R v Heness - [2009] SASC 243

SUPREME COURT OF SOUTH AUSTRALIA
(Court of Criminal Appeal)
R v HENESS
[2009] SASC 243
Judgment of The Court of Criminal Appeal
(The Honourable Chief Justice Doyle, The Honourable Justice Bleby and The Honourable Justice Kelly)
19 August 2009
CRIMINAL LAW - APPEAL AND NEW TRIAL - PARTICULAR GROUNDS OF APPEAL - MISDIRECTION AND NON-DIRECTION - PARTICULAR CASES - WHERE APPEAL DISMISSED
Appellant acquitted of two counts of rape, but convicted of two counts of unlawful sexual intercourse charged as alternatives - whether direction given by Judge in relation to use by the jury of a finding that the appellant fled the scene erroneous - whether direction given by Judge in relation to the use by the jury of a finding that accused untruthful in evidence or in interview with police erroneous - whether Judge erred in failing to give a 'circumstantial evidence' direction, a direction on how the jury could use expert forensic evidence, or a direction to the jury that they could use a rejection of the evidence of the complainant in relation to counts on which they acquitted the appellant to assess the complainant's evidence on other counts.
HELD: direction given by Judge in relation to use which could be made of flight not erroneous - direction given in relation to use of a finding that the appellant was untruthful to police or in evidence not erroneous - Judge not in error in failing to give directions sought.

CRIMINAL LAW - EVIDENCE - COMMENT ON FAILURE TO GIVE EVIDENCE - BY JUDGE
CRIMINAL LAW - EVIDENCE - COMMENT ON FAILURE TO GIVE EVIDENCE - BY PROSECUTION
Appellant denied version of events complainant gave in evidence and gave evidence that complainant had attempted to blackmail the appellant by threatening to make false allegations of sexual impropriety against him - appellant participated in police interview after arrest but did not mention complainant's threats - prosecutor cross-examined appellant as to why he did not tell the police when interviewed after his arrest about the complainant's threats - appellant gave evidence that he was in a state of shock after his arrest - prosecutor made the point to the jury in closing that the appellant did not tell the police about the complainant's threats - in his summing up, the Judge referred to the failure of the accused to tell the police about the threats made by the complainant - whether comments of prosecutor and Judge infringed appellant's right to remain silent when questioned by the police.
HELD: Judge erred in failing to remind the jury about the appellant's state of shock when interviewed by police, that the appellant was under no obligation to speak to the police, and that no inference adverse to the appellant should be drawn on the basis that he first raised the threats at trial - comments of prosecutor infringed appellant's right to remain silent when questioned by police - effect of errors minor - jury would inevitably have reached the same verdict even if the errors had not been made - no substantial miscarriage of justice - appeal dismissed.
Criminal Law Consolidation Act 1935 (SA) s 49(3), referred to.
Petty v The Queen (1991) 173 CLR 95; Glennon v The Queen (1993-1994) 179 CLR 1; R v Hare (2007) 252 LSJS 170, applied.
Shepherd v The Queen (1990) 170 CLR 573; R v Karger (2002) 83 SASR 135, discussed.
Edwards v The Queen (1993) 178 CLR 193; R v Burns (2009) 103 SASR 514, considered.

R v HENESS
[2009] SASC 243
Court of Criminal Appeal: Doyle CJ, Bleby and Kelly JJ

DOYLE CJ: After a trial in the District Court, a jury found Mr Heness guilty of two counts of unlawful sexual intercourse. The victim of the offences (“Ms R”) was under 17 years of age at the relevant time, and the offences were against s 49(3) of the Criminal Law Consolidation Act 1935 (SA). The jury found Mr Heness not guilty of two counts of rape. The conduct the subject of all four charges comprised Mr Heness performing two acts of cunnilingus on Ms R. The two counts of unlawful sexual intercourse were charged as alternatives to the two counts of rape. Mr Heness appeals by leave against his convictions.
The grounds of appeal attack a number of aspects of the Judge’s summing up to the jury.
First, they attack a direction by the Judge in relation to a submission by the prosecutor that Mr Heness had fled from the house where the offences were allegedly committed upon the arrival of the police, because of a consciousness of guilt on his part.
Second, there is a complaint about the Judge’s failure to give a direction about the use of circumstantial evidence.
Third, the appellant complains about the directions given by the Judge in relation to certain scientific evidence, and about the Judge’s failure to explain to the jury how they could use that evidence.
Fourth, there is a complaint about the failure of the Judge to direct the jury that a verdict of acquittal on one count might damage the credibility of Ms R in relation to other counts.
Fifth, there is a complaint about the direction that the Judge gave relating to a submission by the prosecutor about the failure by Mr Heness to tell the police (when interviewed on the night of the alleged offence) that Ms R threatened to make a false accusation against Mr Heness.
Finally, there is a complaint about the direction that the Judge gave to the jury about how they might use a conclusion on their part that Mr Heness had told lies to the police or in his evidence.
Background
Both Ms R and Mr Heness gave evidence at the trial. The accounts given by Mr Heness and Ms R of the events in question differ greatly.
I begin with the evidence of Ms R.
Ms R was 15 years of age at the time of the alleged offences. She was still attending high school. Ms R worked part time in a restaurant in a country town about 130 km from Adelaide. Mr Heness was the partner of the owner of the restaurant (“Ms K”) who lived in a house not far from the restaurant. Mr Heness had travelled from Sydney to see Ms K, and was staying with Ms K at her house.
During one of her shifts at the restaurant, Ms R was asked by either Mr Heness or Ms K to clean the house. She agreed to do so. Ms R rode to the house on her bicycle after school on the day in question. She left her bicycle in the front yard of the house and rang the doorbell.
Ms R gave evidence that Mr Heness answered the door, and led her into the lounge room, where Ms K was watching television. Ms K asked her if she would like something to eat, and if so, invited her to help herself to the food which was cooking on the stove in the kitchen, which was adjacent to the lounge room. Ms R noticed that sitting on the kitchen bench were two wine glasses, each of which was half-filled with red wine and covered with cling wrap, and a wine bottle, half-filled with red wine. Ms R tended to the food on the stove. Before the food had finished cooking, Mr Heness and Ms K left the house to go to the restaurant. Ms R ate the food and started to mop the lounge room.
Shortly after Ms R started to clean the house, Mr Heness returned to the house by himself. He gave evidence that he left the restaurant approximately half an hour after he arrived there because, when he went to the restaurant, he began to set up the bar but other staff soon arrived, and his help was no longer needed.
After arriving back at the house, Mr Heness showed Ms R the rest of the house. He told her that he wanted her to wash all of the windowsills. Mr Heness left Ms R, and then returned shortly after she had started to clean the windowsills. He was holding two glasses of wine. Mr Heness gave one of the glasses to Ms R and encouraged her to drink the wine. Not wanting to be rude to her employer’s partner, she took one of the glasses and drank some of the wine. Mr Heness also drank wine from his glass. Ms R continued to clean the house, taking the wine with her as she moved between the rooms. She had a few sips of the wine as she did this.
She had not drunk any wine before, and while she was mopping the floor of one of the rooms, she began to feel sick. She left the room she was cleaning to go to the bathroom. She vomited in the toilet. She apologised to Mr Heness, who was standing at the door to the toilet. Mr Heness dabbed her mouth with a handtowel to clean the vomit from her face. She felt uncomfortable about Mr Heness being so close to her.
Ms R left the bathroom and started cleaning the lobby. Mr Heness entered the lobby with a glass of wine, which he encouraged her to drink. She sipped some of the wine from the glass. While Ms R was cleaning, Mr Heness asked her if she had a boyfriend. She told him that she had, but that she lost interest in boys quickly, and that she liked another boy at school.
Mr Heness asked Ms R to refill her wineglass and that of Mr Heness. She took the glasses and refilled them, giving one to Mr Heness. When Mr Heness left the room, Ms R poured the contents of her glass back into the bottle, leaving only a little in the bottom of her glass.
Ms R then began to mop the kitchen. She gave evidence that she began to feel the effects of the alcohol that she had consumed. Mr Heness watched her mop the kitchen. He told her that she was very attractive. Ms R continued to mop the kitchen, ignoring what Mr Heness said. Mr Heness then rubbed his hand on the small of her back. As he did so, he told her that she was very attractive, and that he was attracted to her. Ms R did not respond to what Mr Heness was saying to her, and continued to clean. Mr Heness then took Ms R in his arms and kissed her. It took a while for Ms R to realise what was happening to her. She gave evidence that while Mr Heness was kissing her, her head was “blurry” and that she had no control over what she was doing. The thought of an older man kissing a girl of her age made her “freak out”. It appears that even at this stage, she did not say or do anything to resist as she was shocked at what was happening.
Mr Heness picked Ms R up and carried her to the master bedroom. He put her on the edge of the bed. She still said nothing to Mr Heness. She was positioned so that her legs were hanging over the edge of the bed. Mr Heness told Ms R that she was very attractive and that he was attracted to her. Ms R gave evidence that she thought she then said to Mr Heness: “No. Think of [Ms K]. No” or words to that effect.
Ms R said when cross-examined that Mr Heness never made any threats to her, and that all he was saying to her during the incident was that she was very attractive and that he found her very attractive.
Mr Heness then unbuttoned the jeans that Ms R was wearing, and undid the zip of her jeans. He pulled her jeans and underwear off. Ms R was too scared to make any attempt to resist Mr Heness pulling off her jeans and underwear. He then put his tongue in her vagina and began to lick it. After Mr Heness did this, Ms R tried to get away from him by pushing herself away from the edge of the bed, towards the head of the bed. Mr Heness stopped licking her vagina, and took his pants and underpants off. Ms R said “No”. She said in cross-examination that at that point, she did not try to get off the bed. Ms R retreated further up the bed, but reached a point at which she could go no further as she was pressed up against the bed frame. Mr Heness crawled up towards Ms R, and she tried to push him away by pushing with her hands against his chest. Mr Heness kissed her, but she did not kiss him back. As he did so, he held her hands above her head with one hand, and put his other hand under her shirt and bra and felt one of her breasts. During this time, Ms R said several times to Mr Heness: “No. Think of [Ms K]. No”. Ms R could not remember which breast Mr Heness felt. She could feel Mr Heness’ penis pressed against her leg. Mr Heness again began to lick her vagina. Ms R estimated that he did so for around five minutes. She did not say anything to Mr Heness while he licked her vagina, because she was scared.
Mr Heness stopped licking Ms R’s vagina when the doorbell rang. He left the bed and put his pants and underpants back on and answered the door. Ms R got off the bed and put her jeans and underpants back on. She had difficulty doing so, because of the effect of the alcohol.
Ms R returned to the kitchen and finished mopping the floor, which she said took only a few seconds. She took $20, which was sitting on the kitchen bench. She wrote a note to Ms K in a notebook which was sitting on the kitchen bench, telling her that she had taken the $20 and that she would be unable to work at the restaurant one day that weekend. Defence counsel cross-examined Ms R as to why, given that she had just been raped, she did not immediately leave the house after putting her jeans back on. She said that she felt obliged to finish the job. She left the house and retrieved her bicycle, which had been moved from the place at which she put it when she arrived at the house. As she rode down the driveway, she saw Mr Heness talking to Ms K in the front yard. Ms R did not say anything to either Mr Heness or Ms K.
Ms R rode straight to the restaurant, as she knew that a friend of hers would be working there at the time. When she got to the restaurant, she told the friend that Mr Heness had raped her. She left the restaurant when she heard what she thought were the voices of Mr Heness and Ms K. She went to the local police station, where she collapsed at the front door, which was locked. She hit the front door repeatedly, and cried out for help. Constable Frick, who was at the station at the time, opened the front door upon hearing the noise outside.
I now turn to Mr Heness’ evidence.
Mr Heness gave evidence that when he returned to the house from the restaurant, Ms R had a wine glass in her hand and was drinking from it. He said to Ms R that she should not be drinking wine as she was there to clean the house. On Mr Heness’ account, she replied by telling Mr Heness that it was none of his business, and that she was old enough to drink. She then told Mr Heness that she wanted to be paid more than $20 to clean the house. Mr Heness said to her that payment was a matter for her and Ms K. Ms R repeated her request for more money, and Mr Heness repeated that he would not pay her more money. Ms R then said that unless Mr Heness paid her more money, she would tell Ms K that Mr Heness had touched her. At that point, Mr Heness said to Ms R that she had better start cleaning.
After tipping the remaining contents of the wine glasses into the sink, and cleaning the dishes, Mr Heness sat down in the lounge room to watch television. Ms R returned and repeated that she would not clean the house for $20. Mr Heness repeated that the arrangement was between her and Ms K. Ms R again threatened Mr Heness that she would tell Ms K that he had touched her. At this point, Mr Heness said to her: “I think you had better leave”.
Mr Heness remained seated in the lounge. Shortly after he spoke to her, he heard Ms R vomiting. He went to the bathroom and saw her on her hands and knees, vomiting into the toilet. Mr Heness gave her a towel with which to wipe her face. Mr Heness denied that he touched Ms R with the towel.
Mr Heness gave evidence that he went outside to have a cigarette. While he was outside, he saw Ms R leave the house. Based on his observations of Ms R as she left the house, he thought that she was affected by alcohol. After Mr Heness finished his cigarette, he went back inside the house, changed his clothes, and then walked to a nearby hotel. He had two or three alcoholic drinks while he was at the hotel. After several hours at the hotel, he returned home. While he was walking back home Mr Heness received a telephone call from the police, asking him where he was. He told them, and shortly afterwards, the police arrived and apprehended him.
Mr Heness was later taken to the police station and participated in an interview with police. The interview was recorded on video and the video was tendered in evidence.
Ground 1 and Ground 2
The police investigation into the matter began about 6.15 pm on the day in question, when Constable Frick found Ms R at the front door of the local police station in a distressed state. Detective Cardwell drove from another town to take charge of the investigation. Shortly after 9.00 pm, about 9.10 pm, he drove to Ms K’s house, looking for Mr Heness. The first thing that he did was to search the house. No-one was there. He said that as soon as he walked inside “… there was a distinct smell of cigarette smoke”. In answer to a leading question (Did the smoke appear to be fresh smoke or stale smoke?) he said that it was fresh. He said that he smelled it as soon as he was inside the house.
Mr Heness was a regular smoker. Ms K did not smoke. Ms K said in evidence that she entered the house shortly after the search was complete, but that she smelt no smoke. The police then telephoned Mr Heness on his mobile telephone. He answered the telephone, and told the police where he was, which was not far from the house. The police immediately drove to where he was, took him back to the house, and then arrested him.
There was no objection to the evidence from Detective Cardwell about the smoke.
Mr Heness gave evidence (outlined above) about his movements on the afternoon and evening in question. On his evidence he must have left the house for the last time about 5.45 pm, and must have spent about three hours at the local hotel to which he said he walked.
In cross-examining Mr Heness, the prosecutor checked with him the time spent at the hotel, and what he was doing there, possibly laying a basis for a submission that he could have produced a witness to support his evidence. The prosecutor did not put to him that he had left the house only shortly before the police entered the house, nor did she put to him that he had left the house (then or earlier) because he knew that he had committed an offence and he wanted to avoid the police.
In her address to the jury the prosecutor referred to the evidence of Detective Cardwell about the fresh smoke, and put to the jury that if they found that Mr Heness had been at the house, and had “scarpered” when the police arrived, they might conclude that “… he runs off because he knows what he has done.” She put to the jury that his evidence about going to the local hotel was a lie.
In the circumstances, it was necessary for the Judge to give the jury a direction about this evidence.
The Judge reminded the jury about the evidence of Detective Cardwell, and about the submission that they should infer that Mr Heness was at the house as the police arrived, and left the house because they arrived. The Judge then said:
Evidence that indicates a consciousness of guilt on the part of an accused person may be some evidence of his guilt. Before you can use the evidence in the present case in that way, you must be satisfied that the accused did, in fact, flee, and that his action in doing so is not explicable on some basis other than flight. I direct you that you must be satisfied of these matters beyond reasonable doubt. You must also be satisfied that his flight was referable in his mind to the offences with which he is charged, being unlawful sexual acts on [Ms R].
Sometimes flight is explicable by a desire to escape the consequences of some other act or acts, or has some other explanation unrelated to the offence charged. If, however, you are satisfied about those matters to which I refer and, you may, if you see fit, treat the flight as some indication of a consciousness on the part of the accused of his guilt of the offences charged and, therefore, as some evidence of his guilt.
The Judge then explained to the jury that there could be explanations for flight that in no way suggested a consciousness of guilt or of wrongdoing.

Mr Cuthbertson QC, counsel on appeal for Mr Heness, did not argue that Detective Cardwell’s evidence about the smell of fresh smoke was inadmissible. As I noted earlier, there was no objection to the evidence, and no later application to have it excluded. Trial counsel raised no complaint about the submission by the prosecutor.
Mr Cuthbertson submits that the Judge should have pointed out to the jury that Detective Cardwell’s evidence was significant only if by “fresh smoke” he meant smoke that was a minute or so old. I have no doubt that the jury would have understood this.
Mr Cuthbertson also submits that the Judge’s direction was circular, because he told the jury to consider whether, if Mr Heness fled, “… his action in doing so is not explicable on some basis other than flight”. At first sight, there is some force in this point. In fairness to the Judge, the direction follows a standard form of direction used in this State. But I am satisfied that the jury would have understood this part of the direction as identifying the question of whether Mr Heness left the scene to avoid the police or whether Mr Heness had left the house for another and innocent reason. If, as he claimed, he had walked to the local hotel for a few drinks about 5.30 pm, one could not say that he fled the scene, and one would obviously say that his departure from the house was explicable on a basis other than flight. As the Judge went on to point out to the jury, even if the jury thought that he left the house to get away from the police, they still had to be satisfied that the reason for him leaving the house was a realisation or consciousness of guilt, and not something such as a fear that he might be wrongly accused of a crime.
Taken as a whole, as it must be, the direction was not misleading, even though when split into parts it might appear to be misleading.
Nor do I agree that the evidence was incapable of leading to the conclusion that Mr Heness had left the house, as the police arrived, to avoid the police, and because he had committed the offences and at the least wanted time to think about what he would do.
However, there is some force in a further criticism that Mr Cuthbertson made.
The first issue for the jury was whether Mr Heness had left the house just as the police arrived, and because they arrived. A decision to that effect involved a rejection of his evidence about going to the hotel some three hours earlier. As the Judge said:
The accused said he was not there when police arrived. There is no direct evidence that the accused was there or that he left because police arrived. You are asked to infer these matters as a result of Detective Cardwell’s evidence about smelling fresh smoke when he arrived and what is said to be the accused’s unconvincing evidence about the [local hotel]. As I have said, the accused said he was not there at the house …, he was in the [local hotel].
While the Judge might have emphasised this issue a little more, the passage quoted brings it to the jury’s attention. I agree also that the Judge might well have pointed out that it was not incumbent on Mr Heness to produce evidence that he had been at the hotel, and for that matter that it was equally open to the police to have looked for witnesses who might say that he was not at the hotel. But, once again, that is a matter of balance. The Judge might have also emphasised that the jury would have to be satisfied that Detective Cardwell’s evidence about fresh smoke was reliable, meaning not just that Detective Cardwell was telling the truth, but that his assessment of the freshness of the smoke was reliable. These are matters of judgment and balance, and in my opinion it cannot be said that the Judge’s failure to emphasise these points for the jury gave rise to a risk of a miscarriage of justice.
In the course of his submissions Mr Cuthbertson argued that in R v Burns [2009] SASC 105; (2009) 103 SASR 514 this Court had criticised a direction in similar terms. I do not accept that submission. The criticism of the Court was directed to a different aspect of the relevant direction.
