Barnes (a pseudonym) v The King - [2025] SASCA 53

SUPREME COURT OF SOUTH AUSTRALIA
(Court of Appeal: Criminal)
BARNES (A PSEUDONYM) v THE KING
[2025] SASCA 53
Judgment of the Court of Appeal
(The Honourable Chief Justice Kourakis, the Honourable Justice S Doyle and the Honourable Justice Bleby)
22 May 2025
CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST THE PERSON - SEXUAL OFFENCES - MAINTAINING SEXUAL RELATIONSHIP WITH CHILD AND PERSISTENT SEXUAL ABUSE OF CHILD
APPEAL AND NEW TRIAL - NEW TRIAL - IN GENERAL AND PARTICULAR GROUNDS - IN GENERAL - MISCARRIAGE OF JUSTICE - CIRCUMSTANCES NOT INVOLVING MISCARRIAGE
CRIMINAL LAW - EVIDENCE - PROPENSITY, TENDENCY AND CO-INCIDENCE - ADMISSIBILITY AND RELEVANCY - FOR PARTICULAR PURPOSE - SEXUAL OFFENCES
Appeal against conviction.

Following a trial by jury, the appellant was convicted of one count of maintaining an unlawful sexual relationship with a child, contrary to s 50 of the Criminal Law Consolidation Act 1935 (SA).
The grounds relate to the trial Judge’s treatment of the evidence of the appellant’s angry temperament (Grounds 1 to 3), and the evidence that the appellant sent an image of his penis to a woman (Grounds 4 and 5). The appellant also complains that his cross-examination by the prosecutor resulted in a miscarriage of justice (Ground 7).
Held, by S Doyle JA (Kourakis CJ and Bleby JA agreeing), granting permission to appeal, but dismissing the appeal:
1.The failure to give directions as to the evidence of the appellant’s angry temperament did not result in a miscarriage of justice because the evidence was not evidence of discreditable conduct pursuant to s 34P of the Evidence Act 1929 (SA).
2.The directions given to the jury in relation to the evidence that the appellant sent an image of his penis to a woman were adequate in that they sufficiently identified the permissible and impermissible uses of the evidence in compliance with s 34R of the Evidence Act 1929 (SA).
3.The cross-examination of the appellant did not give rise to any risk of the jury entertaining an inference of recent invention by reason of defence counsel failing to put matters to the prosecution witnesses, and did not result in a miscarriage of justice.

Criminal Law Consolidation Act 1935 (SA) s 50; Evidence Act 1929 (SA) ss 34P, 34P(2)(a), 34P(2)(b), 34R, referred to.
Hofer v The Queen (2021) 274 CLR 351; Kane (a pseudonym) v The King [2024] SASCA 70; R v Birks (1990) 19 NSWLR 677; R v Manunta (1989) 54 SASR 17; Sadler v The King [2023] SASCA 63; Sidhu (a pseudonym) v The King [2025] SASCA 26, considered.

BARNES (A PSEUDONYM) v THE KING
[2025] SASCA 53
Court of Appeal – Criminal: Kourakis CJ, S Doyle and Bleby JJA

KOURAKIS CJ: I would dismiss the appeal for the reasons given by Doyle JA.
I wish only to add an observation on the meaning of discreditable conduct for the purposes of s 34P(1) of the Evidence Act 1929 (SA). The words are not defined and carry their ordinary meaning. Putting to one side regulatory offences, criminal offending is, of its very nature, discreditable conduct. However, the meaning of the term extends beyond criminal offending. It includes those immoral, unethical or unjust departures from broadly accepted social standards which attract the opprobrium of right thinking members of the community.
The circumstances of this case demonstrate the distinction between discreditable conduct on the one hand, and behaviour which, whilst lacking civility, does not breach society’s ethical standards. Angry verbal outbursts fall within the latter category. On the other hand, engaging in aggressive behaviour to exploit power imbalances for selfish purposes, at the expense of the human dignity of others, is unethical and attracts moral opprobrium.
The distinction I have drawn shows that it will often be the case that discreditable conduct carries the risk of provoking impermissible reasoning. However, that is not a necessary element of the meaning of discreditable conduct which, as I have explained, must bear its ordinary, and not a special legal, meaning.
S DOYLE JA: The appellant was convicted by a jury of one count of maintaining an unlawful sexual relationship with a child, contrary to s 50 of the Criminal Law Consolidation Act 1935 (SA) (‘the CLCA’). The victim of the offence was the appellant’s niece, JMB. The appellant was acquitted of a second count of the same offence against his goddaughter, AP.
The appeal concerns three areas of complaint. The first relates to the admission and treatment of evidence of the appellant’s temperament (Grounds 1 to 3). The second relates to the admission and treatment of evidence that the appellant sent an image of his penis to a woman (Grounds 4 and 5). The third involves a complaint of a miscarriage of justice in connection with the prosecutor’s cross-examination of the appellant (Ground 7).
