DC v R

1. [1]

   BATHURST CJ: I have had the advantage of reading the judgment of Price J in draft.

2. [2]

   I agree with the orders proposed by his Honour and with his reasons.

3. [3]

   The portion of the address by the Crown set out by Price J at [79]-[80] below, particularly what was said in that portion extracted in the last two paragraphs of [79], clearly invited the jury to reason towards the proposition that during the course of his interview, the appellant lied out of consciousness of guilt.

4. [4]

   In those circumstances, although it is of course material that counsel for the applicant at trial declined to seek a direction of the nature of that referred to in Edwards v The Queen (1993) 178 CLR 193; [1993] HCA 63 or Zoneff v The Queen (2000) 200 CLR 234; [2000] HCA 28, for the reasons given by Price J the failure to give such a direction or a direction in the nature of that referred to by Price J constituted a miscarriage of justice.

5. [5]

   PRICE J: On 31 January 2018, the appellant was arraigned on an indictment and pleaded not guilty to each of the following counts:

   1. (1)

      That between 1 January 2016 and 26 October 2016, he did have sexual intercourse with TO, a child under the age of 10 years, contrary to s 66A(1) of the Crimes Act 1900 (NSW);

   2. (2)

      That between 1 January 2016 and 26 October 2016, he did indecently assault TO, a child then under the age of 16 years, contrary to s 61M(2) of the Crimes Act;

   3. (3)

      That between 23 October 2016 and 26 October 2016, he did have sexual intercourse with SO, a child under the age of 10 years, contrary to s 66A(1) of the Crimes Act; and

   4. (4)

      In the alternative to count 3, that between 23 October 2016 and 26 October 2016, he did indecently assault SO, a child then under the age of 16 years, contrary to s 61M(2) of the Crimes Act.

6. [6]

   On 5 February 2018, after a trial in the District Court before her Honour Noman SC DCJ (“the trial judge”) and a jury, the appellant was found guilty of counts 1-3.

7. [7]

   On 4 May 2018, the appellant was sentenced to an aggregate term of imprisonment of 12 years with a non-parole period of 8 years.

8. [8]

   The application for leave to appeal against his conviction relies on three grounds, namely:

9. [9]

   The appellant accepted that leave is required under r 4 of the Criminal Appeal Rules in respect to each ground of appeal, as there was no objection to the admission of the appellant’s record of interview, no objection to the Crown Prosecutor’s address, and no application for directions with respect to lies or consciousness of guilt at the trial.

10. [10]

    Given the narrow scope of the grounds of appeal, it is unnecessary to recount all of the evidence at trial. I note that the Crown relied at trial on the cross-admissibility of TO and SO’s complaints as tendency evidence to establish that the appellant had a sexual interest in girls under ten and had a tendency to act upon that interest in a particular way.

The Crown case at trial

1. [11]

   The appellant lived in a neighbouring unit to TO and SO’s grandmother (“LO”).

2. [12]

   The Crown alleged that the appellant digitally penetrated TO’s vagina whilst he was trying to pull down her pants (count 1), and that on another occasion, he pulled down TO’s pants and touched her bottom with his finger (count 2). On both occasions TO was in the appellant’s unit.

3. [13]

   Count 3 alleged that the appellant put his finger in SO’s vagina whilst she was seated with the appellant in LO’s unit. In the alternative, count 4 alleged that this touching occurred but was not penetrative.

4. [14]

   The offending was alleged to have occurred when TO was 6 or 7 years of age and SO was 4 years of age.

Counts 1 and 2

1. [15]

   TO’s evidence consisted of a Joint Investigation Response Teams (“JIRT”) interview recorded on 3 February 2017 and her evidence in court.

2. [16]

   As to count 1, TO said in the JIRT interview that she visited her “Nanny-O” (LO) the day before her eighth birthday.

3. [17]

   TO said that she went to the appellant’s unit upstairs while her Nanny-O was having a shower. She described the appellant as a friend of her Nanny-O, as a boy, a dad, who was bald with a beard, fat and with no “pictures” or tattoos on his arms. She later identified his name as “[D]”.

4. [18]

   TO said that the appellant put his hand down her pants and touched the inside of her “rude part [at the front]” with his fingers. When asked what she uses her rude part for, she said “to go to the toilet”.

5. [19]

   As to count 2, TO said in the JIRT interview that she visited her Nanny-O after her birthday.

6. [20]

   She said she went upstairs to the appellant’s unit and was drinking a glass of cordial when the appellant pulled her pants and underpants down and touched her “bum” with his finger. At that time the appellant was partially undressed with his shirt off and his pants “half off” down to his knees. TO recalled that she saw the appellant’s “rude part” and that he was “poking it out”.

7. [21]

   TO stated that she uses her “bum” to go to the toilet.

8. [22]

   In cross-examination, TO disagreed that the appellant had never touched her rude part. TO disagreed that she had copied SO’s complaint.

