Gahani v The Queen

CITATION:Gahani v The Queen [2022] NTCCA 13
PARTIES:GAHANI, Tatenda

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 16 of 2021 (21900849)
DELIVERED:  2 September 2022
HEARING DATE:  3 June 2022
JUDGMENT OF:  Southwood, Kelly and Barr JJ

CATCHWORDS:
APPEAL against conviction on a charge of sexual intercourse without consent – whether trial judge erred in directions regarding the assessment of the accused’s evidence - comment by trial judge “You need to give consideration to whether you think the witness was attempting to protect either himself or herself or someone else when giving evidence. This is a question which arises most particularly in relation to your assessment of the evidence given by the accused.” – this comment impermissibly suggested to the jury that they should scrutinise the evidence of the accused more carefully than other witnesses because he had a particular interest in the outcome of the trial – subject to application of the proviso appeal on this ground should be allowed
APPEAL against conviction – whether trial judge erred in directions regarding the assessment of the accused’s evidence - comment by trial judge, “On the accused’s account there was consensual intercourse. You need to give careful consideration to that account to determine whether you accept it as credible and reliable or whether you think it is a story that he’s fabricated to deflect or contradict LG’s allegation of sexual intercourse without consent.” – this comment did not impermissibly suggest to the jury that they should scrutinise the evidence of the accused more carefully than other witnesses because he had a particular interest in the outcome of the trial – no error demonstrated
APPEAL against conviction – whether trial judge erred in admitting the evidence of a pretext call by the complainant – pretext call contained implied admissions by failure to respond to allegations of rape and explicit verbal admission – “There is no reason,” in response to the question, “Why did you rape me?” – admissions not inadmissible by reason of Evidence (National Uniform Legislation) Act 2011 (NT) (“UEA”) s 85 - the implied admissions were made in circumstances that make it unlikely that the truth of the admissions were adversely affected – admissions not inadmissible by virtue of UEA s 90 – admission of pretext call not unfair to the appellant – appellant did not identify any miscarriage of the exercise of the discretion by the trial judge – evidence of pretext call obtained in contravention of an Australian law – police officer pressed record rather than complainant – no warrant obtained – trial judge not in error in admitting evidence under UEA s 138(1) - the desirability of admitting the evidence outweighed the undesirability of admitting evidence that has been obtained in the way in which the evidence was obtained
APPEAL against conviction – whether the trial judge erred in failing to provide sufficient directions to the jury regarding the use that may be made of purported implicit admissions through post offence conduct – defence counsel at trial did not seek an Edwards direction – general principles applicable to the effect on appeal of conduct in the trial below considered - no error demonstrated – rational forensic reason for not seeking such a direction – trial judge did not give a warning pursuant to UEA s 165 of possible unreliability of admissions – rational forensic reasons for not seeking such a direction at trial – leave to appeal on these grounds under Rule 86.08 of the Supreme Court Rules not given
APPEAL against conviction – whether trial judge erred in failing to give a direction pursuant to UEA s 165B regarding the forensic disadvantage caused to the appellant as a result of delay in the matter being reported to police – whether the trial judge ought to have been satisfied that as a result of the loss of CCTV footage between the time of the alleged offence and the date of the trial, the appellant suffered “a significant forensic disadvantage because of the consequences of delay” – no error by trial judge demonstrated
APPEAL against conviction – application of the proviso in s 410(2) of the Criminal Code – principles relating to the exercise of the proviso considered – this not a case that turned solely or even mainly on issues of credit – the error made was not such as would prevent the appellate court from being able to assess whether guilt was proved to the criminal standard – the error made was not a procedural error or irregularity which was such a departure from the essential requirements of law that it went to the root of the proceeding – the trial judge’s brief mis-statement in the context of the full charge to the jury was not such a fundamental error – no practical, as distinct from theoretical possibility that the jury’s assessment of the appellant’s guilt was materially affected by the impugned direction - on the whole of the evidence properly admitted in the trial appeal court convinced beyond reasonable doubt of the guilt of the accused on the charge on the indictment – proviso applied - appeal dismissed
Criminal Code Act 1983 (NT), s 410, s 411, s 411(1), s 411(2)
Evidence (National Uniform Legislation) Act 2011 (NT), s 81, s 85; s 90; s 138; s 138(1), s 138(3), s 138(3)(b), s 138(3)(e), s 138(3)(f), s 138(3)(g), s 138(3)(h), s 165, s 165B, s 165B(4)
Supreme Court Rules 1987 (NT), Rule 86.08
International Covenant on Civil and Political Rights (Multilateral) No. 14668
Anderson v Tasmania [2020] TASCCA 11; Binns v The Queen [2017] NSWCCA 280; Carr v The Queen [1988] HCA 47; Cesan v The Queen (2008) 236 CLR 358; DC v The Queen [2022] NTCCA 8; Dhanhoa v The Queen (2003) 217 CLR 1; Ella v The Queen (1991) 103 FLR 8; Evans v The Queen (2007) 235 CLR 521, [2007] HCA 59; Hargraves v The Queen [2011] HCA 44; Hofer v The Queen [2021] HCA 36; JB v Northern Territory (2019) 343 FLR 41; Marsh v The Queen [2018] ACTCA 55; MLS v State of Western Australia [2018] WASCO 56; Mostert v Durban Roodepoort Deep (Ltd) [2004] WASCA 309; Multicon Engineering Pty Ltd v Federal Airports Corporation (1997) 47 NSWLR 631; Munroe v The Queen [2014] ACTCA 11; Palmer v The Queen [1998] HCA 2; Papakosmas v The Queen [1999] HCA 37, 196 CLR 297; PT v The Queen [2011] VSCA 43; R v Birks (1990) 19 NSWLR 677, (1990) 48 A Crim R 385; R v Calides (1983) 34 SASR 355; R v Cant [2001] NTSC 36; R v Cassebohm (2011) 109 SASR 465, [2011] SASCFC 29; R v Ciantar [2006] VSCA 263; R v Clarke and Johnstone [1986] VicRp 64, [1986] VR 643; R v Ditroia & Tucci [1981] VR 247 (CCA); R v Gallagher [1998] 2 VR 671; R v GAM [2003] VSCA 185; R v Jesson [2009] NTSC 13; R v Lieske [2006] ACTSC 97; R v Mahoney [2000] NSWCCA 256, 114 A Crim R 130; R v MMJ [2006] VSCA 226; R v Ryan [2013] NSWCCA 316; R v Tait & Bartley (1979) 24 ALR 473; R v Tripodina & Anor (1988) 35 A Crim R 183; R v XY [2013] NSWCCA 121; R v Wright [1999] VSCA 145, [1999] 3 VR 355; Ridgeway v The Queen [1995] HCA 66; Robbins (a Pseudonym) v The Queen [2017] VSCA 288; Robinson v The Queen (No 2) [1991] HCA 38, (1991) 180 CLR 531; Shaw v The Queen (1952) 85 CLR 365; Stafford v R (1993) 67 ALJR 510; Twentyman v The Queen [2022] NTCCA 11; The Queen v Soma (2003) 212 CLR 299; The Queen v TA [2017] NTSC 46; Tomlinson v R [2022] NSWCCA 16; University of Wollongong v Metwally (No 2) (1985) 59 ALJR 481; Weiss v The Queen [2005] HCA 81, (2005) 224 CLR 300; Wise v The Queen [2019] NTCCA 10, referred to
REPRESENTATION:
Counsel:
Appellant:N Redmond
Respondent:  V Engel
Solicitors:
Appellant:Northern Territory Legal Aid Commission
Respondent:  Director of Public Prosecutions
Judgment category classification:    B
Number of pages:  93

IN THE COURT OF CRIMINAL APPEAL
OF THE NORTHERN TERRITORY
OF AUSTRALIA
AT DARWIN
Gahani v The Queen [2022] NTCCA 13

No. CA 16 of 2021 (21900849)

BETWEEN:

TATENDA GAHANI

Appellant

AND:

THE QUEEN

Respondent

CORAM: THE COURT
REASONS FOR JUDGMENT
(Delivered 2 September 2022)

