R v Parsons; R v Brady

[2015] SASCFC 183

SUPREME COURT OF SOUTH AUSTRALIA

(Court of Criminal Appeal)

R v PARSONS; R v BRADY

[2015] SASCFC 183

Judgment of The Court of Criminal Appeal

(The Honourable Justice Kelly, The Honourable Justice Peek and The Honourable Justice Nicholson)

11 December 2015

CRIMINAL LAW - PROCEDURE - SUMMING UP

CRIMINAL LAW - APPEAL AND NEW TRIAL - MISCARRIAGE OF JUSTICE - PARTICULAR CIRCUMSTANCES AMOUNTING TO MISCARRIAGE - MISDIRECTION OR NON-DIRECTION - MISDIRECTION

Appeal against conviction. Each of the appellants Parsons and Brady was convicted by jury of five counts of aggravated causing harm with intent to cause harm and two counts of aggravated assault, all relating to incidents occurring during a New Year’s Eve party on 31 December 2012 in Panorama. The prosecution case was that the two appellants were part of a group that gatecrashed the party and, as part of a joint criminal enterprise, assaulted a number of the guests. Count 1 was alleged to have occurred on the road outside the party, and Counts 2 to 8 on the tennis court where the party was being held.

At trial, Parsons gave evidence, while Brady did not. In summing up, the Judge gave directions about reliability and honesty of witnesses, which included that there has been no realistic suggestion that any of the prosecution eyewitnesses were dishonest or lying. Soon after this direction, the Judge directed that they might consider whether a witness has a motive to lie.

On the appeal, the appellants contended that the Judge erred in these directions, as his Honour drew the distinction that Parsons was the only witness who it was suggested was lying in his evidence; directed that the jury might consider whether a witness had a motive to lie; and failed to direct that they should not disregard Parsons' evidence or treat it lightly or discount it simply because he was an accused person.

Whether the directions deprived the appellant of a fair trial and a miscarriage of justice has ensued.

Held per Peek J (allowing the appeal) (Kelly and Nicholson JJ agreeing):

1. The line of authority including Robinson v The Queen (1991) 180 CLR 531 and Hargraves v The Queen (2011) 245 CLR 257 recognises that a Judge has a duty not to deflect the jury from its fundamental task of deciding whether the prosecution has proved the elements of the charged offence beyond reasonable doubt. This requires a Judge not to direct in a way that invites the jury to consider the interest that the accused has in a trial as a motive to lie, unless it is accompanied with a satisfactory warning against discounting the accused’s evidence simply by reason of his or her interest.

2.       There was a substantial misdirection going directly to the matters of the presumption of innocence and the assessment of the evidence given by the accused which evidence, if not negated beyond reasonable doubt, demonstrated a complete defence for both appellants to all of the counts on the Information. The proviso cannot apply.

3.       Permission for both appellants to appeal on ground 3 of appeal as it appears in the appellant Brady’s grounds of appeal is granted. Permission to appeal on other referred grounds of appeal is refused.

4.       The appeals of both appellants are allowed, all convictions are set aside and a new trial on the Information is ordered for both appellants.

Criminal Law Consolidation Act 1935 ss 20(3), 24(1), referred to.
Hargraves v The Queen (2011) 245 CLR 257; Robinson v The Queen (1991) 180 CLR 531; Stafford v The Queen (1993) 67 ALJR 510; Ramey v The Queen (1994) 68 ALJR 917; R v Haggag (1998) 101 A Crim R 593; Palmer v The Queen (1998) 193 CLR 1; The Queen v FAR [1996] 2 Qd R 49; The Queen v G [1994] 1 Qd R 540; R v Asquith (1994) 72 A Crim R 250; R v Roach [1994] 1 Qd R 548; R v Wilson [1992] 2 Qd R 174; R v Brown [1995] 1 Qd R 287; De Rosa v Western Australia (2006) 32 WAR 136; R v Hickman (1993) 60 SASR 415; R v Griffis (1996) 67 SASR 170; R v Copeland (1997) 194 LSJS 1, discussed.
R v McDonnell (Unreported, Supreme Court of New South Wales, Finlay and Newman JJ and Barr AJ, 13 December 1994); R v Booty (Unreported, Supreme Court of New South Wales, Grove, Abadee and Simpson JJ, 19 December 1994); R v Compton and Barratt (2013) 237 A Crim R 177; R v Brotherton (1992) 29 NSWLR 95; Morris v The Queen (2006) 201 FLR 325; R v McMahon (2004) 8 VR 101, considered.

R v PARSONS; R v BRADY
[2015] SASCFC 183

Court of Criminal Appeal:  Kelly, Peek and Nicholson JJ

1. KELLY J. I agree with the orders proposed by Peek J for the reasons which he has given.

   PEEK J.

   Introduction

2. The appellants, Mr Parsons and Mr Brady (Parsons and Brady), were each convicted by a jury of five counts of aggravated causing harm with intent to cause harm[1] and two counts of aggravated assault.[2]

   [1]    Criminal Law Consolidation Act 1935 s 24(1).

   [2]    Criminal Law Consolidation Act 1935 s 20(3).

3. For present purposes the facts may be sufficiently stated by reproducing part of the prosecution’s outline of argument thus:

   The offending occurred during two separate incidents at a New Year’s Eve party at Ottawa Avenue Panorama on 31/12/12.

   Mr Parsons lived about 150 metres away from the house at which the party was held.  Neither appellant was invited to the party or knew any person at the party.

   The first incident occurred on the road outside the party at around 1 am.  Four guests from the party were in the street and were approached by three or four young men. The young men were being aggressive, they asked why they had not been invited to the party and at least one was saying things like “we own this street”. Artyom Ushenin was then assaulted by those men (count 1).  After the assault the offenders left the scene and ran up Ottawa Avenue, turning right onto Boothby Street in the direction of Mr Parsons’ house.

   It was not disputed that within minutes of that initial assault a group of young men and at least 1 woman came down Ottawa Avenue from the direction of Mr Parsons’ house. Weapons were collected by some of the gate-crashers as they entered the property and came onto the tennis court where the party was being held. The witnesses referred to the group (estimates of numbers of gate-crashers varied between 6 and 15) being armed with sticks, pieces of wood, a cleaver and knives.

   It was not disputed that six of the victims (counts 2 to 6 and 8) were assaulted by the group of gate crashers. Of these six victims, three were knocked unconscious and of those one suffered a fracture to his skull and one suffered a fracture to his eye-socket requiring a titanium plate to be inserted.

   With respect to count 7, there was no dispute that there was an altercation between Mr Brady and Mr Oussatchev (the victim of that count), but there was a dispute as to the nature of that altercation.  During that altercation, this victim bit off Mr Brady’s nose.  It was suggested by Mr Parsons that this victim was the instigator of the violence against Mr Brady and himself. The victim’s evidence was that he was confronted by 3 men and after someone swung at him he grabbed the man in the middle and in the course of their struggle he bit his nose off.

   It was accepted by the prosecution that the evidence could not prove that each appellant had participated in every assault against each victim.  The prosecution case was therefore that each appellant was part of a joint enterprise with the other gate crashers to assault people at the party with the intention of causing harm to them.  Alternatively they were part of a joint enterprise to assault people at the party and it was reasonably foreseen as a possibility by them that one or more of the gate crashers would intentionally cause harm.

   The verdicts of guilty are therefore only consistent with the jury having been satisfied beyond reasonable doubt that there was a joint enterprise and that the two defendants were part of the group that gate crashed the party.

   Mr Parsons gave evidence that he and Mr Brady arrived at the party uninvited but did not assault any person. To the contrary he gave evidence Mr Brady was attacked by the victim in count 7, he tried to pull the man off Mr Brady but the man bit Mr Brady’s nose off and they both then left.  It was not disputed by either appellant that they were at the party at the same time as the assaults were occurring.  Mr Parsons gave evidence however that he neither saw nor heard any evidence of any other assaults occurring.

   Except for count 1, the evidence that Parsons was involved in assaulting people at the party was equally relevant to the case against Brady in light of there being no dispute as to Brady and Parsons being in company with each other at the party. If one was part of the group of gate-crashers it necessarily followed that the other was also.

   …

   … the defence case was not that the melee did not happen. It was that “[the appellants] did not know anything about it; they did not see it, they were not part of it.  They just, very unluckily happened to walk in right when it was occurring or just after it had occurred or near the end when it was occurring.”  Mr Parsons’ evidence was that neither of them went beyond the area between the shed and the toilet and neither of them went onto the tennis court. He said that both had only just come around the corner of the toilet block when they were immediately attacked by Mr Oussatchev.  In light of their position near the toilet and off the tennis court, the very short space of time they remained at the party and how they were positioned during the time they were in this area, Mr Parsons’ version was implausible. His evidence was entirely inconsistent with the ability of so many of the witnesses on and around the tennis court to recognise either Mr Parsons or Mr Brady or both.

