DJF v R

Ground 3: The evidence of the appellant's behaviour 8Again, the relevant evidence and what was said in the Crown Prosecutor's address are set out in the reasons of Adams J. There was evidence on which the jury could have found that the complainant's mother was speaking of the occasion of the sleepover in question. The appellant submitted that the Crown Prosecutor had invited the jury to use the appellant's behaviour as described by the mother as evidence of consciousness of guilt, without explaining the reasoning involved, and that clear directions to the jury had been required of the nature referred to in Edwards v The Queen (1993) 178 CLR 193 at 210-11. No such directions were sought or given. 9The Crown accepted that it was "highly unlikely" that, if the matter had been raised, the judge would have permitted the evidence to be used as evidence of consciousness of guilt. The Crown submitted that it was not so used, and was not understood at the time as so used. Rather, it was submitted, the Crown Prosecutor was addressing on the complainant's credibility and seeking support for her credibility from the failure of the complainant to hug her mother on the morning. It was said that the evidence of the appellant's behaviour was incidental to the mother's description of the complainant's failure to hug her, and that it was that failure which the Crown Prosecutor suggested might be significant. 10However, the matter went well beyond the complainant's failure to hug her mother. The Crown Prosecutor reminded the jury of the appellant's behaviour in showing where the children had slept, getting the mother to "see a desk or something that his father he had" and showing some drainage he had installed, and that the mother thought this was odd. He concluded by suggesting to the jury that the appellant "was seemingly trying to preoccupy them on that morning". There was at the least a real risk that the jury would see this as an invitation to use the mother's evidence of the appellant's behaviour as evidence of consciousness of guilt, either impermissibly so or without the necessary directions, in particular directions concerning alternative innocent explanations for the suggested odd behaviour. 11It is unfortunate that the difficulty created in the Crown Prosecutor's address was not appreciated at the time, but in my opinion the risk was at least such that leave should be given under r 4 and this ground should be upheld.

Ground 5: Why would the complainant lie? 12Adams J sees no necessity to discuss this ground, but I say something of it as an occasion of practical guidance. 13At the conclusion of the summing-up the trial judge asked whether there were any questions of fact or law. Counsel for the appellant said that she had "two issues in relation to the law". The judge asked that she "just sort of outline those two now". Counsel described the second issue as a statement made by the Crown Prosecutor in his address "perhaps shifting the onus" - "HIS HONOUR: What was that? O'REILLY: 'Odd series of acts to make up.' So it might require your Honour to say something in terms of. I mean it amounts to why would she lie assertion in my submission. HIS HONOUR: Well I don't think it does. O'REILLY: It's very close to it your Honour. Your Honour did make - HIS HONOUR: The Crown just drew the jury's attention to the nature of the acts that were said to constitute the first four charges. O'REILLY: He said those words, 'It's an odd series of acts to make up', your Honour. HIS HONOUR: Members of the jury would you just go outside the court for [a] moment?" (emphasis added) 14After further debate in the absence of the jury, the trial judge declined to give a further direction to the jury. 15The appellant conceded that the Crown Prosecutor did not raise in his address the question of "why would the complainant lie". But he submitted that, in the outline by his counsel in the presence of the jury, the question had effectively been brought to the jury's attention, and that appropriate directions were therefore required. 16When the trial judge had firmly disagreed with counsel's submission, it is not easy to see that the jury could have been left with contemplation of why the complainant would lie, or that there was any miscarriage of justice in the circumstances. The practical guidance is that even outlining a matter on which further directions are sought should be done in the absence of the jury. 17I agree with the orders proposed by Adams J. 18ADAMS J : Introduction 19The appellant was convicted on 15 June 2009 of four counts of sexual intercourse with a child under the age of ten years, all offences allegedly committed on one occasion between 1 June 1998 and 31 August 1998 and also of a single count of indecent assault on the same child between 1November 1998 and 1 April 2000. The trial was very short, the evidence concluding on the first day of trial and the appellant being convicted on the following day. On 11 November 2009 the appellant was sentenced to nine years' imprisonment with a non-parole period of six years in respect of the sexual intercourse offences and a two years concurrent fixed term in respect of the indecent assault offence. The sentences commenced on 15June 2009. The appellant appeals against the convictions and seeks leave to appeal against his sentence. 20The appeal was out of time but the Crown does not grant leave for the appropriate extension. The evidence 21The evidence was briefly as follows. The complainant, who was 17years of age at the time of trial, gave evidence that, when she was nine, she and her older brother (A) were taken by her parents to the appellant's house in the suburb of Flinders and stayed overnight in a spare room. The complainant went to sleep wearing flannelette pyjamas, long pants and a long sleeved top. She said that she woke up when the appellant removed the blankets and was pulling down her pants and underwear. He was kneeling beside the bed. He put his fingers and then his tongue inside her vagina and then took her hand put her fingers in her vagina as well. He used his fingers and his tongue again. She said that she felt frightened and sore. When he went to grab her hand again she rolled over, not knowing what else to do. He replaced the blankets. Neither he nor she said anything at this time. On the following day her mother picked them up. Although her brother slept next to her, he was not disturbed. The whole incident took perhaps ten minutes. The second occasion of sexual interference occurred a year or so later, after the appellant had moved house to Shellharbour. She alleged that her parents dropped her off at the house where, in the back courtyard, there was a spa. The complainant testified that she, the appellant and his wife, her aunt, got into the spa. She was wearing board shorts and a top, the appellant was wearing Speedos. After they had been in the spa for a while the appellant took her foot, tickled it for a while, then rubbed it against his semi erect penis. The spa was switched on and the water was bubbling. She said she just sat there whilst this occurred for about five minutes, then got out of the spa as her parents' vehicle came to the driveway. (This incident gave rise to the fifth count on the indictment.) She did not know what to do when the appellant acted in this way and felt scared. The first time she said anything to anyone about these matters was in 2008 when she told her boyfriend and then went to the police where she made a formal complaint. The complainant agreed that she had stayed in the house at Flinders on a number of occasions over the period from 1998 to 2000 when her brothers went to soccer practice. Amongst other things, it was put to her that the door to the bedroom which they occupied was always left open with a light on in an adjacent room so that if they woke up at night to go to the toilet they would not be disoriented. She was unable to recall the position. 22The complainant's mother gave evidence of family interactions including overnight stays. She recalled that her sister and the appellant lived for a few years in Flinders, subsequently moving to Shellharbour. The complainant's mother testified that she and her children visited her sister and the appellant at the Flinders home on a number of family occasions and there were also occasions when the children would stay overnight by themselves. She recalled an occasion when one of her other children (B) had a sleepover with one of his friends from soccer and the complainant andA slept over at the appellant's home. It was not suggested by her that this was the only occasion when this occurred but she agreed with the suggestion of the prosecutor that it was the only one she could recall. The complainant's mother gave evidence of her recollections on the following morning. Since this evidence gives rise to one of the grounds of appeal, it is set it out in full - Q. Can you call that particular morning? A. Yes I can. Q. What can you recall about that morning? A. I can recall, I can recall it clearly because I remember at the time thinking that [the appellant's] behaviour was odd and he came, he took us in and showed us the bedroom where they slept and I thought that was odd at the time because they had slept there on occasions before and I didn't understand why he was doing that. And then I remember trying to get to [the complainant] to you know say good morning to her cause I hadn't really seen her yet. Q. To who? A. [The complainant.] Q. Right, yes? A. Sorry ... and then he said, "Come into this other room" and he was pointing out stuff like this was his father's desk and, and the books he'd just read and he looked out the window and showed us a drain he was putting in along the back fence and he'd just put in a lemon tree. And, and then I remember walking out and seeing [the complainant] and she was very quiet. Q. Was that normal for [her]? A. Not, not normally she's, she's a quiet child but I, I was expecting a hug and a cuddle from her and I didn't get it and that, that was odd and - Q. Did you speak with, don't say what you said but did you speak with [the appellant's wife]? A. [She] had told me she didn't eat her breakfast. Q. She hadn't eaten her breakfast that morning? A. And that was a bit strange and I said, "What did you offer", you know what was there and she said, "I offered, she said no to Weetbix'" and I thought, okay and then she said, "And then Ioffered her cornflakes and she didn't want those"-- O'REILLY: I object to this your Honour on the basis of hearsay. CROWN PROSECUTOR Q. That was the occasion, an occasion you recall that both [the complainant and A] stayed over? A. Yes. Q. Was this a Saturday or a weekend that they stayed - A. It was a weekend. ...... Q. There was the one occasion you can recall where A and [the complainant] stayed at [the Flinders home] when [B] went to a sleepover with a friend, that was just the one occasion you can recall? A. Yes. The complainant gave no evidence either in chief or under cross-examination dealing with this event. She simply said that on the following morning her mother had come to pick her up. 23Senior Constable Egan gave evidence that the police received the complaint concerning these matters first from the mother on 7 July 2008 and then by a statement from the complainant on 9 July 2008. The appellant's ERISP interview was tended through this officer together with a number of photographs. At the end of his evidence in chief the following was elicited - Q. Officer, as part of your investigations did you seek to obtain a statement from the accused's wife ...? A. Yes I did. Q. Did she say that she would take legal advice and get back to you? A. Yes. Q. Did she get back to you and advise you that she wasn't going to give a statement on the legal advice? A. Yeah, I contacted her. 24There was no objection to these questions. This evidence and the Crown Prosecutor's submissions to the jury in respect of it, give rise to another of the grounds of appeal. 25The appellant did not give evidence at the trial but spoke to police in a recorded interview on the same day that he was contacted by them. The appellant told police that he had nothing to hide and wanted to cooperate with the police inquiry but that he would rather have a solicitor to tell him what he should be doing in relation to answering specific questions on the alleged offences. The effect of what he said was an unqualified denial of the allegations. The prosecutor's address to the jury 26As I have pointed out, the appellant identifies two particular parts of the evidence and the Crown Prosecutor's address in respect of them which give rise to two of the grounds of appeal. So far as the first of them mentioned above is concerned, the Crown Prosecutor said this - She recalls there was an occasion when [A] and [the complainant] stayed over at the accused and [his wife's] house and this is an occasion when [B] the other brother stayed at a friend's house at a sleepover. She recalls that there was such an occasion so the opportunity that [the complainant] talks about, it seems there was an opportunity for such acts to have occurred. The evidence of the mother was that the following day she and her husband went to pick up the children and her evidence yesterday was that accused was keen to get them to see a desk or something that his father he had and show them where the children had slept which [the complainant's mother] recalled was somewhat odd because the children had slept there before and I think he also was trying to show them some drainage that he'd been putting in at the backyard. You will recall the evidence of [the complainant's mother] all she wanted to do was speak to [the complainant], say hello to [the complainant] and she didn't get the hug she expected. If this was the same morning after the events that [the complainant] has given evidence of, perhaps that's significant. If she was sexually assaulted the night before, possibly the behaviour that [her mother] has described on the next morning was behaviour that occurred after that event. Ultimately that's a matter for you to determine and whether you find it significant but it would be seen to be behaviour that from [the complainant's mother's] evidence the accused was seemingly trying to preoccupy them on that morning and [she] just wanted to see [the complainant]. 27The next passage pointed to by Mr Odgers SC for the appellant immediately follows, as it happened, from the above passage and is as follows - You've heard the evidence from the officer that there's no statement [having] been obtained from ... the wife of the accused who you may have ... expected would have been called, considering the incident which is alleged to have occurred in the spa. The Grounds of Appeal 28The appellant relied initially on five grounds of appeal. Several were abandoned at the hearing. The following two grounds of appeal seem to me to raise substantial questions about the propriety of the convictions and, on the view I take, it is not necessary to discuss the remaining grounds. Ground 1 - A miscarriage of justice resulted from the Crown Prosecutor commenting on the failure of the appellant's spouse to give evidence. Ground 3 - The trial judge erred in failing to give any directions to the jury regarding the evidence of the appellant's behaviour after the first alleged offences. 29The Evidence Act 1995 (the Act) provides as follows: 20 Comment on failure to give evidence (1) This section applies only in a criminal proceeding for an indictable offence. (2) The judge or any party (other than the prosecutor) may comment on a failure of the defendant to give evidence. However, unless the comment is made by another defendant in the proceeding, the comment must not suggest that the defendant failed to give evidence because the defendant was, or believed that he or she was, guilty of the offence concerned. (3) The judge or any party (other than the prosecutor) may comment on a failure to give evidence by a person who, at the time of the failure, was: (a) the defendant's spouse or de facto partner, or (b) a parent or child of the defendant. 30There was no issue that the appellant and his wife were still married at the time of the trial and she was potentially able to give relevant evidence in the trial, not only (as the Crown submitted) in respect of the fifth count on the indictment (since, according to the testimony of the complainant, she was in the spa at the time of the alleged indecent assault) but also as to the other alleged occasions of sexual impropriety, for example, as to the lighting and the occasion recalled by the complainant's mother. She was a compellable witness in the trial pursuant to s 279(1)(d)(i) of the Criminal Procedure Act 1986 as the offences on the indictment were proscribed sexual assault offences on a child under the age of 18 so that the provisions of s 18 of the Act did not apply. 31Counsel for the Crown in this Court submitted that the evidence elicited from the police officer was fairly standard evidence led in criminal trials by Crown prosecutors to explain why a witness has not been called by the Crown, that being the inability to obtain and to therefore serve a statement on the accused of the proposed evidence and, ultimately, to deal with a potential Jones v Dunkel (1959) 101 CLR 298 submission by counsel for the accused. One of the problems with this submission is that there was no evidence that, in fact, the refusal of the appellant's wife to provide a statement was the reason for not calling her. Nor was there any evidence as to whether, in fact, she was available to give evidence. 32The evidence of the officer did not explain, by itself, why the complainant's wife was not called. Counsel submitted here that the Director of Public Prosecutions' guidelines require service on the defence of any statement made by a witness intended to be called by the Crown and, thus, the wife could not be called since she declined to provide a statement. There is no rule, either of law or practice, that would prevent the Crown from calling a witness from whom a statement had not been obtained. Ultimately, the question is one of fairness and there are procedures available to the Court to ensure that the defence is not unfairly prejudiced when a witness is called in such circumstances. Be this as it may, there was no evidence before the jury of the guidelines; nor was the matter explained in address (though this form of providing evidence is plainly objectionable). In the result, the officer's evidence left the jury with the impression that the evidence was relevant to the issues in the case, namely whether the complainant's evidence should be accepted as truthful, but with no guidance how it could be used. The fact that the wife was unwilling to make a statement left open the distinct possibility that the jury would reason that her statement would not assist her husband and, hence, that the complainant's evidence was all the more reliable. However, no objection was taken to the evidence and no point as to it is taken in this Court by Mr Odgers, who focused (not surprisingly) on the prosecutor's address to the jury about the evidence to the effect that they (implicitly, quite reasonably) might have expected that the complainant's wife would have been called. 33Counsel for the Crown in this Court submitted that the prosecutor was attempting to explain to the jury why it was that the Crown had not called the appellant's wife to give evidence in relation to count 5. If this was the intention, it was certainly not stated in terms nor, in my view, in language which would have carried the implication now put forward. What the jury were actually left with were in effect two unexplained but apparently relevant "absences": the first, that the appellant's wife had declined to make a statement to police; and the second, that she was not called to give evidence although she might have been expected to do so. There is not, in my view, the slightest hint that the evidence or the submission were confined merely to the Crown's conduct of the prosecution. No such distinction is implied and there is no reason why the jury would have limited their consideration of this matter in such a way. 34The evidence should not have been adduced and the Crown Prosecutor's submission should not have been made in respect of any potential witness. Firm directions by the trial judge would have been required to deflect the jury from inappropriate speculation. This is not to say that the prosecution cannot lead evidence explaining why it has not called a witness whose evidence might be expected to be material. However, as Ihave mentioned, the evidence here did not provide any such explanation; nor did the prosecutor's address. 35Even assuming that the evidence carried the implication contended for in this Court, the "explanation" would necessarily have implied that the wife could have been called and was not, (for the posited reason) and, thus, was prohibited by s 20(3)(a) of the Act. Counsel for the Crown in this Court conceded that, although "comment" is not defined in the Act, it should be interpreted as any statement that directly or indirectly suggests that the accused's wife could have given evidence and did not do so, pointing to RvVillar; R v Zugecic [2004] NSWCCA 302, which dealt with the cognate issue that arises when a comment is made on the failure of an accused to give evidence. 36It is submitted by counsel for the Crown that the remarks made to the jury did not directly or indirectly comment on the failure of the wife to give evidence but rather commented on her failure to make a statement to the police "which is a separate issue and not subject to s 23 of the Evidence Act 1995". It is further submitted that the "remark is not much a comment about the failure of [the appellant's wife] to give evidence, as much as it is a comment about the failure of the Crown Prosecutor to call her to give evidence [and] in no way was it suggested that the appellant's wife had refused to give evidence [but] what was suggested was that the Crown did not call her because she had not made a statement". Whether this provision prohibits eliciting evidence that would have the effect of informing the jury that a wife could (but did not) give evidence is, perhaps uncertain, but to my mind the address by the prosecutor certainly was such a comment. 37I am unable to accept these submissions as correctly or fairly reflecting the effect of the Crown Prosecutor's submission to the jury. 38Apart from the point that the prosecutor did not mention the prosecution's omission to call her, his reference to the expectation that the wife would be called to give evidence necessarily implied both that she could have been a witness and had not been called. Insofar as there might have been an explanation for that course, he cited evidence that had been elicited in terms which invited speculation about the reasons for the wife's failure to make a statement. Even if an experienced criminal lawyer might have been prepared to draw the conclusion that the prosecutor's comment was confined to explaining why he (as distinct from the defence) had not called her, namely the absence of a statement, the jury were left in the position that they might reasonably have understood that the prosecutor was implying that the reasons why she had declined to make the statement were the reasons why she had not been called and, in the absence of any explanation by the defence, that her evidence might have endangered the defence. 39It was further submitted that the prosecutor's submission did not give rise to the "vice" that the statutory provision was designed to stop. I do not accept this submission either. The clear vice to which the prohibition was directed was to prevent a jury, so far as is possible, from speculating, at the behest of the Crown, as to what reasons there might have been for a witness not being called and it makes no difference, therefore, which party might have been expected to call the wife. The section does not, for good reason as it seems to me, make any such distinction. 40Counsel for the Crown here submitted that, if indeed the submission of the prosecutor did amount to "comment" then it did not result in a miscarriage of justice except in relation to the fifth count. However, as suggested above, it may well have been the case that the appellant's wife was capable of giