OKS v The State of Western Australia

[2018] WASCA 48

JURISDICTION     :   SUPREME COURT OF WESTERN AUSTRALIA

TITLE OF COURT :   THE COURT OF APPEAL (WA)

CITATION:   OKS -v- THE STATE OF WESTERN AUSTRALIA [2018] WASCA 48

CORAM:   BUSS P

BEECH JA

PRITCHARD J

HEARD:   20 OCTOBER 2017

DATE OF FINAL

SUBMISSIONS       :   26 MARCH 2018

DELIVERED          :   11 APRIL 2018

FILE NO/S:   CACR 40 of 2017

BETWEEN:   OKS

Appellant

AND

THE STATE OF WESTERN AUSTRALIA

Respondent

ON APPEAL FROM:

Jurisdiction              :   DISTRICT COURT OF WESTERN AUSTRALIA

Coram:   STEVENSON DCJ

File Number             :   IND 334 of 2016

Catchwords:

Criminal law - Trial judge directed jury as to lies told by complainant - Direction in relation to the complainant's lies analogous to a Zoneff  direction -Whether judge's direction erroneous in law - Where no request for a redirection at law - Whether judge made a wrong decision on a question of law - Whether a miscarriage of justice - Whether proviso should be applied

Legislation:

Criminal Appeals Act 2004 (WA), s 30
Criminal Code (WA), s 320(4), s 552
Criminal Procedure Act 2004 (WA), s 105, s 112

Result:

Appeal dismissed

Category:    A

Representation:

Counsel:

Appellant	:	Mr S Vandongen SC & Mr S Nigam
Respondent	:	Mr L M Fox

Solicitors:

Appellant	:	Nigams Legal
Respondent	:	Director of Public Prosecutions (WA)

Case(s) referred to in judgment(s):

Abdallah v The Queen [2016] NSWCCA 275

AK v The State of Western Australia [2008] HCA 8; (2008) 232 CLR 438

Azzopardi v The Queen [2001] HCA 25; (2001) 205 CLR 50

Baiada Poultry Pty Ltd v The Queen [2012] HCA 14; (2012) 246 CLR 92

Baini v The Queen [2012] HCA 59; (2012) 246 CLR 469

Birks v The State of Western Australia [2007] WASCA 29; (2007) 33 WAR 291

Broadhurst v The Queen [1964] AC 441

BRS v The Queen [1997] HCA 47; (1997) 191 CLR 275

Burke v Corruption and Crime Commission [2012] WASCA 49; (2012) 289 ALR 150

Carney v The State of Western Australia [2010] WASCA 90; (2010) 201 A Crim R 537

Carr v The Queen [1988] HCA 47; (1988) 165 CLR 314

Castle v The Queen [2016] HCA 46; (2016) 259 CLR 449

Cesan v The Queen [2008] HCA 52; (2008) 236 CLR 358

Corbett v The State of Western Australia [2016] WASCA 97

Cranney v The Queen; Huynh v The Queen [2017] NSWCCA 234

Crease v Barrett (1835) 1 Cr M & R 919 [149 ER 1353]

CTM v The Queen [2008] HCA 25; (2008) 236 CLR 440

Darkan v The Queen [2006] HCA 34; (2006) 227 CLR 373

Dhanhoa v The Queen [2003] HCA 40; (2003) 217 CLR 1

Dupas v The Queen [2010] HCA 20; (2010) 241 CLR 237

Edwards v The Queen [1993] HCA 63; (1993) 178 CLR 193

Egitmen v The State of Western Australia [2016] WASCA 214

Farah Constructions Pty Ltd v Say-Dee Pty Ltd [2007] HCA 22; (2007) 230 CLR 89

Festa v The Queen [2001] HCA 72; (2001) 208 CLR 593

Filippou v The Queen [2015] HCA 29; (2015) 256 CLR 47

Fingleton v The Queen [2005] HCA 34; (2005) 227 CLR 166

Gassy v The Queen [2008] HCA 18; (2008) 236 CLR 293

Gilbert v The Queen [2000] HCA 15; (2000) 201 CLR 414

Gillespie v The State of Western Australia [2013] WASCA 149; (2013) 45 WAR 207

Graham v The Queen [2016] HCA 27; (2016) 90 ALJR 820

Handlen v The Queen [2011] HCA 51; (2011) 245 CLR 282

Hedgeland v The State of Western Australia [2013] WASCA 97

Johnston v The State of Western Australia [2010] WASCA 121

Kalbasi v The State of Western Australia [2018] HCA 7

Karamitsios v The Queen [2015] WASCA 214; (2015) 256 A Crim R 67

KBT v The Queen [1997] HCA 54; (1997) 191 CLR 417

King v The Queen [2012] HCA 24; (2012) 245 CLR 588

Knight v The Queen [1992] HCA 56; (1992) 175 CLR 495

Krakouer v The Queen [1998] HCA 43; (1998) 194 CLR 202

LBC v The State of Western Australia [2011] WASCA 201

Lee v The Queen [2014] HCA 20; (2014) 253 CLR 455

Lindsay v The Queen [2015] HCA 16; (2015) 255 CLR 272

Longman v The Queen [1989] HCA 60; (1989) 168 CLR 79

M v The Queen [1994] HCA 63; (1994) 181 CLR 487

Mraz v The Queen [1955] HCA 59; (1955) 93 CLR 493

Newhill v The State of Western Australia [No 2] [2015] WASCA 121

Papakosmas v The Queen [1999] HCA 37; (1999) 196 CLR 297

Patel v The Queen [2012] HCA 29; (2012) 247 CLR 531

Pemble v The Queen [1971] HCA 20; (1971) 124 CLR 107

Pennington v The State of Western Australia [2013] WASCA 98

Perara-Cathcart v The Queen [2017] HCA 9; (2017) 91 ALJR 411

Petersen v The State of Western Australia [2016] WASCA 66; (2016) 50 WAR 45

R v Bastos De Freitas [2013] QCA 164

R v BCL [2013] QCA 108

R v Burton [2014] QCA 37

R v CBN [2015] QCA 224

R v Cohen and Bateman (1909) 2 Cr App R 197

R v Cornell [2015] NSWCCA 258

R v DM [2006] QCA 79

R v Drake [2013] QCA 222; (2013) 233 A Crim R 588

R v Dunrobin [2013] QCA 175

R v Haddy [1944] KB 442

R v Hawke [2016] QCA 144; (2016) 259 A Crim R 114

R v KAN [2016] QCA 108

R v Knight [2017] QCA 98

R v Michael [2008] QCA 33; (2008) 181 A Crim R 490

R v Mraz (1955) 55 SR (NSW) 479

R v Pickering [2016] QCA 124

R v Soma [2003] HCA 13; (2003) 212 CLR 299

R v Stokes (1990) 51 A Crim R 25

R v Van Der Zyden [2012] QCA 89; (2012) 261 FLR 419

Reeves v The Queen [2013] HCA 57; (2013) 88 ALJR 215

Reeves v The Queen [2013] NSWCCA 34; (2013) 227 A Crim R 444

Riccardo v The State of Western Australia [2010] WASCA 116

RKT v The State of Western Australia [2017] WASCA 13

RPS v The Queen [2000] HCA 3; (2000) 199 CLR 620

Simic v The Queen [1980] HCA 25; (1980) 144 CLR 319

Singh v The State of Western Australia [2012] WASCA 262

Smith v The State of Western Australia [2014] HCA 3; (2014) 250 CLR 473

Stanton v The Queen [2001] WASCA 189; (2001) 24 WAR 233

Stanton v The Queen [2003] HCA 29; (2003) 77 ALJR 1151

Stirland v Director of Public Prosecutions [1944] AC 315

The Queen v GW [2016] HCA 6

TKWJ v The Queen [2002] HCA 46; (2002) 212 CLR 124

Weiss v The Queen [2005] HCA 81; (2005) 224 CLR 300

Wilde v The Queen [1988] HCA 6; (1988) 164 CLR 365

Winmar v The State of Western Australia [2007] WASCA 244; (2007) 35 WAR 159

Wright v The State of Western Australia [2010] WASCA 199; (2010) 43 WAR 1

Zoneff v The Queen [2000] HCA 28; (2000) 200 CLR 234

Index

BUSS P

The relationship between the parties

The alleged representative character of the counts on the indictment

The State's case at the trial on count 1

The State's case at the trial on count 2

The State's case at the trial on count 3

The State's case at the trial on count 4

The appellant's case at the trial

The directed verdicts of acquittal on counts 3 and 4

The witnesses at the trial

The prosecutor's closing address at the trial

Defence counsel's closing address at the trial

The ground of appeal

The ground of appeal:  counsel for the appellant's submissions

The ground of appeal:  counsel for the State's submissions

The ground of appeal: the possible application of the proviso in s 30(4) of the Criminal Appeals Act 2004 (WA)

The ground of appeal:  S's admitted or alleged lies at the trial

The ground of appeal:  the trial judge's directions

The ground of appeal:  aspects of the obligations of the judge and the jury in a criminal trial

Section 30 of the Criminal Appeals Act

The ground of appeal: the principles governing the application of the proviso in s 30(4) of the Criminal Appeals Act

The ground of appeal:  its merits

Conclusion

BEECH JA

Introduction

The parties' cases at trial

The summing up

Grounds of appeal

The appellant's submissions

Respondent's submissions

Supplementary submissions

The merits of ground 1

Was there a wrong decision on a question of law?

Introduction

High Court decisions

Decisions of this court

Decisions of other intermediate courts

Wrong decision on a question of law:  conclusions

The proviso and the result

PRITCHARD J

BUSS P:

1. In 2016 the appellant was charged on indictment with three counts of indecently dealing with a child under the age of 13 years, contrary to s 320(4) of the Criminal Code (WA) (the Code), and one count of attempting to indecently deal with a child under the age of 13 years, contrary to s 320(4) read with s 552 of the Code.

2. Count 1 alleged that on a date unknown between 1 March 1997 and 31 March 1997, at a Perth suburb, the appellant indecently dealt with the complainant (S) by placing his hand on her vagina on top of her underwear.

3. Count 2 alleged that on a date unknown between 1 December 1998 and 25 December 1998, at a Perth suburb, the appellant indecently dealt with S by placing his penis over her vagina on top of her underwear and moving up and down.

4. Count 3 alleged that on the same date and at the same place as count 2 the appellant indecently dealt with S by stroking her vagina on top of her underwear.

5. Count 4 alleged that on a date unknown between 6 March 1999 and 5 March 2000, at a Perth suburb, the appellant attempted to indecently deal with S by attempting to put his hand down the front of her pants.

6. The appellant pleaded not guilty to each of the counts.  Consequently, he was tried in the District Court before Stevenson DCJ and a jury.

7. On 21 November 2016, being the first day of the trial, counts 1 and 3 were amended, on the application of the prosecutor, to delete the words 'on top of her underwear' (ts 17).

8. On 24 November 2016, after a four day trial, the jury delivered a majority verdict of guilty on count 1 and a unanimous verdict of not guilty on count 2.  Earlier in the trial, counts 3 and 4 were the subject of directed verdicts of acquittal.

9. I would dismiss the appeal.  My reasons are as follows.

The relationship between the parties

1. The appellant was born in 1951.  S was born in 1987. 

2. In 1996 or 1997 S's parents separated.  At the time S was aged about 10.

3. In early 1997 the appellant and S's mother formed a relationship.  Soon afterwards, the appellant began living at S's mother's home.  The new family arrangement comprised the appellant and S's mother (who shared the main bedroom), S, S's three siblings and S's grandmother.

4. At the time of the alleged offending the subject of counts 1 and 2, the appellant was aged between 45 and 47, and S was about 10 or 11.

5. At the time of the trial, the appellant was aged 65 and S was 29.

The alleged representative character of the counts on the indictment

1. The prosecutor told the jury in her opening address at the trial that S recalled that the appellant began touching her sexually very soon after he began living at S's mother's home.  The prosecutor added that, according to S, the appellant continued to touch her sexually 'almost every day or so from that time', when she was aged 10, until she was about 13 (ts 51).

The State's case at the trial on count 1

1. The State's case at the trial on count 1 was, in summary, that at the time of the alleged offending S was aged 10 and in grade 5 at school.  The appellant, S, S's mother and S's younger brother, B, were in B's bedroom.  The appellant was telling them stories about his childhood.  S's mother and B left the bedroom.  The appellant and S were on the bed.  As he continued to tell her stories, the appellant tickled S's back.  He manoeuvred her so that he could tickle her front.  The appellant then stroked her chest and ultimately rubbed her vagina.  A noise emanating from elsewhere in the house caused the appellant to stop touching S.  He continued talking as if nothing had happened (ts 52).

