Amorn Punna-Ophasi v The Queen

[2012] ACTCA 46

AMORN PUNNA-OPHASI v THE QUEEN
[2012] ACTCA 46 (16 November 2012)

APPEAL AND NEW TRIAL – NEW TRIAL - IN GENERAL AND PARTICULAR GROUNDS – Open to jury to distinguish between offences arising out of different stages of the incident - inconsistent verdicts not unreasonable – trial judge told jury that nothing in accused’s evidence explained certain parts of prosecution evidence – risk that jury might have thought that the onus of explaining prosecution evidence lay on the accused – trial judge suggested accused’s credibility was damaged by possible misrepresentations made to complainant and other witnesses before alleged offences – misrepresentations explicable in context of accused’s evidence – trial judge failed to direct jury adequately about how to deal with accused’s evidence if that evidence was not believed – possibility that jury was unfairly influenced or misled in its task could not be ruled out – substantial miscarriage of justice could not be ruled out – appeal upheld – new trial ordered.

Supreme Court Act 1933 (ACT), s 37O
Court Procedures Rules 2006 (ACT), r 5531

Domican v The Queen (1992) 173 CLR 555
Driscoll v The Queen (1977) 137 CLR 517
Liberato v The Queen (1985) 159 CLR 507
MFA v The Queen (2002) 213 CLR 606
Mraz v The Queen (1955) 93 CLR 493

Quartermaine v The Queen (1980) 143 CLR 595

Raymond Peter Anderson (2001) 127 A Crim R 116

Wilde v The Queen (1988) 164 CLR 365

ON APPEAL FROM A SINGLE JUDGE OF THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

No. ACTCA 26 - 2012
No. SC 222 of 2010

Judges:         Refshauge ACJ, Penfold and Buchanan JJ
Court of Appeal of the Australian Capital Territory
Date:            16 November 2012

IN THE SUPREME COURT OF THE       )          No. ACTCA 26 - 2012
  )          No. SC 222 of 2010
AUSTRALIAN CAPITAL TERRITORY    )
  )

COURT OF APPEAL  )

ON APPEAL FROM A SINGLE JUDGE OF THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

BETWEEN:      AMORN PUNNA-OPHASI

Appellant

AND:THE QUEEN

Respondent

ORDER

Judges:  Refshauge ACJ, Penfold and Buchanan JJ
Date:  16 November 2012 
Place:  Canberra

THE COURT ORDERS THAT:

1. The appeal is upheld.

1. The verdicts of guilty are set aside.

1. There is to be a new trial on counts 3 and 5 of the indictment.

IN THE SUPREME COURT OF THE       )          No. ACTCA 26 - 2012
  )          No. SC 222 of 2010
AUSTRALIAN CAPITAL TERRITORY    )
  )

COURT OF APPEAL  )

ON APPEAL FROM A SINGLE JUDGE OF THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

BETWEEN:      AMORN PUNNA-OPHASI

Appellant

AND:THE QUEEN

Respondent

Judges:  Refshauge ACJ, Penfold and Buchanan JJ
Date:  16 November 2012
Place:  Canberra

REASONS FOR JUDGMENT

THE COURT:

1. The appellant was found guilty, on 7 June 2012, of sexual intercourse without consent and of assault with intent to engage in sexual intercourse.  On two other charges of sexual intercourse without consent and another charge of assault with intent to engage in sexual intercourse, concerning the same complainant, the appellant was found not guilty.

1. An appeal against the two verdicts of guilty was filed on 19 June 2012.

1. The sole ground initially raised by the notice of appeal was that the verdicts of guilty on two of the five counts in the indictment were unsafe and unsatisfactory.  Leave has also now been sought to add further grounds of appeal challenging the charge to the jury by the trial judge.

1. The assertion that the two verdicts of guilty were unsafe and unsatisfactory engages the condition stated in s 37O(2)(a)(i) of the Supreme Court Act 1933 (ACT) that:

(2)       The Court of Appeal on an appeal against conviction must -

(a)       allow the appeal if it considers that -

(i)     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.