A judge of this Court granted permission to appeal on Ground 7, and referred the balance of the grounds for hearing as on appeal. Grounds 6 and 8, and some aspects of Grounds 1 and 4, were subsequently abandoned.
For the reasons which follow, I would grant permission to appeal on Grounds 1 to 5, but dismiss the appeal.
Overview
The appellant was tried in October 2023 in relation to charges involving allegations of sexual abuse against his niece (JMB) and goddaughter (AP).
The appellant was born in October 1974. He and LB have been partners for over 30 years, and married since 2009. They have two sons, and lived in Kapunda throughout the relevant period.
LB’s sister (MM), is the mother of JMB. MM, together with her husband, (JMB) and their older son (JSMB), lived in Ceduna throughout the relevant period.
JMB was born in November 2002, and was between seven and 11 years of age at the time of the offending. The offending generally occurred on occasions when JMB and her family stayed with the appellant and his family in their Kapunda home. However, it included one occasion when the appellant was visiting JMB’s family in Ceduna.
JMB gave evidence that, as a child, her family would stay overnight at the appellant’s house in Kapunda several times a year. Her first recollection of the appellant sexually abusing her was when she was in year 2 or 3 at school, in the context of her sitting on his lap in front of a computer in the master bedroom. She claimed that the abuse occurred every time she stayed at the appellant’s house, and in total on between 10 and 20 occasions. It involved the appellant commencing by placing his hand on her leg, but progressing to touching her vagina on the outside of her clothes, and then undressing her and performing cunnilingus on her. JMB also described an occasion of sexual abuse which occurred in the context of the appellant giving her a shoulder ride.
JMB said that the final incident of sexual abuse occurred was when she was in year 6 at school, and involved the appellant touching her vagina on the outside of her clothing while he was driving her along a beach (Shelly Beach) in his LandCruiser.
JMB said that she did not complain about the abuse during the period it occurred because she was scared of the appellant. The first person she told about the offending was her best friend, ABP. She did so in 2019, when she was 17 years of age. She described telling ABP that, when she was younger, her uncle would touch her and kiss her on her vagina.
In addition to this evidence from JMB, the prosecution case included evidence from ABP in relation to the complaint, and from JMB’s mother (MM) and older brother (JSMB).
Given the issues on appeal, there is no need to address the evidence called in support of the alleged offending against AP.
The defence case consisted of evidence from the appellant, his wife (LB) and his friend (RT). The appellant denied all of the offending alleged against him, his case being that the allegations had been made up.
The appellant participated in a recorded police interview. In addition to denying the offending, he raised the suggestion of a rift between his wife LB and her sister MM (JMB’s mother).
Grounds 1 to 3: the temperament evidence
Grounds 1 to 3 involve a challenge to the admission and treatment of evidence relating to the appellant’s temperament. This evidence was adduced as relevant to JMB’s evidence that she did not complain about the offending earlier because she was scared of him. The parties acquiesced in the judge’s view that this evidence fell short of alleging discreditable conduct on the part of the appellant, and so did not require directions under s 34R of the Evidence Act 1929 (SA).
In explaining why, in my view, this evidence was appropriately received, and the judge’s directions were not inadequate, it is convenient to commence with a summary of the impugned evidence, and its treatment at trial.
The impugned evidence
As mentioned earlier, JMB said in her evidence that she did not complain about the appellant’s offending while it was occurring because she was scared of him. She said that he ‘came across’ as ‘a very angry man’. By way of example, she mentioned an occasion involving the appellant ‘going off and losing it’ by ‘screaming’ and ‘yelling’ in a McDonald’s carpark when he did not get the cookies he had ordered. The evidence did not reveal when this was said to have occurred relative to the offending.
During cross-examination, JMB was not able to recall any further detail of the McDonald’s incident. She said that she had heard the appellant raise his voice multiple times, but that she could not recall when those occasions were, and indeed could not recall any occasion that the appellant had raised his voice at her. JMB also accepted that, other than the sexual abuse, she got on ‘all right’ with the appellant. Indeed, she accepted in cross-examination that the appellant was a gentle and kind man to her when she visited his house.
Some further evidence which suggested the appellant had a poor temperament was adduced from MM (JMB’s mother), JSMB (JMB’s older brother) and TH (AP’s mother), albeit not in terms that expressly related to incidents that were said to have occurred in the presence of JMB.
When MM was asked by the prosecutor how the appellant came across ‘in terms of his loudness’ when they were visiting him in Kapunda, she described him as ‘an angry man … who has a very intimidating voice’, adding that he had ‘a short fuse’ and ‘could go from a zero to a hundred, bang, just like that’. When the prosecutor sought specific examples of this behaviour, objection was taken on the basis that this evidence had not been foreshadowed. The prosecutor did not pursue the topic.
Over objection from defence counsel, JSMB was asked whether he had ever heard the appellant ‘raise his voice or growl at his two sons’. JSMB said that he had. However, he went on to explain that he was not aware of the appellant having raised his voice or having been mean to JMB, suggesting that they ‘got on well’.
