By reason of the state of the law at the time these acts took place, they were charged as indecent assaults, and not as they now would be, rape.

76 Charge 3, of which the applicant was acquitted, was a charge of rape. The charge, as drafted, specifically alleged that the applicant had introduced his penis into NP's vagina.

77 As previously indicated, charge 4 was a charge of indecent assault by digital penetration (the Bedford van incident). Charges 5, 6, 7, 8 and 9 all concerned sexual acts of various kinds said to have been committed in the applicant's caravan. These included penile penetration (charged as incest).

78 The question is what sensible conclusions can be drawn from the jury's acquittal on the charge of rape given, in particular, the guilty verdicts on charges 1 and 2?

79 Of course, as the Crown submitted, there are various possible explanations for these verdicts. Although NP said that penile intercourse took place on that first occasion at the Broadmeadows house she acknowledged, under cross-examination, that she did not see a doctor after that particular incident. She was also asked in cross-examination whether, as a result of having supposedly been raped, she had suffered any bleeding. She said she could not remember.

80 It is important to note, so far as this proposed ground of appeal is concerned, that in his closing address, counsel who appeared for the applicant at trial invited the jury to reject NP as a witness of truth. He did so, in part at least, because of the evidence that she gave regarding the alleged rape itself. He had this to say:

You'll remember that in my learned friend's opening address he said something about the prosecution having to prove this case beyond reasonable doubt. Didn't hear anything about that in his closing address but that is the most important phrase for you to keep in your mind when you are considering the evidence in this case. And what is the evidence? The evidence that goes to these allegations comes solely from the mouth of [NP]. And what does it consist of? Well in relation to the first alleged set of charges in Broadmeadows, according to her comes out of the blue there's no lead up he drags her into the bedroom, fondles her vagina, licks her vagina, has full sexual intercourse when she's at a shockingly young age on the master bedroom bed on the sheets - no evidence of any pain, no evidence of any bleeding. Is that credible? That account is that credible [sic] especially when how does it come out in evidence-in-chief while my learned friend is leading evidence from her. Question: 'What did he do next after licking your vagina?' Answer: 'He told me to put my clothes back on and go outside and don't mention it to anybody'. So initially nothing about sexual intercourse at all and then my learned friend asked, 'Did you see his penis at all?' 'I have but not in that incident'. 'I mean in this incident did you feel his penis at all?' - clearly trying to lead her to say something about that you might think. 'What was he doing with his penis?' 'Oh on your leg just rubbing it back and forth on my leg'. And then finally we get to oh he actually inserted his penis into my vagina. You might think the most important aspect of her first allegations has to be, you might think squeezed out of her. And what does my learned friend say in his address that, 'It is not easy to remember the small details but you can remember the shocking details'.[22]

81 Trial counsel, in these submissions, was plainly inviting the jury to consider NP's evidence regarding the alleged rape as itself inherently improbable. He was doing so on the basis of criticisms that were unique to this particular allegation, separate from whatever criticisms could be levelled at her evidence with regard to the other alleged offences. If trial counsel's argument regarding charge 3 had found favour with the jury, they might well have thought that NP's evidence regarding the rape was dubious, without otherwise rejecting her account.

82 According to NP, the act of penile intercourse took place in her mother's bed, and without the use of a condom. Moreover, she could not recall whether the applicant had ejaculated, and was extremely vague about other details of the alleged rape. Her inability to answer questions regarding the details of the rape, might have given the jury pause for thought, at least as regards charge 3.

83 The jury might also have been troubled, and perhaps confused, by NP's evidence that the applicant raped her a second time a week or so after the first incident in Broadmeadows. For reasons that they may not have understood, that second act of rape, as described by NP, had not been the subject of any charge in the indictment.

84 The true answer to proposed ground two seems to us to lie in trial counsel's closing address and, in particular, the passage from that address which we have set out above. As previously stated, once there is a plausible explanation for what might otherwise seem to be a factual inconsistency, this ground ceases to have any cogency. Accordingly, we would refuse leave on proposed ground two.