1. The two verdicts of guilty are said to be unreasonable in the present case because they were inconsistent with the verdicts of not guilty on the three remaining counts.

1. It was alleged against the appellant that, in Canberra on 6 December 2009, on three occasions he engaged in sexual intercourse with the complainant without her consent and was reckless as to whether she consented, and on two occasions he assaulted her with intent to engage in sexual intercourse.

1. The complainant and a female friend had been out to Civic.  They came back to the complainant’s apartment early in the morning, about 2.00 am.  The friend left for a time but later returned to the complainant’s place at about 6.30 am with her boyfriend and the appellant.  The complainant had not met the appellant before.  After a time the complainant’s female friend and her boyfriend left.  That left the appellant and the complainant alone.

1. The complainant’s evidence was that the appellant tried to kiss her but she pushed him away.  He persisted, but she told him no.  He then forced her into a spare room.  She resisted.  He grabbed her legs, pulled at her clothes and ultimately removed her underwear.  She struggled.  He subjected her to digital and penile penetration.  After a short time, the complainant asked the appellant for some water.  He left the spare room.  She ran to her bedroom and shut her door, which apparently locked automatically when closed.  Her evidence was that she put some different clothes on.  The appellant banged on her door but she stayed in her bedroom until she thought she heard the main door of the apartment closing.  When she came out of her bedroom she found the appellant naked and standing in front of her door.  She tried to close the door but he pushed it open and then assaulted her again and penetrated her again with his penis. 

1. In the course of the struggle, the complainant says that she pulled out some of the appellant’s hair and threw it down.

1. The complainant was found to have bruising on her legs, arms and body.  Twenty hairs were found in a clump in the complainant’s bedroom.  Three of those hairs were tested and found to be anagen, or growing phase, hair which in general would not be lost unless forcefully removed because it is relatively more deeply embedded in the skin layer.  At least two of the hairs tested were found to be consistent with the appellant’s hair.

1. The appellant gave evidence at the trial.  He agreed that there had been three occasions of sexual intercourse.  He agreed that two had occurred in the spare room and one in the complainant’s bedroom.  His evidence was that the complainant consented to sexual intercourse.  He denied that he had caused any bruising to the complainant.  He denied that she had pulled out any of his hair.  He agreed that the complainant had gone to her bedroom, that he had undressed completely, but said that the complainant was herself naked when she opened her bedroom door before the third occasion of sexual intercourse.

1. The jury returned verdicts of not guilty in relation to allegations of assault with intention to engage in sexual intercourse in the living room and the spare room and the two allegations of sexual intercourse without consent in the spare room.  The jury returned verdicts of guilty in relation to assault with intention to engage in sexual intercourse in the complainant’s bedroom and sexual intercourse without consent in the complainant’s bedroom.

1. The essence of the appellant’s case relying upon the suggested inconsistency between the verdicts of not guilty and the verdicts of guilty is that because the complainant’s case was that she at all times resisted the appellant both verbally and physically, and at no time consented to intercourse with him, the jury must not have accepted her evidence about the first incident but, on the contrary, found it to be unreliable.  There was therefore a necessary inconsistency between the two sets of verdicts because the jury must have entertained a reasonable doubt about the complainant’s evidence about all the incidents.

1. The parties to the appeal agreed that the leading case on inconsistent verdicts of the kind alleged in the present appeal is MFA v The Queen (2002) 213 CLR 606 (MFA). Gleeson CJ, Hayne and Callinan JJ said at [34] – [36]:

34Since the ultimate question concerns the reasonableness of the jury's decision, the significance of verdicts of not guilty on some counts in an indictment must necessarily be considered in the light of the facts and circumstances of the particular case. Furthermore, it must be considered in the context of the system within which juries function, and of their role in that system. A number of features of that context were emphasised in MacKenzie. They include the following. First, as in the present case, where an indictment contains multiple counts, the jury will ordinarily be directed to give separate consideration to each count. This will often be accompanied by a specific instruction that the evidence of a witness may be accepted in whole or in part. Secondly, emphasis will invariably be placed upon the onus of proof borne by the prosecution. In jurisdictions where unanimity is required, such as New South Wales, every juror must be satisfied beyond reasonable doubt of every element in the offence. In the case of sexual offences, of which there may be no objective evidence, some, or all, of the members of a jury may require some supporting evidence before they are satisfied beyond reasonable doubt on the word of a complainant. This may not be unreasonable. It does not necessarily involve a rejection of the complainant's evidence. A juror might consider it more probable than not that a complainant is telling the truth but require something additional before reaching a conclusion beyond reasonable doubt. The criminal trial procedure is designed to reinforce, in jurors, a sense of the seriousness of their task, and of the heavy burden of proof undertaken by the prosecution. A verdict of not guilty does not necessarily imply that a complainant has been disbelieved, or a want of confidence in the complainant. It may simply reflect a cautious approach to the discharge of a heavy responsibility. In addition to want of supporting evidence, other factors that might cause a jury to draw back from reaching a conclusion beyond reasonable doubt in relation to some aspects of a complainant's evidence might be that the complainant has shown some uncertainty as to matters of detail, or has been shown to have a faulty recollection of some matters, or has been shown otherwise to be more reliable about some parts of his or her evidence than about others. Thirdly, there is the consideration stated by King CJ in R v Kirkman, and referred to in later cases: it may appear to a jury, that, although a number of offences have been alleged, justice is met by convicting an accused of some only. And there may be an interaction between this consideration and the two matters earlier discussed.  

35It appears from the review of decisions of trial judges and intermediate appellate courts undertaken in Markuleski that some judges have taken Jones as authority for the proposition that where multiple offences are alleged involving the one complainant, then verdicts of not guilty on some counts necessarily reflect a view that the complainant was untruthful or unreliable, and that an appellate court should consider the reasonableness of guilty verdicts on the basis that the complainant is a person of damaged credibility. That view is erroneous. It overlooks the attention to factual detail in the reasoning of Jones. It also overlooks the principles stated in MacKenzie, which were not qualified in Jones, and the considerations mentioned in the preceding paragraph in these reasons. Jones is not to be understood as establishing a set of legal propositions, separate or different from the test formulated in M, which must be applied in deciding whether a conviction on one or more counts of sexual offences, when the accused was acquitted on other counts, is unreasonable, or cannot be supported, having regard to the evidence.

36The test established by s 6(1) of the Criminal Appeal Act is unreasonableness, not inconsistency. In the present case, there is an obvious explanation of the differences between the verdicts on the various counts in the indictment. …

(Footnotes omitted. Emphasis added.)

1. We have emphasised one passage in the extract above because it raises matters to which it will be necessary to return.  However, the whole range of factors identified which might influence a jury to return verdicts of guilty on some counts in an indictment but not others must be borne in mind.  And, as was pointed out in MFA at [36] the test is unreasonableness, not inconsistency.

1. In MFA, McHugh, Gummow and Kirby JJ said at [85]:

In judging suggested inconsistency, this Court said in MacKenzie that “if there is a proper way by which the appellate court may reconcile the verdicts, allowing it to conclude that the jury performed their functions as required, that conclusion will generally be accepted”. The Court cited with approval the remarks of King CJ in R v Kirkman to the effect that juries may not always act “in accordance with strictly logical considerations” or even “in accordance with the strict principles of the law which are explained to them”. Juries sometimes give effect to “their innate sense of fairness and justice” as well as to their sense of proportion and compassion.

(Footnotes omitted.)

