1. The complainant gave evidence that, on the day of the incident, her sister, JA, sent her a message from work, asking her to travel by public transport to Dandenong, so that they could go out to dinner together. Later, in the afternoon, the complainant left the house and messaged JA that she was on her way. JA responded that the complainant was too late, and that she should return home. When the complainant did so, she discovered that she had locked herself out of the house. She was concerned not to make her sister angry. She recalled that she was able to contact the applicant on Facebook, and, accordingly, she messaged him, requesting his assistance to get into the house. The applicant responded, stating that he would be with her in 20 minutes, and he told her to wait behind the house.
2. The complainant said that the applicant arrived at the premises about 20 minutes later, at about 4:00 pm. She said that, after his arrival, he opened the door, and then he 'slapped my butt' with his hand (that conduct is the subject of charge 1, sexual assault). The complainant then entered the house. She immediately went to her room, and locked the door. The applicant then called her to come out of her room. She walked into the kitchen and the applicant and they then spoke about what they had each done that day. As they were doing so, the applicant touched the complainant on the top of her back and asked her if she wanted a massage, to which she responded, 'No thank you'. In response, the applicant grabbed her by the shoulders, moved her to the living room, where he put her on the couch, and then pulled her to the floor. She tried to resist him, but he was too strong.
3. The applicant then sat on the complainant's hips and pulled her pants down. She heard him remove his belt. Having done so, he then, without using a condom, penetrated her vagina with his penis (charge 2, rape). As he did so, he undid her bra and squeezed her right breast (charge 3, sexual assault). The applicant then withdrew and ejaculated on her back. The applicant stood up, and told her, 'Don't tell this to [your] sister, you have our secret and this is going to be a secret also'. The applicant then went to the bathroom and had a shower. As he did so, the complainant remained on the floor, in a state of shock. When the applicant came out of the bathroom, the complainant pulled her pants up, ran to the bedroom, locked the door, and sat there, crying.
4. Approximately 45 minutes later, at 5:45 pm, the complainant messaged her aunt, LA, who was living in Dubai, to the effect that the applicant had touched her and raped her. LA responded that she would tell JA, and she tried to telephone her. At about 6:00 pm, JA arrived home and received the message from LA. At that time, JA was speaking on the telephone to the applicant. The complainant, who was still crying, told JA that the applicant had raped her. JA then told the applicant that she would go to the police. The applicant responded that nothing had happened, and he begged her not to go to the police.
5. The complainant attended the police station in company with JA at 6:39 pm and reported the matter. At 7:31 pm, the applicant attended Dandenong Police Station. He told the senior constable to whom he spoke that he had been involved in a consensual sexual relationship with his ex-girlfriend's younger sister, and that when his ex-girlfriend found out, the younger sister said that he had raped her.
6. In view of the proposed ground of appeal, it is relevant to note the nature of the cross-examination of the complainant undertaken by defence counsel at the trial. In particular, in the course of his cross-examination of the complainant, counsel for the applicant put to her a number of detailed propositions based on the evidence which was to be adduced from the applicant.
7. In particular, counsel put to the complainant that, when the applicant arrived at the premises, and as she entered the doorway, the applicant swung his hand towards her to give her a hurry up, and accidentally smacked her on the bottom. The prosecutor objected to that question, and the complainant was not required to respond to it. Counsel then put to the complainant that when the applicant touched her on the bottom, she turned to him and smiled. The complainant denied that proposition. She said that she was in shock and she went straight to her room. Counsel then put to the complainant that when she came out of her room and went to the kitchen, they talked about the complainant's weight and how light she was, and that the applicant lifted her, and she laughed about how easily he could lift her up. The complainant denied both of those propositions. She responded that she agreed that the applicant asked her if she knew how to give a massage, to which she responded, 'No'. Counsel then put to the complainant that the applicant had said to her that he could show her how to give a massage, to which she had responded, 'Yes that would be nice', and that the applicant then commenced massaging her shoulders and she was happy for him to do that. The complainant disagreed with each of those propositions.
8. Counsel then put to the complainant the following propositions, each of which the complainant disagreed with: the applicant never picked the complainant up and carried her across to the couch; the complainant agreed for the applicant to show her a proper massage; the applicant asked her to lie on the ground, and when she did so, he started to massage her back and she was happy for him to do that; as the applicant did so, he asked whether the pressure was all right and she responded, 'Yes, it was very comfortable'; the applicant asked the complainant whether he could use some baby oil; the applicant asked the complainant if she minded removing her top, to which she responded, 'Yes that's fine'; the complainant then removed her T-shirt; as the applicant was massaging her, he asked her if she was okay; the applicant also asked her if he could remove her bra, and, when she agreed, he removed it; when the applicant commenced massaging her lower back, he asked if it was all right for him to remove her pants, to which she responded in the affirmative; the applicant turned the complainant onto her back and massaged her breasts for a short time, and then turned her onto her stomach; the applicant asked her if she minded if he removed his clothes, to which she responded, 'Yes that's fine'; the massaging continued around the genital area and the applicant again asked her if she minded, to which she responded, 'That's fine'; the applicant then massaged her genital area, and she leaned back, moving her bottom towards him, at which point they had consensual sex, after which he ejaculated onto her back.
9. As we have noted, the complainant rejected each of those propositions.
10. The prosecution next called JA. She gave evidence that, on the day of the incident, as she drove home, she was speaking on the telephone to the applicant. Before that, LA had attempted to contact her, and when JA did not respond, LA sent her a message, stating that the applicant had raped the complainant. When JA arrived at the house, she asked the applicant, 'What have you done to my sister?', to which he responded, 'I didn't do anything'. JA then went to the complainant's room. The complainant was then crying. JA gave her a hug. JA then took the complainant to the Narre Warren Police Station to report the matter.
11. The prosecution also called LA to give evidence as to the messages she received from the complainant, stating that the applicant had raped her. Those messages (which were in the Bisaya dialect) were tendered in evidence.
12. Rashel Bickerstaff, a cousin of the complainant and JA, gave evidence that, in March 2019, she received a telephone call that the complainant had complained that she had been raped. Ms Bickerstaff then telephoned the police, and attended at Narre Warren Police Station, where she assisted the complainant to make a complaint. Subsequently, in October 2019, Ms Bickerstaff saw the applicant at a birthday function. The applicant told her that he wanted to tell her his side of the story. Although she did not want to hear it, the applicant told Ms Bickerstaff that the complainant was curious about sex, that he showed her, that he gave her a massage, and it 'went from there'.