The applicant's submissions regarding ground three - forensic disadvantage

85 The applicant, in his written case, noted that the trial judge had instructed the jury that he had suffered a significant disadvantage by reason of the following matters:

(a) The Applicant had no opportunity to test the Applicant's versions of events to the Police and to [the doctor] in 1990;

(b) The delay in charging the Applicant meant that the Applicant was unable to obtain evidence about the Bedford Van being involved in an accident thus being off the road and unable to convey the complainant to [her mother's place of work];

(c) The Applicant was unable by reason of the delay to raise possible alibis because he no longer had his log books from 1988-90 available to him;

(d) The Applicant was no longer able to call evidence regarding the leases of properties in Melbourne to disprove the complainant's version of events;

(e) The Applicant was unable to call evidence from ... his neighbour at the Wangaratta caravan park, who was involved with the complainant on the night she came to stay with the Applicant;

(f) The Applicant was reduced to having to make bare denials about the allegations with the exception of being able to call his mother about the complainant explaining that her mother forced her to make the complaint in March 1990.

86 The applicant submitted that, notwithstanding the judge having drawn the jury's attention to these matters, the list had been incomplete.

87 He submitted that he had also suffered a significant forensic disadvantage, by reason of delay, in that no police officer was now available to explain why charges had not been laid in 1990. Moreover, there was no medical evidence available regarding NP's physical condition at the time of the alleged offending. In addition, the fact that the 1990 complaint to the Wodonga Police had been made via a neighbour, who was now no longer available to give evidence, meant that the circumstances surrounding the making of that complaint could no longer be explored. Finally, it was said that the sheer effluxion of time meant that the applicant could not adequately rebut the suggestion that he had had a sexual interest in NP. That suggestion came from NP alone. Had there not been the lengthy delay that there was, it might have been possible to call evidence in rebuttal.

The Crown's submissions regarding proposed ground three - forensic disadvantage

88 The Crown submitted that the trial judge had given a conventional 'forensic disadvantage' direction, which was entirely adequate. That direction was in the following terms:

As I have just said the offences in this trial are alleged to have occurred on various occasions between 1 April 1988 and 14 March 1990. [NP] first complained to her mother about the alleged offending and it would appear that as a result of a neighbour, if you accept that evidence going to the police or contacting the police after the complainant's mother spoke to her, it appears that she then went to the police on 15 March 1990.

However, it appears that some statements were taken at that time and there was obviously a medical examination conducted at that time and the matter did not proceed until [NP] renewed her complaint in 2013. I must now inform you of a significant consequence of the delay in this matter being pursued. This is the impact this delay has had on [the applicant's] ability to defend himself against these charges. In assessing the evidence in this case, you must have regard to the following significant considerations: Because of this delay [the applicant] has lost the means of testing [NP's] allegations by having regard to her 1990 police statement and that of [KP], as well as having regard to the statement of [the applicant's neighbour at the caravan park] and any report or notes from [the doctor] who examined the complainant at that time.

Further, he has lost the opportunity to inspect any police notes made at that time including any notes of the allegations that the police put to him or what [the applicant] told them at that time. All of these documents would have been available had there been no delay in prosecution. Also [the applicant] has lost the opportunity through documents such as the panel beater's report perhaps, documents from his former employer ... to perhaps challenge evidence in respect of the Bedford van and when it was available for use and when it was off the road. He has lost the opportunity to obtain log books from his previous employer ... or other documents to perhaps challenge [NP's] evidence, that on a particular occasion she travelled with him to collect her mother at the ... service station. So effectively to be a position to perhaps raise an alibi in relation to that occasion of alleged offending. He no longer has a chance to gather documentation such as lease or rental documents which might challenge the evidence of [NP] and [KP] as to when they were living at particular houses. And of course the Bedford van is no longer around. He has also lost the chance to have [the applicant's neighbour at the caravan park] give evidence as to any observations he might have made in respect of the complainant on the occasion that she stayed at the caravan. He has also lost the chance to perhaps adduce evidence from [the doctor] or the investigating police officers who were involved in the case in 1990. He has been left largely in a position to give evidence of bare denials in respect of the allegations although his mother has given evidence in this matter but largely he has been left in a position to give bare denials.

I instruct you as a direction of law that you must take these disadvantages into consideration when determining whether the prosecution has proved [the applicant's] guilt beyond reasonable doubt.

