DC v The Queen

Case •

[2022] NTCCA 8

•

26 May 2022

CITATION:DC v The Queen [2022] NTCCA 8

PARTIES:  DC

v

THE QUEEN

TITLE OF COURT:  COURT OF CRIMINAL APPEAL OF THE NORTHERN TERRITORY

JURISDICTION:  CRIMINAL APPEAL from the SUPREME COURT exercising Territory jurisdiction

FILE NO:CA 4 of 2021 (22003241)

DELIVERED ON:  26 May 2022

HEARING DATE:  29 November 2021

JUDGMENT OF:  Grant CJ, Blokland and Barr JJ

CATCHWORDS:

CRIME – Appeals – Appeal against conviction – Miscarriage of justice – Application of proviso

Whether miscarriage of justice occasioned by prosecutor’s submission to jury concerning accused’s motive to lie – Improper for prosecutor to invite jury to test accused’s evidence according to interest in outcome of trial – Whether trial judge adequately directed jury regarding impermissible reasoning – Potential for miscarriage averted by adequate directions – Even assuming miscarriage, appeal should be dismissed in application of proviso – No ‘substantial miscarriage’ occurred – Consideration of record as a whole discloses applicant’s guilt proved to the criminal standard – Appeal dismissed.

Criminal Code 1983 (NT) s 411

AK v State of WA (2008) 232 CLR 438, Castle v The Queen (2016) 259 CLR 449, Cesan v The Queen (2008) 236 CLR 358, Crease v Barrett (1835) 149 ER 1353, Curran v The Queen [2020] NSWCCA 171, Dhanhoa v The Queen (2003) 217 CLR 1, Dupas v The Queen (2010) 241 CLR 237, Evans v The Queen (2007) 235 CLR 521, Fleming v The Queen (1998) 197 CLR 250, Gassy v The Queen (2008) 236 CLR 293, Gilbert v The Queen (2000) 201 CLR 414, Grey v The Queen (2001) 75 ALJR 1708, Hofer v The Queen (2021) 95 ALJR 937, Kalbasi v Western Australia (2018) 264 CLR 62, MB v R [2009] NSWCCA 200, Nudd v The Queen (2006) 80 ALJR 614, Orreal v The Queen (2021) 96 ALJR 78, R v Copeland (1997) 194 LSJS 1, R v Gibson (1887) 18 QBD 537, R v Grills (1910) 11 CLR 400, R v Parsons; R v Brady [2015] SASCFC 183, RH v The Queen [2022] NTCCA 7, Robinson v The Queen (1991) 180 CLR 531, Stafford v The Queen (1993) 67 ALJR 510, The Queen v Soma (2003) 212 CLR 299, The Queen v Taufahema (2007) 228 CLR 232, TKWJ v The Queen (2002) 212 CLR 124, Weiss v The Queen (2005) 224 CLR 300, Wise v The Queen [2019] NTCCA 10, referred to.

REPRESENTATION:

Counsel:

Applicant:N Redmond

Respondent:  V Engel with D Castor

Solicitors:

Applicant:Northern Territory Legal Aid Commission

Respondent:  Office of the Director of Public Prosecutions

Judgment category classification:    B

Number of pages:  44

IN THE COURT OF CRIMINAL APPEAL
OF THE NORTHERN TERRITORY
OF AUSTRALIA
AT DARWIN

DC v The Queen [2022] NTCCA 8

No. CA 4 of 2021 (22003241)

BETWEEN:

DC

Applicant

AND:

THE QUEEN

Respondent

CORAM:    GRANT CJ, BLOKLAND & BARR JJ

REASONS FOR DECISION

(Delivered 26 May 2022)

THE COURT:

  1. This is an application for extension of time within which to make an application for leave to appeal against conviction.  The sole ground of appeal proposed is:

    A miscarriage of justice was occasioned by the failure of the learned trial Judge to either discharge the jury or sufficiently direct the jury regarding impermissibly reasoning from an accused’s motive to lie, in circumstances where the prosecutor has made inappropriate submissions on the issue in their [sic] closing address.

  2. The applicant’s contention is that where a party invites the jury to reason in an impermissible manner then, unless the judge directs the jury that they may not reason in that manner, there will be a miscarriage of justice and, subject to the application of the proviso, a new trial will be required.  That contention is said to give rise to the following three questions for determination:

    (1)Was the submission of the prosecutor improper?

    (2)If the submission was improper, did the trial judge’s directions cure the prejudice?

    (3)If the directions were not sufficient, can the proviso be applied?

    Background and procedural history

  3. The complainant was seven years old at the time of the alleged offending.  His mother and the applicant are first cousins.  The complainant called the applicant ‘Uncle’.  On 23 January 2020, the complainant spent time at the Alice Springs home where the applicant lived with his mother, auntie and grandmother.  The alleged offending took place in the applicant’s bedroom.  During the course of the visit, the complainant had vomited in the applicant’s room and his mother came to collect him.  On the journey home, the complainant’s mother enquired as to what was wrong.  The complainant’s response to his mother’s question led her to contact the police.  The complainant participated in a formal interview with police (known as a child forensic interview) that evening, which was recorded and played to the jury as part of the complainant’s evidence.

  4. In the child forensic interview, the complainant said that the applicant had put his finger in his ‘bottom’.  He demonstrated the applicant’s actions by making a circling motion with his finger, which he described as ‘wriggling all around’.  He told the applicant to stop but the applicant ‘didn’t listen’.  The complainant also alleged that the applicant squeezed his penis, which he referred to as his ‘front part’ or his ‘wee’.  He told police that this had also happened ‘a lot of times’ in the past.[1]

  5. The principal line of questioning pursued by defence counsel in the cross-examination of the complainant was that he had made up a story about the applicant because the applicant had been mean to him, by not letting him play his favourite game on the applicant’s PlayStation.[2]  The complainant denied that suggestion.

  6. The applicant gave evidence in his own case.  He agreed in cross-examination that he had had ‘a hard time from a number of family members’ over the alleged incident.[3]  However, he denied that he had inserted his finger into the complainant’s anus or that he had grabbed him on the penis, whether on the occasion the subject of the charge or on any previous occasion.[4]  The prosecutor did not cross-examine the accused on the basis that he had a motive to lie in order to avoid criminal sanction.  The furthest the cross-examination went in that respect was a suggestion that the accused felt shame when he was arrested by police in relation to the allegations, and that the matter had caused ructions within his family.[5]

  7. In the course of her closing address, the prosecutor addressed the jury on the respective motives to lie as between the accused and the complainant in the following terms:

    All right, another part to address is that the defence are going to put to you that the complainant lied, okay.  ..… So I am just going to take you then to the motives to lie as between the accused and [the complainant]. I would suggest to you that the motive for the accused to lie is overwhelming. His attempt at keeping [the complainant] quiet has failed. The complainant’s mother had the courage to immediately ring and report it to police. So he is now being called to account for very shameful behaviour, and think about the serious consequences for him.

    He said in evidence he has kept himself quiet and out of trouble in his life and here he is in the Supreme Court. So, this is serious. It means essentially being labelled a child abuser in his community, okay. He agreed that there has already been a lot of talk, the story is already out, that is, if there was – anyway, I won’t take that any further. You get my point. It means his mum is then left on her own without family support for Aunty and Nan. The family, a big, large family, is completely fractured. He’s his mum’s only son. He is going to also be prevented from contact from any of his nieces and nephews you would think.