Ground 3, Ground 4 and Ground 5
The Judge who dealt with the application for permission to appeal, and who granted permission to appeal on most of the grounds, referred to this Court the application for permission to appeal on grounds 3 and 4.
All three grounds arise from certain expert scientific evidence led by the prosecutor. It is convenient to summarise that evidence before summarising the grounds of appeal, and considering those grounds.
Two forensic scientists, Mr Silenieks and Dr Lee, gave evidence relating to the presence of amylase and of DNA on Ms R and on her clothes. Amylase is a substance which is found in saliva and, in lesser amounts, in other bodily secretions including faeces and breast milk.
Mr Silenieks gave evidence as to the tests which he conducted on Ms R and on her clothes for the presence of amylase. The tests included the taking of a labial swab. The tests gave a strong reaction indicating the presence of amylase on Ms R’s bra and underpants, and on the material obtained by the labial swab. There was no evidence of any faecal material or breast milk in the bra or on the labial swab. Mr Silenieks was of the opinion that the tests indicated that amylase was present in Ms R’s bra and underpants and on the labial swab. On that basis, he was of the opinion that saliva was present.
Dr Lee also expressed the opinion that, given the strength of the reactions obtained, amylase was present on Ms R’s bra, underpants and the labial swab, and that it was attributable to saliva.
Dr Lee gave evidence about testing for DNA on items of clothing obtained from Ms R and from Mr Heness, and on material obtained from each of them.
Dr Lee said that a mixed DNA profile was obtained from Ms R’s bra. Neither Ms R nor Mr Heness could be excluded as a contributor to the DNA that was recovered. She went on to give evidence of a “likelihood ratio”. She said that the likelihood ratio expressed the ratio of two alternative explanations for the findings that she had made.
Because of the match with Ms R’s DNA, and because the samples came from her clothing, for the purposes of each alternative explanation she assumed that DNA from Ms R was present. The possibilities that she then considered were that the sources of the DNA were Ms R and Mr Heness, and alternatively that the sources of the DNA were Ms R and an unknown male who was unrelated to Mr Heness.
She said that the profile that she obtained was more than one billion times more likely to match a mixture of DNA from Ms R and Mr Heness than a mixture of DNA from Ms R and an unknown male who was unrelated to Mr Heness.
Dr Lee said that it was highly unlikely that the findings could be explicable on the basis of contamination or error.
On the other hand, she acknowledged that the manner in which the items of clothing were handled meant that the possibility of contamination could not be excluded. Nevertheless, she was of the opinion that the result was not attributable to contamination or error.
On my reading of the evidence, the cross-examination by defence counsel did not involve a direct challenge to her evidence about the probability ratio, but focussed on the possibility of contamination or error as an explanation.
In her address to the jury the prosecutor referred to this body of evidence as circumstantial evidence, and suggested to the jury that it corroborated the version of events given by Ms R.
The address by defence counsel emphasised the failure to find amylase or DNA of a person other than Ms R in places where, on the prosecution evidence, one might expect to have found these substances. Counsel also raised the possibility of contamination, and suggested that the sampling or testing that took place was not as extensive as it should have been. He also made the point that, on the prosecution case, there was no obvious explanation for the finding of saliva in Ms R’s bra. He suggested that if there was saliva present, it was the saliva of someone else, and was deposited well before the alleged acts were said to have taken place.
The Judge summarised the evidence given by Mr Silenieks by way of evidence in chief. The summary appears to me to be adequate. However, as to the cross-examination, he merely reminded the jury that they must have regard to the cross-examination. The Judge also summarised the evidence of Dr Lee. That summary also appears to me to be a fair summary. In her case, he also summarised the effect of the cross-examination.
In particular, the Judge reminded the jury of the evidence given by Dr Lee about the likelihood ratio. He did not offer any comment or suggestion to the jury that might guide the manner in which they used that evidence. But nor was Dr Lee asked to do that in her evidence.
Ground 3 complains that the Judge should have given the jury a direction relating to the circumstantial scientific evidence in the form usually used when a direction about circumstantial evidence is called for. That is a direction that if the jury relied upon circumstantial evidence as proof of guilt, then, as Dawson J said in Shepherd v The Queen [1990] HCA 56; (1990) 170 CLR 573 at 578:
… guilt should not only be a rational inference but should be the only rational inference that could be drawn from the circumstances …
It is convenient here to set out what Dawson J said in the immediately following passage at 578:
Whilst a direction of that kind is customarily given in cases turning upon circumstantial evidence, it is no more than an amplification of the rule that the prosecution must prove its case beyond reasonable doubt. In many, if not most, cases involving substantial circumstantial evidence, it will be a helpful direction. In other cases, particularly where the amount of circumstantial evidence involved is slight, a direction in those terms may be confusing rather than helpful. Sometimes such a direction may be necessary to enable the jury to go about their task properly. But there is no invariable rule of practice, let alone rule of law, that the direction should be given in every case involving circumstantial evidence. It will be for the trial judge in the first instance to determine whether it should be given. …
In the present case the Judge gave no such direction.
Mr Cuthbertson submits that the jury could not have accepted Ms R’s evidence indicating that she did not consent to the acts of cunnilingus. He submits that the jury must have attached great, probably decisive, importance to the scientific evidence.
Accordingly, he submits, a direction of the kind suggested was required.
Ground 4 complains that the Judge should have directed the jury that if the only evidence upon which they relied to find Mr Heness guilty was the evidence of DNA and evidence of the presence of amylase, they could not make a finding of guilt unless satisfied beyond reasonable doubt first, that amylase from saliva was found on the bra and underpants of Ms R; second, that the saliva came from Mr Heness; third, that the saliva was deposited during the acts described by Ms R; fourth, that there was no other reasonable hypothesis for the presence of saliva consistent with innocence.
Ground 5 complains that the Judge should have given the jury assistance on how to use the evidence as to the presence of amylase and the evidence relating to DNA.
I do not agree that the acquittal on the two counts of rape indicates that the jury did not accept Ms R’s evidence generally, or in relation to lack of consent. The jury might not have been satisfied beyond reasonable doubt that Mr Heness knew that Ms R was not consenting, or that he was reckless as to that fact. Her evidence, summarised above, is open to the interpretation that it might not have been apparent to Mr Heness that she was not consenting. Her evidence discloses some uncertainty about what she said, and the jury might have thought that while she was not consenting, what she said and did was not sufficient to bring that home to Mr Heness.
This is not a case in which a finding that saliva was present on the clothing of Ms R, or a finding that DNA from Mr Heness was found on the clothing of Ms R, was an essential step towards proof of guilt. The scientific evidence was put before the jury as significant support for Ms R’s evidence, if accepted.
