Criminal Law - Appeal and new trial - Miscarriage of justice - Particular circumstances amounting to miscarriage - Misdirection or non-direction - Non-direction - Prosecutor led evidence that police left calling cards at accused's home, he failed to attend appointments and declined to speak to police - Integrity of police investigation not in issue and evidence inadmissible - Jury may have reasoned accused was avoiding police and acted out of consciousness of guilt - Prosecutor relied on accused's failure to speak to police as providing opportunity to tailor his evidence - Trial judge failed to direct jury no adverse inferences could be drawn from exercise of right to silence - Departure from trial according to law - Miscarriage of justice established - Other irregularities in trial process - Proviso inapplicable.

Criminal Law - Appeal and new trial - Miscarriage of justice - Particular circumstances amounting to miscarriage - Improper admission or rejection of evidence - Inadmissible, irrelevant, and prejudicial evidence - Cross-examination of accused elicited hearsay opinion evidence - Evidence that accused made a statement about relevant events to friends and received advice it was incriminatory - Relied on by prosecutor in closing address for hearsay purpose - Trial judge failed to direct jury as to impermissible use of evidence - Real risk jury misused evidence for hearsay purpose - Risk of speculation about witnesses not called given lack of direction by trial judge - Multiple irregularities in trial process without correction or direction - Miscarriage of justice established - Other irregularities in trial process - Proviso inapplicable.

Evidence Act 2001, ss 48(4), 59(1), 60(1), 76, 89, 103, 137

Baini v The Queen [2012] HCA 59, 246 CLR 469

Brawn v The King [2025] HCA 20, 99 ALJR 883

Castle v The Queen [2016] HCA 46, 259 CLR 449

Dent v The Queen [2017] NSWCCA 166

Edwards v The Queen (1993) 198 CLR 383

Edwards v The Queen [2021] HCA 28, 273 CLR 585

Glennon v The Queen [1994] HCA 7; (1994) 179 CLR 1

Hampton v The Queen [2022] NTCCA 7, 387 FLR 1

Hoang v The Queen [2022] HCA 14, 276 CLR 252

Hofer v The Queen [2021] HCA 36, 274 CLR 351

Huxley v The Queen [2023] HCA 40, 98 ALJR 62

JAGD v Tasmania [2021] TASCCA 16, 34 Tas R 250

Kalbasi v Western Australia [2018] HCA 7, 264 CLR 62

Katsuno v The Queen [1999] HCA 50, 199 CLR 40

Krakouer v The Queen [1998] HCA 43, 194 CLR 202

Mahmood v Western Australia [2008] HCA 1, 232 CLR 397

MDP v The King [2025] HCA 24, 99 ALJR 969

Nudd v The Queen [2006] HCA 9, 80 ALJR 614

Petty v The Queen (1991) 173 CLR 95

R v Murray (1987) 11 NSWLR 12

R v Pelly [2015] SASCFC 25, 122 SASR 84

R v Reeves (1992) 29 NSWLR 109

R v Roberts [2011] SASCFC 117, 111 SASR 100

Sanchez v The Queen [2009] NSWCCA 171, 196 A Crim R 472

Taylor-Joycey v The Queen [2021] NSWCCA 29

Ward v The Queen [2022] NSWCCA 271

Weiss v The Queen [2005] HCA 81, 224 CLR 300

Wilde v The Queen [1988] HCA 6; (1998) 164 CLR 365

Zoneff v The Queen [2000] HCA 28, 200 CLR 234

Judgment Number: [2025] TASCCA 16

1. Leave to appeal against conviction granted.
2. Appeal allowed.
3. Conviction for rape and sentence imposed on 7 December 2023 quashed.
4. Appellant to be retried on indictment.

1. On 24 October 2023 the appellant, Babatunde Adelegan, was found guilty of one count of rape by unanimous verdict of a jury. He had faced the one charge, that of rape contrary to s 185(1) of the Criminal Code_,_ the particulars of which were that:

"At Lenah Valley in Tasmania on or about 30th day of January 2021, [the appellant] had vaginal sexual intercourse with [the complainant], without her consent."

1. Immediately following the verdict, the trial judge, Geason J, heard sentencing submissions and the matter was adjourned for sentence. On 4 December 2023, due to Geason J's unavailability, the matter was relisted before Martin AJ. Further sentencing submissions were made to his Honour. On 7 December 2023, Martin AJ convicted the appellant and imposed a sentence of four years and six months, with the execution of the balance after two years and three months being suspended on conditions.
2. The appellant appealed to this Court. He challenged both his conviction, in the sense of the finding of guilt, and the sentence. On 2 October 2024, the Court granted leave to appeal against the conviction, allowed the appeal, quashed the sentence and ordered a retrial. The Court advised it would later publish reasons. These are those reasons.

1. The State's case was that the complainant and the appellant had arranged to meet on the evening of Friday, 29 January 2021 after exchanging messages on a dating application and then Instagram. They spent the evening drinking alcohol together at different venues in central Hobart. In the early hours of the Saturday morning, the complainant mentioned she did not think it was safe to drive home. She lived quite a distance from the city. The appellant said she could sleep at his house which was in an inner Hobart suburb. They went to his home. The complainant fell asleep in the appellant's bed and awoke to find him having sexual intercourse with her; his penis was in her vagina.
2. The defence case was that the sexual intercourse was consensual, and happened before the complainant fell asleep. The appellant gave evidence that the complainant later woke up and then accused him of raping her. The sole issue at the trial was whether the State had established a lack of consent.
3. In addition to the complainant, the State called four witnesses: Fahad Rashid - an Uber driver who had taken the complainant from the appellant's home back to the nightclub where they had last been, "Grace Smith" (not her real name) - a friend of the complainant's to whom a complaint of rape was made the next day, Catherine Graham - a forensic nurse, and Detective Senior Constable (DSC) Sharee Maksimovic.

1. There are four grounds of appeal. Those which relate to conviction are specific in nature and arise from the evidence of DSC Maksimovic, the cross-examination of the appellant, and the trial judge's directions to the jury, or at least the lack thereof. There is no complaint that the verdict is unreasonable or cannot be supported having regard to the evidence. Leaving aside a complaint that the sentence was manifestly excessive (ground 3) the grounds are as follows.

"1 The learned trial judge erred in law in permitting cross-examination of the accused by the Crown prosecutor in relation to his failure to speak to the police;

1. There was a miscarriage of justice in that the applicant was deprived of a fair trial because of the misconduct of the Crown prosecutor, in that she cross-examined the accused in relation to his failure to speak to the police, and about an allegedly inconsistent written statement made by him to his friends, despite never producing the said statement to the accused or to the Court;

1. That the court erred in failing to direct the jury that they should not speculate as to what evidence witness [sic] who were not called might have given."

1. The complainant gave evidence in the courtroom. During that evidence, she said she met the appellant on Tinder; they spoke through messages and continued talking on Instagram for a number of weeks. She confirmed that she had told the appellant about her previous experience with post-traumatic stress disorder (PTSD) and that it manifested as a freeze response in intimate situations with "full body contact". She recalled telling the appellant that, "We need to take things really slowly".
2. The complainant said that she met the appellant at the Hanging Garden bar/music venue shortly after 6.00 pm. They got to know each other and stayed drinking and dancing until about midnight. The appellant's friend, Danny, joined them at about 8.00 pm. After midnight, the three of them went to the bar Cargo in Salamanca Place. The complainant drove her car there from the Hanging Garden. Her intention was to drive home.
3. At Cargo, the complainant and the appellant continued dancing. The complainant considered that the appellant was understanding about her concerns about intimacy. After a couple of drinks, they started kissing; the complainant said in evidence that the appellant made her feel comfortable. She said there was a number of occasions during the evening where she froze up, but that on each occasion the appellant noticed immediately, backed off and, on a couple of occasions, took her outside to make sure she was okay. The complainant said the appellant appeared "heartfelt" and she felt safe.
4. The three people stayed at Cargo until about 2.00 am. At that time, Danny left separately. The complainant said that she did not think she was able to drive home safely and accepted an offer from the appellant to come back to his home. The appellant and the complainant travelled to Lenah Valley in either an Uber or a taxi.
5. The appellant invited the complainant to sleep in his bed. She then took off her socks and shoes and placed herself under the covers on the bed and went to sleep. She gave evidence of being vaguely aware of the appellant being next to her but said that she was curled up in a foetal position, away from the appellant, and went to sleep. Her evidence was that her jeans were high waisted, and the zip and the button were done up. The complainant said that she went to sleep but she was aware of some jostling in the bed, similar to an experience when sleeping in the same bed as someone else. Her evidence was that she woke up eventually and noticed that her pants were pulled down and that the appellant was having sexual intercourse with her from behind. She described the appellant's penis as going in and out of her vagina.
6. The complainant gave evidence that she was in a state of disbelief for a few seconds and then reacted strongly. She told the appellant that she was angry with him because she had trusted him. The complainant said that when she got out of bed, she pulled her pants up and said to the appellant, "What have you done, what have you done". Then she said, "You have effing raped me, you know what this is". She said that the appellant then got onto his knees and that she "whacked" him. According to the complainant, his response was, "But you were sleeping in my bed". She explained to him that by "rape" she meant a lack of informed consent. Her evidence was that she did not think the appellant had ejaculated.
7. The complainant said she then put on her shoes and socks and organised for the appellant to call an Uber so that she could go back to her car. She did this because her mobile phone battery was dead. The Uber driver took her back to Cargo. He asked her how her night was. She was so distraught that she told him that she had been raped. After coming to her car, she drove off for a short distance, then parked, hailed a cab and went home that way. This was at about 3.50 am. She did not think that she was in a good state to drive.
8. On waking up the next morning, Saturday, 30 January 2021, she exchanged a series of messages with the appellant. The messaging went on into the following day. During those messages, the appellant made comments, including the following:

"I'm really sorry. It was the alcohol. I just got back to my senses. Forgive me, I'm not that kind of guy.

Have mercy please. I don't know what I would do, I'll be dead. I've always been a good guy, I don't know what came over me."

"I had zero control of what I was doing. If I could make things right I will. I noticed the PTSD and I'm truly really sorry. Is there any chance I make it right, I'm honestly a good guy, please ... I have been thinking all day."

1. During further messaging on 31 January 2021, the complainant explained the meaning of rape and consent. He implored her not to report him. He said, "You will make me do something stupid to myself." The appellant also rang the complainant. He was apologetic and when confronted with the accusation of rape, said he "would not just have put it in that frame." On the same day, the complainant messaged Ms Smith and told her she had been raped.
2. On the following Tuesday, the complainant reported the matter to the police. She decided to refuse a medical examination as she thought it would have been a harrowing experience for her, and she did not want to go through with something like that.

1. Mr Rashid, the Uber driver, gave evidence that when the complainant got into his car, she was crying. She said someone had raped her. He said he would take her to the police station, but she said to drop her off in Salamanca Place where she parked her car. He said it was about two minutes before she started crying. The evidence from Ms Smith was that the complainant had sent her a message saying the date had gone "the worst way possible", and that she was coping so it was not an emergency. Ms Smith asked the specific and leading question, "Were you raped?", to which the answer was "Yes". Ms Smith did not recall being told anything about the circumstances.
2. Ms Graham told the jury that she received a telephone call from DSC Maksimovic who had the complainant with her. Ms Graham understood the alleged assault had taken place about four days earlier. The essential question was whether a forensic examination had any value. She learned that the complainant did not think the appellant had ejaculated and that she had no injuries she was aware of. Ms Graham agreed that she had been told that the complainant's underwear worn after the alleged assault had been washed. This reduced the likelihood of forensic evidence being able to be detected.

1. The appellant gave a similar account regarding the background to the meeting, commencing with making contact with the complainant on Tinder. He said that during dancing at Cargo, the complainant kissed him and rubbed his penis. He also said that the complainant had asked to stay at his place because she had had too much to drink to drive home. He said they were kissing in the transport on the way home to his place and that she was rubbing his legs, towards his penis.
2. When the couple arrived at his residence, he showed her where his room was and he followed her to his room. He said that the complainant fell to the ground, and he picked her up. He said they kissed and took off their shoes and socks. He said he took off his clothes. He said he noticed that the complainant struggled to take off her jeans, so he pulled them off. He said that she did not have underwear on. He said they got into bed and hugged and kissed. The appellant described a consensual act of sexual intercourse, where they were facing each other and lying on their sides. He said that she held onto his thighs, and it lasted for about two minutes before he ejaculated. He said that he then fell asleep and woke to the complainant aggressively picking up her pants and shouting at him. He denied to her that he had raped her. He said he felt shocked, and he said that the complainant told him to order an Uber, which he did.
3. The appellant explained the content of the messages he sent to the complainant the following day. In summary, it was a matter of his culture. He said he was a Nigerian guy. Nigerians would always say sorry if something happened whether or not it was their fault. He gave an example of saying sorry to his partner if she stumbled or tripped. He said he had to say sorry to the complainant, and made reference to the alcohol to try to "give her some kind of clearness" and calm her down so they could have a proper conversation; "...she wasn't trying to give me the time of day." He was worried about what would happen regarding his ability to stay in Australia and about the reaction of his father who had lent him money to study here. In relation to the "zero control" comment, he said they were both having an enjoyable night; he thought he should probably have done more to stop them doing what they did. As a man he thought he had the bigger responsibility to be in control, particularly in relation to having sexual intercourse with someone on a first date. He blamed himself for doing that, and did not want to share the blame; he thought "trying to put it on her will only make matters worse." He was trying to de-escalate the issue as much as he could.
4. During cross-examination, the appellant accepted that the complainant had immediately accused him of rape, and that he understood it was a very serious allegation. He said that in response to that accusation, he thought it was not rape and had told the complainant that he did not rape her. He repeated that he had first denied raping her, and denied first saying, "You were sleeping in my bed." Otherwise, in relation to his explanation of the conversations and messages, it was simply put to him that it was a made-up excuse to explain "what are very clearly admissions." He denied this. Although challenged about his explanation for his apologetic behaviour, the appellant was not challenged on his evidence that it was essentially a matter of his culture to apologise, irrespective of the absence of fault.

