Manousakis v The King - [2024] SASCA 137

SUPREME COURT OF SOUTH AUSTRALIA
(Court of Appeal: Criminal)
MANOUSAKIS v THE KING
[2024] SASCA 137
Judgment of the Court of Appeal
(The Honourable President Livesey, the Honourable Justice Bleby and the Honourable Justice David)
5 December 2024
CRIMINAL LAW - APPEAL AND NEW TRIAL - MISCARRIAGE OF JUSTICE - PARTICULAR CIRCUMSTANCES AMOUNTING TO MISCARRIAGE - MISDIRECTION OR NON-DIRECTION
The appellant appeals his convictions for two counts of unlawful sexual intercourse with a complainant of 13 years, contrary to s 49 of the Criminal Law Consolidation Act 1935 (SA), following a trial before a jury in the District Court.
The offending was alleged to have happened when the complainant and a friend came to the appellant’s home and spent the night with the appellant and his girlfriend. They consumed alcohol and marijuana.
The prosecutor opened the case for the jury on the basis that, around a month later, the appellant’s now former girlfriend confronted him with the allegations and he responded by asking that, if police asked her, she should say that they were up all night having sex and watching “Family Guy” on television. This was described by the prosecutor in his opening to the jury as a “false alibi”.
The appellant’s former girlfriend gave evidence to that effect, telling the jury that what she was asked to say was not true. She did not mention the police in her evidence.
There was some confusion and disagreement about the proper use of this evidence. The prosecution disclaimed using the evidence as evidence evincing a “consciousness of guilt”. The prosecution submitted to the trial judge that it was evidence relevant to the appellant’s opportunity to commit the offending. However in his final address, the prosecutor invited the jury to adopt consciousness of guilt reasoning.
In his summing-up, the trial judge did not address the prosecution closing and directed the jury that the evidence was only relevant to opportunity, and it could not be used as evidence probative of the appellant’s guilt. Unorthodox directions of the kind discussed in Edwards v The Queen (1993) 178 CLR 193 were given regarding the use of the evidence as evidence of opportunity. The jury was directed that they could take the evidence into account as a circumstantial piece of evidence along with all of the other evidence in determining whether the Crown proved its case beyond reasonable doubt.
Defence counsel had earlier repeatedly requested a mistrial but took no objection to the prosecution closing and sought no further directions.
HELD (the Court) allowing the appeal, setting aside the convictions and ordering a retrial:
1.The evidence was not relevant to opportunity and was only relevant to whether the appellant had requested his former girlfriend to lie out of a consciousness of guilt.
2.Whilst the trial judge’s directions that the evidence about the false alibi conversation only went to opportunity, and could not be used as evidence of guilt, appeared favourable, the jury were put in a difficult position.
3.The evidence was stark and compelling and assumed prominence at the trial. It is likely to have had a devastating impact on the defence. It is the kind of evidence that required careful directions in accordance with Edwards v The Queen (1993) 178 CLR 193.
4.In the absence of appropriate Edwards directions, the evidence was capable of being misused by the jury. There is a real risk that the evidence was misused. There has been a departure from a trial conducted according to law to the prejudice of the appellant, and a miscarriage of justice within s 158(1) of the Criminal Procedure Act 1921 (SA).
5.The proviso should not be applied because it cannot be known whether the jury used the evidence about a false alibi conversation to overcome deficiencies in the complainant’s account. It cannot be said that the convictions were inevitable.
6.Observations made about the directions that would have been required had the evidence about a false alibi conversation been adduced by the prosecution in a straight-forward manner as evidence evincing a consciousness of guilt.

Criminal Law Consolidation Act 1935 (SA) s 49; Criminal Procedure Act 1921 (SA) ss 158(1), 158(2); Evidence Act 1929 (SA) ss 34P, 34R, referred to.
Coomer v Western Australia [2024] WASCA 133; Dupas v The Queen (2010) 241 CLR 237; Eade v The King (1924) 34 CLR 154; Edwards v The King; Piccinin v The King [2023] SASCA 113; Edwards v The Queen (1993) 178 CLR 193; Edwards v The Queen (2021) 273 CLR 585; HCF v The Queen (2023) 97 ALJR 978; Hofer v The Queen (2021) 274 CLR 351; Huxley v The Queen (2023) 98 ALJR 6; Katsuno v The Queen (1999) 199 CLR 40; Lee v The Queen (2014) 253 CLR 455; Maher v The Queen (1987) 163 CLR 221; Orreal v The Queen (2021) 274 CLR 630; R v Adamson [2018] SASCFC 114; R v BEC [2023] QCA 154; R v Tran [2017] SASCFC 99; R v Wildy (2011) 111 SASR 189; Sadler v The Queen [2023] SASCA 63; Steinberg v Federal Commissioner of Taxation (1975) 134 CLR 640; Weiss v The Queen (2005) 224 CLR 300; Zhou v R [2021] NSWCCA 278; Zoneff v The Queen (2000) 200 CLR 234, considered.

MANOUSAKIS v THE KING
[2024] SASCA 137
Court of Appeal – Criminal: Livesey P, Bleby and David JJA
THE COURT:
Introduction

The appellant appeals his convictions for two counts of unlawful sexual intercourse with a person under 14 years committed between 6 and 9 February 2021, contrary to s 49(1) of the Criminal Law Consolidation Act 1935 (SA).
