R v B, FG - [2013] SASCFC 24

SUPREME COURT OF SOUTH AUSTRALIA
(Court of Criminal Appeal)
R v B, FG
[2013] SASCFC 24
Judgment of The Court of Criminal Appeal
(The Honourable Justice Sulan, The Honourable Justice Anderson and The Honourable Justice David)
11 April 2013
CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST THE PERSON - HOMICIDE - MURDER
CRIMINAL LAW - APPEAL AND NEW TRIAL - MISCARRIAGE OF JUSTICE - PARTICULAR CIRCUMSTANCES AMOUNTING TO MISCARRIAGE - MISDIRECTION OR NON-DIRECTION
CRIMINAL LAW - EVIDENCE - CORROBORATION - DIRECTIONS TO JURY - ADEQUACY OF WARNING - LIES BY ACCUSED
CRIMINAL LAW - GENERAL MATTERS - ANCILLARY LIABILITY - COMPLICITY - WITHDRAWAL
Applicant convicted of murder and sentenced to life imprisonment with a non-parole period of 20 years – sought permission to appeal on grounds that trial Judge failed to direct the jury as to the use that could be made of lies told by the applicant – whether jury adequately directed on lies – whether failure to give lies direction amounted to error of law or miscarriage of justice – whether trial Judge misdirected the jury in setting out possible defence that applicant withdrew from extended joint criminal enterprise – whether test for withdrawal from extended joint criminal enterprise is the same as test for withdrawal from joint criminal enterprise.
Held: Appeal dismissed.
Per Sulan J: Notwithstanding that prosecution disavowed reliance on applicant’s lies as consciousness of guilt there was a real danger that jury may have used the lies in that way – the trial Judge erred in failing to warn the jury about the use that could be made of the applicant’s lies – miscarriage of justice only established where a reasonable possibility that such a failure may have affected the jury and deprived the applicant of a chance of acquittal which was fairly open to him – the evidence strongly pointed to applicant being a member of the group armed with various weapons who attacked the Sudanese group – no reasonable possibility that failure to give lies direction could have affected the verdict.
Per David J (Anderson J concurring): It is clear that the alleged lies of the applicant went to the issue of the applicant’s guilt – a Zoneff direction was therefore inappropriate and the issue to be decided is whether an Edwards type direction should have been given – the trial judge did not err in failing to give an Edwards direction as the proof presented at trial that the applicant told those lies was no more or less than proof of the circumstances to prove the charges – on the facts of this case, to suggest there might be a situation where the applicant has lied but at the same time would not be guilty of the offences would be fanciful.

CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST THE PERSON - HOMICIDE - MURDER - SENTENCE: PARTICULAR CASES - MINIMUM TERM, NON-PAROLE PERIOD
CRIMINAL LAW - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - GROUNDS FOR INTERFERENCE - SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE
CRIMINAL LAW - SENTENCE - SENTENCING ORDERS - NON-PAROLE PERIOD OR MINIMUM TERM - SOUTH AUSTRALIA
HIGH COURT AND FEDERAL COURT - THE FEDERAL JUDICATURE - NATURE AND EXTENT OF JUDICIAL POWER - CONFERRAL ON STATE COURTS
STATUTES - ACTS OF PARLIAMENT - INTERPRETATION - GENERAL APPROACHES TO INTERPRETATION - LEGISLATIVE HISTORY OF ACT
CRIMINAL LAW - SENTENCE - RELEVANT FACTORS - PARITY BETWEEN CO-OFFENDERS - OTHER MATTERS
Applicant appeals on the ground that the sentence is manifestly excessive – whether the sentencing Judge was obliged to impose the mandatory minimum non-parole period – whether there is a conflict between s 10(1)(o) and ss 32A and 32(5)(ab) of the Criminal Law (Sentencing) Act 1988 (SA) – whether there is a conflict between s 10(1a) and ss 32A and 32(5)(ab) – whether there is a disparity between the sentence imposed on the applicant and the sentence imposed on the four co-accused who were youths at the time of the offending – whether ss 32A and 32(5)(ab) of the Criminal Law (Sentencing) Act 1988 (SA) are constitutionally invalid.
Held: Appeal dismissed.
Per Sulan J (Anderson and David JJ concurring): No conflict arises between s 10(1)(o) and ss 32A and 32(5)(ab) of the Criminal Law (Sentencing) Act 1988 (SA) – if two adults are sentenced to murder the non-parole period applies to them both equally – no conflict arises between s 10(1a) and ss 32A and 32(5)(ab) – it is clear that s 10(1a) is meant to apply to the head sentence only – as no conflict arises between these sections then the mandatory minimum non-parole periods continue to operate – the parity principle is not offended where different sentences are imposed on an adult as compared to youths who are involved in the same offending – the age of the offenders and the different sentencing regimes is a relevant factor to discriminate between the offenders – ss 32A and 32(5)(ab) are not constitutionally invalid – the sections do not impose duties on a court which are incompatible or repugnant with the institutional integrity of the Supreme Court of South Australia – the sections do not deny the reality or appearance of impartiality or independence on the part of any court called upon to apply the provisions.
Criminal Law (Sentencing) Act 1988 (SA) s 10(1)(o), s 10(1a), s 32A, s 32(5)(ab), s 32A(3); Young Offenders Act 1993 (SA); Criminal Law (Sentencing) (Dangerous Offenders) Amendment Act 2007 (SA); Criminal Law Consolidation Act 1935 (SA) s 11, referred to.
Edwards v The Queen (1993) 187 CLR 193; Zoneff v The Queen (2000) CLR 234; Dhanhoa v The Queen (2003) 217 CLR 1; R v Inston (2009) 103 SASR 265; R v Schlafer (1984) 37 SASR 207; R v Wildy (2011) 111 SASR 189; McCauliffe v The Queen (1995) 183 CLR 108; R v A, D (2011) 109 SASR 197; Project Blue Sky Inc v Australian Broadcasting Authority (1988) 194 CLR 355; Lowe v The Queen (1984) 154 CLR 606; Postiglione v The Queen (1996-1997) 189 CLR 295; R v MacGowan (1986) 42 SASR 580; Green v The Queen (2011) 244 CLR 462; Street v Bar Association (QLD) (1989) 168 CLR 461; Wong v The Queen (2001) 207 CLR 584; Kable v Director of Public Prosecutions (NSW) (1996) 189 CLR 51; North Australian Legal Aid v Bradley (2004) 218 CLR 146; Baker v The Queen (2004) 223 CLR 513, considered.

R v B, FG
[2013] SASCFC 24
Court of Criminal Appeal: Sulan, Anderson and David JJ

SULAN J: I have had the opportunity of reading the draft reasons of David J. He has provided the factual summary, and I do not repeat that.
I agree with David J’s reasoning in relation to Ground 2, and on that ground I would also refuse permission to appeal.
As to Ground 1, the failure to give a lies direction, I would dismiss the appeal for the following reasons.
In order to provide reasons for my decision, the following facts are relevant.
David J has provided a summary of the evidence of the applicant. He has referred to some passages of evidence dealing with the allegations of the prosecution that the applicant had lied. He has also referred to counsel for the prosecution’s address. There are, however, some further passages to which I now refer.
The prosecutor commenced his address when referring to the applicant by summarising the evidence of a number of prosecution witnesses. He then dealt with the evidence of the applicant. He said:
Members of the jury on that he is out of step with the evidence of NW. He is out of step with the evidence of JC and all of the Sudanese men. He is on that issue, I suggest out of step with everybody.
The prosecutor reverted to summarising the evidence of the prosecution witnesses. He again referred to the applicant’s evidence and reminded the jury that if they accept the evidence of JC, who was an accomplice, in respect of discussions which occurred prior to the attack on the Sudanese men, then it followed that the applicant knew that the group was about to engage in conflict. The prosecutor referred to the evidence that the applicant, armed with a baseball bat, struck the first blow against the deceased, Mr Akok. The prosecutor referred to the evidence given by the applicant and, in particular, his evidence that he was just checking to see if someone had been stabbed. The prosecutor then said:
Remember he described lifting up the shirt of someone, having satisfied himself that his brother was okay – because his evidence was, for what it is worth – and I trust by the end of my comments about the case against him I will leave you in no doubt about what I suggest it is worth but at least on that point he was saying he went there because he had some belief that his brother had been stabbed or similar and that when he got there, having confirmed in his own mind his brother was okay, he checked this other person because he didn’t see any stab marks on his arms and legs so he checked under his shirt.
The prosecutor invited the jury to reject the applicant’s evidence. He referred to the evidence of JC and the Sudanese witnesses. He said, referring to the applicant’s evidence:
He was lying about that, members of the jury, he lied to you on a whole range of important issues.
The prosecutor went on:
So he has told us the truth about some things but where he has baulked, where he has stopped short of telling the truth is where it comes to any knowledge of his reason for being there and knowledge of what the others were doing. So he has chanced his arm, I suggest, on a story that gives his presence at the scene but denies any knowledge of what he was at the scene for or indeed what happened at the scene. And the obvious reason for that would be that the truth would be rather inconvenient for him, I suggest. If his evidence had been ‘Look, I walked up to this car and I saw all these knives and poles and things being handed out and we all walked off’ that would be an inconvenient truth, I suggest, because of course the only logical inference that flows from that knowledge these men had knives and poles is that they were going over there to use them and to use them in the context of one of the group having earlier been stabbed.
The prosecutor elaborated his argument in respect of the applicant’s knowledge. He invited the jury to conclude that, based upon the applicant’s knowledge of how the others were armed, he must have had foresight of the possibility that grievous harm might be inflicted as part of a plan to assault the Sudanese men. The prosecutor went on:
And members of the jury, not only did he know about those things but he participated in it. He got the ball rolling. But his evidence was ‘I saw no weapons. I had no idea what they were doing and indeed I didn’t see what they did’. His evidence was reminiscent, in my suggestion to you, of old Sergeant Schultz – I’ll be careful what I say about this because some people apparently who are a bit younger don’t know about Hogan’s Heroes and Sergeant Schultz, the old prison guard – it all happened under his very nose but he never saw a thing. He knew nothing, saw nothing, he heard nothing. But the evidence from FB was reticent [sic] of Sergeant Schultz. The difference is that Sergeant Schultz in Hogan’s Heroes, Stalag 13, is a work of fiction. This is a court that deals with facts yet the version that we are offered by Mr B was, I suggest, a work of fiction and a work of fiction that is, it is entirely a matter for you, but you might think it was just ever so slightly insulting to your intelligence.