1. The starting point is the evidence of DSC Maksimovic. Her evidence was that the complainant reported to police on 2 February 2021 that she had been raped. DSC Maksimovic took a statement from her in the form of a statutory declaration. The complainant gave her an audio recording and screen shots of messages. She then spoke to Ms Smith and did some investigatory work in relation to Mr Rashid. On 8 February she went with another detective to the appellant's home. Nobody was there and she left a calling card. The appellant contacted the police station and spoke to another officer. She called the appellant after the message had been relayed to her. She told him she "just needed to speak to him for a little bit" and he told her he would get advice and get back to her.
2. On 14 February DSC Maksimovic returned to the appellant's home with the same result as before; she again left a calling card. The appellant contacted her later that afternoon. An appointment was made for the following morning but he called shortly after and said that he could not make it. She went to his home that afternoon in possession of a search warrant referrable to a mobile phone and a red patterned scarf. When the warrant was shown to the appellant, he produced his phone and took her to the bedroom where he showed her a red scarf. He said that it was his, and that the one she was looking for had been left at Cargo. The scarf at his home was later confirmed not to be that of the complainant.
3. DSC Maksimovic established the identity of "Danny" as Danny Akpor. She spoke to him on 13 February, but he declined to provide a statutory declaration. She also spoke to Mr Akpor's partner, Bonnie Francis, by telephone. Ms Francis said she was not comfortable in providing a statutory declaration. That was the extent of the evidence about those conversations, and the witness was not cross-examined on that evidence. DSC Maksimovic did agree that she had seen a message from the appellant to Mr Akpor at 2.25 am on 30 January 2021 saying that he was about to go home, to which Mr Akpor responded with a "thumbs up". In re-examination, DSC Maksimovic agreed that from the forensic examination of the appellant's phone, she could see a number of messages between Mr Akpor and the appellant over the days following the allegation. Then counsel for the appellant objected on the basis that it did not arise out of cross-examination and Crown counsel did not pursue the matter.
4. The next relevant passage of evidence comes from the appellant's cross-examination. He agreed that he did discuss the matter with his friend Danny; he thought the next day and there was some messaging. He agreed that he told him what had happened. He also spoke to him face to face. The following exchange occurred:

"You wrote down a statement to show him what your version was of what had happened, didn't you?......You mean, in - like a WhatsApp message?

In some form, you provided him with an explanation, in written form, of what you said happened, didn't you?......Yes, I did.

Yes. And he texted you and told you that your statement is very implicating, and you do make things hard for yourself, didn't he?......Yes, he did.

Yes, and you agreed to show that written statement to Bonnie, his partner?......Yes.

And the idea was that she would review your version of events and give you an opinion about what you said occurred?......Yes.

Yes, and in those communications, Danny told you that Bonnie would tell you a few things that don't sound right, do you agree that he sent you that message?......I can't quite remember that.

Okay. Do you deny that he told you that she would review your statement and tell you what didn't sound quite right?......At the time, I was not done with my statement, I was just writing a rough write-up, at the time. So, it wasn't an elaborate or complex statement.

No. But he'd already told you that it was very implicating, and that Bonnie could give you some feedback about your statement?......The word 'implicating', when we used those words, doesn't mean that it's going to put you in trouble or whatever. Like, something - sometimes, like, I spoke to my partner the other day, then had a - you know, do you want to patronise, for example, using the word 'patronise'. In my place, we use it for buying something.

Mr Adelegan, you asked Bonnie to review the statement that you prepared?......I only sent them the statement.

Yeah, and you intended for Bonnie to review it?......Yes, for her to read what had happened.

And do you - you asked that she highlight the part that doesn't make sense, didn't you?......'Cause of the way I speak, and the words -

Did you - no, just answer the question. Did you ask her to highlight the part that didn't make sense?......Yes.

Yes. And the idea was that you were telling your friends a version of what had happened, and they were telling you whether it made sense or not?......At the time, yes.

Yes, and I want to suggest that you changed your version, because you were concerned that people wouldn't accept that you had not had sex with [the complainant] when she was asleep?......I didn't change the version, I only elaborated more, because it was very short - was a very short write-up I did.

You were aware that your friends had concerns about the statement that you'd provided them in the days following the sexual assault, weren't you?......Like I said, I elaborated on the statement. I didn't essentially change the statement. It was very short at the time.

Okay. You were aware, in February of 2021, that police wanted to speak to you about an allegation made by [the complainant]?......Yes.

You had a number of calling cards left for you at your home address?......The job I was in at that time was a -

No, I'm not asking you where you were, do you agree that there were calling cards - ?......Yes.

And that you declined to make a statement to the police?......As advised by Legal Aid.

All right, but the fact is that you didn't give a version of your events at the time, did you?......I declined, yes." [Emphasis added]

1. Counsel who then appeared for the appellant objected. He said that the appellant had chosen not to make a statement to police, as it was his right. He suggested that there was an accusatorial tone being adopted, which was plainly designed to suggest to the jury that there was something wrong in what he did. He submitted that this was unfair. The trial judge said:

"I don't think that is a fair objection, I don't think that is the suggestion. The fact is that he chose not to make a statement. The fact is it was his right not to make a statement. That doesn't mean the questioning is objectionable in my view. I don't discern an accusatorial tone at all. Yes, please."

"You agree that you did not in fact make a statement to the police in February 2021?......Yes.

And that this in - your evidence, today, is in effect the first time that you've been able to put on the record your version of what occurred?......Yes.

And I want to put to you that you've had two and a half years since [the complainant] first accused you of rape, to have a think about the evidence that's been gathered against you. Would you agree with that?......Both ways, yes.

Sorry, your answer is yes?......That's for both ways. Yes. For her and for me, we've had time, about three years, yes.

Yes, but you agree that she made a statement to police at the time?......Yes.

I want to put to you that you've had two and a half years since the allegation arose to think about what version you're going to present to the Court today?......Yes.

Yep. And I want to put to you that, during that time, you've been provided with the evidence that was gathered in the investigation, including a number of text messages and Snapchat messages?......Yes.

Yes, and I want to suggest to you that you have made up an excuse to explain away what very clear admissions to wrongdoing in your exchanges are with [the complainant]?......No." [Emphasis added]

1. These somewhat interrelated matters of the appellant's discussions with Mr Akpor and Ms Francis and the fact that he did not speak to police next emerged in Crown counsel's closing address to the jury. She said:

"I suggest he [the appellant] has tailored his evidence to present himself in a better light and is not telling the truth about what happened that night. The accused chose not to speak to police at the time, as is his right. There is no criticism of him for that, but the fact is that the first time he put on public record what his version was [in evidence] on Friday, two and a half years after the allegations first arose. He has had a lot of time to think about this, and a lot of time to tailor a story to fit.

His evidence is full of contradictions and it's contrived. It's been made to fit. Right from the start, he was getting input from his friends. He told his friend Danny, who said that his account was implicating and he did not do anything to help himself. You might remember that I put that to him in cross-examination, and he accepted that, Danny had said that to him. And he agreed that he then had passed on his statement to Danny's partner, Bonnie, and asked her to review it, and to highlight the parts that don't make sense. Well I suggest he has been rewriting the script since 2021."

