RH v The Queen

[2022] NTCCA 7

CITATION:Hampton v The Queen [2022] NTCCA 7

PARTIES:HAMPTON, Ralph

v

THE QUEEN

TITLE OF COURT:  COURT OF CRIMINAL APPEAL OF THE NORTHERN TERRITORY

JURISDICTION:  CRIMINAL APPEAL from the SUPREME COURT exercising Territory jurisdiction

FILE NO:CCA 10 of 2021 (22024586)

DELIVERED:  1 April 2022

HEARING DATE:  7 February 2022

JUDGMENT OF:  Kelly, Blokland and Brownhill JJ

CATCHWORDS:

CRIME – Appeals – Appeal against conviction – Unreasonable verdict

Appellant found guilty of sexual intercourse without consent following trial by jury – Whether one or more irregularities in conduct of trial comprised a miscarriage of justice – Cross-examination of accused, and address by the Crown, about whether complainant and witness were upset with him not a miscarriage of justice – Questions did not amount to asking accused to identify a motive to lie, but to matters within the accused’s knowledge – Cross-examination of accused about accused exercising right to silence not a miscarriage of justice – While an impropriety and the answer was inadmissible, in the context of the trial as a whole, it did not raise a realistic possibility that it affected the basis on which the jury reached its verdict of guilt – Cross-examination of accused about whether he had told his lawyer things in respect of which the complainant and a witness were not cross-examined a miscarriage of justice – Answers inadmissible as subject to legal professional privilege – Accused not informed of right to refuse to answer – Jury not directed as to accused’s right to silence and inadmissibility of answers – Application of proviso in s 411(2) of the Criminal Code – Court not able to be satisfied of appellant’s guilt beyond a reasonable doubt – Appeal allowed and new trial ordered.

Hofer v The Queen (2021) 95 ALJR 937; Petty v The Queen (1991) 173 CLR 95; The Queen v Reeves (1992) 29 NSWLR 109, applied.

Attorney-General for the Northern Territory v Maurice (1986) 161 CLR 475; Banksia Mortgages Ltd v Crocker [2010] NSWSC 535; Barr v The Queen (2004) 14 NTLR 164; BD v The Queen (No 2) (2017) 40 NTLR 50; Benecke v National Australia Bank (1993) 35 NSWLR 110; Birks v The Queen (1990) 19 NSWLR 677; Callander v The Queen (2004) 185 FLR 38; Craig v The Queen (2018) 264 CLR 202; Director of Public Prosecutions (Cth) v Kinghorn [2020] NSWCCA 48; DSE (Holdings) Pty Ltd v Intertan Inc (2003) 127 FCR 499; Douglass v The Queen (2012) 86 ALJR 1086; Dyers v The Queen (2002) 210 CLR 285; Farah Constructions Pty Ltd v Say-Dee Pty Ltd (2007) 230 CLR 89; GBF v The Queen (2020) 94 ALJR 1037; Glencore International AG v Federal Commissioner of Taxation (2019) 265 CLR 646; Hamilton (a pseudonym) v The Queen (2021) 95 ALJR 894; Hofer v The Queen [2019] NSWCCA 244; Kalbasi v Western Australia (2018) 264 CLR 62; Liberato v The Queen (1985) 159 CLR 507; Libke v The Queen (2007) 230 CLR 559; Llewellyn v The Queen [2011] NSWCCA 66; MLW v The Queen [2022] NTCCA 2; Nguyen v The Queen (2020) 269 CLR 299; Nudd v The Queen (2006) 80 ALJR 614; Orreal v The Queen [2021] HCA 44; Palmer v The Queen (1998) 193 CLR 1; Parsons v The Queen [2016] VSCA 17; Pell v The Queen (2020) 268 CLR 123; Perish v The Queen [2016] NSWCCA 89; Sanchez v The Queen [2009] NSWCCA 171; The Queen v Baden-Clay (2016) 258 CLR 308; The Queen v E (1996) 39 NSWLR 450; The Queen v Eaton [2005] QCA 191; The Queen v F (1995) 83 A Crim R 502; The Queen v Matthews (unreported, NSWCCA, 28 May 1996); The Queen v Manunta (1989) 54 SASR 17; The Queen v Stafford [2009] QCA 407; The Queen v T [1999] QCA 376; The Queen v Uhrig (unreported, NSWCCA, 24 Oct 1996); TP v The Queen [2012] VSCA 166; Weiss v The Queen (2005) 224 CLR 300; Wilde v The Queen (1988) 164 CLR 365, referred to.

Criminal Code 1983 (NT) s 127, 192(3), 410, 411(1), 411(2).
Evidence (National Uniform Legislation) Act 2011 (NT) s 89(1), 89(2), 118, 121-126, 132.

REPRESENTATION:

Counsel:

Appellant:N Redmond

Respondent:  V Engel with C Ingles

Solicitors:

Appellant:Northern Territory Legal Aid Commission

Respondent:  Office of the Director of Public Prosecutions

Judgment category classification:    B

Number of pages:  64

IN THE SUPREME COURT
OF THE NORTHERN TERRITORY
OF AUSTRALIA
AT DARWIN

Hampton v The Queen [2022] NTCCA 7

CCA 10 of 2021 (22024586)

BETWEEN:

RALPH HAMPTON

Appellant

AND:

THE QUEEN

Respondent

CORAM:    KELLY, BLOKLAND and BROWNHILL JJ

REASONS FOR JUDGMENT

(Delivered 1 April 2022)

THE COURT:

1. The appellant was charged with one count of sexual intercourse (digital/vaginal) without consent, contrary to s 192(3) of the Criminal Code 1983 (NT) (‘Criminal Code’). The charge related to a child (‘the complainant’) who was 13 years old at the time. An alternative charge of sexual intercourse with a person under the age of 16 years, contrary to s 127 of the Criminal Code, was put before the jury following a jury question about whether a child can consent to sexual intercourse. The jury, by unanimous verdict, found the appellant guilty of the principal charge of sexual intercourse without consent.

   Crown case

2. It was common ground that the appellant was the grandfather of the complainant and she called him ‘Pop’. He lived in a caravan on the property where the complainant lived in the house. The complainant and her friend, DK, were in the appellant’s caravan at the time of the alleged offending.

3. The Crown case was that the complainant and DK consumed alcohol and cannabis that evening, provided to them by the appellant, or at least obtained and consumed with his acquiescence. While they were in his caravan, they were listening to him tell them stories. The complainant moved to the appellant’s bed because she was cold and there was a heater over the bed. After some time, the appellant penetrated her vagina digitally without her consent. In her pre-recorded interview with police, the complainant said:

   So me and my friend [DK] were sitting in the caravan at the back and we was telling stories with Pop and um I started getting cold cause we had the caravan window open so I jumped in next to Pop while my friend [DK] was on the couch and because he had the heater on top of the bed where he was. Hmm and he started to touch me in inappropriate spots and I froze and didn’t know what to do so then I looked at my friend [DK] and when I got up I asked if she was awake and she said no and pretended she was asleep and it continued for about ten minutes maybe. Um then I got up and I told my friend [DK] I was, about, let’s go inside, so we got up and we went inside. I went and had a bath and I almost fell asleep and then when I got out I felt a bit sick because of what had happened so I just laid on the ground then my friend [DK] came in…[1]
   
   

4. The alleged offending occurred on a Saturday night and a complaint was first made to a school counsellor on the first school day three days later, with both the complainant and DK present.

5. The Crown called the complainant, DK, the complainant’s aunt who was at the home caring for the complainant while her parents were away, and the adult grandson of the appellant who also lived at the home and was there at the time of the alleged offending. (The evidence of both the complainant and DK included child forensic interviews with police.) The Crown also led complaint evidence from the complainant’s mother, DK’s adult foster sister and respite carer, and a school counsellor. The defence called the appellant’s adult granddaughter, TS, initially as a character witness, and the appellant gave evidence himself. He directly denied the alleged conduct.

   Legal principles: miscarriage of justice

6. The appellant was granted leave to appeal out of time against that conviction on three grounds, which are addressed below.

7. This is an appeal against the findings of guilt brought pursuant to s 410 of the Criminal Code. By s 411(1) and (2) of the Criminal Code, such appeals must be allowed if the Court is of the opinion that the verdict of the jury should be set aside (relevantly) if there was a miscarriage of justice, unless the Court is of the opinion that no substantial miscarriage of justice has occurred.

8. The principles governing appeals on this ground of appeal were recently reviewed by this Court in MLW v The Queen.[2] We need not repeat that review, but we repeat the conclusion (at [33]) that, to establish a miscarriage of justice arising from material irregularity in a trial, the appellant must show a realistic possibility that the identified procedural irregularity affected the basis on which the jury reached its verdict of guilt, in the context of the trial as a whole. It is only if that threshold is met that the appellate court is required to go on to consider the proviso and answer the quite distinct question of whether it is satisfied that no substantial miscarriage of justice actually occurred.

   Ground 1: Cross-examination and address about appellant’s inability to identify a motive for the complainant to lie
   What happened at trial

9. In cross-examination of the appellant, after the appellant denied a series of questions detailing the alleged conduct, the following exchange occurred:

   …[The complainant] got up and said to [DK], ‘Let’s go inside?’?---She got up, she was still sitting on the edge of the bed.

   And she said ‘Let’s go inside’ didn’t she?---Yeah we’ll go inside because it’s too cold out here.

   She just said ‘Let’s go inside’?---No.

   Okay. When you were asking the girls to leave, this is on your evidence, you say they were leaving, you weren’t growling at the girls were you?---No.

   There was no reason for them to think that they were in trouble from you?---No. I was just telling them to go in.

   And there was no reason for them to be upset with you that late at night was there?---No.[3]
   
   

10. The prosecutor’s closing address to the jury included the following:

    As to how it came about you’re going to have to consider [the appellant’s] evidence as well as the two girls. And in the end [the appellant] said that there was no reason for the girls to be angry at him.

    And if you think if they had been asking for alcohol or taking alcohol, whichever version you want and he’s allowing them to drink it and to smoke it and that’s something that they were going along with or doing, then they’ve not got a grudge against him for anything. He’s allowed them, you know, to do the sneaky things. Mum’s not home. So there doesn’t seem to be any animosity between him or the two girls on that night.[4]

    The appeal ground

11. This ground asserts that a miscarriage of justice occurred because the cross-examination italicised above was cross-examination of an accused to show that the accused was not aware of any motive for the complainant to lie, which is impermissible as held by the High Court in Palmer v The Queen[5].

    Legal principles: cross-examination of accused about witness’s motive to lie

12. In Palmer, the plurality of the High Court held (at [7]) that a complainant may be asked about whether they have a motive to lie, as a motive to lie is a fact that may be proved to impeach the complainant’s credit, and evidence may be given by other witnesses about events from which such a motive may be inferred. On the other hand, that an accused has no knowledge of any fact from which a motive of a complainant to lie might be inferred is generally irrelevant, the lack of knowledge simply meaning that the accused’s evidence cannot assist in determining whether the complainant has a motive to lie. To generally cross-examine an accused to show that they have no knowledge of any fact from which to infer the complainant has a motive to lie would be to focus the jury’s attention on irrelevancies, especially when the case is an ‘oath against oath’ case. The plurality approved (at [11]) previously stated rationales (set out at [8]) for this view, including the following.

    (a) Just as the law does not require the Crown in a criminal trial to prove a motive for the criminal conduct of the accused, the law does not require the accused to prove a motive for the making of false accusations by a complainant.[6]

    (b) Where there is no direct evidence of an actual motive to lie, nor evidence from which a specific motive to lie could reasonably be inferred, to ask ‘Why would they lie?’ is to invite the jury to speculate on what might be possible motives for lying and assess their likelihood, which is not to try the case on the evidence but to speculate concerning unproven facts.[7]

    (c) It is unfair to an accused to be expected to see into the mind of the complainant, and be held accountable for failing to discern whatever motive there might be for a false story.[8]

    (d) The effect of the question, ‘Why would they lie?’, is to reverse the onus of proof, to an extent, by implying that, unless the jury is satisfied by the accused that the witness has a motive to lie, they should accept the complainant’s evidence and convict.[9]

13. Similarly as to the last point, the plurality held (at [9]) that, if the credibility which the jury would otherwise attribute to the complainant’s account is strengthened by an accused’s inability to furnish evidence of a motive for a complainant to lie, the standard of proof is to that extent diminished.

14. The plurality added (at [8]), however, that if the facts from which an inference of motive might be drawn are facts that the accused would know if they existed, their lack of knowledge could be elicited to disprove those facts. Furthermore, the plurality accepted (at [10]-[11]) that the principle against general cross-examination of an accused to the effect of, ‘Why would they lie?’ did not exclude arguments being put to the jury, by either counsel or the judge, relating to the validity of the motive to lie which has been asserted in relation to a witness in the particular case.[10] It follows from those two propositions that there is nothing improper in making submissions about the accused’s lack of knowledge about facts from which an inference of motive might be drawn, if they are facts that the accused would know if they existed.

15. After a statement of the principles, the plurality went on to consider (at [11]-[13]) the effect of the cross-examination which had occurred in breach of those principles (including the timing and context of the questions) and the effect of the trial judge’s directions to the jury (which the plurality held were essentially instructions on the issues for determination and the onus and standard of proof of guilt). The plurality concluded that the directions were incapable of neutralising the prejudicial effect of the cross-examination questions because, ‘[h]aving acknowledged that he could offer no reason to impeach the credit of [the complainant] who had been showing her disbelief in his denials in evidence in chief, his protestations of innocence may well have rung hollow in the jury’s ears’. The plurality concluded that asking the questions in the circumstances of the case occasioned a miscarriage of justice.

16. It can be seen from this conclusion that whether there has been a miscarriage of justice depends upon the effect of the questions, and any directions made by the trial judge, in the context of the trial as a whole.

17. In summary, it is not a material irregularity to ask an accused about facts from which an inference of motive might be drawn if they are facts that the accused would know if they existed, and to make submissions to the jury about the validity of any asserted motive to lie.  It is a material irregularity in the conduct of a trial, at least in an ‘oath against oath’ case, to ask an accused whether they know of any fact from which it may be inferred that the complainant had a motive to lie. Such a material irregularity may give rise to a miscarriage of justice, depending upon the effect of the questions and any directions given by the trial judge, in the context of the trial as a whole.

    Consideration
    Nature of the questions

18. Counsel for the appellant argued that the prosecutor cross-examined the accused on whether there was any reason for the complainant to think that she was in trouble from him or for her to be upset with him, which amounted to cross-examination on whether the accused could identify facts from which it could be inferred that the complainant had a motive to lie, in breach of the prohibition in Palmer.

19. As counsel for the appellant accepted, the questions asked in cross-examination were not expressly framed as questions asking why the complainant would lie, or suggesting that the accused was not aware of any reason why she would lie.

20. As counsel for the respondent submitted, the first question was expressly anchored to the time the accused asked the girls to leave the caravan. By its reference to ‘that late at night’, the third question was also anchored to that time. So ‘sandwiched’, the second question was implicitly but equally anchored to that time, which was confirmed by the accused’s answer, as it showed that he understood the question that way. In that sense, the questions were not general questions asking if the accused could identify any facts from which it might be inferred that the complainant had a motive to lie.

21. As counsel for the respondent submitted, the first question was confined to what the accused had done – whether he was ‘growling at’ the girls when they were leaving. Similarly, by its reference to ‘in trouble from you’, the second question was about what the accused had done – whether he had done something which indicated to the girls they were in trouble. These were matters that the accused would know if they existed.

22. So understood, the first two questions were not of a form which offends the principle in Palmer.  Rather, they fell within the exception to that principle identified in paragraph [13] above.

23. The third question was of a more general form, despite its link to the time the girls were leaving the caravan. Its nature and purpose, and whether it invited the improper reasoning identified in Palmer, needs to be further considered in context.

    Context of the questions

24. The questions were asked after defence counsel had cross-examined the complainant and DK about the appellant’s refusal to take them to TS’s house, and to McDonald’s, that night, where they wanted to meet up with friends or boyfriends, and whether they were ‘a bit angry’ with him for that.[11] The complainant denied being angry as to the former and, as to the latter, the complainant’s answer was, ‘Not really’.

25. The questions were also asked after TS had given evidence in the defence case about the complainant’s behaviour (smoking cannabis and sneaking TS’s cannabis, drinking alcohol, talking to boys on her phone and having a boyfriend) and the potential for the appellant to ‘growl her’ about such behaviour.[12]

26. The questions were also asked after the appellant gave evidence-in-chief that the girls wanted to go to McDonald’s that night but he did not take them because, every time he does, the complainant wants to go to TS’s house and stay because ‘the boyfriends will be there’ or will ‘rock up’ there.[13]

27. In that overall context, and within the context of the three questions themselves, the third question was, in effect, asking the appellant whether he had, on the night in question, done anything which would have caused the girls to be upset with him, after the possibility thereof had been raised by the defence. So understood, it fell squarely within the exception to the principle in Palmer. It asked the appellant about facts from which an inference of motive might be drawn that the accused would know about if they existed. The third question was no different, in that respect, from the other two questions.

    Purpose of the questions

28. Given the context referred to above, the purpose of the questions was clearly to address what had been raised by defence counsel on the appellant’s behalf, namely, the possibility that the complainant and DK were angry or upset with the accused that night for the reasons identified, and the consequent possible inference that they had a motive to lie.

1. Counsel for the respondent relied on the following passage from The Queen v T:[14]

   However the question of motive for a false complaint should not be regarded as territory which a Crown prosecutor may not enter. In most if not all trials of this nature the critical question is whether the complainant is telling the truth. In any such trial, and particularly when the contest is between the complainant’s version and a defence version which says nothing improper happened, and both corroboration and disproof are lacking, it is almost inevitable that counsel and for that matter the jury will seriously consider whether any motive exists for bringing a false complaint. When it is shown that such a motive is likely, other things being equal this is likely to be the basis upon which a jury will entertain a reasonable doubt concerning the complainant’s veracity and will therefore acquit. It is commonplace for defence counsel to canvass such issues. I consider that defence counsel did so, albeit discreetly, in the present case.

   In such a situation there is nothing improper in the Crown prosecutor attempting to counter such suggestions and to demonstrate and ultimately submit that the complainant did not have such a motive, or by any reasonable argument to endeavour to refute defence suggestions to the contrary. What the Crown must not do, and what the court must ensure does not happen, is to permit the impression to be gained that the defence has any onus of showing that there was a particular reason for the complainant not telling the truth; or that at the end of the day the absence of any perceived reason for a false complaint strengthens the suggestion that the complainant must be telling the truth…   

2. Counsel for the appellant argued that these observations were made in the abstract, whereas the questioning in that case and the prosecutor’s closing address led to the appeal against conviction being allowed, and they were similar to the questions and address here.

3. In that case (set out at [39]), the prosecutor put to the appellant that nothing had happened to make the complainant dislike him; that he could not think of any reason why the complainant would make up ‘these terrible lies’ about him; and that it was his evidence that someone had got her to do that to him. In closing (set out at [41]), the prosecutor submitted to the jury that there was no motive suggested for the complainant to lie other than ‘some fanciful product’ of defence counsel’s imagination; asked why the complainant would persist with the allegation; and said, ‘It might show the desperation that has to be gone to, to try and say, why on earth did this girl go through with this if it wasn’t true.’ Chesterman J (with whom McMurdo P and Thomas JA agreed) held (at [42]) that the implication in the prosecutor’s questions, and his argument to the jury, that the complainant’s evidence gained credibility because the appellant could not supply a motive for inventing the complaint, were impermissible. In response to an argument that the prosecutor’s actions were a response to the defence probing the complainant in respect of motive, Chesterman J held (at [50]) that an attempt by defence to establish a motive would permit a prosecutor to respond by evidence and address the jury with respect to the suggested motives for a dishonest complaint but not, as was done in that case, to embark upon the separate task of inviting the jury to believe the complainant because the accused could not give evidence of motive.

4. We agree with the submission of counsel for the appellant that it is permissible to protect the complainant’s credit by cross-examination of the appellant about particular motives or facts, put to the complainant by defence, from which a motive can be inferred, but it is impermissible to bolster the complainant’s credit by cross-examination of the appellant or submissions to the jury which invite the jury to believe the complainant because the accused could not give evidence of motive. The former is what we consider occurred in this case.

5. Counsel for the appellant conceded that the first question, about whether the accused had ‘growled at’ the girls, would be a legitimate question eliciting admissible evidence if, from the accused’s earlier evidence, it might be capable of inference that he had ‘growled at’ the girls, and so was suggesting a motive to lie on their behalf. It was accepted that the form of the first question involved what the accused did and observed, and so might fall within the exception to the principle in Palmer. It is not apparent to us why the question would only be legitimate if it appeared from the accused’s evidence that he was suggesting the complainant had a motive to lie. We do not see why the exception in Palmer cannot operate if the suggestion of a motive to lie came from another witness’s evidence, or even from the accused’s counsel’s cross-examination of another witness, including the complainant. So much is apparent from the decision in The Queen v T. What is necessary is some evidence or questioning on the part of the accused which raises the possibility of an inference that the complainant has a motive to lie, and that the accused is asked about facts, related to the basis of that possible inference, that the accused would know if they existed, i.e. what the accused did or did not do, or observed or did not observe.

6. In our view, the second and third questions, properly understood in their terms and their context, are no different in effect from the first question.

   Prosecutor’s closing statement

7. Counsel for the appellant argued that the prosecutor’s address, which was not specific to the potential motives raised with the complainant by defence counsel, both confirmed the impermissible thrust of the cross-examination questions and compounded the likelihood that the jury would engage in the impermissible reasoning of bolstering the complainant’s credibility because the appellant could not identify a motive for her to lie.