In the course of TH’s evidence, she described the appellant as having ‘a bit of a temper sometimes’.
On the other hand, when the appellant’s wife was cross-examined by the prosecutor, she denied that the appellant had a short fuse.
Treatment of the impugned evidence
In his opening address, the prosecutor had told the jury that JMB’s evidence would include a description of ‘how she perceived the accused and he came across to her, as a little kid, as a bit angry’.
Consistently with this focus upon JMB’s perception, the prosecutor’s closing address invited the jury to ‘accept that the accused had a bit of a temper and can get loud’, adding that ‘to a little person it’s that perception that’s important’. He submitted that JMB’s failure to complain about the sexual abuse during the period it was occurring was explicable on the basis that she found him to be an angry man and was scared of him.
Towards the end of the prosecution case, the trial judge had raised with counsel whether the evidence about the appellant’s temperament was evidence of discreditable conduct requiring a direction. The prosecutor submitted that it was not; that it was ‘just part of the story of the observations’ by people present during the relevant period. He foreshadowed a submission that JMB did not complain earlier because she was scared of the applicant, but said that this did not make it evidence of discreditable conduct. Defence counsel also submitted that ‘within the parameters of this trial’, the evidence given did not amount to evidence of discreditable conduct. The judge expressed agreement, suggesting that ‘it doesn’t go far enough to be discreditable’, and observing that ‘everyone at some point in their life gets angry or has a short temper’.
In her summing up, the judge reminded the jury of the evidence of JMB, MM and JSMB referred to above. However, she did not expressly identify the purpose for which this evidence had been received. She did not give any directions as to its permissible or impermissible use, whether as contemplated by s 34R of the Evidence Act or otherwise.
Not evidence of discreditable conduct
The evidence of the appellant’s temperament was relevant. Given JMB’s evidence that she did not complain earlier because she was scared of the appellant, and perceived him to be an angry man, it was relevant to the general credibility and reliability of her evidence. Insofar as it came from witnesses other than JMB, the evidence did not expressly, or in terms, address instances of angry behaviour in JMB’s presence. However, the evidence that he regularly acted in such a way was nevertheless circumstantially supportive of JMB’s evidence as to her perception of the appellant.
In considering the admissibility of this evidence, it is relevant to consider whether it was evidence of ‘discreditable conduct’ for the purposes of s 34P of the Evidence Act. In Sadler v The King,[1] I offered the following summary of the types of evidence contemplated by this label:
The Evidence Act does not define ‘discreditable conduct’, although the terms of s 34P(1) make it clear that it is not confined to conduct which constitutes a criminal offence. Speaking generally, and without intending to be definitive, discreditable conduct connotes conduct which is wrongful or morally repugnant in some way, such that it reflects poorly upon the defendant. However, bearing in mind the context in which the term is used in s 34P, it connotes conduct of a level of seriousness or consequence that it might cause a jury (in the absence of instruction from the trial judge) to engage in some form of impermissible ‘bad person’ reasoning.
[1] Sadler v The King [2023] SASCA 63 at [27].
Applying this passage in Sidhu (a pseudonym) v The King,[2] this Court recently held that evidence that the defendant had repeatedly acted in an angry, aggressive and manipulative manner was evidence of discreditable conduct. However, in so concluding, the Court emphasised that this behaviour involved the defendant spiritual leader abusing his power vis-à-vis one of his followers, and occurred in a context where the alleged sexual offending involved an abuse of that power. As the Court observed, evidence of a person acting in an angry way would not ordinarily be evidence of discreditable conduct.[3]
[2] Sidhu (a pseudonym) v The King [2025] SASCA 26 (Sidhu) at [30]-[53] (Livesey P and Bleby JA), [65] (S Doyle JA).
[3] Sidhu at [46] (Livesey P and Bleby JA).
There is no equivalent context in the present case. The impugned evidence was confined to general evidence to the effect that the appellant had an angry temperament. Whilst the evidence included an instance which involved a relatively dramatic reaction to an incident at a McDonald’s restaurant, it did not suggest that the defendant was prone to acting in a particularly extreme or dramatic manner. Nor did it involve any suggestion that the appellant’s anger was accompanied by any violent or other inappropriate behaviour. In the circumstances, the impugned evidence was not of behaviour of a sufficient level of seriousness to generate a risk that the jury would, without instruction, engage in ‘bad person’ reasoning. It was not evidence of discreditable conduct.
No error or miscarriage
Even if the evidence had qualified as evidence of discreditable conduct, it is doubtful whether it was ‘admitted for a permissible use that relies on a particular propensity or disposition of the defendant’ for the purposes of s 34P(2)(b) of the Evidence Act. Its permissible use was in support of JMB’s evidence that she did not complain earlier because she was scared of the appellant. Whilst this use relied upon JMB’s perception of the appellant as an angry man, this is not quite the same as relying upon the appellant in fact having a propensity to become angry, or having an angry disposition. On this analysis, the admissibility of the impugned evidence would not have turned on it having the ‘strong probative value’ contemplated by s 34P(2)(b). It would have been sufficient that the probative value of the evidence outweigh any prejudicial effect it may have on the defendant (s 34P(2)(a)).