The prosecutor returned to the evidence of the prosecution witnesses, including JC, about what occurred at the oval. He discussed the applicant’s evidence and said:
And when he says in his evidence that ‘By the time I got to the corner there was no-one to be seen’, that they had all disappeared into the verandah, that is just simply a nonsense.
He referred to further evidence of the applicant and concluded his summary of that evidence in the following way:
But he is trying to tell you that everyone ducked into the verandah and his view was obscured. Members of the jury, it is almost child-like in its simplicity and its falsity.
I have referred to those passages of the address to illustrate that the prosecutor, although he did not actually use the words “consciousness of guilt”, was making it very clear to the jury in his address that the applicant had lied to them because he knew that if he conceded that he had knowledge that others were armed and entered the conflict with weapons, then that would be strong evidence to support a case against him that he had knowledge of an assault and had foresight of a possibility that grievous bodily harm could result to the victims who were the subject of the assault.
In summary, the prosecutor put to the jury:
·that the applicant had lied when he said he was unaware of discussions which had taken place between the defendants when the group had congregated before moving on to the oval;
·that the applicant’s evidence was untrue about checking to see if the person alleged to have been attacked by the Sudanese group had injuries;
·that the applicant lied about his reason for being at the scene;
·that he lied about not seeing others armed with various weapons;
·that he lied when he said the group had disappeared behind the verandah and out of sight; and
·that he lied when he said he was not involved in the initial attack, and when he denied hitting the deceased with a baseball bat.
I consider that the prosecutor was not relying on the lies of the applicant to support a proposition that the applicant’s credit was so damaged that his evidence should not be accepted. The clear implication from the prosecutor’s address was that the applicant lied because he knew that the truth was compelling evidence of his guilt on participating in the criminal enterprise with knowledge and foresight of the likelihood of serious bodily injury.
At the conclusion of the summing up, there was an exchange between the prosecutor and the trial Judge:
HER HONOUR:   It was my recollection that your opening was geared to three pathways.
We discussed the other day a lies direction in relation to BS, which is a consciousness of guilt direction. When addressing the jury today you talked about [the applicant] having told lies. Do you say that they are lies told out of a consciousness of guilt?
MR PEARCE:     I say they are consciousness of guilt lies, but where your Honour, if I may be so bold, may be left in some doubt about that, I also spoke about lies in the context of refuting what he had to say as a reasonable possibility against credit. So I use them for both purposes. First and foremost they are lies capable of being used as a consciousness of guilt.
HER HONOUR:   It was [the applicant] I wasn’t quite sure about.
MR PEARCE:     Regarding his evidence, I disregard it. I certainly didn’t mean to elevate that to a consciousness of guilt.
HER HONOUR:   That was my assumption. I just wanted to clarify the case.
Although the prosecutor disavowed that he meant to elevate his reference to the applicant’s lies in support of an argument that the applicant told lies out of a consciousness of guilt that, in my view, did not relieve the trial Judge of a requirement that she had to decide whether the manner in which the prosecution had presented its case in respect of the applicant’s evidence amounted to an implied suggestion to the jury that he had lied out of a consciousness of guilt. In my view, the fact that the prosecutor disavowed his intention to rely on the applicant’s lies to support the prosecution case did not, of itself, justify a decision by the Judge to accept that the lies would not be used by the jury in that way. I am of the view that the Judge was in error in not concluding that the prosecutor’s address and his references to the lies told by the applicant amounted to a suggestion that the applicant had lied out of a consciousness of guilt.
In her summing up, the trial Judge made no reference to the prosecutor’s address to the jury about the applicant’s lies. However, during her summing up she did give a lies direction in respect of another accused, BS. It was alleged that the accused, BS, had lied to the police in his interview in respect of a number of material matters, including his knowledge about some of the events leading up to the attack and his presence at the oval when the attack took place. She directed the jury as follows:
In considering this aspect of the matter, it is necessary to bear in mind that people tell lies for all sorts of reasons. For instance, a person may lie because he fears the truth or fears that the truth may falsely implicate him or because he fears that the truth may have an impact on another area of his life. A person may lie through panic or because he fears that someone will think the worse of him if he tells the truth.
When you are considering this aspect of the matter you should bear in mind that B was only 16 years old at the time of the interview, in addition to which he was being asked about these matters in the presence of his grandparents with whom he clearly has a close relationship.
Ladies and gentlemen, usually lies do no more than reflect on the credibility of the person who tells them and some lies might be so insignificant that they would not affect the general credibility of the person who told them.
However, there are some types of lies which have a tendency, either because of the nature of the untruth or because the circumstances in which they are told do more than to reflect on the general creditworthiness of the person telling the lie and indicate a consciousness of guilt on the part of the liar. Lies such as those can be used as proof of the guilt of a crime. Lies of this nature are however very rare and are almost always told before any suspicion rests on the person telling the lie.
In this case the prosecution submits that the lies told by BS in his interview with the police are such as to indicate a consciousness of guilt on the [sic] his part as to what he did at the oval that day.
Ladies and gentlemen, in order to consider whether the evidence of any of the asserted lies can be used to strengthen the case against BS there are a number of matters about which you would have to be satisfied:
1.   That the statement was deliberate;
2.   That it related to an important issue;
3.   That it clearly was a lie, and, most importantly;
4.   That it was motivated by a realisation by BS that if he was to tell the truth about the matter it would implicate him in the death of Mr Akok and/or the injury to Mr Achiek.
The Judge’s charge to the jury in relation to the use that could be made of the lies of BS was unequivocal. However, there was no direction in respect of the allegation that the applicant had lied on matters material to the prosecution case.
In my view, the difficulty that follows is that the jury may well have reasoned that, if they accepted the prosecutor’s contention, the lies told by the applicant were such that he must, therefore, be guilty. This is impermissible reasoning. Further, if the jury took the view that the lies told by the applicant had been told out of a consciousness of guilt, then there was a failure by the trial Judge to have given an Edwards direction to the jury.
In Edwards v The Queen,[1] Edwards was convicted of procuring one, Williams (the complainant) to commit an act of gross indecency upon him by threats and fear of bodily harm. The charge arose out of events which occurred in a prison van which was transporting a number of prisoners, including Edwards and the complainant. A number of prisoners assaulted the complainant and forced him to commit acts of indecency upon them. Edwards promised the complainant protection in return for the complainant giving Edwards oral sex. At his trial, Edwards denied the charge. He denied any indecent acts with Edwards. He said that he had a vague general knowledge of events in the van, but he did not want to get involved. He said he looked the other way. He said that he saw the complainant crying, that he heard “thumps”, but that he turned away. In cross-examination, he said he saw another prisoner push the complainant and he heard the words “whoever wants a head job come down here”.
[1] (1993) 178 CLR 193.

The trial Judge instructed the jury that they could regard lies told by Edwards as capable of corroborating the complainant’s evidence. The lies could only amount to corroboration if they were deliberate, related to a material issue spurning from a realisation of guilt and fear of the truth, and were clearly shown to be lies by evidence other than that to be corroborated.
Deane, Dawson and Gaudron observed:[2]
Ordinarily, the telling of a lie will merely affect the credit of the witness who tells it. A lie told by an accused may go further and, in limited circumstances, amount to conduct which is inconsistent with innocence, and amount therefore to an implied admission of guilt. In this way the telling of a lie may constitute evidence. ... At one time it was thought that only a lie told out of court could amount to an implied admission, but the distinction is not logically supportable and is no longer drawn. When the telling of a lie by an accused amounts to an implied admission, the prosecution may rely upon it as independent evidence to “convert what would otherwise have been insufficient into sufficient evidence of guilt” ...
[Citations omitted.]
[2] (1993) 178 CLR 193, 208-9.
In order for a lie to be a lie told out of a consciousness of guilt, it must be more than an inadvertent untruth or an untruth told about an immaterial matter. It must be a lie that the accused’s evidence would convict him if he told the truth.
The suggestion that, before the jury can use the lie as leading to guilt, it must be satisfied beyond reasonable doubt of the defendant’s guilt, therefore rendering the consideration of whether the defendant lied unnecessarily, was rejected by the majority.
Deane, Dawson and Gaudron JJ said:[3]
... Although guilt must ultimately be proved beyond all reasonable doubt, an alleged admission constituted by the telling of a lie may be considered together with the other evidence and for that purpose does not have to be proved to any particular standard of proof. It may be considered together with the other evidence which as a whole must establish guilt beyond reasonable doubt if the accused is to be convicted.
...
... A bare direction that consciousness of guilt is required does not provide sufficient guidance as to what matters indicate its presence. Unexplained, such a direction allows the jury to decide, in the light of all the evidence, that a lie was told with a consciousness of guilt and then to use that finding to corroborate some part of the evidence that led to the finding of a consciousness of guilt.
A lie can constitute an admission against interest only if it is concerned with some circumstance or event connected with the offence (i.e. it relates to a material issue) and if it was told by the accused in circumstances in which the explanation for the lie is that he knew that the truth would implicate him in the offence. Thus, in any case where a lie is relied upon to prove guilt, the lie should be precisely identified, as should the circumstances and events that are said to indicate that it constitutes an admission against interest. And the jury should be instructed that they may take the lie into account only if they are satisfied, having regard to those circumstances and events, that it reveals a knowledge of the offence or some aspect of it and that it was told because the accused knew that the truth of the matter about which he lied would implicate him in the offence, or, as was said in Reg. v. Lucas (Ruth), because of “a realization of guilt and a fear of the truth”.