The State's case at the trial on count 2

1. The State's case at the trial on count 2 was, in summary, that at the time of the alleged offending S was aged about 11 and had nearly completed grade 6 at school.  S was sitting on the floor at the end of the bed in the appellant's and her mother's bedroom.  S was wrapping a Christmas present.  The appellant and S's mother were lying on the bed.  The mother's telephone rang and the mother left the bedroom.  After her mother had left, the appellant made S sit on the end of the bed and said words to the effect, 'I've been waiting for this'.  He pushed her down onto the bed.  He adjusted his penis so that it was over her vagina.  He simulated sex with her by moving up and down.  Both S and the appellant were clothed, but S could see the appellant's erect penis through his shorts.  The appellant stopped and got off S when the sound of a car arriving at their home could be heard (ts 52).

The State's case at the trial on count 3

1. The State's case at the trial on count 3 was, in summary, that count 3 occurred on the same occasion as count 2.  Count 3 involved the appellant putting his hand down S's pyjama pants and roughly stroking her vagina.  This occurred after the appellant had indecently dealt with S, as alleged in count 2, and before he got off her when the sound of the car could be heard (ts 52).

The State's case at the trial on count 4

1. The State's case at the trial on count 4 was, in summary, that at the time of the alleged offending S was aged 12.  She needed some new boots.  The appellant said he would take her to an army surplus store in a Perth suburb.  S did not want to accompany the appellant, but S went with him because she needed the new boots.  On the way to the army surplus store the appellant stopped his car in a car park.  He leaned over to S and attempted to put his hand down her pants.  S resisted by holding her hands together between her legs and telling him, 'no'.  The appellant became angry and said S could not have the new boots.  He returned home and told S's mother that the store did not have boots in S's size (ts 52 ‑ 53).

The appellant's case at the trial

1. The appellant's case at the trial was, in summary, that the appellant did not do any of the acts the subject of any of the counts on the indictment and that S was an untruthful and unreliable witness.

2. On 16 July 2015, the appellant participated in an electronically recorded interview with police.  The appellant denied that he had offended against S as alleged.  The State tendered the electronically recorded interview at the trial as part of its case.

The directed verdicts of acquittal on counts 3 and 4

1. As to count 3, S did not give any evidence that the appellant had stroked her vagina as alleged. 

2. As to count 4, S's evidence about her age, when the appellant allegedly committed the offence, was ambiguous.  It was an element of the offence that at the time of the offending S was under the age of 13 years.  The trial judge was of the opinion that the jury could not be satisfied beyond reasonable doubt in relation to that element.

3. His Honour decided that, in the circumstances, the appellant had no case to answer in respect of counts 3 and 4.  His Honour therefore discharged the jury from giving any verdicts on those counts (ts 362 ‑ 363).

The witnesses at the trial

1. The State's witnesses at the trial comprised S, KBR (a man who had previously been in a personal relationship with S) and Sergeant Timothy Moran (the investigating police officer for the case).  Also, the prosecutor read into evidence, without objection from defence counsel, two witness statements of JC (S's older half‑sister).

2. The appellant did not give or adduce any evidence at the trial (ts 363).

The prosecutor's closing address at the trial

1. The prosecutor acknowledged in her closing address at the trial that the jury could not convict the appellant of a count unless the jury accepted the truth and accuracy of S's evidence in relation to the alleged conduct the subject of the count (ts 2, 15).

2. The prosecutor said that S's evidence had been tested in cross‑examination.  Defence counsel had highlighted inconsistencies in her evidence.  However, according to the prosecutor, some of those inconsistencies were 'really irrelevant or on the most minute of details' (ts 4).  Other inconsistencies need not trouble the jury because they were 'a distraction and nothing more' (ts 5).

3. The prosecutor accepted that there were 'some more significant discrepancies' that arose from S's evidence.  For example, S originally told the police that the touching by the appellant 'happened over her underwear' whereas she gave evidence at the trial that the touching 'happened under her underwear' (ts 5).  The prosecutor referred to S's explanation for the inconsistency, namely that 'she was scared and it was embarrassing' (ts 5).  S conceded in cross‑examination that she had been 'deliberately untruthful' about that matter (ts 5).  The prosecutor argued in her closing address that S's explanation was understandable (ts 5 ‑ 6).

4. The prosecutor submitted that when the inconsistencies in S's accounts of relevant events were considered in context, the inconsistencies '[were] not that great' and 'many of the inconsistencies in her evidence [could] be explained'.  The main aspects of counts 1 and 2 '[remained] the same throughout [S's] evidence' (ts 6).

5. The prosecutor referred to evidence of contact between S and representatives of the Department for Child Protection (Family and Children's Services).  There was evidence that S had attended a Navy cadet camp in a regional town.  At the camp she was overheard making certain disclosures.  S was taken to the Family and Children's Services office in the regional town.  At that office she made certain allegations about the appellant and his conduct towards her.  However, when she returned home she informed representatives of Family and Children's Services at a suburban office in Perth that what she had said previously at the office of Family and Children's Services in the regional town was untrue.  That is, what she had said previously was fabricated.  By contrast, S's evidence at the trial was that her retraction in Perth of the allegations she had made in the regional town was untrue.  That is, her original allegations were accurate and her retraction was a lie.  The prosecutor elaborated:

   I'm sure you [the jury] followed that during the course of the evidence.  But you heard [S's] reasons for not wanting to go ahead with things at Family and Children['s] Services:  her mother['s] influence, mainly; her concern about being sent to live back in that same house.  And [defence counsel] has made much of the fact that she lied:  she lied about this and so she cannot be trusted.

   But I submit to you … that that kind of lie withdrawing the statements that she made to Family and Children['s] Services saying that everything was fine at home, I submit to you that that kind of lie by a 14‑year‑old girl living at home with [the appellant], not having the emotional or practical support of her mother in this matter and facing this offending on a regular basis and continuing to face this offending is entirely understandable (ts 8 ‑ 9).

6. The prosecutor submitted, towards the end of her closing address, that the jury would, no doubt, in evaluating S's credibility, assess 'her demeanour, the way she thought about questions, the way she answered questions … what she had to say [and] how she said it … in the context of the type of questions that she was answering [and] the type of situation that she found herself in' (ts 15).  The prosecutor continued:

   I'd submit to you that [S] was open and honest.  She gave evidence about dealing drugs, about having a drug debt, about contacting [the appellant] when she had no one else to turn to, and thought that he owed her.  She gave evidence about those things.  She stuck to her evidence in terms of how the touching happened.  She became frustrated and upset  at times, you might even thin[k] argumentative or belligerent, but she did her best to answer the questions nonetheless.

   And if such touching happens in a similar way on a number of times, you can readily appreciate why one might not be able to describe every time distinctly, or might get mixed up about a few points, but [S] was able to describe the fact that the touching itself on particular occasions, the spontaneous combustion incident, and the Christmas wrapping incident, are very real memories, not stories in [S's] mind.

   … I would simply submit to you that you can be satisfied beyond reasonable doubt that these acts happened as [S] alleged, and if you are so satisfied, then the only proper verdict is one of guilty (ts 15 ‑ 16).

Defence counsel's closing address at the trial

1. Defence counsel told the jury in his closing address at the trial that 'the one issue for [the jury] to resolve in [the] trial' was whether they were satisfied beyond reasonable doubt that S was a credible witness (ts 16).

1. Defence counsel disparaged the State's case by asserting that the State was submitting, in effect, that '[S] tells some lies, yes, there's [a] bunch of inconsistencies but at the end of the day you can [forget] those.  You simply put them to one side and you can be satisfied she is telling you the truth' (ts 16).

2. According to defence counsel, there were seven factors which should have a significant impact on the jury's assessment of S's credibility.  They were:

   (a)S had made prior inconsistent statements;

   (b)S had made significant additions to her story;

   (c)there were 'internal inconsistencies' in S's evidence;

   (d)there were inconsistencies between S's evidence, on the one hand, and the evidence of KBR or Sergeant Moran, on the other;

   (e)S had told a number of lies;

   (f)S's demeanour in the witness box; and

   (g)the implausibility of S's evidence as to relevant events (ts 17 ‑ 28).

The ground of appeal

1. The sole ground of appeal alleges that the trial judge made a wrong decision on a question of law by directing the jury that they should 'not follow a process of reasoning to the effect that just because [S] is shown to have told a lie or she has admitted she told a lie, that all of her evidence is in fact dishonest and cannot be relied upon' or, in the alternative, that his Honour's direction occasioned a miscarriage of justice.

2. On 24 April 2017, I granted leave to appeal.

The ground of appeal:  counsel for the appellant's submissions

1. Counsel for the appellant submitted that the impugned direction was given because S admitted in cross‑examination that she had told a number of lies to a number of people. 

2. It was argued that the fact that S had lied was of obvious significance to the appellant's defence in that the State was required to satisfy the jury that S was a truthful and reliable witness and that her evidence about the offence charged in count 1 should be accepted beyond reasonable doubt.

3. Counsel for the appellant submitted that the impugned direction was a direction of law and not merely a comment.

4. It was argued that there is no established legal basis for the impugned direction.  Further, there was nothing in the particular circumstances of the case that gave rise to a principled need for the impugned direction. 

5. According to counsel for the appellant, the effect of the impugned direction was impermissibly to upset the fundamental division of functions at the appellant's trial between the judge, on the one hand, and the jury, on the other.  It was not his Honour's province to direct the jury as to how they could use the fact that S was, on her own admission, a person who was willing to tell lies to other people in making their assessment about the honesty and reliability of her evidence.

6. It was submitted that it was for the jury to decide what process of reasoning they would adopt in dealing with the fact that S had lied.  Specifically, it was open to the jury, if they so decided, to conclude that all of S's evidence was dishonest and could not be relied on because she had told a lie or had admitted that she had told a lie, contrary to the impugned direction.

7. Counsel for the appellant contended that the trial judge made a wrong decision on a question of law when he gave the jury the impugned direction.  Counsel also contended that, in any event, there was a miscarriage of justice. 

The ground of appeal:  counsel for the State's submissions

1. Counsel for the State submitted that the impugned direction constituted nothing more than a prohibition against perverse or irrational (and, hence, impermissible) processes of reasoning, consistent with each juror's oath or affirmation.

2. It was argued that the impugned direction, in the context of the trial judge's summing up as a whole, could not reasonably have been understood by the jury as a prohibition against concluding that S could not be believed because she had told lies.  His Honour's directions as a whole made it clear to the jury that S's lies were relevant to an assessment of her honesty in relation to the conduct the subject of counts 1 and 2.

3. The trial judge, in giving the impugned direction, merely warned the jury against 'jumping to conclusions'.  It did not preclude the jury from using S's admitted or alleged lies for the purpose of rejecting or not accepting her evidence.

The ground of appeal: the possible application of the proviso in s 30(4) of the Criminal Appeals Act 2004 (WA)

1. The State did not, in its respondent's answer or at the hearing of the appeal, contend for the application of the proviso in s 30(4) of the Criminal Appeals Act 2004 (WA).

2. After the hearing of the appeal, the court, by letter dated 25 October 2017, invited written submissions from the parties on whether, in the circumstances of the case, if the court were to conclude that the ground of appeal had been made out, the court could and should apply the proviso and dismiss the appeal.

3. Each of the parties filed and served written submissions pursuant to the court's invitation.

4. The appellant conceded in his written submissions that the court could apply the proviso.  However, the appellant argued that, in the circumstances of the case, it would be unfair to apply it.  The appellant relied on the following matters in support of his argument that the application of the proviso would involve unfairness to him.

5. First, the State did not contend for the application of the proviso.  Secondly, the State had not filed a schedule in compliance with Practice Direction 7.4.  Thirdly, the appellant had not been given notice of any process of reasoning that might support or underpin the application of the proviso.

6. Further and in any event, the appellant submitted that, having regard to the central importance of S's credibility, and to the alleged status of the impugned direction as a direction that the jury were bound to follow and not merely a comment, the possibility could not be excluded beyond reasonable doubt that the appellant had been denied a chance of acquittal on count 1 that was fairly open to him.

7. By letter dated 9 March 2018, the court invited further written submissions from the parties on why the court should not apply the proviso, on a specified basis, in the event that the court were to conclude that the ground of appeal had been made out.

8. Each of the parties filed and served further written submissions pursuant to the court's invitation.

The ground of appeal:  S's admitted or alleged lies at the trial

1. S's admitted or alleged lies at the trial were as follows:

   (a)S lied to the appellant about the amount of money demanded by people who had engaged in standover behaviour by stealing her partner's car (namely $3,500 in fact instead of $20,000 which she had told the appellant) (ts 178 ‑ 179, 253 ‑ 255).