8. While the specific subjects put to the complainant and DK (not taking them to TS’s house or McDonald’s that night) were not referred to, the prosecutor’s closing was not a submission that the appellant had been unable to identify a motive for the complainant to lie, it was simply a submission that the appellant’s evidence was that there was no motive in the form of anger towards him, and there was no motive in the form of animosity towards him, on the night. That submission did not say or imply that the appellant could not explain why the complainant would lie, or that his inability to explain weakened his evidence or strengthened hers. Further, the evidence from the complainant, DK and the appellant about the specific matters raised by defence counsel would have been fresh in the jury’s minds.

   Judge’s directions

9. The trial Judge gave the usual directions to the jury as to the onus of proof, that the accused did not have to give evidence, and that there was no onus on the accused to prove anything, and told the jury that the fact that the accused gave evidence did not change any of that.[15] However, those directions did not mention what was to be made of the fact that the appellant’s evidence was that there was no anger or animosity towards him. If there had been impermissible cross-examination and closing address, these directions would not have adequately addressed the impropriety.[16] Given our view as set out above, there was no impropriety to address.

   Conclusion

10. It follows from the above that the appellant has not demonstrated a realistic possibility that the cross-examination of the appellant, as set out in paragraph [9] above, and the prosecutor’s closing address, as set out in paragraph [10] above, affected the basis on which the jury reached its verdict of guilt. Accordingly, it did not give rise to a miscarriage of justice. This ground is not made out.

    Ground 2: Admission of evidence about accused exercising his right to silence

    What happened at trial

11. In examination-in-chief of the police officer in charge of the investigation, the following evidence was elicited:

    And then later that day, [the appellant] was arrested, is that right?---Yes, he was arrested that evening.

    And he was arrested at his address and taken to the police station?---Yes he was.

    But you did not arrest him, is that right?---No, I did not arrest him.

    When he was in custody, did you speak to him?---I did. I spoke to him just after he’d arrived at the police watchhouse.

    And you offered for him to participate in a record of interview, is that right?---I did offer that, and he declined.

    Now you also arranged for some DNA samples to be taken from [the appellant], is that right?---That’s correct.[17]
    
    

12. No submission was made by either party at the trial about the italicised evidence. Nor was any direction given to the jury by the trial judge about it.

    The appeal ground

13. The appellant argued that the italicised questioning elicited irrelevant evidence because there was no issue arising in the case about the police investigation, the appellant’s arrest or the taking of his DNA. The appellant argued that the eliciting of the evidence about his declining an interview was a material irregularity giving rise to a miscarriage of justice because it infringed his right to silence in that it impugned the credibility of his evidence by suggesting that he could have told his story earlier, and had not done so.  The inference was that he had waited until all the evidence in the trial unfolded and then made up his version of events to fit the evidence as much as possible.

    Legal principles: the accused’s right to silence

14. Section 89(1) and (2) of the Evidence (National Uniform Legislation) Act 2011 (NT) (‘ENULA’) provide that evidence that a party failed or refused to answer questions or to respond to a representation put or made to them by an investigating official who at that time was performing functions in connection with the investigation of the commission or possible commission of an offence is not admissible if it can only be used to draw an inference unfavourable to them. The term ‘inference’ is defined to include an inference of consciousness of guilt or an inference relevant to a party’s credibility (s 89(4)).  There is an exception to inadmissibility where the party’s failure or refusal to answer the question or respond to the representation is a fact in issue in the proceeding (s 89(3)).

15. In Petty v The Queen,[18] the High Court held that an accused’s right to silence means it should not be suggested that the accused’s exercise of that right to 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. The Court also held (at 101) that the denial of the credibility of the ‘late’ defence or explanation by reason of the accused’s earlier silence is just a way of drawing an adverse inference against the accused by reason of their exercise of the right to silence, and such an erosion of the fundamental right should not be permitted.

16. In The Queen v Reeves,[19] the New South Wales Court of Criminal Appeal held as follows:

    It is true that, in [Petty], the High Court was concerned to emphasise that a suspected person’s right of silence (‘a fundamental rule of the common law’) must not be eroded or rendered valueless by permitting his exercise of that right to be used as a basis for inferring guilt, or a consciousness of guilt. But that case did not lay down any rule of universal application that evidence may not be given of questions asked and of the answers given where that evidence discloses that the accused has exercised his right of silence.

    The High Court did say in [Petty] that the Crown should not lead evidence that, when charged, an accused person made no reply, but that is because, by reason of the legal processes involved, there could never be any relevance of that fact to any issue in the case. However, the fact that the investigating police officers put the prosecution’s version of the facts to the accused and gave him this opportunity to answer them and to give his own account of the events in question falls into a different category.

    A necessary consequence of an accused’s right of silence is that the Crown often has no knowledge of the issues which are going to be raised by him at the trial. The Crown must lead all of its evidence upon every issue which it ought reasonably have foreseen may arise. … I think that it may safely be said that it ought reasonably to be foreseen that the fairness of the conduct of the investigating police officers may be criticised and in a way of which the Crown will not necessarily be forewarned (as it usually should) in accordance with Browne v Dunn (1893) 6 R 67 during its case in chief. It seems to me then, that the fact that such questions were asked of the accused is therefore usually admissible in order to meet (at least in part) such anticipated criticism, and in my view that fact was admissible in the present case. Once the fact that the questions were asked is found to be admissible, the nature of the answers given must necessarily also be admissible – even if it discloses that the accused exercised his right to silence – for otherwise a very misleading impression may be conveyed, and one which would usually be detrimental to the accused. The third ground of appeal must therefore be rejected.

    However, where such evidence is given which discloses that the accused has exercised his right of silence, a direction should invariably be given – as soon as the evidence is given and, if necessary, again in the summing up – to make it clear to the jury that the accused had a fundamental right to remain silent and that his exercise of that right must not lead to any conclusion by them that he was guilty. [citations omitted]
    
    

17. The grounds of appeal in Reeves relevant to the present case were a complaint that the prosecution elicited evidence from an investigating officer that, when questioned after his arrest, the appellant said nothing about the incident giving rise to the charged offence, and that, during questioning, the appellant was most unco-operative; and a complaint that the trial judge failed to give any direction to the jury in relation to the appellant’s exercise of his right to silence. The evidence was said to be inadmissible in reliance on the decision in Petty. The Court (at 116)[20] allowed the appeal and quashed the conviction, holding that there was no doubt that ‘the jury is likely to have concluded that the appellant had not disclosed to the police that account which he was putting forward at the trial … because it was an afterthought … [which] is the very conclusion which they were not permitted to reach from the exercise of his right to silence’. The Court also held (at 115) that no direction had been given ‘to make it clear to the jury that the accused had a fundamental right to remain silent and that his exercise of that right must not lead to any conclusion by them that he was guilty’.

18. In Barr v The Queen,[21] this Court held that evidence of the accused being asked a question by interviewing police officers and a period of silence thereafter had no probative value, and was irrelevant and inadmissible. That decision was made without reference to the decision in Reeves.

19. In Callander v The Queen,[22] this Court held (after reference to Reeves) that evidence about the accused failing to participate in a third interview with police, which was led by the prosecution at the behest of counsel for the accused at the trial, was admissible to explain why police did not follow up the investigation and give the accused an opportunity to answer the allegations after he had had an opportunity to consider the matter, something which favoured the accused and did no harm to the Crown. In Callander, the Court observed (at [21]) that Reeves was an instance where evidence that a person had declined to answer questions could be led in evidence, not to prove that the accused had a guilty mind, but where there was some other legitimate purpose to the evidence, for example, to forestall a suggestion that the investigation had been unfairly carried out.

20. Callander was not concerned with that aspect of Reeves in which the New South Wales Court said that it ought reasonably to be foreseen that the fairness of the conduct of the investigating police officers may be criticised and that questioning of the accused to meet that anticipated criticism is usually admissible.

21. It was concerned only with that aspect of the decision which related to whether a direction by the trial judge was required. In Callander, there was a clear purpose for evidence to be led of the accused exercising his right to silence. It enabled the accused to put a number of matters before the jury.[23]

22. It may be noted that in Reeves the Court simply accepted that it was generally to be reasonably anticipated by the prosecution that the fairness of the investigation may be put in issue, and so, generally speaking, evidence that the accused had been offered the opportunity to answer questions would have a legitimate purpose outside of adverse inferences about the accused’s credibility. The Court made no reference to submissions on that proposition and gave no analysis of the type of criticism to be expected, generally speaking, or how such a question might be relevant to such anticipated criticism.

23. Reeves should not be seen as derogating from the general principle expounded in Petty that the denial of the credibility of the ‘late’ defence or explanation by reason of the accused’s earlier silence is just a way of drawing an adverse inference against the accused by reason of the accused exercising the right to silence, and that such an erosion of the fundamental right should not be permitted. For this kind of questioning to be permissible, there must be some real basis for supposing that the integrity of the police investigation will be an issue in the proceeding in a way that would make a question about offering the defendant an opportunity to take part in an interview genuinely relevant.

24. In Callander, this Court held (at [23]) that Reeves was not to be seen as laying down any hard and fast rule that a direction of the kind suggested in Reeves is necessary where evidence of the accused’s exercise of the right to silence is elicited.[24] The Court held as follows:

    In most cases where evidence of this kind is led it would be wise, if not necessary, to follow the practice suggested, but in this case we do not believe it was necessary. It was plain that the Crown was not relying on the appellant’s lack of cooperation as any admission of guilt. Neither side mentioned the matter in final addresses. The possibility that the jury may have drawn an adverse inference against the accused is too remote.
    
    

25. The appellant relied on the decision of the High Court in Orreal v The Queen[25] for the proposition that where irrelevant evidence is admitted a jury should be unequivocally directed to disregard it. In that case, the High Court allowed an appeal from a decision of the Queensland Court of Appeal. The Court of Appeal held that a miscarriage of justice had occurred, but no substantial miscarriage of justice had occurred, and dismissed the appeal from conviction on three counts of indecent dealing with a child and two counts of rape. In the appeal to the High Court, the only issue was whether a substantial miscarriage of justice had occurred. The miscarriage of justice occurred because evidence had been admitted (with the consent of defence counsel) that both the appellant and the complainant had tested positive for the presence of the herpes simplex virus type 1, a genital infection. Because the complainant gave evidence that she had had a single sexual encounter in the past, and the expert evidence was that it could not be said when either the appellant or the complainant contracted the virus, or from whom they acquired it, the evidence could not rationally affect the probability of the existence of a fact in issue in the trial.[26] However, both the prosecutor and the trial judge had referred to the evidence in closing and summing up: the prosecutor said the evidence had little weight but it was a matter for the jury, with their life experience, as to what they made of it; and the trial judge pointed out that the evidence did not establish when the appellant and complainant had contracted the virus or from whom, but said the jury were to take that evidence into account along with all the other evidence. Kiefel CJ and Keane J held (at [21]) that the jury should have been told in unequivocal terms to disregard the evidence because, not only was it inadmissible, it was also prejudicial to the appellant because it gave rise to a significant possibility that the evidence could be misused by the jury to support acceptance of the complainant’s account. Gordon, Steward and Gleeson JJ held (at [44]) that it was not difficult to envisage one or more jurors using ‘life experience’ to conclude that the evidence supported the complainant’s version of events or that it dispelled doubts that they might otherwise have held about her version, which was enhanced by the volume of the evidence and the attention given to it in the trial.