Whether considered through the prism of s 34P(2)(a) (which requires that the probative value of the evidence outweigh any prejudicial effect), or by reference to the usual common law exclusion of evidence which is more prejudicial than probative, the evidence of the appellant’s temperament was admissible. The evidence was relevant and probative in the manner already described; namely, as supportive of the credibility and reliability of JMB’s evidence as to why she did not complain about the appellant’s offending earlier than she did. The limited scope and seriousness of the evidence, and the fact that the allegations of sexual offending were factually remote and without any suggestion of the defendant acting in an angry or violent manner, meant that any risk of prejudice was slight and outweighed by the probative value of the evidence.
On the basis that the evidence was not evidence of discreditable conduct for the purposes of s 34P of the Evidence Act, there was no requirement under s 34R that the trial judge give directions as to its permissible and impermissible use. There was accordingly no error of law in the judge failing to give any such directions.
Nor, in my view, did the failure to give any directions of this nature occasion any miscarriage of justice. Given the nature of the evidence, and the use sought to be made of it by the prosecutor in his opening and closing addresses, there was no realistic prospect that the jury misused it, or that it influenced their reasoning in an impermissible way.[4] Whilst directions may have assisted, they may have been seen to carry the risk of giving the evidence undue attention. It may be that the concern to avoid this risk informed the approach of the prosecutor and defence counsel in submitting that the (now) impugned evidence was not evidence of discreditable conduct, and in not suggesting that it required any directions from the judge.
[4] Brawn v The King [2025] HCA 20 at [10] (the Court).
The complaints made in Grounds 1 to 3 have not been made out.
Grounds 4 and 5: the image of the appellant’s penis
During re-examination, JMB’s mother (MM) gave evidence to the effect that the appellant had been accused by a female friend (J) of sending an image of his penis to another friend. In Ground 4 the appellant complains that this evidence was inadmissible both on hearsay grounds and because it was evidence of discreditable conduct which did not meet the threshold requirement under s 34P(2)(a) of the Evidence Act that its probative value outweigh its prejudicial effect. In Ground 5 the appellant complains that the trial judge failed to give adequate directions for the purposes of s 34R of the Evidence Act as to the permissible and impermissible uses of this evidence.

For the reasons which follow, this impugned evidence was appropriately received, and the judge’s directions as to the way in which the evidence could be used were adequate.
The impugned evidence
In his record of interview, the appellant told police that the last time he had seen JMB and her family (including her mother, MM) there had been a big argument between him and his wife (LB) in their presence, during which the appellant was accused of being unfaithful to his wife.
With this context apparently in mind, when cross-examining MM, defence counsel suggested to her that she and LB had had a falling out. MM denied falling out with LB, but volunteered that there had been a falling out between LB and a mutual friend of theirs, J. Defence counsel also suggested in cross-examination that the genesis of the falling out was a rumour that the appellant and J had been having an affair. MM denied the existence of any rumour to this effect. She also denied that there was any animosity between her and LB, or that there was a period when she did not speak with LB, prior to the appellant being charged with the offending. That said, she acknowledged that some difficulties had arisen by reason of her attempts to reconcile the issues that she said had arisen between LB and their mutual friend, J.
In re-examination, the prosecutor asked MM the reason for the issues between LB and J to which she had referred in cross-examination. MM said that it was because J had confronted the appellant about him sending a ‘dick pic’ to a friend of hers; that J had raised an issue as to the appellant’s behaviour and had been worried about LB.
Having identified this as evidence of discreditable conduct, the trial judge sought counsels’ assistance as to its permissible use. The prosecutor articulated the relevance of the evidence as follows:
The fact that there was a family relationship, it’s just relationship evidence as between the different members of the family; between [JMB], between [JMB’s] mother, between [JMB’s] aunty, in particular the falling out between [JMB’s] aunty – the accused’s wife and [JMB’s] mum. It goes to that topic, that’s the extent of what it goes to and it’s now been left consistent with the fact that something happened between JMB, [JMB’s] mother, her aunty. It doesn’t really matter what that was, but there’s some breakdown there.
Defence counsel did not challenge or object to the use of the evidence in this way.
Whilst the relevant line of defence counsel’s cross-examination had appeared directed towards laying the foundation for a motive to lie, this had not been put to JMB during her earlier cross-examination. Consistently with this, defence counsel did not ultimately make any submission as to a motive to lie that was squarely linked to this evidence. That said, he did make a submission that the ‘degree of disharmony’ that existed between the families, together with some other aspects of the evidence, might well be seen as giving rise to ‘a motive to lie in some sense’.