1. At the conclusion of the prosecution case, the applicant gave evidence. He commenced by briefly outlining his relationship with JA, and the circumstances in which he first met the complainant. He said that after the complainant's arrival in Melbourne on 9 March 2019, he would see her in the house at Narre Warren on each occasion upon which he visited the premises.
2. The applicant then recounted the events of 23 March 2019. He said that after he received a message on Facebook from the complainant, asking him to assist her because she had locked herself out, he drove to the house in Narre Warren and met the complainant in the backyard. On his arrival, she was nervous, and she went to him and gave him a hug, which was unusual. The applicant then unlocked the house and let her in. As he did so, they were having a humorous conversation with each other. He intended to tap her on the back as she walked in, however, he accidentally touched her on the bottom. In response, the complainant turned and smiled at him, and she then walked into her room.
3. The applicant then went to his own room to fetch his own belongings. When he came out of it, he and the complainant were in the kitchen. They began to talk about his work, and he made a joke about the complainant being late. He asked her if she minded if he picked her up, and she smiled. The applicant then lifted the complainant up, they laughed again, and he put her straight down again. They continued to talk in the kitchen while they were seated. While they were doing so, he asked her if she knew how to do a massage. The complainant responded that she did not know how to do so. He asked her if she would mind if he showed her, whereupon the complainant smiled and turned her back to him. The applicant then commenced to massage her back, around the shoulders. He asked her, 'Is that okay?', to which she responded, 'Yeah that's fine'. As he continued to massage her, she leaned back and he asked her, 'Do you mind if I give you a proper massage?', to which she responded in the affirmative.
4. The applicant then told the complainant to lie on the carpet, which she did. He sat next to her and started to massage her shoulders. He asked her if he was pressing too hard, and she said, 'No, it's feeling good'. The applicant asked the complainant if she would like him to use some oil, which he and JA had used on occasions, and the complainant said, 'Okay'. He asked if he could remove her T-shirt, to which she said, 'Okay'. After the applicant removed her T-shirt, he massaged her shoulders and upper back. He then asked her if he could remove her pants, to which she again responded, 'Yeah that's fine'. Accordingly, the applicant undid the button on her trousers and removed them.
5. The complainant was then in her bra and underwear, and the applicant continued to massage her. He massaged her hips and legs, and asked the complainant if she minded if he removed her bra, to which she again responded, 'Okay'. The applicant removed the complainant's bra, and moved her onto her back. He massaged her a bit on the breast, and then turned her face down on the ground again. He asked her if she wanted him to stop, and she said, 'No'. So he commenced to massage her hips, near the genital area. In response, the complainant was moving as if she was 'in a very comfortable and arousing way'. The applicant asked her, 'Is everything okay if I remove the pants as well?', to which the complainant responded, 'Yeah no problems'. Accordingly, the applicant removed her underpants. He then commenced to massage her near the genital area, and the complainant was moving 'in a very, very comfortable way'. The applicant removed his T-shirt and sat on the complainant's lower legs. He gently pulled her up and she leaned back into him. By then, he had already removed his own trousers. When the complainant moved back into him, he penetrated her vagina with his penis. After a short time, he ejaculated onto her back.
6. The applicant then cleaned the complainant's back, and said to her, 'I'm really sorry, I don't know how this happened but I feel so bad'. He asked her if she wanted a shower, to which she replied in the negative. The applicant had a shower and left. As he did so, he again said, 'I'm so sorry'. After he departed the premises, he telephoned JA, as he was feeling very bad. However, he did not have the courage to tell her what had happened. As he was speaking to JA, she went to the house in Narre Warren. He could hear her speaking to the complainant, after which, JA yelled at him, saying, 'What did you do to my sister?', to which the applicant responded, 'I did nothing'. The complainant then hung up the telephone. When he rang her back, she said that she would go to the police. He tried to explain to her what had happened, but she said to him, 'Just go to the police'.

1. The first part of the cross-examination by the prosecutor concerned the background circumstances of the relationships between the parties. Relevantly, the prosecutor put to the applicant, among other matters, the following propositions, to which the applicant made the following responses:
   • The complainant was quite happy when the applicant arrived at the premises. The applicant agreed with that proposition.
   • The complainant was happy because he had arrived to let her in the door. The applicant also agreed with that proposition.
   • At no point did the complainant give the applicant a hug. The applicant disagreed with that proposition.
   • After the applicant opened the door, the complainant 'rushed right in', and the complainant ran to her room. The applicant, in response to that question, said that the complainant walked to her room after smiling towards him.
   • When the complainant first walked into the house, the applicant 'slapped her intentionally on the bum'. The applicant disagreed with that question.
   • A very short period of time after the complainant had returned to the kitchen from her room, the applicant offered her a massage. The applicant disagreed with that proposition.
   • When the applicant did offer her a massage, she said, 'No thanks'. Again, the applicant disagreed with that proposition.
   • The applicant asked her if she wanted a massage to 'soften her up' so that he could have sex with her. The applicant responded that he strongly disagreed with that proposition.
   • The applicant picked the complainant up and placed her on the floor. The applicant strongly disagreed with that proposition.
   • The applicant picked the complainant up and put her face down on the couch. The applicant responded that the complainant walked to the carpet, and laid down on the carpet, and that she chose to do so because he had asked her if she minded him showing her the proper way to do a massage.
   • The applicant placed the complainant on the floor in order to have sex with her. The applicant strongly disagreed with that proposition.
   • When the applicant saw the complainant by herself in the house, he decided at that point he wanted to have sex with her. Again, the applicant strongly disagreed with that suggestion.
   • The complainant never gave the applicant 'the okay' to have sex with her. The applicant responded, 'She definitely gave me the signs,' and, 'also everything I possibly could to ask her if she was okay'.
   • When JA told the applicant she was going to the police, the applicant did so as soon as he could, because he knew exactly what JA and the complainant were going to say to the police. The applicant disagreed with that proposition.