    Compare this against the motive that [the complainant] has to lie, all right. What does he have to gain from it? …[6]

  8. The prosecutor then continued, pointing out to the jury a number of matters which, in her submission, made it unlikely that the complainant would have lied about the events of the afternoon of 23 January 2020.  Defence counsel at trial did not raise objection to the prosecution address, or seek any relevant directions from the trial judge to the jury in the course of his Honour’s summing up.  The jury ultimately returned verdicts of guilty of the two counts on the indictment, being sexual intercourse without consent and indecently dealing with a child under the age of 16 years with the circumstance of aggravation that the child was under the age of 10 years.

    Adequacy of directions

  9. There is no doubt that the prosecutor’s submissions concerning the accused’s motive to lie were improper.  Counsel for the respondent to this appeal does not seek to justify those submissions, but rather acknowledges that reference to the interests of an accused in the outcome of a criminal trial may amount to an error of law (when forming part of a trial judge’s directions), or a miscarriage of justice (when forming part of a prosecutor’s closing address), on the basis that it undermines the presumption of innocence.[7]  The respondent concedes that the prosecutor’s submission to the jury to that effect should not have been made.[8]

  10. However, the applicant acknowledges that any prejudice caused by a submission in those terms is capable of being cured by appropriate directions.  The applicant concedes that the trial judge was not necessarily required to discharge the jury, and that appropriate directions could have been given to counteract the errant prosecution submission.  This appeal is concerned with an asserted failure on the part of the trial judge to provide directions which were adequate for that purpose.  While accepting that the trial judge did direct the jury not to discount the applicant’s evidence on the basis that he was the accused in the matter, counsel for the applicant contends that a direction with ‘greater strength and clarity’ was required. 

  11. There is no assertion that the verdicts are unreasonable or cannot be supported having regard to the evidence.  As defence counsel conceded during the course of her closing address to the jury, the complainant’s account was compelling.  In addition to that matter, there was evidence of contemporaneous complaint, DNA evidence and opportunity evidence.  Ranged against those matters, there were no necessary evidentiary inconsistencies or countervailing objective evidence which operated to undermine the reliability of the complainant’s evidence. 

  12. There is also no assertion that the trial judge made a wrong decision on a question of law.  That is because the trial judge made no evidentiary or other rulings in relation to the issue, and defence counsel did not seek any specific or general directions in relation to the issue at trial.[9] The assertion is that the direction given by the trial judge in relation to the assessment of the applicant’s evidence was insufficient to redress the impropriety in the prosecution’s closing address, and so constituted a miscarriage of justice.

  13. The central proposition relied upon by the applicant derives from Robinson v The Queen,[10] which established that a jury should not be directed to the effect that the accused’s evidence falls to be assessed on the basis that he or she has a greater interest in the outcome of the proceedings.  In that case, the trial judge had suggested to the jury that they might think that the applicant had a greater interest than any other witnesses in the outcome of the case.  In its unanimous judgment, the High Court reasoned:

    If the jury accepted that suggestion, as they almost certainly would have, his Honour’s directions had the effect that the evidence of the applicant had to be scrutinised more carefully than the evidence of any other witness, including the complainant, for no reason other than that he was the accused. The unfairness of such a direction is manifest …[11]

  14. The issue in the present case is not that the trial judge improperly directed the jury in this way.  Rather, as stated, it is the adequacy of the trial judge’s directions to the jury following the prosecutor’s reference to the interest of an accused in the outcome of the trial.  In the subsequent decision in Stafford v The Queen,[12] the High Court affirmed the statement in Robinson v The Queen that a trial judge should refrain from directing attention to the interest of the accused in the outcome of the trial as a relevant factor in assessing the reliability of his or her evidence; or to the relative reliability of the evidence of the accused and other witnesses by reference to interest or lack of interest in the outcome of the trial.  However, the Court continued:

    If the circumstances of a particular case are exceptional and require some reference to the accused’s interest in the outcome as a matter of fairness to the accused, it should suffice to inform the jury that they must approach the case on the basis that the accused is presumed innocent of the acts which are the subject of the indictment and it would be wrong and unfair for the jury to discount the evidence of the accused simply for the reason that, as the accused, he or she has a particular interest in the outcome of the trial.[13]

  15. Given the submission which had been made by the prosecutor in the present case, the circumstances did require some reference by the trial judge to the proper approach to the assessment of the accused’s evidence as a matter of fairness to the accused, notwithstanding that no issue had been raised by defence counsel at the conclusion of the prosecution address.  However, the circumstances of this case were different to those presenting in Curran v The Queen,[14] to which we will return later in these reasons, in which the trial judge was on notice that he needed to give a direction to counter the impropriety in the prosecutor’s address.

  16. The trial judge in the present case gave a direction in the following terms and context:

    The defence case is essentially that you should accept the evidence of the accused. He gave evidence when he did not have to and he was unshaken in his cross-examination. The defence says you should reject the evidence of the complainant, in particular as you have heard from Ms Collins, the defence says the evidence about those other acts simply beggars belief and also there is such a high risk that the accused’s conduct would have been discovered given the fact that his door is open and he is close to the toilet that it beggars belief that someone would engage in such conduct in the open bedroom.

    If I may say something to you about the accused giving evidence next. You should consider and assess the accused’s evidence in the same way you consider the evidence of all of the other witnesses. The weight that you decide that you give the evidence of the accused is not to be discounted simply because he is the accused. Indeed, you may give him credit for giving evidence when you are assessing the evidence. He did not have to give evidence. He exposed himself to cross examination by [the prosecutor]. It is a matter for you.

    When you are assessing the accused’s evidence you should keep in mind at all times that when entering the witness box an accused person has not and does not assume any burden of proof in this trial. The onus of proving both of the two charges remains on the Crown. As a matter of law I direct you that you cannot find the accused guilty unless you reject his evidence and accept the evidence of the complainant beyond reasonable doubt. This means the following:

    1.    If you believe the accused’s evidence, and the defence says he was an honest and reliable witness who was unshaken during his cross examination, in that particular circumstance you must find him not guilty;

    2.    If you do not accept the accused’s evidence but consider that it might be true, you must also in that circumstance find him not guilty; and

    3.    If you do not believe the accused’s evidence, that is you do not think it might be true at all, you should put his evidence to one side.

    In that last circumstance I have mentioned you must then scrutinise the balance of the evidence carefully and the question still remains: has the prosecution on the basis of all of the evidence that you may accept, proven the guilt of the accused beyond reasonable doubt?

    If you are not convinced by the evidence of the complainant to the necessary standard or you think the evidence of the accused might be true, or you have a reasonable doubt for any other reason, then you must give the accused the benefit of that doubt and find him not guilty. …  [Emphasis added.]  [15]

  17. The applicant contends that the trial judge’s direction, which was in the form of a Stafford direction, was insufficient. It fell short of what was required because his Honour failed to direct the jury specifically that they should disregard the Crown’s submission in relation to the accused’s motive or motives to lie in giving evidence.  It is submitted that the directions given by the trial judge were not sufficient to make it clear to the jury that they were not to assess the accused’s evidence from the basis that he had a motive to lie because of his interest in the outcome of the trial. 

  18. In making that submission, counsel for the applicant placed great emphasis on what was said by Peek J in R v Parsons; R v Brady.[16]  In that matter, one of the accused gave evidence and the other did not.  The trial judge gave the orthodox directions about the reliability and honesty of witnesses, but then went on to observe that there had been no realistic suggestion that any of the prosecution eyewitnesses was dishonest or lying.  Shortly after that, the trial judge had directed that they might consider whether a witness has a motive to lie.  Like Robinson, the case involved the requirement that a trial judge not direct in a way that invites the jury to consider the interest that the accused has in a trial as a motive to lie.  Again, the recognised qualification was that a direction with that tendency might be cured by a subsequent and satisfactory warning against discounting an accused’s evidence simply by reason of his or her interest.  The metaphor used in R v Parsons was that of ‘poison’ and ‘antidote’.[17]  The submission made by counsel for the applicant in the present matter was that the greater the dose of poison administered, the greater the antidote required.

