A failure to swear an intermediary under s 389K(4) of the Criminal Procedure Act 2009 (Vic) does not automatically result in a substantial miscarriage of justice. Whether such a breach constitutes a substantial miscarriage depends on the circumstances of each case, including the extent and nature of the intermediary's interventions. The role of an intermediary is fundamentally different from that of a witness, interpreter or juror, and cases concerning those roles are of limited assistance. Where a complainant's evidence at a special hearing effectively disavows the account given in a VARE, the jury, acting rationally, ought to have entertained a reasonable doubt, and the conviction is unreasonable.
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