4. Taking the above summary of the case at its highest in favour of the prosecution, it remains obvious that proper directions by the trial Judge concerning the presumption of innocence and the correct approach to an evaluation of the evidence of Parsons (exculpatory of both himself and Brady) was of fundamental importance to a fair trial for each of the appellants.

   The appellants’ grounds of appeal

5. The appellants both have various grounds of appeal but each included the following proposed ground 3 (for which permission is required):

   The learned trial Judge erred in his directions concerning the approach the jury should take to the assessment of the evidence of the co-accused Parsons.

   Particulars

   3.1The learned trial Judge directed the jury to assess Parsons’ evidence like any other witness but then drew the distinction that Parsons was the only witness who it was suggested was lying in his evidence to avoid responsibility for his criminal conduct (SU 13-14).

   3.2The learned trial Judge then directed the jury that in assessing the evidence of the witnesses they might consider whether a witness had a motive to lie.

   3.3The learned trial Judge failed to direct the jury that they should not disregard Parsons’ evidence or treat it lightly or discount it simply because he was an accused person.

6. Parsons gave evidence but Brady did not.  However, senior counsel for the respondent specifically conceded on the appeal that Parsons’ evidence was exculpatory of Brady and that if this ground of appeal is made out for Parsons, it would also be made out for Brady.  I proceed on the basis that permission to appeal is granted on ground 3 of appeal.

   The summing up of the trial Judge relevant to ground 3 of appeal

7. Early in the summing up the Judge gave the following directions, the emboldened portions of which are particularly relevant to ground 3 of appeal:

   I would now like to talk about a couple of other general things before we break for the lunchbreak, members of the jury.  I will talk a little bit about witness evaluation.

   In deciding this case you will have to evaluate the evidence.  That involves considering how much weight you can place on the evidence of the various witnesses.  There are a number of victims and eyewitnesses to the events of the evening in question who were called to give evidence.

   Also, I should mention that the accused, Mr Parsons, gave evidence.

   I should remind you that the accused was not obliged to give evidence.  He had the right to remain silent in answer to the charge leaving the prosecution to prove the case against him.  You are entitled to give such credit, that you think is appropriate, for adopting the course that he was not obliged to adopt.  The effect of this is that in assessing the defence evidence given on oath and the weight to be given to it, you are to approach the task in exactly the same way as with any other witness.  It is for you to decide what weight you attach to the accused in the same way as any other witness.

8. That, of course, is a perfectly proper and standard direction which could give rise to no complaint on appeal.  The Judge then referred to the fact that Brady did not give evidence and gave standard directions which also could not be complained of.  His Honour continued:

   So I turn now to discuss how you might approach the task of assessing witnesses.  As I mentioned to you at the outset of this trial, do not be daunted by it.  You have been considering what people have told you all of your lives; deciding whether you believe what they tell you, deciding what happened in a situation, based on the evidence before you.  This is a lot like that.

   The logical starting point, members of the jury, is that you might like to consider both the honesty and the reliability of any witness that appears before you.

   Honesty is whether the witness is honestly trying to recall what they are telling you, or whether, on the other hand, for example, they are being dishonest and deliberately lying to you about what they say happened.

9. I would again interpolate that the directions up to this point were perfectly proper and standard directions which could give rise to no complaint on appeal.  However, it is the following pattern of directions (and particularly the emboldened passages) that has caused a miscarriage of justice to occur:

   Here, for example, members of the jury, no-one has realistically suggested that any of the prosecution eyewitnesses are dishonest or in any way lying, although there was a challenge particularly in relation to Mr Oussatchev and to his account of what happened on the ground.

   Generally, however, the thrust of the defence questions of those witnesses mainly related to the accuracy of their recall and whether those witnesses might be wrong or mistaken about some aspects of what happened, and mistaken about the roles the two accused played in the events of the evening.

   On the other hand, the thrust of the prosecution questions of the accused, Mr Parsons, is that he was simply lying to avoid responsibility for his criminal conduct.  So the prosecution, fundamentally, contests the honesty of Mr Parsons’ evidence.

   In assessing any witness as to their honesty and reliability you should have regard to the intrinsic likelihood or unlikelihood of a story that a witness tells; how the witness stood up or apparently stood up to cross-examination.  How that witness’ evidence fits or does not fit, as you see it, with other evidence in the case which you find to be convincing.

   You might consider whether a witness is telling you something that you find inherently believable or unbelievable.  You might also consider whether a witness has a motive to lie.

   Raising the question:  “Does Mr Parsons have a motive to lie?”

10. The emboldened passage “You might also consider whether a witness has a motive to lie” clearly pointed to, and only pointed to, Parsons.  His Honour explicitly stated that Parsons was the only witness who was suggested to have been dishonest or to have lied in evidence; he was the only one who might be considered to have a motive to lie.  

11. Thus, having regard to his Honour’s directions and, importantly, the juxtaposition of those directions, it is highly likely (if not inevitable) that the jury would have understood the Judge to be instructing them as follows:

    1In assessing Parsons’ evidence on oath and the weight to be given to it, you are to approach the task in exactly the same way as with any other witness.  It is for you to decide what weight you attach to the accused in the same way as any other witness.

    2Here, no-one has realistically suggested that any of the prosecution eyewitnesses are dishonest or in any way lying.  The issue as to the prosecution witnesses is one of reliability rather than honesty.

    3On the other hand, the thrust of the prosecution questions of Parsons, is that he was simply lying in order to avoid responsibility for his criminal conduct.  So the prosecution, fundamentally, contests the honesty of Parsons’ evidence.  The issue as to Parsons is one of honesty rather than reliability.

    4You might consider whether a witness has a motive to lie.  Here, Parsons is the only witness who it is suggested has told lies and you might consider whether he has a motive or reason to lie, namely that he was simply lying to avoid responsibility for his criminal conduct as appears from the thrust of the prosecution cross-examination of Parsons.

    5The approach to determining whether Parsons has lied on oath is the approach you would take in everyday life by bringing to bear your common sense and experience of the world.

12. The question is whether the Judge’s directions deprived the appellant of a fair trial and a miscarriage of justice has ensued.  In answering that question, we must have primary regard to the joint judgment of French CJ, Gummow, Hayne, Crennan, Kiefel and Bell JJ in Hargraves v The Queen.[3]

    The decisions of the High Court in Robinson, Stafford, Ramey and Palmer

    [3] (2011) 245 CLR 257 (Hargraves).

13. However, before turning to Hargraves, it is necessary to address four earlier decisions of the High Court.

14. In Robinson v The Queen,[4] the complainant’s evidence was that she was raped and that the appellant had threatened her prior to intercourse.  The appellant’s evidence was that consent was freely given.  The trial Judge directed the jury in relation to assessing the evidence of witnesses:[5]

    Still on the subject of witnesses, you might think that some of them have an interest in the outcome of this case.  Indeed you might think that one witness above all others has a greater interest than all the others in the outcome of the case.  You might say, ‘Well, this witness has a particular interest in the outcome of his case.  We should look at his or her evidence closely, more closely than perhaps we would look at others.’  That is a matter you have to bear in mind when scrutinizing a particular witness’s evidence.

    [4] (1991) 180 CLR 531.

    [5] (1991) 180 CLR 531, 533.

15. Late in his summing up, the Judge directed:

    Another test was what interest does a witness have in the outcome of a case?  If you thought a witness had a large interest in the outcome you, as the judges of the facts, might well conclude that you should scrutinize that witness’s evidence closely.  You might think ─ it is a matter solely for you ─ that the accused had the greatest interest of all the witnesses you saw and heard and that, therefore, you should scrutinize his evidence closely.   (Emphasis added)

16. Defence counsel asked for a further direction, but only to the extent that that the complainant also had an interest in the outcome of the case.  The Judge then redirected:[6]

    I didn’t intend to lead you to believe that you apply only the interest in the outcome of the case test to the accused only.  You apply it to all the witnesses if you believe that test is applicable.

    [6] (1991) 180 CLR 531, 534.

1. In a joint judgment,[7] the High Court referred to the trial Judge’s directions concerning the onus and standard of proof as “unexceptionable”.  However, their Honours considered that it was nevertheless the case that the fairness of the trial was seriously impaired by the effect of the trial Judge’s directions concerning the interest of a witness in the outcome of the case.  Their Honours stated:[8]

   Notwithstanding the correctness of his Honour’s directions concerning the onus and standard of proof, however, it is impossible to escape the conclusion that the fairness of the trial was seriously impaired by the effect of his directions concerning the interest of a witness in the outcome of the case.  The jury could hardly escape the conclusion that the appellant had “the greatest interest of all the witnesses” in the outcome of the case.  Indeed, his Honour had suggested to the jury that they might think that the appellant had a greater interest than any other witness in the outcome of the case. If the jury accepted that suggestion, as they almost certainly would have, his Honour’s directions had the effect that the evidence of the appellant had to be scrutinized more carefully than the evidence of any other witness, including the complainant, for no reason other than that he was the accused.  The unfairness of such a direction is manifest, particularly when the outcome of the trial inevitably turned upon the jury’s preference for the evidence of the complainant against that of the accused. 