1. It is plain that it was not the mere fact that the evidence was inadmissible that led the Court to conclude there was a substantial miscarriage of justice; it was that fact coupled with the prejudicial effect of the evidence in the context of the trial, as established by the nature and content of the evidence, its emphasis amongst the other evidence, the prosecutor’s address and the judge’s summing up.

2. A failure to object to a question does not make admissible any inadmissible evidence given in answer. A failure to object to the admissibility of evidence may, however, preclude a finding that the admission of the evidence resulted in a miscarriage of justice where defence counsel decided not to object because of some forensic advantage. In Orreal, Kiefel CJ and Keane J observed (at [16]) that:

   Save for exceptional cases, in our system of justice, parties are bound by the conduct of their counsel, who exercise a wide discretion in deciding matters such as what evidence to lead or have excluded.[27] It is usually only when an appellate court is persuaded that no rational forensic justification can be discerned for counsel’s decision that consideration will be given to whether it gave rise to a miscarriage of justice.[28]
   
   

3. A similar observation may be made about defence counsel’s failure to seek a direction from the trial judge. In The Queen v Eaton,[29] the arresting officer had given evidence that the accused had contacted his legal adviser and then declined to be interviewed, and the accused had given evidence-in-chief that he declined to take part in a record of interview. It was argued that the trial judge’s failure to direct the jury about this evidence gave rise to a miscarriage of justice. In dismissing this ground of appeal, Jerrard JA (McPherson JA and Philippides J agreeing) held (at [20]) that ‘certainly if asked’ the learned trial judge ought to have given the jury a direction as described in cases like Reeves, but where a judge is not so asked, the critical question is whether a miscarriage of justice has resulted from the absence of a direction. Jerrard JA added that:

   Whether that direction should have been requested in the circumstances is a question to which the answer is not quite as categorical as the cited cases suggest, and it required an exercise of judgment by [the respondent’s] trial counsel. Having the trial judge give the direction would emphasise a matter that might otherwise have appeared of no moment at all in the trial. Choosing to let the matter rest was a justifiable forensic decision, and [counsel for the respondent] had failed to establish that there was a reasonable possibility that the judge not giving such a direction might have affected the verdict.

4. As this Court acknowledged in MLW v The Queen,[30] the fact that no direction is sought about a matter can support a conclusion that a direction was not required in the context of the trial.[31]

   Consideration

5. The appellant argued that the italicised question set out in paragraph [39] above was inadmissible pursuant to s 89 of the ENULA or on the basis of the decision in Petty. The appellant argued that there was nothing on the facts of the Crown’s case to raise the possibility that the fairness of the police investigation was relevant to a fact in issue. The respondent argued, in reliance on the decision in Reeves, that, when the question was asked, it was then reasonably foreseeable that the fairness of the police investigation may be criticised by the defence and the fact that the appellant was offered the opportunity to give his version of events was therefore admissible to meet that anticipated criticism, even though, as the trial transpired, the fairness of the police investigation was not in issue. The respondent’s submission simply asserted that when the question was asked, it was reasonably foreseeable that the fairness of the police investigation may be criticised. The respondent did not say why that was reasonably foreseeable, or specify what aspect of the police investigation it was reasonably foreseeable might be criticised so as to render the question about offering an opportunity to take part in a police interview (and the police officer’s answer) relevant to that issue.

6. The respondent submitted that whether the police investigation generally, or any aspect of it, will be criticised by the defence will be unknown to the prosecutor (in the absence of an earlier indication by defence) unless and until there is objection on the basis of relevance to questions put by the prosecutor about the police investigation. If objection is taken, thereby notifying the prosecutor and the court that the investigation is not in issue, the prosecutor can desist from eliciting that evidence because it then becomes clear that it is not relevant to any issue in the trial.[32] However, it is for the party seeking to adduce evidence to establish its relevance. Hence, it cannot be right that the defence has to object to put the Crown on notice that the police investigation will not be criticised. This would be contrary to the principles outlined in Petty.

1. The officer in charge volunteered that the appellant declined the opportunity of a recorded interview. It is difficult to see how that fact was relevant to any reasonably foreseeable criticism of the police investigation. None has been identified by the respondent. This was not evidence that investigating police officers put the prosecution’s version of events to the accused and gave him the opportunity to give his own account, which the Court in Reeves distinguished from evidence that, when charged, an accused person made no reply. As the appellant’s declining to participate in a recorded interview was not shown to be relevant to any reasonably foreseeable criticism of the police investigation, it would fall within s 89(2) of the ENULA. It could only be used to draw an adverse inference against the accused; there is no other use to which it could be put. Accordingly, that evidence was inadmissible.

2. However, as was made clear in Orreal, it is not merely the admission of inadmissible evidence that raises the need for a direction, but its capacity to prejudice the accused. The fact that the evidence elicited was inadmissible is not sufficient to demonstrate a miscarriage of justice.

3. No objection was made to the question and no direction was sought by defence counsel, either at the time the evidence was given, or for the purposes of the trial judge’s summing up. The appellant argued that objection to the question could not be taken because it would have appeared to the jury that the appellant ‘had something to hide’. Regardless, the question remains whether a direction from the trial judge was required. As is clear from the authorities referred to above, there is no ‘hard and fast rule’ that a direction, either at the time the evidence is given or in the trial judge’s summing up, is necessary to avoid a miscarriage of justice.

4. The respondent argued, in reliance on Eaton, that defence counsel’s failure to seek a direction was likely based on a forensic decision that it was unnecessary in circumstances where the appellant gave evidence at the trial.

5. That the appellant gave evidence at trial does not address the particular adverse inference the appellant argued that the jury would draw, namely, that he remained silent until the close of the Crown’s case and then gave his evidence, tailoring it (by way of recent invention) to accommodate the evidence the jury had already heard.

6. In all of the circumstances of this trial, we do not consider there to be any realistic possibility that the jury reasoned that the evidence the appellant gave in his evidence at trial was a recent invention because he had declined to participate in a recorded interview with investigating police. No submission was made to that effect by the prosecutor; indeed, nothing at all was said by either party about the appellant declining an interview. The evidence was volunteered by the officer in charge in the context of his evidence-in-chief about all of the steps in his investigation, including arranging to interview the complainant and speak to various witnesses, for the complainant to have a medical examination, taking DNA samples from the appellant and the clothing worn by the complainant on the night, taking photographs of the residence and the forensic examination of the appellant’s phones. That suspects are invariably questioned by police is widely known, including to persons who may become members of a jury.[33]

7. In his summing up, the trial judge directed the jury that ‘the accused did not have to give evidence and he could have exercised his right to silence’, allowing counsel to make submissions on the evidence as it fell in the Crown case, but instead he gave evidence, subjected himself to lengthy and testing cross-examination by the prosecutor, and they might consider that fact goes to his credit.[34]

8. As this Court concluded in Callander, we consider that it would have been prudent, perhaps even preferable, for a direction to be given specifically instructing the jury that the appellant had a fundamental right to silence, and that they could not draw from the fact of his having exercised it any inference adverse to his credibility or favourable to the credibility of the complainant. However, it was plain that the Crown was not relying on the appellant’s failure to participate in a recorded interview as any basis for the drawing of an adverse inference against the appellant, and the possibility that the jury may have done so is too remote.

   Conclusion

9. It follows from the above that the appellant has not demonstrated a realistic possibility that the admission of the evidence from the officer in charge, and/or the trial judge’s failure to direct the jury about that evidence, affected the basis on which the jury reached its verdict of guilt. It did not give rise to a miscarriage of justice. This ground is not made out.

   Ground 3: Admission of evidence about communications between the accused and his lawyer

   What happened at trial

10. During the cross-examination of the appellant, the following exchanges occurred:

So up until about one o’clock you were happy for them to be there [in the caravan]?---They was there, right, but I was trying to tell them to go – go inside and the girlfriend - - -

[DK]?---[DK], she kept on asking [the complainant] ‘let’s go inside, it’s cold’, and she’s always jumping up, ‘[the complainant] you all right’, and - - -

Did you – so did you tell your lawyer that [DK] kept doing that?---Yep.

You told your lawyer that [DK] kept saying she wanted to go inside because she was cold?---Go inside because she’s cold.[35]

…

Right, and did you do anything about [the complainant buying two bags of cannabis]?---No, because [DK], she said ‘Oh we always smoke’ and I said well you mob show – tell the one’s who’s aunty is looking after yous, you mob tell her, they dodged her.

…

Did you tell your lawyer that [DK] said to you, ‘We always smoke ganja’?---No.

Why not?---Didn’t even think of it.[36]

…

Now, did you see the girls smoking the cannabis that night?---Yeah.

And you let them do that?---Yeah. Because they said they was allowed to.

We’re talking about a 13-year-old girl?---Yeah.

And a 14-year-old girl?---Yeah. [The complainant] said she wanted to do it because she’s always doing it at [TS’s] place, or out - - -

Did you tell your lawyer that?---No.

Why not?---Well, I didn’t come up to that yet.

You told your lawyer that the girls were smoking and drinking though in your caravan?---Yeah.

Did you not? So why didn’t you tell them or tell her that she’d smoked before at [TS’s]?---Well, she has always smoked around [TS’s], everywhere we go. She even stole a few of [C’s] smokes and I told her, ‘Don’t ever smoke [C’s] smokes because he’s got ice and it might be mixed.’ So she just chucked it – chucked it on the ground.[37]

…

So [the complainant] had a drink at [TS’s] place?---[TS’s] place. And she said that hers is stronger than what she’s got.

How long were you at [TS’s]?---We was only there for about five, ten minutes. We pulled up and they ran inside. [The complainant] ran inside.

Did you tell your lawyer that she was drinking at [TS’s] place?---No.

Why not?---Because I wasn’t even thinking of it.

It’s not true, is it?---It’s true.

You’re making it up?---Because she – her boyfriend told her that [the complainant] just had a drink out of your can.[38]

…

I’m asking you he – that particular morning you’re saying he was drinking?---Yeah, I’m sure of it.

And did you tell your lawyer that he was drinking that morning?---I think I told my lawyer that he was drinking, or he was drunk.[39]

…

And you spoke to [the complainant], telling her to go back into the house?---I told her to go back inside, and same time I pulled the plug [for the heater] out.

Right. I’m going to suggest to you that you didn’t pull the plug for the heater out, that it stayed on, that’s - - -?---No, I pulled it out. Because that’s why [the complainant] got up and said, ‘Oh it’s too cold I’m going in’.

So [the complainant]- - -?---The heater wasn’t on.

- - -said it was too cold, and went inside?---Yeah.