   (b)S lied to the police about whether she had asked for $3,500 or $20,000 in a conversation she had with the appellant about the alleged standover behaviour (ts 253 ‑ 255).

   (c)Despite her claims to the contrary at trial, S had not told the police about her involvement in drug dealing (ts 181 ‑ 182).

   (d)In 2001 S gave a false account to representatives of Family and Children's Services to the effect that she and the appellant were only 'mucking around' and that, by implication, no contact (or at least no deliberate contact) of a sexual nature had occurred between them (ts 183 ‑ 184, 187 ‑ 192).

   (e)S falsely informed medical practitioners at Princess Margaret Hospital that a urinary tract infection she had suffered was the result of S having had unprotected sex with someone (not the appellant) at a party whereas in fact the urinary tract infection was caused by S having had sexual intercourse with the appellant (ts 201 ‑ 203, 209 ‑ 210, 227 ‑ 228).

   (f)S lied to her mother about an incident involving the appellant (ts 227, 263, 276).

The ground of appeal:  the trial judge's directions

1. The trial judge gave orthodox directions to the jury in his summing up as follows:

   (a)The jury's responsibility was to apply the law, as his Honour explained it, and to decide the facts of the case (ts 391).

   (b)The jury were the sole judges of the facts (ts 392).  However, his Honour would 'give [the jury] some specific directions of law, which apply to certain aspects of the evidence that [they] have heard in this case and the issues which have arisen' (ts 392).

   (c)The jury must weigh the evidence impartially, analytically and unemotionally in considering the matters they had to determine (ts 393).

   (d)The jury's duty was to consider all of the evidence, and only the evidence, during their deliberations in arriving at their verdicts (ts 393).

   (e)The jury must follow what his Honour explained about the law.  However, nothing his Honour said about the facts of the case in any way restricted the jury's right and responsibility to decide the facts because they were the sole judges of the facts (ts 394 ‑ 395).

   (f)The jury could not convict the appellant of a count unless they were satisfied beyond reasonable doubt that S gave truthful, accurate and reliable evidence in relation to that count (ts 396).

   (g)The jury may accept parts of the evidence of a witness and reject other parts of that witness' evidence.  The jury did not have to accept the whole of the evidence of a witness or any of that witness' evidence.  The jury could choose what parts of the evidence of a witness they accepted and what parts they rejected or were not prepared to rely upon.  The jury should give each part of the evidence the weight or importance they thought it should be given.  It was entirely a matter for the jury as the judges of the facts, 'subject to [his Honour's] directions about the law which may concern an aspect of the evidence or about how [the jury] should approach it' (ts 396 ‑ 397).

   (h)No‑one could tell the jury what evidence was important and what evidence was unimportant.  It was the jury's function to assess the whole of the evidence using their collective common sense and life experiences (ts 397).

   (i)The jury would need to assess the evidence of each witness and, in particular, the evidence of S, in the context of and together with all of the evidence, to determine whether the State had proved beyond reasonable doubt that the appellant was guilty of the alleged offence the jury was considering (ts 398).

   (j)The jury's assessment of the evidence given by some of the witnesses and, in particular, the evidence of S would require the jury to decide whether the evidence was credible; that is, whether the evidence was given honestly and was an accurate and reliable account of the events in question, especially in relation to the alleged conduct the subject of counts 1 and 2 (ts 398).

   (k)S was the only witness against the appellant as to the alleged conduct the subject of counts 1 and 2.  The jury must therefore be satisfied beyond reasonable doubt about the truthfulness of her evidence as to the alleged conduct the subject of a count before the jury could convict the appellant of that count (ts 400).

   (l)The crucial nature of S's evidence, combined with the seriousness of the allegations made against the appellant, required that the jury carefully scrutinise and consider S's evidence, taking into account the nature of her relationship with the appellant, and also the fact that, at the time of the alleged offending, she was a young child aged about 10 or 11, and also the passage of time (ts 400).

   (m)When the jury was examining a count they must consider only the evidence that was relevant to that count (ts 401).

   (n)The jury's verdict in respect of each count did not have to be the same (ts 401).

   (o)The jury could not find the appellant guilty of either count unless they were satisfied beyond reasonable doubt, by the direct evidence of S, that he was guilty of the particular count (ts 402 ‑ 403).

   (p)The appellant was presumed to be innocent.  The jury could not convict the appellant unless the State had satisfied them beyond reasonable doubt that the appellant was guilty.  If the jury had a reasonable doubt as to whether the appellant was guilty or not guilty of a count, the jury must find him not guilty (ts 404).

   (q)The appellant did not have to prove anything.  If the jury found it difficult to accept what the appellant told the police in his electronically recorded interview (namely, that he did not offend against S as alleged), but the jury thought that his denials might be true, then the jury must find the appellant not guilty.  If the jury accepted the appellant's denials in the electronically recorded interview 'then [the jury] would not be satisfied beyond a reasonable doubt of his guilt and would not be required to consider the evidence of [S] of the alleged offences', and the jury would find the appellant not guilty.  If the jury did not believe the appellant's denials in his electronically recorded interview or the evidence relied upon by the appellant at the trial, then the jury must put the denials and that evidence to one side and determine whether, on the basis of the evidence the jury did accept, the State had proved the appellant's guilt beyond reasonable doubt on the count they were considering (ts 405 ‑ 406).

2. His Honour directed the jury on the elements of each alleged offence and summarised the State's case and the appellant's case (ts 406 ‑ 413).

3. The trial judge referred to the inconsistencies in S's evidence which defence counsel had emphasised in his closing address.  His Honour directed the jury about the alleged prior inconsistent statements, including as follows:

   [I]f you find that [S] has previously made a statement that is inconsistent with her evidence to you, then the fact that she had made a prior inconsistent statement is a matter which you can take into account when you come to consider her credibility as a witness of truth in relation to the matters you are concerned with in count 1 and count 2 on the indictment.  Whether it does or does not affect your assessment of her credibility in relation to her evidence which concerns the touching the subject of counts 1 and 2 is of course entirely a matter for you (ts 418).

4. Next, his Honour reminded the jury that:

   (a)S had accepted, in the course of her evidence, that she had 'lied on a number of occasions to a number of different people, including to the police in the course of their investigations and [in the course of providing] the [witness] statements that she made'; and

   (b)defence counsel had submitted that, by reason of those lies, the jury could not be satisfied about [S's] credibility or truthfulness in relation to the events the subject of counts 1 and 2 (ts 418).

5. The trial judge gave the jury some examples of S's lies for the purpose of a direction his Honour intended to give.  The examples were:

   (a)S accepted that she had lied in relation to whether the touching the subject of count 1 was on the top of or underneath her underwear;

   (b)S accepted that she had lied to medical staff at Princess Margaret Hospital in relation to an incident involving her having had unprotected sex;

   (c)S accepted that she did not inform the police, when she made a witness statement in August 2015, that she had in fact asked the appellant for $20,000 as opposed to the lesser sum of $3,500; and

   (d)S accepted that she had lied to her mother (ts 418 - 419).

6. His Honour instructed the jury that 'it [was] for [the jury] to decide what significance the suggested lies in relation to the evidence of [S] have to the issues in this case'.  His Honour added that the fact that 'a person has told a lie may be a factor in your assessment of their credibility' (ts 419).

7. The trial judge then gave the impugned direction:

   But do not follow a process of reasoning to the effect that just because [S] is shown to have told a lie or she has admitted she told a lie, that all of her evidence is in fact dishonest and cannot be relied upon.  So, members of the jury, if you in your deliberations think she has told a lie or you accept when she says she did tell a lie that she did so, that is a factor you may take into account when you come to assess her credibility in relation to the alleged touching the subject of counts 1 and 2 in the indictment with which you are concerned (ts 419).

8. Later, his Honour elaborated on his direction about S's lies:

   I just want to return to the direction [I gave you as to] how you might take into account any lies which [S] accepted she had told or which you might think were in fact lies.

   And the direction that I gave to you includes of course the evidence of [S] that she gave to you in the trial that she had disclosed to Sergeant Moran that she had been involved in dealing with methylamphetamine.  And you heard his evidence that he was not informed by her of that.

   If you think that [S] told you a lie in relation to that aspect of the evidence, then that of course is a matter for you and you can take it into account when you come to assess her credibility in the way that I indicated (ts 422).

9. The trial judge gave the jury a detailed direction in accordance with Longman v The Queen.[1]  In particular, his Honour said:

   (a)as a matter of law, the jury must be satisfied beyond reasonable doubt about the truthfulness, reliability and accuracy of S's evidence before the jury could convict the appellant of count 1 or count 2 (ts 424);

   (b)as a consequence of the crucial nature of S's evidence and the seriousness of the allegations against the appellant, the jury must scrutinise S's evidence with special care (ts 424);

   (c)the jury was at liberty to act on S's evidence to convict the appellant, if the jury was satisfied of its truth and accuracy, '[b]ut it is the experience of the courts that it would be unsafe and dangerous to convict [the appellant] on the uncorroborated evidence of [S] alone, [u]nless you first have scrutinised her evidence with great care and [have] considered the circumstances relevant to the evidence to which I have referred and taken full account of the warning I have just given to you' (ts 427);

   (d)if, having evaluated S's evidence with great care and having been 'mindful of the matters that I have been directing you about in relation to the issue of delay [by S in making complaint and delay in the appellant being informed of her complaint], you are satisfied as to its truthfulness, reliability and accuracy, then you can make findings of fact based on that evidence' (ts 427); and

   (e)whether or not to accept or reject S's evidence was a matter for the jury, 'but you must take into account the direction I have just given you, in your deliberations' (ts 427).

   [1] Longman v The Queen [1989] HCA 60; (1989) 168 CLR 79.

10. Defence counsel is a competent and experienced criminal lawyer.  He said to his Honour, in the absence of the jury, that the impugned direction was, in effect, analogous to the direction formulated in Zoneff v The Queen,[2] and that defence counsel had not 'heard that before' (ts 420).  Defence counsel said that he was 'not going to make any comment in relation to that' (ts 420).  He did not request his Honour to give the jury a further direction or a redirection on the point.

The ground of appeal:  aspects of the obligations of the judge and the jury in a criminal trial

[2] Zoneff v The Queen [2000] HCA 28; (2000) 200 CLR 234.

1. Section 112 of the Criminal Procedure Act 2004 (WA) provides that in a criminal trial before a judge and jury, the judge must instruct the jury on the law applicable to the case and may make any observations about the evidence that the judge thinks necessary in the interests of justice.

2. By s 105 of the Criminal Procedure Act, each juror must take an oath or make an affirmation to give a true verdict according to the evidence upon the issues to be tried by the juror.

Section 30 of the Criminal Appeals Act

1. Section 30(1) of the Criminal Appeals Act provides that s 30 applies in the case of an appeal against a conviction by an offender.

2. By s 30(2), unless under s 30(3) this court allows the appeal, it must dismiss the appeal.

3. Section 30(3) provides:

   The Court of Appeal must allow the appeal if in its opinion ‑ 

   (a)the verdict of guilty on which the conviction is based should be set aside because, having regard to the evidence, it is unreasonable or cannot be supported; or

   (b)the conviction should be set aside because of a wrong decision on a question of law by the judge; or

   (c)there was a miscarriage of justice.

4. By s 30(4), despite s 30(3), even if a ground of appeal might be decided in favour of the offender, this court may dismiss the appeal if it considers that no substantial miscarriage of justice has occurred.

5. Section 30(3) and s 30(4) must, of course, be construed by reference to the statutory text (rather than secondary sources or materials) having regard to the historical context of the common form of criminal appeals statute. See Weiss v The Queen (Gleeson CJ, Gummow, Kirby, Hayne, Callinan & Heydon JJ).[3]

   [3] Weiss v The Queen [2005] HCA 81; (2005) 224 CLR 300 [12] - [31].

6. The statutory direction in s 30(3) that this court must allow the appeal is conditional upon this court forming the opinion specified in par (a), par (b) or par (c).

7. As to s 30(3)(a), a jury's verdict of guilty is not to be set aside unless there was no or insufficient evidence to support the verdict, or the evidence was all the one way, or the verdict was otherwise unreasonable, or unless there was a misdirection leading to a miscarriage of justice. See Knight v The Queen (Mason CJ, Dawson & Toohey JJ);[4] M v The Queen (Mason CJ, Deane, Dawson & Toohey JJ);[5] Filippou v The Queen (French CJ, Bell, Keane & Nettle JJ).[6]

   [4] Knight v The Queen [1992] HCA 56; (1992) 175 CLR 495, 502 - 503.

   [5] M v The Queen [1994] HCA 63; (1994) 181 CLR 487, 492 - 493.