The evidence of Ms R was the linchpin of the prosecution case. It is unrealistic to suggest that the jury might have rejected her evidence and yet convicted Mr Heness on the basis of the scientific evidence alone. As I have said, that scientific evidence was not an essential step towards proof of guilt. Accordingly, in my opinion it was not essential for the Judge to give the jury a direction of the kind summarised by Dawson J in the passage above. It is important to bear in mind, as Dawson J said, that such a direction is “… no more than an amplification of the rule that the prosecution must prove its case beyond reasonable doubt”.
The trial Judge had to decide, having regard to the state of the evidence and to the manner in which the case was presented, whether or not a direction dealing specifically with circumstantial evidence should be given. It is a matter on which minds might legitimately differ in a case like this.
Giving the direction would have added to the length of the summing up, a matter always to be considered. Once the Judge embarked upon the direction, it would have been necessary to grapple with the facts. Giving the direction had the potential to elevate the significance of the circumstantial evidence in comparison with the evidence of Ms R. That also is a matter to be considered.
In my opinion it was open to the trial Judge to take the approach that he did. His failure to give the suggested direction does not mean that the summing up is inadequate as a whole.
Nor was it necessary for the Judge to give the particular direction suggested as part of ground 4. To give that direction would be to embark upon the longer direction as to the use that could be made of circumstantial evidence, and as to the particular circumstantial evidence in this case. There are some particular difficulties with the directions suggested by this ground. The jury would not have found that the saliva, if present, came from Mr Heness unless it accepted the evidence as to DNA as establishing that. I have difficulty understanding how the jury could find that the saliva was deposited during acts described by Ms R without relying upon her evidence. However, the ultimate answer to this submission is that the case was never put to the jury on the basis that the evidence as to saliva and DNA was a sufficient basis for a conviction. It is inconceivable that the jury would have reasoned that way, having regard to the manner in which the case was conducted.
As to ground 5, having regard to the manner in which the case was conducted, the failure of the Judge to give the jury guidance on the use of the scientific evidence does not give rise to an unbalanced summing up, or to a miscarriage of justice.
If the jury accepted the evidence as to the presence of amylase, and as to the presence of saliva, they needed no help with the use that might be made of that intermediate conclusion. The evidence clearly provided some support for the evidence of Ms R, and also a basis for a finding from Dr Lee’s evidence (if accepted), that DNA from Mr Heness was present on the clothing of Ms R.
The attack on Mr Sileniek’s evidence as to the presence of amylase was rather diffuse, with a focus on the possibility of contamination, on testing methods, and on what one might expect to have found (but was not found) having regard to Ms R’s evidence.
It would have been appropriate to remind the jury of the main points made by defence counsel in the cross-examination of Mr Silenieks. But it is not essential for a judge to do this in all cases. And defence counsel had addressed the jury on these very matters. I cannot say that it was essential for the Judge to remind the jury of this cross-examination to ensure a fair and balanced summing up.
The Judge fairly summarised the examination in chief and cross-examination of Dr Lee. Once again, the attack on her evidence in cross-examination was rather diffuse. In R v Karger [2002] SASC 294; (2002) 83 SASR 135 I grappled with the topic of statistical evidence relating to DNA. In the course of my reasons I said at [16]-[18]:
[16]The statistical evidence interpreting the significance of the DNA match is not evidence of the probability that the appellant was the source of the incriminating DNA. To so regard it would be to make an error. However, the statistical evidence interpreting the DNA match is expert evidence that the jury could use in deciding whether it was satisfied beyond reasonable doubt that the appellant was the source of the incriminating DNA. The statistical evidence is undeniably strong evidence pointing to a conclusion that the accused was the source of the incriminating DNA, but is not direct evidence of that fact. And, as is obvious, the statistical evidence must be considered in the light of other evidence in the case.
[17]It is necessary for the jury to appreciate these points if they are to make proper use of the statistical evidence.
[18]It is also necessary to avoid the so-called prosecutor's fallacy, if the evidence is to be properly used. Reasoning in the form of that fallacy involves, as I understand it, both the error just identified and an approach which would treat the statistical evidence as proof of guilt, rather than as evidence from which a conclusion on a matter which might in turn point to guilt could be reached.
Mr Cuthbertson rightly points out that the Judge made no attempt to identify any issues for the jury arising from the evidence relating to amylase and to DNA, nor did he warn the jury about either of the matters identified by me in my reasons in Karger. As I have already mentioned, I do not consider that any particular assistance needed to be given to the jury in relation to the evidence relating to amylase, and as to the significance of a finding that saliva was present. Nor is this a case in which I consider that there was any risk that the jury would treat the evidence as to the likelihood ratio as proof of guilt in itself. That is so because, as I have already explained, the linchpin of the case was the evidence of Ms R, and the scientific evidence was presented as evidence supporting her evidence. The case was not really a case about the likelihood ratio, or about the intricacies of DNA evidence. If the suggestions of contamination and testing error and the other matters raised with Dr Lee did not trouble the jury, then Dr Lee’s evidence provided very strong support for a conclusion that DNA from Mr Heness was present on the clothing of Ms R and so provided strong support for her evidence generally.
I would grant permission to appeal on grounds 3 and 4, but would reject each of grounds 3, 4 and 5.
Ground 6
As I have said, Mr Cuthbertson submitted that the jury’s verdicts demonstrated that the jury, at least on the two counts of rape, had reservations about the credibility of Ms R. He submitted that the jury should have been directed that, if they were to acquit Mr Heness of one or more counts, they could take the acquittal into account when assessing the evidence that Ms R gave in relation to the other counts. He submitted that the effect of the Judge’s directions precluded the jury from taking into account reservations that they had about Ms R’s evidence in relation to the counts of which Mr Heness was acquitted when assessing her evidence on the other counts.
The relevant part of the Judge’s summing up is as follows:
Each of these four counts, because each charge is a separate offence, must be treated separately upon its merits. …
Where an accused is charged with and tried for more than one count it does not follow simply because you may be satisfied of his guilt of one offence that he is also guilty of the other offence charged. The charges do not stand or fall together.
The accused is entitled, as is the Crown, to a separate consideration by you of each of the crimes charged.
Not only must each count be considered separately by you, but also must be done so in the light of the evidence that applies to it. You must ask yourself as to each count separately, subject to what I have said about the alternative counts, ‘Am I satisfied beyond reasonable doubt by the evidence that applies to that count separately that the accused is guilty of that crime?’ If the answer to that question is ‘Yes’ then you will find him guilty of that count. If the answer to that question is ‘No’ then, of course, you will find him not guilty of that count.
If separate charges are tried together on the one information, as in this case, it becomes necessary to take special care to see that the method by which the guilt of the accused may be established on any one count is by considering the evidence as it refers to each count separately. All of the evidence you have heard is relevant to each separate count, but you must consider it separately when you are considering your verdict on each of the counts. You cannot, however, reason that just because you might be satisfied that the Crown has proved the first or second count, for example, that the accused must, therefore, be guilty of the third or fourth count. You cannot reason in that way. You have to look at all the evidence separately in relation to each count.