1. In closing, counsel for the appellant reminded the jury that they did not have anything before them as to what the appellant had said to Mr Akpor. He reminded the jury that the appellant did not agree with the proposition that what he had said to Mr Akpor had changed. He also reminded the jury that questions put to the appellant such as that he had time to think about things, and his version in evidence was different from what he previously said, were just questions. He pointed out to the jury that Crown counsel had made it clear she was not arguing against the appellant's right to remain silent when he spoke to the police, but what was being asked of them was to conclude that two and a half years of waiting until he testifies "is all the better for him", with the time spent thinking about things. Counsel continued:

"Well, Mr Adelegan has no control over when a matter comes on for trial in the Supreme Court. Once he has refused to make a statement to the police, as is his right, when is he supposed to ... put on the public record his version? His trial could have happened three weeks later theoretically if things had been done quickly. Theoretically, it could happen very quickly. Two and a half years is simply what it means for a trial in the Supreme Court."

1. As earlier established, neither Mr Akpor nor Ms Francis was called to give evidence. The trial judge was not asked to give any direction in relation to the issue of the appellant not speaking to police, or about his discussions with Mr Akpor and Ms Francis or their absence from the trial. The trial judge did not give any such directions.

Ground 1 - permitting cross-examination on the failure to speak to police

1. As to the terms of the ground, Mr Coates SC for the respondent described the issue as not whether the judge erred in permitting the cross-examination, but whether it caused a miscarriage of justice, which it would have done if the jury drew an adverse inference from the fact of not speaking to police. That must be correct. Of course, the question had been asked and the answer given before counsel objected. So characterised, and in light of that, the ground can properly be expanded to include the failure of the trial judge to warn against drawing any adverse inference from that failure.
2. Although not of direct application in this case, s 89 of the Evidence Act 2001 should be noted. That is in the following terms:

(1) In a criminal proceeding, an inference unfavourable to a party must not be drawn from evidence that the party or another person failed or refused -

put or made to the party or other person in the course of official questioning.

(2) Evidence of that kind is not admissible if it can only be used to draw such an inference.

(3) Subsection (1) does not prevent use of the evidence to prove that the party or other person failed or refused to answer the question or to respond to the representation if the failure or refusal is a fact in issue in the proceeding.

(b) an inference relevant to a party's credibility."

1. The section is confined to questions put or representations made in the course of official questioning, but it reflects the state of the general law. That law is primarily derived from the joint judgment of Mason CJ, Deane, Toohey and McHugh JJ in Petty v The Queen (1991) 173 CLR 95 at 99. Their Honours said that the right to silence means that it should not be suggested in any way that the exercise of the right to silence may provide a basis for inferring a consciousness of guilt, and gave as an example that the Crown should not lead evidence, that when charged, the accused made no reply: "Nor should it be suggested that previous silence about a defence raised at the trial provides a basis for inferring that the defence is a new invention or is rendered suspect or unacceptable."
2. Later, at 100-101, their Honours acknowledged the theoretical distinction between the two modes of making use of an accused's earlier silence; inferring a consciousness of guilt and denying credibility to a later defence or explanation, but went on to say:

"However, we doubt that it is a distinction which would be observed in practice by a jury, even if they understand it. And, what is of more importance, the denial of the credibility of that late defence or explanation by reason of the accused's earlier silence is just another way of drawing an adverse inference (albeit less strong than an inference of guilt) against the accused ... . Such an erosion of the fundamental right should not be permitted. Indeed, in a case of where the positive matter of explanation or defence constitutes the real issue of the trial, to direct the jury that it was open to them to draw an adverse inference about its genuineness from the fact that the accused had not previously raised it would be to convert the right to remain silent into a source of entrapment. Accordingly, the distinction is, in our view, unsound."

