Hewitt v R

1. [1]

   PAYNE JA: Between 23 September 2019 and 1 October 2019 the applicant, Mr Hewitt, stood trial before Wilson SC DCJ and a jury in the District Court of New South Wales on an indictment containing the following three counts:

   1. (1)

      indecent assault contrary to s 61L of the Crimes Act 1900 (NSW) (count 1);

   2. (2)

      sexual intercourse without consent contrary to s 61I of the Crimes Act (count 2); and

   3. (3)

      indecent assault contrary to s 61L of the Crimes Act (count 3).

2. [2]

   The applicant and complainant were part of a close group of friends. On 21 November 2016, they attended a birthday party at a house in Pearl Beach (the Pearl Beach house). The Crown case was that on the morning of 22 November 2016 the applicant grazed the complainant’s inner thigh near her vagina with his fingers as they stood in the spa (count 1). It was further alleged that, later the same morning, after the complainant had fallen asleep on a couch in the lounge room, she was woken by the applicant digitally penetrating her vagina (count 2). It was alleged that the applicant then kissed the back of the complainant’s neck (count 3). Both the applicant and complainant were 21 years old in November 2016.

3. [3]

   The applicant’s case was that he did not indecently assault the complainant in the spa; the complainant agreed to allow him to lay next to her on the couch; the applicant placed his hand into the waistband of the complainant’s pants in response to her “grinding” against him; and he did not digitally penetrate her vagina or touch her genitals or breasts with his fingers.

4. [4]

   On 1 October 2019, the applicant was found guilty of count 2 and acquitted on counts 1 and 3.

5. [5]

   On 6 August 2020, the trial judge sentenced the applicant to a 3-year community correction order commencing on that date, subject to the standard conditions and a number of additional conditions including that he would complete 450 hours of community service.

Evidence at trial

1. [6]

   The complainant was 23 years old at the time of giving evidence. She first met the applicant when she was about 13 years old and in Year 8 at school. At that time they were part of the same friendship group but did not attend the same high school. So as not to inadvertently identify the complainant, contrary to s 578A of the Crimes Act, I will refer to relevant members of that friendship group by their initials.

2. [7]

   Evidence of an incident which occurred in 2013 was relied upon by the Crown, without objection, as background or context evidence. On 11 or 13 November 2013, a group of about 30 people, including the complainant and applicant, attended a party at the Pearl Beach house, which was owned by MC’s family. The members of the group had just completed Year 12. The complainant arrived with a girl from school later than everyone else. The complainant had a few drinks “but not a lot”. She was 17 years old at the time.

3. [8]

   After drinking and talking for a period of time, everyone, including the complainant and applicant, got into or sat around the spa. Those in the spa moved around it. The applicant ended up next to the complainant in the spa a few times. The applicant (who was on her right) placed his hand on the complainant’s inner thigh, near her vagina, on top of her bikini bottoms. His hand “graze[d]” against that area before moving away. The complainant described the touching as not constant but frequent. It was not as frequent when there were more people in the spa. Later, when the complainant, the applicant and FH were the only ones in the spa, the applicant touched the complainant in that manner over a five-to-ten minute period. The complainant pushed the applicant’s hand away a number of times. She talked to FH “a lot” because she felt uncomfortable and did not want FH to get out of the spa. The complainant did not want the applicant to touch her.

4. [9]

   In cross-examination, the complainant accepted that she could have gotten out of the spa when others did. She said that in hindsight she should have done so but that at the time she was in shock and uncomfortable and “just didn’t think to get out”. She didn’t want to embarrass the applicant. She denied that she put her hand on the applicant’s leg and penis while they were in the spa.

5. [10]

   Sometime after the complainant got out of the spa, she went to a downstairs bedroom by herself and got into bed. The applicant followed her in, unzipped her sleeping bag and zipped his sleeping bag together with hers. The complainant, who was not sexually experienced, felt uncomfortable and awkward. The applicant lay behind the complainant, pressing his body into hers. He put his fingers into her vagina. The complainant said, “don’t you have a girlfriend?” multiple times. He responded that they were “on a break”. The complainant could feel the applicant’s penis pushing into her. Both were still clothed.

6. [11]

   The bedroom door opened a few minutes later and a few people were standing there holding a flashlight. The applicant got up and left the room. When the complainant went upstairs, everyone was “being really awkward and not saying much”.

7. [12]

   Sometime later, the complainant saw the applicant’s then-girlfriend, GW (who she did not know), on a night out. GW approached her and said, “I’m so sorry about the other night”. The complainant felt confused and awkward that GW was apologising for something that her boyfriend had done. The incident came to be referred to by others as the applicant’s “midnight mistake” or “midnight surprise”, which the complainant understood as a reference based on the applicant’s explanation to GW that he was asleep and had woken up with his fingers in the complainant’s vagina instead of his girlfriend’s.

8. [13]

   The complainant did not then see much of the applicant until the end of 2014 or beginning of 2015. From that time, the complainant and applicant were both members of a close group of friends who saw each other “all the time”.

9. [14]

   In November 2016, the complainant and the applicant went to the Pearl Beach house with a group of friends to celebrate JA’s 21st birthday. The complainant drove to the house with her friend DC when she finished work at about 10pm. After arriving and during the course of the night, the complainant consumed alcohol and small quantities of MDMA (as did MC, KD and JA).

10. [15]

    At about sunrise, the few who remained awake went down to the beach for a swim, including JA, KD, the applicant and the complainant. After they returned from the beach, the complainant and the applicant got into the spa. The complainant was standing in the spa, looking towards the beach and talking to other people who were standing nearby. The applicant was behind her and slightly to her right.

11. [16]

    The complainant gave evidence that the applicant put his fingers on the complainant’s inner thigh next to her vagina, grazing her bikini bottoms. The touching was not aggressive. The complainant felt uncomfortable because the applicant was dating DC who was standing a couple of metres away. The complainant did not consent to the touching. She did not do or say anything to the applicant but called out to DC and MC to persuade them to get into the spa so that the touching would stop. When DC got into the spa, the complainant immediately got out (count 1: indecent assault – not guilty).

12. [17]

    The complainant went into the house where she immediately told MC what had happened.

13. [18]

    She then had a shower and put on a pyjama top. She returned to the lounge room, where everyone was standing, and lay on one of the two couches. MC and JA sat on the other couch. The applicant lifted the complainant’s legs, sat down and placed her legs on his lap. DC did the same with the complainant’s head. The complainant fell asleep.

14. [19]

    The next thing the complainant remembered was “waking up to [the applicant’s] fingers in [her]” (count 2: sexual intercourse without consent – guilty). She described there being one or two seconds of semi-consciousness as she woke up, followed by the feeling of something in her vagina. She then felt a kiss to the back of her neck (count 3: indecent assault – not guilty). The complainant sat up and pushed a hand away from behind her. She looked over her shoulder and saw the applicant lying there.

15. [20]

    The applicant tried to pull the complainant back down to the couch by gently touching her right shoulder. She resisted and remained sitting. She felt awkward and uncomfortable. The complainant gave evidence that she did not want the applicant to do what he had done. She asked the applicant what the time was but did not know why she had done so, describing it as a “shock reaction” and that she felt like she needed to say something because it was awkward. The complainant then got up and ran for the doors.

16. [21]

    The complainant was crying as she approached MC, KD and JA who were standing on the beach in front of the house. She said, “I woke up to [the applicant’s] fingers in my vagina”. KD replied, “That’s been happening for a while, we saw that happening”. The complainant then broke down further. Sometime later, whilst she was still on the beach, the applicant tried to approach her, but she told him not to and others pushed him away. The applicant left.

17. [22]

    During cross-examination, the complainant denied telling DC that during the 2013 incident she had given the applicant a “hand job”. The complainant disagreed that the applicant had not touched her while they were in the spa in 2016. The complainant denied that when she was later lying on the couch, the applicant had approached her and said, “do you mind if I watch some telly?”, that she was awake when they were on the couch and that she had intentionally ground her body against the applicant’s as he lay behind her on the couch. The complainant’s evidence was that the applicant may have put his hand at the waistband of her bikini bottoms but she was asleep.

18. [23]

    The complainant’s evidence (both as to the applicant’s behaviour as he lay next to her on the couch and the fact that she was asleep) was supported by the evidence of other persons who were present at the party. A number of witnesses gave evidence about immediate complaint and distress following that complaint. The complainant’s evidence was also supported by admissions made by the applicant in a text message sent to the complainant on 24 November 2016 (the text message) and a lawfully intercepted phone call between the applicant and the complainant on 2 December 2016 (the call).

19. [24]

    A screenshot of the text message was tendered and marked “Exhibit C”. It read:

20. [25]

    On 26 November 2016, the complainant told her mother what had happened. She reported the matter to police later that same day. Between 30 November 2016 and 2 December 2016, she exchanged a number of text messages with the applicant after the police told her that they wanted to record a phone call between them. Screenshots of those messages were tendered and marked “Exhibit D”.

21. [26]

    The audio of the call was tendered and marked “Exhibit E”. A transcript of the call was marked “MFI 2”. It included the following exchanges:

22. [27]

    Nine other witnesses gave evidence at the trial: MC, KD, GC, FH, GW and JA (friends of the complainant and applicant), DC (the applicant’s girlfriend), SW (the complainant’s mother) and Constable Craig May (the officer in charge as at the time of the trial). The trial ran for six days. The evidence was concluded on day four. Day five was reserved for closing addresses and the summing-up, which was completed on day six.

23. [28]

    The applicant did not give evidence or call any witnesses in the trial. He relied on a prepared statement which he read in an interview with police on 17 March 2017 (“Exhibit Q”). The interview was played in the Crown case.

Grounds of appeal

1. [29]

   The applicant seeks leave to appeal against his conviction under s 5(1)(b) of the Criminal Appeal Act 1912 (NSW) and r 4.15 of the Supreme Court (Criminal Appeal) Rules 2021 on grounds 1 and 2 (leave is not required for ground 3):

2. [30]

   I have concluded that grounds 2 and 3 should be upheld. Accordingly, I will address those grounds first.

Ground 2: a miscarriage of justice was occasioned as a result of the trial judge’s failure to put the applicant’s case fairly before the jury

1. [31]

   This was a six-day trial. The only thing that the trial judge said to the jury in the summing-up about the applicant’s case was the following:

2. [32]

   The trial judge did not, in any real or meaningful way, summarise the applicant’s case for the jury. In particular, the trial judge did not explain to the jury any aspect of the case the applicant made about how the jury should view the events of 2013. On the appeal, the Crown sought to defend the trial judge’s approach on the basis that whilst his Honour did not summarise the arguments put by counsel, he reminded the jury of the need for them to consider those submissions and that the weight to be afforded to those submissions was a matter for them. I am unable to agree that this was sufficient compliance with his Honour’s obligations.

3. [33]

   It is well settled that a trial judge must fairly put the case for the accused to the jury. In RPS v The Queen (2000) 199 CLR 620; [2000] HCA 3, Gaudron A-CJ, Gummow, Kirby and Hayne JJ explained:

4. [34]

   It is worth reflecting on this passage. The plurality explained that a fundamental requirement of a fair trial was that the trial judge was required “to put fairly before the jury the case which the accused makes.” No qualifications to this requirement were identified or expressed.

5. [35]

   In an earlier decision, Domican v The Queen (1992) 173 CLR 555; [1992] HCA 13, the High Court (Mason CJ, Deane, Dawson, Toohey, Gaudron and McHugh JJ) envisaged a possible exception, but emphasised that the requirement properly to put the respective cases for the prosecution and the accused accurately and fairly to the jury would “ordinarily” apply (at 561):

6. [36]

   The well settled principles explained in RPS and Domican have been confirmed in a number of other High Court cases. In Hargraves v The Queen (2011) 245 CLR 257; [2011] HCA 44, French CJ, Gummow, Hayne, Crennan, Kiefel and Bell JJ said:

7. [37]

   In The Queen v Getachew (2012) 248 CLR 22; [2012] HCA 10, French CJ, Hayne, Crennan, Kiefel and Bell JJ observed:

8. [38]

   In Castle v The Queen (2016) 259 CLR 449; [2016] HCA 46, Kiefel, Bell, Keane and Nettle JJ again confirmed the principles set out in RPS and said:

9. [39]

   This long and consistent line of High Court authority makes clear that a trial judge is required to analyse the main evidential matters that were adduced during the trial and fairly summarise for the jury the arguments made by both parties. It is fundamental that the trial judge fairly direct the consideration of the jury to the matters raised by an accused in his or her defence. Although s 161 of the Criminal Procedure Act 1986 (NSW) relieves a trial judge of the obligation to summarise the evidence if in the opinion of the judge that summary is not necessary, that provision does not override the obligation that the respective cases of the prosecution and the accused be accurately and fairly put to the jury. As the Criminal Trial Courts Bench Book published by the Judicial Commission of New South Wales explains at [7-040], having addressed the suggested outline for the summing-up, including that the trial judge “[s]ummarise arguments of counsel again relating them, if possible, to particular counts and defences and legal issues”:

10. [40]

    In Dixon v R [2017] NSWCCA 299, McCallum J considered the requirement that a trial judge put fairly before the jury the case which the accused makes, citing RPS v R, and observed at [105] that:

11. [41]

    Two authorities of this Court cited in Dixon, each decided before RPS, need be addressed. Each was relied upon by the Crown here. In R v Williams [1999] NSWCCA 9; (1999) 104 A Crim R 260, Wood CJ at CL (with whom Spigelman CJ and McInerney J agreed) made the following observations about the application of the relevant principles in short, single issue trials:

12. [42]

    In understanding this passage, much depends on what the Chief Judge at Common Law meant by “a single issue trial” and the phrase “a comprehensive analysis of the kind that the appellant now contends for”.

13. [43]

    The Chief Judge at Common Law made similar observations in R v Davis [1999] NSWCCA 15 (at [24]):

14. [44]

    As was the case in Williams, much depends on the words actually used by the Chief Judge at Common Law. His Honour was explaining that it was not “in every case” necessary to identify and repeat the points made by defence counsel.

15. [45]

    A number of observations should be made about Williams and Davis. First, each was decided before the decision of the High Court in RPS and must be read in light of the subsequent unqualified expression of the trial judge’s obligation fairly to summarise the accused’s case in RPS. Secondly, care must be taken to ensure that in collecting cases where this Court has found, on the facts of those cases, that no miscarriage of justice occurred, sight is not lost of the requirements of a summing-up identified by the High Court. Those requirements have never been qualified or doubted and remain binding on this Court. That is, ordinarily the respective cases for the prosecution and the accused must be accurately and fairly put to the jury. Thirdly, the duty upon a trial judge accurately and fairly to put to the jury the respective cases for the prosecution and the accused is not limited to complex or lengthy cases. No doubt an exercise of judgment on the part of the trial judge is required to frame the summing-up in a way that is helpful to the jury. It may be accepted that decisions of this Court establish that there is no requirement, in every case, regardless of its length or complexity, that the trial judge must “repeat the points made by defence counsel”. That does not mean that the clear requirements laid down by the High Court in RPS and Domican can be ignored.

