1 The appellant stood trial in the County Court charged with some 20 separate offences, all of them involving his niece. He was convicted, by majority verdict, of five charges of sexual penetration of a child under 16 (charges 1, 2, 7, 10 and 19). He was acquitted, by direction, of four charges of sexual penetration of a child under 16 and one charge of an indecent act with a child under 16. The jury was discharged without verdict on the remaining 10 charges. He was sentenced to a total of six years' imprisonment with a non-parole period of three years.

2 Pursuant to leave granted by Redlich JA, the appellant now appeals against the five convictions on the following grounds:

1. A substantial miscarriage of justice occurred as a result of the manner in which the trial judge responded to a question from the jury about whether the appellant's record of interview was to be treated, for the purpose of the jury's deliberations, as would a sworn statement. In particular, the judge erred by:

(a) failing to give a direction of the kind contemplated by section 20(2) of the Evidence Act 2008; and

(b) directing the jury in terms that failed adequately or at all to guard against the likelihood that the appellant's failure to give evidence would be used against him.

1A. A substantial miscarriage of justice occurred as a result of the trial judge's directions to the jury on how they should treat the appellant's record of interview.

1. A substantial miscarriage of justice occurred as a result of the manner in which the trial judge directed the jury under, and otherwise sought to comply with, ss 61(1)-(2) of the Crimes Act 1958.

3 The following outline of the basic facts is taken from the Registrar's neutral summary. The complainant, TB, was the appellant's niece. The prosecution case was that the offending occurred on various occasions between December 1995 and April 1998, when TB was aged between 11 and 14. The appellant was then aged between 32 and 35. TB is now 28, and the appellant 49.

4 In October 1995, TB and her family moved from New Zealand to Australia. When they first arrived, they stayed with the appellant and his family. TB shared a bedroom with the appellant's daughter, A. At the time, the appellant worked for a removal business.

5 In about February 1996, TB and her family moved to their own home. However, they visited the appellant and his family on a regular basis.

6 The following offences (charges 1 and 2) were said to have been committed between 1 and 31 December 1995.

7 The first of these offences occurred in the bedroom that TB shared with A. When TB was alone, the appellant entered the room, exposed his penis, asked TB to have a look at it, and told her she could touch it. He grabbed her hand and put it on his penis, and moved it around until it became erect. He told TB to kiss his penis, which she did. These were all uncharged acts. Then, he introduced his penis into her mouth (charge 1).

8 The next offence occurred in the bedroom that TB shared with A. TB was changing into her bathers to go for a swim in the backyard pool. The appellant walked into the room and asked whether he could touch her. He pulled TB towards him, and touched her vagina. These were uncharged acts. Ultimately, he introduced his fingers into her vagina (charge 2).

9 The following offences (charges 7 and 10) were said to have been committed between 1 and 31 January 1996.

10 The appellant had a removal truck parked at the rear of his Seaford property. He took TB into the backyard and got into the truck with her. He asked her to suck his penis and then introduced his penis into her mouth (charge 7).

11 The appellant then positioned his body above TB, rubbed his penis over the top of her vagina and introduced his penis into her vagina (charge 10).

12 The final offence (charge 19) of which the appellant was convicted was said to have been committed in the period between April 1997 and April 1998. The appellant entered the bathroom of his Frankston property while TB was brushing her teeth. He pulled his penis from his pants, introduced it into TB's mouth and ejaculated.

13 TB first complained in 2009 when she told her then husband that the appellant had sexually abused her. The police became involved.

14 On 28 August 2009, TB made a pretext call to the appellant. He denied that any sexual activity had ever taken place between them.

15 On 19 November 2009, the appellant was interviewed by police. He denied TB's allegations. He told police that the relationship between TB and his daughter had always been close. He said that he had always had a good relationship with TB, and did not understand why she had made up the various complaints against him. When specific allegations were put to him, he denied them. He told police that it was possible that TB had been abused by someone else. He said that the allegations made him feel sick, and that he was 'not like that'.

16 The appellant did not give evidence at his trial. His counsel argued, in his closing address, that TB's failure to complain, in circumstances where, had the abuse occurred, she would have been expected to have told someone, made it unlikely that she was telling the truth. Counsel also pointed to the fact that the appellant and TB had remained in continuous contact after the alleged incidents had occurred. He invited the jury to find that this was inconsistent with her account being true. Moreover, counsel submitted that the alleged offending was, in itself, improbable, having been said to have occurred in circumstances where there were other people present, or in close proximity. He also referred to the lack of specificity as to particular dates in TB's account. He reminded the jury that her delay, in having complained, meant that truck logs and other records which might have established that the appellant was not present at relevant times, had been destroyed.

17 The trial judge made it perfectly plain to the jury that the central issue in the trial was TB's credibility. He directed them that they could not convict the appellant of any of the offences charged without being satisfied beyond reasonable doubt that her evidence was both truthful and accurate.

Grounds 1(a), 1(b) and 1A - Failure to give Azzopardi direction - Adequacy of direction as to probative value of content of record of interview

18 In order to address these grounds, it is necessary to provide some additional context.

19 The reference, in ground 1(a) to s 20(2) of the Evidence Act 2008 is, of course, a reference to a major change to the law brought about by that Act.

20 Section 20(2) provides as follows:

The judge or any party (other than the prosecutor) may comment on a failure of the accused to give evidence. However, unless the comment is made by another accused in the proceeding, the comment must not suggest that the accused failed to give evidence because the accused was, or believed that he or she was, guilty of the offence concerned.

21 Prior to the introduction of this provision, the law in this State was very different. Section 399(3) of the Crimes Act 1958 prohibited any comment by the judge or the prosecutor on the failure of the accused to give sworn evidence. The reason why comment was forbidden in Victoria was that this was thought to be of benefit to the accused, and to preserve as far as possible his or her freedom to elect whether or not to give evidence.[1]

22 There was a considerable body of authority as to what constituted a 'comment', in breach of the rule that prohibited all such statements from being made. Some of this case law could only be viewed as highly technical, and lacking any sound basis in principle. In addition, the law had to accommodate the tension between the prohibition upon comment, and the fact that, in some circumstances, the accused's silence in court might, for some limited purposes, operate in a manner adverse to his or her interests.[2]

23 A 'comment' which fell within the prohibition was any statement that directly or indirectly suggested that the accused could have given evidence, but chose not to do so. There was, however, some authority for the proposition that it would not be a 'comment', within the ambit of the prohibition, for a trial judge to point out that circumstantial evidence led by the Crown had not been contradicted by the defence.[3]

24 The position in a number of the other States, and in the Australian Capital Territory, differed sharply from that which pertained in this State.