As far as it goes, the Judge’s direction to the jury is correct in law, and is appropriate to the case.
However, Mr Cuthbertson correctly submits that if the jury had cause to doubt Ms R’s credibility or reliability on one count, that might affect their assessment of her evidence generally, or in relation to other counts. That is a matter of common sense.
Mr Cuthbertson submits that a direction to that effect should have been given to the jury. Failure to give a direction to that effect will not necessarily give rise to a miscarriage of justice. There is no general rule that a jury must be given such a direction. Whether the failure to do so gives rise to a miscarriage of justice will depend on the circumstances of the case. As Vanstone J said in R v Hare [2007] SASC 427; (2007) 252 LSJS 170:
[20]There is no general rule that requires the direction as contended for by counsel. That is, there is no obligation upon a trial judge dealing with sexual charges resting on the evidence of a single complainant to direct the jury that any doubt which it entertains in relation to proof of one count must be carried into its consideration of other counts …
[21]In a particular case such a warning might be necessary to avoid a perceptible risk of miscarriage of justice: Longman v The Queen (1989) 168 CLR 79 at 86 per Brennan, Dawson and Toohey JJ and at 95 per Deane J. Juries are perfectly capable in the great majority of cases, where the significance of any infirmity in a complainant’s evidence is obvious, to bring that infirmity to account, in relation to other charges, to the extent that it is necessary or appropriate, and to do so without need of any specific direction. That is part and parcel of the task which juries constantly undertake in evaluating the evidence of witnesses.
[22]It is undesirable to burden juries with unnecessary directions. That is particularly so where such a direction may introduce an imbalance which would need to be redressed. Because just as an infirmity could adversely affect judgement of credibility as a whole, so an acceptance of a complainant’s account of a disputed event (and a rejection of the version of an accused person) could flow through to other counts in a way which assisted the prosecution case. If a direction as sought upon this appeal is to be given, then it raises the question of whether a counterbalancing direction would also be required.
Mr Cuthbertson further submits that the Judge’s direction was likely to deflect the jury from using evidence on one count in relation to another count, and so from taking into account a lack of credibility or reliability on one count when considering another count. In other words, he submits that not only has the Judge failed to give a direction which the Judge should have given, but that the direction given would have pointed the jury in the wrong direction.
I do not accept that submission. The Judge told the jury that all of the evidence was relevant to each count. Although he told the jury to consider each count separately, I do not agree that there is any risk from what the Judge said that the jury would have been deflected from taking into account any lack of credibility or reliability that they thought existed.
That leaves the question of whether, having regard to the directions as a whole, there is a risk of a miscarriage of justice. In my opinion there is not. It cannot be said that the direction for which Mr Cuthbertson argues had to be given. First, as I have already said, the effect of the direction is something that I would expect the jury to understand in any event. Second, the primary issue raised by the defence was whether there had been any acts of sexual intercourse at all. There may have been room for argument on Ms R’s evidence as to whether she consented or whether Mr Heness knew that she was not consenting to each individual act of intercourse, such as to allow for differing verdicts on the charges of rape. But those aspects were irrelevant to the charges of which Mr Heness was convicted. As to the acts of intercourse, if Ms R were to be believed, there were two acts. If her evidence was to be rejected there were none. The intermediate possibility of one act was never raised as an issue. Third, while the credibility of Ms R was at the forefront of the prosecution case, there was other evidence that was capable of providing substantial support for her evidence. While there is no way of knowing the reason why the jury acquitted on the two counts of rape, the acquittals do not necessarily reflect adversely on the credibility or reliability of Ms R. As I have previously noted, the acquittal on those counts may merely indicate that the jury were not satisfied beyond reasonable doubt that Mr Heness knew that Ms R was not consenting.
I am not persuaded that there is a risk of a miscarriage of justice.
Ground 7, Ground 8 and Ground 9
These grounds are linked, and it is convenient to consider them together.
Ground eight relates to comments made by the prosecutor in her address to the jury which related to the failure of Mr Heness to tell the police during his recorded interview that Ms R had threatened to tell Ms K that he had touched Ms R unless Mr Heness paid her more money. Ground seven complains of comments made by the Judge on the same topic in his summing up.
I have summarised the evidence given by Mr Heness of the threats made by Ms R above. As I have said, Mr Heness participated in an interview with the police after his arrest on the day of the offences, a video tape of which was tendered in evidence. The interview began at 10.45 pm. During that interview, Mr Heness did not make any reference to Ms R threatening him in the manner he attributed to her in his evidence. At the end of the interview, Mr Heness was asked: “Anything else you wish to add?” to which Mr Heness replied: “Nah.”
In cross-examination, Mr Heness was asked at some length why he had not raised the threats with the police when they interviewed him shortly after his arrest. Given the length of the cross-examination on the point, I do not propose to set it out in full. It suffices to say that Mr Heness conceded that he had not told the police that Ms R had threatened him. The prosecutor asked him why he did not do so. He said that he was in a state of shock after his arrest, and that the police did not ask him whether Ms R had made any threats of that nature against him.
Mr Heness was questioned in cross-examination as to whether he told Ms K of the threats that Ms R made to him, and he said that he could not recall whether he told her of those threats. It was put to Mr Heness in cross-examination, and he denied, that the reason that he had not told the police about the threats that he attributed to Ms R was that he had fabricated those threats.
In her address to the jury, the prosecutor referred to the interview that took place between Mr Heness and police, and referred to the fact that Mr Heness did not tell the police of the threats by Ms R. She suggested that the jury could conclude that the reason for this was that Mr Heness was lying when he gave evidence before the jury that Ms R had threatened him. The prosecutor also pointed to inconsistencies between what Mr Heness had said to the police in his interview, and his evidence before the jury. She suggested to the jury that the explanation for the inconsistencies was that Mr Heness was telling lies in his evidence. This submission then led into the topic of flight (dealt with above) and the submission that if Mr Heness had “scarpered”, the jury might conclude that he had done so “… because he knows what he has done”. She then said:
I suggest to you that he has told you lies about what happened at the house on this day, told you lies about going to the [hotel] and behaving in the way that he did.
She then referred again to the record of interview and his evidence, and said:
The only thing those two explanations have in common, I suggest, is that he denies sexual contact. … If you were to accept as a reasonable possibility his versions either to the police or to you here in court, if you accept them as a reasonable possibility, then you will acquit him of all of the offences before you, but if you don’t and you think he is lying, then you will look at the Crown case and you will assess whether the Crown case has proven beyond reasonable doubt that he is guilty. …
This was a vigorous submission but one that was open on the facts. The attention given to the issue of Mr Heness’ credibility was not disproportionate.