On 31 August 2021 the appellant was found guilty, following a trial by jury, of one count of having sexual intercourse with LG without her consent, knowing, or being reckless, as to the lack of consent. The jury verdict was unanimous.
The Crown Case
The complainant, LG is the appellant’s niece. LG’s father, VG, is the appellant’s older brother. At the time of the alleged offence, the appellant was living with VG and his wife, NG (LG’s step-mother) and family in Alice Springs. At the time of the relevant events, LG was 22 and the appellant was 34.
On the night of 28 January 2018 LG and the appellant were together drinking, first at Bojangles nightclub in Alice Springs and then at the Casino. The appellant had LG’s mobile phone and bank card and he bought her Smirnoff double blacks and shots of tequila using her bank card.
LG was not a seasoned drinker. She became intoxicated and fell asleep on a couch inside the Casino. Because of that, security staff escorted her from the premises. Once outside, LG vomited on the ground and got vomit on herself.
The appellant took LG to the nearby Convention Centre where she was passing in and out of consciousness.
LG woke up to the appellant touching her breasts and she told him to stop. The appellant then flipped LG onto her stomach and pulled down her jeggings from behind. Then he lay on top of her and had penile vaginal intercourse with her. LG protested both verbally and physically. The appellant pinned her arms above her head and continued to have sexual intercourse with her. At this time LG was crying.
Afterwards, the appellant and LG went home. When they got home, they knocked on the window of the bedroom of one of LG’s sisters. The sister, JG, opened the back door. She saw that LG was upset and didn’t want to speak. The appellant tried to touch LG and, in JG’s presence LG said, “Don’t touch me.”
LG then went straight to bed wearing the vomit-stained clothes she had on.
At about 7.30 the next morning, LG sent a number of text messages to her father, VG. She explained that something had happened, that she wanted to speak to him, and that she wanted to kill herself at that time.
VG went into LG’s bedroom and saw that she was still wearing the clothes she had worn to the Casino the night before. He noticed that LG had spots of vomit on her shirt. LG was crying and she said, “Dad, your brother raped me when I was drunk.”
VG marched the appellant and LG out of the house so that they could speak away from the other children and the three of them stood in the driveway.
VG asked LG, “What happened?” and LG replied, “Your brother slept with me. He raped me. He took advantage of me at the Casino.”
VG turned to the appellant and said, “Is this true? The appellant remained silent and would not look at VG.
LG was crying hysterically so her father took her back into her bedroom. He went back outside and again said to the appellant, “Is it true?”
The appellant told VG it was not true and that LG didn’t know what had happened because she was too drunk. He said, “Maybe someone else did this to her.”
VG told the appellant that they had to talk to LG again and they both went into her room. VG asked his daughter to explain what had happened and she again told him that the appellant had had non-consensual intercourse with her.
VG was becoming upset because the appellant would not look him in the eye and walked the appellant back outside.
At this time, the appellant gave the following account. He said that he was actually protecting LG at the Casino, that he had carried LG to the Convention Centre because she had been sick, that he left her there and went back inside the Casino to continue drinking. He said that something might have happened, there were a lot of other people around, and that it was not him.
VG said he wanted to see where all this had happened and the appellant agreed to show him. They went to the Convention Centre and the appellant showed VG where he said he had left LG on the steps. VG again asked the appellant if he was sure it was not him and the appellant said, “No, it wasn’t me. I just left her there.”
VG called his wife, NG (LG’s step-mother). He was crying and upset and told her that the appellant had raped his daughter. NG told him not to do something he’d regret and to wait until she finished work at the hospital at 2.00 pm that day.
When NG returned home from work, she called VG, LG and the appellant into the master bedroom. She asked the appellant if it was true. The appellant looked at her blankly. LG was crying and she hit the appellant. NG took hold of LG and told the appellant that he had to tell her what had happened. She asked her husband to leave the room and he did so.
LG asked the appellant, “What if I get pregnant?” and the accused said, “You won’t get pregnant.” LG asked him if he used a condom, and the appellant said he had just used his fingers. LG said, “It was not your fingers,” and the appellant repeated, “You won’t get pregnant.”
LG demanded that the appellant say what he had done to her in front of her step-mother. The appellant kneeled and said, “Yes, I penetrated you.” LG asked him, “Why did you do this?” and the appellant said, “I don’t know. I was drunk.” Then he offered to pay for counselling.
NG called VG back into the room and told him what had been said. VG and NG told the appellant to leave their home and a short time later they drove him to the Diplomat Hotel.
Later that afternoon, NG discouraged LG from making a formal complaint to the police. She said that it would bring shame and embarrassment on the family. Also, the appellant had not yet been granted permanent residency in Australia and he had a nine year old daughter living in Australia. LG succumbed to the pressure and did not report the matter to police at that time.
Two months later, on 28 March 2018, LG went to her church and spoke to the pastor. She told him what had happened and, as he was obliged to do under the mandatory reporting obligations, the pastor notified the police.
VG and NG continued to discourage LG from reporting the matter to police. Police attended the church to talk to LG in the presence of the pastor and her father and step-mother. She denied that the accused had sexually assaulted her.
In about August 2018, the appellant was in hospital being treated for tuberculosis. He asked VG to bring LG to the hospital so he could apologise to her. VG told the appellant not to contact LG.
On 6 December 2018, LG went to the Alice Springs police station and made a formal report to police. She participated in an 80 minute recorded interview with police.
Five days later, on 11 December 2018, LG conducted a pretext telephone call from the police station in which she put the allegation to him while the police recorded the conversation.
During the pretext call, LG said numerous times, “Why did you rape me?” The appellant did not deny the accusation. At times he was silent. At one point, when pressed, he said, “Because, to be honest, there is no reason.” LG said to the appellant that he had never even apologised to her and the appellant said, “In terms of apologising and everything, right, I was going to apologise but for now, I was told I must – at this point in time, I must stay away from apology.”
After the pretext call, police arrested and charged the appellant.
The complainant’s evidence
LG participated in a recorded police interview. In summary, her evidence was that her Dad dropped the two of them at Bojangles that night. She was waiting for her friend but she didn’t show up. Then she said she was going to the Casino. She and the appellant went to the Casino and while they were waiting for the friend, the appellant was buying her drinks. She didn’t drink before. She started drinking when she came here (to Australia). The appellant took her phone because he said she was going to lose it. He put her phone in his pocket and kept buying her drinks. The next thing she knew, security woke her up and they told her she had to leave the Casino and she could come back after 24 hours. She was passed out and that is not allowed. Then she went outside and started throwing up. She sat in the entrance to the Casino and her friend started calling her. The appellant answered the phone and then her friend came out. The friend tried to get LG back into the Casino but she couldn’t because LG had passed out in the Casino. The friend told the appellant to take LG home. He said he would and then the friend left. LG was still sitting on the ground. Then after that the appellant lifted her up. Then he put her down. She doesn’t know where she was because she was too drunk. And then he kept looking at her and then after some time he started touching her. She asked him what he was doing and he said he was just checking if she was OK. She told him to stop it, she didn’t like it. She was sleeping face upwards. Then he flipped her over and then he tried to pull down her grey jeggings and she told him to stop. Then he put his hands inside her jeggings. She was wearing a body suit so he tried to “unpin” it but he couldn’t. (Later she said she had been wearing a pad.) Then she told him to stop. She started pushing him and then he told her that everything will be OK. And then the next thing she felt something inside her. There was penetration. She wasn’t a virgin and she knows what a penis feels like so she told him to stop it. And then he kept on doing it. (Later in the interview when asked for further details she said that the appellant said, “No, I’ll be done soon, I’ll be done soon. Don’t worry, I’ll be done soon.”) And then he got off her. She told him she wanted to go home and then she told him she wanted to call her Dad and he said her Dad was sleeping. He got a taxi and got her into the taxi and he was trying to hug her and she pushed him away. When they got home he asked to talk to her and she said, “No.” She went to her room and she was in shock. She couldn’t believe what he had done to her. The next morning she woke up early and texted her Dad.
Then she spoke about telling her father and step-mother what had happened and the various things the appellant had said in response, including denying that he had done anything; saying he had used protection; saying he had just used his fingers; saying he hadn’t done anything, maybe it was someone else; and then finally saying, “OK, fine, I did it but I was drunk.”
Other evidence in the Crown case
The friend, TG’s evidence
The friend, TG, gave evidence that broadly speaking aligned with LG’s evidence at least in some respects. She said that she and LG had arranged to meet at Bojangles. She spoke to LG on the phone while she was at Bojangles and she seemed drunk. Her words were a bit slurred. LG told her that her cousin (the appellant) was with her and they would take a taxi to the Casino. TG ended up going straight to the Casino. She called LG when she got to the Casino at 10.30 or 11.00 and then met up with her. When she met up with her, LG was already too drunk to stand. She asked LG how she got so drunk so early in the night and LG said the cousin had been buying her shots. LG was stumbling and the friend couldn’t make out what she was saying half the time. The friend was surprised because she had hung out with LG before and she doesn’t really drink alcohol like that. The cousin did not look drunk. He appeared completely sober. He was fine. She and LG went outside together to get some fresh air. They sat outside talking. When they went back inside the security guard kicked LG out because she was too drunk. They all walked outside. The cousin was carrying LG outside. They walked to where the taxis were. They were planning on getting a taxi. TG was going to go with them in case the appellant needed help but he said, “We will get a taxi home. You stay. We just got here. It’s not that far. There’s no need for you to come with us.” She thought LG was fine – she was with her cousin. Then LG and the cousin left in the taxi. (The prosecutor had leave to cross-examine her about that and established that the first time she was asked to recall what had happened was about two and a half years after the event. In her statement to police, she said that LG had told her the taxi stopped half way home and that is where the assault took place.)
The father, VG’s evidence

