Cooper v The State of Western Australia - [2010] WASCA 190

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

TITLE OF COURT : THE COURT OF APPEAL (WA)

CITATION: COOPER -v- THE STATE OF WESTERN AUSTRALIA [2010] WASCA 190

CORAM: PULLIN JA
BUSS JA
JENKINS J

HEARD: 17 AUGUST 2010

DELIVERED : 23 SEPTEMBER 2010

FILE NO/S: CACR 181 of 2009

BETWEEN: ROBIN JOHN COOPER
Appellant
AND
THE STATE OF WESTERN AUSTRALIA
Respondent

ON APPEAL FROM:
Jurisdiction              :  DISTRICT COURT OF WESTERN AUSTRALIA
Coram  :SCHOOMBEE DCJ
File No  :IND 1209 of 2008

Catchwords:

Criminal law - Appeal against conviction - Liberato direction - Whether error in directions concerning the standard and burden of proof - Turns on own facts

Legislation:

Nil

Result:

Appeal dismissed

Category: B

Representation:

Counsel:

Appellant: Mr L M Levy SC & Ms E Y H Scarff
Respondent: Mr D Dempster

Solicitors:

Appellant: Ilberys Lawyers
Respondent: Director of Public Prosecutions (WA)

Case(s) referred to in judgment(s):

Azarian v The State of Western Australia [2007] WASCA 249; (2007) 178 A Crim R 19
Johnson v The State of Western Australia [2008] WASCA 164; (2008) 186 A Crim R 531
Koushappis v The State of Western Australia [2007] WASCA 26; (2007) 168 A Crim R 51
Liberato v The Queen [1985] HCA 66; (1985) 159 CLR 507
Murray v The Queen [2002] HCA 26; (2002) 211 CLR 193
R v Anderson [2001] NSWCCA 488; (2001) 127 A Crim R 116
R v Chen [2002] NSWCCA 174; (2002) 130 A Crim R 300
R v KDY [2008] VSCA 104
R v Niass [2005] NSWCCA 120
Salmon v The Queen [2001] WASCA 270

PULLIN JA: This is an appeal against conviction. The appellant was charged on an indictment which contained two counts reading:
(1)On 20 January 2008 at Thornlie, Robin John Cooper with intent to facilitate the commission of an indictable offence, namely unlawful and indecent assault, administered a stupefying drug to [the complainant].
(2)On the same date and at the same place Robin John Cooper unlawfully and indecently assaulted [the complainant] by touching her vaginal area.
And that Robin John Cooper did bodily harm to [the complainant].
The jury returned a verdict of guilty on the first count and the appellant was acquitted on the second count. The ground of appeal alleges that the trial judge erred in the directions she gave to the jury concerning the standard and burden of proof. As a result, it is not necessary to give an overly detailed account of the evidence led at trial.
In short, the appellant was a medical practitioner who had been the complainant's family doctor for many years. On 15 January 2008, the complainant attended at the appellant's surgery to have an intrauterine device (IUD) implant. This procedure was carried out in the presence of a surgery nurse and the complainant's mother. The complainant was anxious about the painful nature of the IUD procedure, so the appellant administered, by injection, a sedative which the appellant said was Midazolam. The surgery nurse gave evidence that immediately after the injection the complainant's anxious demeanour changed and she became giggly, happy and uninhibited. The complainant described the effect of the drug as being similar to drunkenness.
The complainant was driven home by her mother. The complainant went to sleep and awoke an hour or two later in some pain. She rang the appellant who said to her to take Nurofen and the pain would subside.
On 20 January 2008, the complainant received a telephone call from the appellant who asked if he could, according to the complainant, 'pop over for a favour'. The appellant called at the complainant's house. The complainant greeted the appellant with a hug. The complainant gave evidence that she asked the appellant what the 'favour' was. According to the complainant, the appellant became nervous and told her he was uncomfortable and found it difficult to explain what was wrong. The appellant then took both his hands and started stroking her thumbs. He told her that he had 'lost his confidence' and had 'lost confidence with his wife and as a man' (ts 50 ‑ 51). According to the complainant, the appellant told her that he had some of the 'cool drug' from the previous week and would give some to her in a trade‑off if she would help him with his favour (ts 51). The appellant then injected the complainant in the left arm. The complainant said she did not feel much effect from the injection, so the appellant gave her a second dose in her right arm.
Following the second injection, the complainant said the appellant helped her to take her top off. She said that under the effects of the drug, she did not care or have a conscience. The complainant said that the appellant laid her down on the couch and knelt beside her. The complainant said that the appellant then kissed her passionately on the lips and that she kissed back. Her evidence was that the appellant touched her genitals and chest with his hand and moved around her genital area with his fingers.
After the appellant left the house, the complainant said she went to sleep. She later drove to her parents' place, and according to the evidence of the complainant's mother, the complainant seemed giggly and disoriented and was behaving in a manner similar to that displayed on 15 January 2008. Later, on the afternoon of 20 January 2008, the complainant telephoned a friend and 'work boss'. She went to see the workmate and told her that she had been drugged, touched and kissed but did not go into detail. The appellant accepts that this workmate gave evidence that a 'recent complaint' had been made about what the complainant alleged the appellant had done.
The next day the complainant went to the Sexual Assault Resource Centre with her mother. An examination by a doctor revealed two recent needle stick marks in the front aspect of the elbow crease in both arms. Medical evidence was led from a doctor expressing an opinion that the puncture marks were not likely to have been from 15 January 2008. Blood and urine samples were taken. The urine sample revealed the presence of Midazolam Metabolite, and evidence was led from a medical expert who expressed the opinion that he would not expect to see any product of Midazolam in the blood after eight hours or in the urine after 48 hours. He conceded however, that no studies had been done to show the levels of Midazolam in a person's urine five to six days after administration and that there was no equipment capable of measuring that level. Morphine and codeine were also detected in the urine sample and codeine was detected in the blood sample.
Evidence of propensity was led from the appellant's ex‑wife about the appellant using a sedative when engaging in sexual activity with her.
The police attended at the appellant's home on 31 January 2008 and took possession of the appellant's medical bag. In this were found ampoules of morphine and an empty ampoule marked 'Midazolam', one with a break‑off top in a fit pack together with a needle and the lid of a morphine sulphate ampoule. Evidence was led of the Midazolam ampoule in the bag, not to demonstrate that this was the ampoule which had been used to inject the complainant, but rather to prove that the appellant had access to these sorts of drugs.
The appellant gave evidence confirming the 15 January 2008 surgery visit and the fact that he went to the appellant's home on 20 January 2008. He also gave evidence that he was greeted with a hug. The appellant's evidence was that he went to check the complainant and also to tell her that he was going to terminate his relationship with her as her doctor as a prelude to phasing down towards retirement. He said that he examined the complainant. He denied injecting any drug on 20 January 2008 or having any Midazolam with him on that day. He denied sexually assaulting the complainant or taking off her clothes. He denied injecting his ex‑wife with anything other than Maxolon for nausea and denied injecting her for any sexual reason. The defence also called medical evidence confirming that there were no known studies for the rate of discharge of Midazolam.