  19. That metaphor derives originally from the decision of Doyle CJ in the matter of R v Copeland.[18]  The circumstances under consideration in that case, and the result, are instructive for these purposes.  In that matter, the trial judge had given the general direction in relation to the assessment of witnesses, including in relation to any interest which might incline the witness to give false or biased evidence.  In a later section of the summing up, the trial judge directed:

    He has elected to make his defence by going into the witness box, taking the oath, exposing himself to the test of cross-examination, and you should assess his evidence and evaluate his evidence in exactly the same way as you would that of any other witness. You should not disregard his evidence or treat it lightly or discount it simply because he was the accused person. You should evaluate his evidence as you would evaluate the evidence of any other witnesses in the case and according to the same criteria as you would apply to other witnesses. [Emphasis added] [19]

  20. That formulation was recognised as satisfying the requirements of a Stafford direction, and sufficient to avert any risk of the jury reasoning impermissibly that the accused had a motive to lie in order to avoid criminal penalty.  As Peek J himself observed in R v Parsons, ‘the juxtaposition of concepts in Copeland was much less stark than in the present case’.[20]  In dealing with the appellant’s submission that the combined effect of the directions was to invite the jury to consider the interest that the accused had in securing an acquittal, Doyle CJ stated that it was both appropriate and necessary to give the jury guidance in relation to the assessment of the accused’s evidence.  Otherwise, the jury might have a natural inclination to discount the evidence of the accused because he was the accused.  It is appropriate as a matter of principle to direct the jury to treat the accused like any other witness in order to maintain the right balance, combined with an explicit warning against discounting the evidence of the accused because he is the accused.  The ultimate conclusion was that a direction in those terms will be appropriate and completely adequate for most cases.[21]

  1. It may be accepted that this was a case in which the prosecutor had made the improper suggestion explicitly during the course of her closing address.  However, it does not follow that the standard Stafford direction was anything other than adequate and appropriate in the circumstances.  First, the irregularity which fell to be addressed was a submission by the Crown rather than a direction given in error during the course of the trial judge’s summation to the jury.  There is an important distinction to be drawn between a submission made by the prosecutor and a trial judge’s directions.  The jury is obliged to follow the judge’s directions, and the assumption underlying a criminal jury trial is that the jury has acted on the evidence and in accordance with the trial judge’s directions.[22]  Second, the trial judge was required to strike a careful balance between giving appropriate directions to the jury in relation to the assessment of the accused’s evidence, and avoiding as far as possible the dangers inherent in drawing further attention to the accused’s particular interest in the outcome of the proceedings.

  2. Both of these considerations were addressed by the New South Wales Court of Criminal Appeal in Curran v The Queen, in which the Court relevantly stated:

    This case, as counsel for the applicant accepted, was not covered by Robinson. No such suggestion was made by the trial judge in the present case; indeed, he gave explicit directions contrary to any such inclination that the jury might have had. Rather, the basis of complaint lay with the suggestion by the prosecutor that the accused had a motive to lie. As noted by Macfarlan JA in MAJW v Regina [[2009] NSWCCA 255 at [40]], referring to an observation of Grove J in an earlier decision, the “interest of an accused person in securing an acquittal is self-evident”. Nevertheless as Robinson explained, the risk of unfairness should the judge refer to such a matter is manifest; it will often give rise to a miscarriage. On the other hand, the same cannot be said of a passing reference by the prosecutor. It is, however, preferable that no such comment is made by a prosecutor. Once made, it places the trial judge in a difficult position. If the remark is allowed to pass without comment, the jury may place inappropriate weight on that factor; they may even consider that it has been condoned by the silence of the trial judge. On the other hand, in seeking to remove an inappropriate suggestion, there is a risk that the judge will reinforce the prejudice. In the present case, both counsel and the judge were alert to these problems. While the remark should not have been made by a senior prosecutor, the applicant has not established that it resulted in a miscarriage.

    …

    Given the context, the fact that the statements to which objection was taken were made by the prosecutor and not by the judge, the careful and clear directions given by the judge to counter any impropriety in the prosecutor’s address and the fact that no application was made to discharge the jury, nor to seek any further directions, are powerful considerations for concluding that no miscarriage of justice occurred. [23]

  3. In considering whether the asserted inadequacy in the trial judge’s direction resulted in a miscarriage of justice, we have considered not only the direction itself, and the immediate context in which it was given, but also the fact that the trial judge gave a Murray direction (single witness) and a Liberato direction (conflict between the evidence of the complainant and the accused) in that context.  The specific direction given by the trial judge in the present case conformed to the form of the direction recommended in Stafford, and is consistent with the standard expressed by this Court in Wise v The Queen.[24]  In that matter also, the Crown prosecutor had invited the jury to test the accused’s evidence according to the interest he had in the outcome of the trial.  The Court stated:

    … Once the matter was before the jury it was necessary for a direction to be provided by the trial judge to remedy the situation or, as it is expressed in some of the authorities, provide an antidote.

    A direction of the kind discussed in Stafford to the effect that “it would be wrong and unfair to discount his evidence simply for the reason that he has a particular interest in the outcome of the trial” was required.[25]

  4. That standard or stipulation was satisfied by the trial judge’s directions that ‘[t]he weight that you decide that you give the evidence of the accused is not to be discounted simply because he is the accused’.  That direction was reinforced by the accompanying directions that the accused might be afforded credit for giving evidence when he was under no obligation to do so and bore no burden, that the onus remained on the Crown, and that a verdict of not guilty was properly entered if the jury considered that the accused’s account might possibly be true.  It was unnecessary for the trial judge to direct the jury specifically to disregard the prosecutor’s submission, and to do so would have required the identification and summary of that submission and run the risk of drawing further attention to the accused’s interest in the outcome of the proceedings.

  5. Accordingly, to the extent that the prosecutor’s cross-examination of the applicant in relation to his motive to lie, and/or the submission made by the prosecutor in the closing address in relation to the accused’s motive in that respect, had the potential to give rise to a miscarriage of justice, the potential for miscarriage was averted by the Stafford direction given by the trial judge.  Even if we are wrong in that conclusion, for the reasons which follow the appeal should be dismissed in the application of the proviso on the basis that no substantial miscarriage has occurred.

    The application of the proviso

  6. There is in all State and Territory jurisdictions an express conferral of power on an intermediate court of criminal appeal to dismiss an appeal against conviction, even where some error, misdirection or irregularity is demonstrated, if it considers that no substantial miscarriage of justice has actually occurred.[26]  The Northern Territory provision states:

    The Court may, notwithstanding that it is of the opinion that the point or points raised by the appeal might be decided in favour of the appellant, dismiss the appeal if it considers that no substantial miscarriage of justice has actually occurred. 