   [7]    Mason CJ, Brennan, Deane, Toohey and McHugh JJ.

   [8] (1991) 180 CLR 531, 535.

2. Their Honours later concluded that: “if, as we think was the case, the jury would have understood his Honour’s directions as meaning that the evidence of the appellant had to be scrutinized more carefully than that of any other witness, there was a serious misdirection in the summing up which went to the fairness of the trial of the appellant and which undermined the presumption of innocence”.[9]

   [9] (1991) 180 CLR 531, 536.

3. However, immediately preceding that conclusion, there are what I will presume to call two key passages in Robinson.  Before considering them, it is best to note the further decisions of the High Court in Stafford v The Queen[10] and Ramey v The Queen;[11] although both were refusals of special leave to appeal, they have been rightly treated as of high authority.[12]  In Stafford, decided two years after Robinson, the High Court stated in strong and unequivocal terms:[13]

   It follows from a decision of this Court in Robinson v The Queen … that a trial Judge should not direct the jury that the “interest” of an accused in the outcome of his or her trial is a “factor” to be taken into account in assessing his or her evidence.  Nor should a trial judge direct the jury to the effect that, in assessing the evidence of all the witnesses, they should take account of their relative interests in the outcome.  Any direction which directly or indirectly requires or invites an assessment of the reliability of the evidence of the accused or the relative reliability of the evidence of the accused and other witnesses by reference to interest or lack of interest in the outcome of the trial is likely to be understood by the jury as a direction or invitation to discount the evidence of the accused who will inevitably be seen as having a greater interest in the outcome of the trial than any other witness.  That is what the decision in Robinson was directed against.

   Ordinarily, and notwithstanding what is said by the Court of Appeal of Queensland in this case about “an admission of impotence”, it is preferable that a trial judge refrains from directing attention to the interest of the accused in the outcome of the trial as a relevant factor in assessing the reliability of his or her evidence.  If the circumstances of a particular case are exceptional and require some reference to the accused’s interest in the outcome as a matter of fairness to the accused, it should suffice to inform the jury that they must approach the case on the basis that the accused is presumed innocent of the acts which are the subject of the indictment and that it would be wrong and unfair for the jury to discount the evidence of the accused simply for the reason that, as the accused, he or she has a particular interest in the outcome of the trial.

   (Emphasis added)

   [10] (1993) 67 ALJR 510.

   [11] (1994) 68 ALJR 917.

   [12]   Thus in R v Haggag (1998) 101 A Crim R 593, Callaway J (with whom Phillips CJ and Kenny JA concurred) stated at 597: “In both Stafford and Ramey special leave was refused, so what was said about Robinson did not form part of the ratio decidendi, which is expressed in the second-last paragraph of Stafford and the second-last sentence of Ramey.  I am conscious, too, of our duty to be cautious in applying observations made in the course of refusing special leave… But it is perfectly clear that on each occasion the High Court intended to give firm guidance concerning the application of Robinson.”

   [13] (1993) 67 ALJR 510, (The Court: Deane, Dawson and Toohey JJ).

4. And a further two years later in refusing special leave to appeal in Ramey v The Queen, the Court emphasised for a third time:[14]

   There can, and should, be no mistake as to the application of the principle laid down by this Court in Robinson v The Queen … It is not to be eroded by Courts of Criminal Appeal nor, a fortiori, by trial judges by failing faithfully to apply the prohibition against the giving of a direction to evaluate the evidence of an accused on the basis of the accused’s interest in the outcome of the case.                  (Emphasis added)

   [14] (1994) 68 ALJR 917 (The Court: Brennan, Dawson and McHugh JJ).

5. Finally, although the main matter under consideration in Palmer v The Queen,[15] was suggested absence of motive to lie by a complainant, reference may also be made to that decision of the High Court since two of the Justices referred, by way of close analogy to the decision in Robinson.[16]

   [15] (1998) 193 CLR 1.

   [16]   McHugh J and Kirby J.  The other Justices did not address Robinson.

6. In Palmer, Kirby J characterised Robinson as laying down a broad rule, simple in application and subject to no stated exceptions and said:[17]

   [102]  However, although no authority of this Court binds us to a particular outcome, I have concluded that it would not be harmonious with the principle adopted in Robinson v The Queen to permit questions to be asked or suggestions to be made that the accused’s evidence is weakened, or the complainant's strengthened, by the inability of the accused to explain why the complainant would lie.  In Robinson, this Court adopted a rule forbidding questions or comment which would suggest that the accused’s evidence, denying the offences charged, is to be the subject of close scrutiny because of the interest which the accused necessarily has in the outcome of the trial.  This Court held that to permit, in that case, judicial directions (but by inference also questions making the same suggestions) would undermine the presumption of innocence which the law accords to an accused person.  This ruling has attracted some criticism.  It has been said that it has given rise to different interpretations as to the strictness of the principle established.  But as I read the rule in Robinson, it is a simple one, easy to apply.  Neither by questions nor submissions, nor by judicial directions may it be suggested that an accused’s denial is undermined, and an accuser’s accusation strengthened, by the obvious fact that the accused has an interest in acquittal.  The forbidden imputation about the accused’s motive to lie to secure acquittal has, as its counterpart, a prohibition on the investigation of the motivation, if known, of the accuser to lie, realising as the accuser must that this could result in the accused’s conviction and punishment.  If the one is forbidden by the authority of this Court, it is impossible, as a matter of principle, to permit the other.  Each has a tendency to undermine the protection afforded by the burden and onus which rest upon the prosecution throughout the trial.

   [103]  The principle in Robinson has since been re-affirmed by this Court in Stafford v The Queen.  In this appeal, it was not suggested that the principle was wrong.  Whilst it does not, as a matter of legal authority, determine the present case, any rule which permitted questioning of the accused about the accuser’s motivations, or which encouraged elaboration of that issue by a prosecutor or judge where it had not been initiated by the accused, would be difficult to reconcile with it.  In circumstances where the arguments of principle and policy are so finely balanced, the adoption of a rule which is harmonious with an analogous principle earlier accepted by the Court is, for me, decisive.   (Emphasis added; citations omitted)

   [17] (1998) 193 CLR 1, 42-43.

7. McHugh J dissented from the other members on the main ground of appeal (but nevertheless allowed the appeal on the basis of an unreasonable verdict).  His Honour distinguished the main matter being considered in Palmer from Robinson on the following basis:[18]

   [70]    I do not think that allowing such cross-examination of the accused is contrary to this Court’s decision in Robinson v The Queen.  Robinson prohibits the trial judge from directing the jury, in assessing the credibility of witnesses, to refer to their interest in the outcome of the trial.  To permit such a direction would unfairly burden the accused’s case, since he or she invariably has the greatest interest in the outcome of the trial.  To permit it would also undermine the presumption of innocence.  But to allow the accused to be asked whether he or she knew of facts that would suggest a motive for concoction is not to undermine the presumption of innocence.  As in other areas of the law of evidence, there is a risk that a jury may misuse the accused’s answer and reverse the onus of proof.  But that risk can be overcome by a proper direction, unlike the Robinson situation, where the effect of a direction concerning outcome is to undermine the onus of proof.   (Emphasis added)

   [18] (1998) 193 CLR 1, 28.

   The first key passage in Robinson v The Queen – protection of the presumption of innocence

8. Reverting to the two key passages in Robinson foreshadowed above, in the first passage the Court referred to a broad principle of protection of the presumption of innocence:[19]

   Furthermore, his Honour’s directions on the point do not sit well with the presumption of innocence which is the consequence of a plea of not guilty.  If that presumption is to have any real effect in a criminal trial, the jury must act on the basis that the accused is presumed innocent of the acts which are the subject of the indictment until they are satisfied beyond reasonable doubt that he or she is guilty of those acts.  To hold that, despite the plea of not guilty, any evidence of the accused denying those acts is to be the subject of close scrutiny because of his or her interest in the outcome of the case is to undermine the benefit which that presumption gives to an accused person.

   (Emphasis added)

   [19] (1991) 180 CLR 531, 535-536.

9. The High Court later confirmed in Hargraves that this was the broad governing principle that was to be applied.  In various of the many cases decided during the 20 year period between Robinson and Hargraves, this matter of undermining of the presumption of innocence was clearly recognised, although put in slightly different ways, or with differing degrees of emphasis.

10. On occasions it was emphasised (correctly in my view) that one aspect of the matter was that the presumption of innocence may be undermined by the danger of circularity of reasoning: “The attributed motives are dependent upon an assumption of guilt; a guilty person has a motive to lie, while an innocent person has a motive to tell the truth.  It is circular and illogical to make an assumption of guilt a basis for attributing a motive and then using that motive to test the veracity of evidence denying guilt”.[20]  

    [20]   The Queen v FAR [1996] 2 Qd R 49, 51 (Fitzgerald P). See also: R v McDonnell (Unreported, Supreme Court of New South Wales, Finlay and Newman JJ and Barr AJ, 13 December 1994); R v Booty (Unreported, Supreme Court of New South Wales, Grove, Abadee and Simpson JJ, 19 December 1994); R v Haggag (1998) 101 A Crim R 593.

    The second key passage in Robinson v The Queen – a tension between two couplets of sentences?

11. The second of the two key passages in Robinson v The Queen referred to above consists of the following two couplets of sentences:[21]

    Nothing in the above is intended to suggest that the evidence of an accused person is not subject to the tests which are generally applicable to witnesses in a criminal trial.  Thus, in examining the evidence of a witness in a criminal trial — including the evidence of the accused — the jury is entitled to consider whether some particular interest or purpose of the witness will be served or promoted in giving evidence in the proceedings. 

    But to direct a jury that they should evaluate evidence on the basis of the interest of witnesses in the outcome of the case is to strike at the notion of a fair trial for an accused person.  Except in the most exceptional case, such a direction inevitably disadvantages the evidence of the accused when it is in conflict with the evidence for the Crown.

    (Emphasis added)

    [21] (1991) 180 CLR 531, 536.

12. It has been suggested on occasion that there is a tension between these two couplets.  I cannot agree.

13. In the first couplet, the Court recognised the fact of life that jurors may, consciously or unconsciously, be aware of the possible motivation of a person charged with a serious criminal offence to give false evidence to exonerate himself.  There is, of course, no requirement for a Judge to positively direct a jury to put such matters out of their minds.  Such directions would require behaviour contrary to human nature; indeed any such directions would be counterproductive as drawing undue attention to the matter and be rejected as being contrary to the facts of life.

14. In the second couplet, the Court recognises that there is, however, a negative requirement that a Judge not direct the jury to evaluate evidence on the basis of witnesses’ interest in the outcome of the case, for such a direction positively undermines the presumption of innocence; it unduly disadvantages the evidence of the accused when it is in conflict with the evidence for the Crown.

15. This distinction has been regularly remarked upon.  Thus in The Queen v G, Pincus JA stated:[22]

    To tell a jury that an accused person who gives evidence in his own favour has a strong interest in the outcome of the case and therefore a strong motive to lie may well appeal to a jury’s commonsense; further, it will often be true.  But a judge cannot so direct the jury because, particularly where the case is one depending on “the jury’s preference for the evidence of the complainant against that of the accused” (Robinson at 645), that would tend to reverse the onus of proof.

    [22] [1994] 1 Qd R 540, 545.

16. Whether or not it might be better to say that the effect is to undermine the presumption of innocence, rather than to tend to reverse the onus of proof, does not really matter; the essential point is nonetheless well made.

17. Similarly, the remarks of Hunt CJ at CL in R v Asquith in this respect are important.  There, the trial Judge had said during the summing up (when referring to an argument of the prosecutor):[23]

    He said there was no motive for the officers to lie.  Can you say the same thing about the accused?  If the officers had a motive to lie the accused obviously had a motive to lie, he says, in giving evidence because he is charged with these serious offences.

    [23] (1994) 72 A Crim R 250, 255.

18. Hunt CJ at CL (with whom Smart J and Badgery-Parker JJ concurred) after referring to Robinson and Stafford, stated:[24]

    It is true, as the Crown has submitted, that the jury would have been aware of the obvious temptation of an accused person to commit perjury in order to avoid conviction, even without this direction.  That temptation, as the Chief Justice remarked in Reeves (at p 11), is only human nature, and the jury will usually be mindful of that fact when considering whether the evidence of the accused raised a reasonable doubt as to the accuracy of the evidence of the Crown witnesses.  What the High Court has said in Robinson … and has underlined in Stafford, is that, where attention is drawn (directly or indirectly) to that basic fact of human nature, it is likely to be understood by the jury as an invitation to discount the evidence of the accused, other than in exceptional circumstances when (it would seem) it is necessary to do so in fairness to the accused, and in those circumstances it becomes necessary to give to the jury the warning described in Stafford.  No such warning was given in this case.

    In the circumstances of this case, I am satisfied that the misdirection led to a miscarriage of justice, so that leave should be granted to the appellant to rely upon it in his appeal.

    [24] (1994) 72 A Crim R 250, 260.

19. And in R v Roach, Shepherdson J stated:[25]

    Once a trial judge is confronted with a situation in a criminal trial where evidence of prosecution witnesses may conflict with evidence given by an accused person, it is my view that in summing up to the jury, any suggestion by the judge that the jury should evaluate evidence on the basis of the interests of witnesses in the outcome of the case, will, in the light of the decision in Robinson amount to a serious misdirection going to the fairness of the accused person’s trial, save in the most exceptional case.

    In my experience, members of juries appear to show good common sense in evaluating evidence led before them.  The trial judge is obliged “to instruct the jury on the law applicable to the case with such observations upon the evidence as the Court thinks fit to make” (s 620 Criminal Code).

    However, the question of believing or not believing any witness is a question of fact and like all other questions of fact is for the jury (R v Bateman (1946) 31 Cr App R 106).

    In telling a jury how to evaluate evidence a judge is, in my view encroaching on the jury’s domain.  The process of evaluating the credibility of a particular witness is done by the jury no doubt adopting their combined experiences in life and their collective common sense.  Once a trial judge, in a case where the accused has given evidence, directs the jury that they evaluate evidence on the basis of interests of witnesses in the outcome of the case, even though the accused person’s interest be not mentioned at all, one can logically expect the jury to readily conclude that the accused person has the greatest interest in the outcome of the case.  Once that situation is reached the accused person is disadvantaged for the reasons given by the High Court in Robinson.

    I would add that once the trial judge advises or directs a jury as to tests for evaluating the credit of witnesses in a case where the accused person has given evidence he runs the risk of prejudicing the fair trial of that person and of undermining the presumption of innocence.  In my view, in such a case the trial judge should not advise or direct on any test for evaluating the credit of any witness.

    I should add that I agree with the views of de Jersey J in R v Wilson [1992] 2 Qd R 174 that in every case in which “an accused person gives evidence, the trial judge may not direct the jury that in assessing his or her evidence, they might take account of his or her interest in the outcome of the proceedings”.

    [25] [1994] 1 Qd R 548, 556-557.

20. It may well be said that in this area, to direct is to complicate.  The analogy of the prohibition on explaining what is meant by “reasonable doubt” is a good one;[26] thus, Macrossan CJ observed in R v Wilson:[27]

    There is a great danger that proper balance will be lost if a trial judge enters the area of discussion referred to and makes any remarks which may have the effect of influencing the jury to think that they should be particularly careful in giving effect to the testimony of an accused person because of his interest in the outcome of the case.  The danger is that to say anything at all in this area may lead a judge to say too much.  Any observation directing the jury’s attention in this fashion may require qualification and complications may then accumulate.  Sometimes express attempts to be helpful to a jury in an area best left to be dealt with by the jury’s innate common sense can misdirect or improperly inhibit the jury’s free and correct discharge of its function.  This discussion serves to remind us of the heresies which formerly arose through trial judges’ attempts to explain the concept of reasonable doubt to juries.  Those attempts failed, embracing as they did the danger that the juries might be misled.                                   (Emphasis added)

    The period between the High Court decisions in Robinson and Hargraves

    [26]   Decisions on this matter have been recently collected in R v Compton and Barratt (2013) 237 A Crim R 177.

    [27] [1992] 2 Qd R 174, 175.

1. I further refer only briefly to the 20 year period between the decisions in Robinson in 1991 and Hargraves in 2011. 

2. Of assistance in understanding that 20 year period is the substantial article, “Directions on the Accused’s Interest in the Outcome of the Trial”, in which the author surveyed most of the many decisions of the Australian State courts up to publication in October 1997.  The author considered:[28]

   Robinson’s significance extends beyond the particular direction impugned in that case.  The High Court’s rhetoric was aimed, not at the precise words of the trial judge, but rather at the “effect” of that statement, that is the imparting of a particular fact-finding approach to the jury.  …

   Overall, there are three basic approaches that State appellate judges have used in applying Robinson.

   1.     Robinson prohibits any directions by the trial judge on the interest of the accused or on the general role of interest as a test of credibility.

   2.     Robinson allows general directions on the question of interest, except where they fall within certain defined classes of comments.

   3.     Robinson is flexible enough to allow a specific discussion of the interests of the accused but requires a balanced approach on the part of the trial judge to ensure that the accused is treated fairly.

   The first approach is consistent with the High Court’s dicta.  The final two sentences of the quotation can be plausibly distinguished by noting that the permissive sentence involves jury reasoning while the prohibition refers only to jury directions. A rational explanation for this distinction is that the wrong being countered by the High Court in Robinson is the judicial imprimatur given to reasoning about the accused’s interests.  In the absence of judicial comment, jurors are permitted to consider the issue.

   [28]   Jeremy Gans, “Directions on the Accused’s Interest in the Outcome of the Trial” (1997) 21 Crim LJ 273, 275.

