Woods (a Pseudonym) v The Queen [2014] VSCA 233

1 I agree for the reasons given by Hansen JA that the appeal should be dismissed, and that leave to appeal should be refused in respect of ground 2(b).

2 I, too, have had the opportunity of seeing the complainant give her account of events in the three VARE interviews to which his Honour refers. I agree with his assessment of the complainant. She presented as a truthful and generally reliable witness.

3 Grounds 1, 2(a) and 3 turn largely upon a single answer that she gave during the course of the second VARE, on 20 October 2011. That was some 10 weeks or so after the first VARE on 5 August 2011. On that occasion, when asked whether the episode which subsequently became the subject of Charge 1 was the same or a separate incident altogether from that which she had described in the first VARE, and which became the subject of Charge 9, she replied that it was the 'same'.

4 Notwithstanding that answer, there were significant differences between the descriptions given as to the circumstances surrounding these two acts of incest. The jury were entitled to conclude that the complainant had either misunderstood the question put to her, during the second VARE, or had forgotten the precise details that she had previously given regarding this matter during the first VARE.

5 As regards ground 2(b), I agree with Hansen JA that the prosecutor did not, in his closing address, exceed the bounds of legitimate advocacy.[2] He was entitled to anticipate that defence counsel would mount a strong attack upon the complainant's credit, and to invite the jury to consider whether, on the whole of the evidence, she appeared to be the malevolent liar that, in substance, the defence claimed she was. Nothing said by the prosecutor could reasonably have been understood to have reversed the onus of proof, a subject upon which the jury were repeatedly, and correctly, directed. Indeed, the prosecutor himself emphasised, throughout his closing address, that the onus of proof, always rested upon the Crown.

6 Ground 2(c) is troubling only in this respect. The prosecutor anticipated that defence counsel would invite the jury to conclude that the complainant's account should be rejected because, had incidents of the nature alleged occurred in the house, such conduct would have been detected by others who were almost constantly present. To meet that argument, the prosecutor, in his closing address, submitted that there was 'nothing particularly unusual' about the circumstances surrounding the commission of these offences, and that anyone who 'came to these courts time and time again' would see cases just like the present.

7 The prosecutor's submission was, in my opinion, expressed in entirely inappropriate terms. It amounted to giving evidence from the bar table, as well as introducing irrelevant and potentially confusing material that might, in other circumstances, have caused the trial to miscarry.

8 However, substantially for the reasons given by Hansen JA, I am satisfied that these ill-considered remarks, did not, in this case, give rise to a miscarriage of justice. In my view, the jury would have understood full well that although seemingly statements of incontrovertible fact, they were in truth nothing more than arguments on behalf of the Crown. As such, they could be accepted, or rejected, as the jury saw fit. Moreover, the actual content of what the prosecutor sought to convey could have been expressed by the simple expedient of inviting the jury to have regard to their own experience and common sense which, in my opinion, would have yielded the same result. It follows that I do not think that the prosecutor's somewhat inapt, and clumsy, manner of expression played any part in the outcome of the jury's deliberations.

9 On 24 April 2013, following a trial in the County Court, the appellant was convicted by majority verdict of a jury of four charges of incest and five charges of indecent act with a child under the age of 16. The jury, being unable to agree, was discharged without verdict on further charges of indecent act (Charge 10) and incest (Charge 11). The appellant was sentenced to a total effective sentence of eight years' imprisonment, with a non-parole period of six years.

10 On 5 March 2014, the appellant was granted leave to appeal on the following grounds 1, 2(a) and (c) and 3. Leave was refused in respect of ground 2(b); the appellant renews his application for leave to appeal on that ground. The grounds are:

(1) The convictions on Charges 1 and 9 [being charges of incest] could not be supported by the evidence because, on the complainant's account, they were the same event despite her describing them in different terms.

(2) The learned trial judge erred in failing to direct the jury that:

(a) They could not convict the appellant on both Charges 1 and 9 unless they were satisfied beyond reasonable doubt that the complainant had described two separate episodes of oral penetration.

(b) They should not approach the question of whether they accepted the evidence of the complainant by considering whether it was likely she was lying.

(c) They should ignore the assertions of the prosecutor in his final address about what evidence is 'usual' in sex offence cases.

(3) The trial miscarried because of the insufficiency of the direction given about the significance for the credit of the complainant of the issue concerning Charges 1 and 9.

11 The appellant was aged between 37 and 41 years at the time of the offending. He was married to SG with whom he had four children. The complainant was their eldest child; she was aged between 9 and 12 years at the time of offending, which was alleged to have occurred between 15 September 2007 and 2 June 2011.

12 The family lived in a modest Ministry of Housing home consisting of three bedrooms, a loungeroom and a kitchen. For most of the relevant period a family friend, BW, lived with the appellant and his family; she shared the complainant's bedroom for 18 months from February 2007, then moved out but returned in early 2009 and slept in a caravan parked on the property. After the birth of the youngest child in 2008, the appellant customarily slept in the loungeroom. Neither the appellant nor SG engaged in paid employment during the period of the offending.

13 The complainant deposed that the appellant regularly committed sexual offences against her, in the family home, during the overall period of the alleged offending. The offending in Charges 1-8 was alleged to have occurred between 15 September 2007 and 29 June 2011, while the offending in Charge 9 was alleged to have occurred between 7 April 2011 and 29 June 2011. In summary, the offending was as follows.

14 Charge 1 concerned an occasion when the appellant entered the complainant's bedroom, and the complainant, at the appellant's request to do so, performed oral sex on him and he ejaculated in her mouth (Charge 1 - incest).

15 On another occasion, the complainant walked past the appellant who hugged her and put her hands on his penis and moved her hand up and down. The appellant removed her hand before masturbating himself (Charge 2 - indecent act).

16 On another occasion the complainant was lying on a couch asleep in the lounge area when the appellant inserted his fingers into her vagina (Charge 3 - incest).

17 On another occasion the complainant was lying on the bed in her bedroom when the appellant entered the room with a vibrator and said to the complainant: 'If you want to put me inside you, you have to be able to put this small thing inside you first' (Charge 4 - indecent act).

18 On another occasion when the complainant awoke from sleeping next to the appellant in the loungeroom, he removed her pyjama pants and his own pants and squeezed her breasts (Charge 5 - indecent act). The appellant touched the complainant's vagina (Charge 6 - indecent act); while he did so, he masturbated himself (Charge 7 - indecent act). Shortly thereafter, the appellant inserted his penis into the complainant's vagina (Charge 8 - incest). She felt pain and the appellant put his hand over her mouth and ordered her to 'Shut the fuck up' and warned 'Don't say a fucking word'.

19 Between January and March 2011, the appellant did not reside in the family home, as he and SG had separated. However, on 7 April 2011, SG was involved in a serious motor car accident in which the youngest son of the appellant and SG was killed, and another child and SG were injured. Whilst SG was in hospital and undergoing rehabilitation until mid-July, the appellant (who for this purpose resumed living in the family home) and BW (who slept in the house in the boys bedroom or the lounge) cared for the children. The complainant deposed that during this period the offending became worse.

20 Finally, was an occasion when the appellant asked the complainant to go into the main (her mother's) bedroom where he had placed towels on the bed. The appellant pulled his penis out and asked the complainant to do him a favour and suck his penis. The complainant replied that she did not want to, but would if she had to. She noted that as the appellant put his penis in her mouth, it got hard and bigger. The appellant instructed her to move her mouth up and down his penis quickly before he ejaculated in her mouth (Charge 9 - incest).

