ER v The King

CITATION:ER v The King [2024] NTCCA 11

PARTIES:ER

v

THE KING

TITLE OF COURT:  COURT OF CRIMINAL APPEAL OF THE NORTHERN TERRITORY
JURISDICTION:  CRIMINAL APPEAL from the SUPREME COURT exercising Territory jurisdiction
FILE NO:CA 13 of 2023 (21829253, 21844278)
DELIVERED:  21 October 2024
HEARING DATE:  8 July 2024
JUDGMENT OF:  Brownhill, Huntingford and Reeves JJ
CATCHWORDS:

CRIMINAL LAW – Appeals – Application for leave to appeal – Appeal against conviction
CRIMINAL LAW – Appeals – Appeal against conviction – Failure to direct the jury as to implied admission – Whether a miscarriage of justice occurred – No implied admission found to have been made where there was an express denial by the Accused – Rational forensic justification existed for trial counsel not seeking a direction – Direction to the jury not necessary – Leave to appal granted – Appeal dismissed
CRIMINAL LAW – Appeals – Appeal against conviction – Whether prosecutor’s closing address undermined the onus and standard of proof – Whether prosecutor’s closing address caused a miscarriage of justice – Whether the address and trial Judge’s summing up deflected the jury from its task to decide whether the prosecution proved the elements of the offence beyond reasonable doubt – The closing address and summing up did not deflect the jury from its proper task – No miscarriage of justice effected – Leave to appeal granted – Appeal dismissed
CRIMINAL LAW – Appeals – Appeal against conviction – Whether trial Judge failed to give proper Liberato direction – Trial Judge’s use of a Calides direction – Whether summing up contained the essential components of a Liberato direction – No further re-direction sought by trial counsel – Trial Judge properly conveyed the essential components of a Liberato direction – Trial Judge’s direction did not give rise to a miscarriage of justice –Leave to appeal granted – Appeal dismissed
Barca v The Queen (1975) 133 CLR 82, Craig v The Queen (2018) 264 CLR 202, De Silva v The Queen (2019) 268 CLR 57, Douglass v The Queen (2012) 86 ALJR 1086, Green v The Queen (1971) 126 CLR 28, Hargraves v The Queen (2011) 245 CLR 257, HCF v The Queen (2023) 97 ALJR 978, Hewitt v The King [2021] NSWCCA 227, MLW v The Queen [2022] NTCCA 2, Murray v The Queen (2002) 211 CLR 19, Orreal v The Queen (2021) 274 CLR 630, The Queen v BEC [2023] QCA 154, The Queen v Calides (1983) 34 SASR 355, The Queen v Lavery (2013) 229 A Crim R 559, The Queen v MMJ (2006) 166 A Crim R 501, Thomas v The Queen (1960) 102 CLR 584, Weiss v The Queen (2005) 224 CLR 300, Zhou v The Queen [2021] NSWCCA 278 referred to.

REPRESENTATION:
Counsel:
Applicant:B Lodge
Respondent:  L Babb SC with L Auld
Solicitors:
Applicant:Shaw Legal & Advisory
Respondent:  Office of the Director of Public Prosecutions
Judgment category classification:    B
Number of pages:  56

IN THE COURT OF CRIMINAL APPEAL
OF THE NORTHERN TERRITORY
OF AUSTRALIA
AT DARWIN
ER v The King [2024] NTCCA 11

CA 13 of 2023 (21829253, 21844278)

BETWEEN:
ER

Applicant
AND:
THE KING

Respondent

CORAM: BROWNHILL, HUNTINGFORD and REEVES JJ
REASONS FOR JUDGMENT
(Delivered 21 October 2024)
THE COURT:

The applicant was charged with nine counts relating to sexual activity with two children under the age of 16, BH and AT. Following a trial by jury, the applicant was found guilty of:
(a)three counts (counts 1, 3 and 9) of aggravated indecent dealing with a child under the age of 16, contrary to s 132(2)(a) and (4) of the Criminal Code 1983 (NT) (‘Criminal Code’);
(b)two counts (counts 2 and 7) of aggravated sexual intercourse with a child under the age of 16, contrary to s 127(1) and (3) of the Criminal Code;
(c)three counts (counts 4, 5 and 6) of sexual intercourse without consent, contrary to s 192(3) of the Criminal Code; and
(d)one count (count 8) of aggravated unlawful assault, contrary to s 188(1) of the Criminal Code.
All of the aggravated counts involved the circumstance of aggravation that the child was under the age of 10 years. All of the counts bar count 9 related to the child BH.
The applicant was sentenced to a total effective term of imprisonment of 17 years and one month, with a non-parole period of 12 years.
The applicant applied for an extension of time within which to appeal and for leave to appeal against his conviction. The applicant was granted the extension of time but refused leave to appeal by a single Judge of this Court. The applicant then sought that the application be heard by a full bench of this Court pursuant to s 429(2) of the Criminal Code.
By the time of the hearing, there were three proposed grounds of appeal, namely:
(a)The trial Judge failed to direct the jury as to the use that could be made of an implied admission made by the applicant (ground 1).
(b)The prosecutor’s closing address undermined the onus and standard of proof by submitting to the jury that they could accept the complainants’ evidence by rejecting the suggestions they were being dishonest or were unreliable, thereby causing a miscarriage of justice (ground 2).
(c)The trial Judge failed to give a proper Liberato[1] direction (ground 3).
The respondent argued that none of the proposed grounds of appeal had any merit and leave to appeal should be refused, or if granted, the appeal should be dismissed.
Crown case
The applicant and the complainants’ mother (‘mother’) commenced a relationship when AT was about seven years old, BH was about five years old, and the mother’s third child, FH, was about four years old.
Around a year later, the applicant, the mother and the three children began living together. During the next few years, the applicant and the mother had two more children together.
On 1 July 2018, BH told the mother that every time she (the mother) left BH with the applicant, and every time he was in her (BH’s) bed, he was touching her vagina and anus.
The mother immediately confronted the applicant and demanded that he leave the house. The applicant left and Police were called. Ground 1 related to what is said to be the Crown’s reliance upon an implied admission made by the applicant during that confrontation.
BH gave evidence that the offending against her occurred on three separate occasions when she was eight or nine years old. Counts 1 and 2 involved the applicant placing BH’s hand on his penis, digitally penetrating BH’s anus, then having penile/anal intercourse with her. Counts 3 to 7 involved the applicant placing BH’s hand on his penis, forcing BH to engage in fellatio, digitally penetrating BH’s anus, having penile/anal intercourse with her and engaging in cunnilingus with her. Count 8 involved the applicant touching BH’s vaginal and anal areas over her clothing.
AT gave evidence that the offending against her, count 9, occurred when she was eight or nine years old. It involved the applicant touching her vagina over her clothing and exposing his erect penis to her. She also gave evidence of an uncharged act which occurred when the family was on holiday in Queensland involving the applicant touching her vaginal area over her clothing.
The Crown relied on the uncharged act and the charged acts as tendency evidence establishing the applicant’s tendencies to have a sexual interest in his prepubescent stepdaughters and to sexually assault them.
In addition to the complainants’ evidence, the mother gave evidence of BH’s complaint and the confrontation, and two friends of AT gave complaint evidence.
The applicant’s case
The applicant gave evidence denying the charges. He said he spent little time at the family home during the period of the charged offending, stating he was often away at work or with a friend. He also gave evidence about the confrontation with the mother.
In his closing address, the applicant’s counsel said it was not the defence case that the complainants had got together and concocted ‘some sort of story’ or that they had been coached by the mother. Reliance was placed on the high standard of proof, the limited opportunity to commit the alleged offending, the applicant’s clear denials of any offending, aspects of the complainants’ evidence that made it unreliable, and the possibility that another male had engaged in sexual conduct with BH.
Legal principles: miscarriage of justice and failure to give directions
This is an appeal against the findings of guilt brought pursuant to s 410 of the Criminal Code. By s 411(1) and (2) of the Criminal Code, such appeals must be allowed if the Court is of the opinion that the verdict of the jury should be set aside (relevantly) if there was a miscarriage of justice, unless the Court is of the opinion that no substantial miscarriage of justice has occurred.
In MLW v The Queen,[2] this Court held (at [28]-[33]) that to establish a miscarriage of justice arising from a material irregularity in the trial, the appellant must show a realistic possibility that the identified procedural irregularity affected the basis on which the jury reached its verdict of guilty, in the context of the trial as a whole. It is only if that threshold is met that the appellate court is required to go on to consider the proviso and answer the quite distinct question of whether it is satisfied that no substantial miscarriage of justice actually occurred.
More recently, in HCF v The Queen,[3] the High Court has put the test somewhat differently. Gageler CJ, Gleeson and Jagot JJ referred (at [2]) to the decision of Beech-Jones CJ at CL in Zhou v The Queen[4] in which his Honour provided a ‘convenient summary concerning those errors or irregularities that will amount to a miscarriage of justice’ in the context of a statutory provision like s 411(1) of the Criminal Code. Their Honours noted, with apparent approval, the observations made by his Honour in Zhou as follows:
[I]f the error or irregularity ‘is properly characterised as a “failure to observe the requirements of the criminal process in a fundamental respect” then it would follow that the conviction would not stand regardless of any assessment of its potential effect on the trial’, but otherwise there is no miscarriage unless the error or irregularity is ‘prejudicial in the sense that there was a “real chance” that it affected the jury’s verdict … or “realistically [could] have affected the verdict of guilt” … or “had the capacity for practical injustice” or was “capable of affecting the result of the trial”.
The majority pointed out (at [3]) that the focus of his Honour’s observations in Zhou was miscarriage of justice, not the common form proviso referring to ‘no substantial miscarriage of justice’.
Difficulties in the application of the various formulations of the miscarriage of justice test and the proviso that have been articulated by the High Court since Weiss v The Queen[5] were identified by Edelman and Steward JJ in HCF (at [75]-[83]). We were told by counsel for the applicant that those difficulties may be addressed in an appeal listed for hearing before seven members of the High Court later this year.[6]
The applicant’s position was that, if this Court were satisfied that any one of the errors asserted in the proposed appeal grounds had been made, it would be satisfied both that there was a failure to observe the requirements of the criminal process in a fundamental respect and that the error or irregularity was prejudicial in the sense described in HCF.
The respondent argued that there was no error or irregularity and, even if there was, none of the asserted errors or irregularities are such as to amount to a miscarriage of justice and, even if they were, they do not amount to a substantial miscarriage of justice with the effect that the proviso would operate.
The respondent also argued that, on an appeal from conviction on the basis of a failure to give a direction where counsel for the accused did not seek the direction at trial, the Court will not be satisfied that the failure constitutes a miscarriage of justice unless satisfied there was no objectively discernible forensic advantage in not seeking the direction. Reliance was placed on the decisions of the High Court in Orreal v The Queen[7] and Craig v The Queen.[8]
In Orreal, the respondent accepted, in the High Court, that there had been a miscarriage of justice at the trial by the admission of irrelevant evidence, about which both parties had made submissions and the trial Judge had directed the jury that they could use the evidence along with all the other evidence in the case. The High Court held, contrary to the conclusion of the Court of Appeal, that, because the inadmissible evidence could have affected the jury’s assessment of the complainant’s credibility, a substantial miscarriage of justice had occurred. In the court below, there had been an additional ground relating to the failure of the defence counsel at trial to object to the admission of the inadmissible evidence. The Court of Appeal had found that defence counsel decided not to object because there was a forensic advantage for the defence in not doing so, and concluded that the appellant should be bound by his counsel’s forensic choices, with the effect that no miscarriage of justice could arise. Kiefel CJ and Keane J observed (at [16]) that there was no doubt about the correctness of the Court of Appeal’s decision on this basis. Their Honours observed that, save for exceptional cases, in our system of justice, parties are bound by the conduct of their counsel, who exercise a wide discretion in deciding matters such as what evidence to lead or have excluded.[9] It is usually only when an appellate court is persuaded that no rational forensic justification can be discerned for counsel’s decision that consideration will be given to whether it gave rise to a miscarriage of justice.[10] Their Honours added (at [18]) that a forensic choice on the part of counsel to not object to the admission of particular irrelevant evidence would preclude the occurrence of a miscarriage of justice.
In Craig, the appellant had been incorrectly advised by his trial counsel that if he gave evidence at the trial, he would be cross-examined about his criminal history, but it was not found that, if he had not been given that incorrect advice, he would have given evidence at the trial. The High Court dismissed his appeal on the basis that there was no miscarriage of justice where the evidence did not establish that the trial would have been conducted differently had the incorrect advice not been given. In describing the appellant’s submissions to the High Court, the Court observed (at [23]) as follows:
The appellant’s complaint is with the application of an objective test drawn from the judgments in TKWJ v The Queen[11] to the Court of Appeal’s determination that the incorrect advice did not occasion a miscarriage of justice. As the appellant observes, the analysis in TKWJ is concerned with challenges to forensic judgments that are within counsel’s remit. The objective test that TKWJ holds is to be applied to the determination of challenges of that kind takes into account the wide discretion conferred on counsel under our adversarial system of criminal justice.[12] A necessary consequence of that discretion is that the accused will generally be bound by counsel’s forensic choices. It is only where the appellate court is persuaded that no rational forensic justification can be discerned for a challenged decision that consideration will turn to whether its making constituted a miscarriage of justice.
While neither of these cases concerned the failure of counsel to seek a particular direction about the use to which the jury may put certain evidence, or the way in which the jury is to reason upon the evidence, we accept that, ordinarily, it is only when an appellate court is persuaded that no rational forensic justification can be discerned for counsel’s decision not to seek such a direction that consideration will be given to whether it gave rise to a miscarriage of justice.
Further, it is well settled that the failure of competent counsel to seek a particular direction in relation to evidence from the trial Judge, or to seek a re-direction or clarification of a direction given by the trial Judge, is a relevant consideration in determining whether the absence of a direction or an asserted misdirection comprises a miscarriage of justice.[13]
Proposed ground 1 – Failure to direct the jury about admissions
What happened at trial
The mother gave evidence that she was sitting outside the home when BH made the complaint to her about the applicant offending against her.[14] The mother went inside and confronted the applicant. Her evidence was as follows:[15]
I said, ‘You, you need to get out of my house now. Get out. Get out of my house’. And I just kept repeating myself. I said ‘I’m calling the police’ and I just kept repeating myself and he was saying, ‘Why what’s going on? What happened? What’s going on?’ And I said, ‘You need to get out of my house, get out of my house’. and I just kept repeating myself. I said ‘I’m calling the police.’ And then we made it to the living room, the front door and I was standing in front of the door inside the house. So the door was behind me. [BH] was standing behind me against a wall, next to the door and I just kept looking at him going ‘Get out of my house’. And he said, ‘What’s going on?’ and then he looked past me and he said ‘What’s going on [BH]?’ And that’s when I said, ‘So you are mucking around with my kids. You need to get out.’ And I sweared [sic] at him, ‘Get the fuck out of my house, fuck off out of my house.’ And then he walked out, no so he was – he was sitting on the couch and was buttoning up his shirt and I said ‘You’re muckin’ around with my kids’ and he said, ‘No I’m not. Someone’s talking shit in their ears, someone putting ideas into their head. Someone talking shit to me.’ And I turned to [BH], I said, ‘Is anyone talkin’ shit to you?’ And she said ‘No’. And I said ‘You are doing shit, you’re the one doing shit to children. You’re a sick cunt, get out of my house’. And he was buttoning up his shirt and he then he went like that and he said, ‘Well do something about it. Stop me, what are you going to do about it. Stab me in the heart’. And that’s what he was doing.
…
I yelled ‘Get out, get out, get out, get out, get out, get out.’ I just keep repeating and he went out and I locked the door and I called the cops.
The applicant’s evidence-in-chief about this confrontation was as follows:[16]
…[S]he [the mother] just told me to get out, told me to get out, so I jumped up, ‘What’s going on? What’s going on?’. Then she approached [BH] and I approached and I said, ‘What’s going on?’ And that’s when [the mother] turned around and told me, ‘You been playing around with her.’ And that’s when I said – I didn’t scream or nothing, I just told her, ‘Grab a knife and stab me if you think I did it’. I couldn’t scream because my heart was getting crushed. I couldn’t do anything. Just to walk outside and she told me to get outside.
In cross-examination, the applicant said that the mother was telling him he was touching ‘the kid’ and was ‘raving on about that, how [he] touched the kids’, and he said to her ‘well grab the knife and stab me if you think I did this’.[17]
In cross-examination, the prosecutor put to the applicant that he knew exactly why he was being kicked out of the house, essentially because he was responsible for the sexual abuse of the complainants.[18] The applicant denied that. There was then the following exchange:[19]
Did you protest your innocence? Did you say repeatedly, ‘I didn’t do it, I don’t understand what you’re talking about’ when it was actually put to you by [the mother] that you had been mucking around with her kids?---I didn’t - - -
Did you repeatedly deny that you had done anything?---What do you mean repeated? What? Like what?
You’d just been accused of sexually abusing your step-children?---Yep.
Your response is to say, effectively, that someone’s been putting shit in their ears and then, ‘Stab me. Go on, do something about it.’ That was your response, wasn’t it?---No, that wasn’t my response.
It wasn’t?---Nuh.
What did you do?---She got it all wrong. I didn’t say, ‘Stab me’. I just said, ‘Here, stab me if you think it’s – if you think I did it’.
[The applicant denied the alleged offending.]
...[Y]ou knew exactly why you were being kicked out of that house on that day. You knew because you were responsible for the sexual abuse of two of [the mother’s] daughters?---No sir.
And that was a reason why despite the imminent breakdown of your four-year relationship, the extent of your denials of the accusations [was] limited to one statement about someone putting shit in their ears and saying stab me? Anything to say about that?---What have I got to say?