25 In New South Wales, South Australia, Tasmania and Western Australia the judge was permitted to comment upon the fact that the accused had elected to remain silent. The prosecutor was not, however, permitted to say anything regarding that fact.[4]

26 In Queensland, the prosecutor as well as the judge was permitted to comment upon the accused's silence.

27 However, even where the judge was permitted, by statute, to comment, there were strict rules as to what could legitimately be said.

28 Section 20(2), has had the effect of bringing this State more closely into line with what had previously been the practice in those States that had long permitted judicial comment pursuant to their own statutory provisions. It also brought this State precisely into line with s 20(2) of the Evidence Act 1995 (Cth) and the Evidence Act 1995 (NSW).

29 The section is confined in its application to criminal proceedings for indictable offences. It distinguishes between comment by the judge (which is permissible), and comment by the prosecutor (which is prohibited). The judge, although able to comment upon the failure of the accused to give evidence, is not permitted to suggest that this failure implies guilt on his or her part. A co-accused in the proceeding is permitted to comment, apparently without restriction. However, any such comment on the part of a co-accused may itself be subject to a comment (in order to achieve a measure of balance) by the judge.[5]

30 In Azzopardi v The Queen,[6] the High Court construed s 20(2) of the Evidence Act 1995 (NSW). The decision itself incorporated two separate cases, each of which gave rise to the same point of principle.

31 In the first of the two cases, Azzopardi, the facts were as follows. The appellant had been convicted of soliciting another to commit murder. In a record of interview, admitted in evidence, he denied all the allegations. The Crown called three co-offenders who gave direct evidence against him. The appellant stood mute.

32 In the second of the two cases, Davis, the applicant had been convicted of serious sexual misconduct with a child below the age of 10. He too had been interviewed by police, and had denied all allegations. The complainant gave evidence against him, and her testimony was supported by a body of expert evidence, and circumstantial evidence led by the Crown. The applicant in this case also remained mute.

33 In each of these two cases, the judge, in the course of charging the jury, referred specifically to the accused's failure to give evidence and noted that he was not obliged to do so. The judge went on to instruct the jury that the accused's silence could not be treated as an admission of guilt. However, in both cases, the judge directed the jury that the accused's silence, in court, might affect the value or weight which the jury would accord to the evidence of Crown witnesses.

34 By a majority of five to two (Gaudron, Gummow, Kirby, Hayne and Callinan JJ, Gleeson CJ and McHugh J dissenting), the High Court held that, by suggesting to the jury that the fact that the accused had not given evidence was one reason for accepting the Crown's contention that the accused was guilty, there had been a contravention of s 20(2) of the Evidence Act 1995 (NSW).

35 In the case of Azzopardi, a new trial was ordered. In the case of Davis, however, it was held that the proviso should be invoked, and the appeal dismissed. The High Court reasoned that although the trial judge's direction was in clear breach of s 20(2) of the Evidence Act 1995 (NSW), the prosecution case had been so 'overwhelmingly strong' that there had been no miscarriage of justice.[7]

36 One problem which featured heavily in the High Court's reasoning was the need for it to explain why the principles which the Court had laid down several years earlier, in Weissensteiner v The Queen,[8] were not applicable to either case.

37 The facts in Weissensteiner were somewhat unusual. The accused in that case was charged with the murder of two persons, and the theft of their boat. There was evidence that he had set off together with them on a cruise. There were only the three on board. The other two were not seen again. However, the accused remained in possession of the boat.

38 The case against the accused was entirely circumstantial. There was ample evidence from which the jury might have concluded that the missing persons were dead. There was also some evidence from which it could be inferred that the accused had not only stolen the boat, but had also been involved in the deaths of his companions.

39 The accused did not give evidence and called no witnesses. The trial judge directed the jury in unimpeachable terms that the Crown bore the onus of establishing guilt beyond reasonable doubt, that the accused did not have to prove anything, that he was under no obligation to give evidence, and that the Crown case was based entirely upon inference. The judge then went on to say that such an inference might more safely be drawn from the proved facts when an accused elected not to give evidence of relevant facts which must be within his knowledge.

40 It should be noted that Weissensteiner was a case that arose out of Queensland. In that State, there was, as we have previously indicated, no statutory prohibition upon a judge's commenting on the failure of an accused to give evidence. Nonetheless, the accused, having been convicted of murder, appealed to the High Court.

41 Five members of the Court[9] cited with approval the following passage from the judgment of Windeyer J in Bridge v The Queen:[10]

An accused person is never required to prove his innocence: his silence can never displace the onus that is on the prosecution to prove his guilt beyond reasonable doubt. A failure to offer an explanation does not, of itself, prove anything. Nor does it, in any strict sense, corroborate other evidence. But the failure of an accused person to contradict, on oath, evidence that, to his knowledge, must be true or untrue, can logically be regarded as increasing the probability that it is true. That is to say a failure to deny or explain may make evidence more convincing, but it does not supply its deficiencies. A direction to the judge on such matters...might no doubt be helpful to the accused in some cases.[11]

42 In their joint judgment in Weissensteiner, Mason CJ, Deane and Dawson JJ said:

We have quoted rather more extensively from the cases than would otherwise be necessary in order to show that it has never really been doubted that when a party to litigation fails to accept an opportunity to place before the court evidence of facts within his or her knowledge which, if they exist at all, would explain or contradict the evidence against that party, the court may more readily accept that evidence. It is not just because uncontradicted evidence is easier or safer to accept than contradicted evidence. That is almost a truism. It is because doubts about the reliability of witnesses or about the inferences to be drawn from the evidence may be more readily discounted in the absence of contradictory evidence from a party who might be expected to give or call it. In particular, in a criminal trial, hypotheses consistent with innocence may cease to be rational or reasonable in the absence of evidence to support them when that evidence, if it exists at all, must be within the knowledge of the accused.[12]

43 Plainly, Weissensteiner is a case that must be read with care, and approached with circumspection. The facts were quite special. In truth, they cried out for an explanation, on the part of the accused, which only he could provide, but which was not forthcoming. It should not be thought that the effect of the decision was to abrogate, by little more than a side wind, the right to remain silent.