  7. The approach by the High Court to the proper construction of that proviso and its analogues has changed substantially in recent years.  At one point in time, the orthodox approach to the scope and application of the proviso was as described by Fullagar J in Mraz v The Queen in the following terms:

    It ought to be read, and it has in fact been read, in the light of the long tradition of the English Criminal Law that every accused person is entitled to a trial in which the relevant law is correctly explained to the jury and the rules of procedure and evidence are strictly followed. If there is any failure in any of these respects, and the appellant may thereby have lost a chance which was fairly open to him of being acquitted, there is, in the eye of the law, a miscarriage of justice. Justice has miscarried in such cases, because the appellant has not had what the law says he shall have, and justice is justice, according to law. It is for the Crown to make it clear that there is no real possibility that justice has miscarried.[27]

  8. That statement, and the cases which followed it, contemplated that in the application of the proviso the onus is on the prosecution to establish that the error, misdirection or irregularity in question is of such a nature that it could not reasonably be supposed to have influenced the verdict of the jury.[28]  Consistently with that understanding, the High Court described the nature of a miscarriage of justice in Simic v The Queen in the following terms:

    There is such a miscarriage of justice … when [the court] is of opinion that the mistake of fact or omission on the part of the judge may reasonably be considered to have brought about that verdict, and when, on the whole facts and with a correct direction, the jury might fairly and reasonably have found the appellant not guilty. Then there has been not only a miscarriage of justice but a substantial one, because the appellant has lost the chance which was fairly open to him of being acquitted.[29]

  9. The High Court formulated a new approach to the application of the proviso in Weiss v The Queen.[30]  That decision picked up on what had earlier been said in Fleming v The Queen that ‘close attention must be paid to the language of [the proviso] … [and there] is no substitute for giving attention to the precise terms in which [it] is expressed’.[31]  Before considering the decision in Weiss, it is necessary to describe briefly the grounds of appeal provided in the common form of conviction appeal provision which are qualified by the proviso.[32] In the Northern Territory those grounds appear in s 411(1) of the Criminal Code, which provides:

    The Court on any such appeal against a finding of guilt shall allow the appeal if it is of the opinion that the verdict of the jury should be set aside on the ground that it is unreasonable or cannot be supported having regard to the evidence or that the judgment of the court of trial should be set aside on the ground of the wrong decision on any question of law or that on any ground there was a miscarriage of justice and in any other case shall dismiss the appeal.

  10. The three grounds or limbs of appeal created by that provision are: (1) that the verdict is unreasonable or cannot be supported having regard to the evidence; (2) that the court of trial has made a wrong decision on a question of law; and (3) that there was a miscarriage of justice.  As has already been seen, those grounds operate subject to the proviso that the appellate court may dismiss the appeal if it considers that no substantial miscarriage of justice has actually occurred. 

  11. The operation of the first limb of the appeal provisions involves a question of fact which the appellate court must decide by making its own independent assessment of the evidence.[33]  There is no room for the application of the proviso where the appellate court has found that the verdict is unreasonable or cannot be supported having regard to the evidence.  In those circumstances a substantial miscarriage of justice has manifestly occurred[34], and the appropriate disposition will ordinarily be an order for acquittal[35].  The proviso can only have application in relation to the second and third limbs of the appeal provisions.

  12. The operation of the second limb is directed to decisions made during the course of the trial, including a misdirection as to law and the improper admission or rejection of evidence.  When dealing with the admission of evidence, satisfaction of the requirement that there be a ‘wrong decision’ on the question of law will depend upon whether the appellant made an objection to the admissibility of the relevant evidence at the trial.  The trial judge cannot make an error of law if he or she has not been asked for a ruling.[36]  Although the matter is not entirely settled, it would appear that the same approach is adopted in relation to assertions that the trial judge failed to properly direct the jury in circumstances where a request for the relevant direction was not made at trial.[37] 

  13. The third limb is a residual provision which encompasses a wide variety of departures from the proper conduct of a trial[38], including erroneous directions as to the facts or a failure to provide a required direction, the admission or rejection of evidence in the absence of a ruling, the incompetence of trial counsel[39], non-disclosure of material evidence by the Crown[40], and a failure on the part of the trial judge to properly supervise the proceedings[41].  The operation of the third limb is not contingent on the demonstration of error.[42]

  14. Against that background, the High Court in Weiss delivered a single unanimous judgment.  The error identified in that case was that the prosecution was permitted, over objection, to adduce evidence in cross-examination of the accused that he had entered into a relationship with a girl when she was not yet 15 years old.[43]  The evidence of the girl’s age was not relevant to the crime of murder with which the accused was charged and the relationship post-dated the alleged commission of crime. 

  15. In the course of its reasons, the High Court traced the history of the common form of criminal appeal statute to its origin in the Criminal Appeal Act 1907 (UK).  The proviso incorporated into that statute was said to be in abrogation of the ‘Exchequer rule’, which was sometimes expressed to be that where the trial court has received inadmissible evidence, the losing party has a right to a new trial.[44]  Although, as properly understood, the rule only had application to inadmissible evidence which might have affected the verdict[45], it was often expressed in absolute terms.  When seen in that light, the use of the words ‘substantial’ and ‘actually occurred’ in the proviso were intended to require a consideration of matters beyond the bare question of whether there had been any departure from the applicable rules of evidence or procedure.[46]  That enquiry involved an examination of whether or not the departure was consequential.

  16. Having conducted that historical survey, the Court emphasised the need to pay regard to the specific wording of the proviso, rather than what were described as ‘judicial expositions’ in previous High Court decisions which purported to explain it ‘in other words’.[47]  The Court rejected statements in previous cases that described the task presented by the proviso as being to decide whether conviction was ‘inevitable’[48], or whether the accused was deprived of a ‘chance which was fairly open … of being acquitted’ or a ‘real chance’ of acquittal[49].  The task of the appellate court was to decide whether a substantial miscarriage of justice has actually occurred.  That task is to be undertaken in the same way that an appellate court decides whether the verdict should be set aside on the ground that it is unreasonable or cannot be supported having regard to the evidence; and is to be undertaken having regard to the whole of the record and with reference to the fact that the jury returned a guilty verdict.[50]  The Court stated:

    No single universally applicable description of what constitutes “no substantial miscarriage of justice” can be given.  But one negative proposition may safely be offered.  It cannot be said that no substantial miscarriage of justice has actually occurred unless the appellate court is persuaded that the evidence properly admitted at trial proved, beyond reasonable doubt, the accused’s guilt of the offence on which the jury returned its verdict of guilty.[51]

  17. In the application of that approach to the circumstances of the trial, the High Court said that it was wrong to proceed on assumptions about what evidence the jury had accepted in preference to other evidence.  The correct approach was to judge the evidence for itself, focusing first on the evidence against the accused.  The central question for determination in the assessment of whether a substantial miscarriage of justice had actually occurred was whether inadmissible material which was discreditable to the accused could be put aside as an unimportant side issue when viewed in the context of the powerful testimony of confessions to police which the accused had sought to explain away as falsely made.[52]  The scope of the appeal to the High Court did not require or allow it to conduct that assessment.  The matter was remitted to the Victorian Court of Appeal, which ultimately dismissed the appeal in the application of the newly formulated approach to the operation of the proviso.

  18. The formulation in Weiss was affirmed by the High Court two years later in Cesan v The Queen.[53]  The Court in that case again rejected ‘the use of expressions, like loss of a real chance of acquittal, as substitutes for the statutory language’, and described the fundamental propositions deriving from Weiss as follows:

    In Weiss v The Queen, the Court said that it was neither right nor useful to attempt to lay down absolute rules or singular tests to govern the application of the proviso beyond three fundamental propositions. First, the appellate court must itself decide whether a substantial miscarriage of justice has actually occurred. Secondly, that task is an objective task which is not materially different from other appellate tasks. Thirdly, the standard of proof is the criminal standard. The Court rejected the use of expressions, like loss of a real chance of acquittal, as substitutes for the statutory language. Rather, the Court held that no single universally applicable description of what constitutes ‘no substantial miscarriage of justice’ can be given.