The appellant was convicted on 27 July 2023, following a trial before a jury in the District Court. The appellant appeals against his convictions on the ground that the trial judge erred by failing to adequately direct the jury as to how they could use the evidence regarding his post-offence conduct, which was that he asked his then girlfriend, Ms HS, to falsely state that he was with her throughout the whole of the night of the offending.
It is said that whilst the jury was adequately directed as to how this evidence could not be used, they were not adequately directed as to how it could be used. As will be seen, the directions given by the trial judge were, whilst understandable given the way in which the trial was conducted by the parties, inadequate to meet the risks posed by what the prosecutor described as a “false alibi” conversation.
For the following reasons, there was a miscarriage of justice and the proviso should not be applied. The appeal should be allowed.[1]
[1] Permission to appeal was granted on 11 December 2023.
The prosecution case
The prosecution case was that the appellant caused the complainant to perform fellatio on him (count 1) and he inserted his fingers into her vagina (count 2). At the time the complainant was 13 years.
It was the prosecution case that the offending occurred when the complainant stayed at the appellant’s home one night. Also staying over were the appellant’s then girlfriend (Ms HS) and another friend (Ms HG).
The complainant was friendly with Ms HG and she drove them to the appellant’s home to meet the appellant’s girlfriend, Ms HS. At the time, Ms HG and Ms HS were 19 years and the appellant was 26 years. After the complainant arrived they all commenced drinking alcohol. There was also evidence of marijuana consumption. The complainant became intoxicated, and it was decided that she and Ms HG would stay the night. Whilst Ms HG slept in an unoccupied bedroom, the complainant slept on the couch in the lounge.
Later that evening, the complainant said that the appellant left the bedroom he shared with Ms HS, woke the complainant, and exposed his penis and inserted his fingers into her vagina. Although the complainant said that she was scared, she did what the appellant wanted and sucked his penis until he ejaculated into her mouth. He offered her a glass of water before returning to his bedroom.
The complainant said nothing about what had happened until around a month later, when she confided to another friend. It was after this that Ms HS found out about the allegations and confronted the appellant. Her evidence was that the appellant told her that, if asked, she should say that she and the appellant were up all night having sex and watching the television show, “Family Guy”. Ms HS gave evidence that she agreed to do this at the time, but that what she was asked to say was not true.
As will be seen, there was confusion during the trial about the way in which this evidence could be used.
The course of the trial - treatment of the appellant’s post-offence conduct
During the course of his opening, the prosecutor told the jury that Ms HS would give evidence that the appellant told Ms HS that if police contacted her, she should say they were awake all night having sex multiple times throughout the night. The prosecutor told the jury that this was a “false alibi”:[2]
On the prosecution’s case, the accused had asked Ms [HS] to give a false alibi and that’s something you can take into account, in conjunction with all other evidence, when determining if the charge is proven and whether the accused has created a false alibi or not.
If you find it is, you’ll need to consider what potential reasons there are for that, but you are able to take it into account in assessing whether the prosecution has proved the charge.
[2] Transcript of trial, R v Manousakis (District Court of South Australia, DCCRM-22-928, Allen DCJ), 14 (Transcript of trial).
Counsel who then appeared for the appellant told the jury that the charges were denied, and his client denied that there was any sexual intercourse at all.
The parties were not in agreement as to how the alleged false alibi should be considered by the jury. Following the opening addresses, and in the absence of the jury, defence counsel complained that the prosecutor had “potentially gone too far” with the false alibi and “coloured the jury’s view” without having first dealt with the issue at the start of the trial by identifying the use of the evidence with the defence and the court, and how that may be addressed.[3] He submitted that if the witness “doesn’t come up to proof” the jury had heard there was a false alibi and that might have “just coloured their view completely and that can’t be remedied”.[4]
[3] Transcript of trial, 22.
[4] Transcript of trial, 22
Defence counsel said he would take instructions on whether the jury should be discharged.
The balance of the first day was taken up with evidence led from the complainant by means of pre-recorded video evidence.
Early the following day, again in the absence of the jury, the prosecutor submitted to the trial judge that “the prosecution doesn’t rely on [the false alibi] for the purpose of proving that the accused lied out of a consciousness of guilt.” The trial judge said that he would give “a standard lies direction, where they can use the lie to assess the credit of the accused.” Relevantly, the prosecutor then said:[5]
I might add that the false alibi corroborates that the accused had the opportunity to offend. He has told the lie to discredit the evidence of the complainant because he’s unable to corroborate he had no opportunity to offend and that is not to say the burden of proof has shifted, but his choice to establish a false alibi is probative of the fact he did, in fact, have the opportunity to offend. The jury might think if he had a real alibi, if he stayed with Ms [HS] then he would have been easily able to establish that.
[5] Transcript of trial, 32.
Defence counsel then sought a mistrial. The trial judge declined the mistrial application on the basis that first, the prosecutor in his opening did not assert that the evidence was relevant to establishing a consciousness of guilt; and secondly, even if that assertion had been made, it could be cured by direction.
Apart from the evidence called from Ms HS, evidence was also called from Ms HG, as well as from the complainant’s mother.