In relation to the failure to tell the police about the threats by Ms R, the Judge said:
When asked at the end of the interview whether he had anything else he wished to add, he replied ‘Nah’. The accused did not tell Detective Cardwell that [Ms R] had twice threatened to make a false allegation of a sexual nature against him if he did not pay her more money.
…
You will recall Miss Davison’s cross-examination of the accused. Miss Davison concentrated much of her cross-examination on what the accused did not tell people about what he said in court happened between himself and [Ms R] at the house … In particular, that he did not tell police of the threat he told you [Ms R] had made that she would make a false allegation of a sexual nature against him if he refused to give her more money for cleaning the house. He said that he did not tell [Ms K] what he said happened between [Ms R] and himself in [Ms K’s] house.
…
Addresses of counsel are an important part of the trial and you should take into account everything that counsel says to you.
Ground 9 complains of the Judge’s summing up in relation to the use that might be made of a finding that Mr Heness was untruthful either in his evidence or in his interview with the police. The Judge said in his summing up:
I now give you some directions that arise from some answers the accused gave police during his record of interview on 21 February 2006. Miss Davison submitted to you that the accused was untruthful to police …
It is for you to determine whether you are satisfied that the accused was untruthful when police spoke to him. Apart from that, you may be satisfied that the accused has not been truthful in some of the evidence he gave to you during the trial.
If you are satisfied that the accused was untruthful to the police or told some lies in his evidence here, you must not reason that just because he was untruthful to police, or to you, he must be guilty of the offences charged. To do that would be using your findings impermissibly.
People tell lies for all sorts of reasons. … As I just said, you must not reason that because you may be satisfied that the accused may not have been truthful in his answers to the police, or in his evidence here, that he therefore must be guilty. You must not reason in that way.
However, if you are satisfied that the accused was not truthful to the police or in his evidence here, you may take that into account when assessing his credibility and reliability, and when you are considering whether ultimately the Crown has proved any of the charges against him beyond reasonable doubt.
Emphasis added
Under ground 9 Mr Cuthbertson attacks the emphasised passage of the Judge’s summing up. Mr Cuthbertson submits that the effect of that aspect of the Judge’s summing up was to invite the jury to use a finding that Mr Heness was untruthful in its consideration of whether Mr Heness was guilty of the offences charged. Mr Cuthbertson submitted that it was not open for the jury to use a finding that Mr Heness was untruthful in this manner.
As can be seen from the extracts from the prosecutor’s address, she did not suggest that if the jury was satisfied that Mr Heness had told lies they could use that of itself as evidence of guilt. She invited the jury to go no further than to use lies (if established), when deciding whether the prosecution case was made out beyond reasonable doubt.
The principles that are relevant under ground 7 and ground 8 are usually referred to by way of convenient shorthand as “the right to silence”. As long as one bears in mind the different facets of the so-called right, there is no harm in using that shorthand.
In Petty v The Queen [1991] HCA 34; (1991) 173 CLR 95 the High Court identified the aspect of the right to silence which falls for consideration here. The majority (Mason CJ, Deane, Toohey and McHugh JJ) said at 99:
A person who believes on reasonable grounds that he or she is suspected of having been a party to an offence is entitled to remain silent when questioned or asked to supply information by any person in authority about the occurrence of an offence, the identity of the participants and the roles which they played. That is a fundamental rule of the common law which, subject to some specific statutory modifications, is applied in the administration of the criminal law in this country. An incident of that right of silence is that no adverse inference can be drawn against an accused person by reason of his or her failure to answer such questions or to provide such information. To draw such an adverse inference would be to erode the right of silence or to render it valueless. …
They then added:
That incident of the right of silence means that, in a criminal trial, it should not be suggested, either by evidence led by the Crown or by questions asked or comments made by the trial judge or the Crown Prosecutor, that an accused's exercise of the right of silence may provide a basis for inferring a consciousness of guilt. Thus, to take an example, the Crown should not lead evidence that, when charged, the accused made no reply. Nor should it be suggested that previous silence about a defence raised at the trial provides a basis for inferring that the defence is a new invention or is rendered suspect or unacceptable.
In Petty the accused had not remained silent. He had participated in the record of interview in which he asserted an affirmative account of the relevant incident. At trial he advanced a version of the incident that was strikingly inconsistent with what he had said to the police. In those circumstances, the majority held that evidence of what the accused said to police in the record of interview was admissible. Evidence of the failure of the accused to withdraw the affirmative version until the trial was relevant and admissible to support an inference that the accused had made and maintained a false allegation of murder by another until he abandoned that version in the course of the trial. That could support an inference that the earlier version was untrue. Relevant to the present case the majority added at 102:
It should be stressed that nothing in what is written above should be understood as suggesting that evidence of a failure to raise some defence or matter of explanation at committal proceedings is ordinarily admissible at the trial as a basis for drawing some adverse inference against the accused. Evidence of a failure, on the committal hearing, to ask a question, make a submission, or advert to a claimed defence is not, of itself, so admissible. The right to remain silent applies to the conduct of a committal proceeding and silence maintained provides no basis for any inference against an accused. …
What the majority say there is equally applicable to a record of interview.
In the present case Mr Heness did not remain silent. He answered questions about what happened at the house. He gave, in relatively brief answers, a version of events that the prosecutor was able to contrast with his evidence. There can be no complaint about the contrast that the prosecutor drew in that respect, and about her invitation to the jury to find that Mr Heness had told lies in his evidence.
The more difficult aspect of the case is the submission based on Mr Heness’s failure to tell the police officer about the threats that he alleged Ms R made. There was no question that directly raised this issue, but it is fair to say that one might have expected him, at least in response to the question “anything else you wish to add?”, to refer to this matter.
On the other hand, it needs to be borne in mind that he had been cautioned, and had been told that he did not have to answer questions. He might have taken the view that all he needed to do was to answer questions if he chose to, without volunteering information. The interview began at 10.45 pm, and one could understand that Mr Heness might have been “shocked” by what had happened.
The Judge did not tell the jury that Mr Heness was under no obligation to answer questions by the police. Nor did he refer to the circumstances in which Mr Heness found himself, and the way in which they might have caused him to fail to respond more fully to the police questions.
Nor did the Judge make the point that no inference adverse to Mr Heness should be drawn from the circumstance that he first raised the threats at trial. The prosecutor made no direct submission to that effect, but in my opinion it is implicit in her submissions to the jury that they could and should treat as significant the fact that this matter was first raised at trial.
I will return to this matter shortly.
