Malesevic v The Queen
[2020] SASCFC 109
•18 November 2020
SUPREME COURT OF SOUTH AUSTRALIA
(Court of Criminal Appeal: Application)
MALESEVIC v THE QUEEN
[2020] SASCFC 109
Judgment of The Court of Criminal Appeal
(The Honourable Justice Stanley, The Honourable Justice Parker and The Honourable Justice Doyle)
18 November 2020
CRIMINAL LAW - APPEAL AND NEW TRIAL - PARTICULAR GROUNDS OF APPEAL - MISDIRECTION AND NON-DIRECTION - EFFECT OF MISDIRECTION OR NON-DIRECTION
CRIMINAL LAW - APPEAL AND NEW TRIAL - PARTICULAR GROUNDS OF APPEAL - MISDIRECTION AND NON-DIRECTION - REVIEW OF EVIDENCE
CRIMINAL LAW - APPEAL AND NEW TRIAL - MISCARRIAGE OF JUSTICE - PARTICULAR CIRCUMSTANCES NOT AMOUNTING TO MISCARRIAGE - MISDIRECTION OR NON-DIRECTION
This is an application for permission to appeal against conviction and an application for an extension of time within which to do so.
After a trial by jury the applicant was found guilty of trafficking in a large commercial quantity of a controlled drug, namely cannabis. She was jointly charged with her husband. He was also found guilty.
The appeal concerns whether a miscarriage of justice occurred by reason of the directions given and not given by the trial judge in relation to the evidence of a record of interview with another individual admitted pursuant to s 34KA of the Evidence Act 1929 (SA).
The record of interview was adduced as part of the defence case during the course of evidence given by a police officer. The defence case was that the other individual had possession of the cannabis. That was the effect of what the individual said to police in the course of the record of interview. The defence case was that the evidence of the record of interview, adduced by the applicant, made it a reasonable possibility she was not in possession of the cannabis.
At trial the prosecution submitted to the jury that cross-examination of a witness was important in assessing the credit and reliability of a witness. The prosecutor emphasised that because there was no cross-examination of the individual there were a number of questions that the jury would have wanted answered but this did not occur because he was not called as a witness. The prosecution submitted that the evidence of the record of interview should not be accepted; that it was a fabrication and that it was made up because the individual was under pressure.
The applicant submits that her trial miscarried as a result of the judge’s direction concerning the disadvantage the prosecution suffered from its inability to cross-examine the individual and by the judge’s failure to direct the jury that they could not draw an adverse inference against the applicant because was the individual was unavailable for cross-examination.
Held (per Stanley J, Parker and Doyle JJ agreeing):
1. It was necessary for the trial judge to give direction to the jury as to how they could use the evidence of the record of interview. The direction given by the judge adequately struck that balance between explaining the limits of the evidence while also explaining its significance to the defence case in order to ensure the applicant received a fair trial.
2. When evidence is admitted pursuant to s 34KA it is permissible, if not necessary, for the trial judge to direct the jury to take into account specific factors affecting the weight to be given to evidence of out-of-court statements.
3. The judge directed the jury that they must not speculate as to the reasons why the individual did not give oral evidence as a witness at the trial. This was a perfectly proper direction. The judge did not fall into error in doing so. While the judge could have said to the jury that no adverse inference against the applicant should be drawn from the failure to call the individual as a witness, such a direction was not necessary, particularly in light of the direction not to speculate as to why he was not called as a witness.
4. The applicant has failed to demonstrate that her conviction was the result of a miscarriage of justice.
5. Permission to appeal is refused. The appeal is dismissed. It is unnecessary to decide the question of the extension of time.
Evidence Act 1929 (SA) s 34KA, referred to.
Dyers v The Queen (2002) 210 CLR 285, applied.
Jones v Dunkel (1959) 101 CLR 298; Azzopardi v The Queen (2001) 205 CLR 50; Mahmood v State of Western Australia (2008) 232 CLR 397; Weissensteiner v The Queen (1993) 178 CLR 217; GBF v The Queen [2020] HCA 40, discussed.