In the course of their evidence, both Ms HG and Ms HS described the consumption of alcohol and marijuana on the night of the alleged offending. Ms HS, in particular, gave evidence about learning of the complainant’s age and telling the appellant. She said that the appellant’s response was that he was shocked and concerned about her age and the fact that she was drinking alcohol. Ms HS said the complainant looked older than 13 years. Ms HS gave evidence that the complainant was heavily intoxicated and later vomited.
As for the false alibi, Ms HS said that about a month after the complainant had visited, she found out about the allegations when she was home with the appellant. She gave the following evidence (the false alibi conversation) (emphasis added):[6]
[6]     Transcript of trial, 69.
QWithout going into the detail of how you found out about the allegations, were you home with the accused when you found out.
AYes.
QDid you go outside and speak to him about what happened the night [the complainant] came over?
AYes.
QWhat did he say?
AHe told me to say that we were up all night having sex and watching Family Guy.
QWas that true?
ANo.
QHad you been up all night watching TV and having sex?
ANo.
QHow did the accused appear when he said that?
A     He seemed stressed.
QWhat were you doing with him outside.
A     We were having a smoke.
QHow long after [the complainant] came over did you have that conversation with the accused.
A     It was a good month or so after [the complainant] had been there.
QWhen you were speaking to him did you agree to do what he said.
A     At the time yes.
In the course of his cross-examination of Ms HS, defence counsel suggested that the false alibi conversation never happened and that the accused had not asked her to say that she had been up all night having sex and watching Family Guy. It was also suggested that she had acrimoniously separated from the appellant, and this had motivated her to fabricate her evidence. She denied these matters.
The appellant did not participate in a record of interview, nor did he give evidence. There was no defence case.
The trial judge then raised with counsel the necessity for discreditable conduct directions to be given pursuant to s 34R of the Evidence Act 1929 (SA) concerning the evidence that the appellant consumed cannabis with and supplied alcohol to a minor. The prosecutor submitted that the fact of the false alibi was capable of being regarded as a lie which amounted to discreditable conduct. Reference was made to R v Wildy.[7]
[7] R v Wildy (2011) 111 SASR 189, [34] (Vanstone J).
On the third day, and before closing addresses, the trial judge raised with counsel in the absence of the jury the issue of the false alibi conversation and the use the jury could make of the evidence. His Honour noted that the appellant had not participated in a record of interview and had elected not to give evidence so, if the jury found that he had asked Ms HS to create a false alibi, his conduct could not be left to the jury as relevant to his credibility.
The trial judge then explained that because there was “no alternative explanation” from the appellant, the jury were “likely to think it must be out of a consciousness of guilt.”[8] His Honour explained that the evidence did not suggest that the appellant had told a lie, rather, he had enlisted the assistance of another to tell a lie on his behalf.
[8] Transcript of trial, 88.
The prosecutor responded that it was post-offence conduct, similar to evidence of flight, to which the judge said: “But that’s still consciousness of guilt, that’s the very problem we are dealing with”.[9] The trial judge questioned whether the evidence was potentially being deployed as “a wolf in sheep’s clothing” and, as he put it to counsel:[10]
I’m not leading it for consciousness of guilt and I’m not asking you to [leave] it to the jury as consciousness of guilt, but what else could it be in the context of this particular case?
[9] Transcript of trial, 89.
[10] Transcript of trial, 89-90.
The trial judge expressed concern that there was no permissible use for the evidence other than the appellant made the request of Ms HS out of a consciousness of guilt, with the result that he might have to direct the jury that they should completely disregard the evidence and place no weight on it or discharge the jury.
Defence counsel made a second application for a mistrial. The trial judge questioned whether there were “some things that are heard that cannot be unheard” even though the court operated on the basis that juries follow a judge’s directions.[11]
[11] Transcript of trial, 91.
The prosecutor reiterated that the false alibi conversation was not adduced as evidence of guilt but that it was “probative to the accused’s inability to innocently account for his opportunity to offend and that’s why he came up with this false alibi”.[12] He acknowledged that Ms HS had not said in her evidence that she had been asked to lie to police.
[12] Transcript of trial, 92.
The trial judge referred to the authority of R v Tran where Vanstone J had cited Eade v The King with approval.[13] Defence counsel maintained the application for a mistrial. There was debate about the use and effect of the phrase “false alibi”.
[13] R v Tran [2017] SASCFC 99, [61]-[63] (Vanstone J), citing Eade v The King (1924) 34 CLR 154, 158.
After hearing further submissions, the trial judge determined that the false alibi conversation was admissible as a piece of circumstantial evidence which provided support for other evidence that suggested the appellant had the opportunity to offend. The trial judge indicated that he would direct the jury in those terms and give a warning to the jury that they could not use the false alibi conversation as probative of guilt.
The following day, the jury returned for the purpose of hearing closing addresses and the judge’s summing-up.
In the course of his closing address, the prosecutor put submissions about the appellant’s opportunity to offend against the complainant. He commenced with the effect of the complainant’s account being that the accused had the opportunity to offend, notwithstanding the presence of two other people in the house. He said:[14]
If the accused didn’t have that opportunity, perhaps if Ms [HS] stayed up and maintained constant observations… then the accused would have an easy, truthful way of showing the offending couldn’t have happened. But what the accused has done, when he was confronted by the allegation, you might think, is [ask Ms HS] to give a false story that they stayed up all night having sex and watching Family Guy…
You might think the reason that he asked her to give that false account is because he really did have the opportunity to offend, you might think he had no truthful way around it. That’s not to say he’s automatically guilty. Just because a man has the opportunity to offend against a child, it doesn’t mean he would do that. But what you might think this false account he’s asked Ms [HS] to give shows is it supports [the complainant’s] account … because you might think he wouldn’t otherwise need to ask Ms [HS] to give a false account.
