Singh v The King

[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 365, discussed.

AK v Western Australia (2008) 232 CLR 438; Alzuain v The King [2025] SASCA 67; Anderson (A Pseudonym) v The King [2024] SASCA 36; Ayles v The Queen (2008) 232 CLR 410; Baker v Campbell (1983) 153 CLR 52; Balog v Independent Commission Against Corruption (1990) 169 CLR 625; Bell v The King [2025] SASCA 97; Brawn v The King (2025) 99 ALJR 872; Bray v Ford [1896] AC 44; Bropho v Western Australia (1990) 171 CLR 1; Castle v The Queen (2016) 259 CLR 449; Cesan v The Queen (2008) 236 CLR 358; Chamberlain v The Queen (No 2) (1984) 154 CLR 521; Conway v The Queen (2002) 209 CLR 203; Corporate Affairs Commission (NSW) v Yuill (1991) 172 CLR 319; Craig v South Australia (1995) 184 CLR 163; Craig v The Queen (2018) 264 CLR 202; Crane v Director of Public Prosecutions [1921] 2 AC 299; De Silva v The Queen (2019) 268 CLR 57; Driscoll v The Queen (1977) 137 CLR 517; DWN042 v Republic of Nauru (2017) 92 ALJR 146; Edwards v The Queen (1993) 178 CLR 193; Griffiths v The Queen (1994) 69 ALJR 77; Hargraves v The Queen (2011) 245 CLR 257; HCF v The Queen (2023) 97 ALJR 978; Hembury v Chief of the General Staff (1998) 193 CLR 641; Hilliard v The King [2025] SASCA 91; Hinrichsen v The King (2023) 144 SASR 44; Hoang v The Queen (2022) 276 CLR 252; Hocking v Bell (1945) 71 CLR 430; Hossain v Minister for Immigration and Border Protection (2018) 264 CLR 123; Huxley v The Queen (2023) 98 ALJR 62; Jago v District Court (NSW) (1989) 168 CLR 23; Johns v The Queen (1979) 141 CLR 409; Jones v The Queen (1997) 191 CLR 439; Kalbasi v Western Australia (2018) 264 CLR 62; Kingswell v The Queen (1985) 159 CLR 264; Lee v The Queen (2014) 253 CLR 455; Matusevich v The Queen (1977) 137 CLR 633; McKell v The Queen (2019) 264 CLR 307; McKinney v The Queen (1991) 171 CLR 468; MDP v The King (2025) 99 ALJR 969; Mraz v The Queen (1955) 93 CLR 493; Mustafa v The Queen [2021] NSWCCA 164; MZAPC v Minister for Immigration and Border Protection (2021) 273 CLR 506; Nathanson v Minister for Home Affairs (2022) 276 CLR 80; Nudd v The Queen (2006) 80 ALJR 614; Orreal v The Queen (2021) 274 CLR 630; Patel v The Queen (2012) 247 CLR 531; Phillips v The Queen (1985) 159 CLR 45; Pollock v The Queen (2010) 242 CLR 233; Potter v Minahan (1908) 7 CLR 277; RCB v The Honourable Justice Forrest (2012) 247 CLR 304; Rodi v Western Australia (2018) 265 CLR 254; R v Abdirahman-Khalif (2020) 94 ALJR 981; R v Ashton (1944) 61 WN (NSW) 134; R v BEC (2023) 16 QR 1; R v Dempster [1924] SASR 299; R v Gibson (1887) 18 QBD 537; R v Hall [1971] VR 293; R v Kennedy [2017] SASCFC 170; R (Osborn) v Parole Board [2014] AC 1115; R v Pacitti (2022) 141 SASR 482; R v Patronek decision of Herron CJ delivered 30 August 1963; R v Rose [1982] 1 WLR 614; R v Rose [1982] AC 822; R v Screen & McCarthy (1924) 41 WN (NSW) 20; R v Sheppard [2010] QCA 342 ; R v Short (1898) 19 LR (NSW) 385; R v Smith [1954] QWN 49; R v Storey (1978) 140 CLR 364; Simic v The Queen (1980) 144 CLR 319; Sorby v The Commonwealth (1983) 152 CLR 281; Thomas v The Queen (1959) 102 CLR 585; The Queen v Vuckov and Romeo (1986) 40 SASR 498; TKWJ v The Queen (2002) 212 CLR 124; Whitehorn v The Queen (1983) 152 CLR 657; Zoneff v The Queen (2000) 200 CLR 234, considered.

SINGH v THE KING
[2025] SASCA 98

Court of Appeal – Criminal:    Livesey P, S Doyle and Bleby JJA

LIVESEY P:

Introduction

1. An important issue in this case is whether the assertion made by the prosecutor at the conclusion to his final address to the jury, that the accused’s plea of “not guilty” to the charge of arson was “a lie”, comprised a “failure to observe the requirements of the criminal process in a fundamental respect”.[1]

   [1]     Maher v The Queen (1987) 163 CLR 221, 234 (Mason CJ, Wilson, Brennan, Dawson and Toohey JJ); Katsuno v The Queen (1999) 199 CLR 40, [35] (Gaudron, Gummow and Callinan JJ); Lee v The Queen (2014) 253 CLR 455, [48] (French CJ, Crennan, Kiefel, Bell and Keane JJ).

2. That assertion was both irregular and improper, antithetical to the accused’s right to require that the prosecution prove guilt beyond reasonable doubt without being required to give or call evidence in his own defence.[2]

   [2] In South Australia, and consistently with the privilege against self-incrimination, s 18(1)(b) of the Evidence Act 1929 (SA) reinforces the right of an accused not to give evidence at trial by prohibiting the prosecution from commenting about it: “the failure of any person charged with an offence to give evidence shall not be made the subject of any comment by the prosecution”.

3. The context in which the prosecutor made that assertion is important.  It formed part of the peroration to an address in which what were said to be the accused’s many lies were made to form the centrepiece of the prosecution case.  Contrary to the intimation the prosecutor gave to the trial judge, his final address on the topic of the accused’s lies repeatedly invoked consciousness of guilt reasoning.  It strayed well beyond treating the accused’s pre-trial lies as relevant only to the assessment of his credibility. 

4. The effect of the prosecutor’s assertion was to equate the accused’s plea of not guilty with the many lies it was said had been told by the accused out of court, before the trial commenced.  It cannot have escaped the attention of the jury that the accused’s plea of “not guilty” was the only time he spoke in the courtroom.  On the approach of the prosecutor, this lie was not merely a lie made to police, but one made to the judge and jury in open court.[3]

   [3]     The assertion was directed to the court, probably principally to the jury: “He has been lying ever since right up to the start of the trial when he said ‘Not guilty’ to you. Another lie” (emphasis added).

5. The prosecutor’s assertion about the accused’s plea of not guilty was not the subject of any submission, whether to the trial judge or to the jury, by counsel for the defence.  It is difficult to understand what rational forensic justification there could have been for failing to seek directions or apply for a mistrial concerning the assertion.[4] 

   [4]     Orreal v The Queen (2021) 274 CLR 630, [16] (Kiefel CJ and Keane J) citing Craig v The Queen (2018) 264 CLR 202, [23] (Kiefel CJ, Bell, Gageler, Keane, Nettle, Gordon and Edelman JJ).

6. The prosecutor’s assertion was not addressed in the summing up of the trial judge, either.  Whilst the summing up was commendably orthodox, giving appropriate emphasis to the burden of proof and directing the jury that they should confine their assessment of the accused’s lies to his credibility, it did not sufficiently address the invocation of consciousness of guilt reasoning and it did not firmly and emphatically address the aberrant idea that a plea of not guilty could be described as a lie.[5] 

   [5]     Whether directions could have adequately addressed the prosecutor’s assertion, or whether a mistrial was inevitable, was not addressed before this Court. Standard directions could not cure the effect of the assertion. A Zoneff direction could not be given, because the suggested lie necessarily went to the accused’s guilt.  An Edwards direction could not realistically be given, because it would inevitably require that the jury stray into the accused’s reasons for making his plea, which would be both irrelevant and improper, risking speculation about legally privileged instructions and information.

7. As for the suggestion made by the Director in argument before this Court that the misdescription of the accused’s plea of not guilty as a lie may have been overlooked or disregarded as a mere rhetorical flourish, the answer is that it may have had a devastating impact. 

8. It was virtually the last thing said to the jury by the prosecutor.  It had the capacity to undermine the directions given about the burden of proof, reinforcing the prejudicial nature of the prosecutor’s final address on lies by calling into question whether the accused’s participation in the trial before the jury was genuine.  Describing the plea by which the accused put the prosecution to proof as a form of deception had the capacity to undermine the presumption of innocence.

9. Because this departure from the precepts of a criminal trial was “fundamental” in the sense described by the authorities,[6] the appeal should be allowed and there is no occasion to consider the proviso in s 158(2) of the Criminal Procedure Act 1921 (SA) (the CPA).

   [6]     Brawn v The King (2025) 99 ALJR 872, [9] (Gageler CJ, Gordon, Edelman, Steward, Gleeson, Jagot and Beech-Jones JJ) and MDP v The King (2025) 99 ALJR 969, [3] (Gageler CJ), [11] (Gordon and Steward JJ), [65] (Edelman J) and [78]-[79] (Gleeson, Jagot and Beech-Jones JJ) and the cases there cited.

10. These reasons are set out as follows:

    Overview of the trial in this matter

    Overview of the appeal in this matter

    The problem of consciousness of guilt

    The plea of not guilty

    The conduct of the prosecutor

    Materiality and fundamental error or irregularity

    What is a “fundamental” error or irregularity?

    Conclusion

    Overview of the trial in this matter

11. Following a trial by jury, the appellant was convicted of one count of arson, contrary to s 85 of the Criminal Law Consolidation Act 1935 (SA).[7]

    [7]     A more detailed account of the evidence and the course of the trial is clearly and helpfully set out in the reasons of S Doyle JA.  

12. There was no issue that the fire was deliberately lit shortly after midnight on 28 September 2021, fuelled by an accelerant, resulting in an explosion and destroying a property owned by the appellant’s brother-in-law.  The issue at trial was the identity of the offender. 

13. The prosecution case against the appellant was circumstantial. It included proof of the appellant’s presence near the scene of the fire, his interaction with a witness soon after the time of the explosion associated with the fire, his rapid departure from the scene in a white van, and the detection by police of the appellant in that van the next day.  A police search of the van showed that it contained items which included a watering can with a residue of the same kind of cheap petrol as had been detected at the scene.  Also inside the van was a right shoe with petrol on it, which appeared to form a pair with a left shoe found at the scene.  There was an open packet of 10 boxes of “Samba” brand matches containing nine unopened boxes.  One opened box of this brand of matches was found at the scene of the fire. 

14. One of the witnesses for the prosecution was Mr Davey.  He gave evidence that he lived near the property destroyed by the fire.  He heard a loud bang.  When he went outside, he saw flames and called “000” and reported a fire.  It was not in dispute at trial that Mr Davey saw the appellant in the street near the scene of the fire.  Mr Davey saw the appellant get into a white van.  He tried to get the appellant’s attention.  The appellant wound his window down slightly, but he did not respond to Mr Davey’s questions and drove away.  Mr Davey noted the registration number and gave it to police.

15. Later, the appellant told police that he was on the street with Mr Davey when he heard the explosion.  This was inconsistent with Mr Davey’s evidence, and it was later the subject of criticism by the prosecutor.  The appellant also said that he had initially lied about being in the vicinity of the fire because he had been checking up on his wife.  He said he suspected she was having an affair.  He repeatedly denied lighting the fire.