44 Returning to Azzopardi, the joint judgment (Gaudron, Gummow, Kirby and Hayne JJ) made it clear that notwithstanding Weissensteiner, the right to remain silent had survived that case and continued to exist.

45 Their Honours dealt specifically with s 20(2) of the Evidence Act 1995 (NSW), and observed:

In the course of argument of the present matters it was suggested that if a judge said nothing to the jury about the fact that an accused had not given evidence, the jury may use the accused's silence in court to his or her detriment. Plainly that is so. It follows that if an accused does not give evidence at trial it will almost always be desirable for the judge to warn the jury that the accused's silence in court is not evidence against the accused, does not constitute an admission by the accused, may not be used to fill gaps in the evidence tendered by the prosecution, and may not be used as a make-weight in assessing whether the prosecution has proved its case beyond reasonable doubt. It by no means follows, however, that the judge should go on to comment on the way in which the jury might use the fact that the accused did not give evidence.[13]

46 The majority went on to say, in relation to Weissensteiner, that under s 20(2), if the circumstances were such as to permit a comment to be made by the judge with respect to the failure of the accused to give evidence, it should be made plain that it is a comment which the jury would be free to disregard. Moreover, if such a comment were made, it should be made in its proper context. That would require identifying the facts said to call for an explanation and giving adequate directions to the jury about the onus of proof. It would also require the judge to direct the jury as to the absence of any obligation on the accused to give evidence, that his or her failure to do so could not be taken to constitute an admission or to fill gaps in the prosecution's proofs, and could not be used as a make-weight. Finally the comment should not go beyond that made in Weissensteiner, as adapted to refer to the failure to offer an explanation rather than the failure to give evidence.[14]

47 The distinction between what Azzopardi describes as the impermissible forms of reasoning, and what Weissensteiner allows is, it must be said, a fine one. A direction that accommodates both forms of reasoning has the potential to be confusing, so far as any jury is concerned.[15] Certainly, the Weissensteiner direction is rarely given, because it is applicable only in very narrow circumstances, while it will 'almost always be desirable' that an Azzopardi direction be given.[16]

48 Returning then to the facts that gave rise to the present appeal, the following matters should be noted. On the fourth day of the trial, just before the close of the prosecution case, the judge asked counsel what directions they specifically wanted him to give in his charge to the jury.

49 Defence counsel mentioned an Azzopardi direction, although seemingly without any great conviction.

Yes, if you want one. I don't do them unless counsel ask me to, so if they do, I do...

The Azzopardi direction. I mean, I know what Azzopardi claims to say, but I can just say this, that my understanding is that what's contained in the New South Wales text books about what occurs in New South Wales isn't right. Apparently, it's only ever used if you've got two accused and one gives evidence and one doesn't, or you've got very inexperienced counsel, or there's a strong circumstantial case, in which case you've sort of got to do it because the temptation for the jury to - they could have been easily explained so that's when it's done up there. If counsel want me to do it, I certainly will, but I don't share the view a couple seem to have that you've got to. I understand the Court of Appeal are starting to think that Azzopardi might not be quite right in this State. It might be in all others but not here. All right.

51 It appears that the judge displayed even less enthusiasm for an Azzopardi direction than had defence counsel in earlier referring to it. Nothing more was said about the matter at that stage, and it was simply left in abeyance. When his Honour eventually came to charge the jury, he said nothing at all about the failure of the accused to have given evidence. In other words, he did not give an Azzopardi direction.

52 The matter did not rest there. At the very end of his Honour's charge, just before the jury were sent out to deliberate, the foreman indicated that he had a question. The judge suggested that it be put in writing, but the foreman did not accede to that suggestion. Rather, he replied in the following terms:

We simply want to know whether the record of interview is the same as the sworn statement [indistinct].[17]

53 The judge, without further discussion, at once replied:

That is a matter for you. A record of interview. The thing you've got to um...Yes, I had better discuss that with counsel. That is essentially a matter for you. What you make of a record of interview - I will say this because I know I can say this. A record of interview is done in a conversation with a police officer, it is not subject to the cross-examination of a barrister within the actual courtroom itself. What weight you give it is entirely a matter for you. It is not some objective clinical weighing up. Some records of interview are compelling, some are hopeless, and I have heard thousands of them.

So it is not that sort of analytical approach. You hear an interview. Each individual juror makes of it what they will. The important thing to bear in mind is that, in this particular trial - as is often the case with trials of this nature, as Ms Churchill explained to you - whatever you make of the record of interview, you cannot convict unless you are satisfied beyond reasonable doubt of the evidence of the complainant. That's what this trial comes down to. That's a comment from me. Counsel can tell me if I have got that wrong.

An accused person does not have to prove his record of interview. It's there and essentially it's denials, and you listen to tone and tenor - they are all matters for you, as to what you make of that. But in the end, you cannot convict unless you are satisfied beyond reasonable doubt, on the evidence of the complainant. If you are satisfied of her evidence, beyond reasonable doubt, then clearly you have rejected the record of interview. You must have or you could not have. Do you see what I'm saying?

That is the way it worked. But don't get - that is a comment from me; it's not sort of like a - it is not a debate. That is the simplest way of putting it. The Crown have proved it or they have not. If they have, they have.

54 The jury were then sent out, and his Honour raised with counsel whether there were any difficulties with what he had told them. The transcript reads as follows:

HIS HONOUR: That's the way that question used to be answered. I'm not so sure now. You want to reconsider whether you want an Azzopardi direction? I mean, all a judge can really do - I mean, judges used to say that the record of interview hadn't been subject to cross-examination, in the old days when police didn't cross-examine. That's all that used to occur. They'd say treat it like any other piece of evidence, which I think is what I've endeavoured to do, but hammered about four times that there's no onus on an accused. Now, that's all you can do with that, otherwise - the question's asked by a school teacher, which is why I answered it that way, because you tend to get a sort of debate, the essay, which isn't what this is about.

Now I'm perfectly happy to do an Azzopardi direction about you can't draw any inference for not jumping the box, but that didn't seem to be what the question was about.