VG gave evidence about the things LG told him the next day, essentially that the appellant had raped her – had taken advantage of her when she was drunk and had sex with her at the Casino. He said that he asked the appellant if what LG had said was true and he didn’t say anything. He just stared at him. Later, he said he didn’t do it. VG said the appellant told him that LG had vomited and he had to take her out to get some fresh air and that he left her on the stairs unattended. Then he asked the appellant to show him where this had occurred and they drove to the Convention Centre (which he called the civic centre). When they were there, VG asked the appellant, “Are you sure what you are saying?” and said to him that there should be cameras facing the stairs and the appellant didn’t answer him. He kept quiet. VG also said that when his wife came home from work that afternoon he left the room while his wife spoke to LG and the appellant and that afterwards his wife told him that the appellant had admitted having sex with LG saying that at first he inserted his finger, and then noticed that LG was on her period and then he used a condom. VG also gave evidence about family pressure from the appellant’s mother in particular not to put the appellant in gaol.
The step-mother, NG’s evidence
NG gave evidence of receiving a phone call at work from her husband saying that the appellant had raped LG and text messages from LG saying she wanted to kill herself. She also gave evidence that LG had told her the appellant had raped her on the stairs of the Convention Centre. She gave evidence of the conversation in the bedroom after VG had left the room and said that the appellant had said he used his fingers. She said he had then acknowledged that he had penetrated LG. He said, “Yes, I did it but you will not get pregnant.” She described LG’s clothing, and said that LG was having her period at the time. When the appellant denied that he had raped her, LG said she had not changed her clothing and that she would take her clothing to the police. It was after that that the appellant admitted penetrating LG.
The appellant’s evidence
The appellant gave evidence at the trial. He gave evidence of several other occasions in which he had been out with LG and she had been drinking. He said that when they were at Bojangles LG gave him her bank card and cell phone because she didn’t have pockets and she wasn’t carrying a handbag. There was some evidence about who paid for drinks. He said he doesn’t know what she was drinking because she was just requesting what she wanted to drink and he was just supplying what she wanted to drink using her bank card.
They were at the Casino or The Juicy Rump until the early hours of the morning drinking and dancing. LG ended up going to sit where there were chairs and tables. He was on the dance floor, talking to other people. He saw a security guy approaching LG and he went over to enquire what was going on. The security guy said he was evicting LG.
He followed LG outside. LG was walking by herself, and the security guys were walking by themselves. After that, they stood in front of the main entrance of the Casino, talking. LG started vomiting. She stated that she really wanted to see her friend since it was her friend’s birthday. She called her friend on the phone.
After that, they decided to go to the stairs of the Convention Centre. It was LG’s advice that they needed to go to the Convention Centre and get some fresh air and sit, because she said she can’t go without seeing her friend. They walked from the main entrance of the Casino to the stairs of the Convention Centre. At the mid-point, there’s a lawn. They were talking and laughing. He lifted her up, only for a step or two, and then put her down, and they continued walking to the stairs of the Convention Centre. They sat down, and started talking. She was constantly on her phone, checking on her friend.
After a moment they were sitting there, and LG alerted him that her friend was in the Casino. And then they walked back to the main entrance of the Casino. When they got to the main entrance they met the friend. The friend was already in the Casino and they started talking. They explained to the friend that they had been evicted from the Casino. They decided that, since it was the friend’s birthday party, to go back in the Casino using the gaming entrance. They walked into the Casino but unfortunately they met the security guy who chased LG away. Everyone tried to reason with him, including LG. She was reasoning with him, alerting him that she’s not drunk, she will be able to go back, she’s normal.
The friend had other friends inside the Casino, so she decided to go back. The appellant and LG stood outside, talking. That’s when LG stated that she needed some air and asked can they go back and sit, and then after that they could take a taxi back home.
They walked to the stairs of the Convention Centre. He sat on a concrete slab on the stairs. LG came and sat next to him. She was leaning on him and he put his hand on her shoulder. She was behaving funny. She started touching him. Firstly she started touching him on the chest, and then on his genitals on the outside of his clothing. He brushed her hands off and then she stopped.
They started talking and then after that, she continued it again. She continued touching him. And then, at some point, when she was doing that, she came very close to him. First she bought her face with his, as if maybe attempting to kiss, or something like that. He responded by brushing her off.
She took a small break and then she started again touching him, on his genitals. When she started touching him on his genitals, he thinks it was a reflex action in a way, and he touched her vaginal area from the outside. After that, she started again, coming on him, touching again. She just opened his zip and started touching his genitals. That’s when she suddenly started performing oral sex on him. She put her lips on his penis. That’s when he got an erection and before he knew it, he just saw she was on top of him, and then that’s when he realised that there was penetration.
He said he did not move LG’s clothing to enable the penetration and he did not change position. He was still sitting. It lasted a minute he thinks, or a matter of seconds. Then he just pushed her away. And then she stood a bit of a distance from him. And then that’s when he put back his zip. When he did so, LG was just quiet, and then she came and sat next to him again.
And then, at that point in time, he took a nap. He was leaning on the wall, and then he just took a nap. After that, she woke him up and said, “Let’s go,” and they walked through the entrance of the Casino, so that they could get a cab to go home. They took a taxi, and then went home straight.
He said he was shocked when confronted with the allegation and denied saying to VG that he had left her on the stairs, but he did agree that VG had pointed out the CCTV cameras at the Convention Centre. He denied saying he had used his fingers or used protection or making any other admissions or inconsistent statements. The reference to an apology in the pretext call, he said, was an apology for having sex with her – not for rape.
The appellant also gave evidence that VG and NG were insisting that he “do a visa for my ex-wife - that is Michelle’s mum.” (Michelle is the appellant’s daughter.) He said NG told him, “If you don’t do that, you will go to gaol. We will make sure that you go to gaol.”
In cross-examination, the appellant agreed that his ex-partner, the mother of his daughter was a citizen, and he said that he had been referring to a different ex-partner, not his daughter’s mother.
The appeal
The appellant appeals against his conviction on four grounds:
Ground 1: The learned trial judge erred in her directions regarding the assessment of the accused’s evidence.
Ground 2: The learned trial judge erred in admitting the evidence of the pretext call.
(a)The pretext call was inadmissible by virtue of s 85 of UEA as unreliable.
(b)The pretext call ought to have been excluded under UEA s 90 as unfair.
(c)The recording of the pretext call ought to have been excluded pursuant to UEA s 138 as unlawfully obtained.
Ground 3: The learned trial judge erred in failing to provide sufficient directions to the jury regarding the use that may be made of purported implicit admissions through post offence conduct.
(a)The jury ought to have received specific directions regarding all post offence conduct relied on by the prosecution as implicit admissions which specifically identified each piece of conduct and provided an Edwards type direction with respect to it.
(b)The jury ought to have been directed about reasons why the implicit admissions contained in the pretext call might have been unreliable.
Ground 4: The learned trial judge erred in failing to give a direction regarding the forensic disadvantage caused to the defendant as a result of delay in the matter being reported to police.
Leave to appeal on all four grounds and an extension of time in which to make application for leave to appeal were granted by a single judge on 21 January 2022.
Ground 1: The learned trial judge erred in her directions regarding the assessment of the accused’s evidence.
The appellant takes issue with the following passages in the trial judge’s summing up to the jury.
(a)In directing the jury as to the assessment of witnesses, the trial judge said:
You need to give consideration to whether you think the witness was attempting to protect either himself or herself or someone else when giving evidence. This is a question which arises most particularly in relation to your assessment of the evidence given by the accused. If you conclude that the witness was doing his or her best to tell the truth, then you need to consider the accuracy of the witness’ evidence.[1]
(Emphasis added)
(b)In dealing specifically with the evidence of the appellant, the trial judge said (seven pages later):
On the accused’s account there was consensual intercourse. You need to give careful consideration to that account to determine whether you accept it as credible and reliable or whether you think it is a story that he’s fabricated to deflect or contradict LG’s allegation of sexual intercourse without consent.[2] (Emphasis added)
The appellant contends that these directions invited the jury to assess the appellant’s evidence on the basis that he had an interest in the outcome of the case and therefore, by implication, a motive to lie. Contrary to the binding authority of Robinson v The Queen (No 2)[3] these directions (especially the first one) singled out the evidence of the accused person (the appellant) for special treatment and placed the appellant in the position of a suspect witness. As such, subject to the proviso, the appellant contends that these directions are sufficient to warrant a new trial.
Robinson was a rape case. The accused gave evidence that sexual intercourse took place by consent. The trial Judge gave the following direction in relation to assessing the evidence of witnesses:
Still on the subject of witnesses, you might think that some of them have an interest in the outcome of this case. Indeed you might think that one witness above all others has a greater interest than all the others in the outcome of the case. You might say, ‘Well, this witness has a particular interest in the outcome of his case. We should look at his or her evidence closely, more closely than perhaps we would look at others.’ That is a matter you have to bear in mind when scrutinising a particular witness’s evidence.[4]
Later in the summing up, the trial Judge directed:
Another test was what interest does a witness have in the outcome of a case? If you thought a witness had a large interest in the outcome you, as the judges of the facts, might well conclude that you should scrutinise that witness’s evidence closely. You might think ─ it is a matter solely for you ─ that the accused had the greatest interest of all the witnesses you saw and heard and that, therefore, you should scrutinise his evidence closely.[5]
In a joint judgment of the High Court Mason CJ, Brennan, Deane, Toohey and McHugh JJ said:
Notwithstanding the correctness of his Honour’s directions concerning the onus and standard of proof, however, it is impossible to escape the conclusion that the fairness of the trial was seriously impaired by the effect of his directions concerning the interest of a witness in the outcome of the case. The jury could hardly escape the conclusion that the appellant had “the greatest interest of all the witnesses” in the outcome of the case. Indeed, his Honour had suggested to the jury that they might think that the appellant had a greater interest than any other witness in the outcome of the case. If the jury accepted that suggestion, as they almost certainly would have, his Honour’s directions had the effect that the evidence of the appellant had to be scrutinized 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, particularly when the outcome of the trial inevitably turned upon the jury’s preference for the evidence of the complainant against that of the accused. ...Furthermore, his Honour’s directions on the point do not sit well with the presumption of innocence which is the consequence of a plea of not guilty. If that presumption is to have any real effect in a criminal trial, the jury must act on the basis that the accused is presumed innocent of the acts which are the subject of the indictment until they are satisfied beyond reasonable doubt that he or she is guilty of those acts. To hold that, despite the plea of not guilty, any evidence of the accused denying those acts is to be the subject of close scrutiny because of his or her interest in the outcome of the case is to undermine the benefit which that presumption gives to an accused person.
Nothing in the above is intended to suggest that the evidence of an accused person is not subject to the tests which are generally applicable to witnesses in a criminal trial. Thus, in examining the evidence of a witness in a criminal trial — including the evidence of the accused — the jury is entitled to consider whether some particular interest or purpose of the witness will be served or promoted in giving evidence in the proceedings. …[6]
Their Honours concluded:
[I]f, as we think was the case, the jury would have understood his Honour’s directions as meaning that the evidence of the appellant had to be scrutinized more carefully than that of any other witness, there was a serious misdirection in the summing up which went to the fairness of the trial of the appellant and which undermined the presumption of innocence.[7]
In Stafford v R, decided two years after Robinson, the High Court stated (dismissing an application for special leave):[8]
It follows from a decision of this Court in Robinson v The Queen ... that a trial judge should not direct the jury that the “interest” of an accused in the outcome of his or her trial is a “factor” to be taken into account in assessing his or her evidence. Nor should a trial judge direct the jury to the effect that, in assessing the evidence of all the witnesses, they should take account of their relative interests in the outcome. Any direction which directly or indirectly requires or invites an assessment of the reliability of the evidence of the accused or 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 is likely to be understood by the jury as a direction or invitation to discount the evidence of the accused who will inevitably be seen as having a greater interest in the outcome of the trial than any other witness. That is what the decision in Robinson was directed against.
Ordinarily, and notwithstanding what is said by the Court of Appeal of Queensland in this case about “an admission of impotence”, it is preferable that a trial judge refrains 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. 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 that 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.
(Emphasis added)
In Palmer v The Queen[9] Kirby J expressed the relevant principle in these terms.
In Robinson, this Court adopted a rule forbidding questions or comment which would suggest that the accused’s evidence, denying the offences charged, is to be the subject of close scrutiny because of the interest which the accused necessarily has in the outcome of the trial. This Court held that to permit, in that case, judicial directions (but by inference also questions making the same suggestions) would undermine the presumption of innocence which the law accords to an accused person. This ruling has attracted some criticism. It has been said that it has given rise to different interpretations as to the strictness of the principle established. But as I read the rule in Robinson, it is a simple one, easy to apply. Neither by questions nor submissions, nor by judicial directions may it be suggested that an accused’s denial is undermined, and an accuser’s accusation strengthened, by the obvious fact that the accused has an interest in acquittal. …
The principled basis for the decision in Robinson was considered by the High Court in Hargraves v The Queen.[10] In Hargraves, the appellants had been convicted of charges arising from a tax avoidance scheme. The only issue at trial was whether the appellants had been dishonest. The prosecution called the appellants’ accountant as witness in support of the Crown case that the appellants had acted dishonestly. The appellants’ counsel cross-examined the accountant suggesting that he had tailored his evidence to avoid his own prosecution. The appellants also gave evidence. The trial judge told the jury they could evaluate credibility by considering a witness’s “interest in the subject matter of the evidence” including “self-protection”. It appeared that this direction was primarily aimed at the evidence of the accountant, but could have been understood as applying (or also applying) to the appellants. The appellants were convicted of one of two charges. They appealed against their convictions on the ground that the trial judge’s direction had infringed the principle laid down in Robinson. The Queensland Court of Appeal held that the trial judge had misdirected the jury about how to assess the appellants’ evidence but held that the appeals should be dismissed because there had been no substantial miscarriage of justice.
The plurality in the High Court[11]held that the Court of Appeal was wrong to hold that the trial judge had misdirected the jury.
The trial judge gave the jury a list of subjects to which attention could be given in assessing evidence and assessing credibility. These included “interest” and “self-protection”. On these topics the trial judge said:
Does the witness have an interest in the subject matter of the evidence? For example, friendship, self-protection, protection of the witness’s own ego. There are any number of personal interests which people have and which they sometimes try to protect in giving evidence.