16. Significant attention was given to the appellant’s statements made to police in the course of their investigation, particularly in two records of interview.  Many of these were described by the prosecutor as lies. 

17. Regardless of the many lies described by the prosecutor in his final address, it appeared to be a very strong prosecution case. 

18. Before final addresses, the trial judge raised the topic of lies with counsel.  The prosecutor said that he intended to submit that the statement made by the appellant to police that he had heard the explosion caused by the fire when he was speaking with Mr Davey, was a “consciousness of guilt lie”.[8]  The trial judge said there were difficulties with that and suggested that the issue be handled carefully.  He urged counsel to consider the matter further.[9] 

    [8]     Transcript, 536.7-536.13.

    [9]     Transcript, 538.4-538.8.

19. Later, the topic of lies was again raised by the trial judge before final addresses.  The prosecutor said that he would adopt a more conservative approach, telling the judge:[10]

    The way I have drawn my address as presently stands will be to say that ‘There are lies, lies, lies and lots of them, some of them are bigger, some of them are smaller and it’s a matter for you to work through the motives that there might be behind the lies or whether there are motives or no motives’.  I’m going to leave it at that.  I’m not going to get into specifically ‘This is the grandaddy of all lies’, I will come close, but I won’t go to the lie being a lie because of a guilty frame of mind.  I will be generally banging the table about lies a lot.

    [10]   Transcript, 592.1-592.11.

20. The trial judge said that he was not satisfied that any lie should be used as going to “consciousness of guilt”,[11] and he intended to give a Zoneff direction concerning any lies as “going to credit”.[12]  He asked the prosecutor to “stay away” from anything the jury might perceive as a submission that the appellant may have “lied for a motive of guilt”.[13]

    [11]   Transcript, 594.26-594.31.

    [12]   Transcript, 594.26-594.31.

    [13]   Transcript, 595.3-594.7.

21. Counsel appeared to acquiesce in the request made by the trial judge.

22. The prosecutor commenced his final address with a summary of the circumstantial evidence, addressing the relevant timeline and the appellant’s movements and interactions with police, but he soon moved to what he described as the various lies which he asked the jury to find the appellant had told police.  These were extensively catalogued from the records of interview.  The prosecutor referred to these containing “a pack of lies”:[14]

    But before I completely finish, I want to take you for a moment to these records of interview and the layers of the lies because what do you call a lot of lies, a pack of lies, I think it’s a pack of lies. We’ve certainly got that here.

    [14]   Transcript, 620.13-620.17.

23. The prosecutor then identified what he submitted were nearly 20 lies told by the appellant and continued:[15]

    And through that record of interview, he lies on big things, he lies on little things, he lies on things that matter.  He lies on things that don't matter and that's the important bit.  It is not just that he lies on one topic, it was just ‘I slept here’ and ‘I got in late’. It is the edges of it that tell you that there is no truth there.  If there is no truth there, you can take the next step and say you simply don't believe him. Even if you don't believe him, you have to accept the prosecution case which is made up of those other layers that involve the petrol, the matches and putting the whole situation together. I still have to prove it even if you reject him as a witness of truth at all.  The onus is still on the prosecution to prove it.

    So, you have got that first record of interview. Then you have got the second record of interview.  Here, we have got the big, big, big lie of ‘That's when I heard the bang’.  That’s again distancing himself from the fire.  Then we’ve got the description of Davey. Then we've got that he just drove off and his account why he didn't ring emergency services.  That's a matter for you to weigh up, ladies and gentlemen.

    Then you have him asserting what he has been doing. That’s a matter for you, ladies and gentlemen.  The number of phone calls, again a matter for you.  He admits lying to his wife as to where he was.  That's again a matter for you.  So we have got the first record of interview with lots of lies in his account of checking on his wife; does that fit?  It simply doesn’t fit, ladies and gentlemen.

    So applying commonsense, the layers of fact, the fact of the petrol, the fact of the matches, look at the matches yourselves.  No doubt ladies and gentlemen.  It is not a case where, on this matter, he could have done it.  It is not a case where he might have done it.  It is not a case where he probably did it.  No, it is more than that.  If you layer it on layer and working it through with your commonsense, and taking the care with both the prosecution case and what it is he said, to test it, if you work through those layers, how people react, applying your commonsense, it is quite solid ladies and gentlemen.  There are no doubts.

    [15]   Transcript, 621.33-622.37.

24. The prosecutor concluded his final address to the jury with the following assertion about the appellant’s plea of “not guilty”:[16]

    He set the fire, he was seen shortly after. He has then freaked out and he has been lying ever since. He has been lying ever since. He has been lying ever since right up to the start of the trial when he said ‘Not guilty’ to you. Another lie.

    The prosecution invite you to convict.

    [16]   Transcript, 622.37-623.4.

1. Though this Court is confined to the written record, given the prominent place of this assertion in the final address, it is not hard to imagine the dramatic, emphatic manner in which the prosecutor concluded, together with its potential impact on the jury.

2. In the course of his summing up, the trial judge gave standard directions about the presumption of innocence and the burden of proof on the prosecution:[17]

   All legal directions are important, but the direction I am about to give you is fundamental. [The appellant] comes into this court with a presumption of innocence in his favour. The law regards him as innocent, unless and until, his guilt is established, beyond a reasonable doubt. As you have been told, the burden of proving the offence of arson lies entirely upon the prosecution. [The appellant] does not have to prove that he is innocent. If he puts forward a defence, the prosecution must disprove it, beyond a reasonable doubt.

   [17]   Summing up, 3.

3. The trial judge then addressed the appellant’s right to silence,[18] before giving directions about the elements of the offence of arson, together with broad summaries of the cases for the prosecution and defence.  After giving the jury directions about the assessment of the evidence of witnesses, the trial judge spent some time addressing the appellant’s interviews and interactions with police.  The trial judge gave the jury the following “very important direction”:[19]

   Whether [the appellant] lied to the police at any time is a matter for you. However, I give you this very important direction. Assessing [the appellant’s] truthfulness is the only way you may use any lies that [the appellant] told the police if you find he told any lie.

   [18]   Summing up, 4-5.

   [19]   Summing up, 20.

4. The trial judge gave the jury directions regarding the use to be made of any lies which they found the appellant may have told.  For example, concerning the prosecution case, the trial judge reminded the jury that the prosecution had submitted that any lies told were relevant to the appellant’s “credibility or truthfulness” and had to be “borne in mind when considering whether he lied when [he] denied lighting the fire …”.[20] 

   [20]   Summing up, 21.

5. The trial judge then reminded the jury about the address of defence counsel, who had submitted that the appellant lied about his presence in the street because he did not want his wife to know that he had been checking up on her because he suspected her of having an affair.  This was the reason, it was said, that the appellant was in the vicinity of the fire at the time he was seen by Mr Davey.[21]

   [21]   Summing up, 21.

6. The trial judge then directed the jury that, if they found that the appellant had told a lie, they were “permitted to bear that in mind” when considering whether “what he said on other topics was truthful”:[22]

   … for example, the reason he said he was in the vicinity of the fire in Hughes Street South and his comment and denial that he was not responsible for the fire and anything else he said which is contrary to the prosecution case. However, I direct you that you must not use a conclusion that [the appellant] lied, if you draw that conclusion, as evidence of guilt. A finding that [the appellant] lied, if that is the finding you make, is only relevant to your assessment of the truth of what [the appellant] said to the police. Any finding of a lie by [the appellant] does not add to the evidence relied upon by the prosecution. You must not follow a process of reasoning to the effect that just because [the appellant] lied, if that is what you find, that that is evidence of guilt. It is not.

   [22]   Summing up, 21-22.

7. This direction confined the jury’s use of lies to their assessment of the appellant’s credibility, particularly his denials, and directed them that they could not use lies as evidence of guilt. 

8. Nothing was said about the prosecutor’s assertion that the appellant’s plea was a lie, and no objection was made and no further direction of any kind was sought by defence counsel about that.

   Overview of the appeal in this matter

9. The appellant’s appeal against conviction pursuant to s 157(1)(c) of the CPA complained that the prosecutor’s final address gave rise to a miscarriage of justice (appeal ground 1). The appellant also complained that a miscarriage of justice arose from the failure of the trial judge to give “stronger and appropriate directions to the jury to cure inappropriate and unfair comments” given by the prosecutor in his final address (appeal ground 2).

10. The appellant’s case before this Court, whether in writing or in oral submissions, principally concerned the extent to which the lies addressed by the prosecutor in his final address required that the trial judge give a direction of the kind given in Edwards v The Queen,[23] rather than the direction given in accordance with Zoneff v The Queen,[24] which confined the jury’s consideration of any lies told by the appellant to their assessment of his credibility.

    [23]   Edwards v The Queen (1993) 178 CLR 193.

    [24]   Zoneff v The Queen (2000) 200 CLR 234.

11. The appellant also submitted that the prosecutor’s concluding submissions in final address constituted a procedural irregularity of a fundamental kind.[25]  The appellant submitted that the prosecutor’s submission that a plea of not guilty was a lie went to the fundamental fairness of the trial and the proviso could not be applied.

    [25]   Transcript, 18 November 2024, 35.21-35.30.

12. Counsel for the respondent submitted that the directions given by the trial judge were sufficient and that the prosecutor’s assertion was unlikely to have had any bearing on the case, as the absence of objection or comment from defence counsel suggested.

    The problem of consciousness of guilt

13. The prosecutor’s final address put the trial judge in a difficult position.  Whilst a number of the directions he gave went some way towards redressing the prosecutor’s reliance on consciousness of guilt reasoning, the prosecutor’s address was so prejudicial that it was necessary to go further and give clear directions directed to what was said in the final address.

14. It was necessary for the directions to address the problem that the prosecutor’s speech had repeatedly invoked consciousness of guilt reasoning.  The jury was not specifically directed that the reasoning employed by the prosecutor could not be followed, nor was the jury directed that before they could use what were said to be lies as evidence of guilt, they first had to consider the kinds of matters addressed in Edwards v The Queen.[26] 

    [26]   Edwards v The Queen (1993) 178 CLR 193. See also Hinrichsen v The King (2023) 144 SASR 44, [463]-[481] (Lovell and Doyle JJA), cf [228]-[232] (Livesey P); Anderson (A Pseudonym) v The King [2024] SASCA 36, [27]-[38] (Livesey P, Doyle and Bleby JJA).

15. The absence of directions of this kind represents a miscarriage of justice.[27]  The failure to direct the jury about the prosecutor’s address, and the resort to consciousness of guilt reasoning, means that there remains a real risk that the jury followed the prosecutor’s invitation to engage in consciousness of guilt reasoning and this “could realistically have affected the jury’s reasoning to the verdict of guilty”.[28] 

    [27]   R vBEC (2023) 16 QR 1, [63]-[64], [97] (Livesey AJA, with whom Callaghan J agreed).

    [28]   Brawn v The King (2025) 99 ALJR 872, [10] (Gageler CJ, Gordon, Edelman, Steward, Gleeson, Jagot and Beech-Jones JJ).

16. Whether this ground of appeal should be upheld depends on whether it is open to consider the proviso.  Whether the proviso can be considered depends on whether there has been a “fundamental” error or irregularity. 

17. Before addressing the issue of what is “fundamental”, it is necessary to give closer consideration to some features of the error or irregularity raised by this case.