Moreover, the jury should be instructed that there may be reasons for the telling of a lie apart from the realization of guilt. A lie may be told out of panic, to escape an unjust accusation, to protect some other person or to avoid a consequence extraneous to the offence. The jury should be told that, if they accept that a reason of that kind is the explanation for the lie, they cannot regard it as an admission. It should be recognized that there is a risk that, if they jury are invited to consider a lie told by an accused, they will reason that he lied simply because he is guilty unless they are appropriately instructed with respect to these matters. And in many cases where there appears to be a departure from the truth it may not be possible to say that a deliberate lie has been told. The accused may be confused. He may not recollect something which, upon his memory being jolted in cross-examination, he subsequently does recollect.
If the telling of a lie by an accused is relied upon, not merely to strengthen the prosecution case, but as corroboration of some other evidence, the untruthfulness of the relevant statement must be established otherwise than through the evidence of the witness whose evidence is to be corroborated. ...
[Citations omitted.]
[Underlining is mine.]
[3] (1993) 178 CLR 193, 210-11.
The majority concluded that, in the circumstances of the case, the lies told by Edwards could be explained on the ground that he did not want to be seen as “a dog” and that, in the circumstances, they were not sufficiently material and could not, therefore, be regarded as capable of independently supporting the complainant’s account.
In Zoneff v The Queen, Gleeson CJ, Gaudron, Gummow and Callinan JJ said:[4]
There may be cases in which the risk of misunderstanding on the part of a jury as to the use to which they may put lies might be such that a judge should give an Edwards-type direction notwithstanding that the prosecutor has not put that a lie has been told out of consciousness of guilt. As a general rule, however, an Edwards-type direction should only be given if the prosecution contends that a lie is evidence of guilt, in the sense that it was told because, in the language of Deane, Dawson and Gaudron JJ in Edwards, “the accused knew that the truth ... would implicate him in [the commission of] the offence” and if, in fact, the lie in question is capable of bearing that character. (The words in italics are ours and, for the sake of clarity, should be included in the statement of principle.)
Moreover, if there is a risk of confusion or doubt as to the way in which the prosecution puts its case, the trial judge should inquire of the prosecution whether it contends that lies may constitute evidence of consciousness of guilt and, if so, he or she should require identification of the lie or lies in issue and the basis on which they are said to be capable of implicating the accused in the commission of the offence charge.
[Citations omitted.]
[Underlining is mine.]
[4] (2000) 200 CLR 234, [16]-[17].
I am of the view, however, that where a Judge inquires of the prosecution whether the lies of an accused are being relied upon as evidence of a consciousness of guilt, that does not relieve the Judge from turning his or her mind to the issue and determining that the lies may, in fact, be used by the jury in such a way.
In Dhanhoa v The Queen,[5] Gleeson CJ and Hayne J observed that it is unnecessary and inappropriate to give a Zoneff or Edwards direction in circumstances where the prosecution does not contend that a lie is evidence of guilt, unless the judge apprehends there is a danger that the jury may apply a process of reasoning that the lies told by the defendant were evidence of consciousness of guilt.
[5] (2003) 217 CLR 1, [33].
McHugh and Gummow JJ observed that it would have been desirable in that case to have given a Zoneff lies direction. They concluded that, although it was possible the jury may have reasoned that the accused was guilty because he had lied to the police, they dismissed the appeal because they were of the view that the appellant in that case had not established that it was reasonably possible that the failure to give such a direction may have affected the verdict.
Callinan J, who dissented, observed:[6]
I am of the opinion that the second ground of appeal has also been made out. Whilst it is correct that the respondent did not make any submission that the appellant had told lies with respect to his presence at the flat, and that those lies were told out of a consciousness of guilt, it is difficult to see how the evidence in relation to the appellant’s account of his presence at the flat could have had any other implication. No doubt that evidence went to credit, but like a great deal of other evidence going to credit at trial, it also inevitably went to the central issue, of guilt or otherwise. And this was so as a matter of ordinary understanding, whether the respondent or indeed the trial judge chose to say anything explicit about it or not. True also it may have been that in the cross-examination to which the respondent drew the Court’s attention there was no direct and overt suggestion to the appellant that he had told lies out of a consciousness of guilt, the cross-examination nonetheless, unmistakably, if subtly, made that suggestion.
Occasion did therefore arise at the trial for the giving of a direction of the kind to which Edwards v The Queen refers. The second ground of appeal is accordingly also made out.
[Citation omitted.]
[6] (2003) 217 CLR 1, [96]-[97].
Callinan J considered that, because both grounds of appeal had been made out, the first relating to the identification direction and the second relating to lies, he could not be satisfied that the appellant had not been deprived of a chance of acquittal.
In my view, the observations of Callinan J are apposite in this case. The evidence in this case and the alleged lies went to the central issue of guilt. In my view, there was a danger that the jury may have reasoned, having concluded that the applicant told lies about matters material to the events and to his guilt, that he told those lies out of the consciousness of guilt. An Edwards direction was required. The trial Judge’s failure to give any direction in respect of lies told by the applicant was an error.
It therefore becomes necessary to characterise the nature of the error.
Was the failure to give an Edward’s direction an error of law
It appears from the judgment of McHugh and Gummow JJ in Dhanhoa that their Honours considered the failure to give a lies direction is not an error of law. They stated:[7]
However, it is not enough to establish that a miscarriage of justice has occurred by showing that it would have been better if the trial judge had given an appropriate direction concerning the effect of lies or that there is a possibility that the jury may have reasoned that the accused was guilty because he had lied to the police. To succeed in the appeal, Dhanhoa must establish that it is a reasonable possibility that the failure to direct the jury "may have affected the verdict". We do not think that he has done so.
[Citations omitted.]
[7] Dhanhoa v The Queen (2003) 217 CLR 1, [60].
The decision of Callinan J in Dhanhoa does not specifically state whether the failure to give an Edwards direction amounted to an error of law or a miscarriage of justice. However, his discussion of the application of the proviso tends to suggest that the failure to give the direction amounted to an error of law. Callinan J remarked:
The respondent submits that even if the appellant makes out any, or all of his grounds of appeal, the Court should apply the proviso and uphold the convictions in accordance with s 6 of the Criminal Appeal Act 1912 (NSW).
Had the appellant succeeded on ground one only I might well have been inclined to uphold the respondent's submission, particularly as no application for a relevant redirection was made. The principal issue at the trial was much as the Court of Criminal Appeal described it, of the appellant's presence or not in the flat at the time of the assaults and subsequently in the street. But ground one does not stand alone, and success on it, coupled with the appellant's more substantial success on ground two, means that I cannot be satisfied that the appellant has not been deprived of a chance of acquittal.
[Citations omitted.]
In R v Inston,[8] Vanstone J discussed the importance in terms of s 353 of the Criminal Law Consolidation Act 1935 (SA) of the characterisation of any failure by a trial judge to give a required warning. Vanstone J stated:[9]
At common law, trial judges were required to warn juries of the danger of acting upon the uncorroborated evidence of sexual victims, young children and accomplices. These requirements were seen as rules of practice: JD Heydon, Cross on Evidence (7th Aust ed, LexisNexis, Butterworths, 2004) at [15070]. In Longman (at 85), Brennan, Dawson and Toohey JJ described the rule relating to victims in sexual offences (now abolished) as having "not quite harden[ed] into a rule of law in Australia". The categorisation of such a rule has significance in terms of what flows from a failure to comply with it. That is a function of the statutory provision governing appeals. Non-compliance with a requirement of law will result in the conviction being quashed unless the proviso can be applied: Archbold's Criminal Pleading, Evidence and Practice in Criminal Cases (40th ed, Sweet & Maxwell, London, 1979) at [917]. But errors of fact, or non-compliance with a rule of practice must be shown to have led to a miscarriage of justice before it is necessary to consider the proviso: Bishop J, Criminal Procedure (2nd ed, Butterworths, Sydney, 1998) at 575-576...
[8] (2009) 103 SASR 265.
[9] (2009) 103 SASR 265, 296-7.
In R v Schlafer,[10] King CJ discussed the characterisation of a failure to warn against the impermissible use of evidence in the context of corroboration evidence. King CJ said:[11]
Neither non-direction amounted to non-compliance with a legal imperative, but was rather an omission to apply a sound and recognized rule of practice. The appeal can only succeed on those grounds if the non-directions have produced a miscarriage of justice in the sense that they have deprived the appellant of a chance of acquittal which was fairly open to him.
[10] (1984) 37 SASR 207.
[11] R v Schlafer (1984) 37 SASR 207, 213-14.
In R v Wildy, Vanstone J, with whom I agreed, discussed when an error should be characterised as an error of law:^[12]
[12] (2011) 111 SASR 189, [40].
In R v Inston (2009) 103 SASR 265 I discussed the importance in terms of s 353 of the Criminal Law Consolidation Act 1935 (SA) of the characterisation of any failure by a trial judge to give a required warning. Under the terms of that section, which is in a form common to interstate legislation, a misdirection or failure to direct which amounts to an error of law leads to the quashing of the conviction, unless the proviso is applied. Examples of errors of law include failure to give directions required by statute, and the wrongful admission or rejection of evidence: Simic v The Queen (1980) 144 CLR 319 at 327. An error of law might also encompass a failure to obey a common law requirement to warn against reliance on the evidence of a suspect witness where that requirement had "hardened" into a rule of law, such as the rule relating to warning about accomplice evidence: Davies v Director of Public Prosecutions [1954] AC 378 at 399. (In Longman v The Queen (1989) 168 CLR 79 at 85 Brennan, Dawson and Toohey JJ made the observation that the rule requiring a corroboration warning in trials of sexual offences "did not quite harden into a rule of law in Australia".)
Disobedience to a requirement to assist the jury in its evaluation of an accused person's lies where they are said to evince a consciousness of guilt has not been classified by the High Court as falling into the category of a decision of law. And, returning to the facts of the present case, the suggested failure to direct seems to be quintessentially a matter going to the role of the trial judge to help the jury in its task, rather than related to the application of any rule of law.