Defence submission at trial - Browne v Dunn

1. At the conclusion of the evidence, counsel for the applicant submitted to the judge that her Honour should direct the jury that the prosecutor had not challenged a number of aspects of the evidence given by the applicant, and the jury should take into account, in assessing the prosecution arguments in final address, that the applicant was not given an opportunity to respond to any challenge to those matters.
2. In particular, counsel contended that, in effect, the prosecutor had failed to comply with the principle in Browne v Dunn,[2] in three respects.
3. First, it was submitted, the prosecutor did not challenge the evidence, given by the applicant, that when he offered to demonstrate to the complainant the proper method of giving a massage, she chose to lie on the carpet.
4. Secondly, it was submitted, apart from the prosecutor putting to the applicant that he, himself, had physically placed the complainant on the floor, the prosecutor did not challenge the applicant's evidence as to what then occurred, by putting to him the following aspects of the complainant's evidence: that the applicant was holding her hands behind her back; that he did not ask her whether that was 'okay'; that the applicant did not believe the complainant was consenting; and that, from the point at which the applicant had placed the complainant on the floor, she was not thereafter consenting to what occurred.
5. Thirdly, it was submitted that the prosecutor had failed to put to the applicant, in cross-examination, that the reason that he attended Dandenong Police Station on the same evening was because he knew he was guilty and he was trying to get ahead of the prosecution by making a false denial.
6. In response, the prosecutor submitted that the rule in Browne v Dunn did not need to be complied with in such a 'granular fashion' as that contended for on behalf of the applicant. It was submitted that the prosecutor had sufficiently complied with the principle in Browne v Dunn by cross-examining him about the question of the complainant's consent and also as to his reasonableness in believing that she consented.

1. In an ex tempore ruling, the judge observed that, even if the detail of what the complainant had said in evidence-in-chief had not been put, 'line-by-line' to the applicant, ultimately, the issue of consent was 'squarely put' to the applicant in cross-examination, and that he had denied that the complainant had not been consenting. Her Honour also noted that, in view of the manner in which the cross-examination had been conducted, there were 'certain constraints' as to what the prosecutor might contend in his final address in order to comply with the rule in Browne v Dunn.

1. In final address, the prosecutor's principal argument concerned what he contended to be the inherent improbability of the proposition that the applicant believed that the complainant was consenting at the time. The prosecutor noted that the complainant was the younger sister of the applicant's girlfriend, that she was new to Australia, and that her relationship with him was similar to one of family. The prosecutor submitted that the action of the complainant, in turning away and smiling, was not the kind of indication which one would expect to constitute consent. In particular, the prosecutor noted that there had been little prelude to the acts, which constituted the offending.
2. The prosecutor further submitted that the applicant's version that the contact commenced with the applicant giving the complainant a massage, was 'an entirely self-serving version of events'. He noted that the incident occurred only two weeks after the complainant had arrived from the Philippines, and that, during that time, the complainant and the applicant had not commenced any form of secret relationship between them. It was submitted that, in those circumstances, the version of events, given by the applicant, was 'unrealistic'. The prosecutor also relied on the evidence of the distress evidenced by the complainant shortly after the event.
3. Following the prosecutor's address, counsel for the applicant did not renew his application to the judge that a direction be given to the jury concerning any aspect of the address.

APPLICATION FOR LEAVE TO APPEAL AGAINST CONVICTION

1. In support of ground 1, counsel for the applicant submitted that at the trial, the prosecutor failed to comply with the principles stated in Browne v Dunn in a number of specific respects. In particular, it was submitted that the prosecutor failed to put the following propositions to the applicant in cross-examination:
   • that the action founding charge 1 was not accidental, and was sexual in nature;
   • that the applicant forced the complainant to the floor and, having done so, he sat on her hips;
   • that the complainant was then struggling or resisting;
   • that while the complainant was in that position, the applicant inserted his penis inside her without using a condom;
   • that, as the applicant did so, he was holding the complainant's wrists;
   • that the applicant knew, or believed, that the complainant was not consenting, or he gave no thought as to whether she was consenting.
2. In oral submissions, counsel for the applicant placed particular emphasis on the last point. Counsel submitted that, at the trial, the prosecutor, in his address, outlined to the jury the limited relationship between the applicant and the complainant, and submitted that, as a consequence, the applicant could not have had a reasonable belief that the complainant was consenting to having sexual contact with him. Counsel for the applicant submitted that that proposition had not been directly put to the applicant in cross-examination. The prosecutor did address questions to the applicant, concerning the limited nature of the relationship, which he had had with the complainant before the incident. However, counsel for the applicant submitted, the prosecutor did not put to the applicant, and give him the opportunity to respond to, the proposition that, by reason of the limited nature of that relationship, he could not have reasonably believed that the complainant consented to have sexual relations with him.
3. Counsel submitted that, by failing to put those matters to the applicant, the prosecutor had denied the jury the opportunity to observe and assess how the applicant dealt with them, and to assess the response, which the applicant would have made to such challenges to his evidence. Counsel submitted that the judge, in her ruling, erred by failing to uphold counsel's application to give directions to the jury that, by omitting to put those matters to the applicant, the prosecutor had not given the applicant an opportunity to respond to them, so that the jury might take that matter into account, when assessing the weight of the arguments made by the prosecution. In particular, it was submitted that the judge erred in concluding that the prosecutor had sufficiently complied with the principle in Browne v Dunn.
4. In response, counsel for the respondent submitted that the prosecutor put the matters to the applicant on which he made submissions to the jury during his final address. In particular, the prosecutor put to the applicant (in respect of charge 1) that he intentionally slapped her on the buttocks. In respect of charge 2, the prosecutor put to the applicant that he had picked the complainant up and put her on the floor. The prosecutor also suggested to the applicant that he had picked the complainant up and put her face down on the couch. He suggested to the applicant that he moved the complainant to the floor to have sex with her.
5. Counsel further noted that, before final address, the prosecutor had confirmed that the evidence of the complainant and the applicant was that, after the complainant was on the floor, the applicant sat on her, and defence counsel agreed that that was substance of the applicant's evidence.
6. Counsel for the respondent accepted that it was not directly put to the applicant, in cross-examination, that the complainant was struggling or resisting, but, in his final address, the prosecutor did not make any specific submission to the jury on that point. Counsel also accepted that the prosecutor did not put to the applicant that he inserted his penis inside her without a condom, but that was not a fact that was in issue in the case. Counsel further accepted that it was not put to the applicant that he held the complainant's wrists, but the difference between the accounts given by the complainant and the applicant in that respect were entirely clear to the jury.
7. Finally, counsel submitted that the prosecutor had adequately put to the applicant that the complainant did not consent, and he knew she was not consenting. In particular, the prosecutor specifically put to the applicant that the complainant never gave him, 'the okay to have sex with her'.
8. Counsel for the respondent further noted that defence counsel made the application to the judge, for a Browne v Dunn direction, at the conclusion of the applicant's evidence, but before the final addresses of counsel. Counsel submitted that it could not be maintained that, at that stage of the trial, the judge failed to properly exercise a discretion by refusing to give a Browne v Dunn direction to the jury. After the prosecutor had completed his final address, counsel for the applicant did not renew the application, notwithstanding that the judge had invited him to do so. Specifically, it was not submitted that any of the arguments, made by the prosecutor in his final address, had not been put adequately to the applicant in cross-examination.