    The Court further held in Weiss that a necessary, but not always sufficient, step to the application of the proviso is that the appellate court is persuaded that the evidence properly admitted at trial proved, beyond reasonable doubt, the accused’s guilt of the offence on which the jury returned its verdict of guilty.  [Citations omitted][54]

  19. Weiss was subject to criticism on the basis that it effectively supplanted trial by jury with determination by appellate intervention.  There was also said to be some uncertainty as to the operation of the test prescribed.  As Gageler J observed in Castle v The Queen: ‘It is not easy to reconcile all that was said by this Court in Weiss with all that has been said in subsequent cases in this Court about Weiss.’[55]  Those criticisms notwithstanding, Weiss was again endorsed and explained by the majority in Kalbasi v Western Australia[56] with reference to the following matters:

    (a)Weiss was a unanimous decision delivered in circumstances where intermediate appellate courts were divided on whether the ‘lost chance of acquittal’ was to be assessed from the perspective of the jury at the trial or the reasonable jury.[57] 

    (b)The proviso recognises that the criminal law historically allowed that any irregularity or failure to strictly comply with the rules of procedure and evidence is a miscarriage of justice.  Under the proviso, the appellate court’s assessment of whether there has been a ‘substantial’ miscarriage of justice does not turn on predicting what verdict a hypothetical jury might have returned had the error or irregularity not occurred.  Rather, the appellate court decides whether, notwithstanding error or irregularity, guilt was proved to the criminal standard on the admissible evidence at the trial that was had.

    (c)The precondition (or negative stipulation) to the engagement of the proviso is that the appellate court must be persuaded that the evidence properly admitted at trial proved, beyond reasonable doubt, the accused’s guilt of the offence.  This recognises that it will always be a substantial miscarriage of justice where guilt has not been proved beyond reasonable doubt on admissible evidence.  On the other hand, satisfaction that guilt has been proved to the criminal standard will in many instances (but not invariably) support the conclusion that there has been no substantial miscarriage of justice.[58]  

    (d)Some errors will prevent the appellate court from being able to assess whether guilt was proved to the criminal standard. These may include, but are not limited to, cases which turn on issues of contested credibility, cases in which there has been a failure to leave a defence or partial defence for the jury's consideration, and cases in which there has been a wrong direction on an element of liability in issue or on a defence or partial defence. In those circumstances, the appellate court may not be able to reach a satisfaction that guilt has been proved beyond reasonable doubt.

  1. The error under consideration in Kalbasi was a misdirection by the trial judge that proof of possession of the prohibited drug would suffice to prove an intention to sell or supply to another, in circumstances where that deeming provision had no application on the prosecution of a charge of attempted possession of a prohibited drug with intent to sell or supply it to another.  Although that was clearly an erroneous direction on an element of liability, the intermediate court of appeal had found that there was no substantial miscarriage of justice in circumstances where the appellant’s possession of almost five kilograms of methylamphetamine made the finding of an intention to supply, and thus conviction, inevitable.

  2. The majority[59] of the High Court agreed that proof beyond reasonable doubt that the appellant attempted to possess almost five kilograms of 84 percent pure methylamphetamine compelled the conclusion that it was his intention to sell or supply the drug to another.[60]  On that basis, the majority concluded that the misdirection was not one which occasioned a substantial miscarriage of justice.[61]

  3. The High Court has recently revisited the issue in Hofer v The Queen.[62]  In that case the prosecutor had cross-examined the accused in relation to various evidence he had given which was inconsistent with the accounts given by the complainants, but which had not been put to the complainants by defence counsel in cross-examination for their comment or explanation.  The suggestion put by the prosecutor in that line of questioning was that the accused had not provided instructions to his legal representatives on those matters, because they were of recent invention. 

  4. The majority in the intermediate court of appeal had found that miscarriage did not inevitably follow a cross-examination of this kind.  That was particularly so where the questioning had been ‘limited, inconclusive and ineffectual and was not followed by an invitation to infer fabrication’.[63]  On that basis, the intermediate court concluded there was no miscarriage of justice; and that even if a miscarriage of justice had occurred at trial, the proviso would have justified the dismissal of the appeal.

  5. In the High Court, the plurality observed that where there may be a number of possible explanations as to why a particular matter was not put to a prosecution witness by defence counsel, there is no proper basis for a line of questioning directed to impugning the credit of the accused.  Unless there are clear indications of recent invention, an accused should not be subjected to that kind of questioning.[64]  Accordingly, the plurality accepted that the questioning undertaken by the prosecutor departed sufficiently from the standards of fairness which must attend a criminal trial; that it could not be inferred that the jury would not attach any importance to what arose from the cross-examination; and that the trial judge had not addressed the matter in directions to the jury in order to put the omissions into perspective and to identify that the assumption on which the questioning had proceeded might be unfounded.  It was noted in that assessment that the alleged failures by the accused to provide instructions, and the attendant assertions of recent invention, constituted the principal part of the cross-examination of the accused, and ranged across eight separate matters arising from his evidence in chief.  For those reasons, the cross-examination of the accused, in the absence of any countervailing judicial direction, amounted to a miscarriage of justice.[65]

  6. So far as the application of the proviso was concerned, the plurality rejected the appellant’s submission that the proviso could not apply because the impermissible cross-examination was apt to have infected the jury’s verdicts, such that an appeal court could not be satisfied that the evidence at trial proved the appellant’s guilt beyond reasonable doubt.  The majority’s reasoning was as follows:[66]

    (a)lack of consent by each complainant was not contested by the defence at trial;

    (b)the operative question at trial was whether the Crown had proved beyond reasonable doubt that the appellant did not believe that the complainants were consenting to having sex with him (or was reckless as to whether they were or not);

    (c)in the absence of  evidence from the appellant there was no reason for the tribunal of fact to entertain a doubt about this element of each offence, and the question for the tribunal of fact was whether the appellant’s evidence in relation to his belief of consent might ‘reasonably possibly’ be true; and

    (d)the conclusion that it was not reasonably possible could be reached without needing to rely on the jury’s verdict, because the appellant’s evidence on the crucial issue was so improbable that it carried no weight.

  7. While the plurality reiterated what had been said in Kalbasi to the effect that some errors will prevent the appellate court from being able to assess whether guilt was proved to the criminal standard, this was not a case where the question of guilt turned on the jury’s preference for the evidence of one witness over another witness.  As already noted, the fact that sexual intercourse took place was not in issue (except in relation to matters of detail in two counts), and nor was the complainants’ lack of effective consent.  The relevant question was whether the appellant’s evidence was capable of belief. 

  8. The plurality’s determination that it was not turned on a number of matters, including that the appellant was ‘a 130 kilogram virtual stranger’ to each complainant; the very substantial age difference between the appellant and each complainant; the brief period over which each complainant had made his acquaintance; the limited and non-romantic business purpose for which they had met; the incontestable evidence that the appellant had plied each complainant with alcohol in order to reduce their capacity for resistance; what the circumstances revealed about the appellant’s modus operandi; the extent to which the appellant planned the circumstances in advance; and the compelling inference of, at the very least, a reckless disregard for whether the complainants were consenting or not.