[14] Transcript of trial, 118.
In the course of his final address, defence counsel challenged the credibility and reliability of the evidence of Ms HS rather than attack the reasoning process urged upon the jury by the prosecutor. He said:[15]
You’ve heard that Ms [HS] made her statement to the police after the relationship with Mr Manousakis ended.
…
I ask you to consider treating Ms [HS’] evidence very carefully as well. She made her statement, as I’ve said in the wake of the ending of the relationship, she’s also close to both parties, … You might think that a bitter breakup might provide an avenue or ammunition to exact revenge on Mr Manousakis for the ending of their relationship and I suggest that is so in this case, despite her denials in cross-examination.
…
Now my friend has spoken about an opportunity to commit a crime ... You’ve heard the allegation about that and his Honour will provide you with some helpful directions in his summing up later on in the process.
You heard me cross-examine and you heard my friend parrot out the quote from the transcript. I urge you to be cautious when assessing this evidence. As I said, you’ve heard that this was Mr Manousakis’ former partner. Post break-up she provided a statement and within this statement contains the alleged comment. You might think, as I’ve suggested, that relationship has come to a bitter end and this may be a way for a partner to exact some form of revenge and it’s for that reason that I ask you to treat that evidence with caution.
[15] Transcript of trial, 131-132.

Defence counsel did not make any submission which suggested that there may have been other, innocent reasons why the appellant asked Ms HS to give a false account regarding the night of the offending.
The trial judge’s directions
In the course of his summing up, after addressing a number of standard directions and the elements of the offending, the trial judge reminded the jury about the evidence of Ms HS concerning the false alibi conversation, already set out. The trial judge then gave the jury the following directions:[16]
1.You will also recall that it was suggested to the witness by defence counsel that no such conversation ever took place and that the evidence of Ms [HS] on this topic was motivated by spite arising from a bitter break-up. This was not accepted by the witness.
2.The prosecution states that if you accept the evidence of Ms [HS] on this topic and that these comments could not possibly be reasonably explained by any other reasons the accused may have said these comments, such as panic to escape an unfair accusation or another possible explanation such as concern about supplying a 13 year old with alcohol and/or cannabis, then you can consider whether to use the accused’s comments on this occasion as a piece of circumstantial evidence on the prosecution case that supports the complainant’s assertion that the accused had the opportunity to offend against her.
3.Fundamentally, and importantly, I direct that you are not to reason that just because the accused made this comment, if you do find that he indeed made it, that he is guilty of an offence or that he is someone who is of bad character and, therefore, more likely to have committed the offence. So I will repeat that: fundamentally and importantly, I direct that you are not to reason that just be because the accused made this comment, if indeed you find that he did make the comment, that he is guilty of an offence or that he is someone who is of bad character and, therefore, more likely to have committed the offence. You are prohibited from reasoning in that way.
4.As I have just stated, whether the accused had the conversation is a question for you. If you find the accused had the conversation, then you can use that evidence as a circumstantial piece of evidence in your consideration as to whether or not the Crown has discharged its onus of proof beyond reasonable doubt. You cannot use that evidence, if you are satisfied that the accused spoke that way, as evidence of guilt. Finding that the accused encouraged this version upon Ms [HS] does not of itself add to the prosecution’s case. At all times you must carefully assess whether the prosecution has proved its case beyond reasonable doubt.
5.In your consideration of this topic you must bear in mind that there might be many reasons for the accused saying such a thing. An example of this might be that it would have been readily apparent to [the appellant] that there could well be trouble from any allegation that a 13 year old had been supplied with alcohol and cannabis under his roof.
6.So, in summary, it is a matter for you as to whether or not you even find the accused has spoken that way in the first place. Secondly, if you do find the accused has spoken in this way, there may be many explanations as to why this occurred. Thirdly, if you do find that the accused has spoken in this way and that there is no other explanation for it, you must not reason in any way that because the accused may have encouraged this version upon Ms [HS] that, therefore, he is guilty of the allegations.
7.Finally, if you do find the accused spoke the relevant words, then you may only take them into account as a circumstantial piece of evidence to be taken into account along with all of the other evidence in determining whether the Crown have proved its case beyond reasonable doubt.
[16] Appeal Book 52-53 (numbering added for ease of reference).
No exception was taken to the trial judge’s directions. No further directions were sought by either counsel.
The submissions of the parties
The appellant complained that the trial judge erred in his directions as to the use of the false alibi conversation. More particularly, the appellant advanced two contentions which underpin this appeal ground. First, the appellant contended that the evidence was only capable of proving the absence of an alibi, not the positive existence of opportunity. Moreover, the opportunity to commit the offence was not in issue, and thus to treat the evidence of the false alibi conversation as positive evidence of opportunity shifted the onus of proof on the issue. Secondly, the appellant contended that the trial judge’s directions as to the permissible use of the evidence were inadequate as he did not direct the jury as to the fact in issue to which the evidence was probative.