In her summing up, the judge mentioned the evidence from MM about the appellant having sent an image of his penis to a female who was a friend of both MM and LB.[5] The judge also mentioned some evidence from LB to the effect that MM ‘had raised some issues with her about the accused which had caused some type of fallout between them but that fortunately she and the accused have been able to work through things together and when [defence counsel] questioned [MM] on that particular topic he did refer to alleged infidelity.’ The judge then gave the following directions as to permissible and impermissible use of that evidence:
This evidence was led for a specific purpose, namely to explain the nature of the relationship between [MM] and [LB] and the two sides of the family. It was led to give you some background or context to the case.
If you accept this evidence, then you can use the evidence for that particular purpose. However, you must not reason that because of any such conduct on the part of the accused that he is the type of person who may have committed the charged offences or that just because of that conduct he was more likely to have committed any of the charged offences. That is impermissible reasoning as it denies the accused [the] presumption of innocence.
[5] On my reading of the evidence, MM said that she had been told by J (the mutual friend) that it had been sent to another person, but it is not suggested that this difference as to the apparent recipient is of any significance.
Later in her summing up, the judge returned to this evidence:
Although not specifically put as being a motive for [JMB] to lie, you also heard some evidence about there being some sort of breakdown in the relationship between [MM] and [LB]. This was not extensively explored by [defence counsel]. [JMB] was never asked if there was any such fallout between her mother and LB, nor was she asked if she was lying about the alleged offending because of any rift or fallout between the two sides of the family.
No error or miscarriage
Understood in the forensic context described above, the impugned evidence was relevant. Given that the defence did not ultimately pursue any direct allegation that it supported a motive to lie, the probative value of the evidence was limited. However, it was relevant to understand the extended family dynamic, and in particular the suggestion of a falling out, or at least tension, between MM and LB (and perhaps also their mutual friend, J) in the context of what otherwise appeared to be two families who regularly visited each other and got along well. It was hence relevant in understanding the broader context in which MM gave her evidence, in which JMB made her allegations, and in which the alleged offending was said to have occurred. It was relevant, at least in a general way, to an assessment of the credibility and reliability of the evidence of MM and JMB.
The parties and judge proceeded on the basis that the impugned evidence was evidence of discreditable conduct. As such, it was only admissible if its probative value outweighed its prejudicial effect. As explained, the evidence had only a limited probative value. It may also be accepted that evidence of an allegation that the appellant had sent an image of his penis to a female who was not his wife had some potential to prejudice the appellant in the absence of appropriate directions from the judge. However, I am satisfied that this prejudice was able to be addressed through appropriate directions to the jury; that is, directions of the type contemplated by s 34R of the Evidence Act, including warning the jury against treating the impugned evidence as bearing directly upon the likelihood of him having engaged in the sexual offending with which he was charged. The evidence was therefore admissible under s 34P(2)(a) of the Evidence Act.
Had the prosecution sought to rely upon MM’s evidence as probative of the appellant having in fact sent the image, then this would have been to give the evidence an impermissible hearsay use. However, despite some tension with the treatment of the evidence as evidence of discreditable conduct, the impugned evidence was not adduced or relied upon for this purpose. It was adduced and relied upon for a more general purpose or use. In its use, or relevance, as explaining the reason or source of alleged tension between MM, LB and J, the issue was what these women (particularly MM) had alleged and believed the appellant had done, not what he had in fact done. In other words, MM’s evidence was relevant as probative of an allegation or belief that he had sent an image of his penis to a female friend, not whether he had in fact sent any such image. Used in the way described by the prosecutor and judge, the evidence did not have any hearsay use. In my view, the impugned evidence was not inadmissible by reason of it having a potential hearsay use.
In any event, in circumstances where there was no objection to receipt of the evidence, its admission did not involve any wrong decision on a question of law. The issue is whether its receipt occasioned any miscarriage of justice. This requires consideration of not only the limited significance of the issue in the overall forensic context of the trial, but also the directions given in relation to the evidence.
In my view, the directions given by the judge in relation to this evidence, as set out above, were adequate. The judge sufficiently identified the permissible and impermissible uses of the evidence. Whilst her Honour could have done so more clearly, and could have included a specific warning against any hearsay use of the evidence, her directions were adequate to ensure that the jury did not misuse the evidence; they were adequate to comply with s 34R of the Evidence Act and avoid any miscarriage of justice.
My conclusion that the receipt and treatment of the evidence did not occasion any miscarriage of justice is reinforced by two additional considerations. The first is that the evidence emerged in response to a defence line of cross-examination, and ultimately assumed little forensic significance in the context of the trial as a whole.[6] The second is the absence of any complaint as to not only the receipt of the evidence, but also the directions given by the judge.[7]
[6] See, for example, Kane (a pseudonym) v The King [2024] SASCA 70 at [57], [65]-[66], [75]-[77] (Doyle JA, Kourakis CJ and David JA agreeing).