DEFENCE COUNSEL: No, I agree, Your Honour.

HIS HONOUR: I mean, they might come back with, "Why didn't he give sworn evidence?", in which case I'll clearly do it.

DEFENCE COUNSEL: Yes. I mean, I made the point in my address, Your Honour, that - I think I did - he wasn't obliged to.

HIS HONOUR: You did. You said "voluntarily".

DEFENCE COUNSEL: Yes. But again, it might be just an innocuous, curious question.

HIS HONOUR: I think it's a teacher's question and what I've tried to do is sort of basically say, 'Forget the interview other than as denials'. You know, they can make what they want of it, but the fact of the matter is unless they accept the complainant beyond reasonable doubt, he can't be convicted. So any sort of, any suggestion of a weighing up or a balancing or what's got more weight just had to be dispelled, I thought.

DEFENCE COUNSEL: Yes, Your Honour.

HIS HONOUR: You all right with that?

DEFENCE COUNSEL: Yes, I am, Your Honour.

HIS HONOUR: Do you want to say anything...?

PROSECUTOR: No, Your Honour. I think that that probably covers it. It's not subject to cross-examination. There's no onus on the accused. I think your Honour said that in excess of maybe five or six times, I think.

HIS HONOUR: Yes, that question used to be often asked with unsworn statements, in which case, while you couldn't tell a jury then there was an option, you'd say that - and some judges could fix you right up with it too, believe me, but, they'd say of course it's not subject to cross-examination and sort of a snort. This is before cameras. So that habit's died out, I think.

55 The point made in support of ground 1 is simply this. It was submitted that even if trial counsel's indication that he would not press for an Azzopardi direction provided an adequate reason for his Honour having originally declined to give such a direction,[18] everything changed when the foreman asked the question that he did.

56 The question posed on behalf of the jury referred to the status of the record of interview, and enquired as to whether it should be regarded as 'the same' as the 'sworn statement'. In context, the 'sworn statement' to which the foreman alluded must, in our opinion, be understood as a reference to sworn evidence. In other words, the jury were concerned about the weight to be accorded to unsworn evidence, in the form of the record of interview, as distinct from the sworn evidence led on behalf of the Crown.

57 Mr Kassimatis, who appeared on behalf of the appellant before this Court, though not at trial, submitted that the foreman's question came very close to an enquiry about how the jury should view the appellant's failure to have given evidence. If so, it was submitted that the question called for a strong Azzopardi direction, irrespective of whether trial counsel had sought such a direction at an earlier stage.

58 Clearly, the judge was troubled by the question that had been asked. His Honour specifically asked defence counsel if he wished to 'reconsider' whether an Azzopardi direction was now necessary, in the light of what had occurred. He made it plain that he would most definitely give such a direction if asked to do so.

59 However, the judge went on to indicate that, in his view, the question posed had not directly raised the issue of the accused not having 'jump[ed] the box'.[19] He went on to say that if the jury came back with a further question along the lines of why had the accused not given sworn evidence, he would most definitely give such a direction. It was implicit in what his Honour said that he would do so irrespective of what position counsel might adopt.

60 Mr Kassimatis submitted with considerable force that the judge fell into error in three separate respects. First it was said that his Honour approached the issue of whether to give an Azzopardi direction in entirely the wrong manner. It was submitted that his Honour and counsel had failed to appreciate the 'almost ineluctable nature' of the Azzopardi direction when an accused has not given evidence. When the High Court said it was 'almost always desirable' that such a direction be given, it meant just that. Secondly, his Honour misstated the law regarding the circumstances in which such a direction should be given, having attributed to this Court a position which it had never adopted, and which as a matter of stare decisis, was simply not open to it or to a trial judge. Thirdly, the trial judge failed to appreciate the wider implications of the foreman's question. It was but a short step from the precise terms in which that question was put to a consideration of why the appellant had not given sworn evidence, and what significance attached to that fact.

61 In addition, Mr Kassimatis submitted that his Honour's immediate response to the foreman's question had been misleading in several key respects. A record of interview could not properly be characterised as a 'conversation with a police officer'. Moreover, it was quite wrong to tell the jury that they should not engage in some 'objective, clinical weighing up' of this matter, and that their task did not involve some 'sort of analytical approach. These were all telling points to which we shall return when considering ground 1A.

62 Before this Court, the Crown relied heavily upon the fact that defence counsel at trial had not at any stage sought an Azzopardi direction, even after the foreman had conveyed the jury's question to the judge. It was submitted that the judge was entitled to conclude that defence counsel had a legitimate forensic reason for not wanting such a direction to be given. Counsel noted that the downside of an Azzopardi direction, from a defence perspective, is that it highlights the accused's failure to give sworn evidence. He submitted that, as a matter of common knowledge, views differ amongst experienced defence barristers, as to whether a direction of that kind usually does more harm than good. The Crown further contended that whether an Azzopardi direction should be given will depend on the extent to which the absence of sworn evidence from the accused has been ventilated at the trial. We note in passing that in most trials where the accused does not give evidence, defence counsel will inform the jury, during his or her closing address, as trial counsel did in this case, that the accused has exercised his right not to give evidence.

63 This Court has referred to Azzopardi on numerous occasions, generally in the context of distinguishing between directions and comment or when discussing whether an accused's failure to give evidence is relevant in assessing an unsafe and unsatisfactory ground.

64 The New South Wales Court of Criminal Appeal stated in R v Colville[20] that the passage quoted from Azzopardi is not required to be used as a 'routine check list to be intoned mantra-like to the jury'.[21] A more detailed analysis to similar effect is contained in R v Wilson.[22]

65 In Colville, which concerned a relatively short and simple trial under scrutiny on appeal, the Court held that it was:

necessary to warn the jury against the natural temptation for the lay-mind to reason that an accused person who gives no evidence at his trial is conveying by that election that he is in truth guilty as charged.[23]

66 The directions given by the trial judge in that case (which were upheld on appeal) were to the effect that while the accused had the opportunity to give evidence, but did not do so, he was perfectly entitled to take that course. In addition, the trial judge repeated what counsel had already told the jury, namely, that what the accused said in the interview remained his position at trial. The Court held that those directions were sufficient, and that it was not necessary to address each of the four elements in the Azzopardi direction.