   [6] Filippou v The Queen [2015] HCA 29; (2015) 256 CLR 47 [12].

8. As to s 30(3)(b), 'a wrong decision on a question of law' includes misdirections on matters of substantive law and, also, misdirections on matters of adjectival law. Section 30(3)(b) overlaps to some extent with s 30(3)(a) in that the question under each provision is whether the error constitutes a miscarriage of justice in the sense of a departure from trial according to law. See Weiss [17] ‑ [18]; Filippou [13].

9. In Simic v The Queen,[7] Gibbs, Stephen, Mason, Murphy and Wilson JJ said, in effect, that the phrase 'a wrong decision on a question of law' by the judge refers to a wrong decision on a material point of law. 

   [7] Simic v The Queen [1980] HCA 25; (1980) 144 CLR 319, 327 - 328.

10. If a trial judge fails to give a direction which is required by law and the failure may have resulted in the conviction of the accused, the trial has not been conducted according to law and the conviction constitutes a miscarriage of justice.  See KBT v The Queen (Brennan CJ, Toohey, Gaudron & Gummow JJ).[8]

    [8] KBT v The Queen [1997] HCA 54; (1997) 191 CLR 417, 424.

11. As to s 30(3)(c), the expression 'miscarriage of justice', having regard to its historical context, refers to 'any departure from trial according to law, regardless of the nature or importance of that departure': Weiss [18] (original emphasis). See also King v The Queen (French CJ, Crennan & Kiefel JJ).[9] Section 30(3)(c) covers cases where, as a consequence of irregularity or otherwise, an accused has not received a trial according to law or has not received a fair trial. See Weiss [45]; Filippou [14]. When the expression 'miscarriage of justice' in s 30(3)(c) is understood in that manner, the word 'substantial', in the context of the expression 'substantial miscarriage of justice' in the proviso in s 30(4), has work to do. See Weiss [18]; King [53].

    [9] King v The Queen [2012] HCA 24; (2012) 245 CLR 588 [53].

12. Section 30(3)(b) may overlap in some circumstances with s 30(3)(c). See AK v The State of Western Australia;[10] Gassy v The Queen.[11]

    [10] AK v The State of Western Australia [2008] HCA 8; (2008) 232 CLR 438 [47] (Gummow & Hayne JJ), [86] (Heydon J).

    [11] Gassy v The Queen [2008] HCA 18; (2008) 236 CLR 293 [19] (Gummow & Hayne JJ).

13. The proviso in s 30(4) applies to par (a), par (b) and par (c) of s 30(3). See Filippou [15].

14. By s 30(3) read with s 30(4), two questions arise for determination. First, whether the appellate court '[is of the] opinion' specified in par (a), par (b) or par (c) of s 30(3) and, secondly, whether the court 'considers that no substantial miscarriage of justice has occurred' within s 30(4). See Perara‑Cathcart v The Queen.[12]

The ground of appeal: the principles governing the application of the proviso in s 30(4) of the Criminal Appeals Act

[12] Perara- Cathcart v The Queen [2017] HCA 9; (2017) 91 ALJR 41 [38] ‑ [40], [48] (Kiefel, Bell & Keane JJ).

1. In Weiss, the trial judge had erred in permitting the prosecution to adduce inadmissible evidence.  The accused was convicted.  The Court of Appeal of Victoria held that the trial judge had made an error of law, but applied the proviso and dismissed the appeal.  The High Court reversed the Court of Appeal's decision. 

2. In the High Court, Gleeson CJ, Gummow, Kirby, Hayne, Callinan and Heydon JJ analysed the common form of criminal appeals statute in its historical context, including by reference to the old 'Exchequer rule'.  This rule was derived from the Court of Exchequer's decision in Crease v Barrett.[13]  A 'miscarriage of justice' under the old Exchequer rule was any departure from trial according to law, regardless of the nature or importance of that departure.  The proviso was introduced to require consideration of matters beyond the question of whether there had been a departure from applicable rules of evidence or procedure [18] ‑ [19].

   [13] Crease v Barrett (1835) 1 Cr M & R 919 [149 ER 1353].

3. Gleeson CJ, Gummow, Kirby, Hayne, Callinan and Heydon JJ enunciated three fundamental propositions in relation to the proviso to s 568(1) of the Crimes Act 1958 (Vic) (a provision indistinguishable, in substance, from s 30(3) and s 30(4) of the Criminal Appeals Act) which, their Honours said, must not be obscured:

   First, the appellate court must itself decide whether a substantial miscarriage of justice has actually occurred. Secondly, the task of the appellate court is an objective task not materially different from other appellate tasks. It is to be performed with whatever are the advantages and disadvantages of deciding an appeal on the record of the trial; it is not an exercise in speculation or prediction. Thirdly, the standard of proof of criminal guilt is beyond reasonable doubt [39].

4. Later, their Honours summarised the statutory task which must be performed by an appellate court in deciding whether to dismiss an appeal against conviction on the ground that no substantial miscarriage of justice has occurred:

   That task is to be undertaken in the same way an appellate court decides whether 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.  The appellate court must make its own independent assessment of the evidence (Driscoll v The Queen (1977) 137 CLR 517 at 524 ‑ 525 per Barwick CJ; Storey (1978) 140 CLR 364 at 376 per Barwick CJ. Morris v The Queen (1987) 163 CLR 454; M v The Queen (1994) 181 CLR 487; Festa (2001) 208 CLR 593 at 631 - 633 [121] - [123] per McHugh J) and determine whether, making due allowance for the 'natural limitations' that exist in the case of an appellate court proceeding wholly or substantially on the record (Fox v Percy (2003) 214 CLR 118 at 125 ‑ 126 [23] per Gleeson CJ, Gummow and Kirby JJ), the accused was proved beyond reasonable doubt to be guilty of the offence on which the jury returned its verdict of guilty. There will be cases, perhaps many cases, where those natural limitations require the appellate court to conclude that it cannot reach the necessary degree of satisfaction. In such a case the proviso would not apply, and apart from some exceptional cases, where a verdict of acquittal might be entered, it would be necessary to order a new trial. But recognising that there will be cases where the proviso does not apply does not exonerate the appellate court from examining the record for itself [41].

5. The appellate court's task must be undertaken on the whole of the trial record, including the fact that the jury returned a verdict of guilty:  see Weiss [43]. Their Honours also said:

   The court is not 'to speculate upon probable reconviction and decide according to how the speculation comes out' (Kotteakos v United States (1946) 328 US 750 at 763). But there are cases in which it would be possible to conclude that the error made at trial would, or at least should, have had no significance in determining the verdict that was returned by the trial jury. The fact that the jury did return a guilty verdict cannot be discarded from the appellate court's assessment of the whole record of trial. Secondly, it is necessary always to keep two matters at the forefront of consideration: the accusatorial character of criminal trials such as the present (RPS v The Queen (2000) 199 CLR 620 at 630 [22] per Gaudron ACJ, Gummow, Kirby and Hayne JJ) and that the standard of proof is beyond reasonable doubt [43].

6. So, it will often be possible, where the proviso is being considered, to place some weight upon the fact that the jury returned a verdict of guilty.  See Cesan v The Queen;[14] Patel v The Queen.[15]

   [14] Cesan v The Queen [2008] HCA 52; (2008) 236 CLR 358 [129] (Hayne, Crennan & Kiefel JJ).

   [15] Patel v The Queen [2012] HCA 29; (2012) 247 CLR 531 [128] (French CJ, Hayne, Kiefel & Bell JJ).

7. In Weiss, it was emphasised that it is not correct or of assistance to endeavour to articulate absolute rules or singular tests which are to be applied where an appellate court examines the trial record for itself, beyond the three fundamental propositions I have reproduced at [85] above. Gleeson CJ, Gummow, Kirby, Hayne, Callinan and Heydon JJ added:

   (The appellate court must itself decide whether a substantial miscarriage of justice has actually occurred; the task is an objective task not materially different from other appellate tasks; the standard of proof is the criminal standard.) It is not right to attempt to formulate other rules or tests in so far as they distract attention from the statutory test. It is not useful to attempt that task because to do so would likely fail to take proper account of the very wide diversity of circumstances in which the proviso falls for consideration [42].

8. Their Honours acknowledged that no single universally applicable description of what constitutes 'no substantial miscarriage of justice' can be given.  They said, however, that one negative proposition may safely be offered:

   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 [44].

   See also Darkan v The Queen;[16] Handlen v The Queen;[17] Patel [120] (French CJ, Hayne, Kiefel & Bell JJ).

   [16] Darkan v The Queen [2006] HCA 34; (2006) 227 CLR 373 [84], [94] ‑ [96] (Gleeson CJ, Gummow, Heydon & Crennan JJ).

   [17] Handlen v The Queen [2011] HCA 51; (2011) 245 CLR 282 [47] (French CJ, Gummow, Hayne, Crennan, Kiefel & Bell JJ).

9. In AK, Gummow and Hayne JJ referred to the passages in Weiss which I have set out at [89] ‑ [90] above, and said that the negative proposition in those passages (about when the proviso cannot be engaged) must not be treated as if it states what suffices to show that no substantial miscarriage has occurred:

   To treat the negative proposition in this way would be to commit the very same error which Weiss sought to correct, namely, taking judicial statements about aspects of the operation of statutory provisions as substitutes for the statutory language [53].

10. In Weiss, the High Court noted that there may be cases where it would be proper to allow an appeal and order a new trial, even though the appellate court is satisfied that the appellant's guilt of the offence in question was proved beyond reasonable doubt. The High Court referred, by way of example, to two categories of case. The first included cases 'where there has been a significant denial of procedural fairness at trial' [45]. The second included cases where the 'errors or miscarriages of justice occurring in the course of a criminal trial may amount to such a serious breach of the presuppositions of the trial as to deny the application of the common form criminal appeal provision with its proviso' [46]. See also Smith v The State of Western Australia.[18]  In Weiss at [46] their Honours referred to Wilde v The Queen.[19]  Wilde was concerned with an appeal by an offender who had been convicted following a trial before a judge and jury.  The Court of Criminal Appeal of New South Wales held that the trial judge had made a serious error of law in the trial in that evidence relating to one count against the appellant was not admissible in proof of some other counts against him, so the first count should have been severed from the indictment and tried separately.  Nevertheless, the Court of Criminal Appeal was of the opinion that the evidence in support of the counts upon which the appellant was convicted was so strong, and the defence so weak, that there had been no substantial miscarriage of justice.  It dismissed the appeal.  The appellant's appeal to the High Court also failed.

    [18] Smith v The State of Western Australia [2014] HCA 3; (2014) 250 CLR 473 [53] (French CJ, Crennan, Kiefel, Gageler & Keane JJ).

    [19] Wilde v The Queen [1988] HCA 6; (1988) 164 CLR 365, 373.

11. In Wilde, Brennan, Dawson and Toohey JJ held that the proviso was not intended to apply 'when the proceedings before the primary court have so far miscarried as hardly to be a trial at all'; and also, that the proviso does not apply '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' so that 'the accused has not had a proper trial and … there has been a substantial miscarriage of justice' (373). 

12. So, where impropriety or unfairness permeates or affects a criminal trial to an extent where it ceases to be a fair trial according to law, an appellate court could not dismiss an appeal against conviction on the basis that there had been no substantial miscarriage of justice.  See Lee v The Queen.[20]

    [20] Lee v The Queen [2014] HCA 20; (2014) 253 CLR 455 [47] (French CJ, Crennan, Kiefel, Bell & Keane JJ).

13. In Gassy, Gummow and Hayne JJ said in relation to the observations in Wilde concerning a serious breach of the presuppositions of a criminal trial:

    Identifying a priori some kinds of error as precluding application of the proviso presents difficulties of the same kind as are presented by using judicial statements about the application of the proviso as some substitute for the relevant statutory test.  That is, it is neither possible nor useful to seek to apply the proviso according to a taxonomy of errors at trial which describes some as 'fundamental' and others as not.  And what was said in Wilde v The Queen ([1988] HCA 6; (1988) 164 CLR 365 at 373 per Brennan, Dawson and Toohey JJ) about 'such a departure from the essential requirements of the law that it goes to the root of the proceedings' is not to be understood as prescribing or defining a class of cases to which the proviso cannot be applied. Rather, what was said in the passage quoted from Wilde is a description, in words other than the statutory words, of one kind of case in which an appellate court could not conclude that there had been no substantial miscarriage of justice.  For the reasons given in Weiss, a negative proposition of this kind cannot be taken as a substitute for the statutory language.

