Adams v The King - [2023] NTCCA 7

CITATION:Adams v The King [2023] NTCCA 7
PARTIES:ADAMS, Clive
v

THE KING

TITLE OF COURT:  COURT OF CRIMINAL APPEAL OF THE NORTHERN TERRITORY
JURISDICTION:  CRIMINAL APPEAL from the SUPREME COURT exercising Territory jurisdiction
FILE NO:CA 11 of 2022 (22106045)
DELIVERED:  10 October 2023

HEARING DATE: 22 May 2023
JUDGMENT OF: Grant CJ, Brownhill & Burns JJ

CATCHWORDS:

CRIME – Appeals – Appeal against conviction
Admissibility of evidence – Operation of s 411 of the Criminal Code 1983 (NT) – Whether error of law in determining that evidence was admissible – Admission of the evidence constituted a wrong decision on a question of law but not sufficient of itself to constitute substantial miscarriage of justice.

CRIME – Appeals – Appeal against conviction – Miscarriage of justice
Whether trial Judge erred in not giving Zoneff direction – Failure of the trial Judge to give the jury a necessary direction regarding consciousness of guilt reasoning – Failure resulted in substantial miscarriage of justice – Appeal allowed.
Criminal Code Act 1983 (NT), s 410, s 411
Evidence (National Uniform Legislation) Act 2011 (NT), s 55, s 56
Supreme Court Amendment (Appeals) Rules 2022
Supreme Court Rules 1987 (NT), Order 86.08

Attwater v The Queen [2021] NSWCCA 17, Benbrika v The Queen (2010) 29 VR, Castle v The Queen (2016) 259 CLR 449, DC v The Queen [2022] NTCCA 8, Dent v The Queen [2021] SASCFC 4, Edwards v R [2022] NSWCCA 22, Edwards v The Queen (1993) 178 CLR 193, Gahani v The Queen [2022] NTCCA 13, Hofer v The Queen (2021) 95 ALJR 937, Kalbasi v Western Australia (2018) 264 CLR 62, McKey v The Queen (2012) 219 A Crim R 227, MM v R [2023] NSWCCA 236, Orreal v The Queen [2021] HCA 44; (2021) 96 ALJR 78, Pollard v The Queen (2011) 31 VR 416, R v Gould [2009] VSCA 130, R v MC [2009] VSCA 122, R v MMR [2006] VSCA 226, R v Moussa [2001] NSWCCA 427, R v Sekrst [2016] SASCFC 127, R v WBS [2022] QCA 180, Weiss v The Queen (2005) 224 CLR 300, Zoneff v The Queen (2000) 200 CLR 234, referred to.
REPRESENTATION:
Counsel:
Appellant:S Odgers SC with A Abayasekara
Respondent:  V Engel SC with P Williams
Solicitors:
Appellant:Northern Territory Legal Aid Commission
Respondent:  Office of the Director of Public Prosecutions
Judgment category classification:    B
Number of pages:  42

IN THE COURT OF CRIMINAL APPEAL
OF THE NORTHERN TERRITORY
OF AUSTRALIA
AT DARWIN
Adams v The King [2023] NTCCA 7

CA 11 of 2022 (22106045)
BETWEEN:
CLIVE ADAMS

Appellant

AND:

THE KING

Respondent

CORAM: GRANT CJ, BROWNHILL & BURNS JJ
REASONS FOR JUDGMENT
(Delivered 10 October 2023)
THE COURT:

On 21 February 2022, the appellant was arraigned on an indictment containing four counts. Count 1 alleged that on 5 September 2010 the appellant committed an act of gross indecency upon TM, a child who was under the age of 10 years, namely 9 years. Count 2 alleged that on the same date the accused had sexual intercourse with the same child. Count 3 alleged that on the same date the appellant indecently dealt with the same child. Count 4 alleged that on the same date the appellant had sexual intercourse with the same child.
The appellant entered pleas of not guilty to each charge, and the matter proceeded to trial before a jury. On 25 February 2022, the jury returned verdicts of guilty on all four counts. On 7 April 2022, the appellant was sentenced to a total sentence of 7 years imprisonment, with a non-parole period of 4 years and 11 months, commencing on 10 March 2021.
By a notice of appeal dated 24 February 2023, the appellant appeals from the verdicts of guilty with regard to each of the four charges. The appeal is brought pursuant to leave granted on 25 January 2023. Leave was required because of the delay in the appellant commencing his appeal. There is no appeal against the sentences imposed. The grounds of appeal are:
(a)Ground 1: The trial judge erred in admitting evidence of the appellant putting material into a rubbish bin.
(b)Ground 2: A miscarriage of justice resulted from the failure of the trial judge to give the jury directions regarding the evidence of the appellant putting material into a rubbish bin.
The appellant seeks orders that the appeal be allowed, the verdicts of the jury be set aside and a new trial ordered. The appellant’s right of appeal is granted by s 410 of the Criminal Code 1983 (NT) (‘the Code’). The determination of the appeal is governed by the provisions of s 411 of the Code, which relevantly provide:
(1) The Court on any such appeal against a finding of guilt shall allow the appeal if it is of the opinion that the verdict of the jury should be set aside on the ground that it is unreasonable or cannot be supported having regard to the evidence or that the judgment of the court of trial should be set aside on the ground of the wrong decision on any question of law or that on any ground there was a miscarriage of justice and in any other case shall dismiss the appeal.
(2) The Court may, notwithstanding that it is of the opinion that the point or points raised by the appeal might be decided in favour of the appellant, dismiss the appeal if it considers that no substantial miscarriage of justice has actually occurred.
The evidence
The following is taken from the summaries of the evidence in the written submissions provided by the parties and by reference to the trial transcript.
All of the offences with which the appellant was charged are alleged to have occurred on 5 September 2010 near Yulara in the Northern Territory. The complainant was TM, the then nine-year-old daughter of the appellant’s partner, SM. At the time of trial, TM was 20 years old. TM’s father passed away in January 2008. SM entered into a new relationship with the appellant in 2009 and they moved into a shared home in Western Australia some time before 2010.
TM gave evidence that she initially had a good relationship with the appellant. In June 2010, the appellant, SM and TM commenced a camping trip around Australia in a campervan. TM was in year 3 of her primary schooling at that time, and she continued her schooling during the trip through distance education. The appellant, SM and TM all slept in the campervan, with the appellant and SM sharing one bed and TM sleeping in another.
The Crown led evidence of events involving the appellant and TM said to have occurred in Western Australia as evidence that the appellant had a tendency to be sexually interested in TM upon which he was prepared to act. The first such event described by TM occurred in Dampier in Western Australia. The appellant, SM and TM were staying in the campervan which was parked outside the house of TM’s aunt. On the morning in question, SM had gone inside the aunt’s house, leaving the appellant and TM in the campervan. TM was still asleep and the appellant, who usually slept naked, was still in his bed.
TM gave evidence that her mother disapproved of the appellant sleeping naked and usually made the appellant put on clothes beneath the bedcovers before he got up. On this particular morning, TM asked the appellant if she could hop into the bed for a cuddle. When she did, the appellant was still naked. Whilst they were cuddling, the appellant told TM to tell him if she ever felt uncomfortable, and that she could just say no, before he kissed her on the mouth. The curtains on the bed were drawn closed. TM did not register this kiss as inappropriate at the time, as she had seen a lot of her family kiss each other on the mouth. TM got out of bed and carried on with her day. She did not tell anyone about the incident.
TM’s mother gave evidence that the appellant ordinarily slept naked, including whilst they were in the campervan in Dampier. She also testified that she routinely rose earlier than the appellant in the mornings.
The second event demonstrating tendency was said to have occurred at 80 Mile Beach in Western Australia. On one particular day, the family walked on the beach and SM fell behind, with TM and the appellant arriving back at the car park first. It was alleged that when they arrived at the car park, the appellant opened the campervan and shut the curtains so that no one could see in before telling TM to get undressed. TM complied and stood fully naked in front of the appellant. TM testified that the appellant “licked his lips and looked me up and down suggestively”, but at that point her mother came into view approaching the car park and TM put her clothes on and the window curtains were opened. TM did not tell her mother about this incident.
SM gave evidence of an occasion which she recalled at 80 Mile Beach when she slipped off a rock onto her back and winded herself. She had been walking on the beach with TM and the appellant, but they were ahead of her. When she slipped, she called for help, but TM and the appellant were not nearby. SM estimated that she was unable to get up for 3 or 4 minutes as she had winded herself. When she did get up, she realised that the appellant and TM had returned to the campervan. When she returned to the car park, the appellant and TM were inside the campervan.
The events which gave rise to the charges against the appellant occurred on Father’s Day in 2010. By that time the family had arrived in the Northern Territory. The campervan was stopped on the side of the road. SM prepared a Father’s Day lunch. TM testified that while they were eating lunch, she sat on the appellant’s lap. SM would, from time to time, leave the area where the appellant and TM were seated to do washing or cleaning. TM testified that the appellant would pick up a piece of food and start eating it, but when her mother moved away the appellant would place his fingers under TMs underwear and touch her vagina. When SM returned, he would place those fingers in his mouth and make noises like “Mmm” or say, “It tastes so good”. TM said that the appellant would whisper to her, “You make the food taste so much better.” TM recalled the appellant doing this approximately five times during the lunch period, and described the appellant touching “inside the inner flaps” of her vagina. TM said this made her feel uncomfortable and she kept trying to tell him to stop, but he persisted.
TM testified that after lunch the appellant suggested that she accompany him to look at a tree that they had earlier noticed down the road from where they were parked. The appellant held TM’s hand on the way to the tree, but before they got to the tree the appellant stopped at a bush that was not visible from the road. The appellant placed clothing on the ground before having TM sit down and remove her underwear. TM said that the appellant had her bend her legs and spread them wide and he then engaged in cunnilingus with her. This lasted for a short period, before the appellant had TM perform fellatio on him.
TM testified that the appellant pulled his pants down, revealing that his penis was erect. The appellant demonstrated how TM should perform fellatio. He took hold of TM’s hands and placed them at the base of his penis, and demonstrated how she should move up and down with her head.
TM described that she then performed fellatio on the appellant, and that this went on for about 10 minutes before she stopped and said, “It’s been too long. Mum will be suspicious. We need to go back.”
On the way back to the campervan, the appellant told TM not to tell SM about what had happened, as she would not understand. TM testified that she felt scared and uncomfortable, and that she recognised that what had happened was not something a parent would usually do with a child. TM said that she felt ashamed and disgusted. She thought that she should have said “no” and done more to stop it. TM testified that she thought her mother would disown her if her mother found out what had happened, and she was also worried about jeopardising her mother’s happiness.
In cross-examination, TM agreed that she had, at various times, recalled differently the order in which the events of cunnilingus and fellatio occurred.
SM gave evidence that on Father’s Day 2010 she had a “big clean-up day” including multiple loads of washing. She was able to recall this as she had kept a contemporaneous diary for the trip. Relevant pages of the diary were tendered before the jury.
TM also gave evidence that while on this trip around Australia the appellant had caught her watching pornography through a website. The appellant did not say anything but just smiled. TM gave evidence that something similar happened after the trip, at which time the appellant said, “That’s okay, just make sure your mum doesn’t catch you”. TM gave evidence that at an earlier time she had seen the appellant watching a pornographic video.
SM gave evidence that she, TM and the appellant each had computers with them on the trip around Australia, and that they had purchased a mobile device that gave them Internet access from anywhere they had mobile telephone coverage.
The Crown also called evidence of events which occurred after the charged events. TM testified that after the charged events her relationship with the appellant changed. She did not see him as a father figure anymore and she did not want to go anywhere alone with him. She said that she distanced herself from the appellant and that she would become angry and upset when the appellant and her mother tried to convince her to call the appellant “Dad”.
SM gave evidence that prior to Father’s Day 2010, TM appeared to be fine and to be enjoying herself. SM told the jury that this attitude changed during the trip and that TM started to get bad headaches, and she became “less actively involved”, not wanting to join SM and the appellant in some activities. At some point during the trip, which SM could not precisely identify, TM had stopped calling the appellant “Dad”. SM said that towards the end of the trip, TM “seemed very distant, both to him and to myself”. The appellant became critical of TM, criticising her weight and her behaviour. This did not improve when the family returned to Western Australia. This evidence by SM was circumstantial evidence supporting the evidence of TM.
The Crown also relied on evidence of complaints made by TM. A former boyfriend of TM, RJR, gave evidence at the trial that he met TM when they were in year 9 and they dated for a few years. RJR testified that he observed that TM did not have a good relationship with the appellant and that she would try to avoid him. RJR told the jury that there were two or three times that he and TM discussed the appellant, and that she would get quite emotional. RJR stated that TM would never say too much about the appellant, “Just that she wasn’t sure about him, or thought that he was a bad person”. Subsequently, TM gave RJR a letter in which she set out, in general terms, what had occurred between her and the appellant in the campervan when it was parked outside TM’s aunt’s house in Dampier. She also set out her version of the events that occurred at 80 Mile Beach. The letter also contains what is clearly a version of the Father’s Day events.
A friend of TM, LO, gave evidence that when he was around 8 to 10 years old TM told him that the appellant had touched her, but he could not recall any other details of what TM said at the time.
In January 2017, the year that TM was to turn 16, SM had a conversation with TM about TM’s then boyfriend staying over at their house. SM testified that she told TM that this could not occur until TM turned 16. SM said that in the course of that discussion TM said, “I’m not even sure that I am virgin” (sic). SM asked TM whether she was already sexually active and TM said, “No”. TM then asked if SM had “been interfered with” and TM said, “Yes”. TM refused to name the person and became angry when SM tried to raise the issue again about one month later.
About one year later, on 11 March 2018, TM told SM while they were driving that the appellant was the person who had interfered with her. SM gave the following evidence about this revelation:
I was like – I was, like, no, the serious type reaction. “You’ve got to be kidding,” I think I said. “No you’re kidding.” And she said “I’m sorry, Mum”. And she said, “It started at [my aunt’s]” and that he had started off with kissing and cuddling, and kept asking her if she was comfortable with it and if it was okay; but she said after a while he stopped asking. And he had got her to strip for him on more than one occasion; that he had cuddled her while he was naked; and that there was an occurrence on Father’s Day where – and that’s where it stopped. I asked her if he had had sexual intercourse with her, she said no. I asked her if he had fondled her, she said no. And she said “He made me give him oral sex, and he reciprocated.”
Soon after TM made this revelation to SM, SM texted the appellant telling him that TM had talked to her about what had happened while they were on the trip around Australia and asked the appellant to be out of the house when she and TM returned home . The appellant’s initial responses, by text, included “? I don’t follow” and “OK don’t understand I’ll go for a coffee”. SM advised the appellant that TM was thinking about going to the police.
SM dropped TM off at a friend’s place, and returned to her home. When she arrived, the appellant was not there. She telephoned the appellant and he returned home and they discussed what TM had said to SM. SM gave the following evidence regarding her interactions with the appellant after he returned home:
And that discussion – what did he do during that discussion? --- His first words when he came home – he sort of said he didn’t understand, and he came home, and the first thing he said to me when he walked in the door is, “I never hit her. I never hurt her”. And I said to him, “That’s not what she accused – she is not accusing you of hitting her” and I told him what she had said, and he denied it. He said that she had mental health issues and that she had convinced herself that was true. He said it didn’t happen, she had made it up.
Did he say anything about – anything further about…? --- Yeah. He was very much that she was lying; that yeah, stepchildren do this; that she was only going to be home for another 12 months; that I wouldn’t cope without him financially, that I would never get a house at my age without him.
And in terms of – while you were having these conversations did (the appellant) do anything? --- Yes. I went off to the toilet, and I came back, and he was down the other end of the room on his computer. I remember being quite shocked that he had moved, and asked him what he was doing, and he said – basically his life was over, so he was cleaning up, and he was printing off the will, but he would have to wait until Monday to get it signed. We had already had wills done, so I thought that was funny. I approached him, and he shut down his computer. I went to bed. The next day we resumed the conversation at the same basic point, and he again was trying to clean up down at his computer desk. And I noticed he took a couple, maybe three – two or three hard drives and some paperwork, looked like a notebook, and he put them into our green rubbish bin, which he had brought around. And then he went to the shed and started cleaning up the shed. He was looking for the keys to the motorhome, he said. And he was cleaning up and putting a lot of stuff in the bin. He then went – we had two little dogs. He went to a bin that he always put the dog poo in, and put that in the bin on top of everything and told me he did that because it was too heavy for me to lift, so he would get rid of it before he went.
When he took the hard drives and the notebook, did you ask him anything about what he was doing? --- Yes, I did. I asked him what he was doing, and he said they were broken and they weren’t formatted, or something along those lines, and so he was throwing them out.
Later that day, SM collected TM from school, they each packed their bags and they left the house without telling the appellant. SM then contacted the police by telephone. SM told police in that call that the appellant had thrown things in the bin. The police officer to whom she spoke suggested that she retrieve the bin, which she did with the assistance of her son. The police later retrieved the hard drives from the bin and were able to extract photographs of the trip around Australia from those hard drives. The hard drives contained no incriminating evidence.