Did you tell your lawyer that she said those words?---I’m sure I said that she said it was cold.[40]

1. No submission was made by either party about the italicised evidence. Nor was any direction given to the jury by the trial judge about it. The italicised questions above will be referred to in the remainder of these reasons as ‘the impugned questions’.

   The appeal ground

2. The appellant argued the appellant’s evidence about communications between the appellant and his lawyer was subject to legal professional privilege pursuant to s 118 and 132 of the ENULA and inadmissible in the absence of any warning by the trial judge that the appellant did not have to answer the impugned questions as they were privileged communications, could not be objected to without prejudicing the appellant’s credibility, were improperly asked by the prosecutor, and gave rise to a miscarriage of justice because the evidence suggested to the jury that defence counsel’s failure to cross-examine the complainant and DK consistently with those matters meant the appellant’s evidence about them was a recent invention, thereby thus damaging his credibility.

   Legal principles – Cross-examination about communications between the accused and counsel

3. In Glencore International AG v Federal Commissioner of Taxation,[41] the High Court observed (at [21]) that legal professional privilege has been described as a right which is fundamental to persons and to our legal system, which shows that it is not merely an aspect of curial procedure or a mere rule of evidence, but a substantive right founded upon a matter of public interest. The Court observed (at [23]) that it is well settled that legal professional privilege is a rule of substantive law, and held (at [27]-[29]) as follows:

   The rational for the rule was stated in Grant v Downs. It is that the rule promotes the public interest because it ‘assists and enhances the administration of justice by facilitating the representation of clients by legal advisers’. By keeping secret their communications, the client is encouraged to retain a lawyer and to make full and frank disclosure of all relevant circumstances to the lawyer. … A similar rationale for the privilege has been accepted by the Privy Council and the House of Lords where the descriptor ‘the rule of law rationale’ was accepted.

   …

   It was recognised in Grant v Downs that there was another, more general, public interest which legal professional privilege did not promote. That public interest lies in the fair conduct of litigation, which requires that all relevant … evidence be available. But the public interest which supports the privilege is paramount to the more general public interest. In the provision of the privilege the law has struck the balance between two competing public interests. Consequently, once the privilege is found to exist, no more is required for effect to be given to it. In that sense it may be described as absolute. [citations omitted]

4. Section 118 of the ENULA provides that evidence is not to be adduced if, on objection by a client,[42] the court finds that adducing the evidence would result in disclosure of (relevantly) a confidential communication[43] made between the client and a lawyer, for the dominant purpose of the lawyer providing legal advice to the client. By s 134, evidence that must not be adduced in a proceeding is not admissible in the proceeding.

5. The reference to ‘on objection by a client’ requires objection to be taken by the client, or the lawyer acting on behalf of the client, to the adducing of the evidence because it would result in disclosure of the confidential communication.

6. Section 132 of the ENULA provides that, if it appears to the court that a witness or a party may have grounds for making an application or objection under (relevantly) s 118, the court must satisfy itself (in the absence of the jury if there is one) that the witness or party is aware of the effect of s 118.

7. Sections 121-126 of the ENULA deal with ‘loss’ of the privilege. Relevantly, s 122(2) provides that s 118 does not prevent the adducing of evidence if the client or party concerned has acted in a way that is inconsistent with the client or party objecting to the adducing of the evidence because it would result in a disclosure of the kind referred to in s 118.

8. In Hofer v The Queen,[44] the applicant appealed from his conviction on nine counts of sexual intercourse without consent. One of the grounds of appeal was that there was a miscarriage of justice as a result of the Crown prosecutor asking impermissible questions and making improper comments when cross-examining the applicant. Essentially, the complaint was that the prosecutor had impermissibly suggested, expressly and impliedly, that the applicant was lying in his evidence about eight identified matters because his counsel had not put those matters to the relevant complainant or to police in cross-examination. The questions were largely of the form: ‘Did you hear that put to [the witness] at any stage?’ twice followed by the question, ‘Are you just making things up as you go along?’ or something similar. In closing, the prosecutor referred to two matters that were not put to the relevant complainant for her comment and submitted, in relation to one of those matters, that the jury would accept her evidence about the matter. The trial judge made no mention of the questioning in summing up.

9. By majority, the New South Wales Court of Criminal Appeal held that there was no miscarriage of justice. Fagan J (with whom Fullerton J agreed) set out (at [125]) some principles which had been extracted from authorities by Garling J in Llewellyn v The Queen:[45]

   (a) Where a defence counsel has failed to put something to a prosecution witness in cross-examination, it may be legitimate, depending on the circumstances of the case, to draw appropriate conclusions from that failure.

   (b)To suggest that the only appropriate conclusion to be drawn is that the accused’s evidence should be disbelieved, perhaps as a recent invention or as part of an attack on the credibility of the accused, is a process of reasoning that is fraught with danger and must be approached with caution.

   (c)There could be many reasons why a defence counsel chose to conduct cross-examination in a particular way.

   (d)Before a prosecutor makes such a suggestion, either in cross-examination of the accused or in summing up to the jury, the prosecutor must have a proper basis for it.

   (e)Except in the rarest of cases and only where a proper basis exists, cross-examination of the accused in this manner is highly and unfairly prejudicial to the accused, with the potential to undermine the requirements of a fair trial.

   (f)If a prosecutor embarks on this type of cross-examination without a proper basis, the trial judge must give clear directions to the jury as to the range of possible explanations for a failure by defence counsel to put something to a prosecution witness.

1. Fagan J held (at [126]) that where cross-examination of this nature has taken place without a proper basis, there will not necessarily be a miscarriage of justice. The effect upon the trial may depend upon the relative importance of the matter that was not put to a Crown witness.

2. Fagan J held (at [130]) that the impugned cross-examination was only a fragment of what would have been required to convey to the jury an implication of recent invention because it was not followed by any invitation to the jury to reason that, because matters were not put to Crown witnesses, therefore the accused must have fabricated them, and (at [132]) that the jury could not have taken from the cross-examination any more than that the Crown was critical of defence counsel’s lack of thoroughness in questioning the complainants. Fagan J also held (at [188]) that the reasoning from lack of questioning to fabricated evidence is not intuitive and would not suggest itself to the jury from the ‘insignificant’ lines of cross-examination.

3. The appellant appealed to the High Court. In Hofer v The Queen,[46] the High Court upheld the appeal, concluding that there was a miscarriage of justice. The plurality[47] held (at [32]) that the reasoning behind cross-examination of this kind starts with the fact that a matter is not put by defence counsel; it assumes that the reason for the omission is that counsel was unaware of the matter and that counsel was unaware because the accused had not given an account of it in his or her instructions; and the conclusion reached is that the accused must now be making the evidence up. The plurality held (at [33]) that there may be many explanations for the omission which do not reflect upon the credibility of the accused, including defence counsel misunderstanding instructions, forensic pressures resulting in looseness in framing questions, and defence counsel choosing not to advance certain matters upon which they had instructions because they were unlikely to assist the defence.[48] The plurality held (at [34]-[37]) as follows:

   Where there remains a number of possible explanations as to why a matter was not put to a witness, there is no proper basis for a line of questioning directed to impugning the credit of an accused. Except in the clearest of cases, where there are clear indications of recent invention, an accused person should not be subjected to this kind of questioning. The potential for prejudice to an accused is obvious.

   Proceeding on the basis of a mere assumption as to lack of instructions is likely to be productive of further unfairness in the course of the cross-examination. The assumption will inevitably lead to impermissible questions of the accused, put expressly or arising implicitly, as to the actual instructions he or she gave. An accused person faced with questioning of this kind is likely to feel obliged to attempt to explain by reference to the instructions he or she in fact gave when in reality the accused carries no such onus. Questioning of this kind may result in the need for counsel or the solicitor for the defence having to disclose those instructions. This is a circumstance which should not arise.

   …

   A trial judge should be alert to the problems associated with cross-examination. They should be raised with counsel at an early point. Where the cross-examination has occurred, it will be necessary for the trial judge to warn the jury about any assumption made by the cross-examiner, to draw attention to the possible reasons why the matter has not been put and to direct the jury as to whether any inferences are available.
   
   

4. The plurality referred (at [38]) to the Court of Criminal Appeal’s consideration that a miscarriage will not inevitably follow where there has been no basis for a cross-examination of this kind and stated that their Honours ‘correctly observed that consideration must be given to its effect on the trial’.

5. The plurality concluded (at [42]) that the cross-examination in the case implied that the appellant was obliged to provide an explanation as to why matters had not been put to the complainants, suggesting he had information which he had not given to counsel by way of instructions, and the attack on the appellant’s credit by assertions of recent invention was based upon an assumption which was not warranted, all of which was highly prejudicial to the appellant. The plurality held (at [44]) that it ‘is a sufficient departure from the process of a criminal trial that a highly prejudicial cross-examination of the accused as to credit proceeded upon an unfounded assumption’. The assumption was shown by evidence to be wrong because the appellant had instructed defence counsel as to those matters and counsel had decided not to pursue them. The plurality held (at [45]) that it could not be inferred that the jury would not attach any importance to the cross-examination because there were a number of matters identified as not having been put to the complainants; the requirement for the appellant to acknowledge that was ‘persistent’; the questions clearly required the appellant to provide some sort of explanation, which would have been confirmed when he attempted to do so; and the purpose of the questioning, that the appellant should not be believed, was put beyond doubt when, in relation to two of the matters, the prosecutor alleged the appellant had made up his evidence during the cross-examination. The plurality held that it did not matter that there was no submission in the prosecutor’s closing address about the process of reasoning because, by the questions, the prosecutor had effectively invited the jury to reject the appellant’s evidence as not credible.

6. Finally, the plurality held (at [47]) that the prejudice to the appellant was not addressed, as it should have been, by the trial judge’s directions putting the omissions in perspective, discounting any assumption as to why they occurred by reference to other possibilities and warning the jury about drawing any inference on the basis of a mere assumption.

   Consideration

7. Both parties to this appeal accepted, at least implicitly, that the impugned questions related to evidence given by the appellant (either in evidence-in-chief or cross-examination) which had not been put to the complainant or DK in cross-examination by defence counsel. It was not in dispute that the purpose of the impugned questions was to impugn the credit of the appellant by suggesting that the appellant’s evidence had been recently invented.

   Form of the impugned questions – not the same as Hofer

8. The respondent distinguished the decision in Hofer on the basis that the impugned questions were not of the same form as those considered in Hofer. The appellant was not asked whether various matters were put to the Crown witnesses. The appellant was asked whether he told his lawyer about some of the things he said in his evidence.

9. The questioning in this case left unstated the fact that a matter was not put by defence counsel, and targeted the assumptions said in Hofer to be unfounded, that defence counsel was unaware of the matter because the appellant had not given an account of it in his instructions.