I draw support for this view from the recent High Court case of Hargraves v The Queen (2011) 85 ALJR 1254. There, the Queensland Court of Appeal had held that the trial judge's direction concerning evaluation of witnesses, which included a reference to whether a witness had an interest in the subject matter of the trial, amounted to a misdirection. However, applying the proviso, the court found that no substantial miscarriage of justice had resulted. The High Court held that there was no misdirection, because the relevant direction would have been understood by the jury to refer only to a critical prosecution witness and not to the accused persons (at [48]). But importantly, the court characterised the nature of the alleged misdirection, finding that it would not have amounted to a wrong decision on a question of law:
In both Robinson and the present case the immediate question was and is whether on any ground whatsoever there was a miscarriage of justice at the trial. The appellants' allegation in this case that there was a misdirection was not an allegation of any of the other grounds of appeal identified in the common form criminal appeal statute. It was not an allegation that the verdict of the jury should be set aside on the ground that it was unreasonable or cannot be supported having regard to the evidence; it was not an allegation of the wrong decision, at trial, of any question of law.
The governing principle applied by the Court in Robinson was not identified as being new. Rather, the Court directed attention to whether the directions that were given at trial constituted a miscarriage of justice because they affected the fairness of the trial and, in particular, did so by undermining "the benefit" which the "presumption [of innocence] gives to an accused person". That is, the Court determined whether there was on any other ground whatsoever a miscarriage of justice by applying a principle which, when stripped of the rhetorical overtones that may be sounded by reference to "the presumption of innocence", directed attention to the fundamental features of a criminal trial.
The question was, rather, whether the judge's instructions had deflected the jury from its fundamental task of deciding whether the prosecution had proved its case, so giving rise to a miscarriage of justice. The court held that, while the Queensland Court of Appeal was correct to dismiss the appeal, it should have done so, not by application of the proviso, but on the footing that no miscarriage of justice had been made out (at [50]).
Returning to the present case, even had I been persuaded that a direction of some sort about the payments was required, the appellant would still have had to demonstrate that the failure to give the direction caused a miscarriage of justice.
I consider that the failure of the Judge to give his direction does not result in a miscarriage of justice, unless the applicant establishes that it is a reasonable possibility that such failure may have affected the verdict and deprived the applicant of a chance of acquittal which was fairly open to him.
Has the applicant established that he was deprived of a verdict of acquittal
The evidence in this case was compelling. It established that at least seven Sudanese men were at the oval. There is no doubt that the Sudanese men were attacked by about six or seven men who were armed with knives and sticks, including a baseball bat. The Sudanese witnesses all described a person with a baseball bat being among the group that attacked them. The Sudanese witnesses varied in the detail of how events unfolded, but their evidence was consistent in describing the attackers being armed with knives, sticks and at least one, if not more, baseball bats. They all described being attacked by all members of the group.
There was the evidence of NW and JC, who were part of the group who drove to the oval to attack the Sudanese group. NW accompanied a number of the defendants. She described a person who, it is clear from other evidence, was the applicant, arriving in a white utility and joining the group. He was carrying a baseball bat. She described seeing the group walking towards the oval and around the clubrooms. She observed at least one of the group with a knife. When they returned, one of the group was covered in blood.

JC was part of the group who congregated at the oval prior to the attack. He saw the applicant’s car. The applicant joined the group. One of the group said that BS, a member of the group, had been stabbed by a person (a Sudanese) who was on the oval, and that they, the group, were going to get him back.
As it transpired, no such earlier incident had occurred, and BS had not been stabbed. JC described how the group armed themselves with knives, billiard cues, poles and sticks. JC described the group moving towards the Sudanese. He was at the front. He described the applicant hitting one of the Sudanese with a baseball bat. He described the applicant then standing back and watching the assault. He described the assault, including one of the group chasing a Sudanese person and another stabbing one of the Sudanese men.
The applicant gave evidence that he attended the oval. He spoke to his brother. He did not know a number of people in the group. He said he saw no weapon. He was not part of the group when they moved on to the oval. He had a baseball bat, but did not use it. He did not see others with weapons, either before or after the attack. He returned to his car and drove home.
The evidence of the Sudanese witnesses, supported by the evidence of NW and JC, strongly pointed to the applicant being a member of the group who were armed with various weapons and who attacked the Sudanese group. There is no reasonable possibility that the failure of the Judge to give an Edward’s direction could have affected the verdict.
I would grant permission to appeal, but dismiss the appeal.
Appeal against sentence
The appellant was sentenced to life imprisonment and a non-parole period of 20 years was fixed, in accordance with the mandatory minimum as required by s 32(5)(ab) of the Criminal Law (Sentencing) Act 1988 (SA) (the “Sentencing Act”). It is accepted by counsel that there are no grounds to reduce the mandatory minimum non-parole period.
The other four defendants were also found guilty of murder. As I have observed, each participated in a joint criminal enterprise which resulted in the death of the deceased. Each was sentenced under the Young Offenders Act 1993 (SA). They received non-parole periods inclusive of credit given for time in custody and home detention of between six and nine years.
The appellant appeals on the ground that the sentence is, in all the circumstances, manifestly excessive. Three arguments are raised as to why the sentencing Judge was not obliged to impose the mandatory minimum non-parole period of 20 years’ imprisonment.
Statutory construction argument
The appellant contends that, by reason of conflicting provisions of the Sentencing Act, the mandatory minimum sentencing provisions do not operate to preclude the imposition of a non-parole period comparable to that imposed on a co-defendant who is a youth and to whom the mandatory minimum non-parole period regime does not apply.
The relevant sections of the Sentencing Act are:[13]
[13] Criminal Law (Sentencing) Act 1988 (SA), s 3(1).
3(1) In this Act, unless the contrary intention appears –
sentence means –
(a)the imposition of a penalty; or
(b)the decision of a court to offer a defendant an opportunity to enter into a bond; or
(c)the fixing, extending or negating of a non-parole period; or
(d)the making of any other order or direction affecting penalty;
...
Section 10 specifies a number of matters to which a court should have regard in determining a sentence. They include the circumstances of the offence and the personal circumstances of the offender, whether the offender is contrite, the offender’s prospects of rehabilitation, the relevant effect of the sentence, and the effect the sentence will have on the offender’s family. Section 10(1)(o) is a catchall provision which provides that the court should have regard to “any other relevant matter”.
Section 10(1a) provides:[14]
[14] Criminal Law (Sentencing) Act 1988 (SA), s 10(1a).
10 – Matters to be considered by sentencing court
...
(1a) However, a court, in determining sentence for an offence, must disregard any mandatory minimum non-parole period prescribed in respect of the sentence under this Act or another Act.
Section 32 provides that, subject to certain qualifications specified in sub-s (5), a sentencing court is required to fix a non-parole period when imposing a sentence. Section 32(5)(ab) provides:[15]
[15] Criminal Law (Sentencing) Act 1988 (SA), s 32(5)(ab).
32 – Duty of court to fix or extend non-parole periods
...
(5) the above provisions are subject to the following qualifications:
...
(ab)if fixing a non-parole period in respect of a person sentenced to life imprisonment for an offence of murder, the mandatory minimum non-parole period prescribed in respect of the offence is 20 years;
...
Section 32 must be read in conjunction with s 32A which provides that where a mandatory minimum non-parole period is prescribed in respect of an offence, the period prescribed represents the non-parole period for an offence at the lower end of the range of objective seriousness for offences to which the mandatory minimum non-parole period applies. The section permits a court to fix a non-parole period longer than the prescribed period where the court is satisfied that a longer period is warranted and, where “special reasons” exist, to fix a shorter period. Section 32A(3) specifies the matters to which a court can have regard when considering whether special reasons exist. The section provides:[16]
(3)In deciding whether special reasons exist for the purposes of subsection (2)(b), the court must have regard to the following matters and only those matters:
(a)     the offence was committed in circumstances in which the victim’s conduct or condition substantially mitigated the offender’s conduct;
(b)     if the offender pleaded guilty to the charge of the offence – that fact and the circumstances surrounding the plea;
(c)     the degree to which the offender has co-operated in the investigation or prosecution of that or any other offence and the circumstances surrounding, and likely consequences of, any such co-operation.
[16] Criminal Law (Sentencing) Act 1988 (SA), s32A(3).
The appellant contends that there is a conflict between s 10(1)(o) and ss 32A and 32(5)(ab) (the “mandatory minimum non-parole provisions”) of the Sentencing Act. It is not disputed that a matter which is relevant when sentencing offenders who have been convicted of participating in an offence is parity in dealing with each offender. Counsel contends that the sentencing Judge was in error in failing to have regard to the common law principle of parity when imposing the non-parole period.
Counsel for the appellant further contends that there is an inconsistency between s 10(1a) and the mandatory minimum non-parole provisions of the Act. Counsel contends that the mandatory minimum non-parole provisions must be read down as to not apply, having regard to Parliament’s intention expressed in s 10(1a). The effect of counsel’s submission is that if the principle of parity applies the minimum non-parole periods have no effect.
I reject this contention. In my view, no conflict arises. The subject of s 10(1) identifies factors which may or may not be relevant to the exercise of a power by a sentencing court. The process for applying the mandatory minimum non-parole provisions was discussed in R v A, D.[17] If two or more adult co-offenders are sentenced for the offence of murder, the mandatory minimum non-parole provisions apply equally to both of them. In cases in which the mandatory minimum non-parole period does not apply, other matters ordinarily relevant to the fixing of a non-parole period would apply. It follows that there may be reasons to distinguish between two or more defendants when imposing the non‑parole period. The principle of parity is but one consideration to which the court is to have regard. The court may find grounds, such as the relative involvement in the crime or personal circumstances, to distinguish between offenders. In the case in which the mandatory minimum non-parole period applies to two adult offenders, there may be grounds for distinguishing between them. For example, a court may impose the mandatory minimum sentence in respect of one defendant but impose a longer period in respect of the other, having regard to their relative participation in the offence. However, if it is decided that the offender who was primarily involved should receive no more than the mandatory minimum sentence, then parity does not apply and the co‑offender, even though less involved, must receive the same sentence.
[17] (2011) 109 SASR 197.
