RPS v The Queen

The High Court of Australia heard an appeal from RPS against his convictions for sexual offences against his daughter. The appeal concerned two primary questions: whether the conduct of the trial judge, due to apprehended bias or otherwise, had denied the appellant a fair trial, and whether the judge's directions to the jury concerning the appellant's failure to give evidence contravened section 20(2) of the *Evidence Act 1995* (NSW).

The legal issues before the Court were whether the trial judge's frequent interruptions of defence counsel's cross-examination and specific directions given to the jury regarding the appellant's election not to give evidence amounted to a denial of a fair trial. The Court was required to determine the circumstances under which a jury may properly take into account an accused person's failure to give evidence, particularly in light of the *Evidence Act 1995* (NSW), and whether the judge's instructions in this instance were permissible.

The Court reasoned that while the trial judge's interventions did not, in themselves, deny the appellant a fair trial, the directions given to the jury concerning the appellant's failure to give evidence were erroneous. The judge had instructed the jury that they were entitled to consider the appellant's election not to contradict certain evidence as a circumstance that could lead them to more readily accept the Crown's evidence. The Court held that this direction was improper, particularly as the alleged admission was only partial and the appellant faced multiple charges, meaning he was entitled to rely on the prosecution's failure to prove its case beyond reasonable doubt without being compelled to give evidence and expose himself to cross-examination on all counts. The Court allowed the appeal, quashed the convictions, and ordered a new trial on specific counts.