    The plea of not guilty

18. An accused’s plea of not guilty is an important procedural step, usually signifying when the trial is about to start and what is in issue. In South Australia, the plea of not guilty is addressed by s 129 of the CPA:

    129—Plea of not guilty and refusal to plead

    (1)A person arraigned on an information who pleads not guilty will, by that plea, without any further form, be taken to have put themself on the country for trial (and the court must, in the usual manner, proceed to the trial of that person accordingly).

    (2)If any person, being so arraigned, refuses or fails to enter a plea to the information, it is lawful for the court to order a plea of not guilty to be entered on the person’s behalf and the person will be treated as if the person had pleaded not guilty.

19. When an accused is arraigned and pleads not guilty and is “taken to put themself on the country for trial”, this operates as a consent to trial by the jury acting in their capacity as representatives of the community.[29]  In South Australia, the common law determines that a criminal trial begins after the plea when the jury has taken the defendant into their charge to try the issues.[30]

    [29]   R v Pacitti (2022) 141 SASR 482, [28] (Livesey P).

    [30] Subject only to cases where s 131 of the CPA applies and the trial begins when, at or after the first arraignment but before the jury is empanelled, the judge determines questions relating to the admissibility of evidence or the conduct of the trial, R v Pacitti (2022) 141 SASR 482, [24]-[27] (Livesey P), [112]-[115] (Doyle and David JJA).

20. The effect of the accused’s plea of not guilty is to put all elements of the offence charged into issue.[31]  As Brennan J explained in Kingswell v The Queen:[32]

    When an accused pleads not guilty to an indictment, the whole of the issues on which the accused’s guilt of the offence charged depends are joined between the Crown and the accused and those are the issues to be tried by the jury …  The jury’s function is to try, and to try only, the issues joined between the Crown and an accused when the accused pleads to the indictment.

    [31]   Griffiths v The Queen (1994) 69 ALJR 77, 79E (Brennan, Dawson and Gaudron JJ).

    [32]   Kingswell v The Queen (1985) 159 CLR 264, 287 (Brennan J).

21. In Maher v The Queen, the High Court held that where an accused pleads other than guilty or to the jurisdiction of the court, the accused is by that plea “deemed to have demanded that the issues raised by the plea be tried by a jury” and the accused is entitled to have those issues tried accordingly.[33]

    [33]   Maher v The Queen (1987) 163 CLR 221, 228 (Mason CJ, Wilson, Brennan, Dawson and Toohey JJ).

22. Where an accused has pleaded not guilty and has determined not to give evidence, that cannot be made the subject of any comment by the prosecutor.[34]  That is an incident of an accused’s right to silence and privilege against self‑incrimination. 

    [34]   Evidence Act 1929 (SA), s 18(1)(b). See, for example, Matusevich v The Queen (1977) 137 CLR 633, Phillips v The Queen (1985) 159 CLR 45, and The Queen v Vuckov and Romeo (1986) 40 SASR 498 (Cox J).

23. An accused’s plea of not guilty cannot be confused with giving evidence, which is a right that the accused may exercise after the prosecution has closed its case.  In that event, the accused must leave the dock, step into the witness box and be sworn or affirmed to give evidence as part of the defence case.[35] 

    [35]   Nor can the plea of not guilty be criticised and thereby become confused with an unsworn statement made from the dock, which is no longer permitted, cf the Evidence Amendment Act 1983 (SA), R v Johnson (1979) 22 SASR 161, 177-180 (Mitchell J and Williams AJ), 191-192 (Jacobs J).

24. In this case, the prosecutor’s assertion that the appellant’s plea of not guilty was a lie, effectively telling the jury that they should equate the plea with the statements the appellant had made out of court, wholly misconceived the nature and purpose of a plea of not guilty in a criminal trial.  It comprised a very serious irregularity and a clear departure from the proper understanding of an important aspect of the criminal trial process in Australia. 

    The conduct of the prosecutor

25. The principles and duties concerning the conduct of a prosecutor in a criminal trial in Australia are well recognised.  In Whitehorn v The Queen, Deane J explained:[36]

    Prosecuting counsel in a criminal trial represents the State.  The accused, the court and the community are entitled to expect that, in performing his function of presenting the case against an accused, he will act with fairness and detachment and always with the objectives of establishing the whole truth in accordance with the procedures and standards which the law requires to be observed and of helping to ensure that the accused’s trial is a fair one.  

    [36]   Whitehorn v The Queen (1983) 152 CLR 657, 663-664 (Deane J).

26. Justice Deane went on to explain that the consequences of a failure to observe the standards of fairness expected of a prosecutor may, on occasion, have serious consequences:[37]

    … the consequences of … may so affect or permeate a trial as to warrant the conclusion that the accused has actually been denied his fundamental right to a fair trial.  As a general proposition, that will, of itself, mean that there has been a serious miscarriage of justice with the consequence that any conviction of the accused should be quashed and, where appropriate, a new trial ordered …

    [37]   Whitehorn v The Queen (1983) 152 CLR 657, 664 (Deane J).

27. That does not mean that a prosecutor must be passive, for in the adversarial setting of a criminal trial the prosecutor may be robust, conducting the prosecution conscientiously and firmly.[38]  In Libke v The Queen, Hayne J explained that a prosecutor is not to obtain a conviction “at all costs” and must “act as a minister of justice” for a central, “even the central, element” in the role of prosecutor is to ensure that the case is presented with fairness to an accused.[39] 

    [38]   Libke v The Queen (2007) 230 CLR 559, [35] (Kirby and Callinan JJ).

    [39]   Libke v The Queen (2007) 230 CLR 559, [71]-[72] (Hayne J) and the cases there cited.

28. Justice Hayne explained:[40]

    The prosecution case is to be presented in the context of an adversarial process in which each side “is free to decide the ground on which it or he will contest the issue, the evidence which it or he will call, and what questions whether in chief or in cross-examination shall be asked”.  But again, there are boundaries to that process.  The choices that have been described are to be made “subject to the rules of evidence, fairness and admissibility”.  As Dawson J said in Whitehorn v The Queen:

    “A trial does not involve the pursuit of truth by any means. The adversary system is the means adopted and the judge’s role in that system is to hold the balance between the contending parties without himself taking part in their disputations.”

    (Emphasis added.)

    It is not for the judge to attempt to remedy the deficiencies of a party’s case. As was pointed out in Whitehorn, and earlier in Richardson v The Queen, the judge will frequently lack the knowledge and the information that would be necessary to making a decision about whether and how any deficiency would be remedied.  But it is for the judge to “hold the balance between the contending parties”.  It is for the judge to ensure that the trial is conducted fairly.

    Unfairness may take many forms.  Often what is unfair will constitute a departure from the ordinary rules that ensure the orderly conduct of a trial. Those rules encompass not only the rules of evidence but also such diverse matters as when and how counsel may address the judge and the jury.  This is not to say that every departure from those rules is to be branded as causing unfairness.  But, because the rules of orderly procedure are designed to safeguard the fairness of the proceedings, what is unfair will often be a departure from those rules.

    (Citations omitted)

    [40]   Libke v The Queen (2007) 230 CLR 559, [72]-[73] (Hayne J).

29. In that case, all members of the High Court disapproved of the conduct of a prosecutor in asking inappropriate questions, making comments about the accused’s answers and aligning himself with the prosecution case.  By a majority, however, the Court was not satisfied that there had been a miscarriage of justice.

30. In this case, despite a warning from the trial judge and apparent agreement to avoid submissions suggesting that the accused’s lies revealed a consciousness of guilt, the prosecutor repeatedly invoked that reasoning in his final address.  That address built to the peroration in which the accused’s plea of not guilty was described as a lie. 

31. The conduct of the prosecutor denied the appellant a fair trial and generated a miscarriage of justice.  That conclusion is reinforced by the absence of intervention from defence counsel or the trial judge. 

32. It is next appropriate to consider whether there was a “failure to observe the requirements of the criminal process in a fundamental respect”.[41]

    [41]   Maher v The Queen (1987) 163 CLR 221, 234 (Mason CJ, Wilson, Brennan, Dawson and Toohey JJ); Katsuno v The Queen (1999) 199 CLR 40, [35] (Gaudron, Gummow and Callinan JJ); Lee v The Queen (2014) 253 CLR 455, [48] (French CJ, Crennan, Kiefel, Bell and Keane JJ).

    Materiality and fundamental error or irregularity

33. The authorities on what is a “fundamental” error or irregularity do not usually explain what is meant, nor do they always articulate the way in which that conclusion should be reached, including whether it is something that should be addressed before or as part of any miscarriage of justice analysis.  At times, whether an error is “fundamental” is determined in connection with consideration of the proviso and whether the error has caused a substantial miscarriage of justice. 

34. Part of the explanation is that what is “fundamental” is not necessarily concerned with the outcome of a trial, including with whether the error is sufficiently important to be regarded as both material and fundamental.  On occasions, what is regarded as a “fundamental” error or irregularity has little to do with the outcome of a criminal trial, because it is concerned with the propriety and fairness of the trial process.[42]  A fundamental error may vitiate the trial process, regardless whether guilt might otherwise be proved.[43] 

    [42]   See HCF v The Queen (2023) 97 ALJR 978, [7] (Gageler CJ, Gleeson and Jagot JJ), [82] (Edelman and Steward JJ); TKWJ v The Queen (2002) 212 CLR 124, [76] (McHugh J); R v Kennedy [2017] SASCFC 170, [64] (Kourakis CJ, Peek and Nicholson JJ).

    [43]   Wilde v The Queen (1988) 164 CLR 365, 373: “There are those cases which identify irregularities which are sufficient to vitiate a trial and afford a basis for a writ of venire de novo.  They are concerned more with the form of the trial … In the end no mechanical approach can be adopted …”.

35. Any analysis of the cases must also recognise that the lines between what it is appropriate for a jury to determine, and when it is necessary for the appeal court to evaluate and determine guilt for itself, have not always been made clear, especially in connection with earlier cases on the proviso and whether there has been a substantial miscarriage of justice.[44] 

    [44]   cf Hofer v The Queen (2021) 274 CLR 351, [85] (Gageler J).

36. In 2005, the decision of the High Court in Weiss v The Queen “reframed the inquiry posed by the proviso”, moving away from what a jury might have found without the error, to whether the appeal court is “itself persuaded that the evidence properly admitted at trial established guilt beyond reasonable doubt”:[45]

    … Weiss did so by reorienting the function to be performed by an appellate court when applying the proviso. Henceforth, the function of the appellate court was to be understood to require the court to make its own independent assessment of whether the appellant was proved guilty of the offence on which the jury had returned the verdict of guilt.[46] Unless itself persuaded that the evidence properly admitted at trial established guilt beyond reasonable doubt, the appellate court was to be precluded from concluding that no substantial miscarriage of justice had actually occurred.[47] The pivot that occurred in the introduction of that negative proposition was from an “effect-on-the-jury” conception of the appellate function to a “determination-of-guilt” conception of the appellate function.[48]

    [45]   Hofer v The Queen (2021) 274 CLR 351, [84] (Gageler J) referring to Weiss v The Queen (2005) 224 CLR 300. See also MDP v The King (2025) 99 ALJR 969, [38] (Gordon and Steward JJ).

    [46]   Weiss v The Queen (2005) 224 CLR 300, [39]-[41].

    [47]   Weiss v The Queen (2005) 224 CLR 300, [44].

    [48]   cf Edwards, “To Err is Human, But Not Always Harmless: When Should Legal Error be Tolerated?” (1995) 70 New York University Law Review 1167, 1171.