10. If the answer to the question, ‘Did you tell your lawyer about that?’ is ‘Yes,’ then the assumption is shown to be false and the path of reasoning cannot be followed. If the answer to the question is, ‘No,’ then the assumption is shown to be true. The conclusion that the appellant is not credible is either not available (where the answer is ‘yes’) or founded on the fact (not the assumption) that the appellant did not disclose the matter to his counsel, thereby eliminating all of the other possible explanations for the failure to put the matter and leaving only the inference that the appellant’s evidence on the point was a recent invention. That could be said to provide the ‘proper basis’ for a line of questioning directed to impugning the credit of the appellant.

11. However, the means employed to target the assumptions emphasised as unfounded in Hofer was to seek to elicit evidence which would result in disclosure of a privileged confidential communication made between the client and their lawyer. In Birks v The Queen,[49] Lusher AJ held (at 701) that the primary and basic rule of all litigation, civil and criminal, is that the client’s instructions to his legal advisers are privileged, and he can freely and properly reveal all to his legal advisers without fear of disclosure or penalty, and that as cross-examination of an accused by the Crown as to his instructions to counsel sought to elicit inadmissible evidence, any objection to the questions would have been upheld and they should not have been put. His Honour also held that the questions were unfair because they would force an objection embarrassing to the defence and the implications of which a jury would not understand, or else cause counsel to seek instructions and advise the accused, then in the witness box, and then possibly take an embarrassing objection. While these observations related to legal professional privilege under the common law, s 118 of the ENULA does not deny their force or equal application here.

12. The respondent argued that the observations of Lusher AJ were not adopted by the other members of the Court in Birks. So much may be accepted. That does not deny their force or equal application here. We note that the other members of the Court found a miscarriage of justice to have occurred, essentially due to defence counsel’s incompetence in the conduct of the trial, including taking no action as it was put to the accused that he had not instructed his counsel about certain matters, when in fact, he had.[50]

    Impermissible questions by reference to Hofer

13. As set out above, the plurality in Hofer referred (at [35]) to the prospect of ‘impermissible questions of the accused … as to the instructions he or she gave’ to counsel, noting that an accused person is likely to feel obliged to attempt to explain by reference to the instructions he or she in fact gave, when in reality the accused carries no such onus, and the prospect that such questions may result in the need for defence counsel or the solicitor to disclose their instructions. The plurality said this is a circumstance which should not arise.[51] The respondent argued that these observations were obiter dicta because no such questions were asked in the case before the Court. There are two answers to that submission. Firstly, these observations were an extension of the plurality’s reasoning to its conclusion that the appellant should not have been subjected to questioning about his counsel’s failure to put matters to a Crown witness. They were part of the ratio decidendi. Secondly, even if these observations were obiter dicta, considered dicta of a majority of the High Court is at least persuasive for an intermediate court of appeal such as this one, and clearly binding if it is based on long-established authority.[52]

14. In our view, to attempt to avoid the ‘obvious prejudice’ to an accused of proceeding on unfounded assumptions and render the case one in which there are ‘clear indications of recent invention’ by seeking to elicit evidence which is privileged, objectionable and, in the absence of waiver of legal professional privilege, inadmissible, is not a proper course, for the reasons set out below.

    Waiver of legal professional privilege

15. In an effort to reconcile various authorities in which questioning of the accused about a failure of their counsel to put matters to a Crown witness, including as to instructions given to counsel, has been held not to give rise to a miscarriage of justice,[53] the respondent argued that such questioning is permissible because legal professional privilege can be waived, and is waived when an accused’s counsel cross-examines a complainant about the complainant’s version of events and then gives evidence themselves about those events, thereby rendering communications between the accused and their lawyer about those events admissible and properly the subject of cross-examination by the Crown. It was argued that there can never be a ‘proper basis’ for such questioning if legal professional privilege is not waived by the accused in this way. The respondent argued that, so far as the respondent could ascertain, the question of waiver of legal professional privilege in this context has not been fully argued before any court.

16. Section 122(2) of the ENULA provides that s 118 does not prevent the adducing of evidence disclosing confidential communications between client and lawyer if the client has ‘acted in a way that is inconsistent with the client…objecting to the adducing of the evidence because it would result in a disclosure’ of those confidential communications.

17. The only conduct the respondent pointed to which was said to be inconsistent with objecting to the adducing of the evidence was defence counsel cross-examining the complainant and DK about the alleged offending, and then giving evidence himself about those allegations. This was argued to constitute an implied waiver of legal professional privilege in the communications between the appellant and his lawyers in relation to both the matters upon which there was cross-examination and the matters upon which there was not (as to the latter, on the basis that partial disclosure generally has the effect of waiver of the communications in their entirety[54]). That submission cannot be accepted. No authority was referred to in which it has been held that cross-examination of a complainant on behalf of an accused constituted a waiver of legal professional privilege in all, or any, communications between the accused and their lawyer. The closest the authorities come is the observation in Director of Public Prosecutions (Cth) v Kinghorn[55] (at [154]) in which the New South Wales Court of Criminal Appeal observed that a client who gives evidence about the instructions they gave to their lawyers waives privilege over that communication, but such a waiver does not arise from denying, or not admitting, accusations made against them.[56] A client giving evidence about the instructions they gave to their lawyers is one thing; an accused’s counsel cross-examining a complainant about alleged offending and the accused then giving evidence about those allegations is an entirely different thing.

18. The proposition put by the respondent would effectively render legal professional privilege in criminal matters where the accused decides to give evidence nugatory. It cuts across the tenor of the well-established importance of this fundamental rule and the rationale for its existence as set out in paragraph [72] above.

    Cases with a proper basis will be rare

19. As to the submission that, if legal professional privilege is not understood to be waived in these circumstances, permitting the Crown to ask questions about whether the accused told their lawyer about a matter, there would never be a ‘proper basis’ for questions or submissions about recent invention arising from a failure to cross-examine a Crown witness, two points may be made. Firstly, an example of where there may be a proper basis to infer from a failure to cross-examine a Crown witness on a matter that the accused’s evidence is recent invention is where the accused gave a recorded interview or statement to police in which they also failed to mention the matter. Secondly, as the observations that such reasoning is fraught and to be approached with caution suggest, instances in which there is a proper basis for this kind of questioning will be relatively rare. Such cross-examination of an accused cannot be expected to be legitimately undertaken in every case in the ordinary course.

20. We reject the respondent’s argument that legal professional privilege in communications between the appellant and his lawyer was waived by defence counsel’s cross-examination of the complainant and DK and the appellant giving evidence about the allegations. Consequently, the impugned questions sought to elicit inadmissible evidence and were for that reason impermissible.

    An irregularity giving rise to a miscarriage of justice

21. The impugned questions, coupled with the trial judge’s failure to satisfy himself, as required by s 132 of the ENULA, that the appellant was aware of the effect of s 118 and his capacity to object to answering the questions, meant there was irregularity in the conduct of the trial.

[100]The cross-examination of the appellant by the prosecution, adopting the language of the plurality in Hofer (at [42]), departed from the standards of a trial to which an accused is entitled and the standards of fairness which must attend it, noting the prosecutorial obligation to afford fairness.[57] The impugned questions sought to attack the appellant’s credibility in the process either forcing the appellant to disclose the privileged communications between himself and his counsel, without the required s 132 warning that he had a right to object to doing so, or compelling defence counsel to make an embarrassing objection (suggesting the appellant had something to hide) or seek the opportunity to give advice and obtain instructions whilst the appellant was in the witness box. The impugned questions sought to create a proper basis for the attack on credibility by eliciting evidence which was, subject to the appellant’s capacity to waive privilege, inadmissible.

[101]The respondent argued that the impugned questions did not seek disclosure of the legal advice given to the appellant and were limited to the fact of whether a particular subject matter had been communicated or not. There are two responses to that submission. Firstly, the privilege is not confined to the legal advice passing from the lawyer to the client; it extends (consistently with its rationale) to all confidential communications between lawyer and client made for the dominant purpose of obtaining legal advice. That clearly encompasses the instructions given by the client to the lawyer as to the alleged offending and the surrounding circumstances. Secondly, such questioning gave rise to the possibility of defence counsel or the appellant’s solicitor having to disclose those instructions. As the plurality observed in Hofer, that is a circumstance which should not arise.

[102]The impugned questions, on seven different subjects,[58] required the appellant to explain the failure of his counsel to cross-examine Crown witnesses, although this was unstated, by reference to the instructions he in fact gave to his lawyer. In Hofer (at [35]), the plurality held that, in reality, an accused carries no such onus. Three times, the impugned questions pressed him to explain why he had not given those instructions. The purpose of the impugned questions was put beyond doubt when the prosecutor put to the appellant that what he had said was not true and that he was making his evidence up. There was no need for the prosecutor to have referred to this evidence and described the process of reasoning to cause unfair prejudice to the appellant when the prosecutor had, by the impugned questions, effectively invited the jury to reject the appellant’s evidence as not credible.

[103]The respondent argued that, because of the answers the appellant gave, which largely confirmed that he had told his lawyer about the matters, any prejudice to the accused was minimal.

[104]Of the seven matters in respect of which the impugned questions were asked, the appellant’s answers were clearly affirmative in relation to three, clearly negative in relation to three, and somewhat equivocal in relation to one (‘I think’). It was in response to one of the three negative answers that the prosecutor put to the appellant that he was making up his evidence. The prosecutor’s cross-examination of the appellant was relatively short (occupying some 16 pages of transcript). The questions about the girls going inside from the caravan because it was cold were given little emphasis in the prosecutor’s closing address,[59] but presumably were relevant as a possible explanation for the girls leaving the caravan other than the alleged offending. The importance of the questions about the girls smoking cannabis and drinking, both that night and on other occasions, is explained in part by the final portion of cross-examination,[60] which put that the appellant had facilitated or at least allowed the girls to get intoxicated on the night because it was his intention to take advantage of one of them, and in part by the prosecutor’s closing address as regards the element of consent and the appellant’s knowledge, recklessness or indifference to lack of consent.  In that portion of the closing address, the prosecutor submitted that there was an obvious power imbalance between the appellant and the complainant (so she may have submitted, not consented), who was likely affected by the alcohol and cannabis (so she may not have been capable of consenting).[61] The three negative answers to the impugned questions related to the girls’ experience with alcohol and drugs. The impugned questions which, by their negative response, raised most starkly the appellant’s credibility were relevant to those elements of the offence. They were not peripheral matters.

[105]In the context of what was, essentially, an ‘oath against oath’ case, there was clearly a realistic possibility that the basis on which the jury reached its verdict, namely a finding that the appellant’s evidence so lacked credibility that it did not raise a reasonable doubt, was affected by the impugned questions . The trial judge did not give any direction to the jury to the effect that they should disregard the inadmissible evidence elicited by the impugned questions, and that they should not use it to reason that the appellant’s evidence on these points was of recent invention, thereby affecting his credibility.

Conclusion

[106]For the above reasons, the appellant has demonstrated a realistic possibility that the impugned questions, coupled with the trial judge’s failures to satisfy himself that the appellant was aware of his capacity to object to them and to give any direction to the jury about the inadmissible evidence, affected the basis on which the jury reached its verdict of guilt. They gave rise to a miscarriage of justice. This ground is made out.