R v Haines [2016] SASC 96; Falkiner v The Queen [2019] SASCFC 118; R v Carbone (No. 2) (1976) 14 SASR 280; R v Aziz [1982] 2 NSWLR 322; R v C, CA [2013] SASCFC 137, considered.
MALESEVIC v THE QUEEN
[2020] SASCFC 109Court of Criminal Appeal: Stanley, Parker and Doyle JJ
STANLEY J:
Introduction
This is an application for permission to appeal against conviction and an application for an extension of time within which to do so.
After a trial by jury the applicant was found guilty of trafficking in a large commercial quantity of a controlled drug, namely cannabis. She was jointly charged with her husband. He was also found guilty.
The appeal raises a short point in relation to whether a miscarriage of justice occurred by reason of the directions given and not given by the trial judge in relation to the evidence of a record of interview with a Mr Scott Moed admitted pursuant to s 34KA of the Evidence Act 1929 (SA) (the Act).
It is convenient to consider the merits of the application for permission to appeal before deciding whether to grant an extension of time.
Section 34KA
Section 34KA provides:
(1) Subject to this section, in prescribed proceedings, a statement not made in oral evidence in the proceedings (an out of court statement) is admissible as evidence of any matter stated if—
(a) oral evidence given in the proceedings by the person who made the out of court statement would be admissible as evidence of that matter; and
(b) the person who made the out of court statement (the relevant person) is identified to the court's satisfaction; and
(c) any 1 of the conditions specified in subsection (2) is satisfied.
(2) The conditions are as follows:
(a) that the relevant person is dead;
(b) that the relevant person is unfit to be a witness because of a bodily or mental condition;
(c) that the relevant person is outside of the State and it is not reasonably practicable to secure his or her attendance;
(d) that the relevant person cannot be found although such steps as it is reasonably practicable to take to find him or her have been taken;
(e) that through fear the relevant person does not give (or does not continue to give) oral evidence in the proceedings, either at all or in connection with the subject matter of the out of court statement, and the court gives leave for the out of court statement to be given in evidence.
…
(5) A condition set out in any paragraph of subsection (2) which is in fact satisfied is to be treated as not satisfied if it is shown that the circumstances described in that paragraph are caused—
(a) by the person in support of whose case it is sought to give the out of court statement in evidence; or
(b) by a person acting on his or her behalf, in order to prevent the relevant person giving oral evidence in the proceedings (whether at all or in connection with the subject matter of the out of court statement).
(6) Nothing in this section makes an out of court statement admissible as evidence if it was made by a person who was not competent at the time when he or she made the statement.
(7) This section is in addition to, and does not derogate from, any other power of a court to admit an out of court statement into evidence.
(8) In this section—
prescribed proceedings means—
(a) proceedings for a criminal offence; or
(b) proceedings under the Serious and Organised Crime (Control) Act 2008.
Section 34KA renders admissible the out-of-court statements of persons who are, relevantly to this application, unable to be found. The statement is admissible, without more, if two preconditions are satisfied. First that the person could have testified as to the contents of the statement, and second, that one of the prescribed reasons, other than fear, for the inability to give evidence is made out. It is unnecessary in this case to consider further the issue of fear.
Admission of the evidence of Mr Moed
On the voir dire the applicant sought the admission of the record of interview of Mr Moed pursuant to s 34KA(2)(d). The application was brought on the basis that Mr Moed could not be found although such steps as were reasonably practicable to take to find him had been taken. The judge granted the application.
The record of interview with Mr Moed was adduced as part of the defence case during the course of evidence given by a police officer. The defence case was that Mr Moed, and Mr Moed alone, had possession of the cannabis. That was the effect of what he said to police in the course of the record of interview. Under caution, Mr Moed told police in the course of that interview that he had found the cannabis, the subject of the charge, by the side of a road. He said he brought it to the house occupied by the applicant and her husband. He told police that he was present on the property in the rear yard when the police raided the house. He said he escaped by jumping the back fence. The defence case was that the evidence of the record of interview, adduced by the applicant, made it a reasonable possibility she was not in possession of the cannabis.