The trial judge went on to say that the jury could “accept the evidence of a witness in whole, in part or not at all” and gave the jury some directions about lies saying (inter alia) that the jury should remember that “a lie does not prove the opposite of what was said in the lie”, that “[a] lie by an accused person does not prove guilt” and that “[t]he Crown always carries the onus of proving the case even against a liar”. The plurality in the High Court held that there had been no misdirection. They explained that Robinson did not establish a new, stand-alone principle. Rather, the decision in Robinson depended upon a more basic principle which stems from the fundamental features of a criminal trial.[12]
The plurality identified that general principle as being (as the High Court said in Robinson) that “the jury must act on the basis that the accused is presumed innocent of the acts which are the subject of the indictment until they are satisfied beyond reasonable doubt that he or she is guilty of those acts” and said:[13]
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 concluded:[14]
As has been repeatedly pointed out, the judge in a criminal trial must accept the responsibility of deciding what are the real issues in the case, must tell the jury what those issues are, and must instruct the jury on so much of the law as the jury needs to know to decide those issues. The trial judge may, but need not, comment on the facts of the case. The trial judge may, but need not, suggest how the jury might evaluate the credibility of evidence that has been given. In some circumstances the common law or statute may require the trial judge to give a particular warning to the jury about factual issues. But informing and underpinning all of these requirements is that the 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 of guilty.
The cases demonstrate that a jury’s attention can be deflected from its fundamental task in different ways. RPS concerned distraction of a jury from its task by the trial judge’s commenting on the failure of an accused to give evidence. The plurality held in RPS that in an accusatorial process in which the prosecution has the onus of proving the guilt of the accused beyond reasonable doubt, it will seldom be reasonable to expect that the accused will give evidence and that it therefore follows that it will seldom be right to draw any inference (of the kind dealt with in Jones v Dunkel) from the accused’s failure to do so. Thus a direction to the jury that it may have been reasonable to expect some denial or contradiction from the accused, if such a denial or contradiction were available, was held to be contrary to fundamental features of a criminal trial: that the prosecution must prove its case beyond reasonable doubt. Those features of a criminal trial entail that the accused is not bound to give evidence.
In Palmer v The Queen, the plurality held that to ask a person accused of sexual offences, in cross-examination, whether that person could offer any reason or motive for the complainant to lie diminished the standard of proof by strengthening the complainant’s credibility. As the plurality in Palmer pointed out, absence of proof of a motive for the complainant to lie about the incident in issue “is entirely neutral” and, as a result, the fact that the accused can point to no reason for the complainant to lie is “generally irrelevant”. To introduce an inquiry into why would the complainant lie would focus the jury’s attention on irrelevancies by inviting the jury to accept the complainant’s evidence unless there were some demonstrated motive to lie. That would deny that the trial is an accusatorial process in which the prosecution bears the onus of proving the offence beyond reasonable doubt.
Robinson, too, is to be seen as a particular application of this more general principle. 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, deflects the jury from recognising and applying the requisite onus and standard of proof. It is for the prosecution to prove its case, not for the accused to establish any contrary proposition. The instructions which a trial judge gives to a jury must not, whether by way of legal direction or judicial comment on the facts, deflect the jury from its fundamental task of deciding whether the prosecution has proved the elements of the charged offence beyond reasonable doubt.
The principle that is identified is expressed at a high level of abstraction: 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? Directions given by a trial judge can often be assessed against that principle by observing no more than that the judge has so instructed the jury that it would be open to the jury to evaluate an accused’s evidence on the basis of the accused’s interest in the outcome of the trial. It is to be emphasised that trial judges must not instruct juries in that way: whether as a direction of law or as a judicial comment on the facts of the case. And it should also be emphasised that nothing that is said in these reasons should be understood as diminishing the need for intermediate courts of appeal to insist upon the observance of this requirement. Whether there has been on any other ground whatsoever a miscarriage of justice must always require consideration of the whole of the judge’s charge to the jury. 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.
(Emphasis added)
The first impugned direction
The first impugned direction was:
You need to give consideration to whether you think the witness was attempting to protect either himself or herself or someone else when giving evidence. This is a question which arises most particularly in relation to your assessment of the evidence given by the accused. If you conclude that the witness was doing his or her best to tell the truth, then you need to consider the accuracy of the witness’ evidence.[15] (Emphasis added)
The appellant contends that even though the trial judge made no specific reference to the appellant having an interest in the outcome of the trial, the two parts of the trial judge’s summing up set out at [54] above - and the first impugned direction in particular - invited the jury to assess the appellant’s evidence on the basis that he may have been trying to protect himself because he had an interest in the outcome of the case, and therefore, by implication, a motive to lie; a course specifically prohibited by the High Court in Robinson, Stafford, Palmer and Hargraves. Effectively, the jury would have understood the first impugned direction to mean that the evidence of the appellant had to be scrutinized more carefully than that of any other witness.
We agree with that characterisation of the first impugned direction. The respondent does not seek to characterise it differently. The respondent concedes that the emphasised sentence in the first impugned direction should not be endorsed as, taken in isolation, it has the capacity to undermine the benefit that the presumption of innocence gives to an accused person.
However, the respondent contends that, taken as a whole, the judge’s summing up does no such thing and in no way deflected the jury from its proper task, and that the jury were clearly and plainly directed that they must act on the basis that the accused was presumed innocent of the charge on the indictment until they were satisfied beyond reasonable doubt that he was guilty.
The respondent relies on the fact that the first impugned direction was almost immediately preceded by the following.
The onus of proof remains on the prosecution throughout to establish each of the elements of the charge. That does not mean that the prosecution has to prove the truth or accuracy of everything said by each of the witnesses it has called. The relevant requirement is that the prosecution must prove each of the elements of the charge beyond reasonable doubt.
There is no onus on the accused to prove or establish anything. He does not have to prove he is innocent. He is presumed innocent until and unless you find him guilty. It is not your job to decide between guilt and innocence. It is your job to decide whether the prosecution has proved that he is guilty or not.[16]
(Emphasis added)
These are fairly standard general directions given at the start of a summing up to a jury and they are unexceptional. However, such directions have not been found sufficient to “cure” a direction or comment that suggests it would be open to the jury to evaluate an accused’s evidence on the basis of the accused’s interest in the outcome of the trial. For example, in Robinson, the High Court held that the fairness of the trial was seriously impaired by the effect of the directions concerning the interest of a witness in the outcome of the case, “notwithstanding the correctness of the trial judge’s directions concerning the onus and standard of proof”. To restate what was said by the High Court in Robinson:
… To hold that, despite the plea of not guilty, any evidence of the accused denying those acts is to be the subject of close scrutiny because of his or her interest in the outcome of the case is to undermine the benefit which that presumption gives to an accused person.[17]
Further, the trial judge did not give the direction recommended by the High Court in Stafford when it has become necessary to make some reference to the accused’s interest in the outcome of the trial. In Stafford, the High Court held that in those circumstances, as a matter of fairness to the accused, the judge should direct the jury that 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.
In Wise v The Queen[18] 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.[19]
Characterisation of the error
In DC v The Queen[20] this Court analysed the three limbs s 411(1) of the Criminal Code Act 1983 (NT) (“Criminal Code”), which allows an appeal against conviction following a trial by jury: Section 411(1) 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.
As the Court said in DC:[21]
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. … [T]hose 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.
(Emphasis added)
The error alleged here comes under the third limb of s 411(1). The error alleged, and established, is the remark by the trial judge to the effect that in assessing the evidence in the case, the jury might give particular attention to the question of whether the appellant may have been trying to protect himself. This drew the jury’s attention to the interest of the accused in the outcome of the trial, suggesting that the accused’s evidence be scrutinised more closely than that of other witnesses because he was the accused. This, arguably, suggested (wrongly) that the accused bore some onus in the case. This Court said in DC at [32]:
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. 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. (Emphasis added and citations omitted)
The Court in DC referred to the following remarks by the High Court in Dhanhoa v The Queen:[22]
Because the trial judge was not asked to direct the jury, he did not make a “wrong decision of any question of law” (our emphasis). Thus, the only ground that is relevant in the present case is that the failure to direct the jury on identification or lies or both “was a miscarriage of justice”. In a case where the judge has misdirected the jury on the evidence or failed to refer to evidence, it is for an appellant to establish that the misdirection or non-direction constituted a miscarriage of justice. Similarly, it is for the appellant to establish that the trial judge’s failure to give a direction concerning some aspect of the evidence constituted a miscarriage of justice. Similarly, it is for the appellant to establish that the trial judge’s failure to give a direction concerning some aspect of the evidence constituted a miscarriage of justice. In such a case, a miscarriage of justice will have occurred if the direction should have been given and it is “reasonably possible” that the failure to direct the jury “may have affected the verdict”. (citations omitted)
The Court also referred to the following passage in The Queen v Soma:[23]
Because there was no objection, the trial judge was not required to rule on the course that was taken and there was, therefore, no wrong decision at trial on any point of law. The orders made by the Court of Appeal required the conclusion that, in terms of s 668E(1) of the Criminal Code, there was a miscarriage of justice.
Earlier in Soma, the High Court held:[24]
There having been no objection at trial to the evidence that was given and received about the respondent’s police interview, it cannot be said that the judgment of the court of trial should be set aside on the ground of the wrong decision of any question of law. The question then must be whether “on any ground whatsoever there was a miscarriage of justice” (s 668E(1)). If there was not, the Court of Appeal was required to dismiss the appeal.
Was there a miscarriage of justice?
It follows that the onus is on the appellant to establish that the remarks by the trial judge gave rise to a miscarriage of justice. To do so, the appellant must show that it is reasonably possible that the impugned direction may have affected the verdict. In Dhanhoa, McHugh and Gummow JJ said:[25]
This is another appeal in which a convicted person seeks to quash a conviction on the ground that the trial judge failed to direct the jury concerning some part of the evidence in the trial even though his or her counsel did not apply for any such direction or indeed any re-direction.
When no re-direction concerning evidence is sought at a criminal trial, the appellant can only rely on a failure to direct the jury on the evidence if he or she establishes that that failure constituted a miscarriage of justice. No miscarriage of justice will have occurred in such a case unless the appellant demonstrates that the direction should have been given and it is “reasonably possible” that the failure to direct the jury “may have affected the verdict”.
….
The respondent contends that the misdirection in the first impugned direction did not give rise to a miscarriage of justice. It is not the case that any irregularity or error of law satisfies the test for a miscarriage of justice. Rather, “what is essential to the finding of a miscarriage of justice is that the irregularity had the meaningful potential or tendency to have affected the result of the trial.”[26] The respondent also relies on the following passage from the judgment of Gageler J (agreeing with the plurality that the appeal should be dismissed) in Hofer v The Queen:[27]
In the application of the miscarriage of justice ground, there is no principled reason for treating “an error in strict law” differently from another error or irregularity in the conduct of a trial. The miscarriage of justice in a particular case might arise from a singular error or irregularity, or it might arise from a cumulation of errors or irregularities some or all of which might or might not be connected and some or all of which might or might not be capable of being characterised as errors of law. Whether or not some or all of them might be characterised as errors of law, the consideration required to be given to their individual or cumulative consequence remains the same. An inconsequential error, including an inconsequential error of law, is not a miscarriage.
We would not characterise the misdirection in the first impugned direction as “an inconsequential error”. There is a possibility that, in response to the first impugned direction by the trial judge, the jury may have formed the impression that they should scrutinise the appellant’s evidence more carefully than that of other witnesses because he had an interest in the outcome of the trial and that this may have affected the jury’s verdict. The question then arises as to whether this Court ought to apply the proviso. This is considered below.
The second impugned direction
The second impugned direction is as follows.
On the accused’s account there was consensual intercourse. You need to give careful consideration to that account to determine whether you accept it as credible and reliable or whether you think it is a story that he’s fabricated to deflect or contradict LG’s allegation of sexual intercourse without consent.[28]
The appellant contends that this passage alone, or in combination with the first impugned direction, invited the jury to assess the appellant’s evidence on the basis that he had an interest in the case and, therefore, a motive to lie. It invited the jury to scrutinise the appellant’s evidence more carefully than that of other witnesses.
The respondent contends that the second impugned direction is different in kind from the first.
(a)First, the remarks make no reference to the appellant’s interest in the outcome of the trial.
(b)Second, the comment about giving careful consideration to the appellant’s evidence was not an invitation to the jury to evaluate his evidence on the basis of his interest in the outcome of the trial but rather was an introduction to the trial judge’s summary of the arguments of counsel. It was immediately followed by the following remarks:
Defence counsel says that the accused’s account is both consistent with other evidence and plausible. The Crown says the accused’s version of events is implausible and shouldn’t be believed.[29]

