Singh v The King

Case [2025] SASCA 98

SUPREME COURT OF SOUTH AUSTRALIA

(Court of Appeal: Criminal)

SINGH v THE KING

[2025] SASCA 98

Judgment of the Court of Appeal  

(The Honourable President Livesey, the Honourable Justice S Doyle and the Honourable Justice Bleby)

4 September 2025

CRIMINAL LAW - PARTICULAR OFFENCES - PROPERTY OFFENCES - ARSON AND LIKE OFFENCES

CRIMINAL LAW - APPEAL AND NEW TRIAL - MISCARRIAGE OF JUSTICE

Appeal against conviction.

The appellant was convicted by a jury of arson in contravention of s 85 of the Criminal Law Consolidation Act 1935 (SA).

The offending involved a deliberately lit fire which destroyed a residential property.  The issue at trial was the identity of the offender.

The prosecution case was a circumstantial one, with various items of evidence placing the appellant at the scene and connecting him with the fire.  The appellant did not give evidence, but in discussions with the police he told several lies about his whereabouts and connection with the fire.

The appellant’s two grounds of appeal complain about: (i) the prosecutor’s repeated submissions about lies in terms reflecting of a consciousness of guilt, culminating in a reference to the defendant’s plea of guilty as a lie; and (ii) the judge’s failure to adequately direct the jury in relation to those lies.

Held (per the Court):

1.In the circumstances of this case, a general Zoneff style direction was not sufficient to address the risk created by the prosecutor’s address.  To avoid a miscarriage, it was necessary either to direct the jury to ignore the submissions by the prosecutor, inviting them to use the defendant’s lies as evidence of guilt, or to give an Edwards style direction.

Held (per Livesey P and Bleby JA, S Doyle JA dissenting) setting aside the conviction and ordering a new trial:

2.The prosecutor’s reference to the appellant’s plea of guilty as a lie involved a fundamental irregularity preventing the application of the proviso.

Crimes Act 1914 (Cth); Criminal Appeal Act 1912 (NSW) s 6(1); Criminal Code (Qld) s 668E(1); Criminal Law Consolidation Act 1935 (SA) s 58; Criminal Procedure Act 1921 (SA) ss 131, 158(1)(b), 158(2); Evidence Act 1929 (SA) s 18(1)(b); Juries Act 1967 (Vic); Occupational Health and Safety Act 2004 (Vic), referred to.

Andrews v The Queen (1968) 126 CLR 198; Baiada Poultry Pty Ltd v The Queen (2012) 246 CLR 92; Brawn v The King (2025) 99 ALJR 872; Glennon v The Queen (1994) 179 CLR 1; Hofer v The Queen (2021) 274 CLR 351; Katsuno v The Queen (1999) 199 CLR 40; Libke v The Queen (2007) 230 CLR 559; Maher v The Queen (1987) 163 CLR 221; MDP v The King (2025) 99 ALJR 969; Quartermaine v The Queen (1980) 143 CLR 595; R v Couper (1985) 18 A Crim R 1; R v Henderson [1966] VR 41; R v Hildebrandt (1963) 81 WN (Part 1) (NSW); Weiss v The Queen (2005) 224 CLR 300; Wilde v The Queen (1988) 164 CLR…

Continue reading Singh v The King

Sign in free to access the full text

Details
AGLC
Singh v The King [2025] SASCA 98
Case
[2025] SASCA 98
Decision Date

CaseChat Overview and Summary

The Supreme Court of South Australia, constituted by Livesey P, S Doyle and Bleby JJ, considered an appeal by Mr Singh against his conviction for arson. The central dispute revolved around the directions given by the trial judge to the jury concerning the use of alleged lies told by the appellant. The appellant contended that the prosecutor's submissions, which emphasised certain lies told by Mr Singh and suggested they were motivated by a desire to distance himself from the fire, invited the jury to infer guilt from these lies, despite the judge's contrary directions.

The legal issues before the Court were whether the trial judge's directions adequately addressed the prosecutor's submissions regarding the appellant's lies, and whether there was a substantial miscarriage of justice. Specifically, the Court had to determine if the judge should have provided an "Edwards" style direction, which allows for lies to be used as evidence of guilt if certain conditions are met, or a "Zoneff" style direction, which limits the use of lies solely to assessing credibility. The Court also considered the principles governing when an error in the trial process might be considered so fundamental as to constitute a miscarriage of justice, even if the appellate court is otherwise persuaded of the appellant's guilt.