21 On 29 June 2011, the complainant told a school friend that the appellant had sexually abused her. On the same day she told her school chaplain that the appellant had struck her and spat on her face, and, through written messages and discussion, that the appellant 'touches me' and that because of him 'I am not a virgin', that the offending began when she was nine, and that she had performed oral sex on the appellant. The last time it happened was the Friday of the previous week, and the appellant had told her that it was not wrong, he was teaching her for her boyfriend. The police were notified.

22 In addition to the complainant, her mother, BW, her school friend, the school chaplain and police gave evidence at the trial. As to the complainant, three VARE interviews conducted by the police were tendered. They were conducted, respectively, on 5 August 2011,[3] 20 October 2011[4] and 26 October 2011.[5] The allegations made in these interviews formed the substance of the charges. The complainant said that these were the occasions that she could recall. The complainant gave evidence by way of a special hearing on 5 December 2012. The trial commenced on 15 April 2013, when the appellant pleaded not guilty to all charges.

23 The prosecution's case was that the complainant's accounts were truthful and accurate.

24 The appellant did not give evidence. No evidence at all was adduced by the defence. The defence was that none of the alleged acts occurred. It was contended that the complainant had made it all up. It was put that the complainant had a motive to lie - that she was angry with the appellant for physically assaulting her and she wanted to escape from the family home and live with her grandmother, her prior allegations of having been hit on the head by the appellant having failed to achieve this objective. It was put that her accounts were implausible and inconsistent, and that there was no way that constant and repeated episodes of sexual abuse could have taken place in the house without detection by others.

25 It is convenient to note that it was common ground at the trial that on 29 June 2011 the appellant hit the complainant and spat on her.

26 In her submissions counsel for the appellant dealt with these grounds together. It is convenient to do so, as they arise out of the evidence led in support of Charges 1 and 9.

27 The complainant's evidence concerning Charge 9 - the conduct in her mother's bedroom - was given in her first VARE. The second VARE was conducted because the police wanted to clarify the complainant's evidence. In the course of this the complainant described an episode which occurred in her bedroom; this constituted Charge 1. Specifically, in the second VARE, the complainant was asked 'whether this was .... the same or ... a separate incident altogether', from that which she had spoken of in the first VARE; she said that it was the 'same'.

28 On the basis that Charges 1 and 9 concerned the same incident, the appellant submitted that it was uncertain as to which offence had occurred, and unfair that he be convicted of the two offences. Hence, neither conviction could stand (ground 1).

29 Further, having regard to the lack of clarity in the evidence, and the failure of the prosecution to address the apparent inconsistency in the complainant's account, the judge should have directed the jury with 'some particularity' to the effect stated in ground 2(a).

30 Then, under ground 3 it was submitted that in the circumstances a standard prior inconsistent statement direction was not sufficient. If, as defence counsel submitted was the case, the complainant described the same event, she did so in radically different terms which affected the assessment of her capacity to make false allegations. A specific direction as to that was required, but was not given.

31 In order to deal with the submissions, it is necessary to refer to the complainant's evidence in the VARE interviews.

32 In the first VARE, the complainant stated that she had been sexually abused over a five year period since she was nine, it started in the lounge, and involved sucking the appellant's penis or giving him a 'hand job' until he ejaculated and having to swallow the ejaculate. He would give her a Coke and tell her not to tell anyone. If she was reluctant he would swear at her and physically force her.

33 The complainant described an episode of fellatio when her mother was in hospital. She described the incident referred to above that constituted Charge 9. The complainant further described an incident which was the basis of Charges 10 and 11. These were the most recent to have occurred of the incidents in relation to which the appellant was charged. As mentioned earlier, Charge 9 was alleged to have occurred between 7 April 2011 and 20 June 2011, while Charges 10 and 11 were alleged to have occurred between 1 June 2011 and 29 June 2011.

34 In the second VARE the complainant was asked to describe again the episode of fellatio described in the first VARE. The complainant described an incident when the appellant came into her bedroom after he had been drinking. He woke her, insisting that she suck his penis; eventually she complied so he would leave. When asked for more detail she essentially repeated the account. On being asked for more details, she said 'I can't remember. It's ages ago.' She was then asked if she could remember a time when she had to suck the appellant's penis and she said 'I kinda try and not think about it.' The interviewer acknowledged that 'it's very unpleasant' but it was important to know, and the complainant again said 'I don't remember'. She was then asked if she remembered 'Another time you had to suck your Dad's penis' and she answered 'No. No, I don't', she did not remember. The interviewer then referred to 'this incident' (being that referred to in the first VARE), as to which she gave a detailed account. This account was the basis for Charge 1. In the course of giving this account, the complainant said that she could not remember another time when she sucked the appellant's penis. Later in the interview the complainant was asked whether the two episodes of penis sucking were the same -

Q 284 O.K. In that first video we did last - - -

Q 285 - - - in August, you did speak about a time where you had to suck your dad's penis and you had to do it for ages, those were your words - - -

Q 286 - - - you had to do it for ages. Now, is that the same, is that the same ..... you tell, you tell about in this video or is that a separate incident altogether?

35 The following observations may be made about this. First, the policeman conducting the interview had to be, and was, careful to ensure that the complainant gave her recollection without him telling her what she had said in the first VARE.[6] Secondly, the complainant said that she did not 'remember anything I said last time'.[7] Thirdly, the answer 'same' turns on her recollection of what she said in the first VARE; accordingly, the understanding that she had when she answered is a matter of speculation. Fourthly, it was a matter for the jury to make of that part of the interview what they considered appropriate in the context of all of the evidence. Fifthly, there were significant differences in the complainant's evidence of the incidents which constituted Charges 1 and 9; the differences are, in summary -

(a) The location of the offence: the complainant's bedroom in Charge 1 and her mother's bedroom in Charge 9.

(b) The complainant said that the Charge 9 incident occurred when her mother was in rehabilitation.

(c) The presence of towels on the bed in the Charge 9 incident.

(d) The concern expressed by the complainant as to spitting out the ejaculate onto her doona in her bedroom in the Charge 1 incident.

(e) The appellant attempting to ejaculate into a tissue in the Charge 1 incident.

(f) The appellant giving the complainant a drink of Coke after ejaculating into her mouth in the Charge 9 incident.

36 Further, in the second VARE, the complainant described incidents which were the basis of Charges 2, 3 and 4.

37 The third VARE occurred as a result of the complainant's grandmother contacting the police with advice that the complainant had further information. In the interview then conducted the complainant described incidents which were the basis of Charges 5, 6, 7 and 8.

38 In her evidence at the special hearing the complainant said that at the first VARE she did not tell the policeman everything, although what she did say was true and correct. At the second VARE, she was annoyed at having to do it again, she had to go into detail, she did not tell everything, but what she said was true and correct. The third VARE occurred because there was something else she had to tell the police, it was true and correct, but she was annoyed at being at the police station a third time.

39 In a discussion prior to final addresses, the prosecutor referred to the complainant having described 'a quite separate incident which of course gives rise to separate counts'. He said that '[I]t needs to be slowly worked through with the jury so they understand just where it all fits'. Defence counsel responded:

Your Honour, just in relation to that point of fact, from the defence's point of view I think that's an argument. I don't necessarily agree with my learned friend that it is correct that they're two quite distinct episodes, but that's - I'll save that for another day.

HIS HONOUR: We'll put that to one side because that may well be the subject of contention

40 Later, in discussion with the judge concerning a written statement of the elements of the various offences which the judge proposed to give to the jury, defence counsel did not take exception to the proposition that it was open to the jury to find there had been two separate incidents of oral sex. Further, the statement, prepared by the judge, included, in relation to each charge, a succinct summary of the facts pertaining thereto. In respect of Charges 1 and 9 the summary was in these terms:

CHARGE 1 - Incest

Alleged incident where [the appellant] went into [the complainant's] bedroom, asked her for a favour and put his penis in her mouth.