1. We consider, in light of the statements in MFA in particular, that it was open to the jury in the present case to make distinctions between the alleged offences in the living room and in the spare room, and the offences which the jury found to have been committed in the complainant’s bedroom.  It is certainly possible, in our view, that the jury gave the appellant the benefit of some doubt about whether he was reckless as to the consent of the complainant in the initial encounters.  Even though the jury may have accepted that the complainant did not consent on any of the occasions, it was for the prosecution to establish that the appellant had either appreciated that the complainant was not consenting or was reckless as to whether she did so or not.  It is conceivable, as we have said, that the jury may have allowed the appellant the benefit of some doubt as to such matters with respect to the first encounters but not as to the matters which occurred in the complainant’s bedroom. 

1. At [14] above we emphasised a particular passage in MFA.  Although the examples given there do not exhaust the possibilities, matters that the jury might have taken into account in reaching a view adverse to the appellant with respect to the encounters in the complainant’s bedroom might have included the fact that there was evidence to support a conclusion that the complainant had pulled the appellant’s hair out.  The jury might have regarded this as an unmistakeably clear sign of lack of consent.  The jury may have taken a view adverse to the appellant about the bruising evident on the complainant’s body, which the appellant had denied causing.  The jury might not have accepted the appellant’s evidence concerning the physical barrier represented by the locked door of the appellant’s bedroom.  The jury may have been satisfied beyond reasonable doubt that, on this occasion at least, the appellant had breached a physical barrier and persisted against the renewed protestations and obvious physical resistance of the complainant.

1. All of these matters are matters for speculation only.  They illustrate, however, that it cannot be successfully maintained that there is a necessary inconsistency, much less any relevant form of unreasonableness, in the fact that the jury returned different verdicts in relation to the two incidents.

1. In our view, therefore, the appeal cannot succeed on the ground initially advanced in the notice of appeal.  However, the matters to which we have drawn attention as possible explanations for the different verdicts raise questions of a different character which emerged from the additional matters upon which the appellant sought to rely.

1. As finally distilled at the hearing of the appeal, four matters were advanced.  They each concerned matters said, or not said, by the trial judge in the charge to the jury. 

1. Counsel for the respondent submitted that it was not open to the appellant to raise the particular additional matters in light of the provisions of r 5531 of the Court Procedures Rules 2006 (ACT). That rule provides:

Unless the Court of Appeal otherwise orders, the following must not be allowed as a ground for appeal against conviction or sentence unless objection was taken at the trial by the party appealing:

(a)       a direction given by the trial judge;

(b)the trial judge’s failure to give a direction;

(c)the trial judge’s decision about the admission or rejection of evidence.

1. For reasons which appear hereafter, we are satisfied that the present is a case in which any necessary leave should be given. We do not need to separately discuss questions debated on the appeal about whether the trial judge’s remarks were “directions” for the purposes of r 5531, or whether, or to what extent, objection was taken at the trial to the trial judge’s remarks.

1. In Domican v The Queen (1992) 173 CLR 555 at 560 – 561:

A trial judge is bound to direct the jury as to any principle of law or rule of practice applicable to the case, and a misdirection or non-direction on such a matter will usually mean that the trial has miscarried. But matters of fact and the arguments in relation to them are in a different category. A trial judge is not bound to discuss all the evidence or to analyze all the conflicts in the evidence, and, by itself, the failure of a trial judge to do so does not mean that there has been any miscarriage of justice. …  Nevertheless, the requirement of fairness means that ordinarily the respective cases for the prosecution and the accused must be accurately and fairly put to the jury. But that requirement does not oblige the judge to put to the jury every argument put forward by counsel for the accused. … Whether the trial judge is bound to refer to an evidentiary matter or argument ultimately depends upon whether a reference to that matter or argument is necessary to ensure that the jurors have sufficient knowledge and understanding of the evidence to discharge their duty to determine the case according to the evidence. Consequently, the conduct of the case necessarily bears on the extent to which the judge is bound to comment on or discuss the evidence.

1. One fundamental matter is that a trial judge should not suggest to a jury that an accused bears any onus to establish his or her innocence.  In conformity with this requirement the trial judge commenced his charge to the jury, after the evidence had been taken, as follows:

Members of the jury, at the outset of this trial which, of course, was only two days ago I told you of some basic principles which govern the conduct of criminal trials.  I will just briefly remind you of those.  First, there is a presumption of innocence on the part of the accused, so that the accused does not have to prove his innocence with respect to the charges against him; it is for the Crown to prove that he is guilty of the charges.