1. The principle, relating to the cross-examination of a witness or a party to a proceeding, that is known in the rule in Browne v Dunn,[3] is longstanding. The rule is essentially grounded in fairness, but it also serves the purpose of enabling the tribunal of fact to have available the response of the witness to the proposition ultimately put on behalf of the party, who is undertaking the cross-examination of the witness.[4]
2. In Browne v Dunn, Lord Herschell explained:

... I have always understood that if you intend to impeach a witness you are bound, whilst he is in the box, to give him an opportunity of making any explanation which is open to him; and, as it seems to me, that is not only a rule of professional practice in the conduct of a case, but is essential to fair play and fair dealing with witnesses.[5]

To my mind nothing would be more absolutely unjust than not to cross-examine witnesses upon evidence which they have given, so as to give them notice, and to give them an opportunity of explanation, and an opportunity very often to defend their own character, and not having given them such an opportunity, to ask the jury afterwards to disbelieve what they have said, although not one question has been directed either to the credit or to the accuracy of the facts they have deposed to.[6]

1. In The Queen v Morrow, Redlich JA discussed the fundamental requirements of the rule. In that case, the Court was concerned with directions given by a trial judge where defence counsel had failed, in cross-examination, to put to the complainant the substance of the evidence, subsequently given by the accused, which provided an exculpatory account of his relationship with the complainant. Redlich JA, with whom Nettle JA and Lasry AJA agreed, explained the obligation of counsel in cross-examination in the following terms:

The extent of the obligation will be informed by the nature of the case to be presented by the cross-examiner. If it involves no more than a denial of the evidence of the witness, the 'puttage' may be of relatively short compass. Plainly the extent of the obligation will differ where a positive case is to be subsequently advanced. If the 'essential elements of the eventual case' are not put to the witness who may cast doubt on them, a fair trial may be jeopardised and adverse comment expected. But it will often be a matter of impression and interpretation as to whether what counsel has put sufficiently conveys the substance of the evidence subsequently to be given.[7] Bald 'puttage' will be sufficient only where it can be said that no unfairness arises from the absence of any further identification of the substance of the matters in controversy.

Where detail in support of an allegation is known to the cross-examiner and is to be the subject of evidence, there must be sufficient puttage of that detail so that it can be said that the witness was given an adequate opportunity to respond, not only to the allegation but to its essential features which may include the time, place and circumstances of the occurrence.[8]

1. In a criminal trial, in view of the onus of proof on the prosecution, the rule in Browne v Dunn does not necessarily apply in the same manner to the conduct of the defence case. For example, counsel for an accused is not required to put to a witness, called by the prosecution, an inconsistency between the evidence given by that witness and the evidence given by another witness who is also called by the prosecution.[9]
2. The principle applies, without any such qualification, to the prosecution. However, as Redlich JA pointed out, the content of the obligation is necessarily dependent on the nature of the matter which, it is contended, was not put to the accused, or a witness favourable to the accused. The content of the cross-examination, which is required to comply with the rule, must depend on the particular circumstances of the case, bearing in mind the principal purpose of the rule.
3. Thus, where the prosecution calls a witness, and seeks to impugn part of that witness's evidence, the prosecution should seek to cross-examine the witness as unfavourable pursuant to s 38 of the Evidence Act, and, in doing so, should question the witness about the aspects of that witness's evidence, which the prosecution intends to take issue with in final address.[10]
4. Similarly, in a case in which the accused calls a witness who gives an innocent explanation of evidence relied on by the prosecution to inculpate the accused, and which is disputed by the prosecution, the prosecutor is obliged to put to the witness the basis on which the prosecutor intends to invite the jury to reject that evidence given by the witness.[11]
5. Relevantly, in a case in which the accused gives evidence, the prosecution must ensure that it puts to the accused, and gives the accused the opportunity to respond to, any proposition to be advanced by the prosecution in final address, in particular, where that proposition might constitute a departure from the case outlined by the prosecutor in opening the trial.[12]
6. Where a prosecutor has failed, in such a way, to comply with the ruling in Browne v Dunn, ordinarily the trial judge should direct the jury that they should take into account that the prosecutor had failed to raise matters with the accused, or with the witness in question, during the course of that witness's evidence, and that the jury may take that into account when considering whether or not they should accept the prosecutor's arguments as to the facts to which those matters relate.[13]

1. In considering the proposed ground of appeal, it is important to identify the particular context, in which the prosecutor cross-examined the applicant, and subsequently made his final address. The evidence of the complainant was that at no time did she give, or indicate, to the applicant her consent to have any sexual contact with him. That account was directly put in issue by counsel for the applicant. In his evidence, the applicant gave detailed evidence as to the circumstances in which he did have sexual contact with, and sexual intercourse with, the complainant. He stated that, at almost each stage of the incident, he had requested and obtained the complainant's express consent to each of the steps that he took, which culminated in the act of intercourse. Thus, the respective accounts of the incident, given by the complainant and the applicant, were diametrically opposed.
2. Importantly, when the applicant gave his evidence, he was fully aware of the conflicting account, given by the complainant, and he had a full opportunity to respond to it. Further, it is quite apparent, from the cross-examination by the prosecutor of the applicant, which we have summarised earlier, that the prosecutor did put the central aspects of the account, given by the applicant, in issue.
3. Specifically, and contrary to the submission made on behalf of the applicant, the prosecutor challenged his account, that he had accidentally touched the complainant on the buttocks when she entered the premises. In respect of that aspect of the incident, the prosecutor put the following question to the applicant:

When she walked into the house, to start with, when she opened the door, what I'm suggesting to you is that you slapped her intentionally on the bum. Do you agree or disagree with that?

1. Further, the prosecutor directly put to the applicant that he offered the complainant a massage in order to 'soften her up', in order that he could have sex with her. Importantly, the prosecutor directly put to the applicant that he physically picked the complainant up, put her face down on the couch, and then put her on the carpet. The prosecutor did not put, in cross-examination, that the applicant then sat on her, and had sex with her. However, that aspect of the conflicting versions of the incident was common ground; both the complainant and the applicant said that when the complainant was on the ground, the applicant was on top of her, and had sex with her. The critical question was whether that sexual act was consensual. In that respect, the prosecutor directly put to the applicant:

... What I'm saying to you is that she never gave you the okay to have sex with her.

1. Pausing there, that line of questioning, embarked on by the prosecutor, was, in our view, clearly sufficient to put in issue the critical aspects of the version of the incident given by the applicant. Counsel did not directly put to the applicant that the complainant was struggling or resisting, or that he was holding her wrists while he had intercourse with her. However, the complainant had given evidence to that effect, and the applicant had the opportunity to rebut it if he had sought to do so. Further, the fact that the prosecutor did not put those matters in detail to the applicant did not leave the applicant in any doubt that the prosecutor was putting plainly in issue his account that the complainant freely and expressly consented to each of the sexual acts that he performed on her. In addition, as counsel for the respondent has noted, neither of those propositions were, in any event, referred to by the prosecutor in final address.
2. As noted, in oral submissions, counsel for the respondent placed particular emphasis on the contention that the prosecutor, when he cross-examined the applicant, failed to put to him that he did not reasonably believe the complainant was consenting.
3. That proposition cannot succeed. As we have noted, the accounts of the incident, given respectively by the applicant and the complainant, were mutually contradictory. The prosecutor directly put to the applicant that the complainant never gave him the 'okay' to have sex with the complainant. That proposition, of itself, was directed to the central point of the account given by the applicant. If the applicant's account were to be accepted, then, quite plainly, the complainant gave her consent, and the applicant would have known she did so. Conversely, if the applicant's account were rejected, and the jury was satisfied, beyond reasonable doubt, of the complainant's account, it could only follow that the applicant knew that the complainant was not consenting; and at the very least, in those circumstances, the applicant could not have reasonably believed that she was consenting. As noted, that point was made directly by the prosecutor in cross-examination, in putting to the applicant that the complainant never gave to him 'the okay' to have sex with her.
4. In oral submissions, counsel for the applicant placed particular emphasis on a section of the final address, given by the prosecutor, by which, counsel contended, the prosecutor had submitted to the jury that, because the applicant only had a limited acquaintance with the complainant before the incident, he could not have reasonably believed that the complainant was consenting to have sexual contact with him. Counsel for the applicant submitted that that proposition was not directly put to the applicant in cross-examination, and that, accordingly, the prosecutor contravened the principles of Browne v Dunn by advancing such an argument in final address.
5. The fundamental premise, on which that submission was based, was, in our view, misconceived. Immediately before the passage in question, the prosecutor had outlined to the jury the limited acquaintance, which the applicant had with the complainant, before the date of the incident. The prosecutor then briefly outlined the applicant's version of the prelude to the incident itself. He then concluded:

That's the defence case, that she gave him all the signs. That I suggest to you, given all the evidence that has come before and the relationship between all these parties could be put to one side, that that is not the truth and that cannot only be put to one side but excluded as being unrealistic.

1. In that passage, the prosecutor advanced the proposition that, in light of the limited relationship between the applicant and the complainant before the incident, it was implausible that the complainant 'gave [the applicant] all the signs' as the applicant had described in the course of his evidence. That is, the prosecutor submitted to the jury that the account given by the applicant was quite improbable, taking into account the very short time, in which the complainant had known the applicant, and had any contact with him. That is, the prosecutor submitted, the jury should reject the account, given by the applicant, because it was implausible. The prosecutor did not submit - as contended on this application - that, even if the applicant's account were accepted, he could not reasonably have believed that she was then consenting for sexual contact with him.
2. For those reasons, we are not persuaded that, at the trial, the prosecutor failed to comply with the principles stated in Browne v Dunn. The cross-examination, undertaken by the prosecutor, made it plain that the prosecution put in issue the applicant's account, and, in particular, his account that, during the incident, on a number of occasions, he sought and obtained the complainant's consent to what he was doing. The jury was correctly directed, by the judge, that it could not convict the applicant, unless it was satisfied, beyond reasonable doubt, that the evidence, given by the applicant, was not truthful. The jury was also instructed that, if it rejected the applicant's account, that did not mean that the jury must find him guilty; in those circumstances, the jury would still need to consider whether, on the evidence, it was satisfied, beyond reasonable doubt, of the guilt of the accused. The cross-examination, undertaken by the prosecutor, was sufficient, in the circumstances, to put in issue the principal components of the applicant's evidence that, at all times, the complainant expressly consented to the sexual acts that he was performing, which constituted the basis of each of the three charges on which he was convicted.
3. It follows that the prosecutor adequately complied with the requirements of the rule in Browne v Dunn. The proposed ground of appeal must therefore fail.

APPLICATION FOR LEAVE TO APPEAL AGAINST SENTENCE

1. As we have mentioned, the applicant was sentenced to a total effective sentence of 7 years' imprisonment with a non-parole period of 5 years. That sentence was constituted as follows:

1. Pursuant to s 6F of the Sentencing Act 1991, sentenced as a serious sexual offender in respect of charge 3.

1. The applicant seeks leave to appeal against sentence on two grounds, namely:

Ground 1 - The learned trial judge erred by denying the appellant procedural fairness by not advising defence counsel at the conclusion of the plea that she did not accept the principles of Bugmy applied.

Ground 2 - The learned trial judge erred in not giving the principles in Bugmy application.