1. As a result, “a more precise and confined inquiry” is required when determining whether there has been a miscarriage of justice under the common form criminal appeal provision:[49]

   Finding a miscarriage of justice post-Weiss is in that way the result of a more precise and confined inquiry than might have been thought to have been indicated pre-Weiss, when the miscarriage of justice ground and the non-application of the proviso were both commonly explained to involve the finding of a loss of a “real chance of acquittal”[50] or of a “chance which was fairly open ... of being acquitted”.[51] By reframing the inquiry to be undertaken by an appellate court applying the proviso, Weiss has demanded greater precision in framing the inquiry to be undertaken by an appellate court finding a miscarriage of justice.

   Except in the case of an error or irregularity so profound as to be characterised as a “failure to observe the requirements of the criminal process in a fundamental respect”,[52] an error or irregularity will rise to the level of a miscarriage of justice only if found by an appellate court to be of a nature and degree that could realistically have affected the verdict of guilt that was in fact returned by the jury in the trial that was had. …

   [49]   Hofer v The Queen (2021) 274 CLR 351, [122]-[123] (Gageler J).

   [50]   eg, R v Storey (1978) 140 CLR 364, 376.

   [51]   eg, Mraz v The Queen (1955) 93 CLR 493, 514.

   [52]   Maher v The Queen (1987) 163 CLR 221, 234, quoted and applied in Katsuno v The Queen (1999) 199 CLR 40, [35] and in Lee v The Queen (2014) 253 CLR 455, [48].

2. In Brawn v The King, a unanimous High Court recently harmonised various formulations concerning what is meant by a “miscarriage of justice” when used in s 158(1)(c) of the CPA, the third limb of the South Australian common form criminal appeal provision.[53]  The High Court held that, apart from a “fundamental” error or irregularity, it must be shown that an error or irregularity was “material” in the sense that it “could realistically have affected the jury’s reasoning to the verdict of guilty”:[54]

   A common circumstance relied on as giving rise to a miscarriage of justice is that there was an error or irregularity in the trial at which the appellant was convicted; that is, some defect in the trial such as a departure from the rules of evidence or procedure, improper cross‑examination by a crown prosecutor[55] or a misstatement of fact by the trial judge in the summing up.[56] If such an error or irregularity was “fundamental” in the sense discussed in the authorities[57] then there will be a miscarriage of justice and no occasion to address the proviso separately will arise. The establishment of a fundamental error or irregularity will necessarily mean that there was a substantial miscarriage of justice.[58]

   For other errors or irregularities to constitute a miscarriage of justice, they must be material in the sense that the error or irregularity could realistically have affected the reasoning of the jury to a verdict of guilty that was returned by the jury in the criminal trial that occurred. In this context, “could” is to be understood as meaning “having the capacity to”, and “realistically” distinguishes the relevant assessment of the possibility of a different outcome from a possibility that is fanciful or improbable. This threshold to establish that an error or irregularity is material must be satisfied by the appellant, but that burden is not onerous. It does not invite an analysis of whether, but for the error, the accused might or might not have been found guilty.

   In each instance where the materiality threshold is met, the error or irregularity will be one that could realistically have affected the jury’s reasoning to a verdict of guilty. …

   [53]   Brawn v The King (2025) 99 ALJR 872 (Gageler CJ, Gordon, Edelman, Steward, Gleeson, Jagot and Beech‑Jones JJ).

   [54]   Brawn v The King (2025) 99 ALJR 872, [9]-[11] (Gageler CJ, Gordon, Edelman, Steward, Gleeson, Jagot and Beech-Jones JJ).

   [55]   Such as in Hofer v The King (2021) 274 CLR 351.

   [56]   Such as in Simic v The Queen (1980) 144 CLR 319, 333-334.

   [57]   Wilde v The Queen (1988) 164 CLR 365, 373; Katsuno v The Queen (1999) 199 CLR 40, [35]; Weiss v The Queen (2005) 224 CLR 300, [46]; Hofer v The Queen (2021) 274 CLR 35, [123], referring to Maher v The Queen (1987) 163 CLR 221, 234; Hoang v The Queen (2022) 276 CLR 252, [42]; Huxleyv the Queen (2023) 98 ALJR 62, [44].

   [58]   HCF v The Queen (2023) 97 ALJR 978, [7], [83].

3. Shortly following Brawn v The King, in a matter heard “contiguously” with it, the High Court unanimously agreed in MDP v The King that the same concept of materiality applied to “a wrong decision of any question of law” under the second limb of s 668E(1) of the Criminal Code (Qld), the Queensland common form criminal appeal provision.[59]  That is, it is necessary for an appellant to show “the wrong decision could realistically have affected the reasoning of the jury to the verdict of guilty that was returned in the trial that occurred”.[60] The Court in MDP v The King was, however, divided on the application of that approach to the facts before it.  

   [59]   MDP v The King (2025) 99 ALJR 969 (Gageler CJ, Gordon, Edelman, Steward, Gleeson, Jagot and Beech‑Jones JJ).

   [60]   MDP v The King (2025) 99 ALJR 969, [3] (Gageler CJ), referring to the reasons of Gleeson, Jagot and Beech-Jones JJ at [106]-[107]; the reasons of Gordon and Steward JJ at [33]; and the reasons of Edelman J at [44], [46].

4. The South Australian second limb counterpart is s 158(1)(b) of the CPA.[61] 

   [61]   See generally, Alzuain v The King [2025] SASCA 67, [20]-[37] (Kourakis CJ, Livesey P and Bleby JA).

5. In each of the judgments in Brawn v The King and MDP v The King, the High Court explained that where the appeal court concludes that the error or irregularity is “fundamental”, the appeal must be allowed and there is then no occasion to go on and consider the proviso in order to determine whether the appeal should be dismissed if “it considers that no substantial miscarriage of justice has actually occurred” under s 158(2) of the CPA.[62]

   [62]   Brawn v The King (2025) 99 ALJR 872, [9], “The establishment of a fundamental error or irregularity will necessarily mean that there was a substantial miscarriage of justice”; MDP v The King (2025) 99 ALJR 969, [3] (Gageler CJ), [11] (Gordon and Steward JJ), [56], [60], [65] (Edelman J), [78]-[79], [106] (Gleeson, Jagot and Beech-Jones JJ).

6. In MDP v The King, Edelman J explained how the concept of materiality had at times been used in a way to describe what might be regarded as a “fundamental” error, one that “goes to the root of the proceedings”:[63]

   First, “materiality” is sometimes used by reference only to the error or irregularity itself. Such material errors have often been described as “fundamental”, or as sufficient irrespective of whether a properly conducted hearing could not possibly have produced a different result.[64] Other descriptions include referring to the error as “such a departure from the essential requirements of the law that it goes to the root of the proceedings”,[65] and as “radical”.[66] This use of materiality is best expressed by asking whether the error or irregularity was of a fundamental nature to, relevantly, an administrative hearing, a civil trial, or a criminal trial. If an appellant demonstrates materiality in this sense in a criminal appeal, a new trial (or entry of an acquittal) must be ordered.

   [63]   MDP v The Queen (2025) 99 ALJR 969, [60] (Edelman J).

   [64]   Criminal appeals: Quartermaine v The Queen (1980) 143 CLR 595, 600-601; Wilde v The Queen (1988) 164 CLR 365, 373. Judicial review: Hossain v Minister for Immigration and Border Protection (2018) 264 CLR 123, [40], [72]; MZAPC v Minister for Immigration and Border Protection (2021) 273 CLR 506, [164]; Nathanson v Minister for Home Affairs (2022) 276 CLR 80, [98]-[103]. See also R (Osborn) v Parole Board [2014] AC 1115, [68]. Civil appeals: DWN042 v Republic of Nauru (2017) 92 ALJR 146, [21].

   [65]   Wilde v The Queen (1988) 164 CLR 365, 373.

   [66]   Wilde v The Queen (1988) 164 CLR 365, 373; Kalbasi v Western Australia (2018) 264 CLR 62, [155].

7. Justice Edelman took the view that it is only necessary to determine whether an error or irregularity is “fundamental” and then, if it is, “the error will be material and the appeal will be allowed”:[67]

   In principle, the approach to whether an error is material ought to be the same whether the question is being asked for the purposes of a criminal appeal, a civil appeal, or an application for judicial review. At least in relation to criminal appeals the approach required in this country is now clear. The materiality threshold (whether the error or irregularity could realistically have affected the reasoning of the jury to a verdict of guilty that was returned by the jury in the criminal trial that occurred) is the same no matter which limb of the common form appeal provision is being applied. Although some earlier authorities appear to have rejected that materiality threshold in relation to the second or third limbs, many of those cases did so in the context of rejecting a different concept of materiality which focuses instead upon whether the error might have affected the verdict.[68]

   In each case the enquiry is as follows. If the error or irregularity was fundamental then the error will be material and the appeal will be allowed. Otherwise, an error or irregularity will, prima facie, be material and the appeal will be allowed if the appellant satisfies the low bar of establishing that the error or irregularity was something that could realistically have affected the reasoning of the jury to a verdict of guilty that was returned by the jury in the criminal trial that occurred. Nevertheless, for these non-fundamental irregularities or errors, the appeal will be dismissed if the respondent establishes that the error or irregularity was not material in the sense that there was no substantial miscarriage of justice.

   [67]   MDP v The King (2025) 99 ALJR 969, [64]-[65] (Edelman J).

   [68]   Weiss v The Queen (2005) 224 CLR 300, [16]-[18], considering R v Gibson (1887) 18 QBD 537, 540‑541; compare [14], citing Bray v Ford [1896] AC 44, 52: no entitlement to a new trial as of right where misdirection “upon a wholly immaterial point”. See also Simic v The Queen (1980) 144 CLR 319, 328; Hembury v Chief of the General Staff (1998) 193 CLR 641, [37]-[39].

8. By contrast, in MDP v The King the reasons of Gleeson, Jagot and Beech‑Jones JJ tend to suggest that the relevant error should have “legal effect in the trial” before the appeal court determines whether that error was fundamental and whether the proviso can be applied:[69]

   A “decision” by a trial judge on a question of law for the purpose of the second limb is not confined to decisions on such questions that are made over the objection of a party. Instead, it is sufficient that the trial judge made some determination or gave some response to a question of law in a manner that has legal effect in the trial. If there is a decision, if it is “on a question of law” and if it is wrong, then the conviction “should be set aside” if the wrong decision was in respect of a question of law that was fundamental to the trial[70] or if, subject to the application of the proviso, the wrong decision could realistically have affected the reasoning of the judge or jury to the verdict of the trial that was had.

   [69]   MDP v The King (2025) 99 ALJR 969, [78] (Gleeson, Jagot and Beech-Jones JJ).

   [70]   Wilde v The Queen (1988) 164 CLR 365, 373; Katsuno v The Queen (1999) 199 CLR 40, [35]; Weiss v The Queen (2005) 224 CLR 300, [46]; Hofer v The Queen (2021) 274 CLR 351, [123], referring to Maher v The Queen (1987) 163 CLR 221, 234; Hoang v The Queen (2022) 276 CLR 252, [42]; Huxley v The Queen (2023) 98 ALJR 62, [44]. See Brawn v The King (2025) 99 ALJR 872, [9].

9. If the case does not concern an unreasonable or unsupported verdict under the first limb of the common form provision, and it comes within the second limb concerning a decision on a question of law, or within the third limb, the “catch‑all” miscarriage provision,[71] the first issue will be whether there has been an error or irregularity.  If there has, it will usually be necessary to characterise it according to whether it is fundamental (as that term is understood),[72] or material (as that term is understood),[73] rather than merely incidental or inconsequential, having no adverse effect on the criminal trial process or the verdict that was reached. 