In his closing address, the prosecutor said the following about this evidence:[20]
But what about 1 July 2018 when he is first confronted by his partner. He is lying down in their room. His partner walks in and tells him to get out. Get out of the house, get out of the house, repeatedly, get out. He’s saying what’s going on? She’s not telling him anything other than saying, get out of the house. There is [BH], [FH] and the two young children in the house at that time.
He then does eventually go out of the room, walk towards the living room where [the mother] is standing near the door telling him to get out. [BH] was behind her. He then asks her what’s going on. At that point in time, what does he know? He knows that his partner of four years is kicking him out of the house, effectively ending their relations; that she has talked about calling the cops. That was her evidence. …
He knows that it is of a level that is serious enough to warrant him being kicked out of his home, ending a relationship, but also contacting police. And he looks to a 9 year old girl and he says ‘What’s up? What’s going on, [BH]?’ Why? What positive expectation, what basis could he have to suggest that, well hang on, she’s not going to tell me, but my 9 year old stepdaughter is going to be informed enough about the breakdown of our relationship to inform me why I’m being kicked out of my home.
And then yes, at one point he says, someone’s been putting shit in their ears, or words to that effect. This is after he has just been told that there is an allegation of him sexually interfering with his stepdaughters – stepdaughter. Partner of four years, breakdown in relationship, kicking out of your own home and you limit your response to, ‘Well someone’s putting shit in their ears’ and then the whole ‘Stab me. Do something about it. Do it, stab me in the heart.’ You will recall [the mother’s] evidence about that. Matter for you whether or not that is what you would consider to be consistent with being confronted by that type of allegation, or would you go to extraordinary lengths to deny it? It is a matter for you.
Even if you do not have those concerns with his reaction, if you do not see any issues that arise from how he reacted, then you are still left with what the fundamental proposition is, that I said a very long time ago. This case comes down to one simple proposition and that is whether or not you are satisfied on the evidence that both [BH] and [AT] told the truth when they spoke to police and when they were cross-examined.
In his closing address, the applicant’s counsel referred to the mother’s evidence of this confrontation, then referred to the applicant’s evidence, saying ‘[i]n some ways it is much the same’.[21] Reference was made to the applicant’s evidence that the only reason he deferred to BH was because the mother had deferred to her, approaching her first. Reference was made to the applicant’s evidence that he admits he asked BH what was going on. Counsel then said the following:[22]
It is not this mountain or this evil question about why his relationship is ending or because he has been found out because the mother has deferred to the child. He has been asking what is going on. He has been told to leave the house. As a result, well, ‘What’s going on, [BH]?]
That is those two bits of evidence, [the mother] … or [the applicant]. How do you differentiate or separate them? How can you be sure one of them is right and one of them is wrong? If you cannot, then you do not know which way it happened. Then you might put that piece of evidence to one side because you are only going to use the evidence that you find compelling, or that you agree with and the evidence that goes to the elements of the offence if each of those pieces of evidence is proven beyond reasonable doubt.
In summing up, the trial Judge summarised the evidence of the mother and the applicant about the confrontation and said both counsel suggested that the jury should have different interpretations of the applicant’s reaction, with the prosecutor asking rhetorically why he asked BH about it and what possible reason he could have for thinking she might know why his partner was ordering him out of the house, and suggesting that the jury should infer that he knew because he knew he had been doing things to BH, whereas the Defence said the reason he turned to BH was because the mother first did so.[23] The trial Judge told the jury it is a matter for them what they make of those matters.
The trial Judge did not give any direction about the use to be made of the evidence about the applicant’s response to the mother’s allegation that he had been ‘mucking around with’ or ‘doing shit to’ the children.
The applicant’s trial counsel did not seek any such direction.
The proposed appeal ground
As set out above, proposed appeal ground 1 is that the trial Judge failed to direct the jury as to the use that could be made of the applicant’s implied admission.
Consideration
The scope of the proposed appeal ground
The applicant argued that the applicant’s conduct in response to the confrontation that he was ‘mucking around with’ the kids and ‘doing shit to the children’ was deployed by the prosecutor as an implied admission of the allegation of sexual misconduct against the complainants because his response was suggested to be other than what would be expected of an innocent person. Consequently, it was argued that a direction should have been given to the jury about the use the jury could make of this evidence.
As we understood the proposed appeal ground, no issue was taken with the trial Judge’s direction about the evidence that, in response to the mother ordering him out of the house, the applicant turned to BH and asked her what was going on, which was the subject of a submission by the prosecutor effectively that the applicant did so because he knew of BH’s complaint about his sexual misconduct against her. The focus of the proposed appeal ground was the absence of a direction about the evidence as to the applicant’s reaction to the mother’s statements to him about ‘mucking around with’ and ‘doing shit to’ the children.
Accused denied the mother’s allegations – no implied admission
On both the mother’s evidence and the applicant’s, the applicant did not remain silent in the face of the mother’s allegations, he expressly denied them. The mother’s evidence was that she said: ‘You’re mucking round with my kids’ and he said: ‘No I’m not, someone’s talking shit in their ears, putting ideas into their head’. The applicant’s evidence was that she said: ‘You been playing around with her’ and he said: ‘Grab a knife and stab me in the heart if you think I did it’. On both versions of the conversation, the applicant denied the mother’s allegations that the applicant was sexually offending against the complainants.
At the end of the day, the prosecutor’s cross-examination of the applicant and closing address in this case went no higher than that the jury could find that the applicant’s response to the mother’s allegations was not as emphatic a denial as an innocent person might make in the circumstances. There was no question whether the applicant heard and understood the mother’s allegations. There was no question whether the applicant denied them. Those two matters make completely unnecessary much of the direction now said by the applicant to have been necessary to avoid a miscarriage of justice. There was an issue about whether he said ‘What are you going to do about it? Do something about it’, but nothing was made, in this appeal by counsel for the applicant, about those words in particular, no doubt because those words had no prominence in either party’s closing address at the trial and the prosecutor’s closing was to the effect just noted (i.e., it was not an emphatic denial).
In any event, what the jury might make of the applicant’s response to the mother’s allegations was really a matter of common sense in that, if the jury did not regard the applicant’s response (a denial which the prosecutor submitted was not sufficiently emphatic) as an acceptance of his guilt, then self-evidently they would not use it as such.[24] We consider that the evidence about the applicant’s response to the allegations made by the mother is such that there was no perceptible risk that, unless a warning about it was given, the jury would attribute to it a significance or weight which they might not if the warning were given.[25] That makes unnecessary the remainder of the direction now said by the applicant to have been necessary to avoid a miscarriage of justice.
The applicant argued that the requirement for a direction about admissions arose from the decisions in Barca v The Queen,[26] The Queen v MMJ,[27] and The Queen v BEC.[28] The applicant argued that, in any case where an implied admission is relied on, whether the admission is by silence or otherwise, the jury should be given directions as to how the evidence can be used, particularly that they can use a statement by another person in the presence of the accused as evidence of the truth of what was stated if satisfied the accused has, by speech, silence or conduct, admitted its truth.
In Barca, Gibbs, Stephen and Mason JJ held (at 107) that it is trite law that a statement made in the presence of a party is only evidence against them of the truth of the matter asserted if they have in some way admitted its truth. If an accused person denies the truth of a statement when it is made and there is nothing in his conduct and demeanour from which the jury, notwithstanding the denial, could infer that they acknowledged its truth in whole or in part, it would accord with the accepted practice to exclude the statement altogether. In any case, where evidence is admitted of statements made in the presence of an accused it is ‘in general desirable’ that the judge should explain to the jury that they can only use the statements as evidence of the truth of what was stated if they are satisfied that the accused has by his speech, silence or conduct admitted their truth.
The decision in Barca did not turn on the absence of such a direction, and Gibbs, Stephen and Mason JJ noted (at 108) that it was not necessary to consider the effect of the failure to give a direction as to the effect of the evidence about statements made in the presence of the applicant because they had ruled for other reasons that the conviction could not stand. It is clear from this that their Honours were not laying down a principle that, in any case where an implied admission is relied on, a failure to direct the jury that they can only use the evidence if satisfied the accused has, by his speech, silence or conduct, admitted their truth comprises a miscarriage of justice. Consistent with that proposition, the Court of Criminal Appeal of New South Wales recently held, in Hewitt v The King,[29] that the authorities do not establish that a direction that the jury cannot act on statements by the accused as proof of guilt unless satisfied he intended to acknowledge by them that he committed the alleged offending, and that the statements were true and not made for some innocent reason, is required as a matter of law in every case in which there is a dispute about whether an admission was truthful and accurate.
The applicant relied heavily on The Queen v BEC. In that case, the Queensland Court of Appeal found that there had been a miscarriage of justice from a failure to give directions to the jury about the use to be made of an implied admission said to have been made by the accused to the complainant’s mother. The complainant’s mother had given evidence that, amongst the complainant’s clothing brought back from a two day trip alone on a boat with the appellant, she found some of the complainant’s underwear on which there appeared to be ejaculate, got angry and said to the appellant: ‘If I didn’t know any better, I would swear [the complainant] was getting abused’, to which the appellant looked at her oddly and walked out of the house. The appellant had given evidence denying that he had ejaculated on or near the complainant during the boat trip, and that the complainant’s mother said to him: ‘Look at this festy underwear.’ When cross-examined, he admitted she showed him some underwear and he heard the complainant’s mother say something about: ‘If I didn’t know better, [the complainant was] having sex’, but he was distracted. He admitted that he looked at the complainant’s mother quite oddly, and there was a reason why he looked at her oddly. He denied the reason was because he felt that he was ‘caught out’, saying that he thought it was a ‘hygiene issue’, it was not ‘abnormal’ and he ‘just crinkled up his nose’. Defence counsel made no submission about this conversation or the underwear. The prosecutor’s closing address referred to the complainant’s mother’s evidence about the underwear, and the appellant walking away when she confronted him, and said that two counts involved penile/vaginal intercourse. The trial Judge’s summing up referred to the complainant’s mother’s evidence about the underwear and about confronting the appellant, with his reaction being ‘to simply walk away’, and stated that ‘that, in part, supports the complainant’s testimony’. After they retired, the jury asked a question about whether they could accept that ‘an object’ existed because multiple witnesses had confirmed its existence, even though the object was absent. The Court took this to be a question about the underwear, which the mother had thrown away.
In The Queen v BEC, Livesy AJA (Callaghan J agreeing) began his reasons (at [63]-[64]) by saying that some directions and warnings given by trial Judges are given because of the risk that juries may be ignorant about the dangers associated with certain kinds of evidence, and one such kind of case is evidence which is capable of being regarded as a form of express or implied admission of guilt by an accused. His Honour said such evidence can take many forms, including the failure by the accused to deny an accusation made to or in the presence of the accused. His Honour referred (at [65]) to admissions of guilt in those cases where ‘if innocence existed, an unequivocal or a qualified denial would … be expected’. His Honour quoted (at [66]) the passage from Barca referred to above. His Honour then referred (at [67]-[81]) to numerous authorities he described as relating to evidence capable of being considered an ‘implied admission by silence’, including The Queen v MMJ.[30] Of those, only the latter authority had the result that the appeal against conviction was allowed for a failure to give directions as to the use the jury could have made of the evidence.
The Queen v MMJ concerned evidence that a witness had asked the accused if he was having, or had had, a sexual relationship with the complainant, to which the accused said nothing. In that case, because of the generality of the question, Ashley JA (Buchanan JA agreeing) doubted (at [85]) that the evidence could have been used by the jury as anything other than evidence of the relationship between the accused and the complainant, and held that the jury should have been so instructed. Ashley JA went on to say that there was at least need for clear instruction as to the manner in which the jury should deal with the evidence in the context of a possible adoptive admission. It was noted that it was evidence the prosecutor had ‘highlighted, at times in extravagant language, both at the outset and towards the end of his final address’. In particular, Ashley JA held (at [92]) that the prosecutor had dealt with the evidence in his final address as if it could be used in direct proof of the charged offences, when that was not so. Further, Ashley JA held (at [97]) the prosecutor had ‘made the evidence a focal point of his address’ and the trial Judge had said nothing at all about it.
In The Queen v BEC, Livesey AJ observed as follows (at [87]):
Evidence about a statement which has been made to or in the presence of an accused, which went unanswered by the accused, may or may not be associated with a real risk that the jury could use that evidence as in some way implicating the accused in the offending alleged. Each case must necessarily depend on its own facts and circumstances, particularly the matters in issue and precisely what it is contended was said to or in the presence of the accused. Where the statement made to or in the presence of the accused is clearly referable to the allegations made against the accused ... the trier of fact might well regard any failure by the accused to respond with a denial as a matter of some significance. Indeed, the more stark the statement or accusation made to the accused, the more significant will be the evidence concerning any response made by the accused, even if little is made of the issue in addresses. [emphasis added]
His Honour went on to say (at [96]):
As the cases which have been discussed show, there are a number of features associated with cases involving what appears to be an admission by silence which may not immediately be apparent to a jury. Whilst this kind of evidence might be thought to be straight forward, raising inferences which can be determined by a combination of ‘common sense’ and the collective life experience of the jury, there is a real risk that important issues may be overlooked, such as whether the appellant heard and understood all that was said by the complainant’s mother. [emphasis added]
The major point of distinction between The Queen v BEC and the authorities there referred to and the present case is that here, as we have concluded above, the applicant expressly denied the mother’s allegations.
No doubt because of that distinction between The Queen v BEC and the present case, the applicant submitted that this case was akin to The Queen v BEC and The Queen v MMJ because, the final time the accusation was put to him, the applicant did not say anything and walked out of the house.
We do not accept this submission. It does not accord with either the mother’s evidence or the applicant’s. They both said that the accused referred to her stabbing him in the heart before he walked out of the house. This was not a case involving evidence capable of being considered an ‘implied admission by silence’. Nor was it a case in which, as Livesey AJ found in The Queen v BEC (at [100]), there was a risk that the jury reasoned that the applicant’s reaction represented evidence, independent of the complainants’, which supported a finding the applicant had committed the alleged offending because they used the evidence as probative of guilt without first considering whether the applicant’s version of the confrontation should be preferred or remained a reasonable possibility, as well as without considering whether they were satisfied that the applicant heard and understood all that was said and should have responded to the mother. Unlike that situation, the evidence from both the mother and the applicant in this case was that the applicant denied that he had been sexually offending against the complainants.
Another point of distinction between the present case and The Queen v BEC is the link in The Queen v BEC between the evidence about the underwear being stained with semen, a matter which the jury had clearly found important given their question, and the appellant’s reaction to the confrontation about the presence of semen on the underwear. Livesey AJ held (at [97]) that it was necessary, in the circumstances of that case, that the jury be given assistance when undertaking their fact finding in relation to those linked issues.
Another point of distinction along similar lines relates to the prominence (or otherwise) of the evidence in the Crown case. Unlike the prominence of the evidence in the prosecutor’s address in The Queen v MMJ, the evidence about the applicant’s response to the mother’s allegations took up less than half a page of transcript in over 11 pages of transcript of cross-examination, and only one paragraph in a closing address exceeding 120 paragraphs, was not expressed in colourful language and was by no means a focal point of the prosecutor’s closing address.