CHARGE 9 - Incest

Alleged incident between 7 April 2011 and 29 June 2011 when [the appellant] took [the complainant] into the main bedroom, there were towels on the bed and she sucked his penis.

Defence counsel did not take exception to these summaries.

41 The prosecutor invited the jury to find that the complainant was mistaken when she said that the incidents were the 'same', and that there had in fact been two separate incidents as charged. He said that when (in the second VARE) clarification was sought as to the incident the complainant described in the first VARE:

... she starts describing an incident of oral sex. And it's different. And it's a different one. It's clear that it's a different one because what she does is she describes the episode of oral sex in her bedroom.

Although she's been asked to clarify the earlier one she's remembered another one and she's given detail of it.

42 When defence counsel addressed the jury, he submitted that Charges 1 and 9 were the same incident and that the complainant had given inconsistent versions thereof, which inconsistency should trouble the jury about the truth of the complainant's allegations. By this, it is evident, counsel meant the truth not merely on Charges 1 and 9, but on all allegations constituting Charges 1-11. That is, counsel relied on the alleged inconsistency concerning Charges 1 and 9 as reflecting adversely on the credit and reliability of the complainant's evidence generally. It was probably for this reason that defence counsel did not seek to have either (or both) Charges 1 and 9 withdrawn from the jury.

43 In that situation, the judge dealt with this matter by a direction on prior inconsistent statements. Referring, by way of example, to Charges 1 and 9, he noted that defence counsel had submitted that the complainant was referring to the same incident and had given an inconsistent account of events, including as to where the incident occurred. The judge noted that the prosecutor argued that the complainant was referring to two separate occasions. He then directed the jury that:

... if you accept that [the complainant] gave inconsistent accounts, you may consider that evidence when assessing her credibility and reliability. You may find the fact that [the complainant] gave inconsistent accounts means that the evidence she gave is less likely to be truthful or accurate. You may therefore be less willing to accept her evidence. It is for you to determine whether or not to draw this conclusion from any inconsistencies you find in her evidence, or the evidence of any other witness you consider has given inconsistent accounts.

You should keep in mind the fact that a witness who gives inconsistent accounts is not necessarily lying. While dishonest witnesses are more likely to introduce inconsistencies in their stories, truthful witnesses may make mistakes about details. If you do find that [the complainant's] statements to police are inconsistent, you will have two different accounts from the same witness, it is for you to determine which account, if any, to believe.

45 The short answer to ground 1 is that it was open to the jury to find that two separate incidents which constituted Charges 1 and 9 had occurred. The jury had the benefit of seeing and hearing the evidence of the complainant during the trial and, as they were told by the judge, they were entitled, in their determination, to reject the evidence of the complainant in support of either charge or to reject her evidence entirely or in part. It was in their province to make of the evidence what they considered open and appropriate. In so determining, the jury would, as they must be taken to have done, have considered the complainant's statements in the second VARE as to her failure to remember an earlier incident, and the incidents being the 'same', but these statements did not require the jury to acquit on either or both of Charges 1 and 9. They were part of the totality of the complainant's evidence. I would add that I have viewed the VARE interviews and read the transcripts; the jury might well (as they did) have found the complainant a credible and reliable witness. There being evidence on which the jury could convict on both charges, ground 1 is not established.

46 This ground is not established. In addition to the directions referred to above concerning inconsistent accounts, the judge directed the jury as to how to deal with multiple counts, emphasising that each charge was a separate offence to be considered separately, and as to which the jury must be satisfied of the constituent elements beyond reasonable doubt to reach a verdict of guilty. As mentioned above, the judge provided the jury with a written statement of the elements of each offence. Further, the judge sufficiently, and responsively to the way in which the case was put to the jury by the parties, directed the attention of the jury to the relevant facts. In these circumstances, the judge's directions were appropriate and sufficient to clearly identify to the jury how to approach their consideration of Charges 1 and 9. Furthermore, defence counsel did not seek any redirection or additional direction in relation to this ground.

47 In light of the above discussion, and for the reasons given above, this ground is not established. In the circumstances, the direction given, referred to above, which was to be understood together with the clear identification by the judge of the issues concerning Charges 1 and 9, identified to the jury the possibility of their taking an adverse view of the credibility and reliability of the complainant on the basis of her prior inconsistent statements, if satisfied that she had made inconsistent statements. It is again to be noted that defence counsel did not make any request for a redirection or an additional direction with respect to this ground.

48 In considering these grounds it has been important to keep in mind the way in which defence counsel conducted the case. As mentioned, the Crown case, from start to finish, was that there were two separate incidents of fellatio. All parties understood that, as is manifest from the way in which the learned judge conducted the matter. It was always open to defence counsel to apply to have one or both of Charges 1 and 9 withdrawn from the jury. He never sought that. Rather, it is evident that he sought advantage before the jury in an alleged inconsistency in the complainant's evidence concerning Charges 1 and 9, an inconsistency which the jury should accept and having accepted, should find that it reflected adversely on the complainant's credit and the reliability of her evidence in relation to all charges.

49 This was how the case was conducted and it was that case to which the judge tailored his directions to the jury. Put simply, as it was open to find either or both of Charges 1 and 9 proved, it was left to the jury to determine upon the matter of proof.

50 What was not referred to was what the jury was to do if they considered that there was but one incident, whether Charge 1 or 9. Was one to be found proved, and if so which one? Or, was neither to be considered proved, with the consequence of acquittal on each? The latter would be an odd result, although as the appellant's counsel said, the appellant was entitled to know of which allegations he has been convicted.

51 This is all very well, but it does not relate to the case as conducted, and is not reflected in a ground of appeal. The truth of the matter is that defence counsel conducted the case advisedly and was content for the case to go to the jury seeking advantage in the complainant's alleged inconsistency but knowing that each charge might be found proved. Hence, the learned judge's direction on inconsistent statements to which no exception was taken.

52 In his address to the jury the appellant's counsel submitted that the prosecutor had implicitly invited the jury to reverse the onus of proof by reasoning that if they could not believe the complainant was lying she must be telling the truth. In this Court the appellant's counsel said that this raised the question whether the complainant had the capacity to concoct the allegations. This was not qualitatively different from the question whether a motive to lie could be imagined, and required speculation as to what was in the complainant's mind. These questions were irrelevant as the question for the jury was whether they found guilt beyond reasonable doubt.[8] In the circumstances it was necessary that the learned judge direct the jury specifically against reasoning in this fashion. The standard direction which the learned judge gave not to reason to guilt from a failure to accept a defence argument about a motive to lie was insufficient.

53 To understand the issue, it is necessary to refer to the questions asked by defence counsel in concluding his cross-examination of the complainant:

You've given evidence about two physical assaults that occurred at the hands of [the appellant]. Remember giving that evidence?---Yes.

One was on 29 June 2011, correct?---Yes.

And the other one was before that?---Yes.

The one that happened first in time, after you were assaulted, what you say is that you contacted the leader of student services, correct?---Yes.

And then following that you were referred to the Department of Human Services?---Yes.

Once referred to the Department of Human Services, your case worker was .......?---Yes.

When you first made the complaint to the leader of student services, you said nothing, or you alleged nothing about your father having sexually abused you, is that right?---Yes.

And later, when you were referred to [the case worker], you said nothing to her at the time about being sexually abused by [the appellant], correct?---Correct.

So the first time that you say anything or disclose anything whatsoever that involves allegations of a sexual nature is on the day of 29 June 2011?---Yes.