Ground of appeal

Leave has already been granted to advance the single ground of appeal which reads:
1.The learned trial judge erred in law in her directions to the jury in relation to the standard and burden of proof in a criminal trial.
1.1The learned trial Judge's directions to the jury included the following:
a)'...it is not only a question of deciding whose evidence you prefer. You have to be satisfied that the State has proven the charges beyond reasonable doubt.' (emphasis added) (T.376)
b)'Do you accept [the complainant's] evidence or do you accept [the appellant's] evidence? (T.420)
c)'But once you have made up your mind as to what facts you accept then you have to ask yourself on those facts is it the only reasonable inference that [the appellant] had the intent of sexually touching her or isn't it? Is there some other possible intent that he had?' (T.420)
1.2The above directions were wrong at law as they suggested that:
a)the jury's task included deciding which evidence they preferred; and
b)that the appellant bore an onus of proof.

The trial judge's directions to the jury

The trial judge summed up, and the jury retired, before returning with a question which read:
The jury is having considerable difficulty understanding the context of the word 'intent' in the first charge. Can we please have some guidance and clarification regarding this word?
The trial judge answered the question and the content of the directions given in the answer will be referred to below.
The appellant made an ambivalent submission about the main summing up. On the one hand, senior counsel for the appellant admitted that it revealed no error, but on the other hand complained about two words in it, the words being 'not only' in a passage which read:
The fact that Dr Cooper chose to give evidence does not detract from the important principles of our system of the law that the burden is on the State to prove the charges that it presents against the accused. And the accused is presumed to be innocent until the charges against him have been proven beyond reasonable doubt. So, members of the jury, it is not only a question of deciding whose evidence you prefer. You have to be satisfied that the State has proven the charges beyond reasonable doubt. So it may be that you believe all of Dr Cooper's evidence. In that event, you would acquit him, because his evidence would have given rise to a reasonable doubt with regard to the case that the State has to prove. However, even if you do not believe the evidence that Dr Cooper gave, but his evidence has given rise to a reasonable doubt on a particular issue, you cannot make a finding on that particular issue against Dr Cooper.
On the other hand, if you prefer the evidence for the State you cannot simply find Dr Cooper unless you are satisfied beyond reasonable doubt that the evidence led by the State is true and correct. It is very important for you to remember that the question for you to consider is whether, on all the evidence before you, the State has proven each charge against Dr Cooper beyond reasonable doubt. If Dr Cooper's evidence, or the evidence by the State or the other evidence for the defence - Professor Joyce's evidence - has given rise to a reasonable doubt with regard to the State's case, then Dr Cooper is entitled to the benefit of that doubt, and you cannot convict him of any count in respect of which you have a reasonable doubt regarding his guilt. (ts 376) (emphasis added)
This passage reveals no error. 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 who is to be believed. But it is essential to ensure by suitable direction that the answer to that question, if adverse to the defence, is not taken as concluding the issue whether the prosecution has proved beyond reasonable doubt the issues on which it bears the onus of proof. 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. See Liberato v The Queen [1985] HCA 66; (1985) 159 CLR 507. This is what the trial judge told the jury. The words 'not only' were used to tell the jury that they 'not only' had to decide who they believed. They were directed that they still had to be satisfied that the State had proved the charges beyond reasonable doubt even if they preferred the prosecution evidence. This was correct and there was no error.
The appellant then alleges error in the direction given in answer to the jury's question. The ground of appeal alleges erroneous direction about the onus and burden of proof. The appellant acknowledges that in the main direction, before the question was asked, the jury was correctly directed on these topics and there can be no doubt about this because her Honour directed as follows:
Now, beyond reasonable doubt is a high standard; it is the highest standard known to our law. If you have a reasonable doubt as to whether Dr Cooper is guilty in respect of a particular charge then it is your duty to acquit him of that particular charge. Dr Cooper does not have to prove anything. An accused never has to prove anything in a trial. The burden remains on the State at all times. Now, it is therefore important for you to remember when you are considering the evidence that Dr Cooper is presumed to be innocent with regard to the charges brought against him. Any person who stands trial is presumed to be innocent. The only people who can remove that presumption of innocence are you, the members of the jury, by bringing out a verdict of guilty. You cannot bring out a verdict of guilty unless you are satisfied beyond reasonable doubt that evidence has been produced in this trial which proves that Dr Cooper is guilty of the particular charge that you are considering. If you have a reasonable doubt as to whether Dr Cooper is guilty or not guilty of a particular charge then it is your duty to acquit him of that particular charge. (ts 374)
The appellant's argument is that this correct direction was compromised by what was said by the trial judge in dealing with the jury's question. As to the question asked by the jury, the trial judge gave directions as follows. First, her Honour explained what the ordinary meaning of the word 'intent' was and explained to the jury that 'if you intend to do something, you have in mind to do this' and then said:
So the question that you have to resolve, assuming that you have found that Dr Cooper did administer a stupefying drug is whether Dr Cooper had, in his mind, or whether his mind was concentrated on touching [the complainant] indecently, that is sexually, when he gave her the stupefying drug. Or, did he give it to her for purposes of a medical examination, or for some other purpose. (ts 418)
The trial judge then correctly explained that intent could not be 'seen, felt or heard' and that intent was provable by inference from other facts and that:
You have to draw a conclusion from the other facts that there was evidence about in order to make this conclusion whether Dr Cooper did have the intent to sexually touch [the complainant] when he administered the stupefying drug or whether he didn't. (ts 418)
Her Honour explained that the jury only 'get to the intent issue once you have decided that he did give her a stupefying drug'. Her Honour then repeated that intent was something that the 'State has to prove beyond reasonable doubt' (ts 420) and continued with the following (which the appellant alleges reveals error):
So therefore what I explained to you about inferences applies and that means that you can only draw the inference that Dr Cooper had the intent to sexually touch her when he applied the stupefying drug. You can only draw that inference if it is the only reasonable inference. So you have to ask yourself, 'On the facts that I accept' - first of all you have to ask yourself what facts do you accept. Do you accept [the complainant's] evidence or do you accept Dr Cooper's evidence? But once you have made up your mind as to what facts you accept then you have to ask yourself on those facts is it the only reasonable inference that Dr Cooper had the intent of sexually touching her or isn't it? Is there some other possible intent that he had? (ts 420)
Appellant's counsel contend that this last passage meant that the jury was left with the impression that it would have to decide who to believe