Further, also unlike The Queen v BEC, the trial Judge in this case did not do what the trial Judge had done in that case. Livesey AJ noted (at [93]-[94]) that the trial Judge had ‘taken the matter a step further’ than the prosecutor’s closing address by connecting, in the summing up, the condition of the complainant’s underwear with the appellant’s reaction to the complainant’s mother’s statement, such that both the condition of the underwear and the appellant’s reaction (silence and an ‘odd look’ then walking out of the house) were to be treated by the jury as supporting the complainant’s testimony. Nothing of that nature occurred here.
A rational forensic justification for not seeking a direction
The respondent argued, on the basis of the observations in Orreal and Craig set out above, that there was no warrant for this Court to consider whether there had been a miscarriage of justice because there was a clear tactical reason why no direction was sought, namely that it may have highlighted the mother’s evidence about the applicant saying effectively ‘what are you going to do about it?’ and ‘do something about it’. The applicant eschewed this as a tactical reason not to seek a direction and argued that the mother’s evidence was ‘front and centre’ in the trial because the mother was cross-examined about the confrontation, the applicant gave evidence about the confrontation and had been cross-examined about it, the prosecutor made a submission about it and it was ‘expressly recited’ by the trial Judge.
We consider that a rational forensic justification for counsel’s failure to seek a direction about this evidence can be discerned, namely to avoid highlighting that the mother’s evidence about the applicant saying ‘what are you going to do about it?’ and ‘do something about it’ could readily be understood as an admission of the truth of the mother’s allegation that he was sexually abusing the children. The applicant’s submissions on this appeal did not focus specifically on the mother’s evidence that the accused said the words ‘what are you going to do about it?’ and ‘do something about it’. Whether the applicant said those words was a potential issue of fact arising in the trial, but neither the prosecutor nor the applicant’s trial counsel put it to the jury, as is apparent from the following:
(a)In cross-examination, the mother was asked what the applicant said about stabbing him in the heart. She said that the applicant said: ‘What are you going to do about it? Well, what are you going to do about it? Do something about it. Stab me in the heart or stab me in the chest’ and he was hitting his chest and screaming to stab him in the heart, do something. She denied he said: ‘You might as well stab me in the heart’. She repeated: ‘Do something about it’ and said ‘Are you going to do anything about it, what are you going to do? Stab me in the heart.’ Asked if, at this stage he was calm, not screaming, she repeated her evidence about what he said.
(b)In evidence-in-chief, the applicant gave evidence that he said to the mother: ‘Grab a knife and stab me if you think I did it’.
(c)In cross-examination, the applicant said the mother told him he was touching the kid and he told her: ‘Well grab the knife and stab me if you think I did this’. The applicant denied that he said to her: ‘Go on, do something about it?’, repeating the evidence he gave in evidence-in-chief.
(d)In his closing address, the transcript of which goes for almost 18 pages, the prosecutor repeated the mother’s evidence that the accused said: ‘Do something about it. Do it, stab me in the heart’ but made the brief submissions set out above, which did not highlight this as any form of admission of guilt.
(e)In the summing up, the trial Judge did not make any mention of the mother’s evidence that the accused said: ‘Well what are you going to do about it? Do something about it.’
We reject the applicant’s submission that the mother’s evidence about the accused’s response to her allegations was ‘front and centre’ at the trial. The applicant’s trial counsel’s failure to seek the direction, now said to be necessary to avoid a miscarriage of justice, about the evidence of the applicant’s conduct being used as an admission of guilt could be explained by a tactical forensic decision to avoid highlighting that, if the jury accepted the mother’s evidence about what he said, his statements to the effect that she should ‘do something about it’ could readily be construed as admissions of the truth of her allegations. This is supported by the applicant’s trial counsel’s closing address, which referred specifically to the evidence of the applicant turning to BH when told by the mother to leave the house, said there were differences between the evidence of the applicant and the mother about what was said, but said nothing at all about those differences or about the rest of the evidence of the confrontation, particularly the accused’s response to the mother’s allegations that he was sexually abusing the complainants.
The applicant argued that it is very unlikely that trial counsel turned his mind to the possible need for a direction which would have limited the circumstances in which the evidence could be used to the clear advantage of the applicant, but decided not to because it would highlight the use of the evidence as an admission of guilt.
That there is a possibility, even a strong possibility, that trial counsel simply did not turn their mind to whether to seek a direction is not the test. We must be persuaded that no rational forensic justification can be discerned for trial counsel’s failure to seek a direction. Here, a rational forensic justification can be discerned for not seeking a direction about the applicant’s conduct in response to the mother’s allegations as admissions of guilt. On the basis of the observations in Orreal and Craig set out above, that finding would obviate the need to consider whether the failure to give a direction gave rise to a miscarriage of justice. Nevertheless, as we have already held, the direction now pressed by the applicant was not necessary in the circumstances of this case. The possibility that the need for a direction did not cross experienced trial counsel’s mind supports that conclusion and confirms that the evidence about the applicant’s response to the mother’s allegations of sexual abuse did not feature heavily in the trial and was, relatively speaking, of no real significance.
For all of the above reasons, we are not persuaded that a direction about the use the jury could make of the evidence about the applicant’s response to the mother’s allegations of sexual offending against the complainants was necessary, or that the failure to give one comprised a miscarriage of justice.
Given that full argument was heard in relation to this ground of appeal, we will grant leave to appeal on this proposed ground. However, the ground of appeal is not made out.
Proposed ground 2 – Prosecutor’s closing invited impermissible reasoning to guilt
What happened at trial
The prosecutor’s closing address included the following:[31]
Now, ... this case comes down to one very simple proposition and that is are you satisfied beyond a reasonable doubt of the evidence that is put before you.
About whether or not the allegations alleged by both BH and AT happened, whether they’re telling the truth.
So, that consideration leads to three propositions, I would suggest. The first is that you are satisfied that each of those complainants told the truth and that you are satisfied of it, beyond reasonable doubt, in the context of everything that you have heard, they told the truth. So, that is the first proposition. These are competing propositions.
The second is that they’re honest, but mistaken; that they may be unreliable. Now here, I’m not talking about that peripheral stuff, the things that don’t matter. What I’m suggesting is, on their account of the actual offences themselves, are they telling the truth or could they just be mistaken about what happened.
[Submission that the type of conduct alleged by each complainant could not be misrepresented, jumbled or misunderstood.]
That then leaves that the complainants could be dishonest, that they’re lying about their account. ... So, that final third proposition can be split, I would suggest perhaps into two subcategories, two branches from that. The first is that they were coached to lie. That their mother sat them down and somehow calculated a plan and took them through their evidence and what to say. ...
[Submission that coaching children to do a presentation is difficult, that the complainants were interviewed and cross-examined at length, that coaching the complainants to give their evidence in that way is implausible, and that there was no issue in the relationship between the applicant and the mother which would explain her coaching the complainants to lie about these allegations.]
So, coached, no and so you put that to one side. And that leaves the ... complainants concocting the story themselves, making a decision to come forward, to tell their mother on 1 July and then to come into the police station, ... go through that process and all based on a fabrication.
Well, the likelihood of that is really, ultimately, what you are here for today. Because if that is not the case, if you don’t accept that, then you look back and what you’re left with is the proposition that these complainants are telling the truth.
So, they’re the three competing propositions and why I’m ultimately going to suggest to you, once we have gone through that evidence, you will come to the conclusion, the only real conclusion open in this case, that they are telling the truth and that the accused is guilty of sexually abusing his two stepdaughters.
...
Even if you do not have those concerns with [the applicant’s] reaction [to the confrontation], if you do not see any issues that arise from how he acted, then you are still left with what the fundamental proposition is, that I said a very long time ago. This case comes down to one simple proposition and that is whether or not you are satisfied on the evidence that both [BH] and [AT] told the truth when they spoke to police and when they were cross-examined.
...
If after all of the evidence you have a doubt based on reason, you have a rational doubt, then of course you are obliged to act on that, give the benefit of the doubt to the accused and acquit.
...
In summing up, the trial Judge said:[32]
[The prosecutor], for the Crown, reminded you that he continues to bear the onus of proving beyond reasonable doubt that [the applicant] is guilty of the offences he has been charged with and that that, essentially, means that you must be satisfied beyond reasonable doubt that, depending on the charge you are considering, [BH] or [AT] is telling the truth and that the evidence is substantially accurate.
Now, [the prosecutor] submitted to you that, as a matter of logic, there were three possibilities. Given that the last one had two sub possibilities, I think it ended up being four. Those possibilities, he suggested to you were these:
[BH] and [AT] are telling the truth and their evidence is substantially accurate, ie the things that they told you about really happened.
Second possibility, they are telling the truth; that is to say they are doing their best to tell you the truth, but they are mistaken.
Thirdly, they are not telling you the truth. They are lying. And if they are lying, he identified two, I guess you would call them sub possibilities: (a) they were coached by someone to give false evidence, or (b) they made a decision by themselves to concoct a story.
Now, [the prosecutor] submitted you could safely reject all but the first possibility. [The prosecutor’s submissions were summarised.]
The applicant’s trial counsel took no issue with the prosecutor’s closing address, or with the trial Judge’s summary of it. In his closing address, trial counsel for the applicant submitted that the jury would agree that each of the complainants, the mother and the accused honestly believed and were doing their best to tell the truth, they could not all be telling the truth and giving a factually accurate account, a witness can be honest but unreliable, and it was not suggested by the applicant that the complainants had jointly concocted a story or had been coached by the mother, a person accused of such charges can only defend themselves by saying they did not do it, the applicant is innocent until the Crown proves each and every element of the offences, the applicant gave evidence and clearly and strongly denied the charges, it was not being said he had no opportunity at all to commit the offending, but any such opportunity was only for very short periods of time, if the jury do not know which version was right and which was wrong, the evidence should be put to one side as not sufficiently compelling, there were issues with the accuracy and reliability of both complainants’ evidence, there were inconsistencies and BH’s evidence in cross-examination was confusing whereas the accused’s evidence was clear, BH’s evidence was not coached and the jury would have trouble considering it fabricated, but something happened to BH and it was possible, on the basis of her evidence in cross-examination, that someone else had done it, all of which would lead to reasonable doubt that it was the applicant who did those things to her, and AT’s evidence was not compelling and came after much attention had been given to BH after she first made her complaint.[33]
The proposed appeal ground
As set out above, proposed appeal ground 2 is that the prosecutor’s closing address caused a miscarriage of justice, by undermining the onus and standard of proof by submitting to the jury that they could accept the complainants’ evidence by rejecting the suggestions they were being dishonest or unreliable.
Consideration
The applicant argued that, in this part of the closing address, the prosecutor invited the jury to reason to guilt in an impermissible way, namely telling the jury they did not need to make positive findings that the complainants were credible and reliable witnesses, and instead telling them they could act on the complainants’ accounts and convict the applicant by rejecting the suggestions they were lying or being unreliable. It was said that the closing address deflected the jury from its fundamental task of deciding whether the prosecution proved the elements of the charged offences beyond reasonable doubt. It was also said to be a reversal of the onus of proof to suggest the jury could accept a complainant’s evidence by rejecting the applicant’s case that they were lying or unreliable. It was submitted that ‘rejection of the idea that the complainants were unreliable or lying says nothing about whether the prosecution had proven beyond reasonable doubt that they were credible’. It was also said that, by repeating the prosecutor’s submissions, the trial Judge ‘reinforced’ the ‘problematic submission’ made by the prosecutor.
The applicant argued that the onus of proof was reversed if the jury were to reason to guilt using the three competing or mutually exclusive propositions because they required the jury to reason from the assumption, contrary to the presumption of innocence, that the complainants were telling the truth (the first proposition), to look for reasons why the complainants’ evidence was not reliable because they were mistaken or lying (the second and third propositions), to eliminate those reasons, and to return to, and confirm, the proposition that they were telling the truth, with the consequence that they must find the accused guilty. The proper path of reasoning was to decide, on the basis of all of the evidence in the trial, whether the jury were satisfied beyond reasonable doubt about the truth and accuracy, that is, the reliability, of the complainants’ evidence about the elements of the charged offences.
The argument rested on the principle expressed by the High Court in Hargraves v The Queen,[34] that a criminal trial is an accusatorial process in which the prosecution bears the onus of proving the guilt of the accused beyond reasonable doubt and the jury must act on the basis that the accused is presumed innocent of the acts charged until they are satisfied beyond reasonable doubt that he or she is guilty of those acts. The plurality of the High Court held (at [41]) that, these being the fundamental features of a criminal trial, it follows that the judge’s instructions to the jury must accord with them and departure from them would be a miscarriage of justice. The plurality held (at [42]) that a judge’s instructions to the jury, whether by way of legal direction or judicial commentary on the facts, must not deflect the jury’s attention from the need to be persuaded beyond reasonable doubt of the accused’s guilt before returning a verdict. The plurality went on to observe (at [43]-[45]) that the cases demonstrate that a jury’s attention can be deflected from its fundamental task in different ways. The plurality gave the examples of a trial Judge’s commenting on the failure of an accused to give evidence,[35] the questioning of the accused, in cross-examination, as to whether he could offer any reason or motive for the complainant to lie,[36] and inviting a jury to test the evidence given by an accused according to the interest that the accused has in the outcome of the trial, or suggesting that the accused’s evidence should be scrutinised more carefully than the evidence of other witnesses.[37]
The plurality held (at [46]) that the principle asks: did the judge’s instructions deflect the jury from its fundamental task of deciding whether the prosecution proved the elements of the charged offence beyond reasonable doubt? Further, whether there has been a miscarriage of justice must always require consideration of the whole of the judge’s charge to the jury and, in every case, the ultimate question must be whether, taken as a whole, the judge’s instructions to the jury deflected the jury from its proper task.
We do not accept that, taken as a whole, the prosecutor’s closing address or the trial Judge’s summing up, or both of them together, deflected the jury from its proper task because of the submission (repeated by the trial Judge) that the jury could reason by way of the three propositions.
It is axiomatic that, in a case such as this, to find the applicant guilty of any charge, the jury would have to be satisfied, beyond reasonable doubt, that the evidence of the relevant complainant as to the essential elements of that charge was reliable, that is, both honest and accurate.
Unsurprisingly then, the focus of the prosecutor’s address was on the assessment of the reliability of the complainants’ evidence. The prosecutor said that, in making that assessment, the jury should bear in mind that they were young children,[38] they were communicating about sexual matters foreign to them,[39] their evidence was affected by the way human memory works and inconsistencies in a story or between different witnesses, particularly about peripheral matters, are to be expected and do not detract from their reliability.[40]
The prosecutor said the case comes down to the simple proposition: are you (the jury) satisfied beyond a reasonable doubt about whether or not the allegations made by the complainants happened, whether they are telling the truth.[41] It is clear that the word ‘truth’ here was used in the sense of objectively true, that the things the complainants said actually happened as they had alleged. The word ‘truth’ was used to refer to the reliability of the complainants’ evidence, which requires both accuracy and honesty.
By this submission, the jury were told that they were required, before they could find the accused guilty, to make a positive finding about the reliability (the accuracy and truth) of the allegations made by the complainants.