Counsel for the appellant further contends that, having regard to the definition of “sentence” which includes “the fixing, extending or negating of a non-parole period”, there is a clear conflict between s 10(1a) and the provisions prescribing a mandatory non-parole periods for certain offences, including murder. Counsel submits that the unambiguous wording of s 10(1a) results in the mandatory non-parole provisions having no effect. He submits that the trial Judge erred in applying ss 32 and 32A when sentencing the appellant. For the following reasons, I reject the submission.
In Project Blue Sky Inc v Australian Broadcasting Authority,[18] McHugh, Gummow, Kirby and Hayne JJ, in considering the principles of statutory interpretation observed:[19]
The primary object of statutory construction is to construe the relevant provision so that it is consistent with the language and purpose of all the provisions of the statute. The meaning of the provision must be determined “by reference to the language of the instrument viewed as a whole”. In Commissioner for Railways (NSW) v Agalianos, Dixon CJ pointed out that “the context, the general purpose and policy of a provision and its consistency and fairness are surer guides to its meaning than the logic with which it is constructed”. Thus, the process of construction must always begin by examining the context of the provision that is being construed.
A legislative instrument must be construed on the prima facie basis that its provisions are intended to give effect to harmonious goals. Where conflict appears to arise from the language of particular provisions, the conflict must be alleviated, so far as possible, by adjusting the meaning of the competing provisions to achieve that result which will best give effect to the purpose and language of those provisions while maintaining the unity of all the statutory provisions. Reconciling conflicting provisions will often require the court “to determine which is the leading provision and which is the subordinate provision, and which must give way to the other”. Only by determining the hierarchy of the provisions will it be possible in many cases to give each provision the meaning which best gives effect to its purpose and language while maintaining the unity of the statutory scheme.
Furthermore, a court construing a statutory provision must strive to give meaning to every word of the provision. In Commonwealth v Baume Griffith CJ cited R v Berchet to support the proposition that it was “a known rule in the interpretation of Statutes that such a sense is to be made upon the whole as that no clause, sentence, or word shall prove superfluous, void, or insignificant, if by any other construction they may all be made useful and pertinent”.
[Citations omitted.]
[18] (1998) 194 CLR 355.
[19] (1998) 194 CLR 355, [69]-[71].
Section 10(1a) and s 32(5)(ab), which fixes the mandatory minimum non‑parole period for murder as 20 years, were enacted in 2007 by the Criminal Law (Sentencing)(Dangerous Offenders) Amendment Act 2007 (SA).
When introducing the legislation, the Attorney-General referred to the inclusion of s 10(1a). He said:
This new subsection is included so as to discourage the setting of a lower head sentence than would otherwise be imposed in the case where a minimum mandatory non‑parole period is prescribed.
It is clear that the section was intended to apply to the setting of a head sentence. The primary object of the amendment to s 32 was to provide for mandatory minimum non-parole periods for major indictable offences resulting in death or total permanent incapacity of a victim. In the case of murder, where a mandatory life sentence is imposed, the purpose of the legislation was to require a person to serve a minimum of 20 years’ imprisonment, unless special reasons exist justifying a lesser non-parole period. The matters relevant to the determination of special reasons are limited to those specified in s 32A(3), which relate to the victim’s conduct, the offender’s plea of guilty, or the degree to which the offender has co-operated in the investigation of the offence or any other offences.
In order to give effect to the language and purpose of the provisions, and in order to give meaning to the words of s 10(1a), the term “sentence” in s 10(1a) must refer to the “head sentence”. I note that s 3 defines “sentence” as including the fixing of a non-parole period. The section commences with the phrase “unless contrary intention appears”.
In the case of s 10(1a), a contrary intention does appear. If one construes the meaning of “sentence” in s 10(1a) to mean head sentence only, then that provision is consistent with s 32(1) to the extent that the provision contemplates that the head sentence be fixed before the determination of the non‑parole period.
The asserted conflicts do not prevent the mandatory minimum non-parole period for murder from operating. Through the enactment of s 32(5)(ab), Parliament has expressed a clear intention to impose a 20 year minimum non‑parole period for the offence of murder. Accordingly, in the circumstances, the appellant received the minimum non-parole period permitted under the Act.
Parity argument
The appellant contends that there is a disparity between the non-parole period set for his offending when compared to the offending and non-parole period of the other four defendants, such that the sentencing process has miscarried.
The common law principle of parity permits a court of appeal to intervene and address a manifest discrepancy in a sentence if it has the potential to engender a justifiable sense of grievance and give the appearance that justice has not been done.[20] In Lowe v The Queen, Gibbs CJ said:[21]
It is obviously desirable that persons who have been parties to the commission of the same offence should, if other things are equal, receive the same sentence, but other things are not always equal, and such matters as the age, background, previous criminal history and general character of the offender, and the part which he or she played in the commission of the offence, have to be taken into account. The fact that one co-offender has received a sentence which is more severe than that imposed on a co-offender whose circumstances are comparable would provide no reason in logic for reducing the former sentence, if the only question were whether that sentence, viewed in isolation, was manifestly excessive.
[20] Lowe v The Queen (1984) 154 CLR 606, 609-12.
[21] Lowe v The Queen (1984) 154 CLR 606, 609.
In the joint judgement of Dawson and Gaudron JJ in Postiglione v The Queen,[22] they said:[23]
The parity principle upon which the argument in this Court was mainly based is an aspect of equal justice. Equal justice requires that like should be treated alike but that, if there are relevant differences, due allowance should be made for them. In the case of co‑offenders, different sentences may reflect different degrees of culpability or their different circumstances. If so, the notion of equal justice is not violated. On some occasions, different sentences may indicate that one or other of them is infected with error. Ordinarily, correction of the error will result in there being a due proportion between the sentences and there will then be equal justice. However, the parity principle, as identified and expounded in Lowe v The Queen, recognises that equal justice requires that, as between co-offenders, there should not be a marked disparity which gives rise to “a justifiable sense of grievance”. If there is, the sentence in issue should be reduced, notwithstanding that it is otherwise appropriate and within the permissible range of sentencing options.
Discrepancy or disparity is not simply a question of the imposition of different sentences for the same offence. Rather, it is a question of due proportion between those sentences, that being a matter to be determined having regard to the different circumstances of the co-offenders in question and their different degrees of criminality.
[Citations omitted.]
[22] (1996-1997) 189 CLR 295.
[23] Postiglione v The Queen (1996-1997) 189 CLR 295, 301-302.
In R v MacGowan,[24] King CJ, with whom Mohr and von Doussa JJ agreed, decided that the common law principle of disparity applies to the imposition of sentences in South Australia. The common law principles of sentencing continue to apply to sentences imposed in South Australian courts, and must be considered having regard to other legislative requirements.
[24] (1986) 42 SASR 580.
In Green v The Queen, French CJ, Crennan and Kiefel JJ observed:[25]
Because appeals are creatures of statute, the parity principle in appeals against sentence arises in a statutory context. The jurisdictions to entertain such appeals, conferred by statutes on courts of criminal appeal in Australia, are supported by powers to increase or reduce sentences affected by appealable error. In the exercise of those powers in appeals by convicted persons, and subject to the applicable sentencing statutes, a court may "reduce a sentence not in itself manifestly excessive in order to avoid a marked disparity with a sentence imposed on a co-offender". The exercise of the statutory discretion is informed by the common law norm.
[Citations omitted]
[25] Green v The Queen (2011) 244 CLR 462, 474.
The appellant submits that there is no specific provision in the Sentencing Act that extinguishes the common law principles that underpin the justice system. That those common law principles continue to apply to the imposition of sentences, it is contended, is supported by section 10(1)(o) of the Sentencing Act which allows “any other relevant matters” to be taken into account when sentencing an individual. Furthermore, section 4 makes it clear that the powers conferred by the Act are in addition to and do not derogate from the powers conferred by any other Act. The appellant’s contention is therefore that the common law principle of parity applies with respect to the appellant in the present case.
In imposing the mandatory minimum sentence, the sentencing Judge said:
I should explain that as a general rule there should not be a marked disparity of sentence between co-offenders, but in this case, your non-parole period will be substantially more than the others. However, you were the adult in the group and the difference is dictated by the different statutory provisions which apply to each of you, as I have earlier mentioned, and there is nothing I can do about that.
The appellant argues that implicit in the sentencing Judge’s reasoning is the erroneous reasoning that common law principles do not underpin the sentencing process and that they have effectively been extinguished by sections 32A and 32(5)(ab) of the Sentencing Act.
The appellant further submits that, when sentenced, there was no suggestion on a factual basis that the appellant’s actions with respect to the offences of which he was convicted were any more serious than the other participants and accordingly there is no factual basis for the disparity between his sentence and that of the other four defendants. In sentencing the appellant, the Judge remarked:
However, in the case of you FB [the appellant], HR and you, JW, the prosecution accepts that none of you stabbed either victim but submitted that you should be sentenced on the basis that each of you be sentenced on the basis that each of you was part of what is called an extended joint enterprise.

While common law principles continue to be relevant to the exercise of powers under the Sentencing Act, the appellant’s submission must fail. In sentencing the appellant, the parity principle had no work to do. The appellant was not among equals. The other four defendants were youths sentenced as adults under the Young Offenders Act 1993 (SA). In R v A, D[26] this Court confirmed that when a juvenile is sentenced as an adult, the principles and policies found in the Young Offenders Act continue to apply. The fixing of a non-parole period for such an offender is not governed by sections 32 and 32A of the Sentencing Act and those mandatory minimum non-parole periods do not apply. The fact that the appellant was sentenced under an entirely different sentencing regime to the other four defendants is a relevant basis for discrimination.
[26] (2011) 109 SASR 197.
In Street v Bar Association (QLD), Gaudron J discussed the fundamental principle of equality before the law by reference to its antithesis, discrimination:[27]
Although in its primary sense "discrimination" refers to the process of differentiating between persons or things possessing different properties, in legal usage it signifies the process by which different treatment is accorded to persons or things by reference to considerations which are irrelevant to the object to be attained. The primary sense of the word is "discrimination between"; the legal sense is "discrimination against".
[27] Street v Bar Association (QLD) (1989) 168 CLR 461, 570.