and that the direction, being five hours after the commencement of the main summing up, compromised what had been correctly said in the main summing up.

The ground of appeal, the submissions of counsel on appeal and the trial counsel's submission must be rejected for the following reasons.
First it was not necessary that the trial judge repeat what had been said in the main directions earlier. Second, the trial judge in fact reminded the jury of earlier directions she had given on inferences. Third, even in the answer, the trial judge reminded the jury that proof on the point had to be beyond reasonable doubt. Fourth, the trial judge's answer was not about the overall task of deciding whether the appellant was guilty or not guilty. Rather, it was about what inferences could be drawn from facts which had to be found after hearing the evidence of the complainant and the appellant and accepting (or finding) some facts in relation to the critical aspects going to the question of intent. Fifth, the trial judge stressed to the jury that the inference as to intent must be the only inference reasonably open. Sixth, the trial judge at the main summing up had directed the jury, not only at ts 374, about the onus and standard of proof (as set out above), but after the passage containing the words 'not only' in respect of which the appellant's ambivalent submissions were made, the trial judge referred to the requirement that the State prove the charges beyond reasonable doubt on no less than 10 separate occasions. The jury was left in no doubt about the task to be undertaken.
It has been said on many occasions that appellants should not seek to isolate just a few words in a lengthy summing up, and seek to establish error by reference only to those words. It is necessary to read the summing up as a whole. Having read the whole of the judge's summing up, including the answer given to the jury's question, no error is revealed. The trial judge did not err in directions to the jury in relation to the standard and burden of proof. The directions did not suggest to the jury that their task was to determine the guilt of the appellant solely by deciding which evidence they preferred and did not suggest at all that the appellant bore any onus of proof.
The appeal should be dismissed.
BUSS JA: I have read the proposed reasons for decision of Pullin JA. I agree with his Honour that the appeal should be dismissed, but I propose to state my own reasons for that conclusion.

The background facts and circumstances are set out adequately in Pullin JA's reasons. I will not repeat them except to the extent necessary to explain my reasons.

The background facts and circumstances

The appellant was tried in the District Court before Schoombee DCJ and a jury on two counts in an indictment which read:
(1)On 20 January 2008 at Thornlie, Robin John Cooper with intent to facilitate the commission of an indictable offence, namely unlawful and indecent assault, administered a stupefying drug to [the complainant].
(2)On the same date and at the same place Robin John Cooper unlawfully and indecently assaulted [the complainant] by touching her vaginal area.
And that Robin John Cooper did bodily harm to [the complainant].

The jury convicted the appellant on count 1, but found him not guilty on count 2.
The appellant was a medical practitioner. He was the complainant's family doctor for many years. At the material time, the appellant was aged 59 years and the complainant was 23 years old.
On 15 January 2008, the complainant went to the appellant's surgery for the purpose of having an intrauterine device (IUD) inserted. The appellant inserted the IUD in the presence of his nurse and the complainant's mother. The complainant was anxious about the procedure. The appellant therefore administered a sedative by injection. He said the drug was Midazolam. The nurse gave evidence that immediately after the injection, the complainant's anxiety dissipated and she became giggly, happy and uninhibited. According to the complainant, the effect of the drug was similar to being drunk.
On 20 January 2008, the appellant telephoned the complainant and arranged to call at her home that day.
The complainant gave evidence that after the appellant arrived at her home on 20 January 2008 he told her that he had some of the 'cool drug' from the previous week. He offered to give her some of the drug if she would help him with a personal favour. He said that he had 'lost his confidence' and had 'lost confidence with his wife and as a man' (ts 51). The appellant then gave the complainant an injection in her left arm. After the complainant told the appellant that the injection did not have much effect, he gave her another injection in her right arm. According to the complainant, after the second injection the appellant assisted her to remove her top. She said that the effect of the drug upon her was that she did not care or have a conscience. The appellant placed her on a couch and knelt beside her. He kissed her on the lips with passion and she kissed him similarly. The appellant touched her genitals and breast with his hand and moved his fingers around her genital area (ts 53).
The appellant gave evidence at the trial in his own defence. He said that he went to the complainant's home on 20 January 2008 to check on her condition after the insertion of the IUD, and to tell her that he would be terminating their doctor/patient relationship because he was moving towards retirement. He said he examined the complainant. However, he denied injecting any drug on this occasion or, indeed, having any Midazolam with him. Also, he denied having touched the complainant sexually or having taken off her clothes.