The prosecutor went on to outline the three ‘competing propositions’.[42] The first of those was that the jury is satisfied, beyond reasonable doubt, about ‘the truth’ of the complainants’ allegations.[43] Again, it is apparent that this reference to ‘truth’ was a reference to reliability (not simply honesty), i.e. to evidence that the jury could safely act on to convict the applicant. The first proposition was not expressed as an assumption that the complainants told the truth or that their evidence was reliable. Rather, it was the positive finding the jury were required to make in order to find the applicant guilty. The other two propositions were the two things that would preclude the positive finding that the complainants’ evidence was reliable, namely that the evidence of the complainants was not accurate or was not honest. The prosecutor made submissions as to why the jury would put to one side the possibilities that the complainants’ evidence was not accurate or was not honest, and submitted that, consequently, the jury could make the positive finding that their evidence was reliable. The prosecutor then said that, once he had gone through the evidence, the jury would conclude (i.e. positively find) that the complainants were telling the truth, i.e. their evidence was reliable and could be safely acted upon.[44]
The prosecutor then went on to deal with the evidence of each complainant in relation to each count, making various submissions about the content and nature of the evidence, including its detail, the demeanour of the complainants when giving it, and whether it had the ‘ring of truth’.[45] In doing so, the prosecutor referred a few times to the ‘three propositions’. The prosecutor also submitted that, in anticipating matters that might be put by the Defence, he was not removing or shifting the burden of proof, which he said remains on the Crown to prove all elements of an offence beyond a reasonable doubt and the accused need prove nothing.[46] The prosecutor dealt with the evidence of other witnesses, which was largely complaint evidence, and then with the evidence of the accused.[47] The applicant’s denials of the offending were mentioned, as was his evidence that he had opportunity to commit the offending.[48] There was then the submission about the applicant’s response to the confrontation set out above, at the end of which the prosecutor said that the case comes down to the fundamental proposition and that is whether or not the jury are satisfied on the evidence that both complainants told the truth when they spoke to police and when they were cross-examined.[49]
When summing up, the trial Judge properly re-framed the ‘three propositions’ as ‘three possibilities’, thereby confirming that the first possibility was not an assumed starting point, and made very clear that the first possibility related to reliability, comprising both honesty and accuracy, permitting the positive finding that ‘the things that they told you about really happened’.[50]
Properly understood, the submission was that the jury needed to make, and could make, a positive finding that the complainants’ evidence was reliable because it was both accurate and honest, the ‘three propositions’ submission was not a departure from the fundamental features of a criminal trial, and did not distract the jury from their task.
The trial Judge clearly understood the submission in that way, after the applicant’s trial counsel took issue with the submission on the basis that the three possibilities did not include the possibility that someone else had committed the offending against BH.[51] As the trial Judge correctly observed, that possibility would fall within the second proposition, namely that BH’s evidence was not accurate.[52]
Ultimately, the applicant’s trial counsel did not press for any direction or instruction to be given by the trial Judge to address the prosecutor’s submission. As discussed earlier in these reasons, the failure of competent counsel to seek a particular direction from the trial Judge, or to seek a re-direction or clarification of a submission made by a party, is a relevant consideration in determining whether the absence of a direction or an asserted misdirection comprises a miscarriage of justice.
The applicant submitted that the prosecutor’s submission was particularly ‘controversial’ when the accused had given evidence on oath denying the charges, and the prosecutor did not address the jury about the accused’s evidence. It is not accurate to say the prosecutor did not address the jury about the accused’s evidence. He did address it, particularly the accused’s denials of the alleged offending, albeit dismissively. Given that the accused simply denied he committed the alleged offending, there was little that could be said about why the jury should reject his evidence.
Reliance was placed by the applicant on Douglass v The Queen.[53] The case concerned an appeal from a trial by judge sitting alone, who had found the complainant’s evidence to be truthful, but had not made a finding that her evidence was reliable. The intermediate appeal court held that the trial Judge’s acceptance of the complainant’s evidence as truthful necessarily carried with it a rejection of the appellant’s sworn evidence denying the alleged offending. The High Court held (at [13]) that accepting the complainant’s evidence as truthful was not inconsistent with the existence of a reasonable doubt as to guilt, as the judge could not convict unless satisfied that the appellant’s evidence was not reasonably possibly true. The High Court held (at [14]) that the failure to record any finding respecting the appellant’s evidence left as a possibility that the judge simply preferred the complainant’s evidence and convicted upon it applying a standard less than proof beyond reasonable doubt, which was a legal error. The High Court found it unnecessary to address the consequence of that error because the second appeal ground (insufficiency of the evidence) succeeded.
The applicant argued, on the basis of Douglass, that the prosecutor’s failure to tell the jury they could only convict the applicant if they were not satisfied his evidence about the alleged offending (his denials) was not reasonably possibly true, and to tell the jury that if they did not know where the truth lay, they should acquit, led to a departure from the fundamental features of a criminal trial, and distracted the jury from their task. The submission was that the three propositions omitted these two possibilities from the ‘universe of possibilities’ that the jury must consider before finding guilt.
We do not accept these submissions. First, Douglass does not address what a prosecutor should tell a jury in their closing address, nor what directions a trial Judge should give to a jury about reasoning to guilt in a case involving the word of a complainant (alleging certain offending) against the word of an accused (denying certain offending). The High Court said (at [12]) that it was an error for the intermediate court of appeal to view the criminal trial as reducing to a case of ‘word against word’, because that characterisation fails to recognise that the resolution of a criminal case does not depend on whether the evidence of one witness is preferred to that of another, but on whether the evidence taken as a whole proves the elements of the offence beyond reasonable doubt. The decision of the High Court was that it was an error for the intermediate court of appeal to have accepted, without any express finding that the complainant’s evidence was reliable, that the trial Judge was satisfied of the commission of the offence beyond reasonable doubt because he found the complainant’s evidence to be truthful. A prosecutor is not in the position of an intermediate court of appeal or a trial Judge. In any event, we do not accept that the effect of the prosecutor’s closing address, taken as a whole, was to submit to the jury that they should prefer the evidence of the complainants over the evidence of the accused and/or that, if they did, they could convict him of the offences.
Secondly, as set out above, the three propositions related only to the jury’s consideration of whether or not the complainants’ evidence was reliable. This part of the prosecutor’s address did not purport to cover the field of matters for the jury’s consideration before reaching a verdict.
Thirdly, the trial Judge gave directions to the jury: (i) as to the onus and standard of proof, on multiple occasions, in clear and compelling terms; and (ii) about the jury’s consideration of the applicant’s evidence. We will deal with this second aspect in addressing the third proposed ground of appeal.
In oral submissions, the applicant argued that the prosecutor’s submissions regarding BH’s evidence infringed the principle in Palmer. As set out above, Palmer was one of the examples given by the plurality in Hargraves of ways in which a jury’s attention can be deflected from its fundamental task, namely by introducing an inquiry into why the complainant would lie, which would invite the jury to accept the complainant’s evidence unless there were some demonstrated motive to lie, thereby denying that the trial is an accusatorial process in which the prosecution bears the onus of proving the offence beyond reasonable doubt. We do not accept that the prosecutor suggested to the jury that the applicant was required to demonstrate a motive to lie, or invited the jury to engage in that kind of inquiry. Rather, the prosecutor invited the jury to consider whether a child who was lying about the offending would include the kinds of details about it that BH did. That is not to deny that the trial is an accusatorial process in which the prosecution bears the onus of proving the offence beyond reasonable doubt.
During the course of his closing address, the prosecutor submitted as follows:[54]
If after all of the evidence you have a doubt based on reason, you have a rational doubt, then of course you are obliged to act on that, give the benefit of the doubt to the accused and acquit.