On 29 June when you made disclosures about the assault and, in particular, the sexual assault, you were removed from the house at .........., weren't you?---Yes.

In contrast to the first time when you made allegations of a physical nature only, where you stated that you were at your Nan's for a couple of days and then you had to go home?---I beg your pardon.

That was the second occasion when you made the allegations of sexual abuse, you were removed from home?---Yes.

On the first occasion, when you made allegations of a physical, non-sexual nature, you returned back to the house, didn't you?---Yes.

You recall in one of the interviews mentioning to Mr McCarthy that you had regular dreams of falling?---Yeah.

Is that the case?---Yes.

Either from a cliff or a building?---Yes.

That is a recurrent dream that you have, is it?---Yes.

Am I right in saying that that dream is so real to you that sometimes you wake up from that dream finding yourself clinging on to the mattress and the bed?---Yes.

So would you say that you have a very vivid imagination?---What does vivid mean?

Strong?---No.

Because those dreams that you have where you find yourself clinging on to the mattress when you wake up, they are obviously not real, are they, they are just dreams?---Yes, they are just dreams.

Just things that are going on in your mind whilst you're asleep?---Yes.

If I said this, that just like those falling dreams, the allegations that you make against [the appellant] that are of a sexual nature, they are not real either, would I be right about that?---No, you wouldn't be right.

Would I be right in suggesting to you that your allegations of sexual abuse are just stories that you have made up in your mind?---No, you wouldn't be right with that either.

Did you just add the allegations of a sexual nature the second time after you were assaulted so you could get out of the house and get away from [the appellant]?---No.

Are you sure about that?---Yes, I'm sure about that.

But it worked, didn't it, when you made those allegations of a sexual nature, it worked, didn't it? That got you out of the house?---Yes.

54 In these questions, defence counsel put to the complainant that her allegations of sexual abuse were a lie, and that the lie was made up for the purpose - or motive - of getting out of the house and away from the appellant, which the fact of the prior physical assault had not been able to achieve.

55 Unsurprisingly, and as he was entitled to do, in his final address the prosecutor sought to deal with the likely pursuit of this line by defence counsel in his final address. It is important to note what the prosecutor said. He clearly stated that the onus was always upon the Crown to establish its case beyond reasonable doubt. On that premise he said that the complainant was 'the lynchpin', that if the jury accepted what she said the appellant was guilty, but not guilty if her evidence was not accepted beyond reasonable doubt. Then, as to how to assess her credibility and so on, he started with the defence case. As to this, 'the defence don't have to prove a thing'. He then said that:

The defence is in two parts really. All encompassing. These allegations aren't true, but when you break it down to what it really is, the defence case is 'She's a liar. She's made it all up, it's a pack of lies, she's an evil, nasty little liar.' Or, there is a second plank to the defence case: 'She's somehow dreamt it.' Remember her being asked about that.

56 The prosecutor then dealt with the matter of dreams, and turned to the question of lies. He commenced by reminding the jury that they had seen the complainant's evidence and queried if anyone thought she was lying, and likewise her school friend, the chaplain, her mother and BW. He continued:

But what I want to do is talk to you about some aspects of lies. Remembering at all times the defence don't have to prove a thing and I'm using this as a convenient starting point because it's what they've raised as a defence. Some aspects of lies are the circumstances of the telling. There's the quality of what is being said, there's the detail given by the person who's said to be telling the lie or is giving the account. There's the likelihood that it's a lie. And there's the motive to lie, a question of what reason a person might have to lie.

57 The prosecutor then referred to the circumstances in which the complainant disclosed the sexual abuse on 29 June, what she said and her reluctance in being interviewed by the police, and continued:

Then ask yourself this question: Is that the behaviour of a liar? Of a child liar? To behave in the way that this has all come out over time? Someone who wants to make a serious allegation to get somebody, or to get something; is that the sort of behaviour you'd expect from a child lying to get somebody or get something? It just doesn't work, does it? It just doesn't work.

If you had a child, say 13 years of age, who wanted to get somebody or get something and they were going to make up a lie about a sexual encounter to get somebody into trouble or to get to their grandma's house or something, you might expect it to be pretty simple. 'This person did A, B, C on such and such an occasion', boom. Without much detail. You certainly wouldn't have expected the convoluted fashion in which all of this came out over time, would you?

Let's have a look at the quality and detail of what is being said by [the complainant] and the likelihood of it being a lie. She makes her allegations, I'm not going to deal with the specific allegations at this point, I'm going to deal with it in document and summary form a bit later on to assist you, but these are some of the extraneous details that she gives in making her allegations. And they are interesting. Because what I say to you is they're just totally inconsistent with her being untruthful and totally consistent with her telling the truth.

58 After then referring to some of the detail in the complainant's evidence, the prosecutor said:

What sort of a monster, what sort of a monster is [the complainant] that she could make up these sort of things about her own father? You've got to be joking. That's no lie.

59 After referring to more detail in the complainant's evidence the prosecutor said:

Remember, this is her own father. What sort of person could have the sophistication and the malevolence to make that up? It happened, as sure as you're sitting there. And she underlines it - if this is all a lie, she underlines it with her Christian beliefs - remember that?

60 The prosecutor then referred to the complainant's evidence of her Christian belief that when a person dies they are questioned by God and if someone does not tell the truth they go to Hell. He then turned to deal with the question of motive to lie raised in cross-examination of the complainant. The suggested notice - that the complainant wanted to move to her grandmother's place - was 'just rubbish', that:

...it flies in the face of reason that she'd make all of this up, and carry it off because of that; that's what I say to you, so you can just put that motive where it belongs - in the trash can. But I've got to say something else about motive, and it's this, and His Honour will give you a direction of law about this, but I want to make sure that you understand it right now.

The Judge will tell you that just because you reject any possible motive put up by the defence in this case, doesn't mean that there might not be another one, unknown to the defence, and it doesn't mean, automatically, that the accused is guilty. Now he will give you a direction about that much more eloquently than I can express it, but you could understand this proposition: If someone tells a lie about you, you might know the reason they did it, or you might think you do, or you might never know. You just might be at a complete loss to know, and obviously, consistent with the rule that the prosecution has to prove the case here, against the accused man, and that the accused doesn't have to prove a thing. He doesn't have to prove a motive, or even point to a potential motive. There's no onus of proof falls on his shoulders. So, if you reject the motive that's being put up, which, I'm very confident you will reject that motive, but it's a matter for you, if you reject that, put it to one side and forget it, concentrate of what the Crown case is, what the evidence is in relation to the charges, not whether or not the accused man can point to a reason why this girl might lie or otherwise, and it's not really a black and a white question. You don't say to yourselves 'Well, is this girl lying?' 'Yes, possibly.' 'Not guilty?' 'No, she's not lying.' 'Guilty.' It's not as simple as that. It might ultimately come down to being that simple in this case, because everything she says is said to be a lie, but the question is, are you satisfied beyond reasonable doubt that the offences, that is, that the acts she describes, happened. That's the question you ultimately ask yourself. Not is she a liar, and I hope you understand that. I'm focusing on what the defence says, but that's the question that you ultimately have to ask yourself.

61 Following the prosecutor's address, defence counsel objected to the reference to 'a monster' and 'malevolent' and said that the prosecutor had in effect said, 'why would she lie?' A little further, after the judge asked why the prosecutor was 'disentitled from assessing the probability of a 13 year old child advancing what he describes as a set of highly sophisticated and convoluted lies', defence counsel responded:

Your Honour, he's not prevented from anticipating and challenging the inevitable argument that's going to be made in my address, it's the way it's been done. It's the form in which it takes. He could very well say or could have said that it's just not possible for this complainant to be so malevolent, to be so sophisticated and to be such a monster to make this story up. But he's put a question to them - an open question to them which effectively reverses the onus. And even though the issue of motive to lie is a live one, he's still not permitted to do so.