The ground of appeal

The sole ground of appeal reads:
1.The learned trial judge erred in law in her directions to the jury in relation to the standard and burden of proof in a criminal trial.
1.1The learned trial Judge's directions to the jury included the following:
a)' ... it is not only a question of deciding whose evidence you prefer. You have to be satisfied that the State has proven the charges beyond reasonable doubt.' (emphasis added) (T.376)
b)'Do you accept [the complainant's] evidence or do you accept [the appellant's] evidence? (T.420)
c)'But once you have made up your mind as to what facts you accept then you have to ask yourself on those facts is it the only reasonable inference that [the appellant] had the intent of sexually touching her or isn't it? Is there some other possible intent that he had?' (T.420)
1.2The above directions were wrong at law as they suggested that:
a)the jury's task included deciding which evidence they preferred; and
b)that the appellant bore an onus of proof.
On 12 March 2010, Jenkins J granted leave to appeal.

The so‑called Liberato direction

In Liberato v The Queen [1985] HCA 66; (1985) 159 CLR 507, Brennan J (dissenting) 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 (515).
As Redlich JA (Warren CJ and Forrest AJA agreeing) pointed out in R v KDY [2008] VSCA 104, the trial judge's direction in Liberato had invited the jury to choose between evidence adduced by the prosecution and evidence adduced by the defence. This invitation followed upon a serious misdirection by the trial judge that the jury should give the accused the benefit of any doubt where 'a belief in the accused was something about which the jury was satisfied' [26]. Redlich JA then referred, with approval, to the observation of Hunt AJA (Grove and Hall JJ agreeing) in R v Niass [2005] NSWCCA 120 [28] to the effect that the so-called Liberato direction will be appropriate in many cases 'where there is a reasonable likelihood that the jury would otherwise obtain the impression that the evidence on which the accused relies can give rise to a reasonable doubt as to his guilt only if they believe that evidence to be true'.
It is well-established that a Liberato direction is not required as a matter of law. See, for example, Salmon v The Queen [2001] WASCA 270 [3], [11], [101]; R v Chen [2002] NSWCCA 174; (2002) 130 A Crim R 300 [76] ‑ [81]; Niass [28]; KDY [26]. Such a direction should be given, however, if, in the circumstances of the particular case, there is a real (as distinct from a fanciful) risk that the jury may otherwise have the impression that disbelief of an accused's evidence, or preference for a complainant's evidence, means that the State has proved its case beyond reasonable doubt.
In Johnson v The State of Western Australia [2008] WASCA 164; (2008) 186 A Crim R 531, Wheeler JA (Martin CJ agreeing) referred to the observations of Brennan J in Liberato which I have reproduced at [36] above. Her Honour then said:
There are, in my view, a number of difficulties with these observations. It is not commonplace for judges to invite the jury to consider the question, 'Who is to be believed?', in those terms. Trial judges, in my experience, generally endeavour to avoid putting the matter in that way, precisely because such a question might suggest to a jury that it is necessary for them to pick one or the other of the competing versions of events. Nor am I entirely convinced that the jury would doubtless ask themselves that question, in any event. The expression 'reasonable doubt', if it conveys anything, is surely apt to convey that a juror who is in a state of uncertainty about the evidence must refrain from convicting.
Finally, in respect of the two sentences beginning, 'The jury must be told', it must be accepted that a jury may positively disbelieve and therefore completely reject the evidence of an accused person. In that situation, it would be positively confusing for them to have been told that they could not find an issue against the accused, if the accused's evidence gives rise to a 'reasonable doubt', because, if the evidence is rejected, it must be set aside, and cannot give rise to a doubt.
For those reasons, I am inclined to agree with the views expressed in other cases in this State to the effect that a preferable formulation of the relevant direction may be that suggested in Anderson [2001] NSWCCA 488; (2001) 127 A Crim R 116 [25] (Kirby J, Sheller AJ and Dowd J concurring): see Koushappis v Western Australia [2007] WASCA 26; (2007) 168 A Crim R 51 [104] (Roberts-Smith JA, McLure and Buss JJA concurring), Azarian v The State of Western Australia [2007] WASCA 249 [114] (Miller JA). However, there is no form of words which must be used in all circumstances. The essential point which must be made, where a judge considers it necessary or desirable to do so, is that a jury's task is not to choose between opposing stories, but to determine the question of whether the State has proved its case beyond reasonable doubt.
The nature of the direction indicates the circumstances in which it will be required. It will be required where something has been said by either counsel or the judge, or perhaps even by a witness, which may have the effect of indicating that a jury does have the task of choosing between opposing stories. The essence of the observations of Brennan J in Liberato was that care should be taken not to compromise the clarity and effectiveness of the central directions of law on the onus and standard of proof by indicating that the jury's task was to make such a choice and that, if it was possible that such a misapprehension might arise, it should be the subject of a direction [14] ‑ [17]. (emphasis added)
As Wheeler JA noted in Johnson, although it may have been commonplace in 1985, when Liberato was decided, for a trial judge to invite a jury to consider the question:
Who is to be believed?
in those terms, that practice is not now commonplace in Western Australian and trial judges generally endeavour to avoid putting the matter in that way.
In Koushappis v The State of Western Australia [2007] WASCA 26; (2007) 168 A Crim R 51 [100], [104], Roberts-Smith JA (McLure & Buss JJA agreeing) approved this form of direction suggested by Kirby J (Sheller AJ & Dowd J agreeing) in R v Anderson [2001] NSWCCA 488; (2001) 127 A Crim R 116:
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 that 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, upon the basis of evidence that you do accept, proved the guilt of the accused beyond reasonable doubt [25]?
See also Azarian v The State of Western Australia [2007] WASCA 249; (2007) 178 A Crim R 19 [114] (Miller JA); Johnson [27] ‑ [31] (Buss JA).