The prosecutor’s submissions to the jury concerning Mr Moed
At trial the prosecution submitted to the jury that cross-examination of a witness was important in assessing the credit and reliability of a witness. The prosecutor emphasised that because there was no cross-examination of Mr Moed there were a number of questions that the jury would have wanted answered by Mr Moed but this did not occur because he was not called as a witness. The prosecution submitted that the evidence of his record of interview should not be accepted; that it was a fabrication and that Mr Moed made it up because he was under pressure.
Ground of appeal
The applicant submits that her trial miscarried as a result of the judge’s direction concerning the disadvantage the prosecution suffered from its inability to cross-examine Mr Moed and by the judge’s failure to direct the jury that they could not draw an adverse inference against the applicant because Mr Moed was unavailable for cross-examination.
The judge’s directions
The judge gave the following directions to the jury concerning the evidence of Mr Moed’s record of interview:
As you know, Mr Moed didn’t come to court as a witness and give oral evidence. Do not speculate why.
I need to give you an important legal direction about using what he said in this interview with the police as evidence rather than evidence that would usually be in the form of oral evidence. As you would know by now, evidence in a trial comprises evidence of witnesses who come into court and give evidence from the witness box after swearing an oath or giving an affirmation. The witnesses are asked questions by the party who calls them. That is an important opportunity to assess the credibility and reliability of the witness, how the story hangs together, how the witness presents, all those sorts of things.
The witness is then cross-examined. Cross-examination of a witness is a very important part of a criminal trial. It enables the evidence of a witness to be tested. It enables the further assessment of the witness’s reliability and credibility. It provides the opportunity to put any inconsistencies to that witness for them to comment upon and it also enables alternative scenarios to be put to that witness and be commented upon. The interview between Mr Moed and the police about the cannabis, his description of the packaging, how he came to be in possession of the cannabis, and all the other matters he raises in his interview with police is evidence you may consider in this case. However, I direct you that you must exercise caution in doing so. None of his statements were made in circumstances where he gave an oath or affirmation. Further, you haven’t seen or heard him as a witness in this court. This [sic] has been no testing of what he said in those statements through cross-examination. The prosecution has not been able to cross-examine Mr Moed as to his memory, credibility and reliability of his account. However, that does not mean you cannot rely upon what he said. What I am directing you to do is that before you do so you must scrutinise what he said with care, taking into account any matters you think might detract from his credibility and reliability, including other evidence in the case. Detective Gladigau, in the absence of Detective Bone at the interview, expressed the view that a lot of what Mr Moed said was accurate but you will pause to consider that there were some details as pointed out by the prosecution which were not quite right. You also heard about Mr Moed’s past criminal history and that is a matter you need to consider in assessing whether what Mr Moed said is credible and reliable, including the circumstances in which he presented at Christies Beach police station. You can take Mr Moed’s criminal history into account in assessing his credibility and reliability.
If, however, after considering carefully what he said you consider his account is credible and reliable you can act upon what he said accordingly. You do not have to be satisfied of his version beyond a reasonable doubt. If you think it is a reasonable possibility then that would mean the prosecution have not proved the element of possession beyond reasonable doubt and you will acquit both accused. If you do not accept all or any part of what Mr Moed said, you must not draw any inference adverse to the accused or the case they put forward. In other words, you may not accept any part of what Mr Moed said but in doing so that does not mean the accused are necessarily guilty. The prosecution still have to prove the ingredients of the offence beyond reasonable doubt.
The applicant’s submissions
The applicant submits that the trial judge’s directions emphasised the prosecution’s submissions on Mr Moed and implicitly endorsed the disadvantage complained of by the prosecution. This approach amounted to a Jones v Dunkel[1] type of direction adverse to the applicant by reason of her failure to call Mr Moed and expose him to cross-examination, in circumstances where the jury did not know why Mr Moed was not called to give evidence.