1. The trial judge also directed the jury, later in his charge:

Now, if you do not believe the evidence that was given by the accused, and I am not saying one way or another whether you should, but if you do not then I need to tell you that it is not evidence, that is, the fact that you do not believe the accused, is not evidence of the accused’s guilt.  In those circumstances you simply put the evidence of the accused to one side and then you consider whether you are satisfied beyond a reasonable doubt of the accused based upon the remaining evidence.

1. The matters about which the appellant complained occurred between the two statements set out above.  We shall deal with them in the order in which they occurred in the trial judge’s charge to the jury.  However, before doing that it should be pointed out that the first three of these matters arose as examples given by the trial judge of matters which might, in the minds of the jury, bear upon their assessment of the credibility of a particular witness.  The trial judge told the jury, correctly, that they might consider and take into account the likelihood that events might have occurred in the way described by a witness and whether there was evidence “which supports one version of events as opposed to another version of events”.  The first three matters which are complained about were offered as examples of that arising from the evidence actually before the jury.

1. The fourth matter arose in a discussion by the trial judge of matters which the jury were entitled to take into account when they assessed the credibility of the appellant as a witness.

1. During the charge to the jury the trial judge said:

In assessing the credibility of witnesses you may look at things such as the likelihood of events having occurred in the way in which they describe.  You may also take into account whether there is evidence which supports one version of events as opposed to another version of events.  Now, when I say that you are entitled to take into account the likelihood of events having occurred in a particular way that is not to say that you are entitled to simply make the ultimate decision of guilt or innocence based upon which version you think is more likely or more probable.  But in deciding whether to accept or reject evidence you are entitled to look at the likelihood that events occurred in a particular way.

…

Now, in deciding whether that is likely you can take into account the relationship up to that point between [the complainant] and the accused.  They had only just met a few hours earlier.  They had not had any significant social interaction, you might think, prior to Namiee and Alice leaving.  You have heard that there were conversations about Thailand and about markets in Thailand and where you might be able to buy goods cheaply.  You might think that this simply constitutes social chit-chat whilst people are having a drink and having a cigarette.

The only evidence of anything more than that comes from the accused, where he says that he and [the complainant] exchange phone numbers.  Now, the point that was made by the Crown in relation to that is, I would suggest to you, a point which deserves quite a lot of consideration.  If there had been an exchange of phone numbers why then did the police need to go to Namiee, in order to be able to contact the accused?  If there was no exchange of phone number[s] then, as I have said, it would seem that all that took place before Namiee and Alice left was jut some social chit-chat.

Now, how likely is it that after that type of interaction for such a short period of time that [the complainant] is going to engage in the type of behaviour that the accused says that she engaged in?  There was no personal talk, according to the accused, between him and her before he says some type of sexual relationship emerged.

(Emphasis added.)

1. No doubt the trial judge was intending to do no more, when he posed the question we have emphasised, than reflect the sort of question which the jury might ask themselves, arising from the factors he had mentioned immediately before and about which no complaint was made on the appeal.  It is well established that a trial judge should be careful not to add unnecessary judicial authority to a line of reasoning about factual matters which are the province of the jury.  However, if this question, and its implicit suggestion (on one view of it) that it was unlikely that the complainant would have consented to sexual intercourse on such a short acquaintance, had been the only issue raised the outcome of the appeal may have been different.  We do not need to come to a final view about that, or about whether in any event there was no substantial miscarriage of justice actually arising from this remark, because of the matters which follow.

1. The second complaint arose from the following observations by the trial judge:

In determining the likelihood of events having occurred as described by one party or the other you may also look at the consistency of that version with the other evidence.  For example, the bruises that one sees upon [the complainant] in the photographs and as were described by witnesses in this case.  Now, Mr Lawton says, quite correctly, that the evidence cannot tell us with any certainty whether those bruises pre-existed 6 December 2009.  So there is no way that you can age a bruise, as it were, to determine precisely when it was caused.