1. In R v Reeves (1992) 29 NSWLR 109 at 114, Hunt CJ at CL (Mahoney JA and Badgery-Parker J agreeing) said that where evidence discloses that an accused has exercised his right of silence, a direction should invariably be given, as soon as the evidence is given and if necessary again in the summing up, to make it clear to the jury that the accused had a fundamental right to remain silent and the exercise of that right must not lead to any conclusion of guilt. It should be noted that, as observed in Reeves at 115, in some cases evidence of the exercise of the right to remain silent may have relevance and be admissible. As explained in Hampton v The Queen [2022] NTCCA 7, 387 FLR 1 at [50]- [51], for questioning about the exercise of the right to be permissible, there must be a real basis for supposing the integrity of the police investigation is an issue in a way that would make offering the accused an opportunity to take part in an interview or make a statement, "genuinely relevant".
2. Senior counsel for the respondent referred the Court to Sanchez v The Queen [2009] NSWCCA 171, 196 A Crim R 472 and to R v Pelly [2015] SASCFC 25, 122 SASR 84. In Sanchez there was evidence that the accused made some preliminary statements to a police officer. During that officer's cross-examination, it was put and agreed to, that the accused subsequently exercised his right and did not make a statement. The trial judge immediately intervened and explained that a person who is spoken to by police and asked whether they wished to make a statement was quite within their rights to decline to do so, and no adverse inference should be drawn because those rights were exercised. That direction was not repeated in the summing up.
3. Campbell JA (Latham and Harrison JJ agreeing) referred to Pelly and to Glennon v The Queen [1994] HCA 7; (1994) 179 CLR 1. In Glennon the judge gave a direction to a jury that in testing the veracity of a defence they were entitled to have regard to the fact that it was not revealed to police, and to ask themselves, if the explanation were true, the sensible thing was to tell the police about it as soon as possible. That was held to be "clearly erroneous". Campbell JA also referred to Reeves (above), but in the circumstances of the case held that there was no rule to the effect that the warning must be repeated in the summing up, although it may well be often desirable and prudent to do so; whether the failure to do so involves appealable error will depend on the circumstances of the individual case.
4. In Pelly, at the trial_,_ it was established in cross-examination that the accused had access to all the witness statements beforehand. By way of a rhetorical question Crown counsel argued to the jury that, given the accused's advantage of knowing every piece of the prosecution case, "... is that why his explanation seems to be a little too planned?". At [190], Bampton J (Parker J agreeing) said that the cross-examination was not exploring when the appellant "came up" with his explanation but the fact of the "invention" asserting he had a defence that neatly explained all of the injuries. Cross-examination about the issue of invention and submission about it were held to be unobjectionable.
5. However, in a strong dissent, Gray J disagreed. His Honour referred to R v Roberts [2011] SASCFC 117, 111 SASR 100. In that case the prosecution led evidence that the accused had refused to answer police questions on the basis of legal advice. The trial judge directed the jury that the accused was entitled to remain silent, but did not direct the jury that no adverse inference could be drawn from that silence. The Court (Sulan J with whom White and Peek JJ agreed) said that there was no objection by counsel to the evidence being led, and that the failure of the judge to exclude it was not, of itself, good reason to overturn the conviction. The failure could have been cured by a direction; the evidence having been admitted, the judge should have directed the jury in clear terms that no inference of guilt could be drawn from the fact that the appellant had exercised his right not to answer questions: [64].
6. In Pelly at [51] Gray J said that in advancing the suggestion of recent invention, the prosecutor had contrasted the defendant's conduct with that of the complainant, who maintained a consistent version of events. His Honour said the judge's treatment of the submission amounted to an acceptance that the submission was appropriate and should form part of the jury's deliberations. The trial judge should have provided a specific direction that no inference of guilt could be drawn against the defendant for his failure to disclose his version of events before receipt of the prosecution evidence.
7. Mr Coates also referred this Court to Ward v The Queen [2022] NSWCCA 271. The evidence was that the appellant, through his legal representatives, had declined to be interviewed by police. The appellant did not give evidence, and the trial judge told the jury that had he done so, he would have directed them they were to draw no adverse inference because he had elected to exercise the right to silence. Adamson J (Campbell and McNaughton JJ agreeing) referred to Petty and Reeves (among others), and at [80] said the dicta establish, uncontroversially, that a direction in accordance with the standard direction[1] ought be given when the evidence is led and in the course of the summing up - in short the jury should be told of the right to silence and the prohibition on using that against an accused in any way - but those dicta did not address the consequences for a conviction of such a direction not having been given.
8. Her Honour referred to Dent v The Queen [2017] NSWCCA 166. In that case, evidence was led that the appellant, when arrested, exercised his right not to be interviewed. No direction was sought or given that no adverse inference could be drawn from that exercise of the right. In Dent, the Court held there was no miscarriage of justice in that there was no chance that the jury might have used the evidence adversely. As noted by Adamson J (in Ward), four reasons were given.
   • The evidence was that the appellant had "exercised his right", not that he had "made no reply", with the reference to the right being sufficient to imply a right not to be interviewed; accordingly, the evidence did not offend Petty.
   • The appellant gave evidence which was an important consideration and precluded speculation as to what the appellant's explanation of various matters was, and why it was that he did not offer an explanation when first spoken to.[2]
   • No submissions had been made about the evidence that the appellant had exercised his right; the jury knew the legal right not to be interviewed had been exercised, and what the appellant's case was.
   • There was an overwhelming inference that trial counsel did not seek the standard direction because it would have served no useful purpose.
9. Adamson J said the Ward case shared at least the first three features of Dent. Her Honour identified two further features "of significance." The first was that it was the appellant's lawyers who had decided or advised that he was not to be interviewed, which was sufficient to indicate that he had not made the decision himself. Second, the trial judge had given a hypothetical direction which he would have given if the appellant had chosen not to give evidence. For those reasons it was held no miscarriage of justice was established.
10. It perhaps should be noted that in Dent it was common ground that neither at the time of the evidence, nor at any subsequent time, was a direction given to the jury that no inference adverse to the accused could be drawn from his refusal to be interviewed by the police. Further, following that evidence, nothing was said by either counsel at trial concerning the fact that the appellant had exercised his right not to be interviewed in relation to the offence. In particular, there was no suggestion that his evidence was a recent invention or that the jury could draw an adverse inference from his failure to raise a defence when he was first spoken to by police; "In fact no mention was made of that evidence at any time in the trial, either by counsel or by the judge": Dent at [101].
11. The principles are clear enough. A failure to give an appropriate direction will not necessarily produce a miscarriage of justice but each case is fact and context specific. As to the present case, there is a need to consider the evidence of DSC Maksimovic. In this appeal, it is an important contextual aspect of the "failure to speak to police" issue. Although not the subject of complaint in this appeal, her evidence of the various messages and telephone contact leading up to the execution of the search warrant on 15 February 2021 was potentially inadmissible or arguably ought not to have been permitted. The facts, summarised in point form below, could only have been relevant as evidence of incriminating conduct.
    • DSC Maksimovic went to the appellant's home on 8 February and left a calling card as there was nobody home.
    • The appellant contacted the police station, spoke to another officer, as a result of which she called the appellant.
    • In that call, she told the appellant she just needed to speak to him for a little bit.
    • The appellant said he would get advice and get back to her.
    • On 14 February DSC Maksimovic again went to the appellant's home, and left a calling card.
    • He contacted her later that afternoon, made an appointment for the following morning but called shortly after and cancelled it.
12. There was no evidence about when, or in what circumstances, the appellant "declined to make a statement to police", as it was put in cross-examination. The jury could have readily inferred it was at some point in the period between 8 and 15 February 2021 in the course of events outlined by DSC Maksimovic. It is at this point where this ground, and grounds two and four intersect to a degree. The appellant agreed showing a prepared statement to Mr Akpor and acknowledged that Mr Akpor had told him it was "very implicating". The evidence showed that this was during that same period.
13. As shown in the extracts above, the proposition put to the appellant that he had declined to make a statement to police immediately followed his confirmation that DSC Maksimovic had left calling cards for him. The implication in the questions about the calling cards is that the appellant was avoiding the police. Even though the appellant was cooperative during the execution of the search warrant, this evidence could realistically have given rise to the real risk the jury thought that the appellant was being evasive, and was so out of a consciousness of guilt; in effect, an implied admission. This evidence was not objected to on the ground of irrelevance or that it ought not be permitted under s 137 of the Evidence Act 2001. There was no forensic advantage in defence counsel allowing the evidence to be given, or in not seeking a direction_._ Oversight is the only reasonable conclusion.
14. This was not the subject of any direction from the trial judge as to the proper use of this post-offence conduct. It is true that it was not relied on in Crown counsel's closing as showing a consciousness of guilt or as having any other relevance. The general rule is that an 'Edwards' direction[3] should only be given if the prosecution contends that a lie or other post-offence conduct is evidence of consciousness of guilt. Ordinarily, if the prosecution does not so contend, it is sufficient to guard against the possibility of the jury mistaking the effect of evidence of post-offence conduct as an admission of guilt to warn the jury in accordance with the direction suggested in Zoneff v The Queen [2000] HCA 28, 200 CLR 234. However, there are cases in which the risk of misunderstanding on the part of the jury as to the legitimate use which they may make of evidence of post-offence conduct is such that a judge should give an 'Edwards' direction notwithstanding that it is not relied by the prosecution as an implied admission: "The criterion must be the way the jury might use the evidence not the subjective purpose of the prosecutor in eliciting the evidence or relying upon it.": per Kirby J in Zoneff at [71] (in dissent but not as to this point).
15. In the present case, there was no suggestion of legitimate use and accordingly, the trial judge should have directed the jury along the following lines: that it was not suggested this evidence showed the appellant was avoiding the police and consequently acted out of a consciousness of his guilt, that it really had no relevance and that the jury must not draw any adverse inference from it or use it in any prejudicial way.
16. This flows through to the right to silence issue. There are factors present in this case similar to those which influenced the decisions in Dent and Ward. With great respect however, some of those factors would not appear to have any great weight. The fact that it might be clear that the right was exercised on legal advice, rather than being an independent decision reached by an accused of their volition, seems to be a distinction without any real difference. The fact is the choice was made. Additionally, giving weight to the fact that an accused has given evidence and has been able to explain the reason for the exercise of the right, seems to deny the point of principle. It highlights the risk of allowing evidence of the exercise of the right; that is, the risk of forcing an accused to give evidence in explanation.
17. It is true that in the present case the appellant's counsel told the jury that the appellant had a right to choose not to make a statement, a proposition that had been confirmed by the trial judge in a short sentence during his short ruling. But a warning about the status of the evidence and against the drawing of adverse inferences was neither sought nor given. Here again, the failure to request a direction had no forensic value. It cannot be assumed that no direction was sought because counsel thought it would not advance the appellant's case: see Taylor-Joycey v The Queen [2021] NSWCCA 29 at [91].
18. Another short statement of the appellant's right not to speak to police was mentioned in Crown counsel's closing, with a disavowal of criticism, but what was said in the same breath creates the greater concern. That statement came just after the suggestion the appellant tailored his evidence and was being untruthful. It was followed by the comment that "the fact is that the first time he put on public record what his version was" was in the trial, two and a half years later; he had had a lot of time to think "and a lot of time to tailor a story to fit". [Emphasis added]. In our view this amounted to a clear invitation to question the genuineness of the appellant's explanation from the fact that he had not previously raised it.
19. The question is whether the evidence led of the refusal to make a statement to police, and the absence of any directions or warning as to the use which could not be made of it, along with the absence of a direction in terms referred to in [50] above, amount to a miscarriage of justice within the meaning of s 402(1) of the Criminal Code. A miscarriage of justice includes any departure from a trial according to law to the prejudice of the accused: Weiss v The Queen [2005] HCA 81, 224 CLR 300 at [18]; Edwards v The Queen [2021] HCA 28, 273 CLR 585 at [74]; Hofer v The Queen [2021] HCA 36, 274 CLR 351 at [41]. An error or irregularity will amount to a miscarriage of justice only if it is of a nature and degree that could realistically have affected, or was capable of affecting, the verdict of guilt: Hofer per Gageler J (as he then was) at [123]. See now Brawn v The King [2025] HCA 20, 99 ALJR 883 at [11].
20. The fact of the evidence being elicited, Crown counsel's invitation to the jury to take the evidence into account and use it in a way adverse to the appellant, and the failure of the trial judge to direct the jury as to impermissible use of the evidence are such that there was a miscarriage of justice. In the Court's view ground 1 was made out.