The applicant argued, correctly, that it is an error to instruct a jury that a reasonable doubt is a rational doubt or a doubt founded on reason in the analytical sense or by detailed mental processes.[55] This single statement, in the context of the prosecutor’s address as a whole (which otherwise referred to ‘reasonable doubt’), and the trial Judge’s summing up (which consistently referred to ‘reasonable doubt’), coupled with the high likelihood[56] that the trial Judge explained the term ‘reasonable doubt’ in the usual way in her opening address as words which do not benefit from any further definition or elaboration and have their ordinary English meaning in the application of ordinary common sense standards, was utterly unlike the trial Judge’s direction found to have effected a miscarriage of justice in Green. No miscarriage of justice was effected by this submission, either alone or in conjunction with the other matters raised by the applicant.
For all of the above reasons, we are not persuaded that the prosecutor’s closing address about the three propositions, and/or the trial Judge’s summary of it, comprised a miscarriage of justice.
Given that full argument was heard in relation to this ground of appeal, we would grant leave to appeal on this proposed ground. However, the ground of appeal is not made out.
Proposed ground 3 – Failure to give a complete Liberato direction
What happened at trial
The trial Judge’s summing up included the following:[57]
Now, this case is what is sometimes referred to by lawyers as a case of ‘oath on oath’. The only evidence about what happened in relation to each charge comes from the child complainant, that is [BH] or [AT] as the case may be, depending on the count, and from the accused, [the applicant].
Now, it is important to remember that at all times the Crown bears the onus of proving each and every element of the offence.
So you do not just say to yourself, ‘Oh, we’ve heard two different versions’ or ‘We’ve heard two different accounts, who do we believe?’ It is not that balancing exercise. The Crown has to prove each and every element of the charge beyond reasonable doubt. So the accused ... has taken the course of giving evidence on oath. By law he is not required to do this. He is entitled to sit in the dock and say nothing and if he did that he could not be questioned about the matter and no adverse inference could be drawn against him if he had exercised that right. By going into the witness box he exposed himself to the risk of cross-examination by the Crown prosecutor.
Now, if you see fit, you are entitled to give him some credit for this. It is a matter for you to decide whether your estimation of [the applicant] has been improved by the fact that he got into the witness box and exposed himself to that risk of cross-examination when by law he did not have to do so.
Now, having said all that, when considering his evidence you can accept it or reject it in whole or in part the same as every other witness.
If you decide to reject his evidence or the evidence going to the essential issues in the case, that by itself, is not enough for you to convict him. You still have to be satisfied on the other evidence. The Crown still has to prove his guilt beyond reasonable doubt on the basis of the evidence that has been presented to you.
You cannot turn his denials into positive evidence against him if you see what I mean. You still have to be satisfied beyond reasonable doubt as to the truth of [BH’s] evidence concerning the essential elements of counts 1 to 8 and of [AT’s] evidence concerning the essential elements of count 9. If you have any reasonable doubt about that evidence or about the evidence in relation to any particular charge, you must bring in a verdict of not guilty on that charge.
Having heard all the evidence, you might not be sure where the truth lies. The accused does not have to persuade you of his innocence. If you do not know where the truth lies – if there is a reasonable doubt in your minds, he is entitled to the benefit of that doubt.
Again, the applicant’s trial counsel did not raise any issue about the adequacy of this direction with the trial Judge.
Proposed appeal ground
The third proposed ground of appeal is that the trial Judge failed to give a proper Liberato direction. It was argued that the second limb of the direction, as enunciated by the High Court in De Silva v The Queen,[58] was not given. That limb appears in the following passage of that judgment (at [12]):
... [I]t is preferable that a Liberato direction be framed along the following lines: (i) if you believe the accused’s evidence ... you must acquit; (ii) if you do not accept that evidence ... but you consider that it might be true, you must acquit; and (iii) if you do not believe the accused’s evidence ... you should put that evidence ... to one side. The question will remain: has the prosecution, on the basis of evidence that you do accept, proved the guilt of the accused beyond reasonable doubt? [emphasis added]
Consideration
At the outset, it is important to note that the judgment in De Silva was delivered on 13 December 2019, approximately three months after the trial Judge delivered her summing up in this matter on 20 September 2019. It is therefore unsurprising that the trial Judge did not use this precise formulation. Nonetheless, we consider that she did convey the essential components of a Liberato direction consistent with then contemporary High Court jurisprudence as confirmed in De Silva.
As the majority in De Silva pointed out (at [7]), the source of the Liberato direction was the following observations of Brennan J (in dissent):[59]
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 aske 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.
After noting (at [9]) that, in Liberato, Deane J also had concerns about the confusion that may arise where a direction is expressed in terms of a choice between conflicting accounts, the majority in De Silva went on to refer to the subsequent clarification provided by Gaudron J and Gummow and Hayne JJ in Murray v The Queen as follows:[60]
...[I]n Murray v R, this Court made clear that it is never appropriate for a trial judge to frame the issue for the jury’s determination as involving a choice between conflicting prosecution and defence evidence: in a criminal trial the issue is always whether the prosecution has proved the elements of the offence beyond reasonable doubt. In light of Murray, the occasions on which a jury will be invited to approach their task as involving a choice between prosecution and defence evidence should be few.
It can be seen from the trial Judge’s direction set out above that her Honour complied with all of these instructions. She did not express the jury’s task as one involving a choice between conflicting accounts. Indeed, she expressly stated it was not a balancing exercise. She also said that they could not turn the applicant’s denials into positive evidence against him. Most importantly, the trial Judge repeated several times that the prosecution had to prove each element of its case beyond reasonable doubt based on the other evidence in the case.
Moreover, subsequent to this direction, the trial Judge went through each of the elements of each charge and each of the circumstances of aggravation. In doing so, the trial Judge told the jury three times that the applicant had given evidence denying that he had done what the complainants said he had and said at least 14 times that the prosecution had to prove all of those elements of the charges against the applicant beyond reasonable doubt.
As to the second limb of the Liberato direction, while the trial Judge did not use its precise terminology (for the reasons already discussed), she did convey its essence when, at the conclusion of the direction set out above, she said:
Having heard all the evidence, you might not be sure where the truth lies. If you do not know where the truth lies – if there is a reasonable doubt in your minds, he is entitled to the benefit of that doubt.
The applicant argued the trial Judge’s direction was not equivalent to the second limb of Liberato as it did not specifically refer to the applicant’s evidence and a direction in this form had been deprecated in some authorities. No such authority was cited, but the decision in The Queen v Calides[61] was said to be the source of this form of direction.
In Calides, the Full Court of the Supreme Court of South Australia overturned a conviction of an accused because the trial Judge told the jury a number of times that it was for them to decide where the truth lies, which overlooked the possibility that they were unable to say where the truth lies, which possibility would require an acquittal.
As to the submission that a ‘Calides direction’ has been ‘deprecated’ in some authorities, the only authority that research has identified that might possibly be described that way is The Queen v Lavery.[62] That case was an appeal against convictions for six counts of unlawful sexual intercourse, with the prosecution case essentially resting on the complainant’s evidence and the defence case essentially resting on the accused’s evidence. The appellant argued that the trial Judge’s summing up, which included a Calides direction, common in South Australian ‘oath against oath’ cases, was not in accordance with the law because the jury were invited to ask the improper question: Who is to be believed? The trial Judge had said to the jury that they may be left in any one of three situations: (1) satisfied beyond reasonable doubt of the prosecution evidence, in which case the verdict would be guilty; (2) persuaded by the appellant’s evidence, in which case the verdict would be not guilty; or (3) unable to decide where the truth lies, in which case the prosecution would not have proven its case beyond reasonable doubt and the verdict would be not guilty.