16. [46]

    Whilst the applicant bears the onus of establishing that the trial was unfair, I have concluded that this is a case where the failure by the trial judge to attempt a fair summary of the defence case, coupled with a clear and material misdirection about the use the jury could make of the 2013 evidence, establishes that there has been a miscarriage of justice.

17. [47]

    I do not accept the Crown’s submission that there was a “single issue” in the trial being the complainant’s credibility. This is too simplistic an approach. There were a number of discrete issues in the trial which underline the failure of the trial judge properly to explain to the jury what the real issues were. The trial judge was required to explain to the jury, at least, the following matters relied upon in the defence case:

    1. (1)

       first, that the 2013 incident was relevant to the defence case in two ways: (i) it was relevant to the complainant’s asserted motive to fabricate the allegations; and (ii) it was relevant to the jury’s assessment of the complainant’s credibility;

    2. (2)

       secondly, that the defence case included a denial of any penetration in 2013; that the complainant had initiated the physical contact in the spa in 2013; that the complainant had masturbated the applicant in the bedroom in 2013; and that the complainant continued to have a friendly relationship with the applicant after 2013;

    3. (3)

       thirdly, that the defence case was that the evidence of complaint should be understood as being prompted because MC had demanded to know in a confrontational way, “Oi, what the hell just happened”. I do not accept the Crown submission that the applicant’s reference to only one part of KD’s evidence meant that the failure of the trial judge to address the defence case on this issue should be put to one side; and

    4. (4)

       fourthly, that in relation to count 2, the defence case was that the applicant merely had his hand in the waistband of the complainant’s pants. I reject the Crown submission that the jury cannot have been under any misapprehension as to the applicant’s case in relation to count 2 because it was before them in the record of interview. The applicant was entitled to have the trial judge explain to the jury the relevant part of the defence case.

18. [48]

    The trial judge’s failure to explain the defence case about the 2013 context evidence led to a miscarriage of justice because the trial judge told the jury that the 2013 incident was only relevant as background evidence. No doubt, the trial judge was seeking to avoid any tendency reasoning by the jury after the Crown said the following in its closing address:

19. [49]

    By reason of the failure of the trial judge to sum up the defence case the matter was left to the jury in an unfair way. Defence counsel raised this as an issue and the trial judge agreed to tell the jury about how the 2013 incident impacted upon the complainant’s credibility, but ultimately the direction was not given.

20. [50]

    In Kalbasi v Western Australia (2018) 264 CLR 62; [2018] HCA 7, the High Court considered the operation of a provision that closely resembled the proviso in s 6(1) of the Criminal Appeal Act but which adopted a contemporary style of drafting. The general principle was described in the majority judgment (Kiefel CJ, Bell, Keane and Gordon JJ) thus:

21. [51]

    More recently, in OKS v Western Australia (2019) 265 CLR 268; [2019] HCA 10, the High Court (Bell, Keane, Nettle and Gordon JJ) explained the application of the proviso as follows:

22. [52]

    In this case, as the defence case was not fairly put to the jury, it would be inappropriate to apply the proviso in s 6(1) of the Criminal Appeal Act, despite the apparent strength of the Crown case. I am not satisfied that the applicant did not lose a chance of acquittal fairly open to him.

23. [53]

    Finally, turning to r 4.15 of the Supreme Court (Criminal Appeal) Rules, the failure of counsel to seek a summary of the defence case to the jury by the trial judge is not determinative. Whilst it is true that counsel for the applicant did not ask the trial judge to explain the defence case to the jury, I would grant leave to appeal under r 4.15. Whilst the trial judge provided the parties with a written outline of the summing-up prior to it being delivered, that document gave no indication that his Honour proposed not to summarise the respective cases for the jury. The first time that became clear was when the summing-up was completed. Counsel for the applicant was, in the circumstances, in an impossible position. At that stage, an application properly to sum up the respective cases would be to invite the trial judge to in effect start again. Counsel’s failure to ask the trial judge to, in effect, start again cannot legitimately be criticised. This is a case where I have concluded that there has been a miscarriage of justice.