3. Later, the author stated:[29]

   The High Court’s intervention in Stafford, it is submitted, means that the least permissive of the three general approaches to the interpretation of Robinson is authoritative.

   The court’s judgment in Stafford extended the prohibition in Robinson to include comments referring to the relative interests of a witness or describing the accused’s interest as merely a factor for the jury to consider.  This ruling did not explicitly forbid other comments allowed by the second approach to the interpretation of Robinson.  That approach permitted a variety of general comments on the subject of witnesses’ interests.  However, the proper application of the High Court’s doctrine rules out such comments in practice.

   All the varieties of the second approach have an Archilles’ heel─the court’s prohibition against implicit, as well as explicit, comments on the accused’s interest in avoiding conviction.  The High Court prohibits comments that are “likely to be understood by the jury as a direction or invitation to discount the evidence of the accused” because of the accused’s interest.  The second approach depends on distinguishing specific directions, which were explicitly forbidden in Robinson, from more general directions, which were not.  However, even the more general directions are still open to the argument that they will inevitably lead the jury to devalue the accused’s evidence on the basis of the accused’s interest in avoiding conviction.

   [29](1997) 21 Crim LJ 273, 278.

4. The author generally concluded:[30]

   In almost all such instances, the High Court’s approach, properly understood, prioritises the preservation of the presumption of innocence which underlies the rule in Robinson.  Any remaining doubt about the High Court’s view was removed in the 1994 judgment, Ramey v The Queen, which declared shortly:

   [The principle in Robinson] is not to be eroded by Courts of Criminal Appeal nor, a fortiori, by trial judges by failing faithfully to apply the prohibition against the giving of a direction to evaluate the evidence of an accused on the basis of the accused’s interest in the outcome of the case.

   The court’s meaning is clear: the strict prohibition required in Robinson should apply almost invariably.

   [30]   (1997) 21 Crim LJ 273, 281.

5. The authorities largely bear out the author’s conclusion.  In Hargraves, the High Court later observed of that 20 year period:[31]

   [37]    Later decisions of intermediate courts generally treated[32] Robinson as standing “for a rigorous principle to be faithfully applied”.[33]  But the “principle” for which Robinson was treated as standing was usually stated negatively: a trial judge should not direct a jury to evaluate an accused’s evidence on the basis of the accused’s interest in the outcome of the case.  Such a negative statement does not identify the content or source of the relevant principle in a way that permits its application except by some mechanical comparison between those forms of words that have passed muster and those that have not.

   [31] (2011) 245 CLR 257, 274.

   [32]   See, eg, R v Brotherton (1992) 29 NSWLR 95; R v Asquith (1994) 72 A Crim R 250; R v Brown [1995] 1 Qd R 287; R v Haggag (1998) 101 A Crim R 593; Morris v The Queen (2006) 201 FLR 325; cf R v McMahon (2004) 8 VR 101.

   [33]   R v Haggag (1998) 101 A Crim R 593, 598 (Callaway JA).

6. R v Haggag was the decision of the Victorian Court of Criminal Appeal referred to in the second footnote in the above passage.  There, Callaway JA (with whom Phillips CJ and Kenny JA concurred) referred to Stafford and Ramey and continued:[34]

   Three points emerge from those judgments.  The first is that, when one speaks of evaluating the evidence of an accused person “on the basis of” his or her interest in the outcome of the case, as in Robinson’s Case itself at 536 and in Ramey’s Case in the judgment set out above, that does not mean solely or even mainly on that basis.  A trial judge should not direct the jury that the interest of the accused in the outcome of the trial is even a factor to be taken into account in assessing his or her evidence.  The second is that the prohibition is not confined to directions in the sense of injunctions to the jury that they must, or must not, do something.  It extends to an invitation by the judge to assess the reliability of the evidence of the accused, or the relative reliability of his or her evidence and that of other witnesses, by reference to interest or lack of interest in the outcome of the trial.  The third is that Robinson’s Case does not depend on its unusual facts but stands for a rigorous principle to be faithfully applied.

   (Emphasis added)

   [34] (1998) 101 A Crim R 593, 598.

7. Concerning the position in Queensland, the remarks of Macrossan CJ in R v Wilson[35] extracted above at paragraph [36] were from his Honour’s dissenting judgment.  Wilson was decided shortly after Robinson (but before Stafford) and Macrossan CJ then considered that the Court in Robinson was not saying that it was necessarily wrong to direct the jury’s attention to the fact that witnesses can have an interest in the outcome of a trial, but that there were dangers in doing so.  However, de Jersey J and Dowsett J took a different view; they considered that no mention should be made of such an interest.  Thus Dowsett J stated:[36]

   Although the High Court acknowledged that in exceptional cases, such a direction might be justifiable, in practice it is now undesirable in the extreme that a trial judge make any reference to such interest in advising a jury on resolving conflicts of evidence.

   In the circumstances, unless the case falls within the proviso, the conviction must be quashed.  It may well be arguable that the interest of the accused is so obvious that to state it is unlikely to affect the outcome of the trial.  However the High Court having so severely criticized such a direction, I cannot but treat it as likely to have caused a serious miscarriage of justice.  Thus the matter cannot be within the proviso.

   [35] [1992] 2 Qd R 174.

   [36] [1992] 2 Qd R 174, 179.

8. Later, following the delivery of the judgment in Stafford, the Queensland Court of Appeal adopted the stricter line exemplified by the judgments of de Jersey J and Dowsett J in Wilson.  Thus in the decision of the Court of Appeal in R v Brown, Fitzgerald P, Pincus JA and Williams J stated:[37]

   The effect of those directions, in summary, is that the jury were told that they were not to disbelieve the evidence of the appellant merely because he was interested in the outcome of the proceeding as the accused charged with murder, but to “keep in mind” his interest in determining whether or not to accept that evidence.

   That was a misdirection: see Robinson v The Queen … Stafford v The Queen … .

   [37] [1995] 1 Qd R 287, 290.

9. Their Honours observed that in so far as the statements in Stafford were inconsistent with a number of previous Queensland decisions, those cases should no longer be followed.  Their Honours concluded:[38]

   The errors made here by the learned trial judge were in drawing the attention of the jury to the interest of the accused in the outcome of the trial, and further, and perhaps more significantly, encouraging them to keep in mind that fact and to look “carefully” at his evidence.  Such directions are inconsistent with Robinson and Stafford.

   … The only rational conclusion open is that his Honour was inviting the jury to assess the reliability of the accused’s evidence taking into account his interest in the outcome of the trial, and also taking into account the relative reliability of his evidence given the interest in, or lack of interest in, the outcome of the trial on the part of other witnesses.  The passage is but another illustration of the type of observation condemned in Robinson.

   [38] [1995] 1 Qd R 287, 291.

10. The Western Australian Court of Criminal Appeal has taken a line similar to that latterly adopted taken in Queensland in Brown.  Thus in De Rosa v Western Australia, Roberts-Smith JA (with whom McLure and Buss JJA agreed) stated:[39]

    [39] (2006) 32 WAR 136, 146-149.

    [42]    The principle is that to direct a jury that they should evaluate evidence on the basis of the interest of witnesses in the outcome of the case is to strike at the notion of a fair trial for an accused.

    [43]    The rationale for the principle is that other than in the most exceptional case, such a direction inevitably unfairly disadvantages the accused when his or her evidence is in conflict with that of prosecution witnesses.

    [44]    The following propositions may be extracted from the authorities referred to above:

    (1)     Where an accused gives evidence, even a direction that a jury might take into account the interest of witnesses generally, in the outcome of the case, will infringe the principle, because the accused will always be seen as having the greatest interest in the outcome of the case.

    (2)     The unfairness lies in the notion that the evidence of an accused may have to be given particular scrutiny because he or she is the accused.  That approach undermines the presumption of innocence.

    (3)     The unfairness will be manifest where there is a conflict between the evidence of an accused and that of prosecution witnesses, and particularly so where the outcome turns on the jury’s preference for the evidence of the complainant against that of the accused.

    (4)     The prohibition applies to a direction about the interest of a witness in the outcome of the trial; it does not preclude reference to any other interest or motive which a witness (including the accused) may have when giving evidence in the proceedings.

    (5)     The unfairness flowing from such a direction may not be overcome by otherwise impeccable directions on the onus and standard of proof.

    (6)     In an exceptional case, where the circumstances require some reference to the accused’s interest in the outcome as a matter of fairness to the accused, it should be sufficient to direct the jury they must approach the case on the basis the accused is presumed innocent of the acts the subject of the charge and that it would be wrong and unfair for them to discount the accused’s evidence, simply because he or she has a particular interest in the outcome of the trial.

    (7)     The principle is to be rigorously applied and not to be eroded by Courts of Appeal or trial Judges failing to faithfully apply the prohibition against the giving of a direction to evaluate the evidence of an accused on the basis of his or her interest in the outcome of the case.

    [45]    I return to the instant case.