The trial judge's summing up

The trial judge said soon after she commenced her summing up that the jury were the sole judges of the credibility and reliability of each witness. She told them that:
Credibility concerns honesty. Reliability is an additional factor to consider. A witness may be honest but may have a poor memory or be otherwise mistaken. It may be that you accept part of a witness's evidence but reject other parts of that witness's evidence (ts 370).
Her Honour instructed the jury that the burden of proving each count was on the State and that 'the standard to which the State must do so is beyond reasonable doubt and you cannot convict Dr Cooper unless the State has satisfied you beyond reasonable doubt that Dr Cooper is guilty of the charge that you are considering at that present time' (ts 373).
She then directed the jury:
Now, beyond reasonable doubt is a high standard; it is the highest standard known to our law. If you have a reasonable doubt as to whether Dr Cooper is guilty in respect of a particular charge then it is your duty to acquit him of that particular charge. Dr Cooper does not have to prove anything. An accused never has to prove anything in a trial. The burden remains on the State at all times. Now, it is therefore important for you to remember when you are considering the evidence that Dr Cooper is presumed to be innocent with regard to the charges brought against him. Any person who stands trial is presumed to be innocent. The only people who can remove that presumption of innocence are you, the members of the jury, by bringing out a verdict of guilty. You cannot bring out a verdict of guilty unless you are satisfied beyond reasonable doubt that evidence has been produced in this trial which proves that Dr Cooper is guilty of the particular charge that you are considering. If you have a reasonable doubt as to whether Dr Cooper is guilty or not guilty of a particular charge then it is your duty to acquit him of that particular charge (ts 374).
The trial judge explained to the jury the nature of an inference and how an inference might be drawn from facts they accepted. She then told them:
Now, for the purposes of a criminal trial and a finding of guilt you can only draw an inference if it is the only reasonable inference with regard to all the evidence before you (ts 374).
A little later, she directed the jury that if there was a reasonable inference open other than that of guilt, they must acquit (ts 375).
Next, her Honour referred again to the presumption of innocence and to Dr Cooper's decision to give evidence in his own defence. She added:
The fact that Dr Cooper chose to give evidence does not detract from the important principles of our system of the law that the burden is on the State to prove the charges that it presents against the accused. And the accused is presumed to be innocent until the charges against him have been proven beyond reasonable doubt. So, members of the jury, it is not only a question of deciding whose evidence you prefer. You have to be satisfied that the State has proven the charges beyond reasonable doubt. So it may be that you believe all of Dr Cooper's evidence. In that event, you would acquit him, because his evidence would have given rise to a reasonable doubt with regard to the case that the State has to prove. However, even if you do not believe the evidence that Dr Cooper gave, but his evidence has given rise to a reasonable doubt on a particular issue, you cannot make a finding on that particular issue against Dr Cooper.
On the other hand, if you prefer the evidence for the State you cannot simply find Dr Cooper [guilty] unless you are satisfied beyond reasonable doubt that the evidence led by the State is true and correct. It is very important for you to remember that the question for you to consider is whether, on all the evidence before you, the State has proven each charge against Dr Cooper beyond reasonable doubt. If Dr Cooper's evidence, or the evidence by the State or the other evidence for the defence - Professor Joyce's evidence - has given rise to a reasonable doubt with regard to the State's case, then Dr Cooper is entitled to the benefit of that doubt, and you cannot convict him of any count in respect of which you have a reasonable doubt regarding his guilt.
As I have said, even if you were not to accept Dr Cooper's evidence and to reject that evidence, it does not follow automatically that you convict him of the offences charged. Dr Cooper does not have to prove anything. You still have to be satisfied that the State, by its evidence, has proven the charges beyond reasonable doubt (ts 376 ‑ 377). (emphasis added)
The trial judge explained to the jury the elements of each alleged offence, and told them that the State must prove each element of each offence beyond reasonable doubt (ts 378). As to count 1, being the count on which the jury returned a verdict of guilty, her Honour said:
Now, turning to the first count in the indictment, this is the one that says Dr Cooper, with the intent to facilitate the commission of an indictable offence; namely, an unlawful and indecent assault, administered a stupefying drug to [the complainant]. Now, in order to prove this charge the State must prove three elements beyond reasonable doubt. The first element which the State has to prove beyond reasonable doubt is identity. The State must prove that it was Dr Cooper who did the things that the State says constitute this offence. Members of the jury, you are not likely to have much difficulty with this element as Dr Cooper admits that he was at [the complainant's] house on 20 January 2008. Identity is not an issue in this case. There are other issues that Dr Cooper - or other defences which Dr Cooper raises. The second element that the State has to prove beyond reasonable doubt is that Dr Cooper administered a stupefying drug. Now, to administer a drug simply means to give it to someone. The word 'stupefying' is defined in the Shorter Oxford English Dictionary as to make stupid or numb or torpid, which means apathetic, slow or sluggish; or to make insensible, which means incapable of mentally feeling or perceiving, or to deaden.
Now, you do not need to be satisfied as to exactly what drug or drugs Dr Cooper administered to [the complainant], as long as you are satisfied beyond reasonable doubt that it was a stupefying drug, in the sense that I just described to you stupefy means. Now, the State says that Dr Cooper injected [the complainant] with a drug or a mixture of drugs which had a stupefying effect on [the complainant], in that she became apathetic, incapable of mentally feeling or perceiving and compliant. The defence says none of this ever occurred and that Dr Cooper only suggested that [the complainant] take some of the Valium which he had previously supplied to her and which does not have a stupefying effect.
The third element which the State has to prove beyond reasonable doubt is that Dr Cooper gave [the complainant] the drug with the intent to facilitate an indictable offence. Now, the State says that the indictable offence which Dr Cooper intended to commit was the offence of unlawfully and indecently assaulting [the complainant]. Now, members of the jury, you may accept that the offence of unlawful and indecent assault is an indictable offence. So you don't have to concern yourself any further what an indictable offence means. It is not necessary that Dr Cooper knew that touching [the complainant's] vaginal area is an indictable offence. All you have to be satisfied of beyond reasonable doubt is that the drug was given in order to facilitate the unlawful and indecent touching of the vagina, which is an indictable offence. Now, to facilitate just means to make something easier, to promote it or help it forward. Now, remember as part of this third element the State also has to prove beyond reasonable doubt that Dr Cooper intended to facilitate the commission of an unlawful and indecent assault. Now, intention is a state of mind, and as I said to you previously, one cannot see, hear or touch a state of mind. So in order to make a finding about Dr Cooper's state of mind, an inference has to be drawn from other facts which you find proven and which indicate his state of mind at the relevant time. A person's intention may be inferred from evidence of what that person said and did at the relevant time and from other circumstances which you find proven. However, remember that if you draw an inference from circumstantial evidence you have to be careful that it is the only reasonable inference. As I explained to you earlier in a criminal trial you can only draw an inference which proves the accused's guilt or is indispensable to proving his guilt if it is the only reasonable inference on all the facts before you. Now, each element of an offence that the State has to prove is a fact which is indispensable to the accused's guilt. And each element therefore has to be proven beyond reasonable doubt. You can therefore only draw the inference that Dr Cooper had the intent to facilitate the commission of unlawful and indecent assault if this is the only reasonable inference on all the evidence before you. If another reasonable inference is open on all the evidence before you then you cannot draw the inference that Dr Cooper had the necessary intent. Now, the State says there is only one reason why Dr Cooper would have injected [the complainant] with the drugs and that was to facilitate an unlawful and indecent assault on her. The State says that on all the evidence before you that is the only reasonable inference. That Dr Cooper administered the drug with the intent of committing the indecent assault. The defence on the other hand says that Dr Cooper did not have any such intent as he did not inject [the complainant] with any stupefying drug on 20 January 2008 (ts 378 ‑ 380).