Further, the second impugned direction (and that further passage) were immediately followed by the following passages in which the trial judge emphasised that the prosecution bore the burden of proof.
Even if you prefer the evidence of LG over that of the accused about the way the sexual intercourse occurred including how affected by alcohol LG was, you should not find the accused guilty unless you’re satisfied beyond reasonable doubt of the use of physical force by the accused on LG and/or about her verbal and physical resistance to his actions, and/or about her being so affected by alcohol she couldn’t freely consent.
As I have said, the accused does not have to prove anything. Even if you do not positively believe the evidence of the accused, if his evidence raises a reasonable doubt on those issues, he is entitled to the benefit of that doubt and you must find him not guilty.
Even if you are convinced that the accused’s evidence is not true, it is not the case that you must then convict him. In that circumstance you should put the accused’s evidence to one side and ask yourself whether the prosecution has proved the accused’s guilt beyond reasonable doubt on the basis of the evidence that you do accept.[30]
Later in her summing up, the trial judge added the following further remarks of the same general nature.
[B]y going into the witness box he [the appellant] exposed himself to the dangers of cross-examination …. You are entitled, if you see fit, to give him some credit for this. …
If you do decide to reject his evidence, or to reject those parts of his evidence which go to the essential issues in the case, that is, by itself, not enough for you to convict him …
If you disbelieve the accused, all that means is that you do not accept his evidence. You then just put it to one side and consider whether, on all of the other evidence, the Crown has proved that the accused is guilty beyond reasonable doubt. You cannot convert his denials into positive evidence that he did what he has been accused of.[31]
We agree that there was no misdirection in the second impugned direction. Read fairly, in context, the second impugned direction does not contain an invitation to assess the appellant’s evidence on the basis that he had an interest in the outcome of the trial. That direction did not even invite the jury to scrutinise his evidence more carefully than the evidence of the other witnesses. In the course of discussing the parties’ submissions on what the defence put forward as motives to lie on the part of LG and her parents, the trial judge said:
The accused does not have to prove that LG or her parents had motives to lie. As I have already said, he does not have to prove anything at all.
If you reject the shame as a reason for LG to lie, that will not necessarily justify a conclusion that her evidence is truthful. Similarly, if you reject the ex-partner’s visa as a reason for Mr and Mrs G to lie, that will not necessarily justify a conclusion that their evidence is truthful.[32]
The trial judge went on to give a standard and totally appropriate direction about motive and then said this about the evidence of the complainant, LG.
If, on the other hand, you are satisfied about the shame as giving – or possibly giving – reasons for LG to lie about the accused forcing her or taking advantage of her intoxication to have sex with him, this can substantially affect your assessment of her credibility as a witness. … If you are so satisfied you must carefully consider LG’s evidence as a whole and all of the evidence before you and decide whether you are nevertheless satisfied that the evidence she has given about not consenting to the intercourse with the accused is true.
I remind you again that it is for the prosecution to prove beyond reasonable doubt that the accused is guilty by establishing each of the elements of the charged offence beyond reasonable doubt.
To a certain extent this is what is called an “oath on oath” case because in relation to the allegations which make up the charge, there was no-one else present and no-one else able to observe what happened. Where it is the word of one witness over another, care needs to be taken. You do not just ask yourselves, “Who do I believe, LG or the accused?” For the Crown to succeed you need to be satisfied beyond a reasonable doubt about the truth and reliability of the evidence of LG on each element of the offence in question.
If you have a reasonable doubt about that evidence, you are required to acquit. The accused is entitled to the benefit of that doubt. Where, as in this case, there is only one witness providing the direct evidence on which the Crown relies to prove the essential elements, the evidence of that one witness must be scrutinised carefully before you come to a conclusion that the accused is guilty.[33] (Emphasis added)
The appellant has not demonstrated any error on the part of the trial judge with respect to the second impugned direction.
Ground 2: The learned trial judge erred in admitting the evidence of the pretext call.
(a)UEA s 85
The first basis on which the appellant says the pretext call should not have been admitted is UEA s 85. Section 85 provides:
Criminal proceedings – reliability of admissions by defendants
(1)   This section applies only in a criminal proceeding and only to evidence of an admission made by a defendant:
(a)to, or in the presence of, an investigating official who at that time was performing functions in connection with the investigation of the commission, or possible commission, of an offence; or
(b)as a result of an act of another person who was, and who the defendant knew or reasonably believed to be, capable of influencing the decision whether a prosecution of the defendant should be brought or should be continued.
(2)   Evidence of the admission is not admissible unless the circumstances in which the admission was made were such as to make it unlikely that the truth of the admission was adversely affected.
(3)   Without limiting the matters that the court may take into account for the purposes of subsection (2), it is to take into account:
(a)any relevant condition or characteristic of the person who made the admission, including age, personality and education and any mental, intellectual or physical disability to which the person is or appears to be subject; and
(b)if the admission was made in response to questioning:
(i)the nature of the questions and the manner in which they were put; and
(ii)the nature of any threat, promise or other inducement made to the person questioned.
During the pretext call, LG asked the appellant a number of questions premised on the basis that the appellant had raped her such as, “Why did you rape me?” At times these questions were met with silence and at times with non-responsive answers. After persistent questioning, the appellant responded, “There’s no reason.”[34]
The appellant concedes that the silence when confronted with the allegation of rape, and the responses to the question, “Why did you rape me?” without taking issue with the premise, were capable of being found by the jury to be admissions to rape. As such, the exception to the hearsay rule in UEA s 81 applied and, subject to any other exclusionary rules, the evidence of the pretext call was admissible.
However, the appellant contends that the evidence was rendered inadmissible by UEA s 85. It can be accepted that the precondition for the application of UEA s 85 has been satisfied. There can be no doubt that LG, as the complainant, was a person who was capable of influencing the decision of whether a prosecution would be brought against the appellant on the charge of raping LG. Further there can be no doubt that the appellant knew that to be the case. In fact in the pretext call itself, LG said, “And remember, I didn’t press charges or anything,”[35] and later, “I did you a favour by not reporting you to police because you are family.”[36]
Once the precondition for the operation of the section has been established, the onus is on the Crown, as the party seeking to adduce the evidence, to establish that the circumstances in which the admission was made were such as to make it unlikely that the truth of the admission was adversely affected.
The respondent pointed to a range of factors which would indicate that the circumstances were such as to make it unlikely that the truth of the admission was adversely affected including that the implied admissions were made in the second pretext call after the appellant voluntarily called LG back; that there were no communication issues such as language or mental health concerns; and that the appellant was the older person in the conversation and in a position of relative power/authority as LG’s uncle.[37]
The appellant contends that the Crown cannot satisfy the onus of showing that the implied admissions were made in circumstances that make it unlikely that the truth of the admissions were adversely affected. The appellant contends that the relevant circumstances include:
(a)that LG was persistently, even relentlessly questioning the appellant, and
(b)that in the utterances referred to in [92] above, LG issued a veiled threat to report the appellant to the police.
The appellant contends that in those circumstances there is a real possibility that the appellant was not making reliable admissions but was merely trying to placate LG. That contention cannot be accepted. First, although the transcript of the pretext call makes it appear that LG was badgering the appellant, listening to the audio recording produces a different impression – as counsel for the appellant conceded. Second, there is nothing placatory in the tone of the appellant. Rather the impression given is that he is being deliberately evasive, which clearly and demonstrably did not placate LG but made her increasingly frustrated. Third, those circumstances are not such as to increase the likelihood that a person would make false admissions to a serious offence. Fourth, the admissions are not explicit, but are to be implied by the appellant’s behaviour - silence in the face of a serious allegation of rape, non-responsive answers and finally the words, “There’s no reason,” and “I was going to apologise ...”[38]
In our view, the evidence of the pretext call was not inadmissible by virtue of UEA s 85.
It should be noted that defence counsel at the trial did not contend that the evidence was inadmissible under this section. Counsel for the appellant on the appeal concedes that the failure to raise this ground of objection at the trial raises a difficulty for the appellant, but contends:
(a)that s 85 raises a rule of admissibility not a judicial discretion;
(b)the judge presiding over a trial has a duty to ensure that only admissible evidence is admitted, regardless of objection;[39]
(c)the prosecutor has a duty not to lead inadmissible evidence;[40] and
(d)it cannot have been a forensic decision on the part of defence counsel at trial not to object, because objection to the evidence was taken on another ground.
It is not necessary for us to determine whether, in the case of this ground of objection, the appellant should be bound by the conduct of the trial by counsel at first instance as we have determined that the evidence was not inadmissible by virtue of UEA s 85.
(b)UEA s 90
The second contention of the appellant under this ground is that the pretext call ought to have been excluded under UEA s 90 as unfair. Section 90 provides:
Discretion to exclude admissions
In a criminal proceeding, the court may refuse to admit evidence of an admission, or refuse to admit the evidence to prove a particular fact, if:
(a) the evidence is adduced by the prosecution; and
(b) having regard to the circumstances in which the admission was made, it would be unfair to a defendant to use the evidence.
Defence counsel did raise this ground of objection at trial but it was not ruled upon. The ruling admitting the evidence focused on the objection under UEA s 138 and the reason for that is that defence counsel submitted that the relevant unfairness was that the police did not comply with the requirements for taping pretext calls. (That is dealt with below.)
The appellant now contends that the relevant unfairness was the infringement of the appellant’s right to remain silent by LG’s insistent importuning during the pretext call demanding an explanation. The appellant contends that this was not a conversation between two parties on the same footing. LG ignored the appellant’s attempts to end the conversation, insisting that an answer be provided, attempting to obtain an admission from him, and implicitly threatened to report the matter to the police. As a result, his free choice to speak or remain silent was improperly influenced by the manner of questioning by LG – a person who held power over him as a result of (so far as he was aware) not reporting the matter to police.
As explained above, the impression of persistent, even overbearing, questioning by LG in the pretext call is not borne out by the audio recording. Further, the appellant called LG back and it was in the second pretext call, initiated by the appellant, that the implied admissions were made.
In any event, implicit in this ground of alleged unfairness is that the appellant was somehow compelled to speak by the importuning of LG. This contention cannot be accepted. The major aspect of the implied admissions consists of the appellant remaining silent in the face of the allegation of rape when an innocent person would have been expected to deny the allegation. The appellant clearly did not feel compelled to speak as the result of importunities by LG.
As far as the implied threat to go to the police is concerned, first it is unclear whether the statements by LG to the effect that she had done the appellant a favour by not going to the police should be construed as implied threats to do so. Second, any such implied threat to an innocent man would be more likely to elicit a denial than an admission or implied admission. Third, the implied threats, if that is what they were, did not elicit placatory admissions.
The appellant contended that the two utterances by the appellant relied on as in some sense explicit admissions, “There’s no reason”[41] and “I was going to apologise ...”[42] did not occur until after the veiled threats of going to police. However, neither utterance followed immediately after the reference by LG to not going to police. The first reference to the police was followed by further talk from LG and then a long silence from the appellant. The second reference to not going to the police was followed by further talk from LG ending with, “I’ve asked just one question, ‘Why?’ It doesn’t take much time. Or since you said you’re at work, just respond in Shona because I want to know.”[43] It is that request by LG that elicited the response (in Shona), “You know? There’s no reason,”[44] a response he later repeated without further reference by LG to not having gone to the police.
Other factors relied upon by the appellant include the fact that police already had the recorded statement of LG which was sufficient to arrest the accused and offer him the opportunity to participate in a recorded interview. However, there is no general rule that it is unfair to make use of a pretext call in those circumstances. As Basten JA said in R v XY[45] when considering whether evidence obtained from a pretext phone call ought to have been excluded under UEA s 90 on the basis that it would be “unfair” to permit the use of the evidence:
… However, it cannot be “unfair” to allow the prosecution case to be put to the jury if the evidence is capable of supporting a conviction unless there is some other factor at play. Relevant factors have generally been considered to be either the potential for the evidence to be misused (for example where the evidence or any possible response indicates misconduct on another occasion), or potential weaknesses in the evidence which may not be adequately assessed by a jury, properly directed. In the present case, reliance was placed upon the fact that the accused might be forced to relinquish his “right to silence” in the face of such evidence, in order to provide an explanation to the jury.
There are three problems with this approach. The first is that the accused has no “right to silence” in the sense that evidence cannot be admitted which, in practical terms, will demand an explanation. It is often a forensic decision for an accused and his or her counsel as to whether he or she will give evidence as part of the defence: that circumstance does not involve any abrogation of some common law immunity.
(The other two problems were specific to the particular case.)
The appellant relies on R v Lieske,[46] a case in which a pretext call was ruled inadmissible under UEA s 85 and in which, among other things, there was said to have been persistent questioning by the complainant caller. However, that case turned on its own facts which, contrary to the submission by the appellant, were not “almost on all fours” with the present case. In any event, previous decisions are not authority for the facts they decide. R v Lieske is not authority for any general principle that persistent questioning is a circumstance that may render an admission likely to be unreliable.
The respondent relied on R v Ryan,[47] which likewise turned on its own facts.
In our view it was not unfair to the appellant to admit the pretext phone call into evidence.
There are further reasons why this ground of appeal cannot succeed. UEA s 90 provides a discretion in the trial judge to exclude evidence of admissions which are unfair. In order to succeed on this ground of appeal, the appellant would need to show that that discretion miscarried, that is to say that the trial judge made an error of law in applying the section, took into account some irrelevant consideration or failed to take into account some relevant consideration, or that the decision not to exclude the evidence was so unreasonable that no reasonable judge could have arrived at the conclusion that the evidence should not have been excluded as unfair in the circumstances. The appellant can point to no such miscarriage of the exercise of the discretion.
Further, defence counsel at the trial did not advance the argument now relied upon by the appellant. Although submissions were made to the effect that it would be “unfair” to admit the evidence, this was in the context of the contention that the evidence should be excluded under UEA s 138. The principles applicable to counsel’s failure to take a point raised on appeal at trial are set out below.
UEA s 138
The appellant also contends that the recording of the pretext call ought to have been excluded pursuant to UEA s 138 as unlawfully obtained. This is the argument that was run at trial.
UEA s 138 provides (relevantly):
Exclusion of improperly or illegally obtained evidence
(1) Evidence that was obtained:
(a)improperly or in contravention of an Australian law; or
(b)in consequence of an impropriety or of a contravention of an Australian law;
is not to be admitted unless the desirability of admitting the evidence outweighs the undesirability of admitting evidence that has been obtained in the way in which the evidence was obtained.
…
(3) Without limiting the matters that the court may take into account under subsection (1), it is to take into account:
(a)the probative value of the evidence; and
(b)the importance of the evidence in the proceeding; and
(c)the nature of the relevant offence, cause of action or defence and the nature of the subject-matter of the proceeding; and
(d)the gravity of the impropriety or contravention; and
(e)whether the impropriety or contravention was deliberate or reckless; and
(f)whether the impropriety or contravention was contrary to or inconsistent with a right of a person recognised by the International Covenant on Civil and Political Rights; and
(g)whether any other proceeding (whether or not in a court) has been or is likely to be taken in relation to the impropriety or contravention; and
(h)the difficulty (if any) of obtaining the evidence without impropriety or contravention of an Australian law.