The appellant relied on the authority of Edwards v The King; Piccinin v The King to assert that the directions as to permissible use were, in effect, too general.[17] In that case the trial judge had directed the jury about the defendant’s post‑offending lies which, it was said, could be used as an item of circumstantial evidence which was more consistent with the actions of a guilty person than the actions of an innocent person.[18] The appellant relied on the passages in that decision where the Court explained that if the prosecution did not intend to rely on lies as evidence of a consciousness of guilt, then the appropriate course was not to accord them any forensic value as circumstantial evidence.[19]
[17] Edwards v The King; Piccinin v The King [2023] SASCA 113.
[18] Edwards v The King; Piccinin v The King [2023] SASCA 113, [37].
[19] Edwards v The King; Piccinin v The King [2023] SASCA 113, [71]-[72].
In the submission of the appellant, the trial judge’s directions were likely to have both confused the jury and created the real risk that the evidence could be used in an impermissible manner. The appellant submitted that the evidence required careful and clear directions which were not given.
The Director of Public Prosecutions (SA) (the Director) submitted that the directions given to the jury limited the use that could be made of the evidence regarding a false alibi and confined it to being circumstantially probative of the fact of whether the accused had an opportunity to offend.
As to the evidence of the false alibi conversation evincing a consciousness of guilt, the Director submitted that if the jury accepted the evidence of Ms HS that the appellant had asked her to say “we were up all night having sex and watching Family Guy”, they could infer that the appellant knew the details of the alleged offending and believed that he needed a false alibi because he could not otherwise innocently account for his whereabouts at the material time. Put another way, the appellant’s request that Ms HS provide him with a false alibi was explicable on the basis that he recognised that the truth would implicate him in the charged offences.
The Director contended, however, that there was no real prejudice or “practical injustice” to the appellant because it was to his advantage that the trial judge confined the use of the evidence to proving opportunity.
Moreover, the trial judge gave the jury explicit and clear directions not to use the evidence of the false alibi conversation as evidence of guilt and, in any event, an Edwards type direction[20] was given in relation to this evidence. That is, where the trial judge instructed the jury that they could only use the evidence if they accepted the evidence and were satisfied that it was not reasonably capable of an innocent explanation, there was no miscarriage of justice within the meaning of s 158(1) of the Criminal Procedure Act 1921 (SA) (the CPA).
[20] Edwards v The Queen (1993) 178 CLR 193.
In the submission of the Director, whether there has been a miscarriage of justice could be addressed by reference to two approaches. It was submitted that since Weiss v The Queen,[21] the High Court has not yet definitively settled the correct approach.[22]
[21] Weiss v The Queen (2005) 224 CLR 300.
[22] HCF v The Queen (2023) 97 ALJR 978, [79] (Edelman and Steward JJ).
The Director submitted, first, that this Court must determine whether there has been a departure from a trial conducted according to law to the prejudice of the appellant.[23] For the purposes of this submission, it was not necessary to demonstrate that the departure was of a fundamental kind, rendering it unnecessary to demonstrate a real chance of prejudice.[24] Nonetheless, it was for the appellant to demonstrate a real chance of prejudice, or that prejudice was a realistic possibility.[25] On this approach it was necessary to enquire into the tendency of the asserted error or irregularity to have affected the basis on which the jury actually reached its verdict in the events that occurred in the trial that was had.[26]
[23] Hofer v The Queen (2021) 274 CLR 351, [41] (Kiefel CJ, Keane and Gleeson JJ).
[24] Maher v The Queen (1987) 163 CLR 221, 234; Katsuno v The Queen (1999) 199 CLR 40, [35]; Lee v The Queen (2014) 253 CLR 455, [48].
[25] Hofer v The Queen (2021) 274 CLR 351, [47] (Kiefel CJ, Keane and Gleeson JJ), [118] (Gageler J): HCF v The Queen (2023) 97 ALJR 978, [2] (Gageler CJ, Gleeson and Jabot JJ); Zhou v The Queen [2021] NSWCCA 278, [22]-[23] (Beech-Jones CJ at CL).
[26] Hofer v The Queen (2021) 274 CLR 351, [121] (Gageler J).
Alternatively, it was necessary to demonstrate that the asserted error or irregularity had the capacity to cause practical injustice capable of affecting the outcome of the trial.[27] The enquiry concerned the nature of the error or irregularity, and its capacity to affect the outcome, rather than its likely effect.[28]
[27] Edwards v The Queen (2021) 273 CLR 585, [74] (Edelman and Steward JJ); HCF v The Queen (2023) 97 ALJR 978, [78].
[28] Cf Alternatively, could it be said that the irregularity might have deflected the jury from its proper task; Huxley v The Queen (2023) 98 ALJR 6, [41] (Gordon, Steward and Gleeson JJ).
It was submitted that even if there was a miscarriage, there was nonetheless no substantial miscarriage of justice within the meaning of s 158(2) of the CPA and the proviso should be applied.
Determination of the appeal
It is convenient to commence with an analysis of the relevance of the evidence of Ms HS. It ought not be overlooked that, contrary to the opening by the prosecutor, when Ms HS came to give her evidence, she said nothing about being asked to give a false alibi to police.
There were two main parts to her evidence that were relevant in proof of the offending. First, Ms HS said that she went to sleep after 12.00 am and woke up at about 7.30 am. She said that the appellant was with her when she went to sleep, and he was with her again when she woke. Implicit in her evidence was that she could not account for the appellant’s movements during the period when she was asleep, that being the period during which the offending allegedly occurred.