Ground 2 - cross-examination about statement made to friends

1. Ground 2 asserts a miscarriage of justice resulting from the misconduct of Crown Counsel in the way she cross-examined the appellant. First, in relation to his failure to speak to the police and second, about an "allegedly inconsistent written statement made by [the appellant] to his friends, despite never producing the said statement to the accused or to the Court".
2. Before embarking on a consideration of this ground, we wish to say something about the wording of ground 2 and the description of Crown counsel's cross-examination as "misconduct". This word can have various connotations and sometimes may refer to conduct falling below professional standards. In the context of this appeal, however, it is simply asserting a mistake made by counsel during the course of a criminal trial which is said to have had ramifications for the fairness of the trial, and no more than that. See JAGD v Tasmania [2021] TASCCA 16, 34 Tas R 250 per Pearce J at [51] concerning an allegation of incompetence of counsel.
3. The matter of whether a miscarriage of justice resulted from the cross-examination of the appellant in relation to his failure to speak to police has been considered and determined in the context of ground 1. In the context of the trial, noting, in particular, Crown counsel's invitation to the jury to use the evidence in an impermissible way as well as the absence of any direction or warning by the trial judge, a miscarriage of justice has been identified.
4. This ground relies on another line of cross-examination of the appellant concerning his conduct in relation to a statement he prepared in the days that followed the incident in question. The cross-examination focussed on his conduct in that he had written out a statement, shown it to his friend Mr Akpor, who gave him feedback, and the appellant sent it to another friend, Ms Francis for her to review. This cross-examination was then relied upon to support a contention in Crown counsel's closing address that the appellant had shaped and tailored an account based on input from his friends and that his evidence was contrived. The statement itself was not tendered as evidence on the trial and none of its contents were before the jury.
5. The appellant admitted in cross-examination that he had discussions with his friend Mr Akpor in the days that followed the incident, and he agreed he discussed the allegations. He told him what happened in a face-to-face discussion or discussions and there were communications involving text messages and perhaps also WhatsApp messages and telephone conversations. The appellant sent Mr Akpor a written statement explaining what had happened. The messages and the written statement were not produced during cross-examination. The way the cross-examination proceeded is set out above at [27].
6. It can be seen from Crown counsel's closing address quoted above at [30] that the State's contention was that the appellant had changed his account with help from his friends Mr Akpor and Ms Francis. It was said, as mentioned, that he had tailored his account and his evidence was contrived. It should be noted at the outset that this contention was unsupported by the evidence given by the appellant and there was no evidence from any other source to support it. There was simply no evidence that the appellant had changed or shaped his account about what had happened in response to anything that had been said to him. At its highest his evidence was that he merely clarified or elaborated upon his statement.
7. The appellant was cross-examined about sending the statement to Ms Francis and he agreed he had and that he had asked Ms Francis to highlight the parts that did not make sense, explaining that this was "... 'Cause of the way I speak, and the words". His evidence was that English was his second language and that he had experienced misunderstandings when communicating with English-speaking people. His reason for giving his written account to Ms Francis was not disputed in cross-examination.
8. An aspect of the cross-examination of the appellant and the way the appellant's evidence was used warrants specific consideration. There was cross-examination about what Mr Akpor said in a text message sent to the appellant in referring to the appellant's statement as "very implicating" and that the appellant made "things hard" for himself. The hearsay rule has application to Mr Akpor's out-of-court statement such that it was not admissible to prove the truth of the asserted fact: Evidence Act, s 59(1). This means that the evidence of what Mr Akpor said in the text was not admissible to prove that the appellant's statement was in fact implicating.
9. Further, the evidence of what Mr Akpor said is inadmissible to prove the fact that the statement was "very implicating" because it also offends s 76 of the Evidence Act as evidence of an opinion. So, even if Mr Akpor had been called as a witness, he could not have given evidence of his opinion about the appellant's statement.
10. On the appeal it is argued for the State that the evidence of what Mr Akpor said was admissible as it was led for a non-hearsay purpose: s 60(1) Evidence Act. It is asserted that the purpose of the evidence was not to prove the asserted fact that the appellant's statement was "very implicating" but to prove that the appellant changed his statement about what had occurred as a result of feedback he was getting from his friends. This proposition is tenuous given there was no evidence that the appellant made changes to his account about what had happened in response to what Mr Akpor had said. In fact, the cross-examination did not explore the nature of any so-called changes.
11. The argument could be made for the appellant that the State's assertion of reliance on the evidence for this non-hearsay purpose, in reality, could only have been for the sole purpose of impugning the credit of the appellant. If so, it would not be admissible unless it could substantially affect the assessment of the credibility of the appellant: s 103 Evidence Act. The argument could well be made that the opinion of Mr Akpor that the statement was "implicating" could not affect the credibility of the appellant in the context of the issues on the trial. Put another way, it is not evidence that could ground an inference or suggest that the appellant had in fact changed or tailored his account. Moreover, it may be argued that the evidence could not approach the high threshold of substantially affecting the assessment of his credibility.
12. In any event, this asserted non-hearsay purpose was not how the evidence was relied on at trial by Crown counsel. Crown counsel reminded the jury that the appellant's account was described as "implicating", and she did not confine reliance on the statement for a non-hearsay purpose. In a passage from Crown counsel's closing address, set out above and repeated for ease of reference, she said:

"His evidence is full of contradictions and it's contrived. It's been made to fit. Right from the start, he was getting input from his friends. He told his friend Danny, who said that his account was implicating and he didn't do anything to help himself. You might remember that I put that to him in cross-examination, and he accepted that Danny had said that to him. And he agreed that he then passed on his statement to Danny's partner, Bonnie, and asked her to review it, and to highlight the parts that don't make sense. Well, I suggest he's been re-writing the script since February 2021."