The following day, TM participated in a pretext telephone call to the appellant at the behest of the police. In that call, TM attempted to persuade the appellant to admit to having sexually assaulted her, but the appellant vehemently denied the suggestions.
Ground 1 – The trial judge erred in admitting evidence of the appellant putting material into a rubbish bin
At the commencement of the trial, counsel for the appellant objected to the Crown leading evidence of the accused’s conduct in placing the computer hard drives and other material into the rubbish bin while engaging in a conversation with SM about TM’s allegations the day after TM had made the allegations to SM. No objection was taken to the Crown putting the photographs extracted from the hard drives and other material disposed of by the appellant into evidence, but objection was taken to evidence of the appellant placing the hard drives and material into the bin.
In the course of argument regarding the appellant’s objection, the Crown prosecutor specifically stated that the Crown was not relying on the impugned evidence as evidence of a “consciousness of guilt” on the part of the appellant. A submission that conduct on the part of an accused person displays a consciousness of guilt is to the effect that the tribunal of fact could infer that the accused engaged in the conduct because they were conscious of their guilt of the offence with which they are charged. As the learned authors of Cross on Evidence explain:
It is part of human experience that persons who are conscious of their guilt of some crime or their liability for some civil wrong will often, on being accused of the crime or wrong, flee, resist arrest, escape from custody, assume a false name, attempt suicide, or remain silent, or answer evasively, or lie, or destroy evidence, or conceal evidence, or fabricate evidence, or falsely suggest guilt in others, or procure witnesses to remain silent or absent themselves or commit perjury, or refuse to supply evidence. For that reason, conduct of this kind may, depending on the circumstances, be treated as an admission (of guilt) or as corroboration.[3]
(Footnotes omitted)
While the Crown disavowed any intention to rely upon the evidence as evidence of consciousness of guilt, it nevertheless submitted that the evidence was admissible as being relevant to the jury’s assessment of the appellant’s credit for the purpose of determining the weight to be given to the appellant’s denials of wrongdoing in the pretext telephone call. The trial judge accepted the Crown’s submission and ruled that the evidence was admissible. It is presently unnecessary to set out in full the submission made by the Crown at trial, because in the course of this appeal counsel for the respondent, who was not trial counsel, conceded that the basis for admission of the evidence advanced by the Crown at trial was incorrect. Nevertheless, counsel appearing for the respondent on the appeal submitted that there were two alternative bases for the admission of the evidence.
The first basis upon which the respondent submitted that the evidence was admissible was that it provided context to the denials of the offending conduct made by the appellant to SM at about the time the appellant placed the hard drives in the bin. In its written submissions (at paragraph [43]), the respondent expressed it as follows:
This evidence as to his conduct, including what has been termed the “binning” evidence, provided the context to the appellant’s denials. The evidence had the capacity to show the state of mind at the time he was making one set of the denials, that is that he was angry (as put by the Crown), or that he wanted nothing to do with the complainant any more (as also put by the Crown). This evidence, properly understood, was simply part and parcel of the evidence of his denial. If the appellant wished to have the four denials before the jury, which the respondent assumes was the case here, then the circumstances of those denials was also admissible before the jury. To have asked the jury to assess the denials in isolation without the surrounding circumstances would have been misleading.
The second basis upon which the Crown submitted that the evidence was admissible was that it established the provenance of the photographs which were taken from the hard drives and which were tendered into evidence at the trial.
In considering this ground of appeal, the starting point is the provisions of the Evidence (National Uniform Legislation) Act 2011 (NT) (‘the ENULA’). Evidence that is relevant in a proceeding is admissible in the proceeding, and evidence that is not relevant in the proceeding is not admissible.[4] Evidence is relevant if, should it be accepted, it could rationally affect (directly or indirectly) the assessment of the probability of the existence of a fact in issue in the proceeding.[5]
The requirement that evidence be capable of rationally affecting the assessment of the probability of a fact in issue in a proceeding in order to be admissible means that the party seeking to adduce the evidence must be able to identify a rational thought process in which the jury or other tribunal of fact could engage in using the evidence to assess the probability of a fact in issue. It is important in the present case to clearly identify the facts which the respondent now asserts the evidence was relevant to establishing. The first submission by the respondent is that the evidence had the capacity to show the appellant’s state of mind at the time that he made the denials of the alleged offending conduct to SM. In particular, the respondent submitted that the jury could find that the appellant was angry or that he wanted nothing more to do with TM. Evidence that the appellant was angry when confronted with the allegations made by TM could not rationally assist the jury in assessing the weight to be given to the appellant’s denials of those allegations because it does not rationally point one way or the other in terms of guilt or innocence. Anger on the part of an innocent person confronted with such allegations would hardly be unexpected. Anger on the part of a guilty person confronted with such allegations would also not be unexpected.
A jury could rationally infer from the appellant’s actions in discarding the hard drives that the appellant was angry and/or that he wanted to have nothing further to do with TM. These were rationally available inferences. Other inferences were undoubtedly available. There being no evidence before the jury that the hard drives were not, in fact, broken, a rational explanation for the conduct of the appellant in disposing of the hard drives was that they were broken, as he had said. Counsel appearing for the Crown at trial appears to have assumed that because police were able to access photographs on the hard drives they were, in fact, not broken. The trial judge quite properly reminded the jury that such an assumption could not be made, and that police had the capacity to extract material from broken drives.
Accepting that the jury could rationally infer from the appellant’s conduct that he was angry and/or wanted to have nothing further to do with TM does not mean that the evidence of his conduct in disposing of the hard drives was admissible. The obvious question is: how does establishing one or more of these states of mind on the part of the appellant rationally assist the jury in assessing the weight to be given to his denial of the allegations made against him? During the hearing of the appeal, counsel for the respondent could not articulate a rational thought process which a juror could engage in to allow the juror to use such an inference to discount the weight to be given to the appellant’s denials of offending. This is understandable because there is no such process.
It was submitted by the respondent that to allow evidence of the appellant’s denials to be placed before the jury without evidence of the “surrounding circumstances” in which the denials were made would have been “misleading”. It is a sufficient answer to this submission to repeat that the respondent was unable to articulate any rational thought process by which a juror could have used the evidence to discount the weight to be given to the appellant’s denials. Mere contemporaneity of the conduct with the appellant making the denials is insufficient to make evidence of the conduct admissible; the touchstone of admissibility is the test found in s 55 of the ENULA. In addition, it is not obvious how evidence of the appellant’s denials would (or could) have been misleading in the absence of evidence of the appellant’s actions in discarding the hard drives and other material.
The respondent's submission that the evidence was admissible to establish the provenance of the photographs extracted by the police from the hard drives and admitted as evidence at the trial should not be accepted. It was made clear by counsel for the appellant during submissions on the admissibility of the evidence at trial that no objection was taken to the Crown placing those photographs into evidence. This statement by the appellant’s counsel did not constitute a formal admission as permitted by s 184 of the ENULA, but it was not challenged by the Crown. In any event, the Crown did not suggest that the evidence was being adduced for the purpose upon which the respondent seeks to rely in this appeal. Counsel who now appears for the respondent seeks to advance reasons for the admission of the evidence that were not advanced at trial and which ignore the way in which the trial was conducted.
It was suggested by the respondent during the appeal that the Crown had no obligation to adduce evidence of the appellant’s exculpatory statements at the trial and had done so because the appellant wanted evidence of those denials placed before the jury. The respondent submitted that if evidence of the denials was to be placed before the jury for the appellant’s benefit, then evidence of the appellant’s conduct at about the time he made the denials should also be admitted. This should also be rejected.
There was undoubtedly a forensic advantage for the appellant in having placed before the jury evidence of his immediate denials of the allegations when they were first put to him. This is conduct consistent with innocence. In the absence of a demonstrable, rational basis upon which the jury could have used the evidence of the appellant’s conduct to discount the weight to be given to his denials, however, the evidence of the appellant’s denials and that of his conduct were essentially unconnected, except that they both occurred at about the same time. As earlier observed, this is insufficient to establish relevance and thus make evidence of the appellant’s conduct admissible.
In our opinion, evidence of the appellant’s conduct in disposing of the hard drives was not demonstrated to be relevant and was inadmissible. The trial judge, in the terms of s 411(1) of the Code, made an error of law in determining that the evidence was admissible. By itself, however, the decision to admit this material did not result in a substantial miscarriage of justice such that the verdicts should be set aside.
Ground 2 – A miscarriage of justice resulted from the failure of the trial judge to give the jury directions regarding the evidence of the appellant putting material into a rubbish bin
In order to address this ground, it is necessary to set out some further background regarding the way in which the evidence of the appellant’s conduct in disposing of the hard drives and other material was dealt with before the jury.
As already noted, the Crown’s submission to the trial judge was that the evidence was relevant, in some ill-defined manner, to the credibility of the appellant’s denials of the allegations made by TM. In her opening address to the jury, the Crown prosecutor mentioned that the jury would hear evidence that, during the discussion between SM and the appellant regarding TM’s allegations, the appellant started throwing items into a wheelie bin and that these items were later retrieved by SM and provided to police. The Crown gave no indication to the jury at that time of the way in which it would be suggested that the jury could use that evidence.
In her closing address, the Crown prosecutor addressed the issue of the appellant’s conduct regarding the hard drives as follows:
You’ve heard [SM] tell us they took photos and stored those photos of the trip onto hard drives. On the hard drives that were thrown out by the accused when confronted by the allegations are those photos of the trip. The photos were extracted from those drives by the police. When [SM] asked [the appellant] why he was throwing the hard drives out he tells her they’re broken. They’re obviously not, there’s photographs there.
You may well wonder why [the appellant] is throwing out the hard drives and the complainant’s notes that she wrote to him when [SM] confronts him. Is he just angry? Is he looking to distance himself from the complainant and/or the trip? It’s a matter for you, jury, you’re the fact-finders. The prosecution submits to you that when considering his denials and the text messages and the pretext calls you should also consider this behaviour and consider whether it says something about the denials: does it affect his credit; does he protest too much when confronted while throwing these items out?
Later in her closing address, the prosecutor made submissions regarding the credibility of the appellant, suggesting that some things said by the appellant in the course of his conversations with SM, after SM had told him of TM’s allegations, were not true. In that context, the prosecutor said to the jury:
Another piece of evidence the prosecution submit can be used in this matter, is the throwing out of the hard drives and notes that were made by the complainant when confronted by [SM]. When he’s asked what he is doing by her, he tells her they’re broken. They’re not.
It is perhaps regrettable that the Crown prosecutor expressed herself in the above extracts in such a way that the jury may have understood that the Crown was alleging that the “notes made by the complainant” and which were disposed of in the bin by the appellant were notes which TM made and gave to the appellant after the appellant had been confronted by SM with the allegations. The notes referred to were clearly made at a much earlier time and prior to the commencement of the alleged offending. No point was taken on behalf of the appellant about this matter at trial or on appeal. It is assumed that counsel for the appellant was satisfied, in the context of the trial, that the jury would have understood that the notes were made before the alleged commencement of the offending.
It is clear from the above extracts from the closing address of the Crown that the Crown was submitting to the jury, firstly, that the appellant had lied to SM when he told her that the hard drives were broken and, secondly, that the jury should consider whether the appellant disposed of the hard drives and notes because he wanted to distance himself from TM and/or the trip during which the photographs were taken and during which it was alleged that the offending occurred. While the Crown did not specifically allege that the appellant had lied about the hard drives being broken, that is the only way that the jury could have understood the submission. The alternative, that the appellant was honestly mistaken about the hard drives being broken, could hardly be relevant to the jury’s assessment of the appellant’s credibility in denying the allegations.
The Crown’s invitation to the jury to speculate on the appellant’s reason for his conduct was an invitation to infer that the reason had something to do with the conduct alleged by TM. By inviting the jury to reason that the appellant disposed of the hard drives and other material in order to distance himself from TM and the trip during which TM alleged that the offences occurred, the Crown was clearly inviting the jury to engage in consciousness of guilt reasoning. That is, he behaved in that way because he knew he had done those things alleged by TM. Although the Crown’s submission on the matter was cast in terms of “credit”, the necessary implication extended beyond that use of the material. The alternative explanation, that the appellant’s conduct was a result of anger or sadness at being the subject of a false accusation, could not assist the jury in assessing the appellant’s credit or in assessing the weight to be given to the appellant’s denials. The jury were directed by the trial judge that nothing incriminating had been found on the hard drives, but there was always the possibility that the jury might reason that the appellant was afraid that there might be.
In his closing address to the jury, counsel for the appellant emphasised that there was no evidence of how police were able to extract the photographs from the hard drives. Counsel submitted to the jury, “There's no evidence one way or another as to whether the hard drives were broken or had something wrong with them that might cause [the appellant] not to be able to get them to work”. Counsel for the appellant did not address the Crown’s submission regarding the inference to be drawn about the appellant’s state of mind from the appellant’s conduct in disposing of the hard drives.
In his final summation to the jury, the trial judge said regarding the evidence of the appellant disposing of the hard drives and other materials:
The defence says that pretext telephone conversations support the defence case. What they reveal is, from the very outset, from beginning to end, the accused has denied the allegations that have been made against him. More specifically, the defence says that the accused’s conduct in throwing out hard drives and other material is consistent with someone at the end of a relationship, organising their affairs as they are about to leave.
Significantly, there is no evidence before you that the hard drives were not damaged; no evidence that they were undamaged and in working order. All there is is evidence that the police managed to extract certain information from them, not how they went about it or what steps they had to take to get the information. You simply have that evidence.
So, you have now got, pretty well in the exhibit material, all of the information that was extracted and there is nothing incriminating in any of that evidence. It is a matter for your ultimate assessment as you are the triers of the facts. But when you go through that evidence, you may well find that there is absolutely nothing incriminating that emerges as a result of the police’s examination of those hard drives.
It is apparent from the above that the trial judge addressed the suggestion made by the Crown that the appellant had lied when he told SM that he was throwing out the hard drives because they were broken. It is also apparent that the trial judge did not address the second aspect of the Crown’s submission regarding this evidence, being that the jury could draw an inference from this evidence that the accused acted as he did because he knew that he had done the things alleged by TM.
The trial judge did not give any further or other direction in relation to the limitations on the use of the evidence of the appellant disposing of the hard drives and other materials, and nor did counsel for the appellant ask the trial judge to give any different or further directions on the topic.
The appellant’s submission is that even where the prosecution does not rely on conduct of an accused person as demonstrating consciousness of guilt but there is a real risk that the jury may reason in that way, or engage in an impermissible process of reasoning, then the jury should be directed that they cannot use the evidence in that way. The appellant cited in support of this proposition the decisions of Zoneff v The Queen,[6] R v Gould,[7] R v MC,[8] Benbrika v The Queen,[9] R v Sekrst,[10] Attwater v The Queen,[11] Dent v The Queen,[12] and R v WBS.[13]

The cases cited by the appellant all involve the allegation that the accused had lied. In some cases it was suggested that the alleged lie revealed a consciousness of guilt, while in others that suggestion had not been made to the jury. A common feature of the cases is the obligation on the part of a trial judge to appropriately direct the jury about how such evidence may be used. In particular, where there is a submission that an alleged lie reveals a consciousness of guilt, the jury must be directed on the preconditions of which they must be satisfied before using the evidence in that way. Even where no clear submission is made that the alleged lie reveals a consciousness of guilt, but there is a real risk that the jury may use evidence of the lie to reason that the accused is guilty, the jury should be directed as to the ways in which they may and may not use the evidence.
The alleged telling of a lie by an accused person about a matter relevant to a charged event is the most common form of post-offence conduct alleged by the prosecution to reveal a consciousness of guilt. As the extract from Cross on Evidence set out at [33] above makes clear, however, it is not the only type of post-offence conduct that is capable of demonstrating consciousness of guilt. In McKey v The Queen (‘McKey’),[14] Latham J, with whom Whealy JA and Hislop J agreed, said:
The law has always recognised the legitimacy of reliance upon post-offence conduct in support of a prosecution case. The most common example of such post-offence conduct is lies told by an accused (Edwards v The Queen (1993) 178 CLR 193; 68 A Crim R 349) although an accused’s silence in response to an allegation which he/she might reasonably be expected to deny (R v MMJ (2006) 166 A Crim R 501), the destruction of evidence (R v Nguyen (2001) 118 A Crim R 479) and attempts to influence the evidence of witnesses (R v Smit [2004] NSWCCA 409) all fall into the same category. Similarly,
Flight from justice, and its analogous conduct, have always been deemed indicative of a consciousness of guilt… It is universally conceded today that the fact of an accused’s flight, escape from custody, resistance to arrest, concealment, assumption of a false name, and related conduct, are admissible as evidence of consciousness of guilt, and thus of guilt itself…
Wigmore on Evidence, Vol 2 (1979) para 276(4).
Similarly, in Pollard v The Queen,[15] evidence that an accused hid his mobile telephone from police where it was alleged that the telephone had been used in the commission of an offence was admitted on the basis that it could support an inference of consciousness of guilt on the part of the accused.
The decision in McKey warrants consideration in greater detail, as there are a number of parallels between the circumstances in that case and those in the present. In McKey, the appellant appealed his conviction after trial by jury on one count of sexual intercourse with a child above the age of 14 years and under the age of 16 years. The Crown case rested entirely upon the evidence of the complainant. The offence allegedly occurred at the home of the complainant’s sister (KN) where both the complainant and the appellant were staying. The appellant was to be the best man at the wedding of his long-standing friend to KN. After the complainant disclosed the alleged offending to KN, attempts were made to speak to the appellant about the allegation. At trial, the appellant gave evidence that after becoming aware that the allegation was being publicly repeated he was unhappy that his name was being tarnished but he took no steps to contact KN or his friend to deny the allegation. The appellant gave evidence denying the allegation, and was cross-examined about his failure to take steps to address the allegations made by the complainant after he became aware of them. The prosecutor suggested to the appellant that the reason why he had not attempted to make contact with KN or his friend was because the allegation was true. This suggestion was denied by the appellant.
On appeal, the appellant submitted that the jury had not been properly directed as to how his silence or inaction after being confronted with the allegation could be used, and in particular how it could be used as evidence of a consciousness of guilt. The appellant submitted that as a consequence of the failure by the trial judge to properly direct the jury on these issues, there had been a miscarriage of justice.
In the Crown prosecutor’s closing address in McKey, the prosecutor submitted to the jury that there were reasons why they would doubt the evidence given by the appellant. In that context, the prosecutor said:
Do you accept, faced with terrible false allegations coming from a long-standing very close mate, that Mr McKey didn’t seek some further information, didn’t seek to tell them that it was false, stop saying anything about it, it just didn’t happen? You might think he’d be protesting his innocence from the rooftops. No, he doesn’t. It’s a matter for you, if you would reject the evidence of the accused entirely.
In giving his reasons for upholding the appeal, with which the other members of the Court agreed, Latham J said, at [35]-[36]:
What was conveyed to the jury on the subject of the appellant’s conduct in response to the allegation? Contrary to the Crown’s submissions, I am not persuaded that the answer to that question resides solely in the respective closing addresses. If the cross examination of the appellant gave rise to the risk of consciousness of guilt reasoning in the minds of the jury, it was incumbent on the charge to seek clarification from the Crown prosecutor and to direct the jury accordingly.
The Crown prosecutor’s attempt in his closing address to the jury to characterise the appellant’s conduct as somehow relevant to his credibility did not remove the sting inherent in the cross examination. The italicised passage… repeated the theme that the appellant’s conduct in not “protesting his innocence from the rooftops” was consistent with a guilty mind.
Later, at [40]-[42], Latham J said:
In the instant case, the appellant’s conduct assumed considerable significance in the trial, particularly when the trial was conducted, and the jury were instructed, on the basis that the only evidence of the offence came from a complainant. It was a “word against word” case, which rendered it more likely that the jury would cast around for evidence tending to support the allegation. The Crown prosecutor’s cross-examination, and to a marginally lesser extent, his closing address presented the appellant’s post-offence conduct as potentially supportive of the prosecution case.
….
In the circumstances of this case, I have come to the view that it was necessary for the trial judge to give a direction to the jury which would guard against the unjustified drawing of an inference adverse to the appellant. The cross examination of the appellant unequivocally suggested that the appellant’s conduct constituted an implied admission. At the very least, the jury should have been directed that, before they could infer that the appellant behaved as he did because he was conscious of his guilt of the offence, they were required to examine that inference to determine whether it was a reasonable and justifiable one and they were required to exclude any alternative inference that was inconsistent with guilt.
In McKey, as in the present case at trial, the Crown purported to rely on the accused’s post-offence conduct for the purpose of attacking the credibility of the accused. The fact that it was not the intention of the Crown to suggest that the accused had displayed a consciousness of guilt which the jury could use as an implied admission of guilt was not determinative of whether the trial judge had an obligation to appropriately direct the jury as to what preconditions attached to the use of the evidence as evidence of consciousness of guilt. Consciousness of guilt reasoning was suggested by the Crown through a combination of cross-examination and the Crown’s final address to the jury. As such, the trial judge had an obligation to deal with it. In the present case, while it may be accepted that the evidence of the accused disposing of the hard drives and other materials did not assume the same prominence as did the impugned evidence in McKey, for the reasons already given the Crown’s closing address was apt to suggest to the jury that it engage in an inferential reasoning process that the appellant had acted out of a consciousness of his guilt.
On this appeal, the Court received an affidavit affirmed by trial counsel for the appellant stating that he cannot now recall having made a forensic decision not to seek a direction from the trial judge in relation to consciousness of guilt. Whilst trial counsel could not be certain, he believed that it is likely that he did not turn his mind “to the possibility of such a direction”.
In light of that failure, the Crown sought to rely upon the provisions of Order 86.08 of the Supreme Court Rules 1987 (NT) which were in the following terms:
No direction, omission to direct or decision in relation to the admission or rejection of evidence of the Judge of the court of trial shall, without the leave of the Court of Criminal Appeal, be allowed as a ground of appeal, or for an application for leave to appeal, unless objection was taken at the trial to the direction, omission or decision by the party appealing or applying for leave to appeal.
The Crown drew the Court’s attention to the decision of the New South Wales Court of Criminal Appeal in Edwards v R,[16] where Dhanji J, with whom Bathurst CJ and Rothman J agreed, said at [69]-[72] with regard to the equivalent provision in r 4.15 of the Criminal Appeal Rules (NSW):
No request for directions was made with respect to any of the complaints made under grounds 1, 2 and 3. In those circumstances, r 4.15 of the Criminal Appeal Rules applies. Rule 4.15 directs attention to the manner in which the case was conducted at trial and the issues in dispute. Even in the absence of r 4.15 the approach at first instance would be relevant to whether the applicant can establish a miscarriage of justice. As Gaudron J said in TKWJ v The Queen (2002) 212 CLR 124; [2002] HCA 46 at [26], quoting from the judgment of Fullagar J in Mraz v The Queen (1955) 93 CLR 493; [1955] HCA 59 at 514:
[26] The question whether there has been a miscarriage of justice is usually answered by asking whether the act or omission in question ‘deprived the accused of a chance of acquittal that was fairly open’. The word ‘fairly’ should not be overlooked. A decision to take or refrain from taking a particular course which is explicable on [the] basis that it has or could have led to a forensic advantage may well have the consequence that a chance of acquittal that might otherwise have been open was not, in the circumstances, fairly open. (footnotes omitted)
Her Honour in support of this proposition referred to Doggett v The Queen (2001) 208 CLR 343; [2001] HCA 46 at [55], per Gaudron and Callinan JJ; and Suresh v The Queen (1998) 72 ALJR 769; [1998] HCA 23 at [6], per Gaudron and Gummow JJ.
Gaudron J’s observations echo the earlier observations of Gleeson CJ in R v Birks (1990) 19 NSWLR 677 at 685, where his Honour referred to this Court having “a power and a duty to intervene in the case of a miscarriage of justice, but what amounts to a miscarriage of justice is something that has to be considered in the light of the way in which the system of criminal justice operates.” His Honour later said, in Nudd v The Queen (2006) 80 ALJR 614; [2006] HCA 9 at [9]:
A cardinal principle of such litigation is that, subject to carefully controlled qualifications, parties are bound by the conduct of their counsel, who exercise a wide discretion in deciding what issues to contest, what witnesses to call, what evidence to lead or to seek to have excluded, and what lines of argument to pursue. The law does not pursue that principle at all costs. It recognises the possibility that justice may demand exceptions. Nevertheless, the nature of adversarial litigation, with its principles concerning the role of counsel, sets the context in which these issues arise.
...
It is the fairness of the process that is in question; not the wisdom of counsel. As a general rule, counsel’s decisions bind the client. If it were otherwise, the adversarial system could not function.
That proposition has an active part to play in the present matter. Further, as has been stated on numerous occasions, an appeal under the Criminal Appeal Act “does not exist to enable an accused who has been convicted on one set of issues to have a new trial under a new set of issues which could or should have been raised at the first trial”: ARS v R [2011] NSWCCA 266 at [148] referring to R v ITA (2003) 139 A Crim R 340; [2003] NSWCCA 174 at [94]; R v Fuge [2001] NSWCCA 208; (2001) 123 A Crim R 310 at 319; [2001] NSWCCA 208; Darwiche v R (2011) 209 A Crim R 424; [2011] NSWCCA 62 at [170].
The Crown also referred to the decision of R v Moussa,[17] where Howie J, with whom Giles JA and Carruthers AJ agreed, said, at [56]-[60]:
I have already indicated that in respect of this ground of appeal an affidavit by trial counsel was filed on behalf of the appellant. This is in accordance with a practice that has developed in relation to applications for leave under rule 4 of the Criminal Appeal Rules in respect of a point not raised at the trial. In R v Hines (1991) 24 NSWLR 737 at 743 Sully J, with whom the other members of the Court agreed, stated:
For my own part, I consider that it should become the fixed practice of this Court that in a case where the person who is to appear for the appellant on the hearing of the appeal did not appear for the appellant at the trial, there should be filed an affidavit which puts before this Court such explanation as it might be desired to advance for the failure to take, at the proper time and in the proper form, at trial an objection upon which it is sought to rely on the hearing of the appeal. I feel very strongly that a failure on the part of this Court to take such a stand will detract seriously from the efficient administration of criminal justice according to law. That efficient administration of criminal justice requires imperatively, -- although, no doubt, among other things, -- the affording by the legal profession of proper assistance to trial judges. A fundamentally important aspect of that professional duty of assistance is the duty to take at the proper time and in the proper way proper objections to the trial judge's summing-up in a particular case. If, in a particular case, counsel or a solicitor representing an accused person simply overlooked the point at trial, then I can see nothing harsh or unreasonable in expecting that practitioner to own up to the oversight when the point is sought to be raised for the first time on appeal. If the practitioner has some other explanation of substance for the failure to take the point at trial, then, again, I can see nothing untoward in this Court's expecting to be told what the explanation might be. Such an approach applied consistently and sensibly by this Court would, I venture to suggest, instil into the conduct of criminal trials a degree of intellectual discipline, to say nothing of proper professional pride and responsibility, all of which qualities appear to me, if I may say, to be sadly lacking, not, to be sure, in all criminal trials, but certainly in a good many.
Unfortunately Sully J's hope that such a procedure would encourage counsel to fulfil their duty to assist the trial judge has not been realised to any significant degree, if at all. However, the importance of this type of material has been recognised by other members of this Court, although with some reservations, see R v Leonard (NSWCCA, unreported, 4 August 1993) but cf R v Bryant (NSWCCA, unreported, 27 June 1994).
It has been my experience, limited as it is, that counsel appearing for the appellant in this Court often consider that it is sufficient to justify the grant of leave under rule 4 that an affidavit is placed before the Court from trial counsel to the effect that, as best as counsel can recall, there was no tactical reason for the failure to take the point. Often trial counsel admits that he or she never thought to take the objection, or was unaware that a direction or warning, such as that raised on appeal, was required. Frequently the material simply indicates that counsel can no longer recall why he or she did not seek the direction or take the objection that is the subject of the ground of appeal.
It seems timely to repeat again what Hunt J had to say in R v Abusafiah (1991) 24 NSWLR 531 at 536:
The requirements of r 4 of the Criminal Appeal Rules do not constitute some mere technicality which may simply be brushed aside. One purpose of the requirement that no misdirection or nondirection may without leave be allowed as a ground of appeal unless objection was taken at the trial is to ensure that the trial judge receives the assistance from counsel to which he or she is entitled in the task of giving appropriate directions to the jury. If a summing-up contains some error which could easily have been cured once the judge's attention had been drawn to it and if counsel for the accused to whose detriment the error fails to comply with his or her duties to draw the judge's attention to that error, any suggestion that such detriment automatically entitles the accused to a new trial does not strike a sympathetic chord in the hearts of those who see the right to a fair trial as operating in favour not only of the accused but also of the Crown which prosecutes on behalf of the whole community. The Criminal Appeal Act 1912 does not exist to enable an accused who has been convicted under one set of issues to have a new trial under a new set of issues which he could and should have raised at the first trial.
It may well be the case that, if the failure to seek a direction or warning was a result of a considered and competent decision made for tactical reasons, it would be virtually impossible for the appellant to obtain leave to rely upon the point because no miscarriage of justice could have occurred. But in my view it should not be taken to be the case that leave will automatically be granted simply because the proffered explanation is that counsel overlooked the point or was unaware of the law on the subject. Nor is it more likely that leave will be granted simply because counsel can no longer indicate why the point was not taken at the trial.
Justice Howie’s comments must be considered in the light of the fact that the failure of trial counsel to seek a direction from the trial judge in that case was clearly a considered decision by experienced trial counsel for the purpose of deriving a perceived forensic advantage for the accused. It is also not without significance that after the passages set out above, Howie J went on to say:
At the end of the day the question, with which this Court is concerned, is whether the conduct of the trial may have resulted in a miscarriage of justice and that question is not necessarily answered in favour of the appellant simply because of decisions, errors or oversights by counsel falling short of incompetence. Trial counsel has a duty both to the client and the Court to take objections or seek re-directions where appropriate: R v Roberts [2001] NSWCCA 163. Like other aspects of the conduct of defence counsel during the course of the trial, a failure to seek a direction or warning will not necessarily result in a miscarriage of justice, even if counsel was negligent: R v Birks (1990) 19 NSWLR 677 at 685. If leave is required under rule 4, then the applicant has to persuade this court that a miscarriage of justice may have occurred before leave is granted: Tripodina and Morabito (1988) 35 A Crim R 183 at 191; R v Williamson and Morrell (NSWCCA, 11 October 1991). On the other hand, if the point is taken at trial, the Crown will have the onus of persuading this Court that there had been no substantial miscarriage of justice: Clarke (1995) 78 A Crim R 226.