This aspect of her evidence was clearly relevant to establish that the appellant had the opportunity to commit the offence. Contrary to the appellant’s submissions, that evidence did not simply prove the absence of an alibi. When regard was had to other evidence adduced on the prosecution case (including that the alleged offending occurred at the appellant’s home, and that he had been in the complainant’s company earlier in the evening) the evidence was inferentially capable of establishing the appellant’s opportunity to offend.
Secondly, the prosecution relied on the evidence of the false alibi conversation to establish the appellant’s opportunity to commit the offence. More precisely, the prosecution relied on the evidence of HS that:
(i)the appellant asked her to say that they “were up all night having sex and watching Family Guy”; and
(ii)this was not in fact true.
The submission was to the effect that the appellant’s request of Ms HS that she lie about his movements at the material time was relevant in proof of his opportunity to commit the offence.
As set out earlier, the prosecutor told the trial judge that the evidence was not adduced as evidence of a consciousness of guilt. But, notwithstanding his submissions to the trial judge, in his closing address the prosecutor urged the jury in the following terms:[29]
You might think the reason that he asked her to give that false account is because he really did have the opportunity to offend, you might think he had no truthful way around it. … But what you might think this false account he’s asked Ms [HS] to give shows is it supports [the complainant’s] account that the accused really did have the opportunity to offend because you might think he wouldn’t otherwise need to ask Ms [HS] to give a false account.
[29] Transcript of trial, 118.
In making these submissions to the jury, the prosecutor invited the jury to conclude that the appellant asked Ms HS to provide a false account because he could not otherwise innocently account for his whereabouts that night.
As the Director properly conceded during the hearing of this appeal, to reason in this way is plainly to invoke consciousness of guilt reasoning. That is, to reason that the appellant asked Ms HS to lie for him and provide a false account because he could not innocently account for his presence at the material time is to reason that he asked Ms HS to lie because he was guilty of the offending.
It may be accepted that the evidence of Ms HS that the appellant was present in his home on the relevant evening when she fell asleep after 12.00 am and that he was again present when she woke up at 7.30 am could inferentially prove that the appellant had an opportunity to commit the offence. That Ms HS could not account for the appellant’s movements during the interim period, combined with other evidence that the appellant was in the complainant’s company earlier in the evening, and that the alleged offending occurred in the lounge room of his home over the course of the evening, all supported an inference that the appellant had an opportunity to commit the offence.
As a matter of logic, however, the false alibi conversation did not make it any more likely that the appellant had the opportunity to commit the offending. That aspect of the evidence was not probative of that issue. Contrary to the submission made by the prosecutor to the jury, the false alibi conversation could never be admitted in proof of the appellant’s opportunity to offend. Moreover, there was no dispute at trial that the appellant had the opportunity to offend; that fact was never in issue.
That being so, the question remains whether the evidence of the false alibi conversation was nonetheless admissible as post-offence conduct evincing a consciousness of guilt. If the evidence was properly before the jury, there is a further question as to whether the trial judge’s directions adequately guarded against a perceptible risk of a miscarriage of justice.
This case does not concern whether an accused’s lies must be addressed as probative of an accused’s guilt or whether, as is more common, they go only to the accused’s credit.[30] That was the context in R v Tran,[31] where Vanstone J cited the following passage from Steinberg v Federal Commissioner of Taxation:[32]
The fact that a witness is disbelieved does not prove the opposite of what he asserted: Scott Fell v. Lloyd (1911) 13 C.L.R. 230, at p. 241; Hobbs v. Tinling (C.T.) & Co. Ltd. [1929] 2 K.B. 1, at p. 21. It has sometimes been said that where the story of a witness is disbelieved, the result is simply that there is no evidence on the subject (Jack v. Smail (1906) 2 C.L.R. 684, at p. 698; Malzy v. Eichholz [1916] 2 K.B. 308, at p. 321; Ex parte Bear; Re Jones (1945) 46 S.R. (N.S.W.) 126 at p. 128)), but although this is no doubt true in many cases it is not correct as a universal proposition. There may be circumstances in which an inference can be drawn from the fact that the witness has told a false story, for example, that the truth would be harmful to him; and it is no doubt for this reason that false statements by an accused person may sometimes be regarded as corroboration of other evidence given in a criminal case: Eade v. The King (1924) 34 C.L.R. 154, at p 158; Tripodi v. The Queen (1961) 104 C.L.R 1. Moreover, if the truth must lie between two alternative states of fact, disbelief in evidence that one of the state of facts exists may support the existence of the alternative state of facts: Lee v. Russell [1961] W.A.R 103, at p. 109.
[30] Edwards v The Queen (1993) 178 CLR 193 and Zoneff v The Queen (2000) 200 CLR 234.
[31] R v Tran [2017] SASCFC 99, [61]-[63] (Vanstone J, with whom Kelly J and, on this issue, Doyle J agreed).
[32] Steinberg v Federal Commissioner of Taxation (1975) 134 CLR 640, 694 (Gibbs J).
In the case of Eade v The King referred to in that passage, the appellant was alleged to have indecently assaulted a five-year-old girl.[33] On her account, she was asked by the appellant to buy him two pies and, when she did so and took them to the appellant, he pulled her into his house, pushed her onto a couch and indecently assaulted her. There was independent evidence that proved that the child purchased the pies, that she attended the house and that the pies were found in the house near the couch.