1. This contention paved the way for the jury to misuse the evidence for a hearsay purpose and treat it as a piece of evidence that the appellant's statement was in fact implicating. This risk of misuse was not the subject of a direction by the trial judge. Of critical importance is that his Honour did not direct the jury as to impermissible uses of the evidence and how the evidence may be properly used, assuming there was a permissible use even if tenuous. The risk was real that the jury misused the evidence as a piece of evidence that could prove that the appellant's statement was in fact implicating.
2. More broadly, it was unfair to elicit evidence of Mr Akpor's opinion as it was inherently ambiguous. There were any number of explanations for Mr Akpor's opinion, other than that the statement was inculpatory. The descriptor of "very implicating" did not mean necessarily that it was implicating vis-a-vis the issues on the trial, yet that may very well have been how it was interpreted by the jury. Mr Akpor may have regarded aspects of the statement as "implicating", that were not inculpatory. For example, the appellant may have recounted that he had had sexual intercourse with the complainant. Without the statement itself, or context, the jury had no way of assessing in what way it was implicating, if at all.
3. These aspects of cross-examination were then relied upon by Crown counsel in her closing address to support a case concept that the appellant's account in court was contrived and "made to fit". The contention in the closing address was that the appellant shaped and tailored his account based on input from his friends. The suggestion was made that the fact he did not give an account to police has enabled that contrived evidence because his evidence is uncontradicted by such an account:

"...the fact is that the first time he put on public record what his version was [in evidence] on Friday, two and a half years after the allegations first arose. He has had a lot of time to think about this, and a lot of time to tailor a story to fit."

1. This contention was, in reality, a narrative or case concept unsupported by evidence that the appellant in fact changed his version to put himself in a better light, as opposed to elaborating upon his account, making grammatical changes or correcting his English. The reference by the State to the loaded description of "implicating" assisted the State in breathing life into this construct, but it only did so if the word was used as evidence that the statement in its original form was "implicating". Put another way, the only support for the case concept that his account was contrived and "made to fit", relied on the jury misusing the evidence that Mr Akpor described the appellant's statement as "implicating".
2. When considered in the context of the State's closing address overall, the contention about the so-called contrived account was prominent in the attack on the credibility of the appellant. It was tied to the concept that it led to his evidence on the trial which was designed to put him in a better light and also tied to the fact that he was enabled in producing such an account because he had declined to give a police statement.
3. On the appeal, senior counsel for the State drew attention to the fact that defence counsel did not object to the admissibility of the evidence of what Mr Akpor had said. In our view that is not a factor of any significance given there was limited, if any, opportunity to object. This was cross-examination; the evidence was not the subject of a proof of evidence, and the question was not foreshadowed.
4. The evidence of what Mr Akpor said was inadmissible for the hearsay purpose relied upon by Crown counsel in her closing address. In order to avoid or ameliorate the risk of prejudice there ought to have been a direction from the trial judge in strong terms informing the jury that it was impermissible to use the evidence in that way and prohibiting the jury from using it as evidence that the appellant's statement was in fact implicating and was evidence of guilt.
5. In conclusion, the hearsay evidence of Mr Akpor's opinion about the appellant's account was inadmissible as evidence of its truth. There was the real prospect that the jury regarded it as evidence that the appellant's account implicated him in relation to the charge of rape. The State's eliciting of, and then reliance on, the inadmissible evidence conveyed to the jury that the appellant had given an inculpatory account and then retreated from it. It was highly prejudicial to the appellant and unfair in the circumstances of the trial. The risk of the jury misusing the evidence was real and substantial and was not addressed by a direction from the trial judge. The appellant was deprived of a fair trial.
6. There was a miscarriage of justice on the basis of the evidence elicited from this line of cross-examination alone, noting the error in the way it was used in the closing address and the lack of any correction or direction from the trial judge. These errors in the trial amounted to a significant departure from a trial according to law and gave rise to a very real prospect that they affected the outcome of the trial. The prejudice to the appellant was compounded by the errors identified in relation to ground 1 which also amounted to a miscarriage of justice. Ground 2 is made out.

Ground 4 - lack of direction by trial judge about witnesses not called

1. Ground 4 concerns the lack of any direction by the trial judge to the jury that they must not speculate about evidence that might have been given by witnesses who were called on the trial. The jury were given directions that their determination must be based on evidence that the jury heard in the court room and a direction that questions alone were not evidence. The only direction given in relation to not speculating concerned the lack of forensic evidence. The direction was in the following terms:

"You don't speculate about what any forensic examination may or may not have shown. There's no evidence of that so you don't have regard to it. Your task is to return a verdict based on the evidence that we have which is the evidence of the complainant and her evidence of having complained to other people and the evidence of those people to the effect that she made those complaints. That's the evidence."

1. It is standard for trial judges to direct juries more broadly in terms that they should confine their consideration to the evidence and not speculate about what evidence might have been given by witnesses that were not called.
2. In this trial there was evidence that was notably not before the jury. Seemingly relevant witnesses, Mr Akpor and Ms Francis, were not called by the State, giving rise to a risk of speculation by the jury. If the appellant implicated himself or made any inculpatory statements, their evidence of what the appellant said to them generally or specifically with respect to the statement had significance. If the statement contained admissions, but it was lost or destroyed and not available to the State, their evidence of what it said may have been adduced by calling them as witnesses to give evidence of its contents: s 48(4) Evidence Act. It is noted that this is not a case where the defence is submitting that they were in fact "material witnesses" such that a 'Mahmood' direction should have been given.[4]
3. The appellant's written statement read by Mr Akpor and Ms Francis was not before the jury. The risk is that the jury speculated about the contents of the statement (as they were invited to do) and proceeded on the basis that Mr Akpor was correct in the opinion he expressed, and the statement implicated the appellant.
4. There was another risk and that was that the jury speculated about why Mr Akpor and Ms Francis did not want to give evidence and that the jury speculated to the point where they inferred it was because Mr Akpor and Ms Francis did not want to implicate their friend. In fact, this line of speculation was facilitated by the approach taken by the State in the evidence that was led.
5. The State led evidence that DSC Maksimovic spoke to both witnesses and they declined to provide a statutory declaration. In the case of Ms Francis, DSC Maksimovic gave evidence that Ms Francis told her she was not comfortable in providing her with a statutory declaration. The evidence led of what the witnesses said to DSC Maksimovic was not relevant to the issues on the trial and was not admissible. Further, because of the hearsay rule the evidence was not admissible to prove the truth of what they said; that is, that they did not want to provide a statutory declaration and in Ms Francis's case that she did not feel comfortable in doing so.
6. The jury were not directed that they should not speculate about evidence not before them generally and specifically in relation to evidence that these two witnesses, if called, may have given. Noting the role that the witnesses were said to have had in the "tailoring" of the appellant's evidence, the evidence that the witnesses did not wish to provide a statutory declaration may have seemed to the jury to lend force to the so-called "implicating" statement made by the appellant. At the very least the jury should have been directed in terms of the standard direction that they ought not speculate about why the individuals, Mr Akpor and Ms Francis, were not called as witnesses on the trial or the reason why they declined to provide a statutory declaration.
7. The failure to direct the jury in these terms regarding these two witnesses compounds the miscarriage of justice identified in the context of grounds 1 and 2.
8. In light of other errors in the trial a direction that the jury must not speculate had real work to do. The jury could have been directed not to speculate about the calling card evidence, and that the appellant may have had good reason for cancelling the appointment and that there is no evidence he was avoiding police. The jury could have been directed not to speculate about why Mr Akpor described the appellant's statement as "implicating" when there was no evidence of what the statement said and no evidence that it was in any way implicating. The jury could have been reminded of their obligation to have regard to the actual evidence, rather than conjecture, and that there was no evidence that the appellant's account was changed in response to Mr Akpor's remark or Ms Francis's checking of the statement. It would have helped if the jury had been directed not to speculate in these terms, but it would not have been enough. There were various aspects of inadmissible evidence relied upon to support the State's contentions. Unless the jury were directed in strong terms to ignore these contentions and the inadmissible evidence that was relied on to support them, the trial remained fundamentally flawed.