Order 86.08 of the Supreme Court Rules was repealed by the Supreme Court Amendment (Appeals) Rules 2022, which took effect on 23 December 2022, prior to the appellant being granted leave to appeal on 25 January 2023. It was not replaced by a provision of similar effect. Even in the absence of a requirement for leave, the manner in which the defence was conducted at trial will bear upon both the question of whether there has been an error of law and the question whether a miscarriage of justice has occurred. Although the matter is not entirely settled, the better view is that a trial judge cannot make an error of law by failing to properly direct the jury in circumstances where a request for the relevant direction was not made at trial.[18] In that case, the question will be whether a failure to provide a particular direction constituted such a departure from the proper conduct of the trial as to constitute a miscarriage of justice. The operation of this third limb of the common appeal provision is not contingent on the demonstration of error of law;[19] and the question whether there has been a miscarriage of justice notwithstanding a failure by defence counsel to request the relevant direction will depend upon the reason for that failure. The failure of trial counsel to request a direction of the type it is now suggested was required is a relevant consideration in determining whether there has been a miscarriage of justice, but it is not determinative.[20] The guiding principle is that expressed by Ashley AJA in R v MMR at [94]:[21]
There is a strong inclination to hold a party on appeal to a course adopted at trial, particularly if the course likely involved a deliberate forensic decision. The reasons why that should be so have been explained in many cases. But reluctance to allow a new case to be put on appeal yields, in a particular case, to the higher need of preventing a miscarriage of justice.
In the circumstances of this case, the problem before this Court only arose because of the ill-considered determination of trial counsel for the Crown to pursue the admission of the evidence based upon what the respondent now accepts to be an incorrect understanding of the law. The confusion that apparently arose at trial was compounded by the Crown’s failure to clearly identify from the outset that the Crown would seek to rely upon the appellant’s statement that he was disposing of the hard drives because they were broken as a lie, but a lie relevant only to the credit of the appellant. It was not until the Crown’s closing address that it became clear that the Crown was alleging that the appellant’s statement was a lie.
Even after the Crown effectively submitted to the jury that the appellant’s statement was a lie, the Crown did not clearly articulate the basis upon which it submitted that evidence of the lie could be used by the jury. The Crown’s submission to the jury involved a confusing conflation of issues, being the truth or falsity of the appellant’s statement and the reason for the appellant disposing of the hard drives and other material. It is not surprising that trial counsel for the appellant focused on the former issue, which resulted in the trial judge giving a firm indication to the jury that there was no evidence that the hard drives were, in fact, broken; and that there was no evidence that any of the material extracted and recovered by police was in any way incriminating.
Where a prosecutor relies on words or conduct of an accused as amounting to a consciousness of guilt, a direction in accordance with Edwards v The Queen is required. Even where the prosecutor does not clearly and expressly rely on post-offence words or conduct as amounting to a consciousness of guilt, the nature of the cross-examination or the content of the closing address may give rise to a risk of misunderstanding such that an Edwards direction is still required. Where the Crown case is clearly that the significance of an asserted lie is limited to the assessment of the accused's credit, it may yet be necessary to give a direction in accordance with Zoneff v The Queen that the jury ought not use the evidence as a consciousness of guilt if there is a risk that the jury may use it in that way. It is incumbent on the prosecutor in the first instance, and on the trial judge in the event of confusion or doubt, to identify with precision the use to which the evidence is sought to be put. As the majority observed in Zoneff v The Queen:[22]
There may be cases in which the risk of misunderstanding on the part of a jury as to the use to which they may put lies might be such that a judge should give an Edwards-type direction notwithstanding that the prosecutor has not put that a lie has been told out of consciousness of guilt. As a general rule, however, an Edwards-type direction should only be given if the prosecution contends that a lie is evidence of guilt, in the sense that it was told because, in the language of Deane, Dawson and Gaudron JJ in Edwards, ‘the accused knew that the truth ... would implicate him in [the commission of] the offence’ and if, in fact, the lie in question is capable of bearing that character. …
Moreover, if there is a risk of confusion or doubt as to the way in which the prosecution puts its case, the trial judge should inquire of the prosecution whether it contends that lies may constitute evidence of consciousness of guilt and, if so, he or she should require identification of the lie or lies in issue and the basis on which they are said to be capable of implicating the accused in the commission of the offence charged.
There were good forensic reasons why the appellant’s counsel might not have requested the trial judge to give the jury a full Edwards-type direction regarding alleged lies. Such a direction would have the potential to give the evidence a prominence it did not deserve and to detract from the trial judge’s indication concerning the state of the evidence. However, the failure to seek a Zoneff-type direction regarding the clear limitations on the use that the jury could make of the evidence of the appellant disposing of the hard drives and other material, particularly regarding consciousness of guilt reasoning, is entirely different. There could be no legitimate forensic or tactical reason for failing to request such a direction. As the trial counsel for the appellant has deposed, it is probable that he did not turn his mind to the issue. That may very conceivably have been the consequence of the confused and confusing way in which the Crown dealt with the evidence. The absence of any forensic or tactical purpose on the part of trial counsel for the appellant, together with the implication contained in the Crown submission concerning the disposal of the hard drives and other material, are sufficient to establish that a miscarriage of justice may have occurred and to warrant a grant of leave to agitate the point on appeal were it required.
In determining the appeal, the primary inquiry for this Court to undertake is whether the trial judge’s omission to give the required direction regarding consciousness of guilt reasoning resulted in a miscarriage of justice. If that question is answered in the affirmative, the secondary inquiry is whether the appeal should nevertheless be dismissed in accordance with the proviso because no substantial miscarriage of justice has occurred.[23]
The principal issue for the jury at the appellant’s trial was the credibility of TM. If the jury could not be satisfied that TM was an honest and reliable witness, they could not convict. TM’s evidence was supported by complaint evidence, but the ultimate source of the complaints was TM.
The appellant did not give evidence, but the jury had before it evidence of his denials and other evidence which may have been consistent with his innocence, such as his apparent initial assumption that TM’s allegation against him was that he had hit her. The jury was obliged to take that evidence into account as evidence which had the capacity to raise a reasonable doubt regarding the reliability of TM’s evidence and the jury’s assessment of the appellant’s guilt. The submission to the jury by the Crown was intended to erode the appellant’s credibility in making his denials. The Crown sought to achieve this result in two ways. The first was to suggest that the appellant had lied to SM about the hard drives being broken. This was adequately and appropriately dealt with by the trial judge. The second was to suggest that the appellant had a motive for disposing of the hard drives and other material connected to the alleged offending, effectively suggesting that the appellant’s conduct was an implied admission.
In a case where credibility was the main issue, it cannot be said that the jury would have convicted the appellant if the Crown had not made the submission it did or if the trial judge had given the jury an appropriate direction regarding that submission. Nor can it be safely said that the jury would not have given any weight to the Crown’s submission. In a case such as the present, the jury would naturally assess whether there was any reason to discount the evidence of TM or the denials of the appellant.
In the recent case of DC v The Queen,[24] this Court had occasion to consider the proviso found in s 411(2) of the Code. After referring to the decisions in Kalbasi v Western Australia,[25] and Hofer v The Queen,[26] the Court said at [55] to [58]:
In both Kalbasi and Hofer, the decision in Castle v The Queen [(2016) 259 CLR 449] is referred to for the proposition that an error bearing on the issue of contested credibility may prevent the appellate court from being able to assess whether guilt was proved to the criminal standard. The operative error in that case was to leave to the jury as an admission what was an unequivocally exculpatory statement. Without evidence purporting to be an admission by the accused, the Crown’s case was circumstantial, and entirely dependent upon the acceptance of the evidence of a witness whose veracity and reliability, having regard to her alcohol and drug abuse and a history of mental health difficulties, were matters which the defence were entitled to have fairly left for the jury’s consideration. The purported admission by the accused bolstered that witness’s evidence, and relieved the jury from conducting an assessment of her evidence in isolation. Having regard to those considerations, the natural limitations of proceeding on the record precluded a conclusion that guilt was proved beyond reasonable doubt.
A similar question arose in the subsequent case of Orreal v The Queen [[2021] HCA 44; (2021) 96 ALJR 78]. In that matter the trial judge had admitted irrelevant and inadmissible evidence concerning sexually transmitted infections. The intermediate court of appeal concluded by majority decision that the impugned evidence could not have affected the jury’s assessment of the reliability of credibility of the complainant. Kiefel CJ and Keane J endorsed the conclusion of the dissentient and stated:
… although an appellate court has the record, from which it may make some assessment of the prosecution's case, there are "natural limitations" when proceeding wholly or substantially on the record. This is not a case like Hofer v The Queen where it may be apparent to an appellate court that the evidence of a witness is glaringly improbable. In such a case the court is not usurping the function of a jury in rejecting evidence that is so improbable as to be incapable of belief. This case is one which turns on the jury's acceptance of the evidence of the complainant. In such a case the appellate court should not seek to duplicate the function of the jury, because it does not perform the same function in the same way nor have the same advantages. [Orreal v The Queen (2021) 96 ALJR 78, [22].]
That conclusion was based on the fact that the admission of the irrelevant evidence had the clear potential for misuse by the jury as supporting the complainant’s credibility, and reflecting adversely on the accused’s character. For that same reason, Gordon, Steward and Gleeson JJ stated:
Where proof of guilt is wholly dependent on acceptance of the complainant's evidence, and a misdirection may have affected that acceptance, the appellate court cannot accord the weight to the verdict of guilty which it otherwise might [Collins v The Queen [2018] HCA 18; (2018) 265 CLR 178 at 191-192 [36]; Hofer v The Queen [2021] HCA 36; (2021) 95 ALJR 937 at 951-952 [60], 965-966 [133]]. The majority of the Court of Appeal erred in placing weight on the verdicts because, as McMurdo JA observed, those verdicts might have been affected by the misuse of the impugned evidence in the absence of a direction to disregard that evidence.
The results in Castle v The Queen and Orreal v The Queen reflect the acknowledgement in Weiss that, having regard to the natural limitations of proceeding wholly or substantially on the record, there may be:
… perhaps many cases, where those natural limitations require the appellate court to conclude that it cannot reach the necessary degree of satisfaction. In such a case the proviso would not apply, and apart from some exceptional cases, where a verdict of acquittal might be entered, it would be necessary to order a new trial.
Similarly, in the present case the Crown’s submission in relation to the irrelevant evidence, in the absence of an ameliorating direction, had the clear potential for misuse by the jury as undermining the appellant’s denials and thereby affecting the acceptance of the complainant’s evidence. A combination of the admission of the irrelevant evidence of the appellant’s disposal of the hard drives and other material, and the failure of the trial judge to give the jury a necessary direction regarding consciousness of guilt reasoning, resulted in a substantial miscarriage of justice.