24. [54]

    I would grant leave to appeal on ground 2 and allow the appeal.

Ground 3: a miscarriage of justice was occasioned by the trial judge’s failure to give the jury a full Liberato direction

1. [55]

   Although my conclusion in relation to ground 2 is sufficient to dispose of this appeal, I will deal briefly with the remaining grounds.

2. [56]

   Counsel for the applicant sought at trial a full Liberato direction. The trial judge refused the application. I have concluded that the trial judge in doing so erred and that a miscarriage of justice thereby ensued.

3. [57]

   In Liberato v The Queen (1985) 159 CLR 507; [1985] HCA 66 at 515, Brennan J (with whom Deane J agreed) said:

4. [58]

   In De Silva v The Queen (2019) 268 CLR 57; [2019] HCA 48, Kiefel CJ, Bell, Gageler and Gordon JJ considered the content of a Liberato direction at [12] as follows:

5. [59]

   After being provided with the first draft of the summing-up, senior counsel for the applicant sought a “full Liberato direction”. The Crown did not oppose the request. The trial judge, however, gave the jury the following direction:

6. [60]

   The summing-up concluded on 30 September 2019. Later that afternoon, the jury sent a further note (having previously sent a note requesting a copy of the trial judge’s directions) seeking “further clarification about the assessment of reasonable doubt”. Senior counsel for the applicant submitted that a Liberato direction should be given again to assist the jury “in a practical way”. The parties agreed that the trial judge should repeat the directions he had given during the summing-up as to the onus and standard of proof, the fact that the applicant had not given evidence and the Liberato direction. His Honour’s direction to the jury was as follows:

7. [61]

   On 1 October 2019, senior counsel again sought “the full Liberato direction”. On appeal, the applicant repeated the submission that the jury should have been told in terms that “if they did not accept the applicant’s version, but considered it might be true, they must acquit” and that the omission properly to explain that matter occasioned a miscarriage of justice because the applicant was deprived of a chance fairly open to him of being acquitted.

8. [62]

   I am unable to accept the Crown’s submission that the trial judge’s directions, considered fairly and as a whole, left no room for the possibility of any misapprehension by the jury of the matters referred to by Brennan J in Liberato. I do not agree that the trial judge’s failure to adopt the specific form of words used in the Criminal Trial Courts Bench Book, drawn from Liberato and De Silva, was permissible.

9. [63]

   The full Liberato direction has three components:

   1. (1)

      if you believe the accused’s evidence (if you believe the accused’s account in his or her interview with the police), you must acquit;

   2. (2)

      if you do not accept that evidence (the accused’s account) but you consider that it might be true, you must acquit; and

   3. (3)

      if you do not believe the accused’s evidence (if you do not believe the accused’s account in his or her interview with the police), you should put that evidence (the accused’s account) to one side. In that third case, the question will remain: has the prosecution, on the basis of evidence that you do accept, proved the guilt of the accused beyond reasonable doubt?

10. [64]

    The instruction given by the trial judge did not explain those matters sufficiently. There was an error of law with the result that the trial miscarried.

11. [65]

    As this is purely a question of law and the point was taken at trial leave is not required under s 5(1)(b) of the Criminal Appeal Act or r 4.15 of the Supreme Court (Criminal Appeal) Rules. I would uphold ground 3.

Ground 1: the trial judge erred in failing to direct the jury about how they could use evidence of the text message and statements made in the call as admissions of guilt

1. [66]

   By ground 1, the applicant contended that the trial judge erred in failing to direct the jury as to how they could use evidence of admissions he made in the text message (Exhibit C) and in the call (Exhibit E).