9. [23]

   The appellant declined to participate in a record of interview in respect of the allegations made by TO.

Counts 3 and 4

1. [24]

   SO’s evidence consisted of a JIRT interview recorded on 27 October 2016 and her evidence in court.

2. [25]

   In the JIRT interview, SO said she was four years old. SO was shown a picture of a girl. She identified the front and the back of the girl, the hands and various other body parts. She identified “the bum” and referred to the genital area as a “Minnie” which she said she used “to wee”.

3. [26]

   SO agreed that she knew a man named “[D]” and that he came to her “Nanny-O’s” house while she was staying there. She said that he put his hand inside her shorts, under her underpants and rubbed her while his “doodle” was out. She further said that he touched the inside of her “Minnie” with his hand and rubbed it. SO said that the appellant asked her to touch his doodle but that she didn’t listen to him.

4. [27]

   SO said that she was sitting on the appellant in a room at her “Nanny-O’s” unit while the alleged offences occurred and that no-one else was in the room.

5. [28]

   SO stated that she didn’t tell anybody what had happened with the appellant.

6. [29]

   In cross-examination, SO agreed that she knew a man called “[D]”. She did not remember when she met the appellant, but said that she had met him at his house and that he gave her jelly beans and lollies. When asked whether someone told her to say that the appellant touched her she answered “yes”. When asked who that was, she answered “[D]”. She disagreed that the appellant never touched her.

7. [30]

   AM is the mother of SO and TO. She confirmed that her mother, LO, lived in the same unit complex as the appellant, and that she met the appellant in September. Due to a car accident in 2014 she has difficulties with her memory.

8. [31]

   She recalled travelling to her mother’s home with her grandmother (AS), SO and her youngest daughter (JO). At that time she was moving house. She said that the appellant would visit LO’s unit every night and bring one or two beers at dinner time. She was not aware of any of her children visiting the appellant in his unit.

9. [32]

   AM gave evidence that one evening in October, SO screamed whilst she was bathing. SO had poured shampoo into the bath and some had gotten into her vagina. AM said that when she ran to the bathroom the appellant followed her and told her that he was an ex-nurse. She told him to leave and shut the door.

10. [33]

    As to the evidence of SO’s complaint, AM told the jury SO said the appellant had “touched her Minnie”. AM stated that she then called the police, who came to LO’s unit on 26 October 2016 and spoke to her on the verandah. The next day, she was contacted by other police who asked her to take SO to Liverpool Hospital for some tests. She took SO to the hospital and was accompanied by AS. She did not speak to any of the doctors, but AS did. After SO was seen by the doctors she participated in her JIRT interview.

11. [34]

    In cross-examination, AM said that she was in the lounge room with LO and AS, when SO told her that the appellant had touched her. She recalled that AS said to SO, “Did [the appellant] put his hand up your dress” and SO replied that he did. AS had then told AM to call the police.

12. [35]

    AM did not remember a woman named Wendy who lived at the block of units where LO lived at the time.

13. [36]

    LO is the mother of AM and the grandmother of SO and TO.

14. [37]

    LO said that AM would visit when she had doctor’s appointments in relation to her car accident.

15. [38]

    She recalled that the appellant would cook her meals and bring meals down for her grandchildren.

16. [39]

    LO gave evidence that she could not remember SO or TO spending time in the appellant’s unit, but she did recall a time when SO was sitting on the appellant’s lap on her verandah. She said that she asked SO to hop off the appellant’s lap but SO refused. LO told the jury that she then went inside the house to bake a cake and the appellant and SO left. A short time later, LO was searching for SO and called for her inside her unit, she then went upstairs to the appellant’s home, knocked on the door and SO was in his unit. She took SO back to her unit.

17. [40]

    She could not remember how long they had been there, but she recalled that SO had lollies from the appellant.

18. [41]

    In cross-examination, LO disagreed that she never found SO inside the appellant’s unit. She affirmed that she saw SO in the appellant’s unit holding lollies. She told the jury that at that time AM was asleep in the spare room.

19. [42]

    She said that the appellant later came downstairs to her unit with a cigarette and had brought some food for the grandchildren. LO said that she told him to leave because she did not want him smoking inside her unit.

20. [43]

    She said that she only found out why the police had arrived because Wendy came and told her.

21. [44]

    AS, the great grandmother of SO and LO, gave evidence that she had visited LO at least four times a year with AM, SO and TO. She could not recall when she first met the appellant, but stated that he would come and go from LO’s unit, bring her food, and drink alcohol.

22. [45]

    She recalled visiting LO with AM in October 2016. She told the jury that she saw the appellant on the verandah of LO’s unit drinking alcohol whilst SO sat on his knee.

23. [46]

    She gave evidence that SO told her that she went into the appellant’s unit.

24. [47]

    AS said that SO made her complaint in the lounge room of LO’s unit. AS recalled that LO, LO’s sister and AM were also present. She told the jury that she asked SO, “Did [the appellant] have his hand up your dress?” to which SO replied, “Yes”. AS said that she then told AM “it’s time to call the police” and AM did so.

25. [48]

    On 27 October 2016, following his arrest, the appellant participated in an electronically recorded interview with suspected persons (“ERISP”) in relation to the allegations made by [SO]. DSC Beckett and DSC Hasler conducted the interview.

26. [49]

    The ERISP was tendered by the Crown and admitted into evidence without objection. A transcript of the ERISP was provided to the jury.

27. [50]

    As some of the issues flow from arguments as to admissibility, it is necessary to set out extracts of the ERISP in some detail.

28. [51]

    At the outset of the ERISP, the appellant confirmed that he understood DSC Beckett and DSC Hasler were investigating an allegation of sexual assault on SO. He agreed that he had been placed under arrest at his workplace and that he had agreed to do the ERISP.

29. [52]

    The appellant stated that LO was a “close friend” who he had known for well over a year. He confirmed that they lived in the same apartment complex. LO’s unit was on the ground floor at the front and his unit was on the top floor. He said they would “go back and forth” from each other’s apartment.

30. [53]

    When asked whether he knew SO, the appellant responded that he had only known SO for the last three or four days and that he had met her mother AM three months ago when she visited LO. He said that SO and her mother AM were staying with LO because they had doctor’s appointments.

31. [54]

    As to the appellant’s activities from Sunday 23 October 2016 to Tuesday 25 October 2016, he said LO had asked to borrow some cake tins and that they tried to bake three cakes together on either Monday or Tuesday. He noted that LO’s sister burnt the first cake, that LO didn’t put butter in the second and that they had difficulty with the oven so the bottom of the third was burnt “but the top was perfect”.

32. [55]

    The appellant stated that over the Sunday, Monday and Tuesday, he had made twelve portions of lasagne and salad, some of which he shared with LO and her sister. DSC Beckett asked the appellant when he took down the portion to which the appellant responded:

33. [56]

    The appellant said that during the period from Sunday 23 October 2016 to Tuesday 25 October 2016 “everyone”, being LO’s mother, daughter, two babies, her sister and occasionally her sister’s boyfriend, were at LO’s unit. He identified the “two babies” as SO, who he thought was 5 years of age, and JO who he thought was about 12 months old. However, he said that he “can’t remember much of [those] three days”, that he was not sure about JO’s age or name and reiterated that he had consumed two and a half cartons of beer over the three days.

34. [57]

    He then indicated that he would likely lose his job and the following exchange took place:

35. [58]

    The appellant explained that he knew SO referred to her vagina as her “Minnie” because there had been an incident whilst SO was bathing, whereby she had complained to her mother that she had hurt her “Minnie” with a bar of soap. Due to the commotion made by SO, the appellant said he went to the bathroom and stood by the door while SO was consoled by AM. He asked what a “Minnie” was and LO told him that’s what SO calls her vagina.

36. [59]

    The appellant was further questioned as to the events during the period of the alleged offending. He told DSC Beckett and DSC Hasler that at about 1pm on Tuesday he and LO went shopping. He recalled LO went “somewhere else first” and at some point they found each other in Coles. He remembered that he paid cash at the register using his discount card, and she used the self-service. He further recalled that he withdrew some money from the bank, met LO outside a newsagency where she was sitting and bought a lottery ticket. He said they then went to the optometrist because LO had told him her eyes needed redoing after a certain amount of time. It was after those tasks that they met each other at Coles, had a cigarette at the top of the stairs near a taxi rank and got a taxi home at around 3pm.

37. [60]

    When asked whether SO had ever been to his unit, the appellant answered that “she did once”. He said whilst he was putting his shoes on before going to Coles she had “ducked up there”, walked to his back verandah, to his bedroom door and then raided his fridge taking a few jellybeans and some chewing gum. He denied that she sat on his lap whilst in his unit and denied getting changed, except for his shirt. The appellant stated that he and SO then returned to LO’s balcony.

38. [61]

    The appellant stated that he had been drinking with LO on her balcony. He recalled a neighbour had checked the mail box who said hello before returning to her unit. He said that SO then sat on his lap, that he tickled her and she gave him a cuddle with her arms around his neck before he put her down. He recalled at that time she was wearing a little shirt and pyjama pants.

39. [62]

    DSC Beckett then raised the complaints which had been made against the appellant and the following exchange occurred:

40. [63]

    And further:

41. [64]

    The appellant explained that he believed the police would think he was lying because he gets “flustered”. DSC Hasler disagreed that the appellant had difficulty remembering the events of the preceding days. He referred to the details provided by the appellant including baking the cakes, going to the optometrist and shopping at Coles, and then said:

The appellant’s evidence

1. [65]

   The appellant gave evidence at trial. No further witnesses were called in the defence case.

2. [66]

   The appellant stated that he had been living at the units for nearly five years and was friends with LO.