    …

    [50]    There was no clear statement to the jury that they must not discount the appellant’s evidence simply because he had a particular interest in the outcome of the trial.

    …

    [53]    What his Honour said did not, in my view, even impliedly, exclude the appellant from the effect of the direction.  His Honour was listing factors which the jury could consider in respect of witnesses generally.  Although the reference to witnesses with a relationship to the complainant or the appellant obviously enough could not apply to the complainant or the appellant themselves, all of the other factors mentioned could do so.  That necessarily included each witness’ interest in the outcome of the case.

    …

    [56]    When a direction is given that a jury may evaluate the evidence of a witness by reference to that witness' interest in the outcome of the trial, it is essential for the trial Judge to make it clear that does not apply to the accused, by way of a direction in accordance with Stafford.  Here the jury would most likely have taken the Judge’s direction as intended to apply to the appellant as well as to other witnesses.  The structure of the direction pointed that way and there was nothing said by his Honour to exclude the appellant.  The direction embodied the very same flaw which was fatal in Robinson and Etherton.  This Court is obliged “faithfully to apply the prohibition”.  This ground has been made out.

11. As for South Australia, in the decision of this Court in R v Hickman,[40] decided soon after Robinson, the Court noted an undermining of the presumption of innocence by the effect of asserting that persons charged with serious offences commonly give false evidence to save themselves.  The trial Judge had there stated in the summing up:[41]

    There are two things about an accused’s denial in these circumstances.  They are common in every case, not only with this accused.  If he is falsely charged, there is nothing more he can do than deny it.  If he is properly charged, he would deny it.

    He has denied it consistently and you have heard him give his evidence.  There is nothing more he can do in a trial of this nature than deny it.  You cannot expect any more from the accused in cases such as this than to make a denial.  There is nothing else he can do.  He cannot prove a negative.

    [40] (1993) 60 SASR 415.

    [41] (1993) 60 SASR 415, 420.

12. After a complaint by counsel, the Judge later redirected the jury:[42]

    I mention to you that the accused can do no other than deny it and, of course, that is what the accused has done in this trial.  He can do no other than to deny the event and he has done that and he has done it on oath, and you are to give due weight to his evidence in all of this issue.

    [42] (1993) 60 SASR 415, 421.

13. On appeal, Perry J (with whom Matheson J agreed) referred to the then recent decision in Robinson and stated that an “undermining of the presumption of innocence” was caused by the fact that the directions “had a clear tendency to put in the minds of the members of the jury the belief that it was common for anyone charged with a criminal offence to deny it even if the charge has properly been laid.”

14. One might also note that in the later decision of this Court in R v Griffis, the accused was charged with rape and the Judge had asked rhetorically (as to both the complainant and the accused) in his summing up:[43]

    “Did he have a reason for making false denials to this Court, namely, to avoid responsibility for what he knew he had done?  Did the desire to avoid the consequences of a conviction for rape lead him to respond to the allegations in the way he did?”  …  Similar questions were posed with respect to the complainant.

    [43] (1996) 67 SASR 170, 176. This is one of the few decisions (in the relevant time frame) of which I am aware that is not referred to in Mr Gans’ article.

15. Cox J (with whom Perry and Lander JJ agreed) referred to the decisions of the High Court in Robinson and Stafford and stated:[44]

    It seems to me that what the learned judge said invited the jury to assess the appellant’s evidence with his obvious interest in the outcome of the trial in mind.  His Honour may have considered that he was simply articulating a thought that doubtless will often occur to a jury whether the judge mentions it or not, but the direction was an irregularity.

    [44] (1996) 67 SASR 170, 176.

16. In R v Copeland,[45] the trial Judge gave general directions that in assessing witnesses, the jury may take into account various matters including “any interest of his own that a witness might have to serve by giving false evidence or, indeed, any interest which might incline him to give biased evidence …”.[46]  In a later section of the summing up, the Judge directed:[47]

    He has elected to make his defence by going into the witness box, taking the oath, exposing himself to the test of cross-examination, and you should assess his evidence and evaluate his evidence in exactly the same way as you would that of any other witness.  You should not disregard his evidence or treat it lightly or discount it simply because he was the accused person.  You should evaluate his evidence as you would evaluate the evidence of any other witnesses in the case and according to the same criteria as you would apply to other witnesses.   (Emphasis added)

    [45] (1997) 194 LSJS 1.

    [46] (1997) 194 LSJS 1, 5.

    [47] (1997) 194 LSJS 1, 5.

17. One immediately appreciates that the juxtaposition of concepts in Copeland was much less stark than in the present case and, most importantly, the trial Judge in Copeland gave the jury what has been referred to as “the Stafford direction”: You should not disregard his evidence or treat it lightly or discount it simply because he was the accused person, whereas this was omitted in the present case.

18. However, it was contended in Copeland that the directions did have the effect of inviting the jury to consider the interest that the accused had in securing an acquittal and a miscarriage of justice thereby ensued.  Doyle CJ rejected that contention; his Honour referred to Robinson and Stafford and stated:[48]

    In my opinion it was both appropriate and necessary for the trial judge to give the jury guidance in relation to the assessment of the accused as a witness.  If nothing is said there is a danger that the jury might, in fact, discount the evidence of the accused simply because he was the accused, or for some other inappropriate reason.  In principle, in my opinion it was appropriate to direct the jury to treat the accused like any other witness: Robinson v The Queen (supra).  I cannot think of any better way of maintaining the right balance.  It is desirable to give the jury an explicit warning, as the judge did here, against discounting the evidence of the accused because he is the accused.  In short, what the judge said here seems to me to be completely appropriate for most cases.

    I agree with the submission of counsel for the Director of Public Prosecutions, that a direction which referred only to the reliability of the accused runs the risk of appearing to single the accused out in some way.  That is another reason for directing the jury that they should treat the accused like any other witness.

    In my opinion it will usually be appropriate, in relation to other witnesses, to give the guidance that the trial judge gave.

    In my opinion it follows that, in the usual sort of case, the direction that the trial judge gave will be appropriate.  It is appropriate even though there is the risk, in theory, of the jury interpreting a reference to the “particular interest or purpose of the witness” (Robinson v The Queen (supra) at 536) as a reference to the outcome of the case. That risk is a reason for warning the jury not to discount the evidence of the accused.  What the High Court said in the passage that I have set out from its judgment in Robinson v The Queen (supra) appears to endorse a direction along the lines that the trial judge gave.

    I do not accept that in that passage the High Court intended to do no more than identify a process of reasoning that a jury might follow, as distinct from something that a trial judge might permissibly say to the jury.

    All that being so, in my opinion it follows that no valid complaint can be made about the direction that the trial judge gave, unless it makes all the difference that the accused in this case was the only witness whose testimony was under attack.  My conclusion that, subject to that factor, the direction that the trial judge gave was appropriate, is supported by the decision of the Court of Criminal Appeal of New South Wales in Asquith v The Queen (1994) 72 A Crim R 250 at 256.

    Did the particular circumstances of this case make the direction that the trial judge gave inappropriate?  The answer to that question turns upon whether the direction was likely to disadvantage the accused in the manner identified in Robinson v The Queen (supra).

    (Emphasis added)

    [48] (1997) 194 LSJS 1, 7-8.

1. His Honour concluded:[49]

   I do not consider that the direction had the suggested effect.  The judge carefully avoided any reference to an interest in the outcome of the case, the criterion for assessing credibility which the High Court considered was disadvantageous to the accused.  The risk of the jury concluding that the reference to the interest or purpose of a witness, when related to the accused, raised for the jury’s consideration the interest of the accused in the outcome of the case, was really no greater in this case than it is in any other case.  Granted, if the jury reasoned in the way suggested by counsel for the appellant, it must work to the disadvantage of the accused, but the antidote to this surely must rest in the warning that the trial judge gave against discounting the evidence of the accused because he is the accused.  In my opinion, if the submission advanced by the appellant is correct, the direction that the trial judge gave and which the High Court appeared to contemplate in Robinson v The Queen (supra) would be generally inappropriate, because it would in all cases tend to invite the attention of the jury to the interest that the accused has in the outcome of the case.

   Instructing a jury in a manner that is both helpful and intelligible to them as laymen, yet kept within a reasonable length, while dealing adequately with all relevant matters of law and fact and achieving an appropriate balance between prosecution and defence, is a difficult task.  It will become even more difficult if a jury cannot be given the sort of assistance that the judge gave to the jury in relation to assessing the credibility of witnesses, because that might work to the disadvantage of the accused if, in the interests of fairness, the jury are directed to treat the accused like any other witness.  As I have said before, in my opinion the antidote to the poison that counsel for the appellant identified is to be found in the warning given not to discount the evidence of the accused.   (Emphasis added)

   [49](1997) 194 LSJS 1, 8.

2. It is notable that his Honour stressed, on at least two occasions, that if a Judge is to give a direction that, in assessing witnesses, the jury may take into account any interest of his own that a witness might have to serve, then the accused must not be singled out and the antidote of the Stafford direction must be given to combat the poison that is thereby collaterally administered.

3. In saying so, his Honour undoubtedly followed and applied the decision in R v Asquith to which his Honour specifically referred.  Hunt CJ at CL there stated:[50]

   What the High Court has said in Robinson … and has underlined in Stafford, is that, where attention is drawn (directly or indirectly) to that basic fact of human nature, it is likely to be understood by the jury as an invitation to discount the evidence of the accused, other than in exceptional circumstances when (it would seem) it is necessary to do so in fairness to the accused, and in those circumstances it becomes necessary to give to the jury the warning described in Stafford.  No such warning was given in this case.   (Emphasis added)

   [50] (1994) 72 A Crim R 250, 256.

4. The directions given by the Judge in the present case were very different to those in Copeland.  They were very pointed and quite unnecessary.  A large dose of poison was administered.  No antidote was offered, with terminal consequences for the prosecution case.

   The decision of the High Court in Hargraves v The Queen

5. In Hargraves v The Queen,[51] the appellant’s were convicted of conspiring to defraud the Commonwealth by making false representations about taxation deductions of the company PDC.  The company’s accountant, Mr Feddema, was an important prosecution witness and was cross-examined at length to suggest that he knew more about the scheme than he stated and that his evidence was tailored to avoid him being charged with an offence.  The evident thrust of much of the cross-examination was to provide a basis for the appellants’ defence that their conduct in relation to the scheme was not dishonest because they were acting upon the advice of Mr Feddema about a structure that, so far as they knew, was to be lawfully established and operated.

   [51] (2011) 245 CLR 257.

6. In summing up to the jury the Judge made use of Powerpoint slides, two of which read as follows:

   ·       Demeanour and presentation

   ·Nervousness

   ·Evasiveness

   ·Care and attentiveness

   ·Memorising

   ·       Sources of knowledge

   ·Opportunity to observe

   ·Reliance on statements of others

   ·       Likelihood

   ·       Interest

   ·Friendship

   ·Self protection

   ·       Comparison with known facts

   ·       Comparison with documents

   ·       Accept in whole or in part

   ·       Lies.   (Emphasis added by the High Court)

7. The Judge directed on the subject described as “Interest” as follows:

   Does the witness have an interest in the subject matter of the evidence?  For example, friendship, self‑protection, protection of the witness’s own ego.  There are any number of personal interests which people have and which they sometimes try to protect in giving evidence.    (Emphasis added by the High Court)

8. Defence counsel took exception to this direction, submitted that it was contrary to the decision in Robinson and applied for the jury to be discharged.  The trial Judge rejected that application and stated that the direction did not refer to any interest in the outcome of the case and that it was a direction about Mr Feddema’s evidence.  On appeal, the Queensland Court of Appeal held that “the Robinson principle” had been contravened but decided to apply the proviso.  The appellant’s appealed to the High Court against that latter decision.

   The plurality’s reasoning in Hargraves in stages

9. The plurality judgment[52] in Hargraves closely considered the question of whether Robinson established some new rule or principle and decided that it did not.  The judgment proceeds in the following stages.

   [52]   (French CJ, Gummow, Hayne, Crennan, Kiefel and Bell JJ).

10. The first stage was to note that legal propositions about Robinson’s application were usually stated negatively, and in a way not indicative of any new rule or principle:[53]

    [37]    Later decisions of intermediate courts generally treated[54] Robinson as standing “for a rigorous principle to be faithfully applied”.  But the “principle” for which Robinson was treated as standing was usually stated negatively: a trial judge should not direct a jury to evaluate an accused’s evidence on the basis of the accused’s interest in the outcome of the case.  Such a negative statement does not identify the content or source of the relevant principle in a way that permits its application except by some mechanical comparison between those forms of words that have passed muster and those that have not.

    [38]    This is not a satisfactory form of “rule” or “principle”.  And Robinson did not establish or apply any new or distinct rule or principle that is to be expressed in the negative terms identified.  …

    [53] (2011) 245 CLR 257, 274.

    [54]   The decisions referred to in footnotes to this passage appear in the same passage reproduced above. 

11. The second stage was to note that the decision in Robinson depended on the application of the broad governing principle that an accused person must be fully accorded the benefit of the presumption of innocence:[55]

    [38]    … Rather, the decision in Robinson depended upon a more basic principle which, examination will show, stems from the fundamental features of a criminal trial.  Examination will also show that this more basic principle is the foundation for several decisions which are sometimes treated as if they establish separate and distinct rules governing what may or may not be said in instructing a jury.  To identify that principle it is necessary to begin by recognising what was the question at issue in Robinson and what is the question at issue in these matters.

    [39]    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.

    [40]    The governing principle applied by the Court in Robinson was not identified as being new.  Rather, the Court directed[56] 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.

    [55] (2011) 245 CLR 257, 275.

    [56] (1991) 180 CLR 531, 536.

12. The third stage was to note that a question of whether the presumption of innocence” has been undermined in a particular case is to be answered by reference to the fundamental features of a criminal trial.  The Court stated:[57]

    [41]    The plurality in RPS v The Queen[58] described those features as being that “a criminal trial is an accusatorial process in which the prosecution bears the onus of proving the guilt of the accused beyond reasonable doubt” (emphasis added).  Or, as the Court put the same point in Robinson,[59] “the jury must act on the basis that the accused is presumed innocent of the acts which are the subject of the indictment until they are satisfied beyond reasonable doubt that he or she is guilty of those acts” (emphasis added).  These being the fundamental features of a criminal trial, it follows that the judge’s instructions to the jury must accord with them and departure from them would be a miscarriage of justice.

    [57] (2011) 245 CLR 257, 275.

    [58] (2000) 199 CLR 620, 630 [22].

    [59] (1991) 180 CLR 531, 535-536.

13. The fourth stage was to note that a trial Judge has a primary responsibility not to deflect the jury’s attention from the need to be persuaded beyond reasonable doubt of the accused's guilt before returning a verdict of guilty:[60]

    [42]… But informing and underpinning all of these requirements is that the judge’s instructions to the jury, whether by way of legal direction or judicial commentary on the facts, must not deflect the jury’s attention from the need to be persuaded beyond reasonable doubt of the accused’s guilt before returning a verdict of guilty.   (Emphasis added)

    [60] (2011) 245 CLR 257, 276.

14. The fifth stage was to give some (non-exhaustive) examples of ways in which a jury may be deflected from its fundamental task; the Court referred to directions concerning an election by an accused not to give evidence[61] and an accused being cross-examined as to whether he or she could offer any reason or motive for a complainant to lie.[62]

    [61] (2011) 245 CLR 257, 276 [43].

    [62] (2011) 245 CLR 257, 276-277 [44].

15. The sixth stage was to characterise Robinson “as a particular application of this more general principle”:[63]

    [45]    Robinson, too, is to be seen as a particular application of this more general principle.  Inviting a jury to test the evidence given by an accused according to the interest that the accused has in the outcome of the trial, or suggesting that the accused’s evidence should be scrutinised more carefully than the evidence of other witnesses, deflects the jury from recognising and applying the requisite onus and standard of proof.  It is for the prosecution to prove its case, not for the accused to establish any contrary proposition.  The instructions which a trial judge gives to a jury must not, whether by way of legal direction or judicial comment on the facts, deflect the jury from its fundamental task of deciding whether the prosecution has proved the elements of the charged offence beyond reasonable doubt.   (Emphasis added)

    [63] (2011) 245 CLR 257, 277.

    The application of the governing principle to cases of the present type 

16. The plurality in Hargraves, after proceeding through the six stages considered above, proceeded to render valuable practical assistance to courts considering cases of the type under consideration here.

17. Their Honours noted that the governing principle, even though expressed at a high level of abstraction in the form of the question “did the Judge’s instructions deflect the jury from its fundamental task of deciding whether the prosecution proved the elements of the charged offence beyond reasonable doubt?”, may be readily answered in favour of an appellant in a case involving jury directions suggestive of an evaluation of an accused’s evidence by reference to a motive to procure a favourable outcome of the trial.  Their Honours stated:[64]

    [46]    The principle that is identified is expressed at a high level of abstraction: did the judge’s instructions deflect the jury from its fundamental task of deciding whether the prosecution proved the elements of the charged offence beyond reasonable doubt?  Directions given by a trial judge can often be assessed against that principle by observing no more than that the judge has so instructed the jury that it would be open to the jury to evaluate an accused’s evidence on the basis of the accused’s interest in the outcome of the trial.  …(Emphasis added)

    [64] (2011) 245 CLR 257, 277.