Later in her reasons, Gaudron J stated:[28]
The question whether different treatment assigned by reason of a relevant difference is appropriate to that difference is one which is peculiarly apt to attract different answers according to the alternatives available at different times. It is also a question which, as the United States Supreme Court recognized in Supreme Court of Virginia v. Friedman, cannot be answered by the dictation of "specific legislative choices to the State". It may also be a question the answer to which will sometimes depend on whom the persuasive burden is placed. The significance of the burden of proof and related concepts in the field of discrimination may be seen in cases such as Griggs v. Duke Power Co; Dothard v. Rawlinson and Wards Cove Packing Co. Inc. v. Atonio and is discussed in Ontario Human Rights v. Simpsons-Sears Ltd. The issue in the present case may be approached by a means which does not involve any consideration of the allocation of a persuasive burden. The question of appropriateness may be answered by reference to the test applied to determine the validity of legislation enacted to secure a constitutional purpose, namely, whether it is reasonably capable of being seen as appropriate and adapted to that purpose. See The Commonwealth v. Tasmania; The Tasmanian Dam Case; Richardson v. Forestry Commission. For present purposes the issue may be expressed as whether the different treatment is reasonably capable of being seen as appropriate and adapted to a relevant difference.
[Citations omitted.]
[28] Street v Bar Association (QLD) (1989) 168 CLR 461, 572.
The parity principle has not been offended. The different sentencing regimes under which the co-offenders were sentenced explains the difference in the non-parole periods which have been fixed. The relevant discriminating factor in this case is age to which the law has prescribed different sentencing regimes. As Gaudron, Gummow and Hayne JJ said in Wong v The Queen "[e]qual justice requires identity of outcome in cases that are relevantly identical. It requires different outcomes in cases that are different in some relevant respect."[29]
[29] Wong v The Queen (2001) 207 CLR 584, 608.
Constitutional argument
The appellant contends that ss 32A and 32(5)(ab) are constitutionally invalid. Counsel for the appellant contends that the effect of the sections requires that a sentencing judge impose unequal punishment on offenders who are jointly responsible, where there is no distinction between their culpability and where their personal circumstances do not justify distinguishing between them. Where the disparity can only be explained by the operation of the Sentencing Act a fundamental principle of equality is offended. It is submitted that equality before the court is an essential characteristic of the juridical function, and offending the principle results in the institutional integrity of the court being compromised, and is incompatible with the court being a fit repository of federal jurisdiction.
The appellant’s contention seeks to invoke an implied limitation upon State legislative power referred to as the Kable doctrine.[30]
[30] In recognition of the High Court case in which it was first recognised and applied; Kable v Director of Public Prosecutions (NSW) (1996) 189 CLR 51.
In North Australian Legal Aid v Bradley, McHugh, Gummow, Kirby, Hayne, Callinan and Heydon JJ accepted that:[31]
...it is implicit in the terms of Ch III of the Constitution and necessary for the preservation of that structure, that a court capable of exercising the judicial power of the Commonwealth be and appear to be an independent and impartial tribunal.
[31] (2004) 218 CLR 146, 163.
In Baker v The Queen, Gleeson CJ discussed the Kable doctrine:[32]
Since the Constitution established an integrated Australian court system, and contemplates the exercise of federal jurisdiction by State Supreme Courts, State legislation which purports to confer upon such a court a function which substantially impairs its institutional integrity, and which is therefore incompatible with its role as a repository of federal jurisdiction, is invalid.
The strength of that principle lies in its constitutional legitimacy. It was not an invention of a method by which judges may wash their hands of the responsibility of applying laws of which they disapprove. In some of the judgments in Kable, references were made to public confidence in the courts. Confidence is not something that exists in the abstract. It is related to some quality or qualities which one person believes to exist in another. The most basic quality of courts in which the public should have confidence is that they will administer justice according to law. As Brennan CJ said in Nicholas v The Queen:
"It is the faithful adherence of the courts to the laws enacted by the Parliament, however undesirable the courts may think them to be, which is the guarantee of public confidence in the integrity of the judicial process and the protection of the courts' repute as the administrator of criminal justice."
[Citations omitted.]
[32] (2004) 223 CLR 513, 519.
As State courts can be invested with Federal jurisdiction, State legislation cannot confer jurisdiction or powers on State courts that render them unfit repositories of Federal judicial power. The focus of the enquiry of whether a piece of State legislation is incompatible or repugnant with the institutional integrity of a court centres on the concept of a defining characteristic of a court.[33]
[33] Fardon v Attorney-General for the State of Queensland (2004) 223 CLR 575.
In Forge v Australian Securities and Investments Commission, Gleeson CJ summarised the characteristics that are necessary for a court to answer that descriptor:[34]
It follows from the terms of Ch III that State Supreme Courts must continue to answer the description of "courts". For a body to answer the description of a court it must satisfy minimum requirements of independence and impartiality. That is a stable principle, founded on the text of the Constitution. It is the principle that governs the outcome of the present case. If State legislation attempted to alter the character of a State Supreme Court in such a manner that it no longer satisfied those minimum requirements, then the legislation would be contrary to Ch III and invalid
...
[34] (2006) 228 CLR 45, 67.
Gummow, Hayne and Crennan JJ said:[35]
But it is recognised in Kable, Fardon v Attorney-General (Qld) and North Australian Aboriginal Legal Aid Service Inc v Bradley, the relevant principle is one which hinges upon maintenance of the defining characteristics of a “court”, or in cases concerning a Supreme Court, the defining characteristics of a State Supreme Court. It is to those characteristics that the reference to “institutional integrity” alludes. That is, if the institutional integrity of a court is distorted, it is because the body no longer exhibits in some relevant respect those defining characteristics which mark a court apart from other decision-making bodies.
It is neither possible nor profitable to attempt to make some single all-embracing statement of the defining characteristics of a court. The cases concerning identification of judicial power reveal why that is so. An important element, however, in the institutional characteristics of courts in Australia is their capacity to administer the common law system of adversarial trial. Essential to that system is the conduct of trial by an independent and impartial tribunal.
[Citations omitted.]
[35] (2006) 228 CLR 45, 76.
It can therefore be observed that the Kable doctrine preserves the irreducible content carried by the descriptor “court”. The doctrine hinges upon maintenance of the defining characteristics of a court; independence and impartiality.
The process for determining the application of the doctrine was described by French CJ in K-Generation v Liquor Licensing Court:[36]
The question whether functions, powers or duties cast upon a court are incompatible with its institutional integrity as a court will be answered by an evaluative process which may require consideration of a number of factors. The evaluation process required is not unlike that involved in deciding whether a body can be said to be exercising judicial power.
[36] (2009) 237 CLR 501, [90] citing: Fardon v Attorney-General for the State of Queensland (2004) 223 CLR 575, 618.
This is the approach that this Court has taken.[37] In Campbell v M & I Samaras Pty Ltd & Employers Mutual Gray and Sulan JJ stated:[38]
[37] See for example, Director of Public Prosecutions v George (2008) 102 SASR 246, 3; R v Ironside (2009) 104 SASR 54.
[38] Campbell v M & I Samaras Pty Ltd & Employers Mutual (2011) 110 SASR 57, [109]-[111].
A State parliament may not confer upon a State court a function, or alter the structure or composition of a State court, if in doing so the consequence is that the institutional integrity of the court is distorted "because the body no longer exhibits in some relevant respect those defining characteristics which mark a court apart from other decision-making bodies". To confer upon a State court such a function is repugnant to or incompatible with the exercise by that court of the judicial power of the Commonwealth. The doctrine focuses upon protecting capacity and what is essential to the role of the judicial arm of government and the maintenance of the integrity of the integrated Australian judicial system.
Further, the operation of the doctrine is informed by the fact that at the State level the doctrine of the separation of powers does not apply. That is, implicit in the Kable doctrine is an acceptance that the defining characteristics of a court of a State are not distorted by the mere fact that a law vests in such court, or a member of such court, a function that does not involve the exercise of judicial power. If the doctrine is not necessarily offended by a law that vests in a court of a State a function that does not involve the exercise of judicial power, it follows that a law of a State that modifies the manner in which the judicial power of the State is exercised will not necessarily offend the doctrine provided that what is essential to the exercise of judicial power is not compromised. It is in this context that the concept of the institutional integrity of a court of a State within the meaning of Ch III of the Constitution and the Kable doctrine is to be understood. As French CJ recently noted in South Australia v Totani:
"The concept of "institutional integrity" may be understood as incorporating three elements. A degree of independence from the political branches of government, and in particular, from the political executive. Impartiality as between the parties to disputes to be decided. Finally, that a court makes decisions in the exercise of judicial power by reference to a reasoned rather than an arbitrary or capricious process.
...
The absence of an entrenched doctrine of separation of powers under the constitutions of the States at Federation and thereafter does not detract from the acceptance at Federation and the continuation today of independence, impartiality, fairness and openness as essential characteristics of the courts of the States. Nor does the undoubted power of State Parliaments to determine the constitution and organization of State courts detract from the continuation of those essential characteristics. It is possible to have organisational diversity across the Federation without compromising the fundamental requirements of a judicial system."
The true question is whether the "court is required or empowered by the impugned legislation to do something which is substantially inconsistent or incompatible with the continuing subsistence, in every respect of its judicial role, of its defining characteristics as a court".
[Citations omitted.]
Turning to the present case, it cannot be said sections 32(5)(ab) and 32A grant powers or impose duties on a court that are incompatible or repugnant with the institutional integrity of a court. The provisions do not in any way deny the reality or appearance of independence and impartiality on the part of any court called upon to apply the provisions.
The appellant submits that the effect of the provisions is that a sentencing Judge is required to impose unequal punishment on similar offenders in circumstances where the disparity between the sentences imposed cannot be explained by the circumstances of the offending or on any other basis other than that of the mandatory requirements of the sections referred to. The appellant points to the following factors in support of his contention:
·That the Learned Sentencing Judge clearly indicated that because of the differing statutory regimes there was nothing she could do about the disparity.