The trial judge's summing up commenced at 10.10 am on 13 November 2009 and finished at 12.20 pm on that day. The jury then retired to consider their verdicts.
At about 5.06 pm on 13 November 2009, the jury sent this question to her Honour:
The jury's having considerable difficulty understanding the context of the word 'intent' in the first charge. Can we please have some guidance and clarification regarding this word? (ts 417)
The jury returned at 5.09 pm, and the trial judge answered their question, relevantly, as follows:
So the question that you have to resolve, assuming that you have found that Dr Cooper did administer a stupefying drug is whether Dr Cooper had, in his mind, or whether his mind was concentrated on touching [the complainant] indecently, that is sexually, when he gave her the stupefying drug. Or, did he give it to her for purposes of a medical examination, or for some other purpose.
Now, as explained to you earlier that because intent is something that you cannot see or hear or feel. So the State cannot present a witness which said, 'Well, I looked into the mind of Dr Cooper and I could see that he had the intent; that he had his mind concentrated on sexually touching [the complainant] and not on doing a medical examination or some other purpose when he administered the stupefying drug'. This is why you have to make a inference. You have to make a deduction. You have to draw a conclusion from the other facts that there was evidence about in order to make this conclusion whether Dr Cooper did have the intent to sexually touch [the complainant] when he administered the stupefying drug or whether he didn't. And as I said to you, you then look at all the facts that you find proven, so you look at the evidence that [the complainant] gave.
And [the complainant] said that he rang her on the phone and said, 'Can I come over? I've got a favour to ask'. [The complainant] said Dr Cooper then came in and he said to her he had some confidence problems with his wife and he then said, 'I've brought the same drug', or, 'I've brought the same injection that I gave you the other day'. He then injected [the complainant] with it, and she said he then helped her take off her top, and she assisted him with that. And the next thing she remembered is that she was lying on the sofa naked except for her socks on. And then she said he kissed her passionately and he touched and kissed her on the chest. Then the next thing she remembered that he touched her in her vaginal area, and the next thing she remembered that he then helped her getting dressed again. He said - I'm not sure exactly what the words were, but they're words to the effect that he couldn't get aroused and he touched the front of his pants and then he left. So that was the evidence that [the complainant] gave on this, more or less. I hope I've got it right. Counsel will tell me if I haven't. And it is that sort of evidence that you have to look at when you make the decision whether you can draw the inference that Dr Cooper had the intent to sexually touch her when he gave her the stupefying drug. As I said of course you only get to the intent issue once you have decided that he did give her a stupefying drug. Now, you don't only have to rely on [the complainant's] evidence. You can rely on any other evidence that you think are facts from which you can draw an inference regarding Dr Cooper's state of mind. So you can then look at what Dr Cooper says and he says, 'Well, I came there and I was just going to ask how she was doing that day and I didn't give her any stupefying drugs'. So I suppose you don't even get over the first hurdle if you accept Dr Cooper's evidence. 'And I certainly didn't intend to touch her in any sexual manner. I just intended to find out whether she was all right and I palpitated her tummy area to see whether there was any problem with the IUD'. So if you accept that evidence, then you obviously draw an inference from those facts. And the only other thing that I can repeat to you with regard to the matter of intent is intent to do this unlawful sexual assault, which I suppose in layman's term you can translate into sexually touching in this [particular] case. So the question whether there was this intent is an element of the second count and therefore - I want to make sure I've got the second part, and therefore it is something that the State has to prove beyond reasonable doubt. So therefore what I explained to you about inferences applies and that means that you can only draw the inference that Dr Cooper had the intent to sexually touch her when he applied the stupefying drug. You can only draw that inference if it is the only reasonable inference. So you have to ask yourself, 'On the facts that I accept' - first of all you have to ask yourself what facts do you accept. Do you accept [the complainant's] evidence or do you accept Dr Cooper's evidence? But once you have made up your mind as to what facts you accept then you have to ask yourself on those facts is it the only reasonable inference that Dr Cooper had the intent of sexually touching her or isn't it? Is there some other possible intent that he had? (ts 418 ‑ 420) (emphasis added)
The jury retired again after her Honour answered their question. The appellant's trial counsel then raised with her Honour the following concern in relation to her answer:
QUAIL, MR: ... I understood the jury to be asking essentially about intent and asking you to define it again, which you did. But your Honour then went on to summarise two pieces of evidence in relation to that intent, namely the evidence of - a brief summary, as your Honour said, of [the complainant] and then of Dr Cooper. And I didn't understand the question to require your Honour to do that. What I'm most concerned about though is that your Honour has concluded your direction to the jury by indicating to them that it comes down to a question of whether they accept [the complainant's] evidence or whether they accept Dr Coopers' evidence when they come to make a decision about what inferences they might draw in relation to intent. In my respectful submission, that's wrong. It's not a question of whether they accept [the complainant's] evidence or whether they accept Dr Coopers' evidence because it's not about belief; it's simply about whether they are satisfied beyond a reasonable doubt. And it might well be that there are other alternatives available to them. And to reduce it now to a question of whether they accept her evidence or accept his evidence undermines, in my respectful submission, the standard of proof (ts 420 ‑ 421).
The trial judge refused to redirect the jury. She said that, in her view, she had made it 'very clear' to the jury in previous directions that it was not 'a question of only deciding which evidence you prefer' (ts 421). See also ts 424.
At 7.05 pm on 13 November 2009, the jury returned with a verdict of guilty on count 1. Earlier, they had returned with a verdict of acquittal on count 2.