67 Moreover, as Hunt AJA observed in Wilson,[24] cases in which appeals have been dismissed, notwithstanding the absence of directions satisfying all of the elements of Azzopardi, have generally involved directions which at least satisfy the first two elements, namely that the accused's silence in court is not evidence against the accused and nor does it constitute an admission by the accused.

68 Colville and Wilson were both cited with approval by this Court in Quach v The Queen.[25] In Quach, the question arose as to whether an Azzopardi direction was required in relation to the accused's failure to call good character evidence. All three cases were quite different from the present.

69 The law regarding the precise circumstances in which each and everyone of the directions set out in Azzopardi will be required to be given is perhaps uncertain. However, this Court has never expressed any doubt, since Azzopardi, that as the High Court laid down in that case, it will 'almost always be desirable' for the trial judge to warn the jury that the accused's silence in court is not evidence against him, and that the absence of evidence from the accused cannot be used to fill gaps in the prosecution case. In our opinion, the Crown's contention that the requirement to give an Azzopardi direction was dependent on whether there was something about the case that required such a direction, is to approach the issue from the wrong starting point. The correct view is that such a direction is desirable unless there is some feature of the case that renders it unnecessary or inappropriate.[26]

70 Under ground 1A it was rightly submitted that his Honour's response to the foreman's question was at least misleading. The trial judge answered the question immediately and without any discussion with counsel. This case illustrates the danger of a spontaneous response without the benefit of submissions, or time taken to reflect upon how best to answer the question.

71 The answer to be given to the jury had to address the question whether the record of interview was the same as sworn evidence. The jury needed to be told in clear terms that the answers in the record of interview were part of the evidence to which they could have regard but that they were not obliged to give the accused's answers in the interview the same weight as sworn testimony.[27] The trial judge identified the infirmity of the answers elicited in the record of interview by referring to the interview process as one which occurs outside the courtroom where an accused person is not subject to cross-examination by counsel. The jury were entitled to take these matters into account as they could bear upon the probative quality or weight of that evidence. But the trial judge had to also be astute not to leave the jury with any impression that such evidence was to be treated as necessarily inferior to sworn testimony. By describing the answers of the appellant as 'done in the form of a conversation with a police officer' there was a danger that the jury would understand his answers in that 'conversation' to necessarily have a different probative value to sworn evidence. Any direction which conveys to a jury that they are bound to give less weight to any unsworn statement or answers of the accused would constitute a misdirection.[28]

72 Furthermore, and with respect, the direction that it was not the task of the jury to engage in some 'objective, clinical weighing up' or analysis of the interview was wholly incorrect. The evidence of the appellant's answers in the interview had to be objectively analysed by the jury. To treat the appellant's answers in the way suggested by the trial judge risked undermining the evidentiary value that the jury might have ascribed to those answers.

73 Finally the appellant rightly contended that the answer given to the foreman's question compounded the risk that the jury might misuse the failure of the appellant to give evidence. It became all the more desirable that an Azzopardi direction be given once the foreman posed the question in the terms that he did. As the jury were clearly concerned about the differences between a record of interview and sworn evidence, they should have been warned that the appellant's failure to give evidence could not be used against him, nor could his silence fill any gaps in the evidence. The judge was in error in not directing the jury in terms of Azzopardi notwithstanding that defence counsel saw no need to do so. There was a significant risk that the jury, unless carefully instructed not to do so, would treat the appellant's failure to give evidence as providing substantial support for the prosecution case.

74 The Crown submitted that even if the trial judge's decision not to give such a direction constituted error, the judge had made it abundantly clear, throughout his charge, that the onus of proof always rested upon the prosecution, and that the jury could not convict unless satisfied beyond reasonable doubt of the credibility of the complainant. The Crown further submitted that the appellant had not demonstrated that his Honour's directions in response to the foreman's question had given rise to a substantial miscarriage of justice.

75 For the reasons that follow we do not consider it necessary to resolve the Crown's final submission that any errors under grounds 1(a) and 1(b), and 1A did not, of themselves, give rise to a substantial miscarriage of justice. We shall return to this issue after addressing ground 2.

76 Section 61 of the Crimes Act 1958 deals with jury warnings in cases involving sexual offending, and is in the following terms:

(1) On the trial of a person for an offence... -

(a) the judge must not warn, or suggest in any way to, the jury that the law regards complainants in sexual cases as an unreliable class of witness; and

(b) if evidence is given or a question is asked of a witness or a statement is made in the course of an address on evidence which tends to suggest that there was delay in making a complaint about the alleged offence by the person against whom the offence is alleged to have been committed,

the judge -

(i) must inform the jury that there may be good reasons why a victim of a sexual assault may delay or hesitate in complaining about it; and

(ii) must not warn, or suggest in any way to, the jury that the credibility of the complainant is affected by the delay unless, on the application of the accused, the judge is satisfied that there is sufficient evidence tending to suggest that the credibility of the complainant is so affected to justify the giving of such a warning; and

(iii) must not warn, or suggest in any way to, the jury that it would be dangerous or unsafe to find the accused guilty because of the delay.

(1A) If the judge, on the application of the accused in a proceeding to which subsection (1) applies, is satisfied that the accused has suffered a significant forensic disadvantage because of the consequences of the delay in making a complaint about the alleged offence by the person against whom the offence is alleged to have been committed, the judge must, in any terms that the judge considers appropriate having regard to the circumstances of the case -

(a) inform the jury of the nature of the forensic disadvantage suffered by the accused; and

(b) instruct the jury to take that disadvantage into consideration.

(1B) Despite subsection (1A), a judge must not warn, or suggest in any way to, the jury that it would be dangerous or unsafe to find the accused guilty because of the delay.

(1C) For the purposes of subsection (1A), the passage of time alone is not to be taken to cause a significant forensic disadvantage.

(1D) Nothing in subsection (1A) requires a judge to give a warning referred to in that subsection if there is no reason to do so in the particular proceeding.

(1E) A judge must not give a warning referred to in subsection (1A) or a warning to the effect of a warning referred to in subsection (1A) except in accordance with this section and any rule of law to the contrary is hereby abrogated.

(1F) Nothing in subsections (1A) to (1E) affects the power of a judge to give any other warning to, or to otherwise inform, the jury.

(2) Nothing in subsection (1) prevents a judge from making any comment on evidence given in the proceeding that it is appropriate to make in the interests of justice.