    Whether the error constituted by giving the impugned instructions is properly described as 'fundamental' or as an error going 'to the root of the proceedings' would depend upon the content that is given to the expressions used.  The statutory question is whether the Full Court considers that 'no substantial miscarriage of justice has actually occurred' (Criminal Law Consolidation Act 1935 (SA), s 353(1)). In answering that question it is necessary to consider the nature of the error and in doing that it will be important to consider the possible effect that the error may have had on the outcome of the trial [33] - [34].  (emphasis added)

14. In AK, Gleeson CJ and Kiefel J accepted, as a matter of principle, that 'some errors are so fundamental or involve such a departure from the essential requirements of a fair trial that they exclude the operation of the proviso, irrespective of the strengths of the prosecution case, or the appellate court's view as to the guilt of the accused' and that 'the proviso cannot be applied where the error at trial denies or substantially frustrates the capacity of an appellate court to decide whether a conviction is just' [23].  Gummow and Hayne JJ accepted, by reference to Wilde, that, although the class is difficult to describe in the abstract, there exists a 'class of … circumstances' in which 'radical' error at trial may render the application of the proviso impossible [54]. 

15. In Weiss, the High Court referred to a 'significant' denial of procedural fairness at trial as an example of a category of case where it would be proper to allow an appeal and order a new trial, even though the appellate court was satisfied beyond reasonable doubt of the accused's guilt [45].  The word 'significant' and other formulations by the High Court (for example:  a 'serious' breach of the presuppositions of a criminal trial:  Weiss [46]; such a departure from the essential requirements of the law that it goes to 'the root' of the proceedings: Wilde (373); errors which are 'so fundamental' or involved 'such a departure' from the essential requirements of a fair trial:  AK [23]; 'radical' error at trial:  AK [54]; a 'grave' error by the trial judge: CTM v The Queen [129]),[21] indicate that questions of degree are involved in determining whether, in the circumstances of a particular case, an appellate court considers that the nature of the error or miscarriage at trial precludes the court from being satisfied, in terms of the proviso, that no substantial miscarriage of justice has actually occurred, irrespective of the strength of the prosecution case or the appellate court's opinion as to the accused's guilt.

    [21] CTM v The Queen [2008] HCA 25; (2008) 236 CLR 440.

16. In Baiada Poultry Pty Ltd v The Queen,[22] French CJ, Gummow, Hayne and Crennan JJ reiterated that an appellate court must undertake the task of determining whether to apply the proviso to the common form of criminal appeals statute in the same manner as it would decide whether 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 [27]. The task of determining whether no substantial miscarriage of justice has actually occurred must be undertaken on the whole of the trial record including the jury's verdict of guilty [27]. Their Honours then made two further points. First, the appellate court, in assessing the significance to be given to the jury's verdict of guilty, must pay proper regard to the issues the jury were directed to decide in order to arrive at a verdict of guilty [28]. Secondly, the statement by Gleeson CJ, Gummow, Kirby, Hayne, Callinan and Heydon JJ in Weiss at [44] that the proviso cannot be engaged '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', is a negative proposition [29]. The statement enunciates a necessary but not sufficient condition for the application of the proviso. French CJ, Gummow, Hayne and Crennan JJ observed in Baiada Poultry:

    As this Court's decision in AK v Western Australia ((2008) 232 CLR 438 at 457 [58]) shows, demonstration that a chain of reasoning can be articulated that would require the verdict reached at trial does not always permit, let alone require, the conclusion that no substantial miscarriage of justice actually occurred [29].

    See also Reeves v The Queen.[23]  

    [22] Baiada Poultry Pty Ltd v The Queen [2012] HCA 14; (2012) 246 CLR 92.

    [23] Reeves v The Queen [2013] HCA 57; (2013) 88 ALJR 215 [50] - [51] (French CJ, Crennan, Bell & Keane JJ).

1. In Filippou, French CJ, Bell, Keane and Nettle JJ said that the phrase 'substantial miscarriage of justice', in this context, means that 'the possibility cannot be excluded beyond reasonable doubt that the appellant has been denied a chance of acquittal which was fairly open to him or her (Pollock v The Queen (2010) 242 CLR 233 at [70]) or that there was some other departure from a trial according to law that warrants that description (Baiada Poultry Pty Ltd v The Queen at [22] ‑ [23] per French CJ, Gummow, Hayne and Crennan JJ; see, eg, AK v Western Australia (2008) 232 CLR 438 at [57] ‑ [59] per Gummow and Hayne JJ; at [109] ‑ [110] per Heydon J)' [15].

2. French CJ, Bell, Keane and Nettle JJ elaborated, in effect:

   (a)where s 30(3)(a) applies, 'it will follow that [the appellate court] has concluded that there has been a substantial miscarriage of justice' within s 30(4) [15];

   (b)in contrast, where s 30(3)(b) applies, the circumstances in some cases may be such that, despite the trial judge making 'the wrong decision [on a] question of law', the appellate court is persuaded that 'the error could not have deprived the appellant of a chance of acquittal that was fairly open to him or her' and, in that case, the proviso in s 30(4) will operate [15]; and

   (c)where s 30(3)(c) applies, if the appeal court has concluded that the appellant did not receive a fair trial 'it will follow that [the appellate court] has concluded that there has been a substantial miscarriage of justice' within s 30(4) [15].

3. Their Honours went on to say that where, despite some other identified irregularity (within s 30(3)(c)), the appellate court is satisfied that the appellant has received 'a fair trial according to law and not otherwise been deprived of a chance of acquittal that was fairly open to him or her … the proviso [in s 30(4)] will operate' [15].

4. In AK, Gummow and Hayne JJ said:

   When there has been a trial by jury, and an appellate court concludes that the trial judge made a wrong decision on a question of law or that there was some other miscarriage of justice, deciding whether there has been no substantial miscarriage of justice necessarily invites attention to whether the jury's verdict might have been different if the identified error had not occurred. That is why, if the appellate court is not persuaded beyond reasonable doubt of the appellant's guilt it cannot be said that there was no substantial miscarriage of justice. But just as persuasion of the appellate court of the accused's guilt does not in every case conclude the inquiry about the proviso's application in appellate review of a jury trial, inquiring about the weight of the evidence led at a trial by judge alone does not determine whether there was a substantial miscarriage of justice. In a case, like the present, where the Criminal Procedure Act required that the trial yield a reasoned decision, but no reasons were given for the determination of the central issue tried, it cannot be said that there was no substantial miscarriage of justice [59].  (emphasis added)

5. In Castle v The Queen,[24] the appellants were convicted after trial of murder. The trial judge, relevantly, made an error by leaving a witness' evidence as to a statement by one of the appellants as an admission against interest when the statement was in fact exculpatory. In the High Court, Kiefel, Bell, Keane and Nettle JJ held that the error required the verdict of guilty to be set aside unless the Court of Criminal Appeal was satisfied that no substantial miscarriage of justice actually occurred. It was necessary for the Court of Criminal Appeal, in making that determination, to consider the possible effect of the error on the outcome of the trial [64]. See also Gassy [18], [34] (Gummow & Hayne JJ), [60], [62] ‑ [63] (Kirby J) and Baiada Poultry [27] ‑ [29] (French CJ, Gummow, Hayne & Crennan JJ).

   [24] Castle v The Queen [2016] HCA 46; (2016) 259 CLR 449.

6. Recently, in Kalbasi v The State of Western Australia,[25] a majority of the High Court rejected the appellant's submission that Weiss should be qualified or overruled. 

   [25] Kalbasi v The State of Western Australia [2018] HCA 7.

7. Kiefel CJ, Bell, Keane and Gordon JJ held that the concepts of a 'lost chance of acquittal' and its converse the 'inevitably of conviction' do not serve as tests for the application of the proviso [12]. That is because the appellate court is not predicting the outcome of a hypothetical error‑free trial, but is deciding whether, notwithstanding error, guilt was proved beyond reasonable doubt on the admissible evidence at the trial that was had [12].

8. Their Honours noted that the negative proposition stipulated in Weiss at [44], as a condition of the engagement of the proviso, recognises that the conviction of a person whose guilt has not been proved beyond reasonable doubt, on admissible evidence, will always be a substantial miscarriage of justice [13]. However, their Honours then added:

   On the other hand, the appellate court's satisfaction that guilt has been proved to the criminal standard on the admissible evidence will in many instances support the conclusion that there has been no substantial miscarriage of justice notwithstanding a wrong decision on a question of law (under the second limb, here s 30(3)(b)) or a miscarriage of justice (under the third limb, here s 30(3)(c)) (see, eg, Darkan v The Queen [2006) 227 CLR 373; Bounds v The Queen (2006) 80 ALJR 1380; 228 ALR 190). This is to recognise and give effect to the evident purpose of the enactment of the proviso to do away with the formalism of the Exchequer rule (the rule required a new trial in the case of every departure from a trial according to law) [13].

9. Kiefel CJ, Bell, Keane and Gordon JJ explained that Weiss requires the appellate court, in every case, to consider the nature and effect of the error in question:

   This is because 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 (Castle v The Queen (2016) 259 CLR 449), cases in which there has been a failure to leave a defence or partial defence for the jury’s consideration (Baiada Poultry Pty Ltd v The Queen (2012) 246 CLR 92; Lindsay v The Queen (2015) 255 CLR 272. See also Filippou v The Queen (2015) 256 CLR 47) and cases in which there has been a wrong direction on an element of liability in issue or on a defence or partial defence (Pollock vThe Queen (2010) 242 CLR 233; and see Reeves v The Queen (2013) 88 ALJR 215 at 223 ‑ 224 [50] per French CJ, Crennan, Bell and Keane JJ; 304 ALR 251 at 261). In such cases Weiss does not disavow the utility of the concepts of the lost chance of acquittal or inevitability of conviction (Weiss v The Queen (2005) 224 CLR 300 at 315 ‑ 316 [40]): regardless of the apparent strength of the prosecution case, the appellate court cannot be satisfied that guilt has been proved [15].

10. Their Honours observed that it is not possible to describe 'the metes and bounds of those wrong decisions of law or failures of trial process that will occasion a substantial miscarriage of justice notwithstanding the cogency of proof of the accused's guilt' [16]. The fundamental question remains whether there has been a substantial miscarriage of justice [16].

11. Kiefel CJ, Bell, Keane and Gordon JJ emphasised that a misdirection upon a matter of law is always both contrary to law and a departure from the requirements of a fair trial according to law [57]. However, sometimes a misdirection on a matter of law will preclude the application of the proviso and sometimes it will not [57]. The question for the appellate court is always whether there has been a substantial miscarriage of justice [57]. The resolution of that question depends upon the particular misdirection and the context in which it occurred [57].

The ground of appeal:  its merits

1. The High Court made observations in RPS v The Queen[26] and Azzopardi v The Queen[27] about the respective functions of judge and jury in a criminal trial.

   [26] RPS v The Queen [2000] HCA 3; (2000) 199 CLR 620.

   [27] Azzopardi v The Queen [2001] HCA 25; (2001) 205 CLR 50.

2. In RPS, Gaudron ACJ, Gummow, Kirby and Hayne JJ emphasised that judicial instructions in criminal trials must not be permitted to obscure the division of functions between judge and jury [42].  Their Honours elaborated:

   As we have said, in some cases a judge must give the jury warnings about how they go about [the] task [of deciding the facts].  And, of course, it has long been held that a trial judge may comment (and comment strongly) on factual issues (see, eg, Tsigos v The Queen (1965) 39 ALJR 76(n)). But although a trial judge may comment on the facts, the judge is not bound to do so except to the extent that the judge's other functions require it. Often, perhaps much more often than not, the safer course for a trial judge will be to make no comment on the facts beyond reminding the jury, in the course of identifying the issues before them, of the arguments of counsel [42]. (original emphasis)

3. In Azzopardi, Gaudron, Gummow, Kirby and Hayne JJ reiterated that a trial judge's task in relation to the facts ends at identifying the issues for the jury and giving whatever warnings may be appropriate about impermissible or dangerous paths of reasoning [50]. Their Honours acknowledged that a trial judge may comment on the evidence that has been given and comment about the facts that the jury might find to be established [50], but noted that unnecessary or extensive comments on the facts carry well‑recognised risks of misstatements or other errors and of blurring the respective functions of the judge and the jury [52].

4. In the present case, S's admitted or alleged lies at the trial may be analysed as follows.

5. S did not admit unequivocally that:

   (a)she had not told the police about her involvement in drug dealing; or

   (b)she had lied to the police about the conversation she had with the appellant concerning the amount of money she asked him to give her.

6. S admitted that she had lied to representatives of Family and Children's Services and to medical practitioners at Princess Margaret Hospital.  However, the significance of the lies had to be evaluated having regard to S's explanation that she told the lies to conceal the truth that the appellant had been engaging in sexual behaviour with her.

7. S admitted that she had lied to her mother about an incident involving the appellant.  However, the significance of the lie had to be evaluated having regard to S's explanation that the appellant told her not to tell her mother anything.