As to the complaint raised under ground 9, I agree with Mr Cuthbertson that if the jury were satisfied that Mr Heness had told lies in the relevant respect, that reflected adversely on his credibility and reliability, and was a matter to be taken into account by the jury. I agree also with his submission that a conclusion that Mr Heness had told lies could not be used as evidence of guilt unless the jury were satisfied that the lies were told from a consciousness of guilt, and unless the jury were adequately directed in that respect, with a direction along the line sanctioned by the High Court in Edwards v The Queen [1993] HCA 63; (1993) 178 CLR 193.
I have no doubt that in the passage criticised by Mr Cuthbertson, which is set out above, the Judge was intending to restate the effect of the prosecutor’s submission, which was that satisfaction that Mr Heness had lied was something to bear in mind in deciding whether the prosecution had proved its case beyond reasonable doubt: see at [98] above.
Bearing in mind that that is how the prosecutor put the matter to the jury, and bearing in mind that that is a proper use of a lie reflecting on credibility, I am satisfied that there is no real prospect that the jury would have understood the relevant part of the Judge’s directions in any other sense. I am not persuaded that the jury would have understood the relevant direction as inviting them to use a proven lie as evidence probative of guilt.
I return to the significance of the prosecutor’s argument to the jury and the Judge’s failure to inform the jury that Mr Heness was under no obligation to answer questions by the police, the failure to remind them of the circumstances of the interview, and the failure to inform the jury that they should not draw an inference adverse to his credibility from the failure to tell the police about the threats by Ms R.
The right to silence is a fundamental right: Petty at 99; Glennon v The Queen (1993-1994) 179 CLR 1 at 8 (Mason CJ, Brennan and Toohey JJ) and at 12 (Deane and Gaudron JJ). The credibility of Mr Heness was central to his defence. In the circumstances, the Judge’s failure to direct the jury in the manner indicated amounts to an error. The prosecutor’s submission also infringed Mr Heness’ right to silence.
It does not follow that the conviction must be set aside. In Glennon Deane and Gaudron JJ said at 12-13:
The traditional test of whether there has been a substantial miscarriage of justice for the purposes of the proviso is that laid down by Fullagar J in Mraz v The Queen and to which we have already referred, namely, whether the accused “lost a chance of acquittal which was fairly open”. That test is one which reflects the issue raised when it is argued that a conviction should be set aside. When it is argued that the conviction should be upheld, the issue is usually expressed as being whether the jury would inevitably have reached the same verdict even if the error in question had not occurred.
Footnote omitted
Mason CJ, Brennan and Toohey JJ took the same approach at 8-9.

In the circumstances of the case I consider that the Court can be satisfied that the jury would inevitably have reached the same verdict, even if the prosecutor had not infringed Mr Heness’ right to silence, and even if the Judge had not erred.
The evidence from Mr Heness about the threats made by Ms R was only one of the lies relied on by the prosecutor. Her submission was that Mr Heness had told a number of lies. The emphasis was on a pattern of lies, rather than on this particular lie. Also, the prosecutor was entitled to point to differences between what Mr Heness said to the police and what he said in evidence. The prosecutor did so with some force. In that context, the reference to a failure to disclose a matter to the police, as distinct from a reference to a contrast between what was said to the police and what was said in evidence, loses much of its significance. The particular lie in question, the evidence about threats by Ms R, did not in any way stand out in comparison with other suggested lies. Although the credibility of Mr Heness was an important part of his defence, the error that occurred was not as significant as it would have been if the main attack on his credibility arose from the record of interview, or if the main attack on the record of interview arose from the failure to disclose the alleged threats.
In all the circumstances I am satisfied that the error could not have affected the verdict.
Conclusion
For those reasons I would grant permission to appeal on grounds 3 and 4, but would dismiss the appeal against conviction
BLEBY J: I agree with the orders proposed by the Chief Justice for the reasons that he gives. I merely add some remarks of my own in relation to Grounds 7, 8 and 9 relating to the accused’s right to silence and the complaint about the direction concerning the use that could be made of the appellant’s lack of truthfulness to the police and to the Court, if that is what the jury so found.
When interviewed by the police the appellant did not exercise his right to silence. He chose to answer questions about his activities and movements in the preceding few hours. He denied any suggestion of sexual contact with Ms R. When asked by the police if he wished to add anything to what he had said, he said that he did not.
The right to silence does not mean that if the accused does answer questions he forfeits the right to refuse to answer some questions or that he is then obliged to tell everything he knows. However, it does mean that he is not immune from attack on what are suggested to be his reasons for the selective exercise of the right to silence.
In his evidence the appellant’s explanation for his failure to mention to the police any suggestion that Ms R had, in effect, attempted to blackmail him, was that he was in a state of shock following his arrest. The jury had seen the video recording of the record of interview. They were able to observe his body language and the way he answered questions, and were able to form their own view as to whether he appeared to be in a state of shock. The prosecutor, as she was entitled to, challenged that explanation by suggesting that his story, along with other aspects of his evidence, was a fabrication.
The jury were aware from the record of interview itself that the accused had been told that he was not obliged to make any statement to the police. The Judge had emphasised the accused’s right to silence in relation to the giving of his evidence in Court. However, I agree that in the circumstances it would have been desirable that the jury be reminded by the Judge of the accused’s right to silence when questioned by the police. But in the circumstances his exercise of the right to silence was not being criticized. What was being attacked was his explanation for exercising it. I do not consider that any additional direction, if given, would have made any difference.
Without a proper Edwards direction[1] the jury should have been reminded that the telling of that lie for the first time at the trial, if they concluded that it was a lie, should not be the basis of any inference as to guilt. However, it was not the Crown case that the lie was told out of a consciousness of guilt. The attack on this aspect of the appellant’s credit was part of a concerted attack on the whole of his explanation as constituting a series of lies which should be rejected in favour of the evidence of Ms R. That included an attack on his explanation for not telling the police about the attempted blackmail by Ms R.
[1] Edwards v The Queen (1993) 178 CLR 193.
In that context it is necessary also to consider the direction criticised by Mr Cutherbertson QC for the appellant that, if they were satisfied that the accused was not truthful to the police or in his evidence, the jury could take that into account “when you are considering whether ultimately the Crown has proved any of the charges against him beyond reasonable doubt”. In a different context that direction could be read as a direction that the lie itself could be used as evidence of guilt. However, in the context of the way in which the case was conducted and in the context of the rest of the summing up, and notwithstanding the Judge’s failure specifically to refer to the right to silence in relation to the record of interview, I am persuaded that, if that did constitute a technical misdirection, it would have been taken by the jury as being no more than a reiteration of the direction that the omission went only to the accused’s credibility. Rectification of any omission and of any other defects in the summing up would have made no difference to the outcome.
KELLY J: I agree that this appeal should be dismissed for the reasons given by both the Chief Justice and Bleby J.