But you will recall the observations of some of the witnesses about how difficult [the complainant] was finding it to move when she was observed after she says she was sexually assaulted.  You will also recall that there is nothing in the evidence that was given by the accused which would, in any way, explain how these bruises might have occurred.  Now, of course on the Crown case those bruises are completely explicable by the force that was applied to [the complainant] whilst the accused was endeavouring to have sexual intercourse with her.  So that that evidence the Crown says is consistent with the Crown case.

(Emphasis added.)

1. The third complaint arose from the following passage:

You will also recall the evidence about the nature of that hair, that it was not hair of a type which would have fallen out; it was hair which essentially was still growing and which had to be removed from the head by way of force.  You can ask yourself is there anything in the evidence of the accused, the version of events that he puts forward, that explains that?  Now, Mr Lawton says, quite correctly, that only three of those 20-odd hairs were tested.  You can look at the photographs and you can see the location in which those hairs were found, the way in which they were apparently located on the floor area there in a clump, and it is a matter for you as to whether you are prepared to infer that they are hairs that most likely came from the head of the accused.  But at the end of the day we do know that at least two of those hairs which were tested were consistent with being hairs of the accused, which is consistent with the version of events put forward by [the complainant] about pulling his hair.  And as I have said, it is a matter for you as to whether you think there is anything in the accused’s evidence which would explain that.

(Emphasis added.)

1. These matters raise issues of greater concern.  Although the complainant had given evidence that her bruising was the result of the appellant’s conduct, the jury also had evidence that it could not be established independently that the bruising was of recent origin.  Photos of bruising on the complainant’s body were before the jury.  There was extensive bruising and scraping on her back on both sides, bruising on her upper left arm and shoulder, bruising on both her wrists, bruising on her legs and abrasions on both knees.  The photos before the jury were consistent with a struggle accompanied by a good deal of force.  They were obviously prejudicial to the appellant if the complainant’s evidence was accepted, that the appellant was the cause of the bruising.

1. In our view, it was likely that the jury might have understood from the observations of the trial judge that the appellant was under some obligation to advance in his case some other explanation for how the complainant might have been bruised, except by his conduct.  The appellant was not under such an obligation.  Nor could a failure to explain the bruising be held against him as such.  If the bruising had nothing to do with the appellant, there is no reason why he should have been able to explain it and every reason why he could not.

1. Similar difficulties arise with regard to the observation that the jury might ask itself whether there was anything in the appellant’s evidence which explained the hair found in the complainant’s bedroom.  As we noted earlier, the complainant’s evidence that she forcefully pulled out hair from the appellant’s head was one of the matters which might explain why the jury found the appellant guilty of the offences that took place in the complainant’s bedroom, even though the jury found him not guilty of the alleged offences committed in the living room or the spare room.  The appellant denied that any hair was pulled from his head.  The forensic evidence did not establish definitively that the hair found was his, although it might have been.  That connection could only be made by accepting the complainant’s evidence about this matter, and rejecting the appellant’s.

1. For similar reasons to those concerning the bruising, there was, we think, a real risk that the jury might have mistakenly thought, in resolving the issue, that it told against the appellant that he could offer no other explanation for the presence of the hair in the complainant’s room.  Again, if the hair was not the appellant’s there is no reason why he should have been able to explain it.

1. We shall return shortly to deal with how these difficulties should be addressed in the resolution of the appeal.

1. The final matter raised in support of the appeal concerned an explanation the appellant had given for remaining at the premises after the other two visitors had left.  According to at least one witness, it was certainly after 6.30 am when the visitors had arrived.  This issue was raised by the trial judge, as we said earlier, in connection with a discussion about how the jury should approach the task of assessing the evidence of the appellant.  