Application of the proviso

[107]Having found that there was a miscarriage of justice, this Court retains a residual discretion not to overturn the conviction if it considers that no substantial miscarriage of justice has actually occurred. The respondent invited the Court to exercise the discretion.

Legal principles: no substantial miscarriage of justice

[108]While there is no single universally applicable description of what constitutes ‘no substantial miscarriage of justice’, an appellate court is precluded from concluding that no substantial miscarriage of justice actually occurred unless the court itself is persuaded that the evidence properly admitted at trial established guilt beyond reasonable doubt.[62] The court must consider the whole of the record of the trial and the nature and effect of the error which gives rise to the miscarriage of justice in the particular case.[63]

[109]In cases which turn on contested credibility, the nature and effect of the error may render an appellate court unable to assess whether guilt was proved beyond reasonable doubt due to the natural limitations that exist in the case of any appellate court proceeding wholly or substantially on the record.[64] Those limitations acknowledge that the assessment of the credibility of a witness on the basis of evidence given in the witness box in the context of the trial is the function of the jury, not the appellate court.[65] In such cases, regardless of the apparent strength of the prosecution case, the appellate court cannot be satisfied that guilt has been proved.[66]

[110]In Orreal, the High Court concluded that it was not possible for the appellate court to assess whether guilt was proved beyond reasonable doubt (so it was wrong to conclude there was no substantial miscarriage of justice) because inadmissible evidence prejudicial to the appellant had been received in a case where proof of guilt was wholly dependent on acceptance of the complainant’s evidence, the prosecutor had argued that the jury could make use of it to support the complainant’s version of events, and the trial judge had directed the jury to use it ‘as they saw fit’.

[111]In Hofer, the High Court concluded that it was possible in that case for the appellate court to assess whether guilt was proved beyond reasonable doubt (so it was right to conclude there was no substantial miscarriage of justice) because, despite the highly prejudicial cross-examination of the appellant as to his credit which proceeded upon a wrong assumption, and despite the prosecutor effectively (by the cross-examination) inviting the jury to reject the appellant’s evidence as not credible, the evidence of the appellant on a crucial issue (an element of the offending) ‘was so obviously false that it carried no weight at all’. In determining whether the appellant’s evidence on this crucial issue ‘might reasonably possibly be true’,[67] the plurality held (at [58]) that his evidence together with the evidence that was common ground between the parties ‘inevitably leads to the conclusion that the appellant’s evidence was so glaringly improbable that it could not give rise to a reasonable doubt as to his guilt’. The plurality distinguished (at [61]-[64]) the case before it from a case which turns on the jury’s preference for the evidence of one witness over another witness, i.e. where the appellate court is required to seek to resolve a conflict between oath and oath, where the resolution of the contest must affect the reliability of the jury’s verdict. The plurality held (at [68]) that, in the case of the evidence given by the appellant, any reasonable jury would have regarded the appellant’s evidence on the crucial issue as ‘bordering on fantasy’.

[112]In summary, in cases which turn on contested issues of credibility (i.e., ‘oath against oath’ cases), unless the appellant’s evidence was so glaringly improbable that it could not reasonably possibly be true and so could not give rise to a reasonable doubt as to his guilt, it will generally not be possible for the appellate court to be satisfied of the appellant’s guilt beyond reasonable doubt, with the consequence that the appellate court cannot conclude that a substantial miscarriage of justice did not actually occur from an irregularity in the trial which gave rise to a miscarriage of justice.

[113]If the appellate court can be satisfied of the appellant’s guilt beyond reasonable doubt, it is still necessary for the appellate court to consider whether there has been a significant denial of procedural fairness at trial which makes it proper to allow the appeal and order a new trial.[68] This occurs where the miscarriage of justice amounts to ‘a serious breach of the presuppositions of the trial’.[69] In Wilde v The Queen[70], the plurality (Brennan, Dawson and Toohey JJ) said:

The proviso has no application where an irregularity has occurred which is such a departure from the essential requirements of the law that it goes to the root of the proceedings. If that has occurred, then it can be said, without considering the effect of the irregularity upon the jury’s verdict, that the accused has not had a proper trial and that there has been a substantial miscarriage of justice. Errors of that kind may be so radical or fundamental that by their very nature they exclude the application of the proviso.

[114]Subsequently, in Weiss v The Queen,[71] this concept of ‘an irregularity … which is such a departure from the essential requirements of law that it goes to the root of the proceeding’ was expressed as ‘such a serious breach of the presuppositions of the trial as to deny the application of the common form criminal appeal provision with its proviso’, and this expression was taken up by the High Court in Hofer.

[115]An example of such an irregularity is where counsel’s ineptitude is so extreme as to constitute a denial of due process to the client, and examples of that are where, for no valid reason, counsel fails to cross-examine material witnesses, or does not address the jury.[72]

[116]In Hofer, the High Court held (at [74]) that the failure of defence counsel to stop the improper cross-examination of the appellant and the consequent suggestions of recent invention (even though the appellant had told him about the matters not put to the complainant) did not make the appeal one of those rare cases where there had been a denial of the presuppositions of the trial.

Satisfaction of the accused’s guilt

[117]As concluded above, the miscarriage of justice comprised the prosecution eliciting inadmissible evidence (subject to the appellant’s right to waive legal professional privilege) without the trial judge being satisfied that the appellant was aware of his right to object to answering the questions, which effectively put to the jury that the appellant’s evidence was of recent invention and so he was not a credible witness, and without any direction to the jury to address that evidence.

[118]In his evidence at the trial, the appellant admitted no more than that the complainant laid down beside him on the bed in the caravan and remained there for 30 minutes.[73] He otherwise denied the offending, and denied touching the complainant at all.[74] His evidence about the alleged offending was not so glaringly improbable that it could not reasonably possibly be true. The case turned on the preference of the jury for the complainant’s and DK’s evidence over the appellant’s.

[119]In her child forensic interview, which was received as part of her evidence-in-chief, DK told police that she was asleep in the caravan after the complainant had moved to the bed with the appellant, she was woken up by hearing the complainant ‘moan’, DK was half asleep, DK woke up again and the caravan was moving, DK did not know exactly what the appellant was doing, but she peeked out from the blanket to see and ‘couldn’t really see properly’ and it was ‘hard to see where they were facing and he was about to go on top of her something like that’, DK saw the complainant facing up then the complainant looked directly at her and asked if DK was awake, DK said she was not, ‘and then it continued again’, the complainant and the appellant spoke about whether DK was awake, DK went under her blanket again and ‘then he did it to her again’, then the complainant got up and asked DK to go inside, which they did.[75] She said the blanket was over the appellant and DK so all she saw was the movement of the blanket,[76] which was ‘really fast’.[77] In cross-examination, DK volunteered that she could not really see that much (in response to a question whether both the appellant and the complainant had their own blankets) and agreed she could not really see properly, adding ‘but the way that the blanket was moving underneath was – to think that [the appellant] was laying on his side and [the complainant] was facing up. So I could kind of picture it out just, the way they were laying.’[78]

[120]While DK’s evidence may be corroborative of the complainant’s evidence, this is essentially an ‘oath against oath’ case. DK did not see the appellant engage in digital / vaginal penetration of the complainant. The complainant said he did. The appellant said he did not. The case turns on issues of contested credibility, the miscarriage of justice went to issues of credibility and, regardless of apparent strength of the prosecution case by virtue of the corroboration by DK, this Court cannot be satisfied that guilt has been proved beyond reasonable doubt.

A failure of process?

[121]Although unnecessary to decide because we are unable to be satisfied beyond reasonable doubt of the guilt of the appellant, we conclude that the impugned questioning of the appellant in this case and the failure of the trial judge to be satisfied as required by s 132 of the ENULA, not corrected by any direction to the jury, does not render this case one of those rare cases where there has been such a departure from the essential requirements of the law that it goes to the root of the proceeding, in other words, a denial of the presuppositions of the trial.

Conclusion

[122]Because of the nature of the miscarriage of justice involved, and because this case turned on contested issues of credibility, this Court cannot be satisfied that guilt was proved beyond reasonable doubt. Consequently, this Court cannot find that no substantial miscarriage of justice actually occurred. The residual discretion in the proviso is not enlivened. The appeal will be allowed and the conviction quashed.

Power to grant a new trial

[123]Section 411(3) of the Criminal Code provides that, subject to the special provisions of Div 2 of Part X, the Court shall, if it allows an appeal against a finding of guilt, quash the finding of guilt and direct a judgment and verdict of acquittal to be entered. Section 413 of the Criminal Code provides that, on an appeal against a finding of guilt on indictment, the Court may, either of its own motion or on the application of the appellant, order a new trial in such manner as it thinks fit if the Court considers that a miscarriage of justice has occurred and that, having regard to all the circumstances, such miscarriage of justice can be more adequately remedied by an order for a new trial than by any other order that the Court is empowered to make.

[124]The onus rests on the Crown to satisfy the Court that a new trial is the most appropriate remedy.[79] The considerations relevant to the determination include such matters as whether a significant part of the sentence has been served, the expense and length of a new trial, the length of time between the alleged offence and the new trial, and the impact of a new trial on the accused, witnesses and others affected by the prosecution and the events giving rise to it.[80]

[125]The appellant was sentenced on 14 May 2021 to imprisonment for five years, backdated to 19 March 2021. The sentence was suspended after the appellant had served two years and eight months, with an operational period of two years and four months from the date of release. Aside from a requirement to be of good behaviour for the operational period, no conditions applied to the suspension. The appellant was granted bail on 12 October 2021. He has therefore served about six months and three weeks of the sentence of imprisonment.

[126]The trial took five days. A new trial may be expected to take around the same time.

[127]The evidence of the complainant and DK given at the trial was recorded. There is no reason to think that, at any new trial, those witnesses would have to give evidence beyond that which was recorded at the trial. The other six Crown witnesses could expect to be called to give evidence at a new trial.

[128]The evidence which would likely be led at any new trial of this matter would be capable of sustaining a guilty verdict, and the Crown’s case is relatively strong given the corroborating evidence of DK and the relatively early complaint evidence. The offence of sexual intercourse without consent, with a child aged 13 years old, is extremely serious. The allegations involve an abuse of trust by the appellant as the grandfather of the complainant. It cannot be described as at the low end of the scale of seriousness for this type of offending.[81] The alleged offending occurred on 1 August 2020, some 18 months ago.[82]

[129]The Court is required to determine the most appropriate remedy and that determination is informed in large degree by constitutional and structural considerations, in particular the public interest in the due prosecution and conviction of offenders.[83] It is in the interest of the public that persons who are guilty of serious crimes be brought to justice and not escape it merely because of some technical blunder by the prosecutor and/or the judge in the conduct of the trial.[84] Where the evidence might conceivably sustain a conviction, an order of acquittal would constitute a judicial determination of the proceedings against the appellant rather than a trial by jury, in circumstances where it is not held that the evidence adduced at trial required the jury to acquit the appellant.[85] If a new trial is ordered, it is then a matter for the prosecuting authorities to decide whether to proceed with a new trial having regard to the strength of the Crown case, the fact that the appellant has already served some time in custody, and other issues relating to the conduct of a new trial.