8. S admitted that she had lied to the appellant about the amount of money demanded by people who had engaged in standover behaviour by stealing her partner's car.  S did not explain the lie by reference to the appellant's alleged sexual abuse.

9. S's admitted or alleged lies at the trial were of significance to the defence case in that:

   (a)the appellant denied doing any of the acts the subject of any of the counts on the indictment;

   (b)S's allegations in relation to the indecent dealing charged in counts 1 and 2 were not corroborated; and

   (c)the State was required to satisfy the jury beyond reasonable doubt that S was a truthful and reliable witness and that her allegations the subject of counts 1 and 2 should be accepted.

10. I consider that the impugned direction was a direction of law which the jury was bound to follow and not merely a comment.  That the impugned direction was intended by the trial judge to be a direction of law, and would have been understood by the jury as a direction they were bound to follow, can be inferred from the context in which the impugned direction was given, including from the following:

    (a)at the beginning of his summing up, his Honour told the jury that he would 'give [the jury] some specific directions of law, which apply to certain aspects of the evidence that you have heard in this case and the issues which have arisen' (ts 392);

    (b)it was entirely a matter for the jury, as the judges of the facts, whether they accepted the whole, part or none of a witness' evidence, 'subject to [his Honour's] directions about the law which may concern an aspect of the evidence or about how [the jury] should approach it' (ts 396 ‑ 397);

    (c)his Honour clearly identified, in his summing up, when he was giving a direction of law as distinct from when he was making a comment (ts 392, 394, 397 ‑ 400, 414);

    (d)his Honour told the jury that he would give them a 'direction' as to the manner in which the jury could deal with the fact that S had admitted 'she was a person who was willing to tell lies to other people' (ts 413); and

    (e)immediately before he gave the impugned direction, his Honour told the jury that he was going to give them 'one further direction' (ts 418 ‑ 419).

11. A criminal trial on indictment proceeds on the assumption that, as a general rule, the jurors are true to their oath or affirmation and they understand and obey the trial judge's directions.  See Gilbert v The Queen;[28] Dupas v The Queen.[29]  In the present case, on my examination of the trial record, it is appropriate to proceed on the basis that the jurors understood and obeyed the impugned direction.

    [28] Gilbert v The Queen [2000] HCA 15; (2000) 201 CLR 414 [13] (Gleeson CJ & Gummow J), [31] (McHugh J).

    [29] Dupas v The Queen [2010] HCA 20; (2010) 241 CLR 237 [28] ‑ [29] (French CJ, Gummow, Hayne, Heydon, Crennan, Kiefel & Bell JJ).

12. It is apparent that his Honour modelled the impugned direction on the direction formulated by Gleeson CJ, Gaudron, Gummow and Callinan JJ in Zoneff [24]. Zoneff was concerned with lies told by an accused.  A Zoneff direction may be necessary where there is a serious risk that the jury might engage in an impermissible process of reasoning in relation to lies told by the accused.  In Dhanhoa v The Queen,[30] Gleeson CJ and Hayne J said that a Zoneff direction is not necessary on every occasion that it is suggested, in cross‑examination or submissions, that something said by an accused, either in or out of court, is untrue or otherwise reflects adversely on his or her credibility [34].  Zoneff was an unusual case [34].  The direction formulated in Zoneff is appropriate where there is a risk of the jury misunderstanding the significance of possible lies told by the accused [34].

    [30] Dhanhoa v The Queen [2003] HCA 40; (2003) 217 CLR 1.

13. The rationale for a Zoneff direction, namely the avoidance of a perceptible risk of miscarriage of justice in relation to the trial of the accused arising from possible lies told by him or her, does not apply to a complainant who is a witness at the trial.

14. In the present case, it was open to the jury, if they so decided, to conclude that S was a dishonest or an unreliable witness on the basis of the lies S admitted having told and any alleged lies which S did not admit having told but which the jury found she had told.  Further, if the jury concluded that S was a dishonest or an unreliable witness, it was open to the jury, if they so decided, to conclude that S's evidence could not be relied upon in relation to the appellant's alleged conduct the subject of counts 1 and 2, and that the State had failed to prove counts 1 and 2 beyond reasonable doubt, without the jury evaluating all of the evidence relevant to those counts.

15. The trial judge was not bound, by statute or case law, to give the impugned direction.  There was no need to give the impugned direction in order to avoid a perceptible risk of miscarriage of justice.  The effect of the impugned direction was to prohibit the jury from engaging in a process of reasoning, favourable to the appellant, in relation to fact‑finding concerning S's honesty and reliability as a witness that was open to them.  By giving the impugned direction, his Honour intruded impermissibly on the function of the jury.

16. I am satisfied that the impugned direction was erroneous in law, a misdirection and a departure from trial according to law. In particular, it was 'a wrong decision on a question of law' within s 30(3)(b) of the Criminal Appeals Act and, also, it occasioned a 'miscarriage of justice' within s 30(3)(c) of that Act.

17. In the present case, as I have mentioned, defence counsel did not request his Honour to give the jury a further direction or a redirection in relation to the matters dealt with in the impugned direction.

18. However, defence counsel cannot concede a matter of law to the disadvantage of the accused.  See R v Stokes (Hunt J; Wood & McInerney JJ agreeing);[31] Perara‑Cathcart [124] (Nettle J). A trial judge has no authority to dispense with directions that the law requires the judge to give, even if defence counsel is content that they not be given. See BRS v The Queen (McHugh J);[32] Perara‑Cathcart [124].

    [31] R v Stokes (1990) 51 A Crim R 25, 32.

    [32] BRS v The Queen [1997] HCA 47; (1997) 191 CLR 275, 305.

19. In the present case, the failure of defence counsel to request his Honour to give a redirection or a further direction in relation to the matters the subject of the impugned direction does not preclude this court from characterising the impugned direction as erroneous in law, a misdirection and a departure from trial according to law; that is, from characterising the impugned direction as 'a wrong decision on a question of law' within s 30(3)(b) (or, indeed, a 'miscarriage of justice' within s 30(3)(c)) of the Criminal Appeals Act.  In any event, on my examination of the trial record, there is no basis, on an objective appraisal, for suspecting (let alone concluding) that defence counsel's failure to request a further direction or a redirection involved or was part of a deliberate forensic strategy.

20. So, in my opinion:

    (a)the impugned direction constituted a wrong decision on a question of law by the trial judge; and

    (b)further or alternatively, the impugned direction occasioned a miscarriage of justice. 

21. However, I am satisfied beyond reasonable doubt that no substantial miscarriage of justice has occurred.  The appellant was not denied a chance of acquittal on count 1 that was fairly open to him.  It would not be unfair, in the circumstances of the present case, to apply the proviso.  Consequently, the appellant's conviction on count 1 should not be set aside.  My reasons for those conclusions are as follows.

22. First, it is true that the impugned direction, in effect, prohibited the jury from engaging in a process of reasoning, favourable to the appellant, in relation to fact‑finding concerning S's honesty and reliability as a witness that was open to them. 

23. However, as I have mentioned, his Honour directed the jury in other parts of his summing up that:

    (a)the jury must scrutinise S's evidence with special care;

    (b)the crucial nature of S's evidence to the State's case, combined with the seriousness of the allegations made against the appellant, required the jury carefully to scrutinise and consider S's evidence;

    (c)the fact that S had made prior inconsistent statements was a matter which the jury could take into account when assessing her credibility in relation to the allegations the subject of counts 1 and 2;

    (d)if the jury accepted or found that S had told lies, that acceptance or finding could be taken into account by the jury in assessing her credibility in relation to the allegations the subject of counts 1 and 2;

    (e)the jury must decide what significance S's admitted or alleged lies had in relation to S's evidence concerning the issues in the case;

    (f)the jury could not convict the appellant of a count unless they were satisfied beyond reasonable doubt that S gave truthful, accurate and reliable evidence in relation to that count; and

    (g)the jury could act on S's evidence to convict the appellant, if the jury was satisfied beyond reasonable doubt of its truth and accuracy, but it would be unsafe and dangerous to convict the appellant of a count on the uncorroborated evidence of S alone, unless the jury had first scrutinised her evidence with great care, had considered the circumstances relevant to her evidence to which his Honour had referred, and had taken full account of the Longman warning his Honour had given them.

1. In Simic the plurality cited the italicised portion with evident approval.[109]  As their Honours observed in Simic, the cited passage had been said by the Court of Criminal Appeal in England to represent an unchallenged view of the position.[110]  Read in the context of the two immediately preceding sentences before the italicised portion, the first sentence of the passage from R v Cohen and Bateman that was quoted with approval in Simic states that, unlike a mistake of law by a judge in the summing up, a mistake of fact by the judge in the summing up is not a wrong decision on a question of law.

   [109] Simic (330 - 331).

   [110] R v Haddy [1944] KB 442, 446. This was so until the English statute was amended in 1966.

2. The first two sentences of this passage from R v Cohen and Bateman, as quoted above, were cited with approval by Fullagar J in Mraz.[111]  Read in the context of the immediately following third sentence (being the first italicised sentence), these first two sentences state, in effect, that a mistake of law by the trial judge in the summing up is a wrong decision on a question of law.[112]

   [111] Mraz v The Queen [1955] HCA 59; (1955) 93 CLR 493, 514.

   [112] See also Baini v The Queen [2012] HCA 59; (2012) 246 CLR 469 [49].

3. That is consistent with, and explains, the well‑known statement by Fullagar J in Mraz[113] that, subject to the application of the proviso, 'every accused person is entitled to a trial in which the relevant law is correctly explained to the jury and the rules of procedure and evidence strictly followed'.[114]

   [113] Mraz (514).

   [114] See also Krakouer v The Queen [1998] HCA 43; (1998) 194 CLR 202 [68]; Weiss [18]; Baini [50]; although what is said in Weiss [27] should be noted.

4. Pemble v The Queen[115] involved a ground of appeal complaining of the absence of a direction on a point not relied by counsel and abandoned by him.  In the course of explaining why that was not fatal to the ground of appeal, Barwick CJ said as follows:[116]

   Whatever course counsel may see fit to take, no doubt bona fide but for tactical reasons in what he considered the best interest of his client, the trial judge must be astute to secure for the accused a fair trial according to law.  This involves, in my opinion, an adequate direction both as to the law and the possible use of the relevant facts upon any matter upon which the jury could in the circumstances of the case upon the material before them find or base a verdict in whole or in part.

   [115] Pemble v The Queen [1971] HCA 20; (1971) 124 CLR 107.

   [116] Pemble (117 - 118).

5. The issue in Pemble concerned the adequacy of a direction as to the possible use of the relevant facts on the material before them.  Nevertheless, his Honour's reference to the requirement of an adequate direction as to the law should be noted.  Windeyer J agreed with Barwick CJ.[117]  Menzies J stated that counsel cannot concede a matter of law to the disadvantage of the accused, observing that 'the law is always for the judge'.[118]

   [117] Pemble (137).

   [118] Pemble (133).

6. What was said by Barwick CJ in Pemble has been cited with approval subsequently.[119]

   [119] Fingleton v The Queen [2005] HCA 34; (2005) 227 CLR 166 [83]; Graham v The Queen [2016] HCA 27; (2016) 90 ALJR 820 [51].

7. More recently, Nettle J has observed that defence counsel cannot concede a matter of law to the disadvantage of the accused.[120]

   [120] Perara‑Cathcart v The Queen [2017] HCA 9; (2017) 91 ALJR 411 [124].

8. Some support for the approach I have outlined may also be found in the High Court's decision in KBT v The Queen.[121] In that case the court unanimously overturned a conviction on the ground of a misdirection of law or failure to give an additional direction of law, objection to which was not taken at trial. The statute governing the appeal was s 668E of the Criminal Code Act 1899 (Qld) which provided as follows:

   (1)The Court on any such appeal against conviction shall allow the appeal if it is of opinion that the verdict of the jury should be set aside on the ground that it is unreasonable, or can not 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 of any question of law, or that on any ground whatsoever there was a miscarriage of justice, and in any other case shall dismiss the appeal.

   (1A)However, 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.

   … 

   [121] KBT v The Queen [1997] HCA 54; (1997) 191 CLR 417.

9. Although the court did not address the question in terms, given the absence of any discussion of whether the absence of objection was significant before the proviso was reached, it is implicit that it acted on the basis that the misdirection was a 'wrong decision of any question of law' within s 668E(1). The court's decision was directed to whether the proviso in s 668E(1A) was applicable to the appeal.[122]

   [122] See KBT (423 - 425).