   [71]   MDP v The King (2025) 99 ALJR 969, [42] (Edelman J).

   [72]   Wilde v The Queen (1988) 164 CLR 365.

   [73]   Brawn v The King (2025) 99 ALJR 872.

10. In determining the next question – whether the error was fundamental – it is not strictly necessary to determine whether it was material. Having said that, in many cases it may be difficult to say that an error or irregularity was fundamental but not material to the verdict.  In those cases, the issue may simply be whether a material error was sufficiently important to warrant the conclusion that it was fundamental. 

11. Nonetheless there will be cases where the error is so obviously fundamental to the criminal trial process that it would be a distraction to stay to consider whether it was also material to the verdict.  Examples are often given of cases involving a denial of procedural fairness or ostensible bias.  Another example is provided by AK v Western Australia, where the judge failed to give reasons on the central issue following a trial by judge alone.[74] 

    [74]   AK v Western Australia (2008) 232 CLR 438, [56]-[59] (Gummow and Hayne JJ), [109]-[110] (Heydon J).

12. In this way, some of the cases on fundamental errors or irregularities associated with the criminal process are not concerned with the outcome.  They are concerned with whether there has been adherence to the essential elements of a criminal trial required under the system of criminal justice recognised in Australia.  For example, in Lee v The Queen the results of compulsory examinations were passed onto prosecution authorities, and whether any potential trial outcome might have been materially affected was not to the point:[75]

    … It is a breach of the principle of the common law, and a departure in a fundamental respect from a criminal trial which the system of criminal justice requires an accused person to have, for the prosecution to be armed with the evidence of an accused person obtained under compulsion concerning matters the subject of the charges. It cannot be said that the appellants had a trial for which our system of criminal justice provides … Rather, their trial was one where the balance of power shifted to the prosecution.

    [75]   Lee v The Queen (2014) 253 CLR 455, [46] (French CJ, Crennan, Kiefel, Bell and Keane JJ).

13. Where the conclusion of the appeal court is that an error or irregularity was fundamental, it does not consider the proviso because the error comprises a substantial miscarriage of justice and the appeal must be allowed. 

14. Where the error is not fundamental, it is then necessary to determine whether it is material and, if it is and the proviso is relied on, whether the prosecution has demonstrated that, regardless of the error, guilt was established beyond reasonable doubt.  If the appeal court is satisfied that guilt was established beyond reasonable doubt, there is no substantial miscarriage of justice, and the appeal should be dismissed.

    What is a “fundamental” error or irregularity?

15. The recent cases of Brawn v The King and MDP v The King provided the High Court with no occasion to review what is or is not a “fundamental” error or irregularity.

16. As with a number of issues in the criminal law, there is necessarily some uncertainty about terminology, such as when an error is “fundamental”.  In part that is because the law at times starts with broad concepts or conclusions, like justice or fairness, and attempts to give them effect in a wide range of cases.  Any attempt to further define or prescribe what is meant carries the risk of undermining the utility of the concept in the wide range of cases in which it must be applied. 

17. Some of the decisions in this area, particularly before Brawn v The King, are concerned with whether there has been a miscarriage of justice, particularly where there is said to be some departure from “a fair trial according to law”.  That too is a broad concept.  Whilst a departure from a fair trial according to law may produce a miscarriage of justice, not all miscarriages are fundamental.  A fundamental error is a serious example of a miscarriage of justice, because it gives rise to a substantial miscarriage of justice.

18. The need for a fair trial according to law was addressed by Fullagar J in Mraz v The Queen, by reference to the concept of a miscarriage of justice and what was then understood about the operation of the proviso:[76]

    It is very well established that the proviso to s. 6(1) does not mean that a convicted person, on an appeal under the Act, must show that he ought not to have been convicted of anything. It ought to be read, and it has in fact always been read, in the light of the long tradition of the English criminal law that every accused person is entitled to a trial in which the relevant law is correctly explained to the jury and the rules of procedure and evidence are strictly followed. If there is any failure in any of these respects, and the appellant may thereby have lost a chance which was fairly open to him of being acquitted, there is, in the eye of the law, a miscarriage of justice. Justice has miscarried in such cases, because the appellant has not had what the law says that he shall have, and justice is justice according to law. It is for the Crown to make it clear that there is no real possibility that justice has miscarried.

    [76]   Mraz v The Queen (1955) 93 CLR 493, 514 (Fullagar J).

19. In Nudd v The Queen, Gleeson CJ observed that one form of miscarriage is “a failure of process which departs from the essential requirements of a fair trial”:[77]

    The concept of miscarriage of justice is as wide as the potential for error. Indeed, it is wider; for not all miscarriages involve error. Process is related to outcome, in that the object of due process is to secure a just result. Justice, however, means justice according to law, and the observance of the requirements of law according to which a criminal trial is to be conducted has a public as well as a private purpose. An unjust conviction is one form of miscarriage. Another is a failure of process of such a kind that it is impossible for an appellate court to decide whether a conviction is just. Another is a failure of process which departs from the essential requirements of a fair trial.

    [77]   Nudd v The Queen (2006) 80 ALJR 614, [7] (Gleeson CJ).

20. In Hofer v The Queen, Gageler J described the “foundational understanding” of the law that a person accused of a serious crime should have a fair trial, meaning “a fair trial according to law”:[78]

    When applying the miscarriage of justice ground, as when administering criminal law more generally, appellate courts have proceeded on the foundational understanding that every person accused of a serious crime has an entitlement to a trial that is fair.[79] “The central thesis of the administration of criminal justice” was identified before Weiss in terms of an accused person having an entitlement not simply to “a trial according to law” but to a “fair trial according to law”.[80] Hence, it could meaningfully be said at a level of generality that a miscarriage of justice would arise “whenever the accused has not had a fair trial according to law”.[81]

    [78]   Hofer v The Queen (2021) 274 CLR 351, [111] (Gageler J).

    [79]   See generally Spigelman, “The truth can cost too much: The principle of a fair trial” (2004) 78 Australian Law Journal 29.

    [80]   McKinney v The Queen (1991) 171 CLR 468, 478 (emphasis added).

    [81]   Jones v The Queen (1997) 191 CLR 439, 450 (emphasis added).

1. Justice Gageler catalogued a number of cases concerning “miscarriage of justice”, demonstrating the potential for “a very wide variety of departures from the proper conduct of a trial”.[82]  The examples he gave drew on a number of relatively recent cases considered in the High Court:[83]

   The need for an appellate court to consider, and ordinarily to be satisfied of, “a significant possibility that the acts or omissions of which complaint is made affected the outcome of the trial” in order to find a miscarriage of justice has routinely informed the analysis undertaken to establish whether or not there was a miscarriage of justice in subsequent cases. Examples are Libke v The Queen[84] (where the complaint was that the prosecutor had engaged in unfair cross-examination of the appellant), Cesan v The Queen[85] (where it was found that the jury was distracted from paying attention to evidence as a result of the trial judge being asleep), Jones v The Queen,[86] Pollock v The Queen[87] and Hargraves v The Queen[88] (where the relevant complaint in each case was of misdirection), Patel v The Queen[89] (where a late narrowing of the prosecution case rendered much of the evidence previously admitted irrelevant), Castle v The Queen[90] (where the error identified was that evidence left to the jury as an admission was in fact exculpatory), Craig v The Queen[91] (where the appellant had been given incorrect legal advice by his counsel), Rodi v Western Australia[92] (where there was found to be a significant possibility that the trial jury would have acquitted had fresh evidence been before it), De Silva v The Queen[93] (where the complaint was of a failure of the trial judge to give a specific direction as to how the jury should approach certain evidence), and McKell v The Queen[94] and R v Abdirahman-Khalif[95] (where the relevant complaint in each case was of an unfair comment by the trial judge in the course of summing up to the trial jury).

   [82]   Hofer v The Queen (2021) 274 CLR 351, [114] (Gageler J), quoting Nudd v The Queen (2006) 80 ALJR 614, [24] (Gummow and Hayne JJ).

   [83]   Hofer v The Queen (2021) 271 CLR 351, [115] (Gageler J).

   [84]   Libke v The Queen (2007) 230 CLR 559, [81]-[83], [134].

   [85]   Cesan v The Queen (2008) 236 CLR 358, [93]-[96], [105]-[106], [119].

   [86]   Jones v The Queen (2009) 83 ALJR 671, [30], affirming R v Roughan (2007) 179 A Crim R 389, [83].

   [87]   Pollock v The Queen (2010) 242 CLR 233, [69]-[70].

   [88]   Hargraves v The Queen (2011) 245 CLR 257, [47]-[50].

   [89]   Patel v The Queen (2012) 247 CLR 531, [118].

   [90]   Castle v The Queen (2016) 259 CLR 449, [63]-[65], [81].

   [91]   Craig v The Queen (2018) 264 CLR 202, [36]-[37].

   [92]   Rodi v Western Australia (2018) 265 CLR 254, [26], [34].

   [93]   De Silva v The Queen (2019) 268 CLR 57, [30]-[36].

   [94]   McKell v The Queen (2019) 264 CLR 307, [39], [42]-[45].

   [95]   R v Abdirahman-Khalif (2020) 94 ALJR 981, [77].

2. A similar “very wide variety of departures” is evident when considering what is “fundamental” in the context of a fundamental error or irregularity that gives rise to a substantial miscarriage of justice, necessarily precluding consideration of the proviso. 

3. Accordingly, it is not possible to define or prescribe what is meant.  It is necessary to start with what is regarded as “a fair trial according to law”, reflecting the essential features of a criminal trial in Australia, before evaluating whether some aspect of the case before the appeal court can be regarded as generating such unfairness or impropriety that it should be concluded that there has been a “fundamental” error or irregularity, or whether the trial process has become “flawed in a fundamental respect”.[96]  Necessarily, this may at times give rise to what is an “essentially intuitive judgment”:[97]

   The general notion of fairness which has inspired much of the traditional criminal law of this country defies analytical definition. Nor is it possible to catalogue in the abstract the occurrences outside or within the actual trial which will or may affect the overall trial to an extent that it can no longer properly be regarded as a fair one. Putting to one side cases of actual or ostensible bias, the identification of what does and what does not remove the quality of fairness from an overall trial must proceed on a case by case basis and involve an undesirably, but unavoidably, large content of essentially intuitive judgment. The best that one can do is to formulate relevant general propositions and examples derived from past experience.

   [96]   Hofer v The Queen (2021) 274 CLR 351, [111] (Gageler J); Katsuno v The Queen (1999) 199 CLR 40, [35] (Gaudron, Gummow and Callinan JJ).

   [97]   Jago v District Court (NSW) (1989) 168 CLR 23, 57 (Deane J).

4. The authorities provide examples of what has been regarded as “fundamental”, whether in connection with particular aspects of a trial, or the trial process more generally.  As can be seen, in a number of these cases the High Court was divided, indicating that the issue was not without difficulty.

5. Many of the cases commence with Wilde v The Queen.[98] That case concerned a prosecution for two sexual assaults on two different women, two days apart. The trial judge refused an application for separate trials and directed the jury that the evidence concerning each attack could be used as similar fact evidence, establishing the identity of the accused as the attacker on each occasion. The accused was acquitted of the first charge but convicted of the second. The New South Wales Court of Criminal Appeal had held that the direction regarding the use to be made of each attack in proof of the other was wrong and there should have been an order for separate trials. The Court dismissed the appeal, applying the proviso in s 6(1) of the Criminal Appeal Act 1912 (NSW).