[33] Eade v The King (1924) 34 CLR 154 (Knox CJ, Gavan Duffy and Starke JJ).
The issue before the High Court was whether there was evidence capable of corroborating the child’s account. The Court found that whilst the independent evidence established the appellant’s opportunity to offend, it could not corroborate the child’s account regarding the commission of the crime. Nonetheless, when the appellant was confronted with the child’s account, he denied all knowledge of the child, denied that he asked her to buy pies, denied that he had taken her into his home and asserted that he knew nothing of the pies found there. As to this the Court said:[34]
Now, if a jury be of opinion that the prisoner’s statements are false, then they may properly come to the conclusion that his falsehood indicates that the child’s story is true, and that he is telling lies in order to discredit the evidence of the other witnesses because he is unable to account for what they say they saw, in any way consistent with his own innocence.
[34] Eade v The King (1924) 34 CLR 154, 158 (Knox CJ, Gavan Duffy and Starke JJ).
The Court found that the appellant’s statements were capable of amounting to corroboration of guilt if the jury was satisfied that they were false.
This is not a case involving post-offending “lies” because it was not suggested that the appellant told any lies. Rather, this is a case where the appellant’s post-offending conduct comprised an attempt to have another lie for him. Where the issue is not whether the witness has lied, but whether the accused’s conduct is otherwise consistent with acting out of a consciousness of guilt, similar considerations operate. The underlying principles which inform the directions which must be given in the case of lies told out of a consciousness of guilt apply equally to the reasoning which a jury may use to infer guilt from other post-offence conduct including, relevantly, asking another person to provide a false alibi.
Where an accused person asks another person to provide a false alibi or false account on the accused’s behalf, and that account would provide the accused with a complete answer to an allegation, that conduct is capable of evincing a consciousness of guilt in the accused. Asking another person to lie is also capable of being regarded as evidence of discreditable conduct within the meaning of s 34P of the Evidence Act 1929 (SA) and, insofar as directions were given about that, no complaint is now made on appeal.[35]
[35] Summing-up, [3]. This is not one of those cases where it is necessary to consider whether an accused’s lies should or should not be regarded as discreditable conduct, cf R v Adamson [2018] SASCFC 114, [111]; Sadler v The Queen [2023] SASCA 63, [32].

In this case, it appears Ms HS raised the complainant’s allegations with the appellant before police advised him about any allegations against him, and before he was charged with any offence. The evidence of the false alibi conversation was therefore capable of giving rise to the inference that the appellant asked Ms HS to provide him with a false alibi because he knew that he could not otherwise innocently account for his presence at the material time.
In those circumstances, the evidence was capable of evincing a consciousness of guilt in the appellant, and it was admissible for that purpose. Indeed, that is the only relevance of evidence of the false alibi conversation. Where the appellant did not participate in a record of interview nor give evidence, there could be no suggestion that his post-offence conduct was relevant to his credibility, and so the only legitimate use of the evidence was as evidence capable of evincing a consciousness of guilt.
This was a compelling piece of evidence which was highly probative of the appellant’s guilt. It took on some prominence at the trial and was capable of influencing the jury’s deliberations. Indeed, the evidence is likely to have had a devastating impact on the defence. Rather than respond to the accusation from Ms HS that there was no truth in it and nothing of the kind happened, on the account of Ms HS the appellant immediately requested that she give him a false alibi, and he appeared stressed. That, and the very use of the term “false alibi”, is likely to have considerably influenced the jury.
Accordingly, this was a case where the evidence was so stark in its effect that there inevitably arose a real risk that the jury would have reasoned that the appellant spoke to Ms HS as he did because he could not otherwise innocently account for his conduct on the night of the offending.[36] It is the kind of evidence that will usually require careful and comprehensive Edwards directions.
[36] Cf R v BEC [2023] QCA 154, [87]-[92] (Livesey AJA, with whom Callaghan J agreed); Coomer v Western Australia [2024] WASCA 133, [172]-[173] (Vandongen JA, with whom Mazza and Hall JJA agreed).
Whilst the evidence of the false alibi conversation was admissible as evidence of consciousness of guilt, that was not the basis upon which the prosecutor sought to adduce the evidence. However, notwithstanding the prosecutor’s intimations to the trial judge, during his closing address he explicitly invoked consciousness of guilt reasoning. That was probably inevitable where the evidence was relevant for no other purpose. The trial judge did not correct the prosecutor’s address, nor did he give the jury any further directions about it. Accordingly, the risk that the jury might have used the evidence as probative of the appellant’s guilt was in this case heightened by the prosecution’s final address.
It may be accepted that, at first glance, the trial judge’s directions that the evidence about the false alibi conversation went only to opportunity and was not probative of guilt appeared to be favourable to the appellant.[37] In addition, the jury were given unorthodox Edwards type directions concerning the use of the evidence in proof of opportunity.[38]
[37] Summing-up, [2], [4], [5] and [6] above.
[38] Summing-up, [2], [5] and [6] above.
It is true that a jury will usually be presumed to have faithfully followed the directions given by the trial judge during the summing-up.[39] Where the jury were told that the false alibi conversation was not evidence of guilt, as happened here, it can generally be accepted that the jury followed these and other directions.