3. [67]

   He said that he first met SO on Sunday 23 October 2016 and that she had been in his unit. He denied ever touching SO’s genital area, putting his hand or finger in her vagina, or exposing his penis to her.

4. [68]

   As to TO, the appellant’s evidence was that he first met her in early April 2016. He denied that TO had ever been in his unit. He denied ever touching her genital area, pulling her pants down, touching her bottom, or exposing his penis to her.

5. [69]

   The appellant affirmed that he had experienced memory loss after heavy drinking.

6. [70]

   As to why he seemed unsure in the ERISP about what had happened between him and SO, he told the jury that at the time he was “just under a bit of alcohol, but … not much”. He also denied any knowledge of the details of the allegations that had been made against him at the time he was interviewed by the police.

7. [71]

   However, as to how intoxicated he was at the time of the alleged sexual misconduct, he went on to say, “I wouldn’t say I was actually intoxicated at all. I had beers but not over intoxicated.”

8. [72]

   In cross-examination, the appellant agreed that in the ERISP he seemed to have some difficulty with his memory when asked about the topic of having touched SO. The Crown Prosecutor put to the appellant that he did not appear to have any problems remembering just about anything else over the three to four days prior to the interview. The appellant did not agree with that suggestion, and furthermore he disagreed it was the only point he had a problem with in terms of his memory and that he had problems at “various points of it”.

9. [73]

   The appellant agreed with the Crown Prosecutor that early on in the interview he had claimed he was a drinker and that because he had drunk so much he had difficulties remembering the period during which the offending was alleged to have occurred.

10. [74]

    The Crown Prosecutor then raised the inconsistency in the appellant’s examination in chief, that the appellant didn’t think he was intoxicated and put to the appellant that there really should not be anything wrong with his memory. The following exchange then occurred:

11. [75]

    The Crown Prosecutor went on to challenge the appellant’s apparent memory problems and pointed to the details which he had no difficulty remembering. The following exchange then occurred:

12. [76]

    The Crown Prosecutor then put to the appellant that he committed the alleged offences as charged on the indictment. The appellant denied the alleged offences occurred.

13. [77]

    The cross-examination ended with the following exchange:

Closing addresses

1. [78]

   In his closing address, the Crown Prosecutor in taking the jury to SO’s evidence said:

2. [79]

   The Crown Prosecutor’s then raised with the jury the appellant’s memory of “trivialities” during his ERISP and, in the following terms, submitted that the appellant was untruthful and that his memory was “fine”:

3. [80]

   The Crown Prosecutor went on to say to the jury:

4. [81]

   In his closing address, the appellant’s trial counsel in referring to the appellant’s ERISP said:

A discussion between the trial judge and counsel

1. [82]

   At the conclusion of the closing addresses, the trial judge questioned whether either party wished to raise anything and the following exchange took place:

The trial judge’s summing up

1. [83]

   In the trial judge’s summing up to the jury, her Honour did not mention the Crown’s argument that the appellant had lied in the ERISP. Her Honour’s instructions to the jury included that the Crown’s task was to prove the appellant’s guilt beyond reasonable doubt and the appellant was not required to persuade the jury as to his version of the events.

2. [84]

   After summarising the evidence in the trial, including the appellant’s ERISP, her Honour briefly referred to the closing addresses of the parties.

3. [85]

   In reminding the jury of the Crown’s closing address, her Honour said:

4. [86]

   When referring to the appellant’s closing address, her Honour said:

5. [87]

   Neither the Crown nor the appellant’s trial counsel objected to the directions that her Honour gave.

Rule 4 of the Criminal Appeal Rules

1. [88]

   As r 4 applies to the grounds of appeal, it is convenient to refer to the principles to be applied which were summarised in Roos v R [1] by Gleeson JA at [71] – [74]:

Ground 1: A miscarriage of justice was occasioned by the reception into evidence of answers given by the appellant in a police interview that he did not recall or remember committing the alleged offence against [SO]

1. [89]

   The appellant submitted that the answers given by him in the ERISP, that he did not recall or remember committing the alleged offence against SO, were not relevant and should not have been admitted.

2. [90]

   The appellant argued that to the extent that his answers were relevant, the probative value of the evidence was outweighed by the risk of unfair prejudice to him, such that the evidence ought to have been excluded.

3. [91]

   The appellant contended that his answers were given in the context of his seeking to make sense of the allegations that had been put to him. It was put to the Court that the expressed source of the appellant’s equivocations as to whether or not he had committed the offence, together with his professed lack of memory as to whether he had committed the offence, was his belief that the complainant had not been brainwashed and had no reason to lie about the allegations. It was in this context that the appellant also said that he must have been drunk.

4. [92]

   The appellant submitted that evidence about why a complainant might lie is irrelevant. Another argument was that whilst the evidence was itself adverse to the appellant in a general sense, the appellant’s answers could not in themselves be regarded as admissions of the type contemplated by the Evidence Act 1995 (NSW) as the appellant did not intend to assert the existence of any fact from which guilt might be inferred. The sole basis of the relevance of the answers as implied admissions was submitted to be if it could be shown that the appellant was deliberately lying when he said he did not recall or remember whether he had committed the offence, which could not be established on the evidence.