89 The Crown submitted that it was important to note that trial counsel took no exception to her Honour's charge regarding the issue of forensic disadvantage. It should be noted, however, that the applicant submitted before this Court that this was of no consequence because trial counsel had, at an earlier stage in the trial, requested a direction that was more comprehensive than the one that was ultimately given. Such a direction would have embraced the various matters that are now said by their absence, to have rendered the charge irredeemably inadequate.

90 As regards the specific matters that were said to have been omitted from the charge, the Crown submitted:

As to para [31] of the Applicant's Written Case, the point would not have been lost on the jury (namely that a complaint had been made in 1990 and no charges were laid by police). However, the Applicant has not suffered a miscarriage of justice by the failure to call investigating police to provide an explanation - any explanation may not have assisted the Applicant as it is notorious that historical sexual offences were often not prosecuted due to a lack of corroborative evidence (as was the case here).

As to para [32] of the Applicant's Written Case, it must be noted that this specific topic formed part of the direction administered to the jury. Further, it must be noted that many prosecution cases proceed without supporting medical evidence - such evidence is often entirely neutral.

As to para [33] of the Applicant's Written Case, it must be noted that this specific topic formed part of the direction administered to the jury. As a complaint was indeed made to investigating police in 1990 (and accepted by the defence as so), it is difficult to understand how the absence of the neighbour added anything given that the statements/notes of the police investigation were also missing.

As to para [34] of the Applicant's Written Case, this point is misconceived under cover of this ground - either the evidence is admissible as tendency evidence (evidence of sexual interest in complainant) or it is not. In short, the historical nature of the allegations does not deprive the evidence of its probative value. The evidence relied on by the prosecution was confined to 3 main occasions which incorporated either a specific charge or involved lead-up conduct - see Charge, at 311-312. In any event, the point sought to be agitated was specifically addressed by the judge in her directions to the jury - see Charge, at 312.

If, as is now contended, the forensic disadvantages were such as to deprive the Applicant of a fair trial, an application should have been made to the trial judge to stay the trial on that basis - and, if rejected, a ground of appeal drawn accordingly. The staying of any criminal trial is a monumental step and should only occur in the most exceptional case - here there were other remedies available to alleviate any unfairness suffered by the Applicant.

In short, no substantial miscarriage of justice has been occasioned - a detailed direction was administered which identified each of the respective deficiencies caused by the delay. Furthermore, the closing address by defence counsel clearly exposed the deficiencies for proper consideration by the jury.

Analysis re proposed ground three - forensic disadvantage

91 The judge's direction regarding forensic disadvantage was, in our opinion, perfectly satisfactory. As the Crown correctly submitted, a number of the matters that are now said to have rendered the direction on forensic disadvantage insufficient were, in fact, adequately covered. Others were of dubious merit, at best.[23]

92 Leave to appeal on proposed ground three should be refused.

93 For the reasons set out above, none of the proposed grounds of appeal has sufficient prospects of success to warrant the grant of leave.

[1] To ensure that there is no possibility of identification, this judgment has been anonymised by the adoption of a pseudonym in place of the name of the applicant.

[2] [1994] HCA 63; (1994) 181 CLR 487.

[5] [2007] HCA 30; (2007) 230 CLR 559.

[6] Ibid 596-7 [113] (emphasis in original) (citations omitted).

[7] [2011] HCA 13; (2011) 243 CLR 400.

[8] [2016] HCA 35; (2016) 334 ALR 234.

[9] Ibid 246 [65]-[66] (citations omitted).

[10] [2008] VSCA 75; (2008) 18 VR 644.

[11] Ibid 653-4 [38] (citations omitted).

[13] The judge's charge dealt with the question of prior inconsistent statements and a submission that NP had given conflicting accounts as to where the applicant had put his penis in her mouth.

[14] See generally R v Ware [1996] 1 VR 647, 649-650. Self-evidently, a jury's verdict of acquittal on a particular charge does not amount to any positive finding by the jury that the events of which the complainant gave evidence did not occur.

[15] (1996) 190 CLR 346 ('MacKenzie').

[17] [2014] VSCA 86.

[19] [1997] HCA 12; (1997) 191 CLR 439.

[23] We refer in that regard to the suggestion that the judge should have directed the jury that the failure of the police to charge the applicant in 1990 had some particular significance so far as the complainant's credibility at trial was concerned.