You advanced the proposition that she's lied in order to relocate herself. That's the fundamental plank of the defence, she's made up a set of sexual allegations because she wants to move from her home to another home. She has, in truth, you say, been physically hit but that is the extent of the problem. In those circumstances where you have raised the proposition that she has lied to advance her relocation, why is the prosecutor disentitled from examining in detail the content of the alleged lie in the circumstances in which the alleged lie was made? I do not see that as in any way impinging upon or infringing the proposition in Palmer or reversing the onus of proof. This is a case in which the defence has been, at all times, the complainant is a liar, her credibility and reliability are impugned on that basis, how can a prosecutor have his arms tied behind his back when responding to that defence?

63 The judge went on to state that he intended to give the jury a clear direction on onus of proof. He further invited defence counsel to submit any directions that he sought, and he would consider them. None were sought. Nor did defence counsel seek the discharge of the jury on account of the prosecutor's remarks.

64 Defence counsel then addressed the jury on the basis that the complainant had in fact lied and that she had told an increasingly sophisticated set of lies in order to get away from home. He commenced by saying:

And I'm not suggesting for a moment, just quoting the prosecutor, that she's 'evil' or 'nasty', 'malevolent', a 'monster'. I'm not going to suggest any of that to you. I'm just going to look at her circumstances over the three months after the car accident and ask you to look to your life experiences and put yourself in her shoes to see how she was feeling over that period of time. I make no criticism whatsoever of her as a person. I make no criticism of what's transpired and what's unfolded. She's done what she's done and that has gone to trial, and [the appellant] quite properly and rightly is entitled to have the evidence properly scrutinised by his peers.

The second question is where does the evidence suggest that the complainant's evidence is an invention? A made-up story?

He then addressed submissions to establish the suggestion, and concluded:

When she makes the allegation of a sexual nature, she's out of the house. Bang. Bingo. A girl in grief, without her mother, makes a knee-jerk complaint immediately following an incident with her father. She's fed up, she wants out, it doesn't work.

Understandably aggrieved, when it happens again, given her particular personal circumstances, it's not an understatement to submit to you - not that she's malicious, malevolent, sophisticated, a monster simply to suggest to you that she's desperate - desperate to get out of the house.

So desperate, it's submitted, that she's prepared to stretch the ambit of reality in a few written words on a note of paper to [the chaplain]; not foreshadowing, not having any idea of what would follow. She wasn't expecting police, and the whole fanfare that comes with an ordinary investigation of a sexual nature. You'll recall the evidence of [the chaplain]. She discloses the smacking incident first. There's no intermission between that disclosure and her next disclosures insofar as [the chaplain] saying to her well that's a big deal, we've got to get the authorities involved. I've got to go and speak to the assistant principal. That doesn't happen. Just takes the next step in desperate circumstances.

Now this whole sophisticated - this whole idea of a sophisticated detailed lie doesn't start there and then, it's very basic, it's very simple, what she says. It only unfolds in exactly the same manner that you would expect, because she has to keep going back to the police station, and she's kept asked - and she's kept being questioned and questioned and questioned, and it's only from those questions that we get this whole story.

So once that note, once the ink drips onto that piece of paper there's no going back, the cat's out of the bag, your phone is immediately called, police, DHS, they're all in attendance, and they seize responsibility of the situation. There's no going back for [the complainant]. The situation was now out of her hands, out of control. After she speaks to [the chaplain] arrangements are made for her to speak to the police.

65 In charging the jury the judge gave conventional directions as to the onus of proof. Further on he said:

Let me turn to another issue concerning motive to lie. In this case it was argued that [the complainant] had a motive for falsifying allegations against her father. [Counsel for the appellant] contended that [the complainant] was desperate to get out of home, that her mother was in hospital, her brother had been killed in the accident in which her mother had been hurt and that she felt keenly about her father's physical disciplining of her. A previous complaint about her father striking her had not had the desired effect of getting her out of the ... home.

The prosecution disputed this claim, submitting that [the complainant] had no such motive. [Counsel for the prosecution] argued that [the complainant's] complaints were very detailed, including the accompanying words used by her father when acts of sexual abuse occurred and that it was improbable that a 13 year old girl would be capable of concocting such an elaborate set of lies for the purpose of getting out of home.

It is important that you understand that if you accept this submission by the prosecution and reject the defence argument that [the complainant] was lying because she wanted to get out of home, that is not the same as accepting that [the complainant] was telling the truth. All you are doing is eliminating one possible reason for rejecting [the complainant's] evidence. It is still possible that she was lying. She may, for example, have a motive for lying that [the appellant] does not know about. Just because you have rejected one possible motive does not mean that there cannot be another. Similarly, rejecting the motive suggested by the defence will not make [the complainant's] evidence any more credible. You must assess [the complainant's] credibility on the basis of her testimony and consideration of the other evidence in the case, not on the basis of whether [the appellant] could tell you why she might be lying.

Remember, ladies and gentlemen, it is for the prosecution to prove beyond reasonable doubt that [the complainant] is telling the truth. The accused is not required to prove his innocence, or to prove that [the complainant] had a reason for making false allegations. You can only convict [the appellant] of any offence on the basis of all of the evidence you do accept and you are satisfied of his guilt beyond reasonable doubt.

66 Defence counsel did not take exception to this direction, or seek the re-direction that ground 2(b) complains that the judge should have given.

67 Counsel for the appellant submitted that the prosecutor's remarks created a problem that was not able to be cured by the directions given on the onus of proof and motive to lie. This was because of the prosecutor's emphasis on 'what sort of a monster is [the complainant] that she could make up those sort of things about her own father?' Counsel referred to this statement as the 'high point' of the offending remarks. The prosecutor's submissions had directed attention to 'What kind of a person would do this'; the depth of the submission was underlined by the references to 'What sort of person could have the sophistication and malevolence to make them up', 'massive and monstrous malevolent lies', and 'What child would be capable of this lie'. The effect was to shift the prosecution away from having to discharge the onus of proof beyond reasonable doubt, and place on the defence a burden of proving that the complainant could be a person as described by the prosecutor. Hence, the need for a strong direction that the jury not approach the matter of the acceptance of the complainant's evidence by considering whether it was likely she was lying.

68 Reference was made to the statement of defence counsel in his address to the jury that he made 'no criticism whatsoever of [the complainant] as a person'. The point seemed to be that defence counsel's submission emphasised that the prosecutor had overplayed his hand.

69 With respect, in the reality of life, what defence counsel put to the complainant and urged before the jury as a view they should accept, was blunt and harsh to a 13 year old undergoing the painful experience of recounting prolonged sexual abuse by her father. Counsel did not say that she was a monster or malevolent or malicious but the effect was the same, and implicit. It cannot be said otherwise. Furthermore, to say that no criticism was made of the complainant as a person, and yet to ask the jury to accept that the allegations were a lie made up for the purpose of getting out of the house, was disingenuous. For the submission - that is, the defence - went to inherent character.

70 This, of course, was the nature of the attack that the prosecutor anticipated and sought to deal with. It is instructive that the judge considered it appropriate to deal with the matter as he did. It is even more instructive that no application was made for the discharge of the jury, and that no exception was made to the charge or any direction sought, let alone one to the effect of that now contended as being necessary in the circumstances, as the judge had invited counsel to do if he considered further directions to be necessary. Counsel's silence bespoke that it was not necessary. What happened, and what was said, was understood in the cut and thrust of the trial.