[7] De Silva v The Queen (2019) 268 CLR 57 at [35] (Kiefel CJ, Bell, Gageler and Gordon JJ).
Grounds 4 and 5 have not been made out.
Ground 7: impermissible cross-examination of the appellant
Under Ground 7, the appellant contends that there was a miscarriage of justice as a result of the prosecutor cross-examining the appellant in a manner which suggested that his evidence was recently fabricated because his counsel had not put various matters to the complainant JMB when cross-examining her.
In support of this ground, the appellant relied upon several instances of cross-examination in relation to matters which had not been mentioned in the cross-examination of JMB, or which differed from the basis upon which she was cross-examined. There was no objection to this cross-examination at the time on the basis that it involved a challenge to the appellant’s credit which was inappropriately based upon a suggestion of recent invention to be inferred from a failure to cross-examine JMB; and the prosecutor did not ultimately make any express submission inviting the jury to reason this way. However, the appellant complains that in the absence of any directions by the judge, the cross-examination occasioned a miscarriage of justice.
The determination of this ground requires a closer consideration of the prosecution cross-examination and closing address. However, before embarking upon this exercise, it is appropriate to mention the recent consideration of the relevant principles by the High Court in Hofer v The Queen.[8]
[8] Hofer v The Queen (2021) 274 CLR 351 (Hofer).
The defendant in that case was convicted of various sexual offences involving two complainants. During the course of his evidence, the defendant mentioned a number of matters which were inconsistent with the evidence of the relevant complainant. In cross-examining the defendant, the prosecutor confronted him with eight of these matters,[9] requiring that he acknowledge that they had not been put to the relevant complainant, and putting to him that these aspects of his evidence had been recently invented (or suggesting that he was making his evidence up as he went along). In a couple of instances the defendant said, or implied, that his barrister should have cross-examined in relation to these matters.
[9] In the case of one, the prosecutor subsequently acknowledged in front of the jury that he had been mistaken and the matter had in fact been raised in cross-examination of the complainant.
In his closing address, the prosecutor emphasised two of these matters, including pointing out to the jury that they had not been put to the relevant complainants for their response. Neither counsel sought any directions from the judge in relation to these aspects of the cross-examination, and none were given.
In addressing the significance of the prosecutor’s cross-examination and closing address, the plurality (Kiefel CJ, Keane and Gleeson JJ)[10] commenced by confirming the application of the rule of practice in Browne v Dunn in criminal proceedings.[11] Their Honours then turned to the difficulties which may arise when the rule is not observed, adding that in criminal proceedings ‘it is not uncommon for matters which have not been put to the appropriate Crown witness to emerge from the evidence of an accused person,[12] including during the course of cross-examination’.[13]
[10] With whom Gageler J (at [80]) and Gordon J (at [126]) relevantly agreed.
[11] Hofer at [28] (Kiefel CJ, Keane and Gleeson JJ).
[12] R v Birks (1990) 19 NSWLR 677 (Birks) at 688 (Gleeson CJ).
[13] Hofer at [30].
Their Honours explained that a course sometimes taken by the prosecutor is to cross-examine the accused as to the failure to put a matter to a prosecution witness, including with questions directed to the reason for that omission. This may include cross-examination intended to impugn the credit of the accused by (expressly or impliedly) invoking a failure to observe the rule of practice in support of a suggestion of recent invention.[14] Their Honours explained the reasoning underpinning such cross-examination as commencing with the fact that a matter was not put by defence counsel; then drawing upon an assumption that the reason for this omission was that counsel was unaware of the matter because it had not been included in the accused’s instructions; and ultimately inviting a conclusion that the accused must now be making it up.[15]
[14] Hofer at [31].
[15] Hofer at [32].
The plurality referred to the reasoning of King CJ in R v Manunta,[16] and in particular his Honour’s warning that cross-examination which assumed only one reason why a matter had not been put to a witness was ‘fraught with peril’, and his observation that there may be many explanations for the omission which do not reflect upon the credibility of the accused. Those explanations may include defence counsel misunderstanding or overlooking an aspect of their instructions, or making a forensic decision not to pursue a line of questioning.[17]
[16] R v Manunta (1989) 54 SASR 17 (Manunta) at 23 (King CJ).
[17] Hofer at [33].
The plurality explained that cross-examining in this way on an assumption that defence counsel did not have instructions on the relevant matter, when other possible explanations cannot readily be excluded, may result in unfairness and prejudice to the accused. It may do so because it leads to impermissible questions of the accused, through the reasoning sought to be invoked, either expressly or impliedly, as to the instructions he or she gave.[18] Their Honours reasoned that where cross-examination along these lines occurs, it may be necessary for the trial judge to warn the jury about any assumption made by the cross-examiner, to draw attention to the possible explanations for why the matter was not put, and to direct the jury as to whether any inferences are available.[19]
[18] Hofer at [34]-[35].
[19] Hofer at [37].