Nicholson J (Kelly and Peek JJ agreeing) observed (at [35]) that the question in the case was whether or not the trial Judge, by the directions given, satisfied the requirements of and achieved the effect of the Liberato injunction. The appellant’s submission was (at [36]) that the trial Judge failed to give a Liberato direction, which gave rise to a substantial miscarriage of justice, which was exacerbated by leaving the jury with a Calides type direction at the end of the summing up.
Nicholson J observed (at [38]) that a Calides direction appeared to be peculiar to South Australia, although it did appear to also be used in the Northern Territory Magistrates Court. It had been used in South Australia for many years and was in the benchbook for trial Judges in South Australia. Nicholson J held (at [39]) that a Calides direction logically and correctly covered the field of possible approaches to the evidence and was not an incorrect description of the jury’s task, but Nicholson J was concerned that it might, if used uncritically, occasionally be productive of confusion in the minds of some jury members. Nicholson J set out (at [39]) why that might be so and concluded (at [40]) that the giving of a Calides direction should be cautiously entered upon and only after carefully crafting it to fit with the summing up as a whole, including, in particular, other directions concerning onus and standard of proof, and it should not simply be uncritically tacked on at the end of a summing up as some sort of final ‘fail safe’ explanation of the jury’s task.
Nicholson J held (at [49]) that, notwithstanding its potential to confuse, the Calides formulation, properly employed, is a time-honoured method in South Australia of satisfying the concern stated in Liberato and (at [50]) that ultimately the judge must make it clear that nothing short of proof beyond reasonable doubt will do. His Honour held that when the trial Judge’s summing up as a whole and counsels’ addresses were considered, even though the trial Judge did not tell the jury that even if it was to reject the applicant’s account, it still must go on to consider separately whether or not it accepted the prosecution proofs beyond reasonable doubt or that by going into the witness box and giving evidence on oath the appellant did not thereby assume any onus of proof, which always remained with the prosecution, the jury should have retired with a proper appreciation of its task. Further (at [51]), at no time throughout the summing up, was the jury invited to choose between the two competing versions and the burden of the summing up was always to the contrary. No miscarriage of justice was found to have occurred.
In that case, no direction was given in the form of the second limb or the third limb of Liberato, but a Calides direction was given. Nevertheless, the directions as given were held not to give rise to a miscarriage of justice.
We do not consider that the decision in Calides assists the applicant or otherwise affects the conclusions we reach.
Considered as a whole, we are satisfied that, by the end of the trial Judge’s summing up, there was no perceptible risk that the jury might be left with the impression that the applicant’s evidence would only give rise to a reasonable doubt if they believed it to be truthful, or that a preference for the evidence of the complainants sufficed to establish guilt. So much is confirmed by the failure of the applicant’s trial counsel to seek any further or re-direction in the form now said to be necessary, namely of the second limb of a Liberato direction as set out in De Silva.
For all of the above reasons, we are not persuaded that the trial Judge’s summing up comprised a miscarriage of justice.
Given that full argument was heard in relation to this ground of appeal, we will grant leave to appeal on this proposed ground. However, the ground of appeal is not made out.
Disposition
Leave to appeal in respect of the three grounds of appeal pressed at the hearing is granted.
The appeal is dismissed.