71 It is true that the prosecutor used language that might be considered intemperate or inappropriate for a prosecutor. As against that, however, is the fact that if the allegations were a lie the prosecutor's epithets would seem near enough appropriate and fairly descriptive. Indeed, it may be thought that the prosecutor's language might have had the tendency to arouse emotion in the jury, in a manner that risked unfairness in the trial, yet the converse was true. That is, the attack upon the complainant's character, credit and reliability was such as also to arouse emotion in the jury. The situation was one into which the defence walked, so to speak. I do not consider, however, that what the prosecutor said constituted an interference with the orderly conduct of the trial or rendered it unfair. It is evident too that that is how both defence counsel and the judge appreciated the matter, for the reasons mentioned.

72 In my view, the direction the judge gave was appropriate. It was not necessary that he give the direction now suggested. As to that, it is to be borne in mind that the prosecutor impressed upon the jury that the onus of proof was on the Crown, and that it did not shift to the defence. Furthermore, the prosecutor did not suggest to the jury that if they could find no reason to conclude that the complainant was lying then she must be telling the truth. There is no substance in the submission that the prosecutor's response to the defence attack upon the complainant reversed the onus of proof.

74 As mentioned earlier, the defence contended that if incidents of the nature alleged had occurred in the house, it would be expected to have been detected by others in the house. In seeking to meet this contention, in his closing address the prosecutor said that it was not unusual for such offences to occur in these circumstances. He said:

What I'm going to do is point out some arguments to you which might assist you in how you assess the evidence in this case, but it's the evidence in this case that you consider when asking yourselves ultimately that question, did this act occur. Sex crimes are generally committed in private, you'll understand, by their very nature, that's what happens.

Most of the time, very rare cases, you do get it, but most of the time, there are no eyewitnesses. Now, it is true that these alleged offences occurred in a small house with a number of people in it; you've seen the photographs, you've got those, you can see what it is. It's a small suburban three bedroom house of fairly modest proportions and you've heard about all the people living in it.

But, nonetheless, these offences occurred in private. They occurred when [the complainant] and her father were alone. Generally at night, when you might expect others to be asleep. Now, despite what [defence counsel] might say to you about the unlikelihood of these offences having occurred in this particular environment, I'll say to you, there's nothing particularly unusual about these circumstances. If you came to these courts time and time again, you would see cases just like this one.

Now, sometimes, we have cases where offender's sexually assault children while other people are in the same room. Sometimes, even in the same bed. That's not the case here. [The complainant] and her father were effectively alone. There might have been other people nearby, but to suggest that that makes it unlikely when you consider all the circumstances of this case, is just pure rubbish.

The only people present are the accused and [the complainant], so the evidence on which you can convict the accused man, comes from [the complainant]. She is the lynch pin of the prosecution case, and that is often the case, in cases such as this, because sex crimes are committed in secret. [9]

But I'll say this: once again, I'm harping on about this, but it's not unusual for sex crimes to be committed in private and in close quarters to others, particularly when the parties are known to each other and when there is a true power imbalance, such as there is here. Such as a father or a stepfather and a young girl. It's just not uncommon at all, and your common sense will tell you that.

75 Defence counsel took exception to the prosecutor's assertions as to what was usual in sex cases. He complained that the prosecutor had given evidence from the Bar Table by reference to his experience in other cases, when he was rebutting the argument in relation to plausibility. The difficulty was not in raising the matter, but the way in which the prosecutor did so, by reference to his own experience. It would, however, have been 'completely different' if the jury had been invited to rely on their own 'experiences'.

76 The judge responded that the objection had 'some substance' and stated that in his view it was 'a question of formulation rather than substance, as to its essential content'. He continued:

If a counsel for example says, and of course I will finally address the ladies and gentlemen, you would well understand from your reading of newspapers, or your knowledge of life that sexual offending frequently occurs within the home and is conducted in private and in secret. No criticism or objection could be taken to that statement. That might be somewhat different from the manner in which [the prosecutor] put it, but the purport is exactly the same.

[Defence counsel]: Well your Honour I just raised it now to give my learned friend an opportunity if he so seeks to remedy that, or else I'd ask your Honour to give the appropriate directions.

His Honour: If there are directions that you seek I invite you to put them to me and I'll certainly consider them and hear from counsel.

[Defence counsel]: If your Honour pleases.

77 To defence counsel's invitation, the prosecutor said that he would not say anything about the matter.

78 Nor did defence counsel take up the judge's invitation.

79 When defence counsel addressed the jury he stressed the submission as to the implausibility of no one else in the house being aware of the alleged conduct.

80 The judge directed the jury as to what constituted evidence and the role of counsel, including that comments by counsel were not evidence, and on the matter of assessing the evidence. He did not specifically address the prosecutor's statements as to what was usual in sex cases.

81 Defence counsel did not take exception to the directions. Nor did defence counsel ever, at any stage of the trial, make application for the discharge of the jury on the basis of the prosecutor's statements.

82 The appellant's written case submitted that the prosecutor's statement had three vices: it amounted to giving evidence from the Bar Table; it invited the jury to take into account an irrelevant consideration, namely what had occurred in unrelated cases; and it invited the jury to rely on the prosecutor's personal view of the facts. The second of these matters was the most significant. It was further submitted that the judge's views on the issue, referred to above, were incorrect. However, in this Court the appellant's counsel conceded that the judge was correct in stating that the matter would properly have been dealt with by referring to the juror's life experiences. This concession accorded with that taken by defence counsel at the trial. It is clear that that continued to be counsel's approach, for were it not the failure to take objection to the directions would have been most singular.

83 The difficulty with the prosecutor's statement as to what was usual is that it did constitute giving evidence. Counsel for the Crown conceded, correctly, that the prosecutor was in error in saying what he did. Without detracting from that,[10] the

appellant conceded that it would have been permissible for the prosecutor to have addressed the jury to the effect stated by the judge.

84 The question is whether the effect of the prosecutor's statement was to deny the appellant a fair trial and constitute a miscarriage of justice.[11] The question must be considered in the light of all of the circumstances of the trial which include: the judge's assessment of the point, including that he considered it appropriate not to make specific reference to it and the objection in charging the jury; that defence counsel chose not to seek the discharge of the jury but, rather, to deal with the matter in his address; that defence counsel did not seek a direction as the judge had invited him to do so, let alone a direction such as that now suggested; and that defence counsel did not take exception to the judge's charge to the jury.

85 These matters reflect a view of those involved at the trial that the prosecutor's remarks carried negligible, if any, risk of prejudice to the defence. Regarding the matter overall, the prosecutor's remarks could not be considered to have occasioned a miscarriage of justice.

87 No ground being made out, the appeal should be dismissed and leave to appeal should be refused in ground 2(b).

88 I have had the considerable advantage of reading the reasons of Weinberg JA and Hansen JA in draft. Substantially for the reasons they advance, I agree that

89 Further, I agree that leave to appeal should be refused on ground 2(b). I do so, however, not because I think the criticised parts of the prosecutor's address were proper - in my view clearly they were not - but because they do not establish the ground as formulated. As will become clear, I regard those parts of the prosecutor's final address which are impugned under cover of ground 2(b) to be deliberately inflammatory, highly emotive, unfairly prejudicial and well beyond the bounds of legitimate advocacy. And although the ground as formulated - that the judge erred in failing to direct that they 'should not approach the question of whether they accepted the evidence of the complainant by considering whether it was likely she was lying' - is not made out, nonetheless I consider that the prosecutor's remarks are relevant to consideration of ground 2(c).