(3) Despite subsection (2), a judge must not make any comment on the reliability of evidence given by the complainant in a proceeding to which subsection (1) applies if there is no reason to do so in the particular proceeding in order to ensure a fair trial.

77 Ground 2 complains of misdirection on the part of the judge in relation to the manner in which the jury should approach the question of delay, on the part of the complainant, in bringing her complaints to the authorities.

78 In relation to this ground, the trial judge directed the jury as follows. First, having noted that no complaint was made against the appellant for some 14 or 15 years, he gave a 'forensic disadvantage' direction, in accordance with s 61(1A).[29] There is no complaint about the adequacy of that direction.

79 Next, his Honour directed the jury as to how they should approach the question of delay in terms of the complainant's credibility. He said:

The next matter I want to deal with - perhaps I will deal with that. Yes, I will deal with that now - is this, and I think it is fair to say it is perhaps crucial in this trial. The defence case, bearing in mind there's no onus of proof on an accused person, is strongly put on the basis of no complaint, in circumstances where the defence argue you would have expected a complaint. But the lack of complaint is inconsistent with the allegations being true.

Also that there is no evidence of distress as such, there is bits and pieces of that, I will deal with that when I summarise the evidence. There is no evidence of complaints to any person. I think it was said that these things could be disclosed confidentially. I do not think that happens any more. Be that as it may, whether it could have been 15 years ago. And that you would have expected there to be avoidance, not going there complaining to somebody about what was or had been occurring and that they are all matters that are inconsistent with the allegations being true, and that all comes down to an argument based on the fact that no complaint's made until a much later time.

This is a direction of law and not a comment from me. The law has found over an extended period of time, particularly in this day and age, that - and it can be very good reasons why a child does not complain. The reasons can include and it does not mean that the child has to then articulate those reasons again in later life, because those reasons may have been lost, if you like, in the sands of time.

But what you are effectively dealing with in a situation such as this is that you have a child of 11 years of age, that you have a family which has come from New Zealand and is - in terms of being in Australia, limited. She has no other connections, that she is - well it is a matter for you but I would - and it is coming from me. Intelligent girl. That in a situation like that you examine what underlying matters there might have been.

What would be the consequences for her if she did tell somebody? What would be the consequences of not being believed? What would be the consequences of family uproar in a situation where the family is essentially all you have got? What would be the effect, which you would be - does the child feel a sense of guilt, sense of blame that they have done something wrong? Is there a concern and a fear of the complete destruction or disruption of a family? I mean, it is from your own common sense. You know how important family is to children. There is the potentiality that as maybe your own experience, children just hope things will go away. That rather than deal with them, they just hope that tomorrow it will not be there.

So there is a whole lot of reasons that has been canvassed in more recent times as to why children do not complain. The situation can be also, as you would appreciate, the ones, that is the position that has been taken, that that can then extend into any one of those reasons and then extend into later life, because that is the position.

Her evidence was that she did not think that there was anybody she could turn to and that in terms of continuing to associate with the accused man and continue to associate in that family situation, she just wanted to be normal and did not want people to know she was abnormal.

Now that is the, as I understand it, the essential reason that was given to you under oath. But I simply point those other matters out to you that the experience of the court has been now, over an extended period of time that they are all matters which can - it is a matter for you in an individual case,

obviously, the matters which can operate very powerfully on a young mind in terms of - they have no - they are afraid of consequence.

In this situation she also says that, 'You're a good little girl and this is our little secret' and they are all matters for you to take into account with that, but I simply tell you as a direction of law, there are very good reasons why a child may not complain at all or show distress or discomfort. And that can be carried on into adulthood.

Now, having said that, the decision in the case remains entirely a matter for you, that is simply a direction of law I give you.

As you will appreciate, that 50 years ago that would have been the end of it in terms of social understanding of how the world works. But the law does not see it that way any more, and it remains still very much a matter for a jury, but there is no easy out with that concept of 'Did not complain, could not have happened'. There are all those other factors to be taken into account. And that is not decrying from the arguments that are put to you by the defence. All are individual arguments, individual matters for you to weigh up in the exercise of your judgment as to whether the Crown has proven its case beyond reasonable doubt.

I think that is about it so far as the law is concerned. I will discuss with counsel if there is any more law that they think I should tell you about, if there is anything I have missed, because I tend to be a bit of a shambles delivering Charges. That I should do better or something like that. So if you want to just pop out, just make it ten minutes, and I will just discuss with counsel if there is anything else I should have done, then I will come back and I will start the summary of the evidence.

80 After giving these directions, his Honour sent the jury out. He enquired of counsel as to whether they took any exception to what he had said to the jury. The following discussion took place, in the absence of the jury:

HIS HONOUR: Any exceptions to any of that?

PROSECUTOR: No, Your Honour.

DEFENCE COUNSEL: Your Honour, the only concern I have is in relation to Your Honour's directions in relation to delay.

HIS HONOUR: Yes.

DEFENCE COUNSEL: And that Your Honour make clear that that's a direction of law as well.

HIS HONOUR: I did.

DEFENCE COUNSEL: You did?

HIS HONOUR: It is, yes. I think I said it a couple of times, just to make sure they didn't think it was a comment from me, that was all. Sorry, what are you saying? I must be misunderstanding you.

DEFENCE COUNSEL: No, no, I'm just skipping through my notes, Your Honour.

HIS HONOUR: Which one are you talking about - the forensic disadvantage?

DEFENCE COUNSEL: No, the - when Your Honour said this is crucial in this trial, that no complaint had been made. Yes, I just don't have a note that Your Honour gave...

HIS HONOUR: I thought I said it twice.

DEFENCE COUNSEL: Yes.

HIS HONOUR: The difficulty with it is, and I've never quite known how to get around this, but what I used to do was, I used to say 'This is a direction of law and it's done in all trials of this nature'. But the Court of Appeal in a thing called WB said that you're not allowed to do that, you've got to do it as if it only applies to this trial. How are you supposed to do that and not make it look like it's a personal opinion? W - what was his name? WJB. I just never understood quite how you're supposed to do that. But that's why I don't say 'This happens in every trial' or anything like that, because the Court of Appeal has said that waters down the directions. So I've told them it's a direction of law a couple of times, I'm pretty confident.