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[1] Liberato v The Queen (1985) 159 CLR 507 (‘Liberato’).

[2] MLW v The Queen [2022] NTCCA 2.

[3] HCF v The Queen (2023) 97 ALJR 978 (‘HCF’).

[4] Zhou v The Queen [2021] NSWCCA 278 (‘Zhou’) at [22].

[5] Weiss v The Queen (2005) 224 CLR 300.

[6]Transcript, pp 27-28. The appeal is from the decision of the Queensland Court of Appeal in The King v MDP [2023] QCA 134.

[7] Orreal v The Queen (2021) 274 CLR 630 (‘Orreal’).

[8] Craig v The Queen (2018) 264 CLR 202 (‘Craig’).

[9]Citing Nudd v The Queen (2006) 80 ALJR 614 at [9]; The Queen v Baden-Clay (2016) 258 CLR 308 at [48]; Hamilton (a pseudonym) v The Queen (2016) 274 CLR 531 at [54].

[10] Citing Craig at [23].

[11] TKWJ v The Queen (2002) 212 CLR 124.

[12] Ibid at [8].

[13]See, for example, Kramer v The King [2023] NSWCCA 152 at [78] per Davies J (Hamill and McNaughton JJ agreeing), citing The Queen v Dookheea (2017) 262 CLR 402 at [37], [39] per Kiefel CJ, Bell, Gageler, Keane, Nettle and Edelman JJ; ARS v The Queen [2011] NSWCCA 266 at [148] per Bathurst CJ (James and Johnson JJ agreeing); Greenhaigh v The Queen [2017] NSWCCA 94 at [42] per Basten JA (Button and N Adams JJ agreeing).

[14] AB 81-82.

[15] AB 82.

[16] AB 116.

[17] AB 126.

[18] AB 127-128.

[19] AB 128-129.

[20] AB 152-153.

[21] AB 167.

[22] AB 167-168.

[23] AB 209.

[24]Flood-Smith v The Queen [2018] NSWCCA 103 at [77] per Payne JA (Garling and Wright JJ agreeing), cited with approval in Kramer v The King [2023] NSWCCA 152 at [102] per Davies J (Hamill and McNaughton JJ agreeing).

[25]See Carr v The Queen (1988) 165 CLR 314 at 324-325 per Brennan J. This passage has been cited and followed many times, for example, in De Silva v The Queen (2019) 268 CLR 57 at [11] per Nettle J; Heathcote v The King [2023] SASCA 68 at [44] and in KHL v Western Australia [2022] WASCA 122 at [42] per Buss P and at [66] per Beech JA.

[26] Barca v The Queen (1975) 133 CLR 82 (‘Barca’) at [16] (per Gibbs, Stephen and Mason JJ).

[27] The Queen v MMJ (2006) 166 A Crim R 501.

[28] The Queen v BEC [2023] QCA 154.

[29]Hewitt v The King [2021] NSWCCA 227 at [76] per Payne JA (Garling and Wright JJ agreeing).

[30]R v Salahattin [1983] 1 VR 521; R v Alexander [1994] 2 VR 249; R v Gallagher [1998] 2 VR 249; R v Nguyen (2001) 118 A Crim R 479; R v MMJ (2006) 166 A Crim R 501; R v Lester [2010] QCA 152.

[31] AB 139-140, 152, 153.

[32] AB 205.

[33] AB 165-172.

[34]Hargraves v The Queen (2011) 245 CLR 257 (‘Hargraves’) at [38]-[41] per French CJ, Gummow, Hayne, Crennan, Kiefel and Bell JJ.

[35] Citing RPS v The Queen (2000) 199 CLR 620.

[36] Citing Palmer v The Queen (1998) 199 CLR 1 (‘Palmer’).

[37] Citing Robinson v The Queen (1991) 180 CLR 531.

[38] AB 137.

[39] Ibid.

[40] AB 138-139.

[41] AB 139.

[42] AB 139-140.

[43] AB 139.

[44] AB 140.

[45] AB 140-150.

[46] AB 148.

[47] AB 150-152.

[48] AB 152.

[49] AB 152-153.

[50] AB 205.

[51] AB 152.

[52] Ibid.

[53] Douglass v The Queen (2012) 86 ALJR 1086 (‘Douglass’).

[54] AB153.

[55]Green v The Queen (1971) 126 CLR 28 (‘Green’) at 33 per Barwick CJ, McTiernan and Owen JJ, citing Thomas v The Queen (1960) 102 CLR 584 at 606 per Windeyer J.

[56] The trial Judge’s opening address was not transcribed.

[57] AB 193-194.

[58] De Silva v The Queen (2019) 268 CLR 57 (‘De Silva’) at [11].

[59] Liberato at 515.

[60]Murray v The Queen (2002) 211 CLR 193 at [23] and [57] respectively. See also Douglass at [12].

[61] The Queen v Calides (1983) 34 SASR 355 (‘Calides’).

[62] The Queen v Lavery (2013) 229 A Crim R 559.

[2024] NTCCA 11

21 October 2024

Key Legal Topics

Areas of Law

Criminal Law

Evidence

Legal Concepts

Appeal

Charge

Procedural Fairness