The merits of the appeal

The critical question raised by the ground of appeal is whether, in the context of the trial judge's summing up as a whole, there was a real (as distinct from a fanciful) risk that the four sentences complained of by the appellant may have been understood by the jury as suggesting that:
(a)their task included deciding who, as between the complainant and the appellant, was to be believed and, if that question was answered adversely to the appellant, concluding that the State had proved its case against him beyond reasonable doubt; or
(b)the appellant bore an onus of proof.
As Kirby J noted in Murray v The Queen [2002] HCA 26; (2002) 211 CLR 193 [72]:
[I]t is a cardinal principle of appellate scrutiny of judicial instructions to a jury that regard must be had to:
(1)The character of the communication. It obliges a real contact by the judge with the collective mind of the jury fresh from having heard the evidence. It does not call for a convoluted legal essay whose only merit is that it might protect the judge from appellate reversal (Zoneff v The Queen (2000) 200 CLR 234 at 263 [73]); and
(2)The entirety of the communication. Particular passages in the instructions must be read and understood in the light of ‑
(a)the issues actually fought at the trial;
(b)the addresses to the jury by trial counsel that immediately preceded the judge's instructions;
(c)any consideration and discussion between the judge and counsel prior to the instructions as to their content; and
(d)the entire content of the instructions, taken as a whole. It is a basic mistake to isolate any judicial (or other) utterances and to consider them out of context (cf Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 271 ‑ 272, 291). But it is especially mistaken to take parts of a judicial communication with a jury in a criminal trial in isolation from the context (R v Kanaveilomani [1995] 2 Qd R 642 at 648, 651 ‑ 652).
I am satisfied, upon my examination of the four impugned sentences by reference to the entirety of the trial judge's summing up (including her answer to the jury's question), that there was no real risk that the jury may have understood her Honour to have suggested that their task included the impermissible process of reasoning set out at [53] above or that the appellant bore an onus of proof. I am of that opinion for the following reasons.
First, the trial judge gave conventional directions as to the burden and standard of proof on numerous occasions. See ts 373 ‑ 374, 376 ‑ 377, 404, 405 ‑ 406. She emphasised appropriately the burden and standard of proof in relation to each of the elements of each count in the indictment. See ts 378 ‑ 380 (count 1), 380 ‑ 382 (count 2). The standard of proof was referred to again at ts 385, 390 ‑ 391, and was also mentioned at ts 375 in the context of drawing an inference as to guilt.
Secondly, the first impugned sentence, namely:
So, members of the jury, it is not only a question of deciding whose evidence you prefer (ts 376),
occurred in the context of a Liberato direction given by her Honour to the jury. The words 'not only' mean, and would have been understood by the jury to mean, 'not merely'. That is, her Honour was instructing the jury that even if they preferred the evidence of the complainant to the evidence of the appellant on any matters about which their evidence diverged, that preference was not, of itself, a proper basis on which to return a verdict of guilty.
The trial judge stressed, immediately after the first impugned sentence, that it was necessary for the jury to be satisfied beyond reasonable doubt that the State had proven its case in relation to the charge in question. Her Honour explained that if the jury accepted the appellant's evidence they would acquit him. She added that even if they did not believe the appellant's evidence, but his evidence gave rise to a reasonable doubt on a particular issue, they could not make a finding against him on that issue. Further, she said that if they preferred the State's evidence they could not find the appellant guilty unless they were satisfied beyond reasonable doubt that the State's evidence was true and correct. In addition, she said that if the appellant's evidence or any other evidence adduced by the State or the defence gave rise to a reasonable doubt about the State's case then the appellant was entitled to the benefit of that doubt. The jury could not convict on any count if they entertained a reasonable doubt as to his guilt.
Thirdly, the appellant's experienced trial counsel did not seek a redirection from her Honour in connection with the first impugned sentence.
Fourthly, the second, third and fourth impugned sentences, namely:
Do you accept [the complainant's] evidence or do you accept Dr Cooper's evidence? But once you have made up your mind as to what facts you accept then you have to ask yourself on those facts is it the only reasonable inference that Dr Cooper had the intent of sexually touching her or isn't it? Is there some other possible intent that he had? (ts 420),
appeared in the context of a direction by the trial judge concerning the drawing of an inference as to the appellant's intent (being the third element of count 1) in the event they were satisfied that he had in fact administered a stupefying drug to the complainant (being the second element of count 1).