We should say at the outset that we do not think that either persistent questioning or leading questions give rise to a risk of unreliability of the admissions made in the pretext call.
Defence counsel did not seek such a direction at trial, but the appellant contends that that is not a bar to such a direction being given. The appellant relies on MLS v State of Western Australia[74] in which the court held (citing Carr v The Queen)[75] that a judge is bound to give such a direction to the jury if, in the circumstances of the particular case, the direction is necessary to avoid a perceptible risk of a miscarriage of justice. The appellant contends that there can have been no forensic reason for defence counsel not to seek such a direction.
As the appellant did not seek such a direction, the trial judge was not in error not to give one. The onus is on the appellant to show that the failure to do so in the circumstances gave rise to a miscarriage of justice.
The respondent contends that the failure by defence counsel to seek such a direction can, and should, be used as evidence that the failure to give the direction was not material in the context of the trial.[76]
The respondent also contends that there were many reasons why a s 165 warning was neither necessary nor appropriate.
Defence counsel addressed the jury on why the jury may not accept that the appellant’s silences or remarks in the pretext calls were admissions to the offence. Defence counsel may not have wanted the judge to give a direction to the jury which was premised on the assumption that those silences and remarks were admissions. Any such direction had the real potential to be forensically disadvantageous to the appellant.
We agree that there may have been sound reasons why defence counsel did not ask the trial judge to give a warning under UEA s 165, not least a desire not to cut across the defence submissions to the effect that the appellant did not make any admissions in the pretext call. The appellant has not demonstrated that the failure to warn the jury of reasons why the admissions in the pretext call may be unreliable gave rise to a miscarriage of justice. Leave to raise this ground of appeal should not be given.
Ground 4: The learned trial judge erred in failing to give a direction regarding the forensic disadvantage caused to the appellant as a result of delay in the matter being reported to police.
The appellant contends that the trial judge erred by refusing to give a forensic disadvantage direction to the jury.
Immediately before the trial judge summed up to the jury, defence counsel asked the judge to give “a Longman warning” regarding the accused’s disadvantage, specifically in relation to any CCTV footage of the incident, because of the delay in making a formal complaint to police. The prosecutor opposed giving such a warning on the basis that it was not known, and could not be known, whether any lost CCTV footage would have assisted the Crown or the defence. (The parties are agreed that any CCTV footage of the night in question was lost between the time the alleged incident occurred and the time when LG made a formal complaint and gave a statement to police.)
The appellant concedes that the trial judge was right not to give a Longman warning,[77] but both parties are agreed that the request was understood as a request for a forensic disadvantage direction under UEA s 165B and that the appeal should be conducted on that basis.
Section 165B provides:
Delay in prosecution
(1)   This section applies in a criminal proceeding in which there is a jury.
(2)   If the court, on application by the defendant, is satisfied that the defendant has suffered a significant forensic disadvantage because of the consequences of delay, the court must inform the jury of the nature of that disadvantage and the need to take that disadvantage into account when considering the evidence.
(3)   The judge need not comply with subsection (2) if there are good reasons for not doing so.
(4)   It is not necessary that a particular form of words be used in informing the jury of the nature of the significant forensic disadvantage suffered and the need to take that disadvantage into account, but the judge must not in any way suggest to the jury that it would be dangerous or unsafe to convict the defendant solely because of the delay or the forensic disadvantage suffered because of the consequences of the delay.
(5)   The judge must not warn or inform the jury about any forensic disadvantage the defendant may have suffered because of delay except in accordance with this section, but this section does not affect any other power of the judge to give any warning to, or to inform, the jury.
(6)   For the purposes of this section:
(a)delay includes delay between the alleged offence and its being reported; and
(b)significant forensic disadvantage is not to be regarded as being established by the mere existence of a delay.
(7)   For the purposes of this section, the factors that may be regarded as establishing a significant forensic disadvantage include, but are not limited to, the following:
(a)the fact that any potential witnesses have died or are not able to be located;
(b)the fact that any potential evidence has been lost or is otherwise unavailable.
The respondent contends that the trial judge was right to refuse defence counsel’s request.
The resolution to this ground of appeal depends upon whether the trial judge ought to have been satisfied:
(a)that the loss of the CCTV footage resulted in “a significant forensic disadvantage” to the appellant; and
(b)that significant forensic disadvantage was “because of the consequences of delay”.
Because the nature of the significant forensic disadvantage must be specified by the party seeking the warning,[78] cases on the application of s 165B will be very fact specific, and care needs to be taken in extrapolating from one set of facts to another.
[T]he clear focus of the provision is on identification of the particular consequences of the delay which give rise to significant disadvantage.[79]
In PT v The Queen,[80] the Court emphasised the need to identify the significant forensic disadvantage precisely.
In Robbins,[81] the Victorian Court of Appeal considered equivalent Victorian legislation and identified the following principles as emerging from the Victorian authorities.
(a)     The origins of the relevant concern are to be found in historic sex offence cases and the decision of the High Court in Longman.
(b)     The forensic disadvantage governed by s 39 is a disadvantage occurring because of the consequences of delay between the alleged offence and the trial.
(c)     The disadvantage must be of a forensic nature; that is, a disadvantage suffered by the accused in challenging, adducing or giving evidence, or in conducting the accused’s case.
(d)     The direction can only be given if the trial judge is satisfied that the accused has experienced a significant forensic disadvantage.
(e)     There are disadvantages as a consequence of delay which do not warrant a direction under s 39. These disadvantages can be adequately dealt with in counsels’ addresses and do not require a judicial direction.
(f)   The accused has the onus of establishing that the consequences of delay give rise to a significant forensic disadvantage.
(g)     It is incumbent upon the accused to identify the particular risks of prejudice which constitute the significant forensic disadvantage.
(h)     A loss of opportunity to obtain evidence of a contemporaneous medical examination which had occurred (Pate), or medical or other scientific investigations which might have been undertaken (Jurj), or expert medical opinion which might have been obtained (Greensill), could, in a particular case, constitute a significant forensic disadvantage.
Here, the identified forensic disadvantage is the loss of the opportunity to obtain CCTV footage from the Casino from the night of the alleged rape. The respondent contends that this cannot be characterised as a significant forensic disadvantage to the appellant because there is no knowing whether the CCTV footage would have assisted the Crown or the defence. The respondent relies on the New South Wales case of Binns v The Queen[82] in which Basten JA (with whom Garling and RA Hulme JJ agreed) said:
[U]nder the current statutory regime, DNA evidence will not usually be evidence falling within s 165B(2) because it will rarely be possible for a judge to say that he or she is “satisfied” that the absence of such evidence involves a significant forensic disadvantage to the defendant; there is no basis for knowing whether the evidence would be inculpatory or exculpatory. In short, this was not the kind of disadvantage to which the section was directed.
The respondent also relies on the following statement of the Victorian Court of appeal in PT:[83]
What is clear, however, is that the defendant who seeks the warning carries the onus of satisfying the Court that he or she has in fact suffered a significant forensic disadvantage, and that this arises because of the delay that has occurred. A hypothetical disadvantage will not be sufficient. …
The appellant contends that it is not necessary for the appellant to show that the CCTV footage would have assisted the defence case. The appellant relies on the South Australian case of R v Cassebohm[84] which considered similar South Australian legislation.[85]
It will not be sufficient for the trial judge to identify a theoretical or hypothetical or assumed disadvantage to the accused. On the other hand, if it were necessary for the accused to satisfy the judge of an actual and specific disadvantage, the provision would offer little protection to a defendant. One can rarely be sure what a deceased witness might have said, one can rarely know what a person might have remembered 20 years ago but no longer remembers, one can never know what is in a document now lost. I consider that it is sufficient for a trial judge to conclude that the lost or missing or unavailable material is likely to have assisted the defence of a charge, even though one cannot say just how, and even though one cannot be certain that that is so. For example, an accused might suffer from a significant impairment of memory attributable to illness that has occurred in the time that has elapsed between the alleged offence and the trial. Who can say what the accused would have remembered if his memory had not been impaired by illness? But I would accept that a defendant in such a position is at a forensic disadvantage, because the defendant no longer has the benefit of a memory unimpaired by illness. I should add that in this example I am postulating a significant memory impairment. Similarly, after many years have passed it is not difficult to conclude that the normal memory loss that occurs gives rise to a significant forensic disadvantage. Of course, in a particular case there might be no sign of memory loss, or the case might be one in which the accused’s memory is not a relevant matter. The judge will have to consider each of the aspects of forensic disadvantage identified by McHugh J and by Crennan J: that is, the difficulty of testing the complainant’s evidence, and the difficulty of marshalling a defence. Other circumstances, not attributable to the passage of time, may well need to be considered.
If the judge is satisfied that the defendant has suffered a significant forensic disadvantage attributable to the passage of time, the judge must then give the jury an appropriate direction. (Emphasis added)
The respondent contends that even on the formulation of the test in Cassebohm, the appellant does not meet the threshold of establishing a significant forensic disadvantage. There is no evidence that the missing CCTV footage was “likely” to have assisted the appellant’s case.
The appellant suggests that all that is necessary for the appellant to show is that there is a reasonable possibility that the lost evidence may have assisted the appellant either in supporting his case or in challenging the prosecution case, relying on Anderson v Tasmania.[86] The Tasmanian Court of Appeal in Anderson identified the following principles as applicable to the application of s 165B which are subtly different in some respects from the principles identified by the Victorian Court of Appeal in PT:
For present purposes, what can be drawn from these authorities is as follows:
·     ‘Significant’ in the phrase ‘significant forensic disadvantage’, means ‘important’ or ‘of consequence’.
·     The disadvantage must be of a forensic nature; that is one suffered in challenging, producing or giving evidence or in conducting the case.
·     The onus rests on an accused to satisfy the court that they have suffered a significant forensic disadvantage because of the consequences of delay.
·     It is the consequences of the delay that require consideration, not the length of the delay itself.
·     The relevant disadvantage must be identified, and must have been actually suffered, as distinct from a possibility of it having been suffered; there must be more than mere supposition.
·     It is not necessary to prove anything beyond the loss of or inability to obtain evidence that may have been exculpatory.
·     Any direction must alert the jury to, and help them understand, the nature and potential consequences of the delay; it should assist the jury in how they approach their task in light of the difficulties.
·     There will be disadvantages as a consequence of delay which do not warrant a direction. (Emphasis added)
We do not think it is desirable, at least in the present case, to formulate rules about whether a defendant must show that missing evidence would have or was “likely” to have assisted the defence or “may have been exculpatory” or some other test. It is preferable to focus on the words of s 165B. Should the trial judge have been satisfied that as a result of the loss of the CCTV footage between the time of the alleged offence and the date of the trial, the appellant suffered “a significant forensic disadvantage because of the consequences of delay”? In our view the trial judge was correct to decline to give a forensic disadvantage direction in the circumstances.
(a)There was no evidence as to what areas were covered by the CCTV cameras, and whether they covered the area where the rape is alleged to have occurred. It may have been possible for the defendant to test some of the complainant’s evidence about surrounding matters, such as that she fell asleep or passed out inside the Casino and that is why she was evicted, but there was no evidence called as to precisely what areas inside the Casino were covered by the CCTV cameras.
(b)Assuming the CCTV cameras captured at least some part of the relevant events, there is no knowing whether whatever was captured would have been exculpatory or inculpatory.
In those circumstances it does not seem to us that the appellant has shown he suffered a “significant” forensic disadvantage through not having access to the CCTV footage. Any forensic disadvantage is merely speculative.
Further, it is doubtful whether any forensic disadvantage which may have been suffered by the appellant can be said to have been suffered “because of the consequences of delay”. In fact there was no delay in bringing the allegation to the attention of the appellant. That was done a matter of hours later, when LG woke up in the morning. She complained to her father and her father confronted the appellant with the allegation. Further, both VG and the appellant gave evidence that VG adverted to the possible existence of CCTV footage when they went to look at the Convention Centre stairs the next morning. The CCTV footage, whatever it may have shown, was available when the appellant was first made aware of the accusation of rape and he could have taken steps to obtain it or request that it be preserved. There can be little doubt that the Casino would have complied with a request to preserve the footage if they had been told it may be needed to disprove a false allegation of rape.
Application of the proviso
All grounds of appeal other than Ground 1 have not been made out and should be dismissed.
In Ground 1 of this appeal this Court considered the first impugned direction by the trial judge.
You need to give consideration to whether you think the witness was attempting to protect either himself or herself or someone else when giving evidence. This is a question which arises most particularly in relation to your assessment of the evidence given by the accused. If you conclude that the witness was doing his or her best to tell the truth, then you need to consider the accuracy of the witness’ evidence.[87] (Emphasis added)
We reached the conclusion that there was a possibility that, in response to the first impugned direction, the jury may have formed the impression that they should scrutinise the appellant’s evidence more carefully than that of other witnesses because he had an interest in the outcome of the trial and that this may have affected their verdict. The appeal should therefore be allowed on that ground subject to the application of the proviso.
Principles relating to the proviso
Section 410 of the Criminal Code provides a limited right of appeal to the Court of Criminal Appeal from a finding of guilt following a trial by jury in the Supreme Court. Section 411 of the Criminal Code provides (relevantly):
(1) 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.
(2) 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.
The principles applicable to the application of the proviso in s 411(2), and the effect of the decision of the High Court in Weiss v The Queen[88] were considered in DC[89] and RH v The Queen.[90]The following principles emerge from that discussion.
(1)     The use of the words “substantial” and “actually occurred” in the proviso require a consideration of matters beyond the bare question of whether there has been a departure from the applicable rules of evidence or procedure.[91] The appeal court must determine whether the departure from the applicable rules was consequential.[92]
(2)     The task of the appellate court is to decide whether a substantial miscarriage of justice has actually occurred.[93]
(3)     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 – by having regard to the whole of the record.[94]
(4)     As with an appeal on the ground that it is unreasonable or cannot be supported having regard to the evidence, the appeal court must take into account the fact that the jury returned a guilty verdict.[95]
(5)     The appeal court must judge the evidence for itself, focusing first on the evidence against the accused.[96]
(6)     The appellate court must decide whether, notwithstanding error or irregularity, guilt was proved to the criminal standard on the admissible evidence at the trial as it was conducted.[97]
(7)     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.[98]
(8)     If the appeal court is convinced of the accused’s guilt beyond reasonable doubt on the evidence properly admitted, that is a necessary, but not necessarily sufficient condition for the application of the proviso.[99]
(9)     “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.”[100]
(10) If the appellate court can be satisfied of the appellant’s guilt beyond reasonable doubt, it is still necessary for the appellate court to consider whether there has been a significant denial of procedural fairness at trial which makes it proper to allow the appeal and order a new trial. This will be so if the miscarriage of justice amounts to ‘a serious breach of the presuppositions of the trial’[101] or ‘an irregularity … which is such a departure from the essential requirements of law that it goes to the root of the proceeding.’[102] The proviso is not intended to provide a retrial before the Court of Criminal Appeal when the proceedings before the primary court are so fundamentally flawed as hardly to be a trial at all. In those circumstances, the appeal court should not apply the proviso merely because the court is of the opinion that on a proper trial the appellant would inevitably have been convicted.[103] As the plurality (Brennan, Dawson and Toohey JJ) said in Wilde v The Queen:[104]
The proviso has no application where an irregularity has occurred which is such a departure from the essential requirements of the law that it goes to the root of the proceedings. If that has occurred, then it can be said, without considering the effect of the irregularity upon the jury’s verdict, that the accused has not had a proper trial and that there has been a substantial miscarriage of justice. Errors of that kind may be so radical or fundamental that by their very nature they exclude the application of the proviso.