PROSECUTOR: I've got a note of that, Your Honour, actually.

HIS HONOUR: Yes.

DEFENCE COUNSEL: Thank you, Your Honour.

HIS HONOUR: So we'll just see where we go with that.

DEFENCE COUNSEL: Yes.

HIS HONOUR: I'll start the summary of the facts - what time did I say? Or didn't I? I'll just give them five minutes.

(Short adjournment.)

HIS HONOUR: Very well. There's no matter anyone wants me to deal with? Bring in the jury. Actually we're probably going to get a raft of questions I think.

81 Defence counsel's exception seems to have been a complaint that his Honour had not made it sufficiently clear that all that he had said constituted a direction of law, and was therefore binding upon the jury. That objection is to be contrasted with the complaint now advanced before this Court that various matters that his Honour addressed should have been described, in terms, as comments upon the facts, and not as directions of law. On appeal it was submitted that the 'exception' taken below by defence counsel to this aspect of the charge had been entirely misconceived, since a number of the matters raised by his Honour could not possibly have been the subject of legal direction, and should not have been so characterised. They had the effect of bolstering the credibility of the complainant in circumstances where her credibility was the central issue in the trial.

82 The first point to note is that his Honour gave the jury, at an earlier stage of his charge, the orthodox direction regarding the distinction between directions of law (which are, of course, binding) and comments upon the facts (which the jury are free to disregard).

83 When it came to the matter of delay, the judge prefaced his remarks by saying, in the clearest possible terms, 'this is a direction of law and not a comment from me'. His Honour then went on to say that the law has found, over an extended period of time, and particularly in this day and age, that there can be very good reasons why a child does not complain.

84 So much seems to us to have been unexceptionable, and in accordance with s 61(1)(b)(i).[30]

85 The judge then went on to refer specifically to the complainant in this case, noting that she had been aged 11 at the time of the alleged offending, and that she had come here with her family from New Zealand. He added that the complainant had 'no other connections', and said, by way of comment (specifically so described), that she was an intelligent girl.

86 Next, his Honour posed a series of hypothetical questions. What would have been the consequence for the complainant if she had told somebody about what the appellant had done? What would have been the consequence of her not having been believed? Would there have been destruction, or disruption of the family?

87 None of these questions were prefaced with any indication of whether they involved directions of law, or were merely comments, which the jury were at liberty to disregard.

88 The judge then went on to say that there were 'a whole lot of reasons' canvassed in recent times as to why children do not complain. He reminded the jury that the complainant's evidence was that she did not think there was anyone she could turn to, and that she had wanted to be 'normal'. He then said that he had pointed out these matters because:

...the experience of the court has been..., over an extended period of time, that they are all matters which can - it is a matter for you in an individual case, obviously...operate very powerfully on a young mind.

89 It might be thought that the reference to this being 'a matter for you' was sufficient to make it clear that this particular part of the charge was in the realm of comment, rather than a direction of law.

90 Unfortunately, however, the judge went on to say:

In this situation she [sic] also says that, 'You're a good little girl and this is our little secret' and they are all matters for you to take into account with that, but I simply tell you as a direction of law, there are very good reasons why a child may not complain at all or show distress or discomfort. And that can be carried on into adulthood.

Now, having said that, the decision in the case remains entirely a matter for you, that is simply a direction of law I give you.

91 It would be quite understandable, if in the light of that particular passage, the jury were left somewhat uncertain as to the status of his Honour's remarks. His Honour's instructions on this point were at best opaque, and at worst, contradictory.

92 To complicate matters still further, his Honour went on to say, having once again identified various factors to be taken into account in assessing the effect of delay (including the defence submissions regarding that matter), 'that is about it so far as the law is concerned'.

93 In R v ERJ[31] Redlich JA addressed the way in which a direction under s 61(1)(b)[32] should be approached. The section requires the trial judge to inform the jury 'that there might be good reasons' why a complainant may delay in making a complaint. Furthermore, the trial judge, in conformity with the statutory obligation, should at least draw attention to some of those explanations which may be relevant in the circumstances of the particular case.[33] The judge was seeking to give effect to that obligation by pointing to matters such as TB's evidence that:

• she did not think that there was anyone she could turn to;
• she continued to associate with the applicant in the family as she just wanted to be and appear as normal; and
• the applicant had said to her 'you're a good little girl and this is our secret'.

94 The evidence in any given case might, as here, reveal that the complainant delayed in making complaint for particular and specific reasons. In such a case, the trial judge may, as a matter of law, direct the jury that they are entitled to consider those reasons when assessing the effect of the delay. To deal with possible explanations in that way does not suggest that the complainant had good reason not to complain. If the trial judge examines the complainant's particular reasons for not making complaint and conveys the view that they constitute good reasons for not doing so, the judge must unmistakably identify what he or she has said as comment (rather than a direction of law) so that the jury understands that they are not obliged to take those matters into account in the manner suggested.

95 The appellant submitted that, with the exception of the judge's reference to the complainant's intelligence, which he expressly characterised as a comment, the entirety of the relevant passage would have been understood by the jury as conveying binding directions of law, rather than comments they were entitled to reject. Alternatively it was submitted that there was an unacceptable risk that it would have been so understood. Later in the charge when summarising the evidence (including as to delay) his Honour referred to his earlier 'directions of law'. These directions of law related to the question whether there may be good reasons for delay in complaint.

96 The Crown, though accepting that his Honour's direction was far from perfect in this regard, argued that his references, at various points, to the matters raised as being 'matters for you', were sufficient to ensure that the jury understood that they could disregard the particular factors identified as explaining why the delay had occurred. We do not agree.

97 The question of the absence of complaint was, as his Honour reminded the jury, 'crucial' to this trial. The matters to which his Honour referred in the impugned passage, coupled with the references to the experience of the law, may well have been understood as a direction that there were in this case 'very good reasons why a child may not complain' and which could 'operate very powerfully on a young mind'. Having regard to the judge's long instruction to the jury, earlier in his charge, that he would clearly alert the jury if he was making a comment, it is likely that the jury would have treated the passage in question, save for the reference to the intelligence of the complainant, as a direction of law which the jury should take into account.

99 In arriving at this conclusion, we would not wish to be misunderstood. It is of great importance that jury directions not be scrutinised, on appeal, as though they were the words of a statute, to be trawled over, with an eye attuned towards the possibility of error. Such directions should always be read in context. They should also be read fairly, and not perversely.

