Dyers v The Queen

The appellant, Dyers, was convicted in the District Court of New South Wales of indecently assaulting a 13-year-old girl in 1988. The alleged offence occurred on the morning of 29 July 1988. The appellant made an unsworn statement admitting to seeing the complainant that morning but claimed it was in the company of her mother and while he was engaged in other meetings. His appointment diary was tendered, showing various appointments, including one with Ms Tinkler for a "processing session" in the "energy conversion room" between 9:30 am and 11:30 am. The complainant testified that the indecent assault occurred in this room at the end of a "processing session" with her that morning. The High Court of Australia heard the appeal against this conviction.

The High Court was required to determine whether the trial judge erred in directions to the jury concerning the failure of the defendant to call witnesses and the implications of the delay in the complainant making her complaint. Additionally, the court considered whether the verdict was unreasonable and whether inferences could be drawn from the appellant's failure to call witnesses in a criminal trial, applying the principles from *Jones v Dunkel*.

The Court, comprising Gaudron and Hayne JJ, noted that the trial judge had directed the jury that they might draw an inference adverse to the appellant from his failure to call certain witnesses, including Ms Tinkler, who was mentioned in his diary. The High Court held that such an inference could not be drawn in a criminal trial, as it would shift the onus of proof from the prosecution to the accused. The Court also considered the direction regarding the delay in the complaint, referencing *Longman v The Queen*, and found that the jury directions were inadequate. Consequently, the High Court allowed the appeal, quashed the conviction, and ordered a new trial.