[1] [1959] HCA 8, (1959) 101 CLR 298.
The applicant submits that the trial judge erred by failing to direct the jury that they could not draw an adverse inference because the defence witness Mr Moed was unavailable for cross-examination.
The applicant submits that there is a risk that the jury were left thinking that there was an obligation on the applicant to answer the questions the prosecution said were raised by the evidence of Mr Moed’s record of interview. This left open the possibility that the jury impermissibly reasoned that if Mr Moed had been cross-examined his evidence would not have assisted the applicant. This risk was increased by reason of the judge’s failure to explain to the jury why Mr Moed was not called to give evidence. This failure had three consequences. First, it shifted the burden of proof to the applicant. Second, it contravened the fundamental principle of a criminal trial, explained in Azzopardi v The Queen,[2] that there is no obligation on an accused to call any evidence in his or her defence and that the failure to do so cannot give rise to an adverse inference.[3] Third, it undermined a critical plank of the defence case, namely, the reasonable possibility that Mr Moed had the exclusive possession of the cannabis.
[2] [2001] HCA 25, (2001) 205 CLR 50.
[3] [2001] HCA 25 at [3]-[21], (2001) 205 CLR 50 at 56-62.
Absence of complaint by defence counsel at trial
At the trial the accused’s counsel made no complaint in relation to the direction given by the judge in the impugned passage set out above. No request was made of the judge for redirection or further direction.
Consideration
When considering the directions given by the judge to the jury in this case it is important to remember that the question of the admissibility of Mr Moed’s record of interview had already been decided. The directions to be given did not concern the admissibility of that evidence but its use.
It was necessary for the trial judge to give direction to the jury as to how they could use the evidence of Mr Moed’s record of interview. That direction had to explain the limits of that evidence, given that the jury did not have the opportunity to hear viva voce evidence from Mr Moed, while explaining the significance of that evidence to the defence case in order to ensure that the applicant obtained a fair trial. In my view, the direction given by the judge adequately struck that balance.
While consideration of weight can be relevant to the exercise of the discretion to admit evidence pursuant to s 34KA of the Act,[4] once the evidence is admitted, the issue of the weight to be given to such evidence remains relevant.
[4] R v Haines [2016] SASC 96 at [39]-[40].
When evidence is admitted pursuant to s 34KA it is permissible, if not necessary, for the trial judge to direct the jury to take into account specific factors affecting the weight to be given to evidence of out-of-court statements. Those factors include that the evidence of the out-of-court statement has not been tested by cross-examination. This is not the only factor. In this case other factors include that Mr Moed did not give evidence in front of the jury and the out-of-court statement was not given under oath or affirmation.
The jury was required to assess whether any, and if so, what weight should be given to the evidence of Mr Moed’s record of interview.
The judge commenced this part of his directions telling the members of the jury that they must not speculate as to the reasons why Mr Moed did not give oral evidence as a witness at the trial. This was a perfectly proper direction. The judge did not fall into error in doing so. This Court is entitled to assume that the jury acted upon this direction. While the judge could have said to the jury that no adverse inference against the applicant should be drawn from the failure to call Mr Moed as a witness, such a direction was not necessary, particularly in light of the direction not to speculate as to why he was not called as a witness. Indeed, a direction that the jury should not draw an adverse inference from the accused’s failure to call Mr Moed as a witness in her defence might only have served to invite speculation as to the reason why he was not called to give evidence and thereby lead to the drawing of an inference adverse to the applicant from her failure to do so. Accordingly, such a direction carried the risk of occasioning unfairness to the applicant.
In any event, the judge, in the impugned passage in his summing up, expressly directed the jury in relation to the evidence of Mr Moed’s record of interview that if they did not accept all or any part of what Mr Moed said they must not draw an inference adverse to the applicant or the case she put forward. That formed part of a broader direction that if the jury considered the account Mr Moed gave to the police in the course of the interview was a reasonable possibility then they had to acquit.