18. The words used by the plurality in Hargraves were no less emphatic than those used in Robinson, Stafford and Ramey. In Hargraves, their Honours concluded:[65]

    [46]… It is to be emphasised that trial judges must not instruct juries in that way: whether as a direction of law or as a judicial comment on the facts of the case.  And it should also be emphasised that nothing that is said in these reasons should be understood as diminishing the need for intermediate courts of appeal to insist upon the observance of this requirement.  Whether there has been on any other ground whatsoever a miscarriage of justice must always require consideration of the whole of the judge’s charge to the jury.  In every case, the ultimate question must be whether, taken as a whole, the judge’s instructions to the jury deflected the jury from its proper task.[66]

    (Emphasis added)

    [65] (2011) 245 CLR 257, 277.

    [66]   On the facts in Hargraves, the plurality considered that the jury would have taken the same view taken by the trial Judge, namely that the passages complained of actually referred to the prosecution witness Feddema (as the Judge stated to counsel at trial) and that read as a whole, the summing up was not such as would deflect the jury from its task of deciding whether the prosecution had proved its case beyond reasonable doubt. Their Honours stated at 277-278 [47]-[49]:

    “In this matter there was a real and lively issue about whether Mr Feddema’s evidence of what he knew about the scheme and what he had told the appellants about the scheme was full and frank.  As noted earlier, it was suggested to Mr Feddema, in cross‑examination, that his evidence was neither full nor frank and that he had a distinct and pressing interest not to give evidence that would show that he had known how the scheme would work or that he had given a truthful explanation to either of the appellants or to Mr Glenn Hargraves of how the scheme would work.  And in their closing addresses trial counsel for each appellant laid emphasis on these matters.

    Taken in the context of the whole of the instructions from the trial judge, both the oral directions given about using the possible interest of witnesses in assessing their credibility, and the Powerpoint slides on that subject that were given to the jury, would have been understood by the jury as directed to the evidence of Mr Feddema.  It may be accepted that those directions could have been understood as capable of application to the evidence given by the appellants.  But the trial judge referred to two kinds of interest:  friendship and self‑protection.  At no point did the trial judge refer to the outcome of the case as a matter in which a witness could have an interest.  As Muir JA rightly concluded, the direction was unlikely to have been given much prominence by jurors and “would not have been understood by the jury ‘as meaning that the evidence of [each] appellant had to be scrutinised more carefully [than] that of any other witness’”.  The impugned direction differed in both its form and its effect from that considered in Robinson.  Almost immediately after giving the impugned direction the trial judge told the jury that “[a] lie by an accused person does not prove guilt” and that “[t]he Crown always carries the onus of proving the case even against a liar”.

    Read as a whole, the instructions which the judge gave were not such as would deflect the jury from its task of deciding whether the prosecution had proved its case beyond reasonable doubt.  There was not, therefore, a miscarriage of justice occasioned by the trial judge giving the impugned directions.

19. Thus, the effect of Hargraves is not to diminish, let alone “overrule”, the approach taken in Robinson, Stafford and Ramey.  Rather, it places those decisions in a broader context where they can be seen to be instances of the application of a pre-existing broad principle, namely that a Judge has a positive legal obligation not to deprive the accused of the benefit of the presumption of innocence.

    Applying the principle identified in Hargraves to the present circumstances 

20. Somewhat unfortunately, the outlines and lists of authorities of both the appellant and respondent referred only to Robinson and not to the decision of the High Court in Hargraves.  This is not an ideal situation.

21. However, the submissions of the appellant appear sufficiently from the face of ground 3 of appeal.  The relevant part of the respondent’s outline of argument pertaining to ground 3 of appeal advanced the following four contentions:

    AThe learned trial judge correctly directed the jury as to an appropriate way to assess witnesses.  In the context of the directions the reference to considering a motive to lie was of general application to witnesses.  This was not a pointed reference to the appellant alone.

    BHis Honour further directed the jury that they were entitled to give such credit as they thought appropriate to Parsons for adopting a course he was not obliged to adopt and that his evidence should be assessed like that of any other witness.

    CHis Honour did not suggest that the evidence of Parsons required any greater degree of scrutiny because he was the accused, or that he should in any way be treated as a “suspect witness”.  The prohibition is against giving directions of that nature.

    DWhilst it may be desirable in some instances to give the jury a warning that the evidence of an accused person not be disregarded or treated lightly or discounted simply because he is the accused, the lack of such a direction did not occasion a miscarriage of justice.

22. With respect, I am unable to accept any of these contentions.

23. Contention A does not really come to grips with the essence of the appellant’s case, which is that the Judge here positively went out of his way to direct the jury that the only person anyone suggested was lying was the appellant; it therefore followed, as night follows day, that talk of “motive to lie” only applied to the appellant in a reference that was calculated and sharply pointed.

24. Contention B may be literally correct if the two directions referred to are viewed in isolation, but it lacks real meaning in the context of the present case.  A bare assertion that the jury were entitled to give such credit as they thought appropriate is rather set at nought where, as here, the jury are told in the same breath that they might consider whether he has a motive to lie to them, namely the motive of avoiding responsibility for his criminal conduct, as appears from the thrust of the cross-examination of him.  Further, a direction that “his evidence should be assessed like that of any other witness” cannot be divorced from the Judge’s directions that the only person anyone suggested was lying was the appellant, the talk of “motive to lie” only applying to him.

1. Contention C is not correct for several reasons.  First, the Judge did suggest that the evidence of Parsons required a greater degree of scrutiny because he was the accused in the sense that his Honour positively stated that Parsons was the only one who was accused of lying and, accordingly, was the only one who was to be scrutinised on the topic of whether he had a motive to lie.  The Judge pointedly distinguished him from other witnesses on the basis that he, unlike them, was motivated to lie because he was facing a serious criminal charge.  To use the terminology of Hargraves, this was far more “diverting” of the presumption of innocence than the trial Judge’s direction in Robinson where the jury were “merely” invited to “scrutinise closely” the evidence of the accused because of his great interest in the outcome of the trial.

2. Second, and more fundamentally, contention C is addressed only to the decision of the High Court in Robinson (together with Stafford and Ramey), and the contention predicates far too narrow an interpretation of those three decisions in suggesting that “the prohibition is against giving directions of that nature”.  The contention ignores the decision of the High Court in Hargraves where the plurality made plain that:[67]

   Inviting a jury to test the evidence given by an accused according to the interest that the accused has in the outcome of the trial, or suggesting that the accused’s evidence should be scrutinised more carefully than the evidence of other witnesses, deflects the jury from recognising and applying the requisite onus and standard of proof.        (Emphasis added)

   [67] (2011) 245 CLR 257, 277 [45].

3. In other words, either of these approaches may have the prohibited effect of deflecting the jury.  The emboldened word “or” is a true disjunctive; it is not necessary for both to be present.  The plurality went on to make that explicit:[68]

   Directions given by a trial judge can often be assessed against that principle by observing no more than that the judge has so instructed the jury that it would be open to the jury to evaluate an accused’s evidence on the basis of the accused’s interest in the outcome of the trial.

   [68] (2011) 245 CLR 257, 277 [46].

4. Contention D pays insufficient attention to the matter of context in the present case.  As discussed above, reference should not be made to the interest of the accused in the outcome of the case, except in exceptional circumstances which clearly did not apply here.  If such a reference is made (and a very pointed reference was made here), a Stafford direction that it would be wrong and unfair to discount his evidence simply for the reason that he has a particular interest in the outcome of the trial is really the only sufficient antidote to the poison and to prevent a miscarriage of justice.  It was not given here just as it was not given in Asquith,[69] and the consequences, after applying the Hargraves approach, are the same.

   [69] (1994) 72 A Crim R 250.

   Conclusion

5. I would grant permission to appeal on ground 3 of appeal.  The appellant has made out ground 3 of appeal and established substantial misdirection going directly to the matters of the presumption of innocence and the assessment of the evidence given by an accused person.  Here, that evidence, if not negated beyond reasonable doubt, demonstrated a complete defence for both appellants to all of the counts on the Information.  In these circumstances, it is not possible to apply the proviso.

6. It is unnecessary to consider ground 1 of each appeal[70] upon which permission to appeal was granted by the singe Judge since, if successful, it would lead only to an order for a retrial rather than acquittal.  It is unnecessary to consider proposed ground 2 of Brady’s appeal upon which permission to appeal is required for the same reason.

   [70]   Ground 1 raised various complaints concerning the identification evidence and the Judge’s directions with respect thereto.

7. The appellants each apply for this Court to grant permission to appeal on proposed grounds 4 and 5 of appeal as to which the single Judge did not grant permission to appeal but referred those proposed grounds to this Court.  Having considered the submissions made by the appellants and respondent in relation to those proposed grounds of appeal, I consider that they have no prospect of success and I would refuse permission to appeal.  Proposed ground 6 of appeal was withdrawn.

   Proposed Orders

   1The Court grants permission for both appellants to appeal on ground 3 of appeal as it appears in the appellant Brady’s grounds of appeal.  Otherwise, permission to appeal on other referred grounds of appeal is refused.

   2The appeals of both appellants are allowed.

   3All convictions are set aside.

   4A new trial on the Information is ordered for both appellants.

8. NICHOLSON J.    I agree with the orders proposed by Peek J for the reasons his Honour has given.