·The Learned Sentencing Judge’s factual findings as to the extent and nature of the Appellant’s involvement as compared to the others involved in the offences were irrelevant given the above.
·This leads to an appearance of a predetermined executive outcome independent of any factual findings by the Learned Sentencing Judge.
It is to be observed that mandatory sentencing regimes have been held to be valid by courts on several occasions. In Palling v Corfield,[39] the High Court held that a provision of the National Service Act 1951 (Cth) that required a court to impose a penalty of imprisonment on a convicted person upon request from the prosecution was held not to be invalid. Barwick CJ stated:[40]
It is beyond question that the Parliament can prescribe such penalty as it thinks fit for the offences which it creates. It may make the penalty absolute in the sense that there is but one penalty which the court is empowered to impose and, in my opinion, it may lay an unqualified duty on the court to impose that penalty. The exercise of the judicial function is the act of imposing the penalty consequent upon conviction of the offence which is essentially a judicial act. If the statute nominates the penalty and imposes on the court a duty to impose it, no judicial power or function is invaded: nor, in my opinion, is there any judicial power or discretion not to carry out the terms of the statute. Ordinarily the court with the duty of imposing punishment has a discretion as to the extent of the punishment to be imposed; and sometimes a discretion whether any punishment at all should be imposed. It is both unusual and in general, in my opinion, undesirable that the court should not have a discretion in the imposition of penalties and sentences, for circumstances alter cases and it is a traditional function of a court of justice to endeavour to make the punishment appropriate to the circumstances as well as to the nature of the crime. But whether or not such a discretion shall be given to the court in relation to a statutory offence is for the decision of the Parliament. It cannot be denied that there are circumstances which may warrant the imposition on the court of a duty to impose specific punishment. If Parliament chooses to deny the court such a discretion, and to impose such a duty, as I have mentioned the court must obey the statute in this respect assuming its validity in other respects. It is not, in my opinion, a breach of the Constitution not to confide any discretion to the court as to the penalty to be imposed.
[39] (1970) 123 CLR 52.
[40] (1970) 123 CLR 52, 58.
The appellant contends that Palling can be distinguished from, and is not directly relevant to, the present case on the ground that that case dealt with a statutory offence created by Parliament whereas this matter deals with the common law offence of murder. This contention cannot be accepted. The common law or statutory basis of the offence has no bearing upon whether the requirement that the court impose a particular sentence is constitutionally permissible. Furthermore, although in defining the offence, one looks to the common law, Parliament has made murder a statutory offence.[41]
[41] Criminal Law Consolidation Act 1953 (SA) s 11.
More recently, the decision in R v Ironside,[42] confirmed the validity of section 32A(3) of the Sentencing Act. The Court rejected an argument that because the section allows a court to fix a non-parole period shorter than the mandatory non-parole period only if "special reasons” exist, the provision results in an impairment of the institutional integrity of the court, and is incompatible with the court being a fit repository of federal jurisdiction. The Court held that section 32A(3) was not invalid by operation of Ch III of the Constitution. It did not confer on a court powers or functions that are repugnant to, or incompatible with, the exercise of judicial power. By allowing a court to reduce the mandatory minimum sentence in the case of a guilty plea, the provisions did not require a court to act in an unlawfully discriminatory manner.
[42] (2009) 104 SASR 54.
Doyle CJ observed that the differential treatment of a person who pleads guilty from that of a person who pleads not guilty is not discriminatory in the sense of treating equals in an unequal manner.
Gray J observed:[43]
Counsel for the defendant submitted that by penalising a person for failing to plead guilty and failing to cooperate, s 32 of the Sentencing Act effected an unlawful discrimination. The defendant claimed that an offender, in an otherwise identical position, but who had pleaded guilty would be sentenced under a different regime, one that did not involve a mandatory minimum non-parole period. The defendant contended that, as a consequence, he was being discriminated against in a manner forbidden by the Constitution. An alternative way of putting the proposition is as follows: that Parliament has imposed on a sentencing judge the obligation to sentence in a manner contrary to the principle of equal treatment for like offenders. This, it was said would involve discrimination against which the Constitution provides protection.
Central to the exercise of federal judicial power is the principle of equality of treatment and/or lack of “discrimination”. Such a principle is part of federal judicial power exercised by State courts as part of the “autochthonous expedient”. State judicial power should incorporate the same principle. The power to determine punishment for breach of the law falls within the concept of judicial power and must be determined by a court acting judicially.
[Citations omitted.]
[43] (2009) 104 SASR 54, [138]-[139].

Ground 2 can be dealt with first and briefly. It has no substance and therefore cannot succeed.
The prosecution witness JC said that after the applicant struck a Sudanese male over the head with a baseball bat he “stood back” as though he was not actively engaged in the fight. Although that is contrary to the evidence of the applicant at trial, it was used as a basis for arguing that there was a reasonable possibility that the applicant had withdrawn from whatever agreement he may have entered into and therefore he should be acquitted of both counts. The trial judge in summing up gave this direction to the jury on that topic:
If there is a reasonable possibility that after the initial blow, [the applicant] did in fact stand back and watch, that of itself would not mean that he had ceased to participate in the events that were taking place or that he had withdrawn from any plan that had earlier been formed. To disengage from an incident, a person must do enough to demonstrate that he is in fact withdrawing. This requires more than a mental change of intention and the physical change of location. Where practicable and reasonable, there must be timely communication of the intention to abandon the common purpose from a person who wishes to disassociate himself from the contemplated crime to those who desire to continue it. What amounts to a timely communication is a question to be determined on the facts of the case, but where practicable and reasonable, there should be some sort of communication, verbal or otherwise, that would serve unequivocal notice upon the other party or parties that if they proceed with the common unlawful cause, then they do so without his further assistance.
In this case, even if [the applicant] stood back and watched, on the prosecution case, there is no evidence that [the applicant] did anything to indicate that he wished or intended to withdraw from any agreement which had earlier been made. Furthermore, there is the evidence of [the applicant] calling out to his brother to get off the road which, on the prosecution case, is further evidence of his continuing participation in the assault upon the Sudanese men.
However, I should make it clear that it is not the defence case that [the applicant] withdrew from his participation in any joint plan that was made that day.
There is no argument before this Court that this direction in dealing with what I might call a “basic” joint enterprise case is anything but correct. However, Mr Charman, now argues that because the case presented against the applicant was not one of “basic” joint enterprise but one of extended joint enterprise, pursuant to the principles in McCauliffe’s case, any defence that the applicant withdrew from such an extended joint enterprise should not necessitate the need of any communication of that withdrawal as directed by the trial judge.
Mr Charman could cite no authority to support that argument, nor is there any reason, in logic or fairness as to why there should be any differentiation between the requirements for, and therefore the directions required to be given in relation to, the withdrawal from a joint criminal enterprise, whether it be a “basic” joint enterprise or an extended joint enterprise.
The argument has no merit and I would refuse permission to appeal on ground 2.
I turn to the more substantial argument of ground 1.
Ground 1
In essence, Mr Charman argues that, even though the prosecution disavowed any intention to use proof of the applicant’s lies as evidence of guilt pursuant to the principles of Edwards v The Queen,[48] there remained a risk that there could have been a misunderstanding by the jury as to the significance of the applicant’s lies and therefore a clear direction was still required to be given to the jury as to the proper use that that could be made of those lies. In other words, consistent with the principles set out in Zoneff v The Queen,[49] the jury should have been told that those lies, if proven, could only go to the credit of the applicant and could not, of themselves, be evidence of guilt.
[48] (1993) 178 CLR 193.
[49] (2000) 200 CLR 234.
Mr Charman further argues that the facts of this case required a direction to be given in the terms of even if the jury rejected the applicant’s evidence, nevertheless they had to cast that evidence aside and carefully consider whether the prosecution had proved their case beyond reasonable doubt. He argues that it does not inexorably follow that a rejection of the applicant’s evidence means that he has been proved to be guilty of a joint enterprise as to make out the offences.
In order to appreciate the argument fully it is important to set out the lies that the prosecution emphasised as they were presented to the jury in the prosecutor’s cross-examination and address. There is no suggestion that there was impropriety in the way the prosecutor at trial went about his task. He conducted both his cross-examination and gave his address vigorously and fairly. However, Mr Charman argues that a direction was needed because of the emphasis that the prosecution placed upon these lies to ensure that the jury did not use them improperly.
I have already summarised, albeit briefly, the applicant’s evidence-in-chief at trial. The important differences between his evidence and that of the prosecution witnesses were that:
1.When he arrived at the oval and saw the other participants, his brother was not holding a weapon of any description.[50]
2.At the same time, he did not notice any of the other boys holding weapons.[51]
3.When they ran around the building onto the oval he was walking behind the group instead of being at the front.[52]
4.When he was walking towards the oval, he heard a girl scream from the car park area, which caused him to return to check on her safety. From that location, the closest point that he got to oval, he saw nothing in front of the clubrooms. Nor did he see anything once returning to the car park.
[50] T2606.
[51] T2606.
[52] T2607.
It was put to him in cross-examination that he knew everything about what had happened immediately before and during the attack and that he had “basically the grandstand seat for this incident”.[53] It was also put to him that he struck Mr Akok with a baseball bat and was present whilst Mr Achiek was getting stabbed on the oval. In cross‑examination, the applicant maintained his evidence that he gave in chief, namely that he saw nothing of the incident.
[53] T2657/3.
It was specifically put to the applicant by the prosecutor in cross-examination that he lied when he said in evidence that he saw no weapons being carried by the others. I set out that passage of evidence:[54]
[54] T2667/6-21.
Q.You had an excellent view, I suggest, on your version, an excellent view, of whether or not any of these young men were carrying anything when they came back to the car.
A.Like I said, I never seen anything.
Q.Didn’t see anyone carrying a pool cue.
A.No.
Q.A white metal pole.
A.No.
Q.Any other sort of pole.
A.There was no weapons at all, that I saw myself, no.
Q.I suggest you lied about that.
A.No reason to.
Q.And that you knew that people had been stabbed at this incident because you were involved in it.
A.Never seen any fight or anyone getting stabbed.