In the circumstances of that case, the plurality held that cross-examination of the defendant was unfair and prejudicial. The ‘persistent requirement’ that the defendant acknowledge that matters he mentioned in his evidence had not been put to the complainants carried an implication that the defendant was obliged to provide an explanation. This implication was confirmed, and the prejudice reinforced, by the defendant’s attempts to provide an explanation, the judge’s refusal to permit him to explain, and the silence of defence counsel (in circumstances where evidence on appeal revealed that defence counsel had instructions in relation to some matters but made a forensic decision not to raise them with the relevant complainant). In effect, the prosecutor had sought to impugn the credit of the accused on the basis of an unfounded assumption, resulting in unfair prejudice to the defendant.[20]
[20] Hofer at [42]-[45].
The plurality considered that, in the circumstances described, the trial judge ought to have given directions to assist the jury. The judge ought to have warned against any inference based upon an assumption as to why the omission occurred without having regard to the other possibilities. In the absence of such directions, there was a real chance that the jury may have assumed that the reason for the omission was that the appellant had recently changed or made up his version of events. A miscarriage was established.[21]
[21] Hofer at [47]-[48], citing Manunta at 26 (King CJ) and Birks at 691-692 (Gleeson CJ).
The prosecutor’s cross-examination and closing address
As mentioned, in advancing Ground 7, the appellant relied upon several instances of cross-examination by the prosecutor in relation to matters which had not been mentioned in the cross-examination of JMB, or differed from the basis upon which she was cross-examined. The appellant identified five instances of cross-examination which he argued expressly or impliedly directed attention to the fact that defence counsel had omitted to put matters to one or other of the complainants.
The first instance occurred in the context of the appellant’s evidence about an incident said to have occurred while he and JMB were at Shelly Beach. In his evidence-in-chief, the appellant said that he gave JMB a shoulder ride and that whilst she was on his shoulders, she gripped his neck with her legs and began moving her hips back and forth. He said that he reprimanded JMB for this, and that she became upset.[22]
[22] This evidence was relied upon in support of a suggested motive for JMB to lie.
During cross-examination, the prosecutor asked the appellant why he had referred to this incident as involving a piggy-back in his police interview when his evidence was that it involved a shoulder ride. The appellant said that when speaking with the police he had been referring to a different incident earlier in the day, and that he had not told them about the second incident because they had not asked, and that because they began asking him about JMB’s allegation that he had touched her as she stood up through a sunroof while driving on the beach (which he knew was ‘wrong’), he had stopped talking. When asked why he did not mention both incidents in his evidence, he said that the shoulder ride incident was more relevant. It was put to the appellant that he was ‘making it up’ in the witness box that there were two separate incidents because he had been caught out telling two different versions of the incident (to the police and in his evidence). The appellant denied this, adding that he had told his ‘legal help at the time [that there were two incidents] and nothing went forward from that’.
The second instance related to the first occasion of alleged abuse, when JMB had been with the appellant while he was on the computer. The appellant gave evidence that JMB’s father had called out to him and JMB to come out of the room with the computer. The prosecutor suggested in cross-examination that this was a ‘detail that is coming to you on day 6 of the trial’, and that he was again making his evidence up as he went along. The appellant rejected this, explaining that he didn’t know about all of the allegations until recently, and had only had minimal contact with his counsel.
The third instance concerned the appellant’s evidence to the effect that he had witnessed JSMB ‘humping’ his sister JMB and had told them off. During cross-examination, the prosecutor suggested that the appellant had done so angrily and with a raised voice. When the appellant denied this, and said he was stern but not angry, the prosecutor pointed out that defence counsel had said the appellant was angry when cross-examining JMB, and asked the appellant whether he had spoken to his counsel in a break to ‘pull him up’ and tell him ‘it wasn’t like that’. The appellant responded by saying that ‘it all depends on how you look at the word ‘angry’’. He denied the prosecutor’s suggestion that he was now trying to downplay the incident given that others had not heard it.

The fourth instance involved the prosecutor asking the appellant what he had meant in his police interview when he said that he had had discussions with both complainants about ‘shit like this that’s happened’. The appellant responded that he was referring to what he had seen JSMB and JMB doing (being, it would seem, a reference to the ‘humping incident’ mentioned above). When asked about what this had to do with the complainant AP, the appellant said ‘because of what [AP’s] home life was like and what she was telling me she was seeing at home … watching her sister have sex with her boyfriend’. The prosecutor suggested the appellant was ‘making this up’, which he denied.
The prosecutor then said ‘on that, you understand how careful you have to be in terms of what is suggested by your lawyer in terms of what happened. You understand that. … your instructions need to be crystal clear …[in] what you are telling him happened’. The appellant agreed.