100 We should add that the trial judge did not receive anything like the assistance that he ought to have been given from either end of the Bar table when he delivered his charge. When making a similar observation in R v Caine,[34] the Court observed:

... The duties of counsel in a criminal trial during and after the charge are responsible and important. Counsel for the defence are under a duty to their client to ensure that by taking exceptions to deficiencies in the charge they ensure as far as they can that their client's case is put to the jury in a way which is as favourable to the client's interest as the rules of law, including the common law right to a fair trial, require. We consider that counsel for the prosecution has a duty to take exceptions with a view to correcting errors in the charge including errors which make a conviction more likely but depart from the law. It is not in the public interest that any citizen receive other than a fair trial according to law. It is not in the public interest that a trial be followed by use of the resources of the judicial system in the expensive necessity of an appeal and a new trial.[35]

101 Although each ground has been made out, we do not regard it as necessary to consider separately the consequences of each error. The combination of errors raised by the grounds of appeal means that the convictions cannot stand. That is so notwithstanding counsel's failure to take any objection to the jury directions. The Crown's contention that there has been no substantial miscarriage of justice cannot be sustained. In combination, the failure to give an Azzopardi direction, the misdirection as to the evidentiary value that the jury might attach to the appellant's answers in his record of interview and the failure to identify with any clarity which factors going to delay were directions of law (as opposed to merely comments upon the particular facts of this case) means that the appellant was denied the trial to which he was entitled, namely, a trial according to law. It follows that the convictions recorded below should be quashed and a new trial be had.[36]

[1] There were criticisms expressed of this rule. For example, it was suggested that, in the absence of an appropriately worded comment, a jury might allow the accused's silence to assume greater significance than it ought properly to do. See for example, P K Waight and C R Williams, Evidence - Commentary and Materials (LBC Information Services, 5th ed, 1998) 492. It should, of course be remembered that until 1993, an accused in this State could elect to make an unsworn statement. That in turn required a specific direction regarding the weight to be accorded to a statement of that kind.

[2] See, for example, R v Neilan [1992] VicRp 5; [1992] 1 VR 57 (silence at trial not irrelevant for all purposes on appeal); Weissensteiner v The Queen [1993] HCA 65; (1993) 178 CLR 217; R v Rice [1996] 2 VR 406; and R v Phillips [1997] 1 VR 558 (direction to be given in joint trial where one accused gives evidence, and the other remains silent). Compare R v Emmerson (Unreported, Victorian Supreme Court of Appeal, Hayne J, 12 September 1997) 1-2.

[3] R v Porter [2003] SASC 233; (2003) 85 SASR 581.

[4] See, as to the nature of the prohibition upon comment by the prosecutor, Siebel v The Queen (1992) 57 SASR 558, 561 (King CJ).

[5] Evidence Act 2008 (Vic) s 20(5).

[6] (2001) 205 CLR 50 ('Azzopardi' or 'Davis').

[8] [1993] HCA 65; (1993) 178 CLR 217 ('Weissensteiner').

[9] Weissensteiner, 227 (Mason CJ, Deane and Dawson JJ), 235 (Brennan and Toohey JJ).

[10] [1964] HCA 73; (1964) 118 CLR 600.

[13] Azzopardi, 70 [51] (emphasis added).

[15] For example, the sample Weissensteiner direction contained in the Queensland Bench Book is itself more than two pages long. This excludes any summary of the facts which the accused has not explained.

[17] The revised transcript reads 'we simply want to know whether the record of interview is of the same importance as the sworn statement, or not the same thing'. However, the audio recording of the charge is cast in slightly different terms, and these are reflected in the passage set out in the body of the text above. In particular, the phrase 'or not the same thing' cannot be heard on the recording, although there are muffled sounds of something being said.

[18] Even that proposition was said to be doubtful, having regard to the strength of the comment by the plurality in Azzopardi that it would 'almost always be desirable' for such a direction to be given. Nonetheless, the application before this Court did not rest upon that submission.

[19] Regrettably, defence counsel, without having given the matter any apparent consideration, at once agreed.

[20] [2003] NSWCCA 23; (2003) 137 A Crim R 543 ('Colville'). See also R v Burns [2003] NSWCCA 30; (2003) 137 A Crim R 557, 568 [50].

[22] [2005] NSWCCA 20; (2005) 62 NSWLR 346, 351 [15] (Hunt AJA) ('Wilson').

[25] Quach v The Queen (2011) 35 VR 71, 90-1 [100]-[101] (Tate JA) ('Quach').

[26] The position regarding trials conducted under the ambit of the Jury Directions Act 2013 will, of course, be governed by the provisions of that Act, as properly construed.

[27] Mule v R [2005] HCA 49; (2005) 221 ALR 85, 92 [20].

[28] Rudd v R [2009] VSCA 213; (2009) 23 VR 444, 453-5 [43]-[45] quoting R v Berry and Wenitong [2007] VSCA 202; (2007) 17 VR 153, 179-80 [87]-[89].

[29] Crimes Act 1958 (Vic).

[30] Crimes Act 1958 (Vic).

[31] (2010) 200 A Crim R 270 ('EJR').

[32] Crimes Act 1958 (Vic).

[34] (1990) 48 A Crim R 464.

[35] Ibid 475 (Crockett, McGarvie and Beach JJ).

[36] On the aggregation of defects, see R v Kotzmann [1999] VSCA 27; [1999] 2 VR 123, 138 [48] (Callaway JA), 157 [115]-[116] (Batt JA), where the Court agreed that a combination or aggregation of defects relating to jury directions caused the trial to miscarry, even if that could not be said of any one of the eight grounds of appeal before the Court. See also R v Ireland [1970] HCA 21; (1970) 126 CLR 321, 331 (Barwick CJ) (with whom the other members of the court agreed); R v Gibb and McKenzie [1983] VicRp 78; [1983] 2 VR 155, 166; R v Levidis [1991] VicRp 57; [1991] 2 VR 179 at 182; R v Appleby (1996) 88 A Crim R 456, 488; R v McKellin [1998] 4 VR 757, 763 (Phillips CJ and Charles JA); R v Robertson [1998] 4 VR 30, 42 (Callaway JA).