In his address to the jury the prosecutor at trial, in the context of a long, detailed and powerful address, made the following comments about the applicant’s evidence.
In criticising the applicant for his failure to see any weapons, he said to the jury:[55]
[55] T2736/2-37.
… [The applicant] had his baseball bat, [JC] had his pole. These weren’t little things. [WH] had a tent peg of some sort, a long thing, not easy to hide. [JC] saw knives and, indeed, even [NW] saw a knife. Yet [the applicant], who describes walking 100, 150 m up the road, with a clear or unobstructed view of the back of the ute, apparently saw nothing. He didn’t see any weapons at all.
[NW] described seeing [JW] with a pool cue, she described seeing [BS] with a knife. [JC] described having a pole, that is, having a pole, he described [JW] with a pool cue, he described seeing [BB] with a knife, [BS] with a knife, and [WH] with a tent peg. So it seems everyone else was able to see weapons bar [the applicant].
Of course, it wasn’t just [JC] and [NW] who saw weapons. The Sudanese men saw them. They described Mr Akok being hit with a baseball bat right at the start of the incident. You can bear that in mind when assessing [JC’s] evidence.
Every single one of the Sudanese men who were present for part of this attack said that the attackers were armed with knives, baseball bats, or sticks of some sort, to a person; that is, to a person all of these Sudanese men described seeing that sort of thing.
The precise description of the weapons varied from witness to witness, but can there be any doubt that the vast or overwhelming majority of this group of men were in fact armed with weapons? As I mentioned, [JC] described that. He described that all happening at the boot and being handed around. [NW] saw the knife being held by [BS], she said inside the car.
Also, the prosecutor referred to a specific lie of the applicant’s when he said:[56]
On that point, an interesting example of a common plan, an agreement, being struck between a group of men arises from [the applicant’s] evidence. I suggest it was one of the lies he was telling, but it is an example nonetheless.
He said when he was standing with his baseball bat with this group who had nothing in their hands they all just ran off and there wasn’t a word said, that somehow or other there was a meeting of minds between the other young men and they all ran off to the clubrooms, leaving [the applicant] behind, so he marches off behind them, in their wake so to speak.
[56] T2738/33-2739/6.
There are further references to the prosecutor’s comments about the applicant’s evidence that he had not seen anything, with a clear inference that he has lied about that topic. The prosecution’s clear submission was that, when giving evidence about matters such as whether he saw what was happening or saw whether there were weapons in the hands of the group, the applicant was lying. At one stage the prosecutor said:[57]
… And he knew that members of the group were around with knives and poles, [JC] could see them, the Sudanese men could see them. He was lying about that, members of the jury. He lied to you on a whole range of important issues. He did tell the truth on some issues where there was, I suggest, a totally unassailable case against him.
He then, in his address, made a submission as to why the applicant would have lied on the topic of seeing weapons when he said:[58]
If his evidence had been ‘Look, I walked up to this car and I saw all these knives and poles and things being handed out and we all walked off’ that would be an inconvenient truth, I suggest, because of course the only logical inference that flows from that knowledge these men had knives and poles is that they were going over there to use them and use them in the context of one of the group having earlier been stabbed. Remember on his own evidence he was checking to see if that was so. So that would give him foresight of the possibility that grievous bodily harm might be inflicted as part of this plan to assault but it would go further, I suggest, because really the only logical conclusion is that we see a group of men walking off to a fight with knives that they are intending to use them. You don’t take them there unless you are planning on using them and if you are planning on using a knife the only possible logical reason for it is you are intending to inflict grievous bodily harm.
[57] T2881/31-37.
[58] T2882/14-32.
The prosecutor’s address was obviously directed at the submission that when the applicant said he saw no weapons and that he turned away and did not see any of the events that were the basis of the charges, that evidence was contrary to clear evidence presented by the prosecution and therefore amounted to lies. The prosecutor submitted to the jury that the reason for telling those lies was because, if he did at least see what happened and he did know of the presence of weapons, that could implicate him in a criminal enterprise. I make it clear that there is nothing improper or unfair about the prosecutor’s submissions to the jury. On the case that was presented by the prosecution, one would expect no less. However, the difficult problem is whether a direction was needed by the trial judge to the effect that the lies, if proved, could only go to the credibility of the applicant and not be relied upon as evidence of his guilt.
The secondary question is if such a direction was called for, whether its absence amounted to a miscarriage of justice to warrant that the verdict should be set aside.
Discussion
It is now established, since the decision of the High Court in Edwards,[59] that in a trial where a lie is relied upon to prove guilt, the jury should be given a clear direction by the trial judge precisely identifying the actual lie as well as the circumstances and events that indicate that it constitutes an admission against interest. The majority also held that the jury should be instructed that there may be reasons for telling the lie apart from the realisation of guilt and if that is a possible explanation for the lie, they cannot regard it as an admission.
[59] (1993) 178 CLR 193.
It was also emphasised by the majority that a lie can only constitute an admission against interest if it is concerned with some circumstance or event connected with the offence and if it was told by the accused in the circumstances in which the explanation for the lie is that he knew that the truth would implicate him or her in the offence.
In Zoneff,[60] it was held that where the telling of lies was not relied upon to found a submission that a person had lied out of a consciousness of guilt, it was unnecessary and undesirable that a direction of the kind referred to above in Edwards should be given. However, in Zoneff’s case it was held that in circumstances where lies were not led to show a consciousness of guilt, a lesser direction might, in some circumstances, be given to the effect that just because a person has lied to the jury, it must not be followed by a process of reasoning to the effect that it is evidence of guilt. In other words, a warning against using proven lies, in the way suggested in Edwards, as going to a consciousness of guilt when it is inappropriate to do so.
[60] (2000) 200 CLR 234.
It is that type of direction that the applicant says should have been given in this case because it was not made clear during the course of the trial or by direction whether the lies that were visited upon by the prosecution were relied upon to prove a consciousness of guilt or merely went to his credibility.
The matter was further considered by the High Court in Dhanhoa v The Queen,[61] when, in the joint judgment of Gleeson CJ and Hayne J, their Honours said:[62]
It is not necessary for a trial judge to give a direction, either of the kind referred to in Edwards, or of the kind referred to in Zoneff, every time it is suggested, in cross‑examination or argument, that something that an accused person has said, either in court or out of court, is untrue or otherwise reflects adversely on his or her reliability. Where the prosecution does not contend that a lie is evidence of guilt, then, unless the judge apprehends that there is a real danger that the jury may apply such a process of reasoning, as a general rule it is unnecessary and inappropriate to give an Edwards direction. Zoneff was said to be an unusual case, and the direction there proposed was said to be appropriate where there is a risk of misunderstanding about the significance of possible lies. The present was not such a case.
(Footnotes omitted)
[61] (2003) 217 CLR 1.
[62] (2003) 217 CLR 1 at [34].
In applying those principles, the respondent on appeal argues that a direction in the terms of Edwards was not appropriate because the prosecution were not relying upon the alleged lies as evidence going towards guilt. They also argue that there was no need for a direction as suggested in Zoneff. It is argued before this Court that even if a direction was appropriate, the failure to do so did not amount to a miscarriage of justice.
The respondent argues that, because the lies that were allegedly told by the applicant in evidence and, subsequently emphasised in cross-examination and the prosecutor’s address, were really no more than a denial of the charge and were proved to be lies by that very same evidence which was led to prove his guilt, any form of direction was therefore unnecessary. He also emphasises that no such direction was asked for by defence counsel at trial.
Mr Charman argues for the applicant that in this case, to use the reasoning in Dhanhoa’s case, there must have been a very real danger that the jury might apply a process of reasoning that the lie is evidence of guilt even though the prosecution did not wish it to be led for that purpose. Mr Charman argues that, because of the emphasis placed upon alleged lies, without a clear direction the jury might have easily reasoned that once it is proved that the applicant was not telling the truth on important issues such as whether he saw weapons or led the charge onto the oval, then they might reason that a finding of guilt would inexorably follow.
Another part of Mr Charman’s argument is that in the case against BS the trial judge gave a full Edwards direction concerning alleged out of court lies told to the police. There is no argument about the completeness and validity of that direction. Mr Charman argues that because there was a lies direction indicating consciousness of guilt in relation to one accused and there are powerful submissions about lies in relation to the applicant, there was a further need to advise the jury that the lies of the applicant, if proved, cannot be used as they were in the case against BS.
In my view, a direction of the type suggested in Zoneff’s case was not appropriate. When one looks at both the cross-examination and the prosecutor’s address, it is clear that the alleged lies went to the issue of the applicant’s guilt. Despite the comments by the prosecutor to the Judge in the absence of the jury that it was not the intended use to be made of those lies by the prosecution, nevertheless both his address and cross-examination indicate otherwise. That being so, the real issue to be decided is whether an Edwards type direction should have been given.
The application of that principle to the present case has caused me great concern. However, there is much force in the respondent’s argument that the lies alleged, and emphasised in the prosecutor’s address, were those very same facts proof of which the prosecution at trial relied upon to prove the charges. The proof presented at trial that the applicant told those lies was no more or less than proof of the circumstances to prove the charges. In my view, on the facts of this case, to suggest there might be a situation where the applicant has lied and therefore proof of those lies means he did see the weapons and he did lead the charge but at the same time would not be guilty of the offences would be fanciful. It is hard to imagine how on the facts of this case the applicant could have known of the presence of weapons, seen what was happening, led the charge and delivered the first blow, yet not be party to an extended joint enterprise as alleged.
I find, therefore, that the trial Judge has not erred on the facts of this case in not giving a direction about the use of lies in the sense referred to in Edwards and a lies direction in the sense of Zoneff’s case was inappropriate. However, the argument was significant and I would allow permission to appeal but dismiss that ground of appeal.
Conclusion

I would refuse permission to appeal on ground 2. I would allow permission to appeal on ground 1, but dismiss that ground of appeal. Consequently, I would dismiss the appeal against conviction.
Appeal against sentence
I have read the judgment of Sulan J on the appeal against sentence. I agree with his reasons as to why that appeal should be dismissed.
I would dismiss the appeal against sentence.