90 Unhappily, I disagree with the conclusions reached by the other members of the Court with respect to ground 2(c). They would dismiss the appeal on this ground. I would allow it. The remarks of the prosecutor which are the subject of this ground were improper, and simply cannot be countenanced. For reasons that follow, I am unable to conclude other than that there has been a substantial miscarriage of justice.

Ground 2(b) - Suggested reversal of the onus of proof

91 Although he did not make the position as clear as he might have, the effect of defence counsel's cross-examination - which Hansen JA has helpfully set out[12] - amounted to an allegation that the complainant had not told the truth, and that she had a motive for being untruthful. Thus counsel first elicited that the complainant had said nothing to the leader of student services, or a case worker, about her father's sexual abuse. Counsel then obtained assent to the proposition that she was removed from home when she made allegations of sexual abuse. Next, counsel asked the complainant about her dreams and suggested that she had a 'vivid imagination'. He then put to the complainant that the allegations of a sexual nature were 'just like' her dreams, 'not real either'. Following that suggestion, counsel made a further suggestion that the complainant's allegations of sexual abuse 'are just stories that [she had] made up in [her] mind'. Finally, counsel put that 'when [she] made those allegations of a sexual nature', it 'worked' in that she was able to get out of the house and away from the appellant.

92 Presumably counsel's cross-examination was based on his instructions. Hence the cross-examiner had a tightrope to walk. On the one hand, as a matter of common decency and respect for the young witness - and as a matter of practical advocacy - he needed to conduct his cross-examination with as much sensitivity as the circumstances would allow.[13] On the other hand, counsel was, as a matter of professional responsibility, required robustly to advance his client's case,[14] whilst at the same time ensuring that he did not fall foul of the rule in Browne v Dunn.[15] In my view, an examination of the manner in which counsel conducted the cross-examination - including its tone and content - demonstrates that counsel performed his duty to his client without being unnecessarily or unduly annoying, harassing, intimidating, offensive, oppressive, humiliating or repetitive.[16] Indeed, on the assumption that counsel was adhering to instructions, had he not put to the witness that her evidence was untruthful, and the suggested motive for that untruthfulness, counsel would have been derelict in his professional duties.

93 Hansen JA has said[17] that 'in the reality of life, what defence counsel put to the complainant and urged before the jury as a view they should accept, was blunt and harsh to a 13 year old undergoing the painful experience of recounting prolonged sexual abuse by the father'. (By that observation, I do not take his Honour to be suggesting that counsel's manner was blunt and harsh, but that the allegation of untruthfulness was by its nature inherently blunt and harsh.) His Honour has also observed that 'to say no criticism was made of the complainant as a person, and yet to ask the jury to accept that the allegations were a lie made up for the purpose of getting out of the house, was disingenuous'. In any case where an accused person's defence is that the principal witness against him (or her) is lying, and that the witness has a motive to lie, however, counsel will, of necessity, have to confront the witness with that allegation, no matter that it might be considered a blunt or harsh allegation to make. But the law recognises that questions that challenge the truthfulness of a witness, or that require the witness to discuss a subject that he or she might consider distasteful or private, are not on that footing alone improper.[18]

94 In reality, counsel had no choice but to suggest to the witness that her evidence was untruthful, no matter that the witness might find the allegation hurtful. The allegation was, in my opinion, put with appropriate restraint and without undue aggression. I am not sure that the same can be said of the prosecutor's conduct.

95 Hansen JA has said that the prosecutor used language 'that might be considered intemperate and inappropriate for a prosecutor'. With respect, I agree with that description. But his Honour concludes that 'if the allegations were a lie the prosecutor's epithets would seem near enough appropriate and fairly descriptive'. (Those epithets, it will be remembered, included that the complainant was a 'monster' - that is, someone who was a brute, only partly human, or someone who was inhumanly wicked or cruel - and 'malevolent' - that is, an evil person disposed to ill will.) His Honour also has concluded[19] that although counsel 'did not say that [the complainant] was a monster or malevolent or malicious ... the effect was the same, and implicit'. Respectfully, I do not agree. Moreover, although I concur with the notion that 'the prosecutor's language might have had the tendency to arouse emotion in the jury, in a manner that risked unfairness in the trial',[20] I respectfully cannot agree with the conclusion that 'the converse was true'.[21] Further, I am unable to accept (as Weinberg JA accepts) that the defence claimed that the complainant 'appeared to be a malevolent liar'.

96 As I have said, given that the defence case was that the complainant's evidence was untruthful, and there was a motive for her evidence to be so, counsel was required to put that allegation to her and give her the opportunity to answer it. Had counsel not done so, he would have been open to severe criticism, and his client's case faced the prospect of being damaged as a result. The other side of that coin is, however, that once a possible motive was floated, the prosecutor was entitled to examine that motive and address reasoned argument on it.[22] In so doing, however, counsel for the prosecution was not entitled to disregard the duties that bound him.

97 The prosecutor's language has elsewhere been described - perhaps almost euphemistically - as 'intemperate and inappropriate for a prosecutor'. Counsel for the respondent in this Court described it as 'florid' and 'robust'. I agree that it was at the least intemperate and inappropriate for a prosecutor. I also agree that it was florid, in the sense that it was replete with extravagant language. But if by use of the descriptive term 'robust', counsel for the respondent meant to convey that it was legitimately forceful, I do not agree. In my view, the language used was calculated to be inflammatory and emotive. It was designed to arouse a strong emotional response in the jury which was highly prejudicial to the appellant. Although I do not subscribe to the view that a prosecutor by virtue of his office ceases to be an advocate, and that in living up to the duty of fairness that accompanies the role of prosecutor, counsel for the prosecution must present the Crown case in a bland, insipid and colourless fashion, with regret I consider that the prosecutor's address in this case went beyond the bounds of legitimate advocacy. The prosecutor's remarks describing the complainant as a monster and as malevolent were no mere advocate's flourish. They were, as I have said, calculated to inflame the jury's passions, and to provoke a strong emotional response. It is clear, in my opinion, that the prosecutor breached his duties.

98 A prosecutor must not press the prosecution's case for a conviction beyond a full and firm presentation of that case;[23] and must not, by language or other conduct, seek to inflame or bias the court against an accused person.[24] In my view, the position is expressed very well by the New Zealand Court of Appeal (Wild CJ, Richmond P, Woodhouse and Cooke JJ) in Roulston,[25] where it was observed:[26]

[I]t has always been recognised that prosecuting counsel must never strain for a conviction, still less adopt tactics that involve an appeal to prejudice or amount to an intemperate or emotional attack upon the accused. Such conduct is entirely inappropriate and a basic misconception of the function of any barrister who assumes the responsibility of speaking for the community at the trial of an accused person. Naturally enough a proper balance needs to be maintained. The view expressed in 10 Halsbury's Laws of England (3rd edition) para 761 that prosecuting counsel 'should regard themselves as ministers of justice assisting in its administration' ought not to lead to the assumption of a role so emasculated as to merit Lord Devlin's remarks in Trial by Jury, (1966) pp 122-p123:

'... in some places the pendulum has swung so far, and the ministry has moved so close to the opposition, that the prosecution's case is not adequately presented, and counsel, frightened of being accused of an excess of fervour, tend to do little except talk of reasonable doubt and leave the final speech on the facts to the judge'.