It is important to recognise that the inability of the prosecution to cross-examine Mr Moed was relevant to the weight to be given to the evidence of his record of interview. It cannot be suggested that the inability to cross-examine Mr Moed did not logically affect the weight the jury would give that evidence.
I do not accept that the directions given by the judge would have led the jury to reason that some obligation was placed on the applicant to explain why Mr Moed was not called or to provide answers to the questions the prosecution submitted his statement did not answer. The directions that the jury must not speculate as to why he had not been called and that, if they rejected all or any part of what he said in the record of interview, they must not draw an adverse inference, contradicts that submission. For the reasons set out above, the absence of an explanation as to why the record of interview was admitted logically could not have undermined the defence case. No submission was put to the jury that the absence of an explanation for the admission of the record of interview undermined the defence case. The applicant at trial made the forensic decision to adduce evidence of Mr Moed’s record of interview as part of the defence case. The application to adduce that evidence was opposed by the prosecution. It was unsurprising that at trial the prosecution was critical of that evidence. The submissions made by the prosecutor to the jury were directed to undermining that evidence so as to persuade the jury that the account given by Mr Moed in his statement to police should be rejected as not being reasonably possible. That was the point of the prosecution case. That does not result in a miscarriage of justice. The applicant having elected to adduce that evidence to support a positive defence ran the risk that it would not be accepted as a reasonable possibility.
Further, I do not accept the submission that the judge’s directions as to the weight to be given to the evidence of the record of interview amounted to a Jones v Dunkel[5] type of direction adverse to the applicant for failing to produce Mr Moed for cross-examination. The submission is misconceived.
[5] [1959] HCA 8, (1959) 101 CLR 298.
The applicability of the principle in Jones v Dunkel to a criminal trial was considered in Dyers v The Queen[6] where Gaudron and Hayne JJ said:[7]
As a general rule a trial judge should not direct the jury in a criminal trial that the accused would be expected to give evidence personally or call others to give evidence. Exceptions to that general rule will be rare. They are referred to in Azzopardi. As a general rule, then, a trial judge should not direct the jury that they are entitled to infer that evidence which the accused could have given, or which others, called by the accused, could have given, would not assist the accused. If it is possible that the jury might think that evidence could have been, but was not, given or called by the accused, they should be instructed not to speculate about what might have been said in that evidence.
Further, as a general rule, a trial judge should not direct the jury in a criminal trial that the prosecution would be expected to have called persons to give evidence other than those it did call as witnesses. It follows that, as a general rule, the judge should not direct the jury that they are entitled to infer that the evidence of those who were not called would not have assisted the prosecution. A direction not to speculate about what the person might have said should be given. Again, exceptions to these general rules will be rare and will arise only in cases where it is shown that the prosecution's failure to call the person in question was in breach of the prosecution's duty to call all material witnesses.
[citation omitted]
[6] [2002] HCA 45, (2002) 210 CLR 285.
[7] [2002] HCA 45 at [5]-[6], (2002) 210 CLR 285 at 291.
McHugh J held that in criminal cases there is less scope than in civil cases for drawing an inference from an accused’s failure to call witnesses that those witnesses would not have assisted the accused’s case.[8] Nevertheless, there may be circumstances in which it is appropriate to give a direction to the jury concerning the failure to call a witness.[9] Callinan J, with whom Kirby J agreed,[10] dealt with the principle in Jones v Dunkel by observing that the principle presupposes that there is occasion for the calling of evidence by an accused. Such a presupposition is incompatible with the presumption of innocence and the right of the accused neither to give, nor to call evidence at trial. In almost all cases a trial judge should say nothing about an absent material witness whom an accused might supposedly have called. At most, a trial judge might in some circumstances have occasion to say that the jury should act on the evidence, and only the evidence that has been called.[11]
[8] [2002] HCA 45 at [27], (2002) 210 CLR 285 at 298.