The Court reasoned that the prosecutor's assertion that the plea of not guilty was a lie was a fundamental misconception. While the judge had directed the jury to use any found lies only for assessing credibility (a "Zoneff" direction), the prosecutor's submissions risked leading the jury to infer guilt from those lies. The Court noted that the authorities have not always been consistent in determining when an error is fundamental. However, in this instance, the Court applied the proviso, finding that despite the prosecutor's misconceived submissions and the judge's potentially insufficient directions, there had not been a substantial miscarriage of justice.

The appeal was granted permission to appeal but ultimately dismissed.

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

For the reasons given, I would apply the proviso and dismiss the appeal.Conclusion I would grant permission to appeal, but dismiss the appeal. BLEBY JA: I respectfully agree with the characterisation by Livesey P that the prosecutor’s assertion that the plea of not guilty was a lie, ‘wholly misconceived the nature and purpose of a plea of not guilty in a criminal trial’. I adopt, with gratitude, the analyses by both Livesey P and Doyle JA as to when an error may be characterised as fundamental such that there has been a substantial miscarriage of justice, with no occasion to consider the proviso. The observation by Doyle JA that the authorities have not taken an entirely consistent approach in determining when an error or irregularity will be treated as fundamental is, with respect, well made. In Weiss v TheQueen,[223] the High Court observed that cases of significant denial of procedural fairness may provide examples of where it would be proper to allow an appeal and order a new trial, even though the appellate court was persuaded of the appellant’s guilt.[224] As this Court noted in Quist v The Queen:[225]While [the High Court in Weiss] did not explore the scope of that potential exception, the necessary reasoning behind it is readily apparent. Adherence to procedural fairness is an essential characteristic of the exercise of judicial power.[226] A significant denial of procedural fairness in judicial proceedings will constitute jurisdictional error, causing a trial not to have been conducted according to law.[227](Footnotes in original)[223] (2005) 224 CLR 300.[224] Weiss v TheQueen (2005) 224 CLR 300 at [45].[225] (2021) 140 SASR 16 at [101].[226] RCB v The Honourable Justice Forrest (2012) 247 CLR 304 at [42] (French CJ, Hayne, Crennan, Kiefel and Bell JJ). See generally, French, R, “Essential and defining characteristics of courts in an age of institutional change” (2013) 23 JJA 3.[227] Mustafa v The Queen [2021] NSWCCA 164 at [81]-[87] (Rothman J, McCallum JA and Ierace J agreeing). The question of whether an error in the trial process is jurisdictional could not be said to exhaust the question of whether it is ‘fundamental’ in the relevant sense. However, an understanding of what is capable of constituting jurisdictional error on the part of a court can assist in the analysis. In the context of an application for judicial review, the High Court said in Craig v South Australia:[228] Similarly, jurisdictional error will occur where an inferior court disregards or takes account of some matter in circumstances where the statute or other instrument establishing it and conferring its jurisdiction requires that that particular matter be taken into account or ignored as a precondition of the existence of any authority to make an order or decision in the circumstances of the particular case. Again, an inferior court will exceed its authority and fall into jurisdictional error if it misconstrues that statute or other instrument and thereby misconceives the nature of the function which it is performing or the extent of its powers in the circumstances of the particular case.[228] Craig v South Australia (1995) 184 CLR 163 at 177-178.