   [98]   Wilde v The Queen (1988) 164 CLR 365.

6. In a “split decision”, the High Court held that it was open to apply the proviso because the Crown had established that in the absence of the misdirection the jury would have come to the same conclusion. 

7. The majority, Brennan, Dawson and Toohey JJ, found that even if that was established, there may still have been a substantial miscarriage of justice if the trial was so irregular that no proper trial took place.  They held that if there was such a departure from the essential requirements of the law that it went to the root of the proceedings it can be said, without considering the effect of the irregularity on the jury’s verdict, that the accused had not had a proper trial and there had been a substantial miscarriage of justice.  As the majority explained:[99]

   There are those cases which identify irregularities which are sufficient to vitiate a trial and afford a basis for a writ of venire de novo. They are concerned more with the form of the trial but even in that area they provide no real touchstone for determining when an irregularity is so serious as to cause a mistrial: see Cooke, “Venire de Novo” Law Quarterly Review, Vol. 71 (1955) 100, at p. 128; Reg. v. Rose[100]; and, in the House of Lords[101]. But the wording of the proviso is quite general and it is clear that it may be applied notwithstanding a misdirection concerning the law or the wrongful admission of evidence. In the end no mechanical approach can be adopted and each case must be determined upon its own circumstances

   [99]   Wilde v The Queen (1988) 164 CLR 365, 373 (Brennan, Dawson and Toohey JJ).

   [100] R v Rose [1982] 1 WLR 614.

   [101] R v Rose [1982] AC 822.

8. The majority went on to explain why the error was not of a fundamental kind:[102]

   When viewed in context, it does not appear that the evidence wrongly admitted in relation to the counts upon which the applicant was convicted can have carried any significant additional weight having regard to the other evidence. This is, of course, to take into account the strength of the prosecution case upon those counts and the weakness of the defence, but it is to do so for the purpose of determining the gravity and significance of the error and not for the purpose of determining whether the jury would inevitably have convicted notwithstanding the error.  The two questions are obviously intertwined where the error is one of the wrongful admission of evidence, but they must be considered separately.  Once it is determined that the error was not of a fundamental kind, the question must still be asked whether a reasonable jury would inevitably have convicted had the error not been made.  There can be no doubt that the Court of Criminal Appeal gave the correct answer to that question in this case. 

   [102] Wilde v The Queen (1988) 164 CLR 365, 374 (Brennan, Dawson and Toohey JJ).

9. The majority held that when determining whether an irregularity is fundamental it is appropriate to have regard to the strengths and weaknesses of the prosecution and defence cases in order to assess the gravity and significance of the error.[103] 

   [103] Wilde v The Queen (1988) 164 CLR 365, 374 (Brennan, Dawson and Toohey JJ).

10. In dissent, Deane J took the view that the convictions were fatally flawed and should not be allowed to stand.  He seemed to anticipate the debate later settled in Weiss v The Queen,[104] favouring the view that it was not for the appeal court to determine guilt where there had been a miscarriage of justice:[105]

    The fundamental prescript of the administration of criminal justice in this country is that no person should be convicted of a serious crime except by the verdict of a jury after a fair trial according to law. The proviso to s. 6(1) – which empowers the New South Wales Court of Criminal Appeal to dismiss an appeal, notwithstanding that it is of opinion that the point or points raised by the appeal might be decided in favour of an appellant, “if it considers that no substantial miscarriage of justice has actually occurred” – does not negate that principle. The reason why that is so is that it is simply not open to a court of criminal appeal to dismiss an appeal, in reliance on such a proviso, on the ground that there has been “no substantial miscarriage of justice” in a case where error, impropriety or unfairness has pervaded and affected the trial to an extent where the overall trial ceased to be a fair trial according to law. In such a case, the verdict of guilty is intrinsically flawed and it is no part of the function of a court of criminal appeal to say that the accused is, in its view, so obviously guilty that the requirement of a fair trial according to law can be dispensed with. If it were otherwise, the fundamental prescript of the criminal law could be reduced to a mockery and the injustice of a conviction without a relevantly fair trial according to law could be made the occasion for trial by appellate judges who had seen no witnesses, heard no evidence and had no direct contact with the atmosphere, the tensions, the nuances or the reality of the actual trial.

    [104] Weiss v The Queen (2005) 224 CLR 300.

    [105] Wilde v The Queen (1988) 164 CLR 365, 375 (Deane J).

11. Justice Deane contrasted error, impropriety or unfairness which did not prejudice or colour the overall trial, or where the residual effect could not have influenced the jury in reaching their verdict.[106]

    [106] Wilde v The Queen (1988) 164 CLR 365, 375-376 (Deane J).

12. The other dissentient, Gaudron J, took the view that the trial was affected by error from the outset.[107]  Taking an approach similar to Deane J, her Honour was mindful that the High Court had never previously taken the view that an appellate court’s assessment of the strengths of the prosecution case could overcome an erroneous statement of the law to be applied or an error of law resulting in the receipt of inadmissible evidence or the rejection of admissible evidence.[108] 

    [107] Wilde v The Queen (1988) 164 CLR 365, 379 (Gaudron J).

    [108] Wilde v The Queen (1988) 164 CLR 365, 381 (Gaudron J).

13. Clearly, Gaudron J was concerned that in cases of trial by jury, it is the constitutional function of the jury to determine questions of fact.[109] 

    [109] Wilde v The Queen (1988) 164 CLR 365, 384 (Gaudron J), citing Hocking v Bell (1945) 71 CLR 430, 440; Chamberlain v The Queen (No 2) (1984) 154 CLR 521, 598.

14. Whilst there may be thought some tension between these dissenting views and the view now taken to the proviso following Weiss v The Queen,[110] and material miscarriage following Brawn v The King, these observations identify the ordinary features of a fair trial for the purposes of determining at least whether there has been a miscarriage, if not also whether an error is arguably so fundamental that the proviso cannot be applied.

    [110] Weiss v The Queen (2005) 224 CLR 300.

15. In a passage that is often cited from Wilde v The Queen, Brennan, Dawson and Toohey JJ explained that there is “no rigid formula to determine what constitutes … a radical or fundamental error”:[111]

    It is one thing to apply the proviso to prevent the administration of the criminal law from being “plunged into outworn technicality” (the phrase of Barwick C.J. in Driscoll v. The Queen[112]); it is another to uphold a conviction after a proceeding which is fundamentally flawed, merely because the appeal court is of the opinion that on a proper trial the appellant would inevitably have been convicted. 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: see Reg. v. Hildebrandt[113]; Reg. v. Henderson[114]; Reg. v. Couper[115].

    There is no rigid formula to determine what constitutes such a radical or fundamental error. It may go either to the form of the trial or the manner in which it was conducted. …

    [111] Wilde v The Queen (1988) 164 CLR 365, 373 (Brennan, Dawson and Toohey JJ).

    [112] Driscoll v The Queen (1977) 137 CLR 517, 527.

    [113] R v Hildebrandt (1963) 81 WN (Part 1) (NSW) 143, 148.

    [114] R v Henderson [1966] VR 41, 43.

    [115] R v Couper (1985) 18 A Crim R 1, 7-8.

16. In the first of the cases cited in this passage, R v Hildebrandt, the New South Wales Court of Criminal Appeal considered a wrong direction concerning the burden of proof.[116]  After a request from the appellant’s solicitor, the jury was given flawed directions about the effect of a statement made from the dock.[117]  Herron CJ relied on cases where the conviction was set aside after attempts were made to place “an interpretation or a gloss substantially lessening the severity of the true standard”.[118]   He then addressed the submission by the Crown that the proviso should be applied.  The Chief Justice rejected that submission:[119]

    The proviso does not mean that an accused person must show that he ought not to have been convicted.  It means that every accused person is entitled to a trial in which the relevant law is correctly explained to the jury.  Justice is justice according to law and it miscarries where the appellant has not had what the law says that he shall have: Mraz v. The Queen.[120]  I adopt with respect the observations of Fullagar J. on this point.

    In the present case the Crown has not satisfied me that there is no real possibility that justice has miscarried and I do not think where the error is a fundamental one, as in this case, dealing with the onus of proof, that the court should apply the proviso.

    [116] R v Hildebrandt (1963) 81 WN (Part 1) (NSW) 143.

    [117] R v Hildebrandt (1963) 81 WN (Part 1) (NSW) 143, 146 (Herron CJ).

    [118] R v Hildebrandt (1963) 81 WN (Part 1) (NSW) 143, 146 (Herron CJ, referring to Thomas v The Queen (1959) 102 CLR 585, 595 (Kitto J) and R v Patronek, decision of Herron CJ delivered 30 August 1963.

    [119] R v Hildebrandt (1963) 81 WN (Part 1) (NSW) 143, 148 (Heron CJ, with whom Ferguson and Nagle JJ agreed).

    [120] Mraz v The Queen (1955) 93 CLR 493.

17. In R v Henderson,[121] the second case cited in the passage, the Full Court of the Supreme Court of Victoria, sitting as the Court of Criminal Appeal, considered leave to appeal against sentence in circumstances where the defendant had been prematurely presented before the date of committal, depriving him of the opportunity to put before the sentencing judge material in mitigation of the offending to which he pleaded guilty.  The Court took the view that this irregularity justified granting leave to appeal.  The appeal was allowed and the sentence varied. 

    [121] R v Henderson [1966] VR 41.

18. Chief Justice Winneke then considered whether the irregularity was “such as to invalidate the proceedings that took place before the trial judge on the basis that it constituted such a departure from the prescribed procedures … that it was an irregularity going to the root of the case”.[122]  The Chief Justice explained that, had the case been an application for leave to appeal against conviction, the conviction would have been set aside:[123]

    … the view of the Court, as at present advised, is that an irregularity of the kind which occurred in this case may well be one going to the root of the case, and so give rise to a substantial miscarriage of justice within the meaning of s. 568 (1) of the Crimes Act 1958. The principles governing such a matter were enunciated and reviewed and applied by this Court in the case of R. v. Kerr (No 2) [1951] V.L.R. 239, and in the course of that judgment the Court said that if there had been a serious departure from the essential requirements of the law, or some irregularity which should be regarded as going to the root of the case, then a substantial miscarriage of justice would occur, and that if such an irregularity takes place it is not appropriate to consider the effect it may have had upon the verdict of the jury. As I have said, as at presently advised, the Court thinks there is much to be said for the view that on an appeal against conviction, a presentment prior to the date of committal would constitute such a departure from the essential procedures prescribed for bringing accused persons for trial as to constitute an irregularity going to the root of the case.

    [122] R v Henderson [1966] VR 41, 43 (Winneke CJ, with whom Hudson and Gillard JJ agreed).

    [123] R v Henderson [1966] VR 41, 43 (Winneke CJ, with whom Hudson and Gillard JJ agreed).

19. In the third case cited in the passage set out from Wilde v The Queen, R v Couper, the New South Wales Court of Criminal Appeal addressed a case where appellant’s counsel raised his client’s record in general terms, but the prosecutor then elicited the appellant’s extensive criminal record in detail during cross-examination.[124] 

    [124] R v Couper (1985) 18 A Crim R 1.

20. Chief Justice Street, with whom Finlay J agreed, thought that the trial had miscarried and explained why the proviso ought not be applied:[125]

    Notwithstanding the almost overwhelming strength of the Crown case … the Crown cannot deny in this case, that the appellant has lost a chance which was fairly open to him of being acquitted.  To withhold from him success in the light of the clear miscarriage inherent in admitting this evidence would involve this court, in a practical sense, taking upon itself the province of the jury by concluding that the appellant had no real defence anyway.