[9] [2002] HCA 45 at [29]-[30], (2002) 210 CLR 285 at 299.
[10] [2002] HCA 45 at [52], (2002) 210 CLR 285 at 305.
[11] [2002] HCA 45 at [121]-[123], (2002) 210 CLR 285 at 328.
Subsequently in Mahmood v State of Western Australia[12] the plurality of the High Court implicitly approved the views of Gaudron and Hayne JJ and Callinan J in Dyers.
[12] [2008] HCA 1 at [27], (2008) 232 CLR 397 at 406.
This was not a Jones v Dunkel case. As a general rule, in the context of a criminal trial Jones v Dunkel is concerned with the failure of the prosecution to call a material witness. At issue is whether the judge in such a case should give a direction to the jury whether it is open to them to draw an inference adverse to the prosecution case from the failure to call the witness. As the reasoning in Dyers demonstrates, that should only occur in rare circumstances. Even then, the jury cannot know what evidence the witness would have given. That was not the position here. Mr Moed’s version of events was in evidence. The judge did not invite the jury to infer anything about Mr Moed’s account of events. The directions the judge gave went no further than to identify matters that the jury might consider in evaluating the weight they would give that evidence. There was no direction that the jury should draw an inference adverse to the applicant from the absence of Mr Moed from the witness box.
The applicant’s reliance on Azzopardi also is misplaced. Azzopardi is concerned with the rare and exceptional circumstances in which a judge might comment on the failure of an accused to offer an explanation for evidence led on the prosecution case. This will occur only if the evidence is capable of explanation by disclosure of additional facts known only to the accused.[13] This principle is an exception to the established common law principle that an accused is not obliged to give evidence and that his or her silence could not be treated as evidence of guilt. In their joint reasons, Gaudron, Gummow, Kirby and Hayne JJ said:[14]
It is to be emphasised that cases in which a judge may comment on the failure of an accused to offer an explanation will be both rare and exceptional… A comment will never be warranted merely because the accused has failed to contradict some aspect of the prosecution case.
[13] [2001] HCA 25 at [68], (2001) 205 CLR 50 at 75.
[14] [2001] HCA 25 at [68], (2001) 205 CLR 50 at 75.
In Weissensteiner v The Queen[15] Gaudron and McHugh JJ considered the circumstances of that rare and exceptional category of case in which comment on the failure of an accused to offer an explanation for the prosecution’s allegations may be warranted. They said:[16]
[T]here is a difference between mere silence or the absence of evidence, on the one hand, and, on the other, the failure to explain facts for which, it is assumed, an innocent person would offer some explanation. Where there is an assumption to that effect, the failure to explain is conduct which proves or tends to prove guilty knowledge on the part of the accused and is, itself, evidence.
The right to silence is, of course, concerned with more than the presumption of innocence and the duty of the prosecution to prove guilt beyond reasonable doubt. However, it is the presumption of innocence and the prosecution's burden of proof which preclude an adverse inference being drawn from silence which does not amount to evidence or, as we have called it, "mere silence". Because of the presumption and because of the burden of proof, silence of that kind proves nothing and provides no basis for any inference adverse to the accused. But neither the presumption of innocence nor the burden of proof bears upon the situation in which failure to explain is, itself, evidence. Nor does the privilege against incrimination: in circumstances involving an assumption that an innocent person would offer an explanation, the accused is not asked to testify against himself, but in favour of himself.
Given that failure to explain can amount to evidence, albeit in limited circumstances, there is no basis for departing from the authorities which acknowledge that, in those limited circumstances, it is appropriate to comment on the fact that particular evidence is unexplained or unanswered.