As I have mentioned, the complainant's evidence was that on the occasion in question the appellant had given her an injection of the 'cool drug' in each arm. The appellant denied having given her any injection.
The second, third and fourth impugned sentences were immediately preceded by the following passage:
[I]t is something that the State has to prove beyond reasonable doubt. So therefore what I explained to you about inferences applies and that means that you can only draw the inference that Dr Cooper had the intent to sexually touch her when he applied the stupefying drug. You can only draw that inference if it is the only reasonable inference. So you have to ask yourself, 'On the facts that I accept' - first of all you have to ask yourself what facts do you accept (ts 420).
These sentences (in particular, her Honour's statement about whether the jury accepted the complainant's evidence or the appellant's evidence) must be evaluated in the context of the whole of her Honour's answer to the jury's question and her original summing up. The sentences in question were an illustration merely of part of the fact finding which the jury might undertake in the course of deciding what facts (if any) they accepted. The jury would have understood the whole of her Honour's answer to their question, against the background of her original summing up, as an explanation of the essence of intent, an instruction that any finding about intent had to be made by inference, a direction that the State bore the burden of proving the appellant's intent in relation to count 1 beyond reasonable doubt, and a direction that an adverse inference as to intent could only be drawn against the appellant if they were satisfied beyond reasonable doubt that it was the only reasonable inference open on the facts which they accepted.
Fifthly, the fact that the jury returned different verdicts on counts 1 and 2 indicates that they did not consider that part of their task was confined merely to choosing between the evidence of the complainant on the one hand and the evidence of the appellant on the other. It is apparent that the jury were satisfied beyond reasonable doubt of the honesty and reliability of the complainant's evidence in relation to count 1, which was supported by other evidence (for example, evidence of a medical practitioner's examination of the complainant, after the commission of the alleged offences, which revealed two recent needle‑stick marks in the front aspect of the elbow crease in both arms that were not likely to have been from 15 January 2008). The jury was not, however, willing to act on the complainant's evidence in relation to count 2.
Sixthly, although the jury's question and her Honour's answer occurred about five hours after the completion of the original summing up, I am not persuaded that, in the context of a short trial and her Honour's detailed directions, that there would have been any material diminution in the jury's recollection of her Honour's earlier remarks.
In the particular circumstances of the present case, there was no real (as distinct from a fanciful) risk that the jury may have had the impression that disbelief of the appellant's evidence, or preference for the complainant's evidence, meant that the State had proved its case beyond

reasonable doubt or that the jury's task was merely to choose between the opposing stories and not to determine the appellant's guilt by reference to whether the State had proved its case against him beyond reasonable doubt. Also, I am satisfied that there was no reasonable possibility that anything which her Honour said or failed to say may have created the impression for the jury that the appellant bore an onus of proof.

Conclusion

I would dismiss the appeal.
JENKINS J: I have had the advantage of reading the separate draft reasons of Pullin and Buss JJA.
Pullin JA says that it is commonplace for a judge to invite a jury to consider who is to be believed when a case turns on a conflict between the evidence of a prosecution witness and the accused. That proposition was also asserted by Brennan J in Liberato v The Queen [1985] HCA 66; (1985) 159 CLR 507, 515. In Johnson v The State of Western Australia [2008] WASCA 164, [14] Wheeler JA, correctly in my respectful view, rejected that proposition. However, it remains the case that a trial judge must give a Liberato direction if there is a real risk a jury may conclude that, if an accused's evidence is disbelieved, the State will have proved its case beyond reasonable doubt.
I agree with Buss JA that the words 'not only' in the trial judge's direction mean, and would have been understood by the jury to mean, 'not merely'. I do not accept that the jury would have concluded from those two words, in the context of the whole direction, that they had to decide whether they preferred the complainant's or the appellant's evidence or that the appellant bore any onus of proof.
After carefully considering the remaining parts of their Honours' reasons I can not see any point of conflict between them. For the reasons given by both judges, I too would dismiss the appeal.