5. [93]

   The fact he had other memories was not of itself sufficient to prove he was lying when it was suggested he could not remember the alleged sexual misconduct, and that the articulation by the appellant of a “why would the complainant lie” question is of a kind deemed to be irrelevant.

6. [94]

   The appellant contended that the Crown’s closing address distorted the evidence, such that the there was a danger that the jury would rely on the appellant’s answers as a “makeweight” in relation to count 3. In that context, the appellant submitted that even if the evidence were relevant, the probative value of the evidence was outweighed by the risk of unfair prejudice, and the impugned answers ought to have been excluded at trial.

7. [95]

   The appellant submitted that the failure of counsel to object to the admission of the evidence served no forensic purpose and was a “gross irregularity” which occasioned a miscarriage of justice.

8. [96]

   The Crown submitted that the appellant’s statements in the ERISP in relation to his level of intoxication and to his recollection of the alleged offences, were relevant to a critical issue in the trial and were admissible as admissions under s 81 of the Evidence Act. The Crown argued that there was no basis to exclude that evidence under s 137 of the Evidence Act as the probative value of the evidence was high and exceeded any unfairly prejudicial effect the evidence may have had.

9. [97]

   Another contention by the Crown was that the statements made by the appellant in his ERISP were directly inconsistent with the evidence he gave at trial, in particular, with respect to his level of intoxication and to his statements that he was sure that he did not sexually assault SO. The Crown submitted that those statements would be admissible as prior inconsistent statements

10. [98]

    As there was no objection to the ERISP being admitted, the Crown submitted that the trial judge did not err in admitting the evidence. The Crown contended that in any event the evidence was admissible as an admission and as a prior inconsistent statement, that there was no substantial miscarriage of justice and that leave under r 4 of the Criminal Appeal Rules should be refused.

11. [99]

    It is unsurprising that the appellant’s trial counsel did not object to the tender of the ERISP in the Crown case. This was plainly a forensic consideration as the appellant was to give evidence. His testimony included an unequivocal denial of the allegation that he had sexually assaulted SO. This is to be contrasted with the uncertain responses, memory difficulties and references to his state of intoxication in the ERISP.

12. [100]

    The starting point on the admissibility of questions and answers in the ERISP is s 56 of the Evidence Act which provides that, except as otherwise provided in the Evidence Act, evidence that is relevant in a proceeding is admissible and evidence that is not relevant is not admissible.

13. [101]

    Section 55 provides that relevant evidence is evidence that, if it were accepted, could rationally affect (directly or indirectly) the probability of the existence of a fact in issue in the proceedings.

14. [102]

    The appellant’s answers in the ERISP were relevant as if accepted they could rationally affect the assessment of the probability of the existence of a fact in issue in the trial, which was whether he had sexually assaulted SO. This was particularly so after the appellant’s evidence.

15. [103]

    Following the appellant’s evidence in chief, his answers in the ERISP could have been put to him in cross-examination at least to the extent that the answers were inconsistent with his evidence.

16. [104]

    The term “prior inconsistent statement of a witness” is defined to mean in the Dictionary to the Evidence Act:

17. [105]

    Section 43(1) of the Evidence Act provides:

18. [106]

    In all likelihood procedural fairness would have required the whole of the ERISP to be played to the jury during the appellant’s cross-examination in order to place the questions and answers in their proper context so that the jury was neither misled nor misunderstood the appellant’s responses to police.

19. [107]

    The forensic advantage to the appellant that might be obtained by the admission of the ERISP in the Crown case was that it afforded him the opportunity of explaining to the jury in his evidence in chief the uncertainty in his answers to the police before he was cross-examined.

20. [108]

    The failure to object was not a gross irregularity and was capable of serving a clear forensic purpose. There was no miscarriage of justice.

21. [109]

    In any event, the appellant’s answers (see in particular answers to questions 474, 475, 476, 546 [sic], 547 [sic], 487, 489, 505, 506, 507, 520, 524, 525, 526 and 528 at [62] - [64] above) that he was “drinking all day and all night”, that he “started drinking at 5.00 or 4.00 … in the morning. As soon as [he] woke up”; that he “couldn’t tell [the police] what happened… basically the next day”; and that he “honestly, can’t say that I did or didn’t” were previous representations that were adverse to his interest in the outcome of the trial.

22. [110]

    The term “previous representations” is defined in the Dictionary to the Evidence Act to mean:

23. [111]

    The term “admission” is defined in the Dictionary to the Evidence Act to mean:

24. [112]

    The hearsay rule did not apply to the admissions and in my view they were admissible. [2]

25. [113]

    There was no reason for the trial judge to consider excluding the evidence under s 137 of the Evidence Act. No objection was taken by the appellant’s trial counsel. Furthermore, there was no danger of unfair prejudice to the appellant as he gave evidence which was inconsistent with answers in the ERISP and it was open to the Crown to cross-examine him on those inconsistencies.