1. The applicant was born in Pakistan in January 1995. His family had fled to Pakistan from Afghanistan as they are Hazaras, which is part of a religious minority who were subject to persecution by way of ethnic cleansing conducted by the Afghan Taliban terrorist organisation.
2. The applicant had two brothers. When he was ten years of age, his father was killed in a bomb blast. One year later, when the applicant was eleven years of age, his brother was also killed in a bomb blast at a demonstration, at which the applicant was also present. Both of those incidents were the product of attacks against the Hazara minorities who were then living in Pakistan provinces. The applicant's family decided that his life was at risk as a result of the negative feelings towards Afghan refugees at the time. The applicant himself had been subjected to threats and bashings on the street. As a consequence, the applicant's mother and his surviving brother decided that he should leave Afghanistan, and they engaged smugglers in Indonesia to take him to Australia. The applicant made a difficult two month journey in a dilapidated boat to Indonesia, from where he was conveyed to Christmas Island. He spent the next two years there in refugee detention.
3. While the applicant was in detention on Christmas Island, he attended the learning centre in order to further his education. Ultimately, he was issued with a refugee visa, and he moved first to Adelaide, and subsequently he resided in Spotswood. At that time, he was working at Woolworths. While he did so he also obtained a qualification which enabled him to undertake security work. He also continued with his education, ultimately completing his VCE at Lyndale Secondary College. At the time of the offending, he had been accepted into an Advanced Diploma of Legal Practice at the Royal Melbourne Institute of Technology.
4. As we have noted, in 2018 and 2019 the applicant was in a relationship with JA. Subsequently, in 2019, he met his wife Fouzia on Facebook. The applicant and Fouzia married in 2022 and, at the time of the trial, they had been living together in a rental home in Dandenong.
5. The applicant did not have any previous convictions. On the plea, a number of character references were tendered on his behalf. They included a reference by Brendan Flanagan, the principal of St James Catholic Primary School. The applicant had met Mr Flanagan and his wife when Mr Flanagan was the applicant's teacher at the Christmas Island learning centre. Subsequently, the applicant had formed a close friendship with Mr and Mrs Flanagan. In his character reference, Mr Flanagan noted the applicant's strong work ethic and his commitment to continue to progress in his education.
6. Ms Gina Cidoni, a psychologist, assessed the applicant on 5 May and 10 May 2022, and a report prepared by her was tendered on the plea. Ms Cidoni set out in some detail the applicant's background, and the results of the psychological testing that she undertook with the applicant. She diagnosed the applicant to suffer from the following conditions: Post-Traumatic Stress Disorder; Adjustment Disorder; Major Depressive Disorder; and Generalised Anxiety Disorder.
7. Ms Cidoni expressed the opinion that the applicant's extreme exposures as a child had compromised his development and formation, one consequence of which was his heightened physiological and psychological stress reactivity. She considered that the applicant was suffering from those mental conditions when he committed the offences, and that they had '...impacted his judgment, clear thinking and his behaviour'. She also considered that the applicant's traumatic exposures had been life-altering experiences 'that engendered a sense of helplessness confusion and disorganisation from a young age'. She further expressed the opinion that those disorientating states often stir intense emotional reactions and constant feelings of being psychologically overwhelmed and overloaded which, in turn, impairs the normal capacity to modulate experiences. Ms Cidoni also considered that, due to his mental illness, the applicant was struggling with his predicament in prison, and that he would find imprisonment more onerous than someone who did not have those conditions.
8. On the plea, counsel for the applicant relied on the applicant's previous good character, and contended that the applicant had good prospects of rehabilitation. Due to the applicant's extreme exposures during his childhood, it was submitted that the principles explained by the High Court in Bugmy v The Queen[17] applied in mitigation. Further, counsel relied on Ms Cidoni's report in support of the submission that the fifth limb of the principles stated by the Court in The Queen v Verdins,[18] that the applicant's time in custody would be more onerous as a result of his psychological disorders.
9. In response, the prosecutor expressly stated that the prosecution did not take issue with the submission made on behalf of the applicant that the principles in Bugmy applied to the case. In addition, the prosecution did not take issue with the submissions by counsel for the applicant that the fifth limb of the principles stated in Verdins should apply.

1. In her reasons for sentence,[19] the judge, having set out the circumstances of the offending, and the applicant's history, concluded by expressing the view that the offending that was the subject of charge 2 was a serious instance of the offence of rape.[20] Her Honour accepted the matters that were put in mitigation, but she concluded that the principles, stated by the High Court in Bugmy, did not apply in mitigation of sentence in the present case.
2. Her Honour expressed those conclusions in the following terms:

I accept the matters put on your behalf in mitigation, in particular your prior good character, your traumatising background as a member of a persecuted minority group who as a child experienced the violent deaths of a father and brother; the challenges you faced in coming to Australia alone by boat as a teenage refugee, spending 2 years in detention; the efforts you made to educate yourself and obtain a higher education qualification; and the hardship you will suffer in custody (due to your psychological conditions, your being held as a protection prisoner, and to the anxiety concerning your future status in Australia). I also accept that you have the support of your wife and the couple who have known you since your time on Christmas Island. I have also taken into account that you are a relatively youthful man with no prior convictions who was only 26 years of age at the time of offending. I consider that your prospects of rehabilitation are reasonable.

However, I do not accept that the principles of Bugmy are enlivened in your case. ... [T]he Court of Appeal explained that those principles are enlivened when an offender has been raised in an environment of alcohol abuse and violence, which leaves its mark on the offender which does not diminish with the passage of time and repeated offending, and which reduces the offender's capacity to learn from experience and to stop offending. There is no evidence that you were raised in such an environment nor suffered that kind of deprivation. Indeed, you come before the Court with no prior convictions, and an admirable history of continuing your education whilst in detention, of completing a higher education qualification, and of being employed in the community. I consider that you bear high moral culpability for your offending.[21]

1. In support of ground 1, counsel for the applicant noted that, on the plea, the prosecution expressly did not take issue with the submission, advanced on behalf of the applicant, that, as a consequence of the applicant's traumatic upbringing, the principle in Bugmy were applicable. In the course of the plea, the judge did not give any indication to counsel for the applicant that she took issue with that proposition. In particular, the judge did not indicate that she did not accept the application of the principles of Bugmy to the determination of the applicant's sentence. However, in her sentencing remarks, the judge held that she did not accept that the principles of Bugmy were enlivened in the applicant's case. In those circumstances, it was submitted, the applicant had been denied procedural fairness and, as a consequence, the sentencing discretion should be re-opened, and the applicant re-sentenced on appeal.
2. In response, counsel for the respondent accepted that, in the circumstances of this case, the applicant had been denied procedural fairness in respect of the finding, by the judge, that the principles in Bugmy did not apply to his case.