In Cesan v The Queen, the High Court laid down what it described as “three fundamental propositions”:[105]
·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.
Application of the principles to the present case
The appellant does not contend that there has been a procedural error or irregularity which is such a departure from the essential requirements of law that it goes to the root of the proceeding and this is plainly not such a case. The trial judge’s brief mis-statement, in the context of her Honour’s full charge to the jury, was not such a fundamental error, and it cannot be said that the proceedings thereby miscarried to such an extent as to render the trial a non-trial. Important in the context was the countervailing effect of the single witness Murray direction given in respect of the complainant.
This is not a case involving an error which would prevent an appellate court from being able to assess whether the guilt of the accused has been proved to the criminal standard. The appellant has contended that this is a case that turned on an assessment by the jury of the credibility of the complainant LG and the credibility of the appellant. If the jury had thought the appellant’s version of events was reasonably possible, he would have been entitled to an acquittal, and it was possible that the impugned direction affected that assessment: therefore this Court should not apply the proviso. We reject that submission.
We do not agree that this is a case which turned solely, or even mostly, on the jury’s assessment of the credibility of LG and the appellant. Nor do we agree that it was possible in any practical, as distinct from theoretical, sense that that the jury’s assessment of the appellant’s guilt was materially affected by the impugned direction.
Although, as the respondent concedes, when considered in isolation, the first impugned direction had the potential to undermine the benefit of the presumption of innocence, when the summing up is considered fairly, as a whole, it did not have this effect.
The summing up takes up 18 pages of transcript. After a brief introduction, and a statement that the jury must accept the law as the judge states and apply that law to the facts as they find them, the summing up began with the following:
The onus of proof remains on the prosecution throughout to establish each of the elements of the charge. That does not mean that the prosecution has to prove the truth and accuracy of everything said by each of the witnesses it has called. The relevant requirement is that the prosecution must prove each of the elements of the charge beyond reasonable doubt.
There is no onus on the accused to prove or establish anything. He does not have to prove he is innocent. He is presumed innocent until and unless you find him guilty. It is not your job to decide between guilt and innocence. It is your job to decide whether the prosecution has proved that he is guilty or not.[106]
The trial judge then said: “I want to deal now with some things to do with the evaluation of evidence.” There follows standard remarks about assessing honesty and accuracy. It is during this portion of the summing up that the first impugned direction was interpolated into remarks about the assessment of honesty. No other complaint has been made about this part of the summing up.
After that, the trial judge gave a standard direction about inferences, briefly summarised the “case theory” of the prosecution and the defence in two short paragraphs, and then handed out the aide memoire. In going through the aide memoire the trial judge said that there was no dispute about the first two elements of the charge (sexual intercourse and intention to have sexual intercourse) and then focused on the third and fourth elements (lack of consent and knowledge or recklessness as to lack of consent). In doing so, the trial judge took each element in turn, and summarised the evidence and submissions of counsel in relation to each element. In summarising the evidence in relation to consent, the trial judge made the second impugned direction which we have found was not such as to give rise to a miscarriage of justice. No other complaint has been made about that part of the summing up.
At the end of that part of the summing up the trial judge said:
As I have said, the accused does not have to prove anything. Even if you do not positively believe the evidence of the accused, if his evidence raises a reasonable doubt on those issues, he is entitled to the benefit of that doubt and you must find him not guilty.
Even if you are convinced that the accused’s evidence is not true, it is not the case that you must then convict him. In that circumstance you should put the accused’s evidence to one side and ask yourself whether the prosecution has proved the accused’s guilt beyond reasonable doubt on the basis of the evidence that you do accept.[107]
The trial judge adopted the same structure in going through the evidence and submissions of counsel in relation to the fourth element (knowledge or recklessness as to the lack of consent) and ended that part of the summing up with the following:
That deals with the last element of the charge. If you are not satisfied that the prosecution has proved beyond reasonable doubt all of the elements of the charge against the accused, then you must find him not guilty.
If you are satisfied that the prosecution has proved beyond reasonable doubt all of the elements of the charge against the accused, then you must find the accused guilty.[108]
No complaint has been made about that part of the summing up.
The trial judge then announced: “I am now going to give you some particular directions in relation to a number of issues concerning the case. …”[109] The first direction given was a direction about the accused’s evidence. The trial judge directed the jury:
… Firstly, the accused took the step of giving evidence on oath. He is not, by law, required to do this. He is entitled to sit in the dock and say nothing. If he did that he could not be questioned about these matters and no adverse inference could be drawn against him.
But by going into the witness box, he exposed himself to the dangers of cross-examination by the Crown prosecutor. You are entitled, if you see fit, to give him some credit for this. It is a matter for you to decide whether you feel that your estimation of the accused has been improved by the fact that he has taken the oath and exposed himself to the test of cross-examination without being under any obligation to do so. When considering the accused’s evidence you might, like any other piece of evidence, decide to accept it in whole, or in part.[110]
The trial judge then briefly recapitulated the submissions of both counsel on whether to accept the accused’s evidence and said:
You can and should listen to and weigh the arguments made by both counsel. Ultimately, however, the decision whether you accept the accused’s evidence or not is one for you as jurors having regard to your assessment of how he presented in the witness box and all the surrounding circumstances.
If you do decide to reject his evidence, or to reject those parts of his evidence which go to the essential issues in the case, that is, by itself, not enough for you to convict him. The Crown still has to prove that he is guilty beyond reasonable doubt, of the charge.
If you disbelieve the accused, all that means is you do not accept his evidence. You then just put it to one side and consider whether, on all of the other evidence, the Crown has proved that the accused is guilty beyond reasonable doubt. You cannot convert his denials into positive evidence that he did what he has been accused of.[111]
Her Honour went on to remind the jury to put feelings out of their mind and judge the matter rationally and impartially. There followed a direction about complaint evidence during which the judge summarised that complaint evidence and reminded the jury of some of the submissions of counsel in relation to that evidence.
After that, the trial judge spoke about the defence contentions that both LG and her parents had motives to lie, reminded the jury about counsel’s submissions on the topic and continued:
The accused does not have to prove that LG or her parents had motives to lie. As I have already said, he does not have to prove anything at all.
If you reject the shame as a reason for LG to lie, that will not necessarily justify a conclusion that her evidence is truthful. Similarly, if you reject the ex-partner’s visa as a reason for Mr and Mrs G to lie, that will not necessarily justify a conclusion that their evidence is truthful.[112]
Once again, that part of the summing up concluded with this reminder:
I remind you again that it is for the prosecution to prove beyond reasonable doubt that the accused is guilty by establishing each of the elements of the charged offence beyond reasonable doubt.[113]
The next topic on which the trial judge gave particular directions was an “oath on oath” direction in the following terms:
To a certain extent this is what is called an “oath on oath” case because in relation to the allegations which make up the charge, there was no one else present and no one else able to observe what happened. Where it is the word of one witness against another, care needs to be taken. You do not just ask yourselves, “Who do I believe, LG or the accused?” For the Crown to succeed you need to be satisfied beyond a reasonable doubt about the truth and reliability of the evidence of LG on each element of the offence in question.
If you have a reasonable doubt about that evidence you are required to acquit. The accused is entitled to the benefit of that doubt. Where, as in this case, there is only one witness providing the direct evidence on which the Crown relies to prove the essential elements, the evidence of that one witness must be scrutinised carefully before you come to a conclusion that the accused is guilty.[114]
The trial judge then gave a good character direction; gave the standard directions about ignoring the fact that some witnesses gave evidence by AVL or from behind a screen; and made some concluding remarks. No complaint is made about any of the particular directions given by the trial judge.
We conclude that the overall tenor of the summing up gave the jury accurate instructions as to the burden of proof. Appropriate particular directions were given, and the trial judge ended the discussion of each contested element of the charge by reminding the jury that the Crown bore the onus of proving each element of the charge beyond reasonable doubt. Altogether the trial judge directed the jury that the Crown bore the onus of proving the guilt of the accused beyond reasonable doubt six times.
Further, this is not a case which turned wholly, or even primarily, on the jury assessing the credit of the appellant against the credit of the complainant LG. There was a great deal of evidence supportive of the guilt of the appellant which was independent of LG, including the evidence of VG and NG about admissions to the offending made by the appellant and the recording of the pretext phone call which contained both implied and actual admissions by the appellant. When faced with the question, multiple times, in that phone call, “Why did you rape me?” the appellant was silent. He did not challenge the assertion that he had in fact raped LG. Further, he said, “There was no reason,” explicitly accepting the premise of the question. There is no way in context that these admissions and the reference to an apology, could refer to anything other than the accusation of rape which had been levelled at the appellant by LG. In context, they could not plausibly have been intended to refer to an act of consensual sex as asserted in evidence by the appellant.
On the whole of the evidence properly admitted in the trial, we are convinced beyond reasonable doubt of the guilt of the accused on the charge on the indictment. In our view, it is an appropriate case for the application of the proviso. The appeal should be dismissed.
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[1] Transcript dated 31 August 2021 at 394 (AB 433)