2. [67]

   The Crown relied upon the text message and the applicant’s statements to the complainant in the call as admissions of guilt. As to the text message, the Crown’s closing address to the jury proceeded on the following basis:

3. [68]

   As to the call, the Crown submitted:

4. [69]

   The Crown also relied upon the applicant’s failure to positively assert his version of events, as provided to police, to the complainant in the call as an implied admission that the version of events was false.

5. [70]

   The applicant submitted that the trial judge was required to direct the jury that, before they could use the confessional statements in proof of the applicant’s guilt, they needed to be satisfied: first, that the applicant intended to acknowledge that he had sexual intercourse with the complainant without her consent; and secondly, that the confessional statements were true.

6. [71]

   In support of that submission, the applicant relied upon the seminal passage in Burns v The Queen (1975) 132 CLR 258; [1975] HCA 21, where Barwick CJ, Gibbs and Mason JJ (with whom Jacobs J agreed) said at 261:

7. [72]

   The applicant submitted that the High Court’s statement of the law relating to confessions in Burns applies equally to admissions: R v Russo (No 2) [2006] VSCA 297 at [11] (Nettle JA, with whom Neave JA and King AJA agreed). It was submitted that, since Burns was decided, superior and intermediate appellate courts across Australia have repeatedly emphasised the need for juries to be directed that, before they can rely on confessional statements, they must be satisfied as to the truth and accuracy of those statements: R v Green (2002) 4 VR 471; [2002] VSCA 34 at [31]; R v Schaeffer (2005) 13 VR 337; [2005] VSCA 306 at [13] and [65]; R v Koeleman (2000) 2 VR 20; [2000] VSCA 141 at [21]; R v Baker [2001] QCA 326; Cotic v The Queen [2000] WASCA 414; (2000) 118 A Crim R 393 at [11]‐[18]; R v Eastman (No 50) [2018] ACTSC 321 at [13]; R v Perera [1986] 1 Qd R 211; R v D’Orta‐Ekenaike [1998] 2 VR 140; (1997) 99 A Crim R 454; Magill v The Queen (2013) 42 VR 616; [2013] VSCA 259; McKey v R [2012] NSWCCA 1; (2012) 219 A Crim R 227.

8. [73]

   The applicant submitted that the jury should have been directed that:

   1. (1)

      before they could infer that the applicant did not tell the complainant that he merely placed his hand into her waistband because he was conscious of his guilt, they were required to exclude any alternative inference inconsistent with guilt; and

   2. (2)

      they could not act on the applicant’s statements in the text message and the call as proof of his guilt, unless satisfied that he intended to acknowledge by those statements that he had sexual intercourse with the complainant without her consent, and that the statements were true, and were not said merely to maintain harmony within the group of friends or complainant or to stop the matter being taken any further.

9. [74]

   The applicant put forward five reasons as to why directions should have been given in this case:

   1. (1)

      first, evidence of the admissions formed a central plank of the Crown case;

   2. (2)

      secondly, there was an increased need to give the direction because the applicant disputed the truth of the admissions (Burns; Green at [31]);

   3. (3)

      thirdly, the text message was inherently ambiguous and did not suggest that the applicant was admitting to digitally penetrating the complainant’s vagina, and there was cogent evidence that it had only been sent at MC’s suggestion;

   4. (4)

      fourthly, without the direction, the jury may have reasoned that the applicant in the call was admitting to digital penetration when he did not expressly do so. There was a reasonable possibility that the applicant and complainant were at cross purposes as to what was “not alright”, and for what the applicant was “sorry”. There was a danger that the jury would reason that, because the applicant said those things, they must be truthful; and

   5. (5)

      fifthly, it was necessary for the trial judge to give the jury a direction which would guard against the unjustified drawing of an adverse inference concerning the applicant’s failure to state his case with respect to count 2 in circumstances where the trial judge did not give the standard direction as to drawing inferences.