    The line of authority on the application of the proviso requires an evaluation of the significance of the irregularity, not the weakness of the defence case.  If the irregularity is of minimal significance in the overall strength of the Crown case, the proviso can and will be relied upon.  But in the present case, notwithstanding the strength of the Crown evidence, this irregularity of undeniable prejudice to the appellant must result in the miscarriage calling for appellate intervention. 

    The foregoing conclusion will be sufficient to dispose of the appeal …

    [125] R v Couper (1985) 18 A Crim R 1, 5 (Street CJ, with whom Finlay J agreed).

1. Against this background, the judge directed the jury in relation to various matters relevant to their task, including the elements of the offence, and various aspects of the evidence.

2. Relevantly for the purposes of this appeal, the judge devoted a significant portion of his summing up to what the appellant had said to the police during his interviews and other interactions with them.  After summarising various aspects of what the appellant had said to police, the judge referred to some matters that the prosecutor had submitted were lies.  In this context, the judge directed the jury that any lies were relevant only to their assessment of the appellant’s credibility or truthfulness:

   Whether [the appellant] lied to the police at any time is a matter for you.  However, I give you this very important direction.  Assessing [the appellant’s] truthfulness is the only way you may use any lie that [the appellant] told the police if you find he told any lie.

3. After referring to further aspects of the appellant’s police interviews, the judge returned to the limited use that might be made of any lies by the appellant:

   Ladies and gentlemen, the prosecution says that when speaking to the police [the appellant] told some lies and you have heard a lot about that.  [The prosecutor] says that there were lies on what were important topics and [the prosecutor] says that any lie that [the appellant] told is relevant to his credibility or truthfulness and must be borne in mind when considering whether he lied when he denied lighting the fire and being in [the street] at about 12.30am for the reason that he gave in the interview on the 29^th.

   [Defence counsel] says that you might think his client lied because he did not want this wife to know that he had been checking up on her, perhaps, he mentioned also, out of stress.  [Defence counsel] said that the explanation he suggested does not mean that you cannot accept him as being truthful when he said he did not light the fire and gave the explanation he gave for being in [the street] as seen by Mr Davey.

   Ladies and gentlemen, whether or not [the appellant] told any lie to police at any point in time is entirely a matter for you.  It is a factual matter.  However, if you found that [the appellant] did tell a lie you are permitted to bear that in mind in … in considering whether what he said on other topics was truthful; for example, the reason he said he was in the vicinity of the fire in [the street] and his comment and denial that he was not responsible for the fire and anything else he said which is contrary to the prosecution case.  However, I direct you that you must not use a conclusion that [the appellant] lied, if you draw that conclusion, as evidence of guilt.  A finding that [the appellant] lied, if that is the finding you make, is only relevant to your assessment of the truth of what [the appellant] said to the police.  Any finding of a lie by [the appellant] does not add to the evidence relied upon by the prosecution.  You must not follow a process of reasoning to the effect that just because [the appellant] lied, if that is what you find, that that is evidence of guilt.  It is not.

4. 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

5. 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.

6. 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.

7. 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).

8. As the decision of the majority in Hinrichsen v The King illustrates,[199] there will be cases in which a Zoneff direction does not adequately protect a defendant from a jury inappropriately using a lie as probative of guilt.  That may be so, for example, where the prosecutor invites, or the evidence inherently calls for, consideration of whether a lie was motivated by a consciousness of guilt.

   [199] Hinrichsen v The King [2023] SASCA 111 at [481]-[483] (Lovell and Doyle JJA); cf [221]-[232] (Livesey P).

9. For the reasons given earlier, the prosecutor’s submissions in the present case gave rise to a real risk that the jury would have understood that they were being invited to reason in this way.  This risk was exacerbated by the prominence of the prosecutor’s reliance upon lies in his closing address, and the emphatic terms in which he relied upon those lies.  It was also exacerbated by the prosecutor’s reference to the evidence that the appellant was flustered when leaving the scene of the fire and, indeed, his reference to the appellant’s plea of guilty as a lie.  In the circumstances of this case, a general Zoneff style direction was not sufficient to address the risk created by the prosecutor’s address.  As the appellant contended, it was necessary either to direct the jury to ignore the submissions made by the prosecutor which invited this style of reasoning, or to provide the appellant with the protection of an Edwards style direction.

10. It is to be acknowledged that, in the passage from his summing up extracted above, the judge referred to the defence submission that at least some of the appellant’s lies when speaking to police might have been explained by the appellant not wanting his wife to know that he had been checking up on her, or by stress.  The need to consider the potential for these explanations (as well as others, including that the appellant might have wanted to avoid unwarranted suspicion) would have formed part of an Edwards style direction.  However, I do not think this reference to possible explanations for the lies provided sufficient protection when not encompassed within the framework of an Edwards style direction specifically addressed to the risk of the lies being used as probative of guilt.

11. In my view, there was a realistic prospect that the jury made an inappropriate use of the lies told by the appellant, and hence a miscarriage of justice.[200]

    [200] Brawn v The King (2025) 99 ALJR 872 at [3], [10] (the Court).

12. I am fortified in this conclusion by the prosecutor’s closing reference to the appellant’s plea of guilty as ‘another lie’.  I have explained why that submission was inappropriate, and should not have been made; and why it had the potential to undermine the appellant’s right to silence and presumption of innocence.  By linking consideration of the appellant’s lies to his plea of guilty, the prosecutor’s submission also exacerbated the risk of the jury impermissibly using the appellant’s lies as evidence of guilt.

13. The ultimate significance of the prosecutor’s reference to the appellant’s plea of not guilty as a lie requires consideration of the context in which it was made.  The prospect that it may have been dismissed as no more than a rhetorical flourish at the end of an already emphatic crescendo to the prosecutor’s closing address is supported, to some extent, by the fact that neither defence counsel nor the judge took issue with what was said.  It is also relevant that it was followed by a summing up which, as set out above, commenced with robust directions reinforcing both the presumption of innocence and the appellant’s right to silence.

14. Whilst it will be necessary to return to the prosecutor’s submission as to the appellant’s plea of not guilty in the context of my consideration of the proviso, it is not necessary to reach a conclusion as to whether it independently gave rise to a miscarriage.  It is sufficient to observe that the submission should not have been made, and is likely to have contributed to the miscarriage which I have found occurred.

15. Finally, I do not consider it necessary to address at any length the appellant’s submission to the effect that the prosecutor inappropriately invited the jury to draw on their own experiences, and what they might have done in certain situations, when assessing the evidence in the case.  It is sufficient to observe that, although submissions of this nature may sometimes be problematic, I do not think there was any independent risk of a miscarriage as a result of the impugned submissions in the present case.  They did not form any prominent part of the prosecution address or case.

    The proviso

16. Having concluded that there was a miscarriage of justice, the appeal must be allowed unless this Court considers that ‘no substantial miscarriage of justice has actually occurred’.[201]

    [201] Criminal Procedure Act 1921 (SA), s 158(2).

17. In determining whether it is appropriate to apply the proviso, this Court must consider whether, on its own independent review of the record below, the prosecution proved the appellant’s guilt beyond a reasonable doubt.  This is sometimes referred to as the ‘negative proposition’ in Weiss.[202]

    [202] Brawn v The King (2025) 99 ALJR 872 at [11] (the Court), referring to Weiss v The Queen (2005) 224 CLR 300 at [44] (the Court).

18. However, before undertaking this review, and addressing the negative proposition, which is a necessary but not sufficient condition of the application of the proviso,[203] it is appropriate to address the nature of the error or irregularity which occasioned the miscarriage.  As the High Court recently emphasised in Brawn v The King,[204] the possible effect upon the verdict of any error or irregularity is central to a determination of whether there was a miscarriage of justice.  Whilst the determination of whether there was a substantial miscarriage of justice for the purposes of the proviso involves a qualitatively different inquiry, the nature of any error or irregularity remains relevant.  It remains relevant because there will be some cases in which the error or irregularity is so fundamental as to establish a substantial miscarriage of justice, without any need to consider the negative proposition.[205]  In other cases, the nature of the error may prevent the appellate court from addressing the negative proposition, or from satisfying itself that the evidence established the appellant’s guilt beyond a reasonable doubt.[206]

    [203] Kalbasi v State of Western Australia (2018) 264 CLR 62 at [113], [127] (Nettle J).

    [204] Brawn v The King (2025) 99 ALJR 872 at [11] (the Court).

    [205] Brawn v The King (2025) 99 ALJR 872 at [9] (the Court).

    [206] Kalbasi v State of Western Australia (2018) 264 CLR 62 at [15] (Kiefel CJ, Bell, Keane and Gordon JJ).

19. In confirming that some errors or irregularities are so fundamental that no occasion to address the proviso will arise, the High Court in Brawn v The King referred to passages from several earlier decisions, including Wilde v The Queen,[207] Weiss v The Queen,[208] and Hofer v The Queen.[209]

    [207] Wilde v The Queen (1988) 164 CLR 365 at 373 (Brennan, Dawson and Toohey JJ).

    [208] Weiss v The Queen (2005) 224 CLR 300 at [46] (the Court).

    [209] Hofer v The Queen (2021) 274 CLR 351 at [123] (Gageler J).

20. In Wilde v The Queen,[210] Brennan, Dawson and Toohey JJ said that 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’; that is, where the irregularity and miscarriage is such that the accused ‘has not had a proper trial’ or there is ‘hardly … a trial at all’.  As their Honours later added,[211] consideration of whether an irregularity rises to this level requires consideration of the context in which it occurred, and the ‘gravity and significance’ of the irregularity having regard, inter alia, to the nature and strength of the evidence, and the prosecution and defence cases.

    [210] Wilde v The Queen (1988) 164 CLR 365 at 373 (Brennan, Dawson and Toohey JJ).

    [211] Wilde v The Queen (1988) 164 CLR 365 at 374 (Brennan, Dawson and Toohey JJ).

21. In Weiss v The Queen,[212] the Court referred to irregularities or miscarriages which amount to such a serious breach of the presuppositions of the trial as to deny the application of the proviso.  In Hofer v The Queen,[213] Gageler J referred to the inapplicability of the proviso in cases where there had been a failure to comply with the requirements of the criminal process in a fundamental respect.

    [212] Weiss v The Queen (2005) 224 CLR 300 at [46] (the Court).

    [213] Hofer v The Queen (2021) 274 CLR 351 at [123] (Gageler J).

22. Whilst there is some consistency in the use of the label ‘fundamental’ when describing the type of error or irregularity which will prevent the application of the proviso, the authorities provide limited assistance in determining whether a particular error or irregularity warrants this label.  In Wilde v The Queen, Brennan, Dawson and Toohey JJ eschewed any attempt to be more prescriptive:[214]

    There is no rigid formula to determine what constitutes such a radical or fundamental error.  It may go either to the form of the trial or the manner in which it is conducted. … But the wording of the proviso is quite general and it is clear that it may be applied notwithstanding a misdirection concerning the law or the wrongful admission of evidence.  In the end no mechanical approach can be adopted and each case must be determined upon its own circumstances.

    [214] Wilde v The Queen (1988) 164 CLR 365 at 373 (Brennan, Dawson and Toohey JJ).