[2] Transcript dated 31 August 2021 at 401 (AB 440)

[3] [1991] HCA 38, (1991) 180 CLR 531 (“Robinson”)

[4] Supra at 535 para [6]

[5] ibid at 536 para [7]

[6] Supra at 535 - 536 paras [6] and [7]

[7] ibid at 536 para [8]

[8] (1993) 67 ALJR 510 (“Stafford”)

[9] [1998] HCA 2 at 42 (“Palmer”); Palmer concerned questioning of the accused about the accuser’s motivations, but Kirby J saw the principle in Robinson as analogous saying (at 43): “In circumstances where the arguments of principle and policy are so finely balanced, the adoption of a rule which is harmonious with an analogous principle earlier accepted by the Court is, for me, decisive.”

[10] [2011] HCA 44 (“Hargraves”)

[11] French CJ, Gummow, Hayne, Crennan, Kiefel and Bell JJ; (Heydon J agreeing in a separate judgment)

[12][2011] HCA 44 at [38]

[13] ibid at [41]

[14] ibid at [42] to [46]

[15] Transcript dated 31 August 2021 at 394 (AB 433)

[16] Transcript dated 31 August 2021 at 394 (AB 433)

[17] [1991] HCA 38 at [6]

[18][2019] NTCCA 10

[19] ibid at [34]-[35], See also DC v The Queen [2022] NTCCA 8 at [23]

[20] [2022] NTCCA 8 (“DC”)

[21] ibid at [30]

[22] (2003) 217 CLR 1 (“Dhanhoa”) at [49];

[23] (2003) 212 CLR 299 (“Soma”) at [42].

[24] ibid at [11]

[25] (2003) 217 CLR 1 at [37] to [38]; See also statement of principle at [49]

[26] Tomlinson v R [2022] NSWCCA 16 at [117]

[27] [2021] HCA 36; 95 ALJR 937 at [116]

[28] Transcript dated 31 August 2021 at p 401 (AB 440)

[29]Transcript dated 31 August 2021 at p 401 (AB 440)

[30] Transcript dated 31 August 2021 at p 401 (AB 440)

[31] Transcript dated 31 August 2021 at p 405 (AB 444)

[32] Transcript dated 31 August 2021 at p 410 (AB 449)

[33] Transcript dated 31 August 2021 at p 411 (AB 450)

[34] AB 513

[35] AB 512

[36] AB 513

[37] The appellant conceded this in evidence.

[38]AB 513 and AB 516

[39] R v Birks (1990) 48 A Crim R 385 at 410

[40] ibid; also Shaw v The Queen (1952) 85 CLR 365 at 381

[41] AB 513

[42]AB 516

[43] AB 513

[44] AB 513

[45] [2013] NSWCCA 121 at [74] to [75]

[46][2006] ACTSC 97

[47] [2013] NSWCCA 316

[48] Statutory Declaration of Detective Senior Constable First Class Janice Kershaw dated 20 August 2021 (AB 480)

[49] Transcript dated 23 August 2021 at p 9 (AB 48)

[50] Transcript dated 23 August 2021 at p 9 (AB 48)

[51] [1995] HCA 66 (“Ridgeway”) at [28]

[52] [2001] NTSC 36

[53] [2009] NTSC 13

[54][2017] NTSC 46

[55] Transcript dated 23 August 2021 at p 27 (AB 66)

[56] Transcript dated 24 August 2021 at p 79 (AB 118)

[57] Transcript dated 31 August 2021 at p 404 (AB 443)

[58] Transcript dated 31 August 2021 at p 402 (AB 441)

[59] Transcript dated 31 August 2021 at p 404 (AB 443)

[60] Transcript dated 31 August 2021 at p 392 (AB 431)

[61] [2006] VSCA 263 at [84] to [87]

[62][2022] NTCCA 11 at [63] to [66]

[63](2003) 217 CLR 1

[64][2018] ACTCA 55

[65][1999] HCA 37; 196 CLR 297

[66] [2014] ACTCA 11

[67] (2019) 343 FLR 41 at [217] citing University of Wollongong v Metwally (No 2) (1985) 59 ALJR 481 at 483; Mostert v Durban Roodepoort Deep (Ltd) [2004] WASCA 309 at [54]; Multicon Engineering Pty Ltd v Federal Airports Corporation (1997) 47 NSWLR 631 at 645.

[68] [1981] VR 247 (CCA) at 252

[69](1991) 103 FLR 8 at 10 – 11

[70][2006] VSCA 226 at [94]; cases cited by Ashley JA as examples are: R v Clarke and Johnstone [1986] VicRp 64; [1986] VR 643 at 661-662, R v Gallagher [1998] 2 VR 671 at 681 per Brooking JA, and R v GAM [2003] VSCA 185 at [10] per Winneke P.

[71][2003] VSCA 185 at [10] – [11]

[72] Transcript dated 31 August 2021 at p 375 (AB 414)

[73]Transcript dated 31 August 2021 at p 382 (AB 421)

[74] [2018] WASCO 56 at p42

[75] [1988] HCA 47

[76] R v Tait & Bartley (1979) 24 ALR 473

[77] This is precluded by UEA s 165B(4).

[78]Evans v the Queen (2007) 235 CLR 521; [2007] HCA 59 at [232]

[79] [2011] VSCA 43 (“PT”) at [27] quoted in Robbins (a Pseudonym) v The Queen [2017] VSCA 288 (“Robbins”) at [176]

[80] [2011] VSCA 43 at [38]; See also Robbins at [177]

[81][2017] VSCA 288 at [186]

[82][2017] NSWCCA 280 at [22]

[83] [2011] VSCA 43 at [25]

[84] (2011) 109 SASR 465; [2011] SASCFC 29 (“Cassebohm”) at [30] to [31]

[85]The South Australian provision requires the court to form “the opinion that the period of time that has elapsed between the alleged offending and the trial has resulted in a significant forensic disadvantage to the defendant.”

[86] [2020] TASCCA 11 (“Anderson”) at [71]

[87] Transcript dated 31 August 2021 at p 394 (AB 433)

[88] [2005] HCA 81; (2005) 224 CLR 300 at ** (“Weiss”)

[89] [2022] NTCCA 8 at [26]-[60]

[90] [2022] NTCCA 7

[91]Weiss (2005) 224 CLR 300 at [12]-[18]; DC [2022] NTCCA 8 at [35]

[92] DC [2022] NTCCA 8 at [35]

[93] DC at [36]

[94] Weiss (2005) 224 CLR 300 at [39]-[43]; DC at [36]

[95] ibid

[96]Weiss (2005) 224 CLR 300 at [50]-[57]; DC at [37]

[97] DC at [39](c)

[98]Weiss (2005) 224 CLR 300 at [44]; DC at [36]

[99] DC at [39]

[100]DC at [39](d)

[101] Hofer at [51], [54] and [72]; Weiss at [44]-[46]; RH v The Queen [2022] NTCCA 7 at [113] – [115].

[102] Wilde v The Queen (1988) 164 CLR 365 (“Wilde”) at [10]

[103] Wilde at pp372-3

[104] Wilde at [10]. In Hofer the example given of such an irregularity that would go to the root of the proceeding was a case in which counsel’s ineptitude was so extreme as to constitute a denial of due process to the client, such as failing for no valid reason to cross-examine material witnesses, or failing to address the jury.

[105] (2008) 236 CLR 358 at [123]-[124]; DC at [38]

[106] Transcript dated 31 August 2021 at p 398 (AB 433)

[107]Transcript dated 31 August 2021 at p 401 (AB 440)

[108] Transcript dated 31 August 2021 at pp 404 and 405 (AB 443 and 444)

[109] Transcript dated 31 August 2021 at p 405 (AB 444)

[110]Transcript dated 31 August 2021 at p 405 (AB 444)

[111]Transcript dated 31 August 2021 at p 405 (AB 444)

[112]Transcript dated 31 August 2021 at p 410 (AB 449)

[113] Transcript dated 31 August 2021 at p 411 (AB 450)

[114]Transcript dated 31 August 2021 at p 411 (AB 450)

[2022] NTCCA 13

2 September 2022

Key Legal Topics

Areas of Law

Criminal Law

Evidence

Legal Concepts

Charge

Consent

Intention