  9. The plurality also concluded that the manner in which the appellant was cross-examined did not amount to a failure of process involving such a serious breach of the presuppositions of the trial that the proviso could not be applied[67], and endorsed what had been said by Gleeson CJ in Nudd v The Queen[68] and by McHugh J in TKWJ v The Queen[69] that such cases would be ‘rare’.  The examples given in those cases included ineptitude of counsel so extreme as to constitute a denial of due process to the accused, or cases where counsel fails to cross-examine material witnesses or address the jury for no valid reason.  It was in the application of that standard that the failure of process which occurred in Kalbasi was found not to amount to the kind of failure that would prevent the application of the proviso.  The plurality observed that in the present case, the prosecution’s impermissible contention of recent invention was of little significance to the real issue.  That issue was whether the appellant’s asserted belief that the complainants were consenting was a fabrication, whether recent or not.

  10. Justice Gageler agreed with the findings and conclusions of the plurality, and broadly for the reasons they expressed.  However, his Honour delivered separate reasons for the purpose of addressing the relationship between the ‘miscarriage of justice’ ground and the proviso ‘in a manner that lays to rest reservations [he had] repeatedly expressed in the past about aspects of the reasoning in Weiss v The Queen’.[70]  His Honour observed that pre-Weiss, on one view the only difference between a miscarriage of justice and a substantial miscarriage of justice was a difference of degree in the chance of acquittal that was lost.  The determination of substantiality resolved to an analysis of whether an appropriately instructed jury acting reasonably and applying the correct onus and standard would inevitably have convicted.  The pivot which occurred in Weiss was to move from an analysis focused on the effect on the jury to an independent assessment by the appellate court of whether the evidence properly admitted at trial established guilt beyond reasonable doubt.  Even allowing for that shift in focus, in most cases it may be assumed that a belief formed beyond reasonable doubt by an appellate court is also a belief that the jury properly instructed would have formed on the same evidence.[71]

  11. What set the circumstances presenting in Hofer apart was that the jury had acquitted the appellant of two of 10 counts of sexual intercourse without consent, showing that the trial jury might not have disbelieved his account in its totality.  That possibility stood at odds with an independent assessment by the appellate court that the appellant’s account was so ‘glaringly improbable’ as to exclude the reasonable possibility that it was true.  Justice Gageler described those circumstances as ‘extraordinary’, and not unlike the circumstances which precipitated the decision in Weiss.  However, the demand of Weiss and subsequent cases endorsing and adopting it is such that the appellate court’s independent assessment cannot be diverted by the possibility that the trial jury may have made a different assessment, and Gageler J considered himself ‘impelled’ by the doctrine of precedent to engage with and follow Weiss.

  12. Justice Gageler commenced his analysis with the clarification that the ‘Exchequer rule’ referred to in Weiss conferred an entitlement to a new trial only if the erroneous admission of evidence might have affected the verdict.[72]  However, it had been unnecessary to explore the scope of the ‘miscarriage of justice’ ground in Weiss because the trial judge had made a wrong decision of a question of law within the second limb of the common form provision, which was also properly characterised as a miscarriage of justice.  Subsequent cases have disclosed that the analysis of whether or not there was a miscarriage of justice is routinely informed by whether there is a significant possibility that the act or omission in question affected the outcome of the trial.  That is so whether the miscarriage asserted arises from an error of law or some other type of error or irregularity in the conduct of the trial; but an inconsequential error is not a miscarriage. 

  13. In Hofer, the receipt of the inadmissible evidence constituted by the prosecutor’s cross-examination was not the result of a wrong decision on any question of law.  That was because no objection had been taken.  It constituted a miscarriage of justice only if there was a ‘significant possibility’, ‘perceptible risk’ or ‘substantial risk’ that it affected the verdict returned by the jury.[73]  In that assessment, Gageler J agreed with the plurality that the prosecutor’s line of cross-examination ‘had the meaningful potential or tendency to have affected the result of the trial’.[74] 

  14. In Gageler J’s analysis, that enquiry is a factual one into whether the error or irregularity was of such a nature and degree that could realistically have affected the verdict of guilt that was in fact returned by the jury, having regard to the totality of the events that occurred in the trial that was had.  It is not an enquiry into the outcome of a hypothetical trial before a hypothetical jury in which the error or irregularity did not occur.  Only when that factual enquiry discloses a realistic possibility that the verdict was affected is a miscarriage of justice established, and only then is it necessary to consider whether the evidence properly admitted at trial established guilt beyond reasonable doubt.[75]  As Gageler J had stated at the commencement of his reasons, he concurred with the plurality’s conclusion that no substantial miscarriage of justice had actually occurred and conducted no further exploration of that matter.

  15. That two-step process adopted by Gageler J is not one expressly applied or adopted in either the reasons of the plurality in Hofer or in other decisions.  It remains to be seen whether it will be adopted more generally.  However, what can be said is that it appears inconsistent with the observations in Weiss in relation to the scope and operation of the Exchequer rule, which were repeated in Kalbasi.

  16. In both Kalbasi and Hofer, the decision in Castle v The Queen[76] is referred to for the proposition that an error bearing on the issue of contested credibility may prevent the appellate court from being able to assess whether guilt was proved to the criminal standard.  The operative error in that case was to leave to the jury as an admission what was an unequivocally exculpatory statement.  Without evidence purporting to be an admission by the accused, the Crown’s case was circumstantial, and entirely dependent upon the acceptance of the evidence of a witness whose veracity and reliability, having regard to her alcohol and drug abuse and a history of mental health difficulties, were matters which the defence were entitled to have fairly left for the jury’s consideration.  The purported admission by the accused bolstered that witness’s evidence, and relieved the jury from conducting an assessment of her evidence in isolation.  Having regard to those considerations, the natural limitations of proceeding on the record precluded a conclusion that guilt was proved beyond reasonable doubt.

  17. A similar question arose in the subsequent case of Orreal v The Queen.[77]  In that matter the trial judge had admitted irrelevant and inadmissible evidence concerning sexually transmitted infections.  The intermediate court of appeal concluded by majority decision that the impugned evidence could not have affected the jury’s assessment of the reliability of credibility of the complainant.  Kiefel CJ and Keane J endorsed the conclusion of the dissentient and stated:

    … although an appellate court has the record, from which it may make some assessment of the prosecution's case, there are "natural limitations" when proceeding wholly or substantially on the record. This is not a case like Hofer v The Queen where it may be apparent to an appellate court that the evidence of a witness is glaringly improbable. In such a case the court is not usurping the function of a jury in rejecting evidence that is so improbable as to be incapable of belief. This case is one which turns on the jury's acceptance of the evidence of the complainant. In such a case the appellate court should not seek to duplicate the function of the jury, because it does not perform the same function in the same way nor have the same advantages.[78]

  18. That conclusion was based on the fact that the admission of the irrelevant evidence had the clear potential for misuse by the jury as supporting the complainant’s credibility, and reflecting adversely on the accused’s character.  For that same reason, Gordon, Steward and Gleeson JJ stated:

    Where proof of guilt is wholly dependent on acceptance of the complainant's evidence, and a misdirection may have affected that acceptance, the appellate court cannot accord the weight to the verdict of guilty which it otherwise might [Collins v The Queen [2018] HCA 18; (2018) 265 CLR 178 at 191-192 [36]; Hofer v The Queen [2021] HCA 36; (2021) 95 ALJR 937 at 951-952 [60], 965-966 [133]]. The majority of the Court of Appeal erred in placing weight on the verdicts because, as McMurdo JA observed, those verdicts might have been affected by the misuse of the impugned evidence in the absence of a direction to disregard that evidence.[79]

  19. The results in Castle v The Queen and Orreal v The Queen reflect the acknowledgement in Weiss that, having regard to the natural limitations of proceeding wholly or substantially on the record, there may be:

    … perhaps many cases, where those natural limitations require the appellate court to conclude that it cannot reach the necessary degree of satisfaction. In such a case the proviso would not apply, and apart from some exceptional cases, where a verdict of acquittal might be entered, it would be necessary to order a new trial.[80]

  20. That difficulty will increase where the departure from the requirements of a fair trial is grave, because it will be more difficult to conduct a fair assessment of the issues where the processes designed to allow that assessment have not been followed at trial.[81]  This is a function of the fact that the process of the trial and its outcome are related.[82]

  21. In the application of the two-stage approach adopted by Gageler J in Hofer, there would be no miscarriage of justice in this case because there was no ‘significant possibility’ or ‘substantial risk’ that the prosecutor’s submission affected the verdict returned by the jury.  On a factual analysis, the error or irregularity was not of such a nature and degree that it could realistically have affected the verdict of guilt that was returned by the jury having regard to the totality of the events that occurred in the trial, including the content of the trial judge’s directions.  However, on the assumption that there was a ‘miscarriage of justice’ which would otherwise have attracted the application of the Exchequer rule, the relevant enquiry then becomes whether the appellate court is persuaded that the evidence properly admitted at trial proved, beyond reasonable doubt, the applicant’s guilt of the offences on which the jury returned its verdicts of guilty.

  22. Against that background, a number of observations may be made in relation to the irregularity in the present case.  First, neither the manner in which the appellant was cross-examined nor the prosecutor’s submission amounted to a failure of process involving such a serious breach of the presuppositions of the trial that the proviso could not be applied.[83]  Second, this was not a case like Castle or Orreal, in which substantive evidence of a significantly prejudicial nature was erroneously admitted with the clear capacity to bear on the jury’s assessment of the credibility of either the complainant or the accused.  It involved an improper submission by the prosecutor which, for the reasons already discussed above, was capable of redress, and was redressed, by judicial direction.  Third, unlike the situation under consideration in Hofer, the prosecutor’s cross-examination of the applicant on the question of motive was limited and formed only a small portion of the cross-examination, and the trial judge had directed the jury as to the correct approach to the assessment of the accused’s evidence.  Fourth, and unlike the situation recently considered by this Court in RH v The Queen[84], having regard to the directions given by the trial judge there is in the circumstances of this case no basis on which to infer that the jury’s assessment of the evidence, and in particular the respective credibility of the complainant and the applicant, was affected by the prosecutor’s submissions in relation to motive. 

  23. Accordingly, there is nothing to prevent the appellate court in this case from being able to assess whether guilt was proved to the criminal standard, even allowing for the fact that it was, essentially, an ‘oath against oath’ case.  It is also both permissible and necessary for the appellate court in determining that matter on the whole of the record to have regard to the fact that the jury returned verdicts of guilty. 

  24. The transcript discloses that the complainant’s evidence in relation to the relevant events was unequivocal, and that he rejected the proposition that he had confected the allegations because he was angry at the applicant because he would not let him play computerised games.  This was the only basis on which it was suggested, or could have been suggested, that the complainant’s evidence was unreliable.  It was also the case that defence counsel at trial conceded in her closing address that the complainant was ‘engaging and compelling as a witness’, and that the jury may have been struck by the ‘compelling’ nature of the complainant’s account.  The transcript of the evidence given by the complainant’s mother discloses that on the afternoon in question there was an extended period of time during which the applicant and the complainant were alone together in the applicant’s room.  Shortly after that time, the complainant made contemporaneous complaint to his mother about what the applicant had done to him, and that complaint was consistent with the account subsequently given by the complainant in the child forensic interview.  Attention is drawn to these matters not in subjective assessment of the complainant as a compellingly truthful witness, but to illustrate that there were no evidentiary inconsistencies or countervailing objective evidence which operated to undermine the reliability of the complainant’s evidence.

  1. The forensic evidence revealed that DNA material matching components attributable to the applicant was located on the inside front crotch area and rear inside area of the complainant’s shorts.  While secondary or tertiary transfer could not be excluded as a possibility, the forensic evidence was an objective piece of circumstantial evidence which was consistent with the complainant’s account of the incident.

  2. Ranged against that evidence was the applicant’s denial of the conduct charged.  That denial was put by the applicant in the course of evidence he gave before the jury.  The jury had opportunity to observe and assess both the complainant and the applicant as they gave evidence.  The jury’s verdicts disclose that it did not find the applicant’s denials might ‘reasonably possibly’ be true.  For the reasons given, that assessment was not adversely affected by irregularity and we are satisfied from a consideration of the record as a whole that the applicant’s guilt was proved to the criminal standard.  Having reached a state of satisfaction on that matter, there was otherwise no error or failure in the trial process leading to the conclusion that a substantial miscarriage of justice has occurred notwithstanding the cogency of proof of the accused's guilt.

    Disposition

  3. We make the following orders:

    1.The application for extension of time within which to make an application for leave to appeal against conviction is allowed. 

    2.Leave to appeal is granted.

    3.The appeal is dismissed.

_________________________


[1]That evidence was led and relied on by the prosecution as context evidence.

[2]Appeal Book ('AB') 58.

[3]      AB 215.5.

[4]AB 220.

[5]There was in this case no cross-examination of the applicant or submissions to the jury directed to whether the complainant had a motive to lie, or whether the applicant was able to give evidence of such a motive: cf RH v The Queen [2022] NTCCA 7, [12]-[38].

[6]      AB 227.

[7]      Referring to Wise v The Queen [2019] NTCCA 10, [25]-[39].

[8]Respondent's Summary of Submissions, paras [33], [36].

[9]The Queen v Soma (2003) 212 CLR 299; Dhanhoa v The Queen (2003) 217 CLR 1, [49]; cf Gassy v The Queen (2008) 236 CLR 293, [55]-[56].

[10]Robinson v The Queen [1991] HCA 38; (1991) 180 CLR 531.

[11]    Robinson v The Queen (1991) 180 CLR 531, 535.

[12]    Stafford v The Queen (1993) 67 ALJR 510.

[13]    Stafford v The Queen (1993) 67 ALJR 510, 510-511.

[14]Curran v The Queen [2020] NSWCCA 171, [122].

[15]AB 270.4.

[16]R v Parsons; R v Brady [2015] SASCFC 183.

[17]R v Parsons; R v Brady [2015] SASCFC 183, [56], [58], [82].

[18]R v Copeland (1997) 194 LSJS 1.

[19]Extracted at R v Copeland (1997) 194 LSJS 1, 5.

[20]R v Parsons; R v Brady [2015] SASCFC 183, [53].

[21]R v Copeland (1997) 194 LSJS 1, 7-8.

[22]Gilbert v The Queen (2000) 201 CLR 414, [31]-[32]; Dupas v The Queen (2010) 241 CLR 237, [28]-[29].

[23]Curran v The Queen [2020] NSWCCA 171, [119], [122].

[24]    Wise v The Queen [2019] NTCCA 10.

[25]    Wise v The Queen [2019] NTCCA 10, [34]-[35].

[26]Supreme Court Act 1933 (ACT), s 37O(3); Criminal Appeal Act 1912 (NSW), s 6(1); Criminal Code (NT), s 411(2); Criminal Code (Qld), s 668E(1A); Criminal Procedure Act 1921 (SA), s 158(2); Criminal Code (Tas), s 402(2); Criminal Appeals Act 2004 (WA), ss 14(2), 30(4), 32(5), 33(2a); Criminal Procedure Act 2009 (Vic), s 276(1)(b), (c).

[27]Mraz v The Queen (1955) 93 CLR 493, 514.