[39] Dupas v The Queen (2010) 241 CLR 237, [26]-[29]; HCF v The Queen (2023) 97 ALJR 978, [85]-[89] (Edelman and Steward JJ).
Nonetheless, the jury were put in a difficult position. On the one hand, the evidence of the false alibi conversation was left to the jury as relevant to prove the appellant’s opportunity to commit the offence. As a matter of logic, the evidence was incapable, whether alone or in conjunction with other evidence, of proving that fact. Further, and in any event, the appellant’s opportunity to commit the offence was never in dispute. On the other hand, the jury were directed not to use the false alibi conversation as evidence of guilt, which was in fact its only legitimate use, and this use was urged upon them by the prosecutor in his closing address. It would have been obvious to a jury that this was the logical use of the evidence.
That use was, if anything, encouraged by the direction that it could be taken into account as circumstantial evidence along with all other evidence when determining whether the Crown proved its case beyond reasonable doubt.[40]
[40] Summing-up, [7].
In these circumstances, there must also be a real risk that the prosecution closing and the directions were regarded as confusing and, on this point, the jury were simply left with the stark and compelling nature of the evidence. Had the false alibi conversation been adduced by the prosecution in a straight-forward manner as evidence of a consciousness of guilt, the trial judge would have been required to direct the jury in the following terms:
1.The jury had to identify precisely what the accused’s post-offence conduct was, and from which they were asked to infer a consciousness of guilt; in this case that was the evidence of Ms HS regarding the so-called false alibi conversation with the accused.
2.The jury could only take the false alibi conversation into account if they were satisfied that the appellant had, in fact, said the words described by Ms HS. If they rejected her account, or thought it doubtful, then there would be no need to address the significance or otherwise of the so-called false alibi.
3.If the jury accepted the account given by Ms HS, the jury then needed to consider whether there were other possible reasons for the appellant speaking those words. For example, could what the accused said possibly be accounted for by other explanations such as panic in the face of (an anticipated) false accusation, or concern about supplying a minor with alcohol and cannabis? If there was another possible explanation for the conduct apart from a realisation of guilt, the jury could not use the evidence to infer a consciousness of guilt.
4.The jury needed to be satisfied that the words spoken by the accused revealed his knowledge of the offending or some aspect of it. The jury had to be satisfied that the accused said those words because he knew that the truth would implicate him. That is to say, that the accused engaged in the conversation out of a “realisation of guilt” because he could not otherwise give an innocent account.
If the jury accepted the prosecutor’s submissions in final address and engaged in consciousness of guilt reasoning (those submission not having been specifically corrected or countered) the appellant did not receive the benefit of a direction that they could not use the conversation as evidence of guilt unless satisfied that there were no other possible innocent explanations, and even then only if the words revealed knowledge of the offending or some aspect of it.
It cannot be known how the jury approached this point. Ultimately, and despite the trial judge’s directions to the jury not to use the false alibi conversation as evidence of guilt, there remains a real danger that the jury relied on the evidence as evincing a consciousness of guilt. That danger is in part the product of the stark and compelling nature of the evidence. That being so, the absence of Edwards directions which specifically addressed the use of the false alibi conversation as evidence of guilt means that the appellant was not given the protection afforded by those kinds of directions. In the absence of appropriate Edwards directions, the evidence was capable of being misused by the jury.
Whilst defence counsel made no objection to the prosecutor’s final address, and sought no further directions from the trial judge, this was not in the pursuit of any apparent forensic strategy or advantage. There was no rational forensic justification for failing to object or address these issues.[41] The position of defence counsel had in any event been made clear by his repeated requests for a mistrial.
[41] Orreal v The Queen (2021) 274 CLR 630, [16] (Kiefel CJ and Keane J).
Given the stark and compelling nature of the evidence about the false alibi conversation, the inadequate directions given about it, and the risk that the evidence may have been misused, there arises a real chance of prejudice to the appellant, together with “practical injustice” capable of affecting the verdicts. The proper conclusion is that there has been a departure from a trial conducted according to law to the prejudice of the appellant.[42] There has been a miscarriage of justice.
[42] Hofer v The Queen (2021) 274 CLR 351, [42] (Kiefel CJ, Keane and Gleeson JJ).
The proviso should not be applied
On the application of the proviso, one must start with the evidence of the complainant, which was integral to the prosecution case. That evidence was challenged. It is not possible to tell from the record whether the jury thought her evidence was, standing alone, capable of proving guilt beyond reasonable doubt. That was an evaluation for the jury to make, not this Court.
The evidence about the false alibi conversation was, supplemented by the evidence of opportunity, the only evidence independent of the complainant capable of going to proof of guilt. It was important, compelling evidence. If the jury accepted that evidence, there must inevitably remain some risk that, if there were thought to be deficiencies in the complainant’s account, the jury used the evidence of the false alibi conversation to overcome those deficiencies in arriving at their guilty verdicts.
Bearing in mind the potential impact of the evidence of the false alibi conversation on the jury, the inadequacy of the directions given about it, and that this evidence was the principal, independent support for the complainant’s evidence, this Court cannot determine whether guilt was inevitably proved beyond reasonable doubt. The proviso should not be applied.
Conclusion
The appeal should be allowed.
The appellant’s convictions must be set aside, and the matter remitted to the District Court for retrial.