Disposition

The Court makes the following orders:
1.The appeal is allowed.
2.The verdicts are set aside.
3.The appellant be retried.

_____________________________

[3]Cross on Evidence, LexisNexis Australia, [3275].

[4] ENULA, s 56.

[5]ENULA, s 55.

[6](2000) 200 CLR 234 at [16].

[7] [2009] VSCA 130 at [35].

[8][2009] VSCA 122 at [65]-[66].

[9] (2010) 29 VR 593 at [179].

[10] [2016] SASCFC 127 at [36]-[53].

[11][2021] NSWCCA 17 at [274]-[285].

[12][2021] SASCFC 4 at [80]-[81].

[13] [2022] QCA 180.

[14](2012) 219 A Crim R 227 at [26].

[15](2011) 31 VR 416.

[16][2022] NSWCCA 22.

[17][2001] NSWCCA 427.

[18]Dhanhoa v The Queen (2003) 217 CLR 1 at [49]; cf Gassy v The Queen (2008) 236 CLR 293 at [55]-[56].

[19]TKWJ v The Queen (2002) 212 CLR 124 at [30], [100], [102].

[20] Gahani v The Queen [2022] NTCCA 13 at [141].

[21] [2006] VSCA 226 at [94]. See also Orreal v The Queen [2021] HCA 44 at [16] per Kiefel CJ and Keane J.

[22]Zoneff v The Queen (2000] 200 CLR 234 at [16]-[17]. See also the review of the authorities in the recent decision of the New South Wales Court of Criminal Appeal in MM v R [2023] NSWCCA 236.

[23] Criminal Code 1983 (NT), s 411(2).

[24] [2022] NTCCA 8.

[25] (2018) 264 CLR 62.

[26] (2021) 95 ALJR 937.