23. It seems to me that the authorities to date have not taken an entirely consistent approach in determining when an error or irregularity will be treated as fundamental.  Some have tended to focus upon errors which compromise the trial process, whereas others have attached at least some weight to the gravity or significance of the error or irregularity in the context of the particular case.  Put another way, the authorities reflect differing views as to the relative significance of ensuring due process, and ensuring an appropriate outcome.  They might also be said to reflect differing views of the proviso as having a relatively limited operation intended primarily to avoid the criminal law being ‘plunged into technicality’, or as having a more expanded operation intended to avoid the expense and inconvenience of a re-trial where the defendant has been proven guilty on the admissible evidence adduced by the prosecution.

1. It might be said that these differing approaches or emphases can be seen from the differing conclusions of the majority (Brennan, Dawson and Toohey JJ) and minority (Deane and Gaudron JJ) in Wilde v The Queen as to the applicability of the proviso in that case.  It was accepted that the trial judge in that case had erred in permitting a joint trial of the two offences with which the defendant was charged, and in directing the jury that the (prejudicial) evidence of each was admissible and relevant in respect of the other.  Whilst the majority were prepared to apply the proviso having regard to the strength of the evidence and prosecution case, and the limited gravity and significance of the error in that context, the minority were not prepared to do so in circumstances where there was a significant defect in the trial process. 

2. Perhaps the most that can be said on the current state of the authorities is that it will be relevant to consider the nature of the error or irregularity both in terms of its effect upon the trial process and, to some extent at least, in terms of its effect upon the outcome of the trial.  The ultimate question remains whether it can be said that, despite error or irregularity, ‘no substantial miscarriage has actually occurred’.

3. In the present case, the appellant contends that the risk of impermissible reasoning arising from the combination of the prosecutor’s invitation to treat the appellant’s lies as evidence of guilt, and invitation to treat the appellant’s plea of not guilty as a lie, involved a serious breach of the presuppositions of the trial, or fundamental irregularity in the trial, such that the proviso should not be applied.

4. In concluding that a miscarriage has been established, I have accepted that there was a realistic prospect that the jury’s reasoning towards their verdict was affected by the irregularities identified.  However, the conclusion that the irregularities were material in this sense is the occasion to turn to the proviso, and to consider whether a substantial miscarriage of justice actually occurred.  It does not necessarily mean that the irregularities were fundamental in the relevant sense, or that a substantial miscarriage actually occurred.[215]  As the judgments in Hofer v The Queen illustrate, it is conceivable that an appellate court, having concluded that an error or irregularity was such that a miscarriage has been established, may nevertheless be satisfied that it is appropriate to apply the proviso, depending on the nature of the evidence, and the nature of the error or irregularity.[216]

   [215] Weiss v The Queen (2005) 224 CLR 300 at [36] (the Court).

   [216] Brawn v The King (2025) 99 ALJR 872 at [11] (the Court), referring to Hofer v the Queen (2021) 274 CLR 351 at [49], [72]-[77] (Kiefel CJ, Keane and Gleeson JJ), [123] (Gageler J), [130] (Gordon J).

5. There is no doubt that the irregularities in the present case were significant in the sense that they gave rise to a risk of impermissible reasoning which might have affected the jury’s assessment of the appellant’s explanations and denials in his interactions with police.  However, in my view, they were not fundamental in a sense that necessarily prevents the application of the proviso.

6. It may be accepted that the prosecutor’s reference to the appellant’s plea of not guilty had some potential, as explained earlier, to undermine the appellant’s right to silence and presumption of innocence.  However, this is not necessarily fatal to the application of the proviso. 

7. In Glennon v The Queen,[217] the trial judge had misdirected the jury by suggesting that, whilst the accused’s exercise of his right to silence could not be used in a manner adverse to him, the jury could nevertheless use the accused’s silence to test the veracity of his evidence.  Although ultimately declining to apply the proviso on other grounds, the High Court held that the irregularity or misdirection was not a fundamental one which necessarily precluded application of the proviso.  As Mason CJ, Brennan and Toohey JJ explained:[218]

   In the circumstances of this case, it cannot be said that the trial judge’s misdirection on the applicant’s right to silence was ‘so fundamental’ that the trial was ‘hardly a trial at all’.  Although the right to silence is a fundamental right of any accused person, it cannot be said that any misdirection on that subject is a fundamental irregularity of the kind discussed in Wilde.  In this case, the trial judge directed the jury that they were not to use the applicant’s exercise of his right to silence in a manner adverse to him.  This direction was perfectly proper.  However, the trial judge then qualified this direction by informing the jury that they might use the applicant’s silence to test the veracity of the applicant’s defence.  This subsequent direction was clearly erroneous.  However, in the context in which it appeared and at a trial in which there was other evidence on which the applicant could be convicted and in which there was no other misdirection by the trial judge, the trial judge’s misdirection was not a fundamental irregularity. …

   [217] Glennon v The Queen (1994) 179 CLR 1.

   [218] Glennon v The Queen (1994) 179 CLR 1 at 8 (Mason CJ, Brennan and Toohey JJ); see also at 12 (Deane and Gaudron JJ).

8. In the present case, there are some considerations which suggest that the irregularities were not fundamental in the relevant sense.  The invitation to reason impermissibly came from the prosecutor, rather than the judge.  Whilst I have held that the judge’s directions did not entirely dispel the risk of impermissible reasoning, his Honour did direct the jury against using the appellant’s lies as probative of guilt.  Perhaps more significantly for present purposes, insofar as the prosecutor’s reference to the appellant’s not guilty plea as a lie risked undermining the appellant’s right to silence and presumption of innocence, it is noteworthy that the judge gave clear and robust directions in relation to both of these matters.  In other words, the risk was one arising from submissions made by the prosecutor, rather than any misdirection by the judge; and was to some extent countered by directions given by the judge.  Further, the fact that there was no contemporaneous complaint by defence counsel about those submissions is some indication of the potentially limited significance of the prosecutor’s impugned submissions in the context and atmosphere of the trial as a whole.  In particular, both defence counsel and the judge appear to have proceeded on the basis that the jury would have dismissed the prosecutor’s concluding submission in relation to the appellant’s not guilty plea as no more than a rhetorical flourish at the end of an already emphatic crescendo to the prosecutor’s closing address.

9. It is also relevant that the prosecution case was one which relied heavily upon circumstantial evidence as to the circumstances of the fire, and the identification of the appellant as the person who lit it.  The irregularity did not affect the treatment of this evidence, except insofar as it fell to be weighed against the appellant’s out of court statements in his interactions with police.  As elaborated upon below, those statements were, in relevant respects, able to be rejected as inconsistent (both internally and with other evidence) and implausible.  Put another way, in context, the gravity and significance of the irregularities was more limited than the appellant contends.

10. All things considered, I am not satisfied that there was any fundamental irregularity which precluded the operation of the proviso.  Nor, for the reasons elaborated upon below, do I think that the irregularities were of a nature which prevents this Court from undertaking the independent assessment required by the negative proposition, and concluding that the prosecution proved the appellant’s guilt beyond a reasonable doubt.  

11. In my view, the evidence established the appellant’s guilt beyond reasonable doubt.  As explained earlier in these reasons, the only issue at trial was whether it was the appellant who lit the fire.  There was no challenge to the evidence that the fire was deliberately lit, and with the use of an accelerant.  The circumstantial evidence presented by the prosecution in support of its case that the appellant lit the fire was overwhelming. 

12. Not only did the evidence establish that the appellant was present in the vicinity of the fire at the time it was lit, but there were also numerous items of evidence which linked him to the fire.  This included the location in the appellant’s van, shortly after the fire, of the following items:  a packet of 10 boxes of ‘Samba’ matches, with one box missing and of the same type as the box of ‘Samba’ matches found at the scene of the fire; a right shoe[219] matching the shoe found at the scene; and items smelling, and containing traces, of an accelerant.[220]

    [219] From which a DNA profile was obtained, providing extremely strong support (100 billion:1) for the appellant as a contributor.

    [220] Including a watering can from which a DNA profile was obtained, providing strong support (94,000:1) for the appellant as a contributor.

13. In concluding that the prosecution case was overwhelming, I have not overlooked the appellant’s denials and explanations for his whereabouts and movements provided to the police.  In my view, the explanations provided can be put to one side as implausible, internally inconsistent and inconsistent with other evidence[221] obtained during the course of the police investigation as to the appellant’s whereabouts and movements.  I note in this respect the preparedness of the majority in Hofer v The Queen to disregard relevant aspects of the defendant’s version of events as glaringly improbable,[222] even though (unlike in this case) the defendant’s version was given in court and on oath.

    [221] Summarised earlier in these reasons.

    [222] Hofer v The Queen (2021) 274 CLR 351 at [61]-[63] (Kiefel CJ, Keane and Gleeson JJ); and at [71], holding that no reasonable tribunal of fact could possibly have been beguiled by the appellant’s fabrications, such than an appellate court, in applying the proviso, was not obliged to entertain these ‘fantastical suggestions’ as giving rise to a reasonable doubt.

14. In the end, the appellant did not rely upon any positive explanation consistent with innocence.  Whilst it remains necessary to have regard to the appellant’s denials that he lit the fire, the prosecution evidence nevertheless proved beyond a reasonable doubt that the appellant lit the fire.

15. The prosecution case did not depend in any significant way upon any issues of credit.  Whilst the evidence of Mr Davey was relevant, its significance was limited in circumstances where the appellant did not ultimately deny that he was present in the vicinity at around the time the fire was lit, and there was the other evidence I have mentioned linking the appellant to the fire.  In the circumstances, the ‘natural limitations’ inherent in an appellate court’s assessment of the evidence do not prevent me from concluding that the appellant’s guilt was established beyond a reasonable doubt.

16. For the reasons given, I would apply the proviso and dismiss the appeal.

    Conclusion

17. I would grant permission to appeal, but dismiss the appeal.

    
    

18. 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.

19. 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).

20. 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.

21. In this case, the prosecutor’s contextually florid criticism of the plea of not guilty as a lie constituted a misdirection to the jury as to the nature of the function it was performing. It invited the jury to deploy the plea forensically, directly undermining the presumption of innocence. Accepting that this invitation came from the prosecutor, that the judge gave orthodox general directions on the use of lies and on the presumption of innocence, and that the defence did not seek a direction in respect of this address, I am nonetheless persuaded that the error was fundamental.

22. I reach that conclusion having regard to the prosecutor’s whole approach to the issue of lies, as Livesey P has described that approach. The judge’s direction on lies did not, in my view, ameliorate the mischief of this submission; the very characterisation of the plea as a lie undermined an essential premise of the trial.

23. Neither could the judge’s direction on the appellant’s right to silence ameliorate the fundamentality of the error. That was a general direction, aimed expressly at the appellant’s decision not to give evidence.

24. The judge’s direction on the presumption of innocence and the need for proof beyond reasonable doubt was similarly orthodox. It was, thereby, quite inconsistent with the prosecutor’s approach. Nonetheless, in all the circumstances, I am not persuaded that in its generality it relieved the prosecutor’s address of its usurpation of a fundamental premise of the trial. It did not, in my view, provide the same contextual cushion as did the otherwise correct direction in Glennon v The Queen.[229] As in Glennon, there was other evidence on which the jury could convict, and indeed the prosecution case was undeniably strong. However, the prosecutor here chose to make lies told by the appellant a centrepiece of his case. The characterisation of the not guilty plea as a lie represented the culmination of this approach.

    [229] (1994) 179 CLR 1 at 8.

25. For these reasons and the reasons given by Livesey P, which I respectfully adopt, I would allow the appeal, quash the conviction and order that the matter be remitted for retrial.