Ratio Decidendi

Legal Principle Established

The judge went on to direct the jury that, even if they rejected everything the appellant had said that was contrary to him lighting the fire, that was not the end of their task. They still needed to be satisfied that the prosecution had proved the case beyond a reasonable doubt.Consideration The directions given by the judge in relation to lies reflected what is often referred to as a Zoneff style direction. The judge directed the jury to confine their use of any lies that they found were told by the appellant to their assessment of his credibility; and not to use them as probative of guilt. The essence of the appellant’s complaint is that the prosecutor, through his emphasis on lies, in conjunction with his references to some of those lies being motivated by a desire to distance himself from the fire, in effect invited the jury to engage in reasoning to the effect that the lies were motivated by a consciousness of guilt. This invitation having been made, the appellant complains that there was a risk that the jury might use the lies in this way, despite being directed against this by the judge. Accordingly, it was necessary for the judge to squarely address the submissions made by the prosecutor – either by telling the jury that the prosecutor should not have made these submissions and to ignore them, or by giving an Edwards style direction in relation to the contended lies. The principles governing lies, and the circumstances calling for Edwards or Zoneff style directions, are not in dispute. They were conveniently summarised in Hinrichsen v The King:[191][191] Hinrichsen v The King [2023] SASCA 111 at [464]-[467] (Lovell and Doyle JJA).Backtracking for a moment, reference to an Edwards direction is, of course, reference to the style of direction contemplated by Deane, Dawson and Gaudron JJ in Edwards v The Queen.[192] As their Honours explained in that case,[193] the telling of a lie ordinarily affects the credit of a person who tells it. But in some circumstances, a lie told by an accused person may amount to conduct which is inconsistent with innocence and an implied admission of guilt. A lie may constitute an admission only if it is concerned with some circumstance or event connected with the offence (that is, it relates to a material issue), and if told by the accused in circumstances in which the explanation for the lie is that he or she knew that the truth would implicate him or her in the offence. As to the direction that should be given where the prosecution seek to rely upon a lie as demonstrating a consciousness of guilt, Deane, Dawson and Gaudron JJ said:[194] [192] Edwards v The Queen (1993) 178 CLR 193.[193] Edwards v The Queen (1993) 178 CLR 193 at 208-209 (Deane, Dawson and Gaudron JJ).[194] Edwards v The Queen (1993) 178 CLR 193 at 210-211 (Deane, Dawson and Gaudron JJ) (omitting citations).Thus, in any case where a lie is relied upon to prove guilt, the lie should be precisely identified, as should the circumstances and events that are said to indicate that it constitutes an admission against interest. And the jury should be instructed that they may take the lie into account only if they are satisfied, having regard to those circumstances and events, that it reveals a knowledge of the offence and some aspect of it and that it was told because the accused knew the truth of the matter about which he lied would implicate him in the offence, or, as was said in Reg v Lucas (Ruth), because of ‘a realization of guilt and a fear of the truth’.Moreover, the jury should be instructed that there may be reasons for the telling of a lie apart from the realization of guilt. A lie may be told out of panic, to escape an unjust accusation, to protect some other person or to avoid a consequence extraneous to the offence. The jury should be told that, if they accept that a reason of that kind is the explanation for the lie, they cannot regard it as an admission. It should be recognized that there is a risk that, if the jury are invited to consider a lie told by an accused, they will reason that he lied simply because he is guilty unless they are appropriately instructed with respect to these matters. And in many cases where there appears to be a departure from the truth it may not be possible to say that a deliberate lie has been told. The accused may be confused. He may not recollect something which, upon his memory being jolted in cross-examination, he subsequently does recollect.In Zoneff v The Queen,[195] Gleeson CJ, Gaudron, Gummow and Callinan JJ recognised that the Edwards direction had caused difficulties and controversy in criminal trials.[196] Their Honours indicated an approach which underscored the importance of ascertaining whether the prosecution sought to rely upon a particular lie or lies as reflecting a consciousness of guilt, and suggested that an Edwards direction would not generally be necessary in those cases where the prosecution did not seek to use any lie as having a relevance extending beyond credit:[197]There may be cases in which the risk of misunderstanding on the part of a jury as to the use to which they may put lies might be such that a judge should give an Edwards-type direction notwithstanding that the prosecutor has not put that a lie has been told out of consciousness of guilt. As a general rule, however, an Edwards-type direction should only be given if the prosecution contends that a lie is evidence of guilt, in the sense that it was told because, in the language of Deane, Dawson and Gaudron JJ in Edwards, ‘the accused knew that the truth … would implicate him in [the commission of] the offence’ and if, in fact, the lie in question is capable of bearing that character. …Moreover, if there is a risk of confusion or doubt as to the way in which the prosecution puts its case, the trial judge should inquire of the prosecution whether it contends that lies may constitute evidence of consciousness of guilt and, if so, he or she should require identification of the lie or lies in issue and the basis on which they are said to be capable of implicating the accused in the commission of the offence charged.Their Honours went on to explain that in a case where the prosecution did not seek to use any lie as reflecting a consciousness of guilt, then a more limited direction would ordinarily be sufficient and appropriate.[198] The more limited direction (a Zoneff direction) contemplated by their Honours involved instructing the jury not to use any lie that the accused may have told as evidence of guilt (without any reference to the possibility that a lie may indicate a consciousness of guilt).While the principles governing the directions to be given in relation to lies are relatively clear, they are often difficult to apply.[195] Zoneff v The Queen (2000) 200 CLR 234.[196] Zoneff v The Queen (2000) 200 CLR 234 at [15] (Gleeson CJ, Gaudron, Gummow and Callinan JJ).[197] Zoneff v The Queen (2000) 200 CLR 234 at [16]-[17] (Gleeson CJ, Gaudron, Gummow and Callinan JJ).[198] Zoneff v The Queen (2000) 200 CLR 234 at [23]-[25] (Gleeson CJ, Gaudron, Gummow and Callinan JJ).