RH v The Queen

This matter came before the Court of Appeal of the Northern Territory, constituted by Kelly, Blokland and Brownhill JJ, on appeal from a conviction. The appellant sought to challenge his conviction on two grounds: first, that certain cross-examination and closing address by the prosecutor constituted a material irregularity; and second, that the admission of evidence regarding his refusal to participate in a record of interview amounted to a miscarriage of justice.

The primary legal issue for determination was whether the prosecutor's cross-examination of the appellant, and subsequent submissions to the jury, concerning the complainant's potential motive to lie, constituted a material irregularity. This involved considering whether the questions asked were improperly directed at eliciting the appellant's knowledge of facts from which an inference of the complainant's motive to lie could be drawn, thereby breaching the principle established in *Palmer*. The second issue concerned the admissibility of evidence that the appellant declined to participate in a record of interview, and whether this infringed his right to silence under section 89 of the *Evidence (National Uniform Legislation) Act 2011* (NT), by allowing an unfavourable inference to be drawn regarding his credibility.

The Court reasoned that the prosecutor's questions, when viewed in their context, were not general inquiries into the complainant's motive to lie, but rather were anchored to specific events during the appellant's interaction with the complainant and her companions. These questions sought to ascertain facts the appellant would know if they existed, relating to his own conduct, and thus fell within an exception to the prohibition against cross-examining an accused about a complainant's motive to lie. Regarding the second ground, the Court noted that the evidence of the appellant declining an interview was elicited in examination-in-chief and no submissions were made about it at trial, nor was any direction given by the judge. The Court found that the appellant had not demonstrated a realistic possibility that either the cross-examination or the closing address affected the basis on which the jury reached its verdict, and therefore, no miscarriage of justice had occurred.

The Court of Appeal dismissed the appeal, finding that neither ground of appeal was made out and that the appellant had not demonstrated a miscarriage of justice.