10. The same can be said of Mraz.  In that case there was a misdirection of law to which no objection was taken at trial.[123]  The only issue was whether the proviso had been correctly invoked by the Court of Criminal Appeal of New South Wales.  Again, it seems to have been implicit that the misdirection was a 'wrong decision on a question of law', notwithstanding the absence of objection at trial.

    [123] See R v Mraz (1955) 55 SR (NSW) 479, 491, 494 - 495.

11. In Stanton v The Queen,[124] the High Court was divided on whether the trial judge's direction was erroneous in law.  The predecessor of this court had unanimously held that it did, but a majority applied the proviso.[125]  No objection was taken at trial to the directions complained of on appeal.[126]  Both in the High Court and in this court's predecessor, all judges who found error in the direction moved directly from the finding of error to consideration of the proviso.[127]   That approach also appears to indicate that the misdirection was a 'wrong decision on a question of law', notwithstanding the absence of objection at trial.

    [124] Stanton v The Queen [2003] HCA 29; (2003) 77 ALJR 1151.

    [125] Stanton v The Queen [2001] WASCA 189; (2001) 24 WAR 233.

    [126] Stanton [2003] HCA 29 [57].

    [127] See for example Stanton [2003] HCA 29 [67] - [72]; Stanton [2001] WASCA 189 [10] - [12], [89] - [90].

12. Reeves v The Queen[128] was concerned with a misdirection by the trial judge as to an element of the offence.  The appeal to the High Court was concerned with whether the Court of Criminal Appeal of New South Wales had erred in invoking the proviso.  There were no objections at trial to the directions later found to be erroneous.[129]  Although, again, the court did not address the question in terms, it appears to be implicit that it acted on the basis that the misdirection was a 'wrong decision on a question of law' within the New South Wales criminal appeals statute.  That was how the matter was approached in the New South Wales Court of Criminal Appeal, notwithstanding that there had been no objection at trial.[130]  The High Court held that the New South Wales Court of Criminal Appeal had not fallen into error in applying the proviso.

    [128] Reeves v The Queen [2013] HCA 57; (2013) 88 ALJR 215.

    [129] Reeves [56].

    [130] Reeves v The Queen [2013] NSWCCA 34; (2013) 227 A Crim R 444 [88] - [89] where, without reference to the absence of objection at trial, the trial judge's misdirection was said to require a retrial unless the proviso was applicable.

13. In Dhanhoa v The Queen,[131] the appellant complained that the judge failed to give a direction in relation to identification and in relation to lies.  No direction in relation to lies was sought at trial.  No redirection was sought in relation to identification.[132]  McHugh and Gummow JJ said as follows:[133]

    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' [referring to Simic (332)].  In the present case, the judge was not required to give one of the directions that the appellant now claims should have been given ‑ a direction as to identification evidence.  And although we think that it would have been better for the judge to give a direction concerning the other matter ‑ a direction as to lies ‑ the appellant has failed to establish that there is a reasonable possibility that such a direction would have affected the verdict.  Accordingly, no miscarriage of justice has occurred.

    [131] Dhanhoa v The Queen [2003] HCA 40; (2003) 217 CLR 1.

    [132] Dhanhoa [26], [37].

    [133] Dhanhoa [38].

14. After referring to the terms of the relevant appeal statute, their Honours continued:[134]

    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 [referring to Simic (327)] or failed to refer to evidence [referring to R v Cohen and Bateman (207 ‑ 208)], it is for an appellant to establish that the misdirection or non-direction constituted a miscarriage of justice [referring to Simic (332)].  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' [referring to Simic (332)].

    [134] Dhanhoa [49].

15. Their Honours' emphasis of the word 'decision' should be noticed.  These propositions are expressed in terms of complaints of failure to give a particular direction 'concerning evidence' or 'on the evidence' or 'concerning some aspect of the evidence'.

16. See also, to like effect, Papakosmas v The Queen.[135]

    [135] Papakosmas v The Queen [1999] HCA 37; (1999) 196 CLR 297 [72].

17. In Filippou[136] French CJ, Bell, Keane and Nettle JJ said as follows:

    A 'wrong decision of any question of law' includes misdirections on matters of substantive law as well as misdirections on matters of adjectival law.  And, as with the first limb, the question under the second limb will be whether the error constitutes a miscarriage of justice in the sense of a departure from trial according to law.

    [136] Filippou [13]. Their Honours' reference to the 'first limb' and the 'second limb' are to the New South Wales equivalents of s 30(3)(a) and s 30(3)(b) of the Criminal Appeals Act.

18. It is to be noticed that the plurality's statement is not qualified by reference to whether at trial any objection was taken to the direction.

Decisions of this court

1. I have already referred to a number of decisions of this court concerning issues on appeal other than the trial judge's direction to the jury.  There are also a number of statements in decisions of this court to the effect that if there is no request for a redirection, there is no wrong decision on a question of law.

2. In Gillespie v The State of Western Australia,[137] Martin CJ (Pullin & Mazza JJA relevantly agreeing) said as follows:

   It is well established that an appellant can only establish that the judge made a wrong decision on a question of law if that question of law was posed for the determination of the judge, and the judge ruled erroneously upon it:  Burke v Corruption and Crime Commission [2012] WASCA 49 [86] (Buss JA, Martin CJ & Mazza JA agreeing); Carney v The State of Western Australia [2010] WASCA 90 [40] (Pullin JA, Owen JA & Jenkins J agreeing); Birks v The State of Western Australia [2007] WASCA 29; (2007) 33 WAR 291 [45] (Buss JA, Steytler P & Pullin JA agreeing); R v Soma [2003] HCA 13; (2003) 212 CLR 299 [11] (Gleeson CJ, Gummow, Kirby and Hayne JJ), [79] (McHugh J). So, in an appeal against conviction on the basis that evidence was wrongly admitted at trial, if there was no objection to that evidence, it cannot be asserted that the trial judge made a wrong decision on a question of law by admitting the evidence.

   Similarly, if an appeal against conviction is brought on the basis that the trial judge did not adequately direct the jury, or make a particular order, so as to occasion a wrong decision on a question of law, such an appeal cannot be brought on the ground of error of law unless that direction or order was sought during the course of the trial:  Ricciardo v The State of Western Australia [2010] WASCA 116 [46] (Buss JA, McLure P & Mazza J agreeing); Carney v The State of Western Australia, [48] ‑ [49] (Pullin JA, Owen JA & Jenkins J agreeing); Johnston v The State of Western Australia [2010] WASCA 121 [4] - [5] (Pullin JA); Wright v The State of Western Australia [2010] WASCA 199 [40] ‑ [41] (McLure P, Buss JA agreeing). In each of these scenarios, the appeal must be brought on the ground specified in s 30(3)(c) of the Criminal Appeals Act ‑ namely, that there was a miscarriage of justice [82] ‑ [83].

   [137] Gillespie v The State of Western Australia [2013] WASCA 149; (2013) 45 WAR 207 [82] - [83].

3. As I have already explained, I respectfully agree with what is said in [82] of Gillespie.  As to [83], I have outlined earlier in these reasons the effect of the decisions referred to in that paragraph.  Putting Johnston to one side, I respectfully agree that they hold that if the appeal against conviction is brought on the basis that the trial judge did not make a particular order, such an appeal cannot be brought on the ground of error of law unless that order was sought during the course of the trial.  However, for the reasons already explained, in my opinion that does not control the question of whether a wrong direction on a question of law is, regardless of whether objection is made, a wrong decision on a question of law.  Johnston concerned grounds of appeal complaining of the wrongful admission of evidence to which no objection was taken at trial.

4. The decision of the High Court in Dhanhoa concerning a failure to give directions regarding lies has been applied in this court.  In Singh v The State of Western Australia,[138] the appellant complained of a failure by the trial judge to give a lies direction in accordance with Zoneff v The Queen.  Counsel for the appellant at the trial did not seek any such direction.[139]  McLure P, with whom Mazza JA relevantly agreed,[140] held that when no redirection concerning evidence is sought at a criminal trial, the appellant can only rely on a failure to direct the jury on the evidence if the appellant establishes that the failure constituted a miscarriage of justice.[141]  Her Honour further held that no miscarriage of justice will have occurred unless the appellant establishes, first, that the direction should have been given and, secondly, that it is reasonably possible that the failure to give the direction may have affected the verdict.[142]  See also, to the same effect, MGP v The State of Western Australia[143]and Pennington v The State of Western Australia.[144] 

   [138] Singh v The State of Western Australia [2012] WASCA 262.

   [139] Singh [30].

   [140] Singh [50].

   [141] Singh [22] referring to Dhanhoa [38].

   [142] Singh [22] referring to Dhanhoa [38].

   [143] MGP v The State of Western Australia [2012] WASCA 52 [50].

   [144] Pennington v The State of Western Australia [2013] WASCA 98 [114] - [115].

5. This court has also applied Dhanhoa in holding that a lies direction which is imperfect in that it omits an appropriate or desirable matter will not automatically result in the quashing of a conviction, and will do so only if there is a reasonable possibility that the failure to direct the jury correctly affected the verdict.[145]

   [145] Hedgeland v The State of Western Australia [2013] WASCA 97 [87], [95] - [97], [119]; Newhill v The State of Western Australia [No 2] [2015] WASCA 121, [80]; Corbett v The State of Western Australia [2016] WASCA 97 [36].

6. In Karamitsios v The Queen,[146] Mazza JA, with whom I agreed, said that as no exception was taken at trial to the alleged misdirection the subject of the appeal, the ground of appeal was to be decided not on the basis that the judge made a wrong decision on a question of law, but rather on the basis that there was a miscarriage of justice.  However, that was not a matter in issue in that appeal, having been conceded, and no authority was cited.[147]

   [146] Karamitsios v The Queen [2015] WASCA 214; (2015) 256 A Crim R 67 [87].

   [147] See Karamitsios [11], [87], footnote 2.

7. In Egitmen v The State of Western Australia,[148] the appellant was convicted of murder. One of the grounds of appeal (ground 4) complained that the trial judge erred in law when directing the jury on excessive self‑defence. Mitchell JA held that as the trial judge was not asked to give any different direction, the direction does not involve any 'wrong decision on a question of law' for the purposes of s 30(3)(b) of the Criminal Appeals Act.[149]  His Honour cited Dhanhoa.[150]  The other judges did not address that question, finding that the judge's direction was not erroneous.

   [148] Egitmen v The State of Western Australia [2016] WASCA 214.

   [149] Egitmen [224].

   [150] Dhanhoa [49].

8. In Petersen v The State of Western Australia[151] McLure P suggested that the plurality in Filippou intended the statement to apply even in the absence of a decision by the trial judge on a contested matter of law.[152] Her Honour observed that this marked a departure from this court's approach to s 30(3)(b). However, it was not necessary for her Honour to say more about that. The other members of the court did not consider it necessary to enter into this question.

Decisions of other intermediate courts

[151] Petersen v The State of Western Australia [2016] WASCA 66; (2016) 50 WAR 45.

[152] Petersen [28].

1. The respondent relies heavily on decisions of the Court of Appeal of Queensland.  The respondent submits that the preponderance of authority in Queensland applies Dhanhoa and Simic in a manner consistent with the approach that has been taken in this court. 

2. Many of the Queensland cases on which the respondent relied involved a ground of appeal alleging failure to give a direction concerning evidence when no such direction was asked for.[153]  These cases involve direct application of the reasoning in Dhanhoa.

   [153] Examples in this category include R v Knight [2017] QCA 98 [29]; R v Burton [2014] QCA 37 [20]; R v Bastos De Freitas [2013] QCA 164 [35] - [36]; R v Van Der Zyden [2012] QCA 89; (2012) 261 FLR 419 [35].

3. However, other decisions have applied Dhanhoa more broadly, including to grounds of appeal complaining about:

   (a)a failure to give a further direction to better elucidate one of the elements of the offence, namely being a party;[154]

   (b)an inadequate direction concerning s 24 of the Criminal Code;[155]

   (c)a failure to give a direction about an exculpatory factor that arose on the evidence;[156] and

   (d)a complaint concerning the direction regarding a standard of proof to be applied by the jury in relation to an uncharged act.[157] 

   These decisions do provide support for the respondent's position.

   [154] R v Hawke [2016] QCA 144; (2016) 259 A Crim R 114 [41].

   [155] R v Dunrobin [2013] QCA 175 [120].

   [156] R v Pickering [2016] QCA 124 [10].

   [157] R v CBN [2015] QCA 224 [39]; R v KAN [2016] QCA 108 [42].