1. Section 402(2) of the Criminal Code enables this Court to dismiss what it determines to be an otherwise successful appeal if it considers that no substantial miscarriage of justice has actually occurred. In effect, in a case where the third limb of s 402(1) has been made out - a miscarriage of justice - if the appeal is dismissed it means that the Court was satisfied of a miscarriage of justice, but that in actuality it was not a substantial one. In Weiss (above) at [44], the Court said that "No single universally applicable description of what constitutes 'no substantial miscarriage of justice' can be given." But, the Court said, one negative proposition may be safely offered. That is, it cannot be said that no substantial miscarriage of justice has actually occurred unless the court is persuaded that the evidence properly admitted at trial proved, beyond reasonable doubt, the accused's guilt of the offence on which the jury returned a verdict of guilty.
2. The Court in Weiss, at [45], went on to explain that likewise there is no single universally applicable criterion that can be formulated which identifies cases in which it would be proper for an appellate court not to dismiss the appeal, even though persuaded that the evidence properly admitted at trial proved the accused's guilt; there may be cases where it would be proper to allow the appeal and order a new trial, even though the appellate court was persuaded to the requisite degree of the appellant's guilt. Indeed, it is established that there is a category of case in which the error or irregularity is such that there is no occasion to separately address the proviso; it has no application. See Brawn (above) at [9] and MDP v The King [2025] HCA 24, 99 ALJR 969 per Edelman J at [65].
3. Various descriptions of the type of circumstance which would give rise to that situation have been given. Prominent are references to a departure from the requirements of a fair trial according to law, or similar: Weiss (above) at [45]; Nudd v The Queen [2006] HCA 9, 80 ALJR 614 at [6]- [7]; Kalbasi v Western Australia [2018] HCA 7, 264 CLR 62 at [57]; Huxley v The Queen [2023] HCA 40, 98 ALJR 62 at [43]. See also Wilde v The Queen [1988] HCA 6; (1998) 164 CLR 365 at 373 - a departure from the essential requirements of the law that goes to the root of the proceedings; Katsuno v The Queen [1999] HCA 50, 199 CLR 40 at [35] and Hofer (above) at [123] - a trial process flawed in a fundamental respect; Weiss (above) at [46] - a serious breach of the presuppositions of the trial; Hoang v The Queen [2022] HCA 14, 276 CLR 252 at [42] - a fundamental defect.
4. In the present case, although a step not lightly taken, the Court considered the irregularities and defects in the trial which have been identified in relation to grounds 1, 2, and 4. At least in their cumulative effect, they amount to a miscarriage of justice such as to constitute a fundamental departure from the essential requirements of a fair trial so as to preclude the application of the proviso. Inadmissible and prejudicial evidence in several respects was tendered without objection, correction or direction, and the jury was invited to engage in an impermissible reasoning process. The appellant's defence was in effect completely derailed, or at the very least, put at an unacceptably high degree of risk. In short, he did not receive a fair trial according to law to which he was entitled. In circumstances where there has been no trial in any meaningful sense, even overwhelming evidence of guilt is irrelevant: Krakouer v The Queen [1998] HCA 43, 194 CLR 202 per McHugh J at [75].
5. There is no need to venture further but we would say this. In any event, the nature of this case would, we think, preclude the Court from a proper assessment of whether guilt had been established beyond reasonable doubt. The nature of the error or irregularity may prevent an appellate court from carrying out that exercise: Nudd at [7]; Kalbasi at [15]. In that sense it is recognised that the "natural limitations" that exist where the appellate court is proceeding wholly or substantially on the record may require the court to conclude it cannot be satisfied guilt was established; accordingly, the proviso does not apply; Weiss at [41]; Baini v The Queen [2012] HCA 59, 246 CLR 469 at [29]. Importantly, in Kalbasi at [15], Kiefel CJ, Bell, Keane and Gordon JJ made specific reference to credibility and said that cases in which the nature of the error stands in the way of an assessment of guilt may include, but are not limited to ones which turn on that issue. See also Castle v The Queen [2016] HCA 46, 259 CLR 449 at [52], [68], and now MDP v The King at [39], [70].
6. It might be said that ignoring the inadmissible and prejudicial evidence, the State's case against the appellant was a relatively strong one. There was evidence of recent complaint. The evidence of discussions and messages between the complainant and the appellant could well be construed as containing admissions on the part of the appellant, although he offered an innocent explanation which was not totally implausible, at least as it appears on the face of the record. On behalf of the appellant, criticisms of the complainant's reliability were made in closing, and they cannot be said to have been frivolous. The appellant's version cannot be said to have been "glaringly improbable" to the extent discussed in Hofer and which led to the application of the proviso. At its heart, the case was one of "word on word", dependent on credibility, and recognised as such by the trial judge who gave the jury a 'Murray' direction.[5] But as we have said, this Court did not need to go beyond the nature and extent of the irregularities in the trial process.

1. It was essentially for those reasons that we allowed the appeal and made the consequential orders noted above.

[1] As contained in the NSW Criminal Trial Court Bench Book

[2] The judgment does not reveal that any specific explanation was offered by the appellant as to why he did not offer an explanation. It might be inferred from the fact in-evidence he admitted involvement in the incident; he would get either murder or manslaughter and he had "a thing" about telling on the person who actually kicked the deceased in the head, but he was now in the position where he had no choice.

[3] Edwards v The Queen (1993) 198 CLR 383.

[4] Mahmood v Western Australia [2008] HCA 1, 232 CLR 397.

[5] R v Murray (1987) 11 NSWLR 12