[130]Whether guilt was established beyond reasonable doubt in this case was very much a jury question,[86] the evidence is capable of sustaining a conviction and, in such cases, something more than adverse consequences for the appellant is required.[87]

[131]Consequently, the most adequate remedy in this case is an order for a new trial.

Disposition

[132]The appeal is allowed, the conviction of the appellant is quashed and a new trial is ordered.

___________________________

[1]    Transcript of interview, p 3: Appeal Book (‘AB’) 5.

[2]    MLW v The Queen [2022] NTCCA 2 at [19]-[20], [26]-[33] per Grant CJ, Southwood and Brownhill JJ.

[3]    Transcript, p 139: AB 230.

[4]    Transcript, p 156: AB 247.

[5]    Palmer v The Queen (1998) 193 CLR 1 (‘Palmer’).

[6]    See The Queen v F (1995) 83 A Crim R 502 at 511-512 per Gleeson CJ.

[7]    The Queen v E (1996) 39 NSWLR 450 at 464 per Sperling J.

[8] Ibid.

[9] Ibid and The Queen v Uhrig (unreported, NSWCCA, 24 Oct 1996, pp15-16) per Hunt CJ at CL.

[10]     Quoting with approval from The Queen v Uhrig (unreported, NSWCCA, 24 Oct 1996, pp15-16) per Hunt CJ at CL. It was noted that in many cases where the evidence of that witness is vital to the Crown case, it would be appropriate for the judge to direct the jury that, even if they reject the motive to lie put forward by the accused, that does not mean that the witness is necessarily telling the truth, and to emphasise that the Crown must still satisfy them that the witness is telling the truth.

[11]     Transcript, pp 12-13: AB 39-40 (complainant) and Transcript, p 21: AB 88.

[12]     Transcript, pp 100-102: AB 191-193 (evidence-in-chief) and Transcript, pp 104-106: AB 195-197 (cross-examination).

[13]     Transcript, p 121: AB 212.

[14] [1999] QCA 376 at [13]-[14] per Thomas JA (McMurdo P agreeing).

[15]     Transcript, pp 2, 6-7: AB 283, 287-288.

[16]     See, for example, The Queen v T at [47]-[48] per Chesterman J (McMurdo P and Thomas JA agreeing).

[17]     Transcript, pp 96-97: AB 187-188.

[18]     Petty v The Queen (1991) 173 CLR 95 (‘Petty’) at 99 per Mason CJ, Deane, Toohey and McHugh JJ.

[19]     The Queen v Reeves (1992) 29 NSWLR 109 at 115 (‘Reeves’) per Hunt CJ at CL (Mahoney JA and Badgery-Parker J agreeing).

[20]     See also at 112 per Mahoney JA.

[21]     Barr v The Queen (2004) 14 NTLR 164 at [24]-[28] per Martin (BR) CJ (Angel and Mildren JJ agreeing).

[22]     Callander v The Queen (2004) 185 FLR 38 (‘Callander’) at [21]-[22]] per Angel, Mildren and Riley JJ.

[23]     See Callander at [20].

[24]     See also Sanchez v The Queen [2009] NSWCCA 171 at [58]; The Queen v Matthews (unreported, NSWCCA, 28 May 1996) at 3 per Badgery-Parker J (Cole JA and Sperling J agreeing).

[25]     Orreal v The Queen [2021] HCA 44 (‘Orreal’).

[26]     At [21] per Kiefel CJ and Keane J. See also at [26] per Gordon, Steward and Gleeson JJ, repeating the conclusion of the Court of Appeal that the evidence was irrelevant and inadmissible.

[27]     Citing Nudd v The Queen (2006) 80 ALJR 614 at [9]; The Queen v Baden-Clay (2016) 258 CLR 308 at [48]; Hamilton (a pseudonym) v The Queen (2021) 95 ALJR 894 at [54].

[28]     Citing Craig v The Queen (2018) 264 CLR 202 at [23].

[29]     The Queen v Eaton [2005] QCA 191.

[30]     MLW v The Queen [2022] NTCCA 2 at [150].

[31]     Citing GBF v The Queen (2020) 94 ALJR 1037 at [25].

[32]     In response to a question from the Bench about eliciting such evidence when it would not be relevant, the respondent referred the Court to the decision of the New South Wales Court of Criminal Appeal in Perish v The Queen [2016] NSWCCA 89 at [261]-[267]. In those paragraphs, the Court was dealing with the proposition that the words ‘not admissible’ in the New South Wales equivalent of the ENULA mean ‘not admissible over objection’. The proposition was not pressed by the respondent as any basis for an argument that evidence which could only be used to draw an adverse inference against the appellant within s 89(2) of the ENULA was only inadmissible if defence counsel objected to its receipt. This Court did not hear argument from both parties about the proposition referred to in Perish or its application to s 89 of the ENULA. The argument does not arise in this appeal given the conclusion we have reached below.

[33]     Nguyen v The Queen (2020) 269 CLR 299 at [40] per Kiefel CJ, Bell, Gageler, Keane and Gordon JJ.

[34]     Transcript, p 6: AB 287.

[35]     Transcript, p 124: AB 215.

[36]     Transcript, pp 125-126: AB 126-217. This passage was not referred to in the appellant’s ground, but is of the same nature as the other passages complained about.

[37]     Transcript, pp 127-128: AB 218-219.

[38]     Transcript, p 128: AB 219. This passage was not referred to in the appellant’s ground, but is of the same nature as the other passages complained about.

[39]     Transcript, p 131: AB 222.

[40]     Transcript, p 138: AB 229.

[41]     Glencore International AG v Federal Commissioner of Taxation (2019) 265 CLR 646.

[42]     The term ‘client’ is defined by s 117(1) to include a person who engages a lawyer to provide legal services.

[43]     The term ‘confidential communication’ is defined by s 117(1) to mean a communication made in such circumstances that, when it was made, the person who made it or the person to whom it was made was under an express or implied obligation not to disclose its contents, whether or not the obligation arises under the law.

[44]     Hofer v The Queen [2019] NSWCCA 244.

[45]     Llewellyn v The Queen [2011] NSWCCA 66 at [137].

[46]     Hofer v The Queen (2021) 95 ALJR 937 (‘Hofer’).

[47]     Kiefel CJ, Keane and Gleeson JJ (Gageler J agreeing; Gordon J agreeing on this point).

[48]     Most of these explanations were found in the reasons of King CJ in The Queen v Manunta (1989) 54 SASR 17. Another such explanation was that the matter might simply have been overlooked.

[49]     Birks v The Queen (1990) 19 NSWLR 677 (‘Birks’).

[50]     Noted at 684-685.

[51]     The plurality also referred (at [46]) to the decision in Birks, describing it as ‘cross-examination of this kind’ and stating that the accused in Birks was cross-examined as to the instructions he had given when his counsel had failed to put certain matters to the complainant. 

[52]     Farah Constructions Pty Ltd v Say-Dee Pty Ltd (2007) 230 CLR 89 at [134] per Gleeson CJ, Gummow, Callinan, Heydon and Crennan JJ.

[53]     See, for example, TP v The Queen [2012] VSCA 166; Parsons v The Queen [2016] VSCA 17.

[54]     Relying on Attorney-General for the Northern Territory v Maurice (1986) 161 CLR 475 at 488 per Mason and Brennan JJ, and Banksia Mortgages Ltd v Crocker [2010] NSWSC 535.

[55]     Director of Public Prosecutions (Cth) v Kinghorn [2020] NSWCCA 48.

[56]     Citing Benecke v National Australia Bank (1993) 35 NSWLR 110, and relying on DSE (Holdings) Pty Ltd v Intertan Inc (2003) 127 FCR 499 at [58] per Allsop J.

[57]     See Libke v The Queen (2007) 230 CLR 559 at [71].

[58]     (1) DK kept saying she wanted to go inside because she was cold (Transcript, p 124: AB 215); (2) DK said: ‘We always smoke gunja’ (Transcript, p126: AB 217); (3) The complainant always smoked cannabis at TS’s place (Transcript, p 127: AB 218); (4) The girls were smoking and drinking in the caravan (Transcript, p 128: AB 219); (5) The complainant had a drink at TS’s place (Transcript, p 128: AB 219); (6) SW was drinking the next morning (Transcript, p 131: AB 222); (7) The complainant said it was too cold in the caravan and went inside (Transcript, p 138: AB 229).

[59]     Transcript, p 154, AB 245.

[60]     Transcript, p 140: AB 231.

[61]     Transcript, p 160: AB 251.

[62]     Orreal at [41] per Gordon, Steward and Gleeson JJ, and at [20] per Kiefel CJ and Keane J.

[63] Ibid at [20] per Kiefel CJ and Keane J. See also at [41] per Gordon, Steward and Gleeson JJ.

[64] Ibid at [41] per Gordon, Steward and Gleeson JJ, and at [20] per Kiefel CJ and Keane J, citing Kalbasi v Western Australia (2018) 264 CLR 62 at [15].

[65] Ibid at [41] per Gordon, Steward and Gleeson JJ, citing Pell v The Queen (2020) 268 CLR 123 at [37]-[38], and at [22] per Kiefel CJ and Keane J.

[66]     Hofer at [60], citing Kalbasi v Western Australia (2018) 264 CLR 62 at [15].

[67]     Hofer at [57], citing Douglass v The Queen (2012) 86 ALJR 1086 at [13]; Liberato v The Queen (1985) 159 CLR 507 at 515.

[68]     Hofer at [51] and [54], citing Weiss v The Queen (2005) 224 CLR 300 at [44]-[45].

[69] Ibid at [72], citing Weiss v The Queen (2005) 224 CLR 300 at [46].

[70]     Wilde v The Queen (1988) 164 CLR 365 at [10].

[71]     Weiss v The Queen (2005) 224 CLR 300 at [46].

[72] Ibid at [73].

[73]     Transcript, pp 138, 139: AB 228, 229.

[74]     Transcript, pp 121, 139: AB 212, 229.

[75]     Transcript, p 5: AB 47.

[76]     Transcript, p 26: AB 68.

[77]     Transcript, p 27: AB 69.

[78]     Transcript, p 23: AB 90.

[79]     BD v The Queen (No 2) (2017) 40 NTLR 50 (‘BD’) at [4] per Grant CJ, Kelly and Barr JJ.

[80] Ibid.

[81]     Cf BD at [8].

[82]     Cf BD at [8]. There, the alleged offending had taken place five years before the determination of the appeal.

[83] Ibid at [10].

[84] Ibid.

[85]     See Dyers v The Queen (2002) 210 CLR 285 at [23] per Gaudron and Hayne JJ, cited in BD at [12].

[86]     See The Queen v Stafford [2009] QCA 407 at [170] per Keane JA (Fraser JA agreeing), cited in BD at [13].

[87]     BD at [17].