10. [75]

    The applicant’s ultimate submission was that the jury were left entirely without instruction as to the way they should approach the Crown’s argument that the text message and the call established that the applicant was guilty of count 2. It was submitted that the trial judge was under a duty to give proper directions if there was a serious risk of injustice, even if those directions were not sought by defence counsel: BRS v The Queen (1997) 191 CLR 275; [1997] HCA 47 at 302 (Gaudron J), 310 (McHugh J) and 330 (Kirby J).

11. [76]

    Although I have wavered about the correct answer to this issue, I have concluded that the Crown is correct that the cases relied upon by the applicant do not establish that a direction of the kind sought is required as a matter of law in every case in which there is a dispute about whether a confession or admission was truthful and accurate.

12. [77]

    In Flood-Smith v R [2018] NSWCCA 103, it was alleged that the applicant had recklessly inflicted grievous bodily harm upon her two-year-old child. The Crown relied on three admissions: “I didn’t mean for none of this to happen”, “I don’t know what happened, I don’t know what I’ve done” and “I don’t know what I’ve done”. The applicant did not give evidence, but gave accounts recorded in two statements she had made to police in which she denied assaulting the child. In those statements she said that she did not know how the injuries were occasioned but she thought that the dog may have attacked the victim, or that she may have fallen from a chest of drawers. The applicant’s case was that each of the asserted admissions was readily explicable on the basis that she did not inflict the injuries but nonetheless felt responsible because the child was injured while in her care. Hoeben CJ at CL (with whom Walton and Button JJ agreed) observed at [119]-[121] that:

13. [78]

    I have reached essentially the same conclusion here. First, no submission was made by the applicant’s counsel at trial that his Honour should direct the jury in the terms now said to have been called for. Secondly, I can envisage a tactical reason why counsel for the applicant would not have sought such a direction: a Burns direction may have highlighted the applicant’s statements as confessions and/or admissions. Thirdly, the Crown is correct that even now the applicant did not expressly formulate the direction which he now asserted, on appeal, ought to have been given. The fact that such a direction was not sought at trial by experienced senior counsel who appeared on behalf of the applicant is significant. Finally, the absence of a request for the direction now sought is an indication that no miscarriage of justice was occasioned in the atmosphere of the trial: The Queen v Dookheea (2017) 262 CLR 402; [2017] HCA 36 at [37]-[39] (Kiefel CJ, Bell, Gageler, Keane, Nettle and Edelman JJ); ARS v R [2011] NSWCCA 266 at [148] (Bathurst CJ, with whom James and Johnson JJ agreed); Greenhalgh v R [2017] NSWCCA 94 at [42] (Basten JA, with whom Button and N Adams JJ agreed).

14. [79]

    I would refuse leave to appeal on ground 1 under r 4.15 of the Supreme Court (Criminal Appeal) Rules.

Conclusion and proposed orders

1. [80]

   In accordance with the usual practice of the Court in a case such as this, these reasons will be distributed to the parties but only published on the restricted “JIRS” database. The parties are directed to inform the Registrar of the Court of Criminal Appeal when the proceedings have been completed and this judgment is able to be published without restriction.

2. [81]

   For the foregoing reasons I propose the following orders:

   1. (1)

      Leave to appeal on ground 1 refused under r 4.15 of the Supreme Court (Criminal Appeal) Rules 2021;

   2. (2)

      Leave to appeal on ground 2 granted under r 4.15 of the Supreme Court (Criminal Appeal) Rules 2021;

   3. (3)

      Appeal allowed;

   4. (4)

      The applicant’s conviction on count 2 in the indictment is quashed;

   5. (5)

      The proceedings are remitted to the District Court arraignment list at Gosford on 30 September 2021.

3. [82]

   GARLING J: I agree with the orders proposed by Payne JA and with his reasons.

4. [83]

   WRIGHT J: I agree with the orders proposed by Payne JA for the reasons his Honour has given.