Whilst it is not entirely clear, it seems this question was intended as a prelude to what immediately followed, which the appellant relies upon as the fifth instance. This involved the prosecutor suggesting to the appellant that he had referred in his evidence to AP saying she had been lying naked on a bed with her step-father watching ‘big people naked movies’, and that this was the first time he had referred to AP being naked while watching the movies. The appellant responded in two ways. He started to explain that he was not sure, and that he thought he had mentioned it to his legal advisors, before being interrupted by the cross-examiner. He also attempted to correct the prosecutor by saying that he had referred to ‘naughty movies’ and not ‘naked movies’. The prosecutor did not accept this, suggested he was making his evidence up as he went along, and added that that was ‘the danger with making stuff up, sometimes you get the words a bit wrong’. The appellant maintained that this was exactly what AP had told him.
As it happens, the prosecutor was mistaken in his assertion that the appellant had earlier referred to ‘naked movies’ rather than ‘naughty movies’. The prosecutor acknowledged this error when the evidence resumed the following morning.
As mentioned earlier, there was no objection at the time to these instances of cross-examination as unfairly prejudicial in the manner now contended. Nor was there any request for any directions from the judge.
In his closing address, the prosecutor invited the jury to consider and ultimately reject the appellant’s evidence. In challenging the appellant’s evidence the prosecutor said that it did not ‘hang together’. He included reference to parts of the appellant’s evidence being made up, or an embellishment, suggesting that his story had been getting ‘bigger and bigger with every telling’.
The prosecutor included reference to the appellant’s evidence that there had been both a shoulder ride and a piggy-back, and observing that there was no evidence from JMB on this topic. However, there was no express reference in this instance, or elsewhere in the prosecutor’s closing address, to any omission (or breach of a rule of practice) on the part of defence counsel, or to any inference of recent invention predicated upon such omission.
The prosecutor properly reminded the jury that, even if they were prepared to reject the appellant’s evidence, they needed to consider the other evidence and satisfy themselves that the charged offending had been proved beyond reasonable doubt.
In her summing up, the judge referred to the prosecution challenge to the appellant’s evidence, but did not give any directions warning against any inference of recent invention based upon any omission or failure by defence counsel to put certain matters to prosecution witnesses.
Analysis
It may be accepted that each of the above passages of cross-examination involved reference to aspects of the appellant’s evidence which had not been put to the relevant prosecution witnesses (JMB and AP). However, the nature and effect of the cross-examination is readily distinguishable from the unfairly prejudicial cross-examination in Hofer. Unlike the prosecutor in that case, the prosecutor in the present case did not expressly advert to the omission of defence counsel to refer to the relevant matter in his earlier cross-examination of the relevant complainant, either in his questioning or in his submissions to the jury. It is to be acknowledged that at one point the prosecutor relied upon defence counsel’s reference to the appellant being ‘angry’ when cross-examining JMB. However, the focus of the cross-examination was generally upon the emerging or evolving detail relative to the appellant’s own earlier versions (whether in his police interview or in his evidence-in-chief). The suggestion of recent invention (or ‘making up his evidence as he went along’) was focussed more upon this internal discrepancy in, or feature of, the appellant’s evidence, than any inference that might be drawn from an omission by defence counsel to cross-examine the relevant complainant.
It is true that the cross-examiner referred at one point to the importance of the appellant giving his counsel clear instructions, although again this was in a context that focussed upon (asserted) inconsistency in the appellant’s own evidence. It is also true that, on a couple of occasions, the appellant himself sought to justify his reference to additional detail by reference to his dealings with his legal team. But these were relatively fleeting references, which again seemed more directed towards the appellant meeting the suggestion of recent invention by reference to his own failure to mention the relevant detail earlier, rather than to justify any omission by his counsel in cross-examining the complainants.
It is fair to say that the prosecutor’s cross-examination was undesirably loose in the way it addressed the inconsistencies or discrepancies it sought to address. It unnecessarily flirted with a risk that the jury might entertain an inference of recent invention on the basis of a comparison with what had been put to the complainants, and an unfounded assumption as to why defence counsel might have omitted to mention some matters of detail later mentioned by the appellant.
It is also fair to say that it would have been preferable for the trial judge to warn the jury against making any assumption as to why defence counsel’s cross-examination of the complainants had not included reference to some of the detail later mentioned by the appellant, albeit that this ran some risk of drawing further attention to the issue.
However, in the ultimate analysis, I am not satisfied that the prosecutor’s cross-examination gave rise to any realistic prospect that the jury entertained any inference of recent invention on the basis of any unfounded assumption as to why defence counsel had not put the relevant matters of detail to the complainants. In circumstances where the focus of the prosecutor’s cross-examination, and suggestion of recent invention during both his cross-examination and closing address, was focussed more upon changes in the appellant’s own versions of events (in his police interview, in evidence-in-chief and in cross-examination) than upon matters not put to the complainants, the case is distinguishable from Hofer.
The appellant has not established any miscarriage of justice.
Conclusion
Permission having already been granted on Ground 7, I would grant permission to appeal on the balance of the grounds that were ultimately pressed (being Grounds 1 to 5). However, I would dismiss the appeal.
BLEBY JA: I would dismiss the appeal for the reasons given by S Doyle JA.