4. However, there is also a consistent line of decisions of the Queensland Court of Appeal holding that a trial judge's omission to direct the jury in accordance with a specific statutory provision concerning the presence of a support person during the complainant child's pre‑recorded evidence is an error of law requiring a new trial unless the proviso applies.[158]

   [158] R v Drake [2013] QCA 222; (2013) 233 A Crim R 588 [2], [30]; R v DM [2006] QCA 79 [26]; R v Michael [2008] QCA 33; (2008) 181 A Crim R 490 [38]; R v BCL [2013] QCA 108 [8].

1. The approach taken by the New South Wales Court of Criminal Appeal is complicated by the presence of r 4 of the Criminal Appeal Rules (NSW) by which leave to appeal is required in relation to a matter not raised at trial. The position is illustrated by the recent decision in Cranney v The Queen; Huynh v The Queen.[159]  In that case Price J, with whom the other members of the court agreed, found that the judges' direction as to the elements of the offence was erroneous,[160] but refused leave to appeal on that ground.  In doing so, the court did not address the question of whether there was a wrong decision on a question of law.  However, one of the considerations relevant to whether leave should be granted was whether the trial judge made an error of law.  That issue has some overlap with the question of whether there was a wrong decision on a question of law.  The court applied what was said in Papakosmos. That is, where an appellant failed to object to evidence or failed to ask for a direction concerning evidence, the trial judge has made no error of law because he or she was not asked for a ruling, so that an appeal can succeed only if the admission of evidence or failure to give the direction caused a miscarriage of justice.[161]  Insofar as this principle limits the scope of error of law, it applies where an appellant has failed to object to evidence or failed to ask for a direction concerning evidence.  As I will explain,[162] in my view, the question of whether a positive misdirection of law is a wrong decision on a question of law is not controlled by the limits of the principle applicable to such cases.

   [159] Cranney v The Queen; Huynh v The Queen [2017] NSWCCA 234.

   [160] Cranney [176] - [179], [188] - [189].

   [161] Cranney [182] applying Papakosmas [72].

   [162] [251].

2. In recent decisions of the Court of Criminal Appeal of New South Wales, there has been some reference to what Filippou says regarding a misdirection on a matter of law as a 'wrong decision on a question of law'.

3. In Abdallah v The Queen,[163] Campbell J said that a ground complaining of misdirection in relation to self‑defence, excessive self‑defence and involuntary manslaughter involved the second limb of s 6(1) of the New South Wales Act, which is equivalent to s 30(3)(b) of the Criminal Appeals Act.  His Honour observed that the misdirection is a 'wrong decision on [a] question of law' because it is a misdirection on a matter of substantive law concerning the law of self‑defence as it applies in murder cases.  His Honour found that the failure of the trial judge to correctly direct the jury in relation to self‑defence was a departure from trial according to law, so that the ground was made out without more, subject only to the consideration of the proviso.[164] 

   [163] Abdallah v The Queen [2016] NSWCCA 275 [74].

   [164] Abdallah [77].

4. In R v Cornell,[165] Beech‑Jones J, with whom the other members of the court agreed, explained the appellant's argument in the terms used in Filippou.  What the trial judge had said in summing up as to the use of certain evidence was said to be inconsistent with a pre‑trial ruling, thereby involving a misdirection on matters of adjectival law so as to engage the second limb of s 6(1).[166]  His Honour observed that if the second limb of s 6(1) is satisfied in the sense there has not been a trial according to law, then consideration moves to the proviso.[167]  His Honour rejected the appellant's arguments on its merits, holding that there was no error in the judge's direction.

Wrong decision on a question of law:  conclusions

[165]R v Cornell [2015] NSWCCA 258.

[166] R v Cornell [93], referring to Filippou [13]. See also R v Cornell [102].

[167] R vCornell [93] referring to Filippou [13].

1. I accept, as does the appellant,[168] that there is no decision of the High Court in which a clear statement of principle is made about the relevance, if any, of a failure by counsel for an accused to ask a trial judge to correct an error of law in the course of summing up to the issue of whether the trial judge made a wrong decision on a question of law. Nevertheless, in my opinion, for the reasons that follow, the decisions of the High Court strongly support the appellant's contention that, on a proper construction of s 30(3) of the Criminal Appeals Act, the absence of an objection to, or request for redirection in relation to, a direction of law that is erroneous does not alter its character as a 'wrong direction on a question of law'.

   [168] Appellant's supplementary submissions 17 November 2017 [12].

2. First, the unqualified statement of the court in Simic,[169] that where, in a direction, there is an error of law the question of miscarriage of justice arises only under the proviso firmly supports this conclusion.  So too does their Honours' unqualified statement that any misdirection of law is itself a ground for allowing an appeal subject to the proviso.[170] 

   [169] Simic (328).

   [170] Simic (331).

3. The respondent submits that the misdirection in Simic was purely one of fact.[171]  That is true.  However, the court's contrast between the position in relation to a misdirection of law and a misdirection of fact and evidence was integral to its reasoning.[172]

   [171] Respondent's supplementary submissions 27 November 2017 [22].

   [172] See Simic (328 - 331).

4. Secondly, this construction is also supported by the unqualified statement, made relatively recently by the plurality in Filippou.[173]  While what their Honours said was not part of the ratio of the case, it is, plainly, seriously considered dicta to which considerable weight must be attached.[174]

   [173] Filippou [13].

   [174] Farah Constructions Pty Ltd v Say-Dee Pty Ltd [2007] HCA 22; (2007) 230 CLR 89 [134].

5. Thirdly, as I have said, this construction seems to me to have been implicit in some of the High Court decisions concerning the proviso.[175]

   [175] Mraz; KBT; Stanton; Reeves.

6. Fourthly, as I have said, I think the passage from R v Cohen and Bateman set out at [210] is an unqualified statement that a mistake of law by the trial judge in the summing up is a wrong decision on a question of law requiring the appeal to be upheld unless the proviso was applicable. This passage has been approved in the High Court.[176]  Further, until the English legislation was amended in 1966, this passage was accepted in England as representing the correct approach to the construction of the common form appeal statute.[177]

   [176] Simic (330 - 331); Mraz (514).

   [177] Haddy (445 - 446); Stirland v Director of Public Prosecutions [1944] AC 315, 321; Simic (331); Festa v The Queen [2001] HCA 72; (2001) 208 CLR 593 [113].

7. Fifthly, I do not accept the respondent's submission that what is said by two judges, namely McHugh and Gummow JJ, in Dhanhoa is to be read so widely as to encompass a failure to seek a redirection in response to a positive misdirection of law in a judge's summing up.  It is true, as the respondent points out, that their Honours emphasised the word 'decision' in the phrase 'wrong decision on any question of law'.  However, that is to be understood in its context.  Dhanhoa concerned a complaint of failure to give a direction concerning an aspect of the evidence, and that is how their Honours expressed the principle.  No request for a direction concerning that aspect of the evidence having been made, it could not be said that the judge had made a decision not to give the direction.  McHugh and Gummow JJ in Dhanhoa referred to and applied what had been said in Simic.[178]  Nothing in what McHugh and Gummow JJ said suggests any intention to depart from the legal framework explained in Simic.  Their Honours expressed the principle in terms that limit it to a complaint of failure to give a direction concerning evidence.[179]  In my respectful view, against the backdrop of what had been said in previous decisions of the High Court, this statement should not be taken as extending to a positive misdirection of law.

   [178] Simic (332).

   [179] Dhanhoa [38], [49].

8. The respondent submits that there is a consistent stream of authority in both Western Australia and Queensland to the effect that a misdirection of law does not amount to a wrong decision on a question of law by the judge unless a redirection was sought at trial.  At least in relation to Western Australia, I consider that to be an overstatement.  That reflects my view that complaints on appeal about a misdirection of law in the summing up are materially different from other complaints that were not raised at trial.  Many of the decisions of this court on which the respondent relies relate to complaints other than the summing up.

9. Nevertheless, I accept that there are statements in this court in the cases to which I have referred[180] and decisions of the Queensland Court of Appeal that a misdirection on a matter of law is not a wrong decision on a question of law unless objection is taken at trial, relying on what was said in Dhanhoa.  However, it does not appear that the point was the subject of submission in any of these cases.  Moreover, none of them have referred to what was said by the High Court in Simic[181] or, with the exception of McLure P in Petersen, to what is said in [13] of the reasons of the plurality in Filippou.  For the above reasons, based on my reading of the High Court decisions, I have, with respect, come to a different conclusion. 

   [180] Namely Gillespie, Karamitsios, Egitman and Petersen.

   [181] Simic (328 - 331).  There is some reference to Simic (332) but that is a statement of the position for a misdirection of fact, as distinct from law.

10. The respondent submits that the appellant has failed to identify the question of law posed for the trial judge's determination, how that question came to be determined, and what the determination of the question was.[182]  In my view, the question of law that arose for the trial judge's determination was, in substance, in what manner was it permissible for the jury to have regard to any lies which had been told by the complainant?  The judge determined that question by giving the direction of law of which complaint is made and which I have found to be erroneous in law. 

[182] Respondent's supplementary submissions 27 November 2017 [19].

1. The respondent further submits that acceptance of the appellant's construction of s 30(3)(b) would reduce to an irrelevance counsel's conduct in not raising the issue at trial, which would be contrary to the principle that, generally, an accused is bound by the conduct of their counsel.[183]  I do not accept this submission.  First, counsel's conduct in not taking the point would not necessarily become irrelevant.  It may, in some cases, remain relevant to the question posed by the proviso, namely whether no substantial miscarriage of justice has occurred.  Secondly, the proposition that an accused is bound by the conduct of counsel is a general rule, not an absolute one.  The observations of Barwick CJ and Menzies J in Pemble, set out earlier in these reasons, provide support for the view that the duty of a trial judge to give an adequate direction as to the law is not qualified by the matters to which counsel does or does not object.[184]

   [183] Respondent's supplementary submissions 27 November 2017 [20], referring to TKWJ v The Queen [2002] HCA 46; (2002) 212 CLR 124 [8], [24] - [33], [43].

   [184] Pemble (117 - 118, 133).  See also Perara‑Cathcart v The Queen [124].

2. For these reasons, in my opinion, a misdirection on a matter of substantive or adjectival law is a 'wrong decision on a question of law', and this will be so regardless of whether objection is taken at trial.

3. Thus, ground 1 must be upheld.

4. That conclusion leads to the question of whether the proviso can be applied in this case.

The proviso and the result

1. For the reasons given by Buss P, I would apply the proviso.  Consequently, I would dismiss the appeal.

PRITCHARD J:

1. I have had the advantage of reading the draft reasons of Buss P. I agree with his Honour, for the reasons that he gives, that the impugned direction given by the trial judge constituted a wrong decision on a question of law, for the purposes of s 30(3)(b) of the Criminal Appeals Act 2004 (WA) (Act), and further or alternatively, occasioned a miscarriage of justice, for the purposes of s 30(3)(c) of the Act. I also agree with his Honour's conclusion, for the reasons he gives, that the proviso in s 30(4) of the Act applies, and that the appeal should therefore be dismissed.

1. In addition, I wish to record my agreement with the reasons given by Beech JA at [245] ‑ [256] for his conclusion that the misdirection by the trial judge amounted to a wrong decision on a question of law for the purposes of s 30(3)(b), albeit with one reservation in relation to [255] of his Honour's reasons.

2. In so far as earlier decisions of this Court have proceeded on the basis that a misdirection on a matter of law does not constitute 'a wrong decision on a question of law' unless objection is taken at trial, in my respectful view those decisions should now be regarded as out of step with the approach taken by the High Court in Simic[185] and more recently articulated in the reasons of the plurality in Filippou.[186]

   [185] Simic v The Queen [1980] HCA 25; (1980) 144 CLR 319, 328, 331.

   [186] Filippou v The Queen [2015] HCA 29; (2015) 256 CLR 47 [13].

3. A direction by a trial judge on a question of law reflects a decision by the trial judge not only that that direction should be given, but as to the content of the direction. If that direction is erroneous, the trial judge's decision necessarily constitutes a wrong decision on a question of law. (It may also give rise to a miscarriage of justice.) There is nothing in s 30(3)(b) which suggests that the failure by an accused's counsel to object to that misdirection has any relevance to the characterisation of that error by the trial judge as 'a wrong decision on a question of law'.

4. My reservation in relation to [255] of the reasons of Beech JA concerns his Honour's observation that the failure by an accused's counsel to object to a misdirection may, in some cases, remain relevant to the application of the proviso in s 30(4) of the Act. I have some difficulty in seeing the relevance of such a failure by counsel, having regard to the nature of the task required to be undertaken by the appeal court in applying the proviso, and bearing in mind that a defence counsel cannot concede a matter of law to the disadvantage of the accused. However, as the issue does not require determination in this case, it is unnecessary to say more about it.

   I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.

   LW
   RESEARCH ASSOCIATE/ORDERLY TO BEECH JA

   11 APRIL 2018