1. The observations of the trial judge about this matter were as follows:

You will recall that the accused gave evidence that he and the other three people who were present in [the complainant’s] room on the morning of 6 December 2009 had taken Ecstasy.  You will recall that this was denied by the other three witnesses, [the complainant], Alice and Namiee, and that was even though [the complainant] was prepared to be open about the fact that she had, from time to time, smoked cannabis.  Now, if ultimately you are satisfied that what the accused said about taking Ecstasy and about the others taking Ecstasy on the morning of 6 December 2009 is not true, then that is a matter that you can take into account in assessing the credibility of the accused.  If you are of the opinion that his evidence in that regard was deliberately untrue you may think that that is a matter which is of some significance in determining the credibility of the accused.

Secondly, you will recall that the accused gave evidence that he did not have to go to work on 6 December 2009, but you will recall that each of the other three testified, effectively, that he had said that he did have to go to work that morning, and that was the reason why he was going to stay behind after the other two left.  [The complainant] testified that that was what the accused had said on 6 December.  Alice said that she was told by Namiee that the accused had to go to work that morning, and Namiee also said that the accused told him he had to go to work.

But we know from what the accused has told us that he did not have to go to work that morning.  He says that the day before he had arranged to have the next day off, that is, 6 December off.  So you may ultimately, and it is a matter for you, think that what he said to the other three in that room at Uni Lodge was not the truth.  Now, if you are satisfied that he lied in that regard you may ask yourselves why did he lie?  Can you infer, and again it is a matter for you, that he lied so as to engineer an opportunity to be alone with [the complainant]?  Of course that does not necessarily mean that he did so with any nefarious intention at that time.  But if you are satisfied that he lied in relation to that it is again a matter that you are entitled to take into account in assessing his credibility.

(Emphasis added.)

1. It was submitted by Counsel for the appellant that “this was an argument not put forward by the Crown” and that “in putting forward arguments not raised by either Counsel, which provided inferences supporting a conclusion of guilt”, the trial judge misdirected the jury”.  The respondent answered by pointing out that the trial judge went on shortly thereafter to give the following assistance to the jury about inferences they might draw concerning lies on the part of the appellant.  The trial judge said:

Now, if you do not believe the evidence that was given by the accused, and I am not saying one way or another whether you should, but if you do not then I need to tell you that it is not evidence, that is, the fact that you do not believe the accused, is not evidence of the accused’s guilt.  In those circumstances you simply put the evidence of the accused to one side and then you consider whether you are satisfied beyond a reasonable doubt of the accused based upon the remaining evidence.

1. We shall return to the point made by the respondent, but there are further difficulties with the remarks of the trial judge.  The fact that the appellant may have developed a sexual interest in the complainant did not mean that his intention was "nefarious".  His case, after all, was that the sexual relations which later occurred were consensual.  Any misrepresentation of whether he was obliged to go to work a little later would take on a different complexion if he had believed that his sexual interest in the complainant was reciprocated.  Any such misrepresentation, made in a social setting and possibly explicable in that context, should not have been identified as damaging the appellant’s credibility in the same way as might have resulted from a finding that the appellant had deliberately given untrue evidence on oath, as was, for instance, raised by the trial judge in relation to the appellant’s evidence about Ecstasy. In any event, it would not follow from any misrepresentation about his work obligations that the appellant had determined to disregard the response of the complainant to any sexual advance he might thereafter make.

1. Having raised several queries about the appellant’s credibility, his Honour then gave the direction set out at [40] above, that if the jury did not believe the appellant’s evidence, they were to put it aside and consider whether the remaining evidence satisfied them of the appellant’s guilt beyond reasonable doubt.