26. [114]

    Leave pursuant to r 4 of the Criminal Appeal Rules should be refused with respect to this ground of appeal.

Ground 3: A miscarriage of justice was occasioned by the failure of the trial judge to direct the jury on lies or consciousness of guilt

1. [115]

   It is convenient to deal with these grounds of appeal of appeal together.

2. [116]

   As to ground 2, the appellant submitted that the Crown’s cross-examination of the appellant together with the Crown’s closing address to the jury invited consciousness of guilt reasoning. The appellant’s argument was that the Crown suggested in both contexts that the appellant had lied about having difficulty with his memory because he had a guilty mind in relation to the offence and that he could not face the truth of what he had done.

3. [117]

   Furthermore, the appellant contended that the Crown failed to identify the evidence of lies on which it intended to rely and failed to bring the matter to the attention of the court. It was said by the appellant that the mischief caused by the Crown’s failure, was to leave the appellant’s answers in the ERISP involving some memory deficit to be selected by the jury as it chose as evidence of his guilt. In that context, the appellant submitted that a substantial miscarriage of justice occurred as there were significant inconsistencies in the evidence and the Crown’s submissions on consciousness of guilt could have had the effect of denying the appellant the chance of an acquittal.

4. [118]

   As to ground 3, the nub of the appellant’s submission was that the circumstances of this case required a direction that went beyond a Zoneff direction, but not to the extent of an Edwards direction, and that the failure by the trial judge to give such a direction occasioned a substantial miscarriage of justice, notwithstanding her Honour’s enquiry of the appellant’s trial counsel and his response that he did not want the trial judge to say anything.

5. [119]

   The appellant submitted that the appellant’s trial counsel should have asked for a direction “that the submissions that had been made by the Crown that he lied went to his guilt couldn’t be used for that purpose”.

6. [120]

   The appellant argued that the trial judge correctly apprehended that the Crown’s closing address crossed the line into consciousness of guilt reasoning without obtaining an advance ruling. The appellant contended that it was the duty of the trial judge to give such a direction notwithstanding the views of his trial counsel as it was her Honour’s principal duty to secure a fair trial.

7. [121]

   The Crown contended that the central question at the heart of both grounds 2 and 3 was whether or not the Crown Prosecutor was relying on consciousness of guilt reasoning and whether that was the focus of their closing address.

8. [122]

   The Crown argued that the focus of the closing address was on credibility, that his lies were relied on to adversely affect the credibility of the appellant and to contrast his credibility with the credibility of SO.

9. [123]

   The Crown contended that the context of the prosecutor’s submissions in respect to the appellant’s answers in his ERISP was to address each aspect of the appellant’s credit, including the unlikelihood he would have forgotten what happened two to three days earlier, his detail in respect of other events that occurred during that period, and his inconsistent answers as to his intoxication. The Crown submitted that the use of the lies was not to engage in consciousness of guilt reasoning, not to corroborate other evidence in the Crown case, and an Edwards direction was not required.

10. [124]

    Another argument by the Crown was that although the the language used by the Crown Prosecutor caused concern, the trial judge was cognisant of the issue and asked if either party wanted directions on the issues of lies or consciousness of guilt. The Crown submitted that the trial judge acted in accordance with authorities by raising the issue with the parties. Furthermore, the Crown submitted that the appellant’s trial counsel positively objected to the proposed directions and leave to appeal should be refused pursuant to r 4 of the Criminal Appeal Rules.

11. [125]

    The Crown contended that the active opposition to directions on the issues of lies or consciousness of guilt is a strong indication that in the atmosphere of the trial and in the circumstances there was no miscarriage of justice and no error of law in failing to give the direction. The Crown also pointed out that the trial judge was aware that a tactical forensic decision was being made by defence trial counsel and there was no indication by defence counsel that was not an accurate assessment of the reasoning process at that time.

12. [126]

    The appellant identified the direction said to have been required at trial as follows:

13. [127]

    It is unclear what was meant from the appellant’s further submission that the circumstances of the case required a direction that went beyond a Zoneff direction but not to the extent of an Edwards direction. In Edwards v The Queen, [3] the majority (Deane, Dawson and Gaudron JJ) observed (at 210-1):

14. [128]

    The general rule is that an Edwards direction should only be given if the prosecution contends that a lie is evidence of guilt, in the sense that it was told because 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. [4]

15. [129]

    Where the prosecution does not contend that the lie had been told out of consciousness of guilt, it is usually sufficient to guard against the possibility of the jury mistaking the effect of any evidence of lies as evidence of consciousness of guilt to direct the jury in the terms enunciated in Zoneff:

16. [130]