[28]Stokes v The Queen (1960) 105 CLR 279, 284-285; Maric v The Queen (1978) 52 ALJR 631, 635; Simic v The Queen (1980) 144 CLR 319, 330-332; Santos v The Queen (1987) 61 ALJR 668, 671; R v S [2000] NSWCCA 205; R v Keogh (No 2) (2014) 121 SASR 307; Gregory v The Queen (1983) 151 CLR 566, 632 ; Quartermaine v The Queen (1980) 143 CLR 595, 600.

[29]Simic v The Queen (1980) 144 CLR 319, 331.

[30]Weiss v The Queen [2005] HCA 81; (2005) 224 CLR 300.

[31]Fleming v The Queen (1998) 197 CLR 250, [12].

[32]Criminal Appeal Act 1912 (NSW), s 6(1); Criminal Code (Qld), ss 668E(1), (1A); ); Criminal Procedure Act 1921 (SA), s 158(1); Criminal Appeals Act 2004 (WA), ss 30(3), (4); Criminal Code (Tas), ss 402(1), (2); Supreme Court Act 1933 (ACT), s 37O(2); Federal Court of Australia Act 1976 (Cth), s 30AJ. The High Court has described the common form provisions as 'analogues, or virtual analogues': see Grey v The Queen (2001) 75 ALJR 1708, [25]. The Crimes Act 1958 (Vic), s 568(1) was also a common form provision, but was repealed and replaced by s 276 of the Criminal Procedure Act 2009 (Vic) with effect from 1 January 2010. That repeal was in response to criticisms of the decision in Weiss v The Queen.

[33]M v The Queen (1994) 181 CLR 487, 492; The Queen v Nguyen (2010) 85 ALJR 8, [33]; SKA v The Queen (2011) 85 ALJR 571, [14].

[34]TKWJ v The Queen (2002) 212 CLR 124, [72].

[35]AK v State of WA (2008) 232 CLR 438, [65]; The Queen v Taufahema (2007) 228 CLR 232, [52].

[36]The Queen v Soma (2003) 212 CLR 299, [42].

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

[38]Nudd v The Queen (2006) 80 ALJR 614, [24].

[39]TKWJ v The Queen (2002) 212 CLR 124, [31]; Nudd v The Queen (2006) 80 ALJR 614, [24]; MB v R [2009] NSWCCA 200, [9]-[10].

[40]Grey v The Queen (2001) 75 ALJR 1708.

[41]Cesan v The Queen (2008) 236 CLR 358, [104]–[106], [112]–[122].

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

[43]The criminal consequences of maintaining a sexual relationship with a girl under 16 years of age were not at any stage mentioned to the jury.

[44]Crease v Barrett (1835) 149 ER 1353, 1359.

[45]R v Gibson (1887) 18 QBD 537, 540-541; R v Grills (1910) 11 CLR 400, 409.

[46]Weiss v The Queen (2005) 224 CLR 300, [12]-[18].

[47]Weiss v The Queen (2005) 224 CLR 300, [9], [31]-[33].

[48]Festa v The Queen (2001) 208 CLR 593, 631.

[49]Mraz v The Queen (1955) 93 CLR 493, 514; The Queen v Storey (1978) 140 CLR 364, 376.

[50]Weiss v The Queen (2005) 224 CLR 300, [39]-[43].

[51]Weiss v The Queen (2005) 224 CLR 300, [44].

[52]Weiss v The Queen (2005) 224 CLR 300, [50]-[57].

[53]Cesan v The Queen (2008) 236 CLR 358.

[54]Cesan v The Queen (2008) 236 CLR 358, [123]-[124].

[55]Castle v The Queen [2016] HCA 46; (2016) 259 CLR 449, [80].

[56]Kalbasi v Western Australia [2018] HCA 7; (2018) 264 CLR 62, [9]-[16].

[57]The observations by the intermediate court of appeal in Weiss highlighted the difficulty in finding that conviction by a hypothetical jury is ‘inevitable’, at least when dealing with a case of wrongly admitted evidence.

[58]However, the Court observed that it is not possible to describe the metes and bounds of those wrong decisions of law or failures of trial process that will occasion a substantial miscarriage of justice notwithstanding the cogency of proof of the accused's guilt.

[59]Justice Gageler (in dissent) continued to express misgivings about the scope of the holding in Weiss.  In his Honour’s view, where the record makes it open for an appellate court to determine that the accused was proved guilty beyond reasonable doubt, that is only a step in or a logical contributor to the ultimate determination of whether the accused was deprived of a chance of acquittal that was fairly open.  On that analysis, his Honour concluded that in almost all cases the difference between the pre-Weiss approach and the post-Weiss test will make no practical difference to the outcome: see Kalbasi v Western Australia (2018) 264 CLR 62, [68]-[71].

[60]Defence counsel at trial had made a considered and justifiable forensic decision to focus the jury’s attention of the requirement that the prosecution prove beyond reasonable doubt that the appellant attempted to possess the drug during the material period, in the sense of exercising control and dominion over it.  Although it may have been open to the defence to pursue the line that the appellant had possessed a small quantity of the drug for his own use, and thus had no intention to supply the whole amount, it chose not to do so. 

[61]Kalbasi v Western Australia (2018) 264 CLR 62, [59]-[60].

[62]Hofer v The Queen [2021] HCA 36; (2021) 95 ALJR 937.

[63]Hofer v The Queen (2021) 95 ALJR 937, [38].

[64]Hofer v The Queen (2021) 95 ALJR 937, [34].

[65]Hofer v The Queen (2021) 95 ALJR 937, [42]-[48].

[66]Hofer v The Queen (2021) 95 ALJR 937, [54]-[71].

[67]Hofer v The Queen (2021) 95 ALJR 937, [72]-[76].

[68]Nudd v The Queen [2006] HCA 9; (2006) 80 ALJR 614, [19].

[69]TKWJ v The Queen [2002] HCA 46; (2002) 212 CLR 124, [76].

[70]Hofer v The Queen (2021) 95 ALJR 937, [81].

[71]Hofer v The Queen (2021) 95 ALJR 937, [82]-[87].

[72]Hofer v The Queen (2021) 95 ALJR 937, [103]-[108].

[73]Hofer v The Queen (2021) 95 ALJR 937, [120].

[74]Hofer v The Queen (2021) 95 ALJR 937, [111]-[118].

[75]Hofer v The Queen (2021) 95 ALJR 937, [121]-[123].

[76]Castle v The Queen (2016) 259 CLR 449.

[77]Orreal v The Queen [2021] HCA 44; (2021) 96 ALJR 78.

[78]Orreal v The Queen (2021) 96 ALJR 78, [22].

[79]Orreal v The Queen (2021) 96 ALJR 78, [42].

[80]Weiss v The Queen (2005) 224 CLR 300, [41].

[81]Evans v The Queen (2007) 235 CLR 521, [42].

[82]Nudd v The Queen (2006) 80 ALJR 614, [5], [7]; Evans v The Queen (2007) 235 CLR 521, [48]; AK v State of WA (2008) 232 CLR 438, [23].

[83]Hofer v The Queen (2021) 95 ALJR 937, [72]-[76].

[84]RH v The Queen [2022] NTCCA 7. That case involved an improper cross-examination of the accused designed to elicit privileged material and suggest recent invention. The matter was not addressed by the trial judge in directions to the jury.

Actions
Download as PDF Download as Word Document
Cases Citing This Decision

0

Cases Cited

4

Statutory Material Cited

1

MAJW v R [2009] NSWCCA 255
Collins v The Queen [2018] HCA 18
Hofer v The Queen [2021] HCA 36