1. We are not satisfied that his Honour’s direction to the jury about how they were to deal with the fundamental conflict between the evidence of the complainant and the appellant was adequate. The content of such a direction was described in Liberato v The Queen (1985) 159 CLR 507 at 515, by Brennan J in his dissenting judgment (Deane J agreeing), who said:

When a case turns on a conflict between the evidence of a prosecution witness and the evidence of a defence witness, it is commonplace for a judge to invite a jury to consider the question: who is to be believed? But it is essential to ensure, by suitable direction, that the answer to that question (which the jury would doubtless ask themselves in any event) if adverse to the defence, is not taken as concluding the issue whether the prosecution has proved beyond reasonable doubt the issues which it bears the onus of proving. The jury must be told that, even if they prefer the evidence for the prosecution, they should not convict unless they are satisfied beyond reasonable doubt of the truth of that evidence. The jury must be told that, even if they do not positively believe the evidence for the defence, they cannot find an issue against the accused contrary to that evidence if that evidence gives rise to a reasonable doubt as to that issue.

[Emphasis added.]

1. These requirements are addressed in, for instance, the direction set out by Kirby J (with whom Sheller JA and Dowd J agreed) in Raymond Peter Anderson (2001) 127 A Crim R 116 at [26] as follows:

First, if you believe the evidence of the accused, obviously you must acquit.

Second, if you find difficulty in accepting the evidence of the accused, but think it might be true, then you must acquit.

Third, if you do not believe the accused, then you should put his testimony to one side.  The question will remain: has the Crown, on the basis of evidence which you do accept, proved the guilt of the accused beyond reasonable doubt.

1. We consider that directions along these lines are generally desirable in cases in which the jury may see the question for determination as “who is to be believed?”; they are in our view especially important where the trial judge has focussed at some length on evidence that the jury might consider to have damaged the accused’s credibility. In such circumstances, it is vital to remind the jury in clear terms that the question is not “who is to be believed” but whether the Crown has proved its case beyond reasonable doubt, and to remind them that a reasonable doubt may have arisen even if they do not find the accused’s evidence entirely believable.

1. It appears to us that the direction finally given about this matter did not meet the strictures set out above.  Accordingly, the problems with his Honour’s treatment of what the appellant might have told the complainant and her friends about his work obligations were not cured by his Honour’s directions to the jury.  We would also uphold the appellant's complaint about the trial judge’s approach to that matter.

1. It will be apparent from the foregoing discussion that the matters which have concerned us most arise from the implicit suggestion that some burden fell upon the appellant, either directly or in his case, to provide some explanation consistent with his innocence for the bruising on the complainant’s body and the hair found in the complainant’s bedroom.  No such burden fell upon him. 

1. To have left the jury with the suggestion that any burden fell upon the appellant, as accused, is such a departure from the essential requirements of the law that the accused may not have had a proper trial. In any event, this court must consider whether, had there not been such a blemish in the trial, an appropriately instructed jury would inevitably have convicted the accused: Wilde v The Queen (1988) 164 CLR 365 at 371-3; Mraz v The Queen (1955) 93 CLR 493 at 514; Driscoll v The Queen (1977) 137 CLR 517 at 524, 527; Quartermaine v The Queen (1980) 143 CLR 595 at 600-1.

1. We feel unable to exclude the possibility that these matters may have unfairly influenced the jury in their deliberations about the two matters in respect of which they returned guilty verdicts.

1. We also feel unable to exclude the possibility that the jury may not have understood the required approach to any adverse conclusions they reached about the appellant’s credibility.

1. It follows that, in our view, the appellant’s arguments on these three aspects of his Honour’s remarks should be upheld. We have considered whether we should find that no substantial miscarriage of justice has actually occurred, so that the appeal should nevertheless be dismissed (see s 37O(3) of the Supreme Court Act), but for reasons set out above we feel unable to come to that conclusion.

1. Accordingly the appeal must be upheld.  The verdicts of guilty must be set aside and a new trial ordered on counts 3 and 5 of the indictment.

   I certify that the preceding fifty-two (52) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Court.

   Associate:           

   Date:                  16 November 2012

Counsel for the Appellant:  Mr J Lawton
Solicitor for the Appellant: Legal Aid ACT
Counsel for the Respondent:  Mr J White

Solicitor for the Respondent:  ACT Office of the Director of Public

Prosecutions

Date of hearing:  9 November 2012

Date of judgment:  16 November 2012