The feel and atmosphere of one trial may make it reasonable and even necessary for tactics to be employed that would seem out of place and disproportionate to the circumstances of another. Nevertheless, it is wrong for Crown counsel to become so much the advocate that he is fighting for a conviction and quite impermissible to embark upon a course of conduct calculated to persuade a jury to a point of view by the introduction of factors of prejudice or emotion. If such a situation should develop and there is a real risk that the conduct complained of may have tipped the balance against the accused then an appellate court will not hesitate to follow the safe course and order a new trial.[27]

99 The prosecutor's language in his final address, calculated as it was to arouse prejudice against the appellant in the collective mind of the jury, cannot be justified. Hansen JA does not consider 'that what the prosecutor said constituted an interference with the orderly conduct of the trial or rendered it unfair'. With respect, I do not agree. In my opinion, the trial was rendered unfair by the prosecutor's inflammatory statements.

100 As I have said, however, ground 2(b) as formulated cannot be upheld. It asserts that the judge erred in failing to direct that they 'should not approach the question of whether they accepted the evidence of the complainant by considering whether it was likely she was lying.' Although defence counsel complained about the prosecutor's address, he did not seek discharge of the jury. And as the other members of the Court have observed, although couched in wholly inappropriate terms, the prosecutor's address did not have the effect of reversing the onus of proof. Further, the judge repeatedly and correctly directed the jury on the burden of proof, no exception to his directions on the subject being forthcoming.

101 Reaching the conclusion that the complaint advanced under cover of ground 2(b) cannot be upheld, however, does not conclusively resolve the relevance of those parts of the prosecutor's address against the appellant on all issues. In my view, those parts of the prosecutor's address impugned under cover of ground 2(b) add colour to those criticised under cover of ground 2(c).

Ground 2(c) - Evidence from the Bar table and other matters

102 In this Court, when addressing ground 2(c) counsel for the respondent conceded that the prosecutor should not have spoken of his own personal experience. He agreed that the prosecutor 'should not have done it in the terms he did it', and that 'he went too far'. Counsel submitted, however, that no substantial miscarriage of justice resulted.

103 Weinberg JA has described the prosecutor's submission attacked under cover of this ground[28] as 'expressed in entirely inappropriate terms'. He considers the prosecutor's manner of expression to be 'somewhat inapt, and clumsy'; that his comments 'amounted to giving evidence' from the Bar table; and that they introduced 'irrelevant and potentially confusing material'. In other circumstances, his Honour considers that they might have caused the trial to miscarry. His Honour concludes, however, as does Hansen JA, that the prosecutor's 'ill-considered remarks', and his 'somewhat inapt, and clumsy, manner of expression', did not play any part in the outcome of the jury's deliberation, and did not give rise to a miscarriage of justice.[29] With great respect, I cannot conclude other than that a substantial miscarriage of justice was occasioned.

104 I am relieved of the necessity of repeating the prosecutor's remarks, or their aftermath, since they are set out in detail by Hansen JA.[30] Plainly, what the prosecutor said amounted to giving evidence, and contained expressions of his opinion about what is common in similar cases. Counsel for the respondent - quite properly - did not try to defend what the prosecutor had said.

105 In Livermore,[31] the New South Wales Court of Criminal Appeal set aside convictions for sex offences when the prosecutor had addressed on material not in evidence; had made inflammatory comments; had ridiculed the accused's case; and had offered his personal opinions. Having reviewed a number of authorities,[32] the Court summarised the position thus:[33]

This brief review of the authorities relevant to the disposition of this appeal disclose a number of features of a Crown address that have, either alone or in combination, consistently been held to justify the censure of this Court. They are:

(i) A submission to the jury based upon material which is not in evidence.

(ii) Intemperate or inflammatory comments, tending to arouse prejudice or emotion in the jury.

(iii) Comments which belittle or ridicule any part of an accused's case.

(iv) Impugning the credit of a Crown witness, where the witness was not afforded the opportunity of responding to an attack upon credit.

(v) Conveying to the jury the Crown Prosecutor's personal opinions.

106 Against the backdrop of having made highly inflammatory and grossly intemperate remarks, attributing to the defence prejudicial and emotive suggestions that the complainant was a monster and was malevolent, the prosecutor gave evidence from the Bar table and conveyed his personal opinions. By then the well had been poisoned. No judicial direction could provide an antidote. I have no doubt that the jury would have been influenced by the prosecutor's improper address. It is impossible to say, in my view, that the verdicts would have been the same absent the improper address. There has thus been a substantial miscarriage of justice.

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

[2] Defence counsel did not complain about the actual words chosen, save in so far as he argued that they had the effect of reversing the onus of proof, by posing the impermissible question: 'why would the complainant lie?' Counsel chose to deal with the matter by asserting, somewhat disingenuously, in his own closing address, that he had not made any criticism of the complainant 'as a person'. Self-evidently, his instructions that she had made up these most serious allegations against his client in order to enable her to leave home and live with her grandmother had required him to do just that. Importantly, counsel did not ask for a discharge of the jury or for the judge to give them any direction regarding the prosecutor's use of the various epithets attributed to the defence.

[8] See R v F (1995) 83 A Crim R 502, 511-512; Palmer v The Queen [1998] HCA 2; (1998) 193 CLR 1.

[10] See R v Callaghan [1994] 2 Qd R 300; Livermore v The Queen [2006] NSWCCA 334; (2006) 67 NSWLR 659.

[11] Libke v The Queen [2007] HCA 30; (2007) 230 CLR 559.

[12] At [53] above.

[13] See Evidence Act 2008, s 41. See also Victorian Bar Incorporated Practice Rules, r 31.

[14] See Victorian Bar Incorporated Practice Rules, r 31.

[16] Evidence Act 2008, s 41(2).

[17] At [69] above.

[18] Evidence Act 2008, s 41(5).

[19] At [69] above.

[20] At [71] above.

[22] Palmer v The Queen [1998] HCA 2; (1998) 193 CLR 1, 9-10 [10] (Brennan CJ, Gaudron and Gummow JJ); R v DJT (1998) 4 VR 784, 790 (Brooking JA).

[23] Victorian Bar Incorporated Practice Rules, rule 135. See also Subramaniam v The Queen (2004) 79 ALJR 116, [54] 127; (2004) 211 ALR 1, [54] 16

[24] Victorian Bar Incorporated Practice Rules, rule 136.

[25] R v Roulston [1976] 2 NZLR 644.

[27] See R v McCullough [1982] TASRp 7; [1982] Tas R 43; Vella v R (1990) 2 WAR 537; R v Rugari [2001] NSWCCA 64; (2001) 122 A Crim R 1; Livermore v R [2006] NSWCCA 334; (2006) 67 NSWLR 659; R v Stewart (Eric) [2009] NZSC 53; [2009] 3 NZLR 425; R v Hay; Hay v The Queen [2009] NSWCCA 228; Wood v R [2012] NSWCCA 21; (2012) 84 NSWLR 581. See also R v DDR [1998] 3 VR 580; R v Smith [2007] QCA 447; (2007) 179 A Crim R 453.

[30] At [74] et seq above.

[31] R v Livermore [2006] NSWCCA 334; (2006) 67 NSWLR 659.

[32] R v Attallah [2005] NSWCCA 277; R v Callaghan [1994] 2 Qd R 300; R v Janceski [2005] NSWCCA 281; (2005) 64 NSWLR 10; R v Kennedy [2000] NSWCCA 487; (2000) 118 A Crim R 34; R v KNP [2006] NSWCCA 213; (2006) 67 NSWLR 227; R v Liristis [2004] NSWCCA 287; (2004) 146 A Crim R 547; R v McCullough [1982] TASRp 7; [1982] Tas R 43; R v MRW (1999) 113 A Crim R 308; R v Rugari [2001] NSWCCA 64; (2001) 122 A Crim R 1; Whitehorn v The Queen [1983] HCA 42; (1983) 152 CLR 657.