In the context of the right to silence, it is important to bear in mind that it is the failure to provide an "explanation or answer ... as might be expected if the truth were consistent with innocence" which is of evidentiary significance and not the failure to give evidence as such. In many cases, an explanation can be offered without the giving of evidence: it may, for example, be advanced when the person concerned is first confronted with the facts or it may be advanced in the course of the trial without evidence from the accused. Moreover, the assumption that an innocent person would offer an explanation loses all relevance if there has not been a real opportunity to explain. An opportunity of that kind, as was made clear in Bruce v. The Queen, does not encompass the situation in which the "accused, having been duly cautioned, declines to answer questions by the police in the exercise of his right to do so". Accordingly, directions should be given in terms of the unexplained facts, rather than in terms of the failure to give evidence or to meet the prosecution case generally or the failure to answer questions from investigating police. And to avoid any possibility of the jury giving significance to the accused's silence with respect to other matters, a direction, if one is to be given, should be precisely framed in terms of the particular facts which call for explanation in the sense indicated.
One other matter should be remembered with respect to the right to silence and its application in cases involving circumstances which call for an explanation in the sense indicated. If an explanation is offered, the question for the jury is whether that explanation is to be accepted as a reasonable possibility. If it is not, it is, in effect, no explanation at all. The fact that an explanation is advanced some time after a real opportunity to explain first presents itself may bear on whether it is to be accepted as a reasonable possibility. If an explanation is offered, the right to silence is not infringed merely by pointing out that the explanation was not given when a real opportunity first presented itself for, as already indicated, that ultimately goes to the question whether the facts are or are not explained.
[citations omitted]
[15] [1993] HCA 65, (1993) 178 CLR 217.
[16] [1993] HCA 65, (1993) 178 CLR 217 at 244-246.
These principles were recently reaffirmed by the High Court in GBF v The Queen.[17]
[17] [2020] HCA 40 at [21].
This was not a case where the prosecution or the judge had suggested to the jury that evidence adduced by the prosecution called for an explanation by the accused. At its highest the prosecution submitted that cogent reasons existed for the jury to reject the account given by Mr Moed in the record of interview. The judge went no further than identifying for the jury matters it might consider in evaluating the weight, if any, to be given to that evidence. None of that occasioned a miscarriage of justice.
In this regard it is also important that earlier in his summing up the judge gave the standard direction as to onus of proof in the following terms:
If an accused person puts forward a defence, he or she does not have to prove it. It is for the prosecution to disprove it or show that it is irrelevant, otherwise the prosecution would not have proved the charge beyond reasonable doubt. Any deficiency in the evidence can be sheeted home to the prosecution, not the defence. If an accused’s guilt has not been proved beyond reasonable doubt, obviously you must acquit.
Finally, it is important to remember that the onus rests on the applicant to establish that a miscarriage of justice occurred.[18] The failure of defence counsel at trial to complain about the judge’s direction and to seek a redirection or further direction is a significant factor to be evaluated in determining whether, in the atmosphere of the trial and the real issues to be determined by the jury, a miscarriage of justice has occurred.[19] The absence at trial of a request by defence counsel for a redirection or further direction is a telling factor in evaluating whether the applicant obtained a fair trial. In GBF v The Queen[20] the High Court said:[21]
The fact that defence counsel does not seek a direction may support a conclusion that in the context of the trial the direction was not required. The fact that defence counsel does not seek a redirection may support a conclusion that in the context of the charge as a whole a challenged statement does not bear the interpretation sought to be placed upon it on appeal.
[18] Falkiner v The Queen [2019] SASCFC 118 at [33].
[19] R v Carbone (No. 2) (1976) 14 SASR 280 at 287-288; R v Aziz [1982] 2 NSWLR 322 at 331; R v C, CA [2013] SASCFC 137 at [53].
[20] [2020] HCA 40.
[21] [2020] HCA 40 at [25].
In my view, the applicant has failed to demonstrate that her conviction was the result of a miscarriage of justice.
Conclusion
I would refuse permission to appeal. I would dismiss the appeal. This makes it unnecessary to decide the question of the extension of time.
PARKER J: I would refuse permission to appeal and dismiss the appeal. I agree with the reasons of Stanley J.
DOYLE J: I would refuse permission to appeal and dismiss the appeal. I agree with the reasons of Stanley J.
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