1. That concession, by the respondent, was appropriate. It is well-established that, as part of a court's duty to accord procedural fairness to litigants before it, the court must give a party a fair opportunity to correct or contradict any prejudicial or adverse finding, which the court may make affecting that party, unless the risk of such a finding being made necessarily is inherent in the issues which are to be determined by the court.[22]
2. In the present case, in the course of the plea, counsel referred to the relevant aspects of the applicant's upbringing, which had been set out in some detail in the report of Ms Cidoni. Counsel expressly submitted that the applicant's exposure to violence and persecution during his early years enlivened the application of the principles outlined by the High Court in its decision in Bugmy. Counsel further noted that the prosecution did not cavil with that proposition, and that the judge would 'obviously take that into account'.
3. The judge did not, at any point in the sentencing submissions, take issue with that proposition, nor with the acceptance of it by counsel for the prosecution in his written outline. In particular, the judge did not put to counsel the proposition, upon which she relied to reject the application of the principles of Bugmy, in her sentencing reasons, namely, that the applicant's 'admirable history' of continuing his education and gaining employment in the community had the effect that the principles in Bugmy did not apply in mitigation of sentence.[23] As a consequence, counsel did not have the opportunity to address that proposition, and to advance submissions in response to it. It follows that, in that respect, the applicant was not accorded procedural fairness in the sentencing process.
4. For those reasons, ground 1 of the application for leave to appeal against sentence must succeed.

1. In support of ground 2, counsel noted that there was unchallenged evidence, adduced on the plea, that the applicant had been raised in an environment of violence, as described in the report of Ms Cidoni and in the references that were tendered on his behalf. It was submitted that, in those circumstances, the principles, explained by the High Court in Bugmy, applied to the sentencing of the applicant. Counsel further submitted that, although the applicant had successfully become a member of society, and had progressed in his education and employment, that did not preclude the application of those principles.
2. In response, counsel for the respondent accepted that the principles of Bugmy are not confined to a case in which the offender had a similar criminal history to the offender in Bugmy. In particular, counsel noted that this Court has applied those principles to a number of scenarios, which are relatively comparable to the situation of the applicant. Accordingly, counsel for the respondent accepted that the judge erred in determining that the Bugmy principles did not apply to the determination of the applicant's sentence.
3. However, the respondent submitted that, ultimately, the position, taken by the judge, did not result in any error by her Honour in the sentencing discretion. In particular, counsel noted that the judge did give weight to the same factors in mitigation, that would also be the basis of the application of the Bugmy principles. In addition, counsel noted that there was no direct evidence of a nexus or realistic connection between the applicant's childhood disadvantage and the offending that he committed in the present case. Counsel further submitted that the judge was correct to characterise the applicant's moral culpability for the offending as high. Counsel noted that, notwithstanding that charge 2 involved a standard sentence, and the applicant's offending was a serious example of that offence, the judge nevertheless considered it was appropriate to impose a sentence lower than the standard sentence. The applicant had contested his guilt at trial, and demonstrated no remorse. Further, it was submitted, the offending had had a devastating impact on the complainant.
4. Accordingly, it was submitted that, notwithstanding the failure of the judge to afford the applicant natural justice, and the judge's mischaracterisation of the Bugmy principles, nevertheless, her Honour imposed the correct sentence.

1. The concession, made by the respondent, that the trial judge did not correctly apply the principles, stated by the High Court in Bugmy, is correct.
2. In the present case, the applicant spent his childhood and adolescence in circumstances which were decidedly traumatic. During that time, he was exposed to severe forms of persecution and violence, culminating in the violent deaths of his father and of his brother, his time spent as a refugee, and his escape to Australia, alone and in particularly difficult circumstances, which included a further two years in refugee detention on Christmas Island.
3. The principles stated by the High Court in Bugmy are important, because they recognise the enduring relationship between the effects of the profound dysfunction of a person's early years and the moral culpability of that person for offences later committed during adulthood. As the court stated in that case:

Because the effects of profound childhood depravation do not diminish with the passage of time and repeated offending, it is right to speak of giving 'full weight' to an offender's deprived background in every sentencing decision.[24]

1. In a number of cases, in which that principle has been applied, the courts have specifically accepted that the conduct of a person, who has been exposed to the kind of circumstances in which the applicant spent his early years, could not be realistically equated with the conduct of someone who has had the benefit of being raised in a stable, and what could be properly regarded as, normal circumstances.
2. In Director of Public Prosecutions v Drake,[25] this Court expressed that principle in terms, which have been followed in a number of subsequent decisions, in the following terms:

In particular, the profound dysfunction, disadvantage and abuse experienced by the respondent during his formative years were relevant to an appropriate evaluation of his moral culpability. As recognised by the High Court in Bugmy, those experiences, none of which were of his making, all played a significant role in shaping the respondent's personality and his responses. As a consequence, his subjective culpability, for the offending in which he engaged, could not be equated with that of a person who committed the same offence but had had the advantage of a normal, stable and regular home environment during his or her childhood years. In that way, those factors constituted an important mitigating circumstance in the determination of the respondent's sentence.[26]

1. The fact that, notwithstanding the dysfunctional and traumatic nature of the applicant's upbringing and early years, he nevertheless managed to obtain an education for himself, and be engaged in gainful employment, very much stands to his credit. However, and contrary to the proposition, relied on by the sentencing judge, the applicant's achievements in that respect did not have the effect of precluding the application of the principles stated in Bugmy.
2. In Lockyer (a pseudonym) v The Queen,[27] the offender, who was convicted of rape and assault, had experienced a deprived background, in which his younger sister had accused his father of sexually abusing her, and in which the offender himself had been sexually abused by an older male, who lived in the same neighbourhood. Notwithstanding his difficult early years, he did not have a relevant criminal history, and, it would seem, he had maintained a record of steady employment. The court held that, notwithstanding the applicant's achievements in that regard, as a consequence of the offender's deprived background, the case fell within the principles stated by the High Court in Bugmy.[28]
3. In that way, the principles in Bugmy are primarily directed to an assessment of the moral culpability of an offender. As noted, the judge accepted the matters put in mitigation, arising from the applicant's traumatic background as a member of a persecuted minority group, who had experienced the violent deaths of two close family members. However, her Honour did not accept that, as a result of those circumstances, the principles in Bugmy applied to the case, and accordingly the judge sentenced the applicant on the basis that his traumatic upbringing and background did not have any relevance to the assessment of the applicant's moral culpability, which she considered to be high.[29]
4. In view of the principles, which we have discussed, that assessment, by the judge, was, necessarily, erroneous. In accordance with those principles, the moral culpability of the applicant could not be properly equated with that of a person who had had the advantage of growing up in the safety of this country, with the advantages of a stable and secure environment in which to develop his value system.
5. In the present case, that principle was not a matter of mere theory. The report of Ms Cidoni makes it plain that the extreme circumstances, to which the applicant had been exposed as a child and teenager, did have a necessary effect on his development, and were, as such, 'life-altering experiences'. Those effects could not be disregarded in appropriate evaluation of the applicant's moral culpability for his offending.
6. For those reasons, ground 2 of the application for leave to appeal must succeed. Accordingly, the sentences, imposed on the applicant, must be set aside, and the applicant re-sentenced.
7. In re-sentencing the applicant, the starting point is that the circumstances of the offending in the present case were objectively serious. The complainant was younger than the applicant, and she had occasion to trust him. The complainant had only arrived in Australia two weeks before the incident, and she no doubt regarded the applicant as someone to whom she could safely turn for assistance when she found herself locked out of the premises in which she was staying.
8. In mitigation, notwithstanding his most difficult upbringing and circumstances, the applicant had commendably undertaken and completed his education, and he had been able to engage in gainful employment. He has no previous convictions. The references, that were tendered on his behalf, attested to the applicant's strong work ethic, his commitment to his education, and to his good character.
9. Further, based on the report of Ms Cidoni, the circumstances in which the applicant has been serving, and will continue to serve, a term of imprisonment will be more difficult for him. As a member of a minority religious group, his time in prison has been, and will continue to be, more difficult, taking into account his perception of the attitude of a number of his fellow prisoners to members of that sect. Further, the applicant's safe haven visa has been cancelled, with the result that, throughout the balance of his term of imprisonment, he will experience considerable anxiety concerning his future status in Australia.
10. Taking those matters into account, we re-sentence the applicant as follows:

(a) Charge 1: 1 month imprisonment.

(b) Charge 2: 6 years' imprisonment.

(c) Charge 3: 3 months' imprisonment.

1. The sentences on charges 1 and 3 are to be served concurrently with each other and with the sentence imposed on charge 2. Accordingly, the applicant is re-sentenced to a total effective sentence of 6 years' imprisonment. We direct that the applicant serve a minimum of 4 years before he becomes eligible for parole.
2. In sentencing the applicant on charge 2, we acknowledge that, pursuant to s 5B(5) of the Sentencing Act, the sentence is lower than the standard sentence for the offence of rape. In re-sentencing the applicant, we have taken that standard sentence into account. In all the circumstances, which we have discussed, we consider that it is appropriate to impose a sentence on charge 2 that is lower than the standard sentence.

[1] To ensure that there is no possibility of identification of the complainant, this judgment has been anonymised by the adoption of pseudonyms.

[4] R v Morrow [2009] VSCA 291; (2009) 26 VR 526, 539, [48] (Redlich JA); [2009] VSCA 291; R v Birks (1990) 19 NSWLR 677, 689 (Gleeson CJ); (1990) 19 NSWLR 677.

[5] Browne v Dunn (1893) 6 R 67, 70-71.

[6] Ibid 76-77; see also Bulstrode v Trimble [1970] VicRp 104; [1970] VR 840, 846-7 (Newton J).

[7] R v Manunta [1989] SASC 1628; (1989) 54 SASR 17, 23 (King CJ, Legoe and Bollen JJ); R v Foley [2000] 1 Qd R 290, 291 (de Jersey CJ, Thomas JA and Derrington J).

[8] [2009] VSCA 291; (2009) 26 VR 526, 539-40 [49]-[50] (Redlich JA).

[9] MWJ v The Queen [2005] HCA 74; (2005) 222 ALR 436, 440-441 [18]-[19] (Gleeson CJ and Heydon J), 449 [41] (Gummow, Kirby and Callinan JJ); [2005] HCA 74; see also R v Thompson [2008] VSCA 144; (2000) 187 A Crim R 89, 111-12 (Redlich JA).

[10] Ritchie v The Queen [2019] VSCA 202, [68]-[79] (Kaye and Weinberg JJA, Kidd AJA).

[11] Cavanagh v The Queen; Rekhviashvili v The Queen [2016] VSCA 305, [90]-[91] (Osborn, Whelan and Priest JJA) ('Cavanagh').

[12] Astbury v The Queen [2020] VSCA 132, [67]-[71] (Kaye, Niall and Weinberg JJA).

[13] Smith v The Queen [2012] VSCA 187, [51]-[53] (Redlich JA); Cavanagh [2016] VSCA 305, [103] (Osborn, Whelan and Priest JJA).

[14] Contrary to s 40 of the Crimes Act 1958.

[15] Contrary to s 38(1) of the Crimes Act 1958.

[16] Contrary to s 40 of the Crimes Act 1958.

[17] [2013] HCA 37; (2013) 249 CLR 571 (French CJ, Hayne, Crennan, Kiefel, Bell, Gageler and Keane JJ); [2013] HCA 37 ('Bugmy').

[18] [2007] VSCA 102; (2007) 16 VR 269, 276 [32]; (Maxwell P, Buchanan and Vincent JJA) [2007] VSCA 102 ('Verdins').

[19] DPP v Wilson (a pseudonym) [2022] VCC 745 ('Reasons').

[22] Humphries v The Queen [2010] VSCA 161, [10] (Maxwell P, Redlich and Mandie JJA); R v Lowe [2009] VSCA 268, [20] (Neave, Redlich JJA and Hollingworth AJA); R v Fisher [2009] VSCA 100; (2009) 22 VR 343, 358, [65] (Redlich and Dodds-Streeton JJA); Davey v The Queen [2010] VSCA 346, [29] (Neave, Redlich JJA and Hollingworth AJA); Lennon v The Queen [2017] VSCA 85, [23]-[24] (Weinberg, Santamaria JJA and Kidd AJA).

[24] Bugmy [2013] HCA 37; (2013) 249 CLR 571, 595 [44].

[25] [2019] VSCA 293 (Maxwell P, Priest, Kaye, T Forrest and Emerton JJA).

[26] Ibid [32]; see also Director of Public Prosecutions v Heyfron [2019] VSCA 130, [57]-[58] (Kaye JA); Director of Public Prosecutions v Green [2020] VSCA 23, [83] (Maxwell P, Priest and Kaye JJA); Director of Public Prosecutions v Herrmann [2021] VSCA 160, [41] (Maxwell P, Kaye, Niall and T Forrest and Emerton JJA); Bergman v The Queen [2021] VSCA 148, [86]-[88] (Maxwell P and Kaye JA).

[27] [2020] VSCA 321 (Priest and Weinberg JJA).