    The High Court emphasised in Zoneff that “rigid prescriptive rules as to when and in what precise terms an Edwards-type direction should be given cannot be comprehensively stated”. [6] Furthermore, it is important to bear in mind that it is not always necessary for a trial judge to give a direction on lies. The applicable principle is set out in Dhanoa v The Queen: [7]

17. [131]

    The appellant’s contention that a substantial miscarriage of justice has occurred faces three hurdles. First, no objection was made by the appellant’s trial counsel to anything that was said in the Crown Prosecutor’s closing address. Secondly, no direction was sought in the terms articulated in this Court to be given by the trial judge nor was any direction sought on lies at all. Thirdly, this was not an omission due to inadvertence but a choice taken by the appellant’s trial counsel when he was expressly asked by the trial judge whether he sought anything in relation to lies and his reply included (see [82] above):

18. [132]

    However, the first matter to be determined is whether the Crown Prosecutor’s cross-examination of the appellant and his closing address gave rise to the risk of consciousness of guilt reasoning in the minds of the jury.

19. [133]

    In my view, there are a number of aspects of what was said by the Crown Prosecutor, which go beyond the Crown’s submission that the Crown Prosecutor relied on the asserted lies to attack the appellant’s credibility and to contrast his credibility with SO.

20. [134]

    The risk of consciousness of guilt reasoning arises from the following passages in the Crown’s closing address (see [79]-[80] above):

21. [135]

    The Crown Prosecutor’s submissions that the appellant could not bring himself to admit “something so shameful” built upon the final question in cross-examination:

22. [136]

    The trial judge apprehended the possibility that the Crown’s closing address might invite consciousness of guilt reasoning. In the exchange quoted at [82] above, her Honour put to the Crown Prosecutor that what was said in his closing address came “rather close if not crossing the line to a consciousness of guilt”. Although the Crown Prosecutor considered that he had not crossed the line, that was not the end of the matter. The ultimate question for her Honour to consider was the way the jury might use the evidence. As Kirby J observed in Zoneff at [71]:

23. [137]

    It appears that the trial judge considered that she was relieved of further analysis of the Crown’s closing address by the appellant’s trial counsel’s request that nothing be said to the jury about lies. It is clear that her Honour acted on that request and did not direct the jury about lies. Neither the Crown Prosecutor nor the appellant’s trial counsel objected to her Honour’s directions.

24. [138]

    The approach taken by the appellant’s trial counsel is capable of being explained for bona fide forensic reasons. It is not unknown for defence counsel to ask trial judges to not give directions on suggested lies so as to limit the thrust of a prosecutor’s contention of the significance of the suggested lies. Her Honour acknowledged that such a forensic choice can be made in her answer to the appellant’s trial counsel:

25. [139]

    However, without any direction on the subject of lies, there was a real risk that the jury would use the suggested lies as proof of the appellant’s guilt and not confine the suggested lies to an assessment of his credibility. Furthermore, the jury was deprived of guidance of what was required to make a finding of fact that a lie had been told.

26. [140]

    Nevertheless, courts have often held that accused persons are bound by the forensic choices made by their lawyers. In Nudd v The Queen, [8] Gleeson CJ said at [9]:

27. [141]

    In The Queen v Taufahema, [9] Kirby J said at [168]:

28. [142]

    A forensic choice taken at trial may lead to a conclusion that a miscarriage of justice has not been demonstrated. As Gaudron J explained in TKWJ v The Queen: [10]

29. [143]

    Notwithstanding the significance of the forensic choices made at trial, the overriding obligation of a trial judge is to ensure a fair trial of an accused in the way explained by Barwick CJ in Pemble v The Queen [11] (at 117-118):

30. [144]

    In Stevens v The Queen, [12] the failure to direct on the defence of accident under s 23(1)(b) of the Criminal Code (QLD) when the accused was charged with murder was held by a majority (McHugh, Kirby and Callinan JJ, Gleeson CJ and Heydon J dissenting) to have occasioned a miscarriage of justice in the circumstances of that case. In referring to the duty of a trial judge, Kirby J said at [68]:

31. [145]

    In CTM v The Queen, [13] Kirby J emphasised that the Pemble obligation forms part of a trial judge’s duty of ensuring fairness to an accused at [112]:

32. [146]

    In James v The Queen [14] the trial judge declined to leave an alternative verdict to the jury. The accused’s counsel was taken to have agreed with the trial judge’s assessment and the jury was not instructed on the availability of the alternative verdict. The accused appealed against his conviction, contending that the trial judge’s failure to instruct the jury on the availability of the alternative had occasioned a substantial miscarriage of justice. The plurality (French CJ, Hayne, Crennan, Kiefell, Bell and Keane JJ) said at [38]:

33. [147]

    Although the authorities cited do not involve a lies direction, I do not understand that the obligation to ensure a fair trial is confined to the failure to direct on available defences or alternative verdicts.

34. [148]

    There is no doubt that the rule in Pemble creates difficulties for trial judges. Justice Virginia Bell AC in a recent paper described the discharge of the Pemble obligation as a “trap for young players”. [15] However, trial judges must be mindful that there will be occasions when justice to the accused will require a direction to be given, notwithstanding a forensic choice of defence counsel.

35. [149]

    When a trial judge apprehends that the rule in Pemble obliges a direction inconsistent with defence counsel’s chosen strategy or against defence counsel’s express wish, procedural fairness requires that the proposed direction be raised with the parties to ensure that there is no misunderstanding and in the circumstances a fair trial cannot be secured without the direction.

36. [150]

    In the way the appellant’s trial was conducted by the Crown Prosecutor, the ERISP acquired considerable significance. Other than what the jury might make of the tendency evidence, the trial was essentially “a word against word case”. In these circumstances, it is likely that the jury would look around for evidence tending to support the allegation.

37. [151]

    The thrust of the Crown Prosecutor’s closing address was that the jury would find support for the prosecution case in the appellant’s answers in the ERISP which were the answers of a guilty man. This is not a case where the suggested lies went to a peripheral issue in the trial, but were central to the allegation of sexual assault.

38. [152]

    Without instruction from the trial judge on the subject of lies, there was a real risk that the jury might accept without question the Crown Prosecutor’s suggested lies were in fact lies and engage in impermissible consciousness of guilt reasoning. The jury received no instruction whatsoever on the subject of lies.

39. [153]

    The trial judge was aware that the Crown Prosecutor’s address gave rise to the possibility of consciousness of guilt reasoning. Her Honour did enquire of the appellant’s trial counsel whether anything was sought on lies and her Honour was asked not to say anything. In my respectful opinion that should not have been the end of the discussion. I do not intend any criticism of the trial judge. Her Honour was placed in a difficult position.

40. [154]

    Where the risk of consciousness of guilt reasoning arises from the approach taken by the Crown, it is difficult to envisage how an accused can receive a fair trial without anything being said to the jury on the subject of lies.

41. [155]

    Despite the request that no direction on lies be given, I have concluded that justice to the appellant required the trial judge to give a direction to the jury which guarded against the misuse of the suggested lies. Taking into account the forensic choice of trial counsel a brief direction could be given. In my view, the following direction was required:

    1. (1)

       It was a matter for the jury to decide that a lie (or lies) had been told;

    2. (2)

       In order to decide that a lie (or lies) had been told, they had to be satisfied that the appellant said something that was untrue and at the time of making the statement knew that it was untrue;

    3. (3)

       If they decided a lie (or lies) had been told, they could not use it in support of the conclusion that the appellant was guilty and;

    4. (4)

       The only use of a lie was in their assessment of the appellant’s credibility.

42. [156]

    I would uphold ground 3. I am not persuaded that the Crown Prosecutor’s conduct by itself amounts to a miscarriage of justice. I would reject ground 2.

43. [157]

    Although the Crown Prosecutor’s closing address as to the ERISP went only to counts 3 and 4, the Crown’s allegation of the sexual assault of TO was essentially a “word against word case”. The appellant gave evidence in the trial denying the allegations of sexual assault. The real risk of the jury engaging in impermissible consciousness of guilt reasoning had the potential to significantly undermine the appellant’s credibility in the eyes of the jury.

44. [158]

    In my opinion, the appellant has established that he has lost a chance fairly open of being acquitted on counts 1-3.

45. [159]

    I propose the following orders:

    1. (1)

       Grant leave to appeal under r 4 of the Criminal Appeal Rules in respect of ground 3.

    2. (2)

       Allow the appeal.

    3. (3)

       Quash the convictions and sentences.

    4. (4)

       Order that there be a re-trial of the appellant.

    5. (5)

       Remit the matter for mention at the District Court at Sydney on 11 October 2019 at 9.30am.

46. [160]

    N ADAMS J: I have had the advantage of reading the judgment of Price J in draft. I agree with the orders proposed by his Honour for the reasons he has provided.

47. [161]

    It is to be accepted that the trial judge was put in a difficult position when defence counsel expressly stated that he did not wish there to be a direction on lies. The problem is that the Crown Prosecutor’s closing address at the trial referred a number of times to the fact that the (then) accused was lying in his ERISP when he said he could not remember what happened at the relevant time. The Crown Prosecutor addressed the jury in terms that the appellant’s “ridiculous” answers “reveal his guilt”, that they were the “answers of a guilty man”, that “of course he was lying” and that the reason he was lying was that the truth was “so shameful”.

48. [162]

    In light of the way the Crown Prosecutor addressed the jury on lies, it seems to me that there was a real risk that the jury would use the “lies” about the (then) accused’s poor memory as consciousness of guilt if not given an appropriate warning. In circumstances where the Crown did not rely upon these lies as consciousness of guilt, the jury should have been given a direction which included a warning that they could not follow a process of reasoning “to the effect that just because a person is shown to have told a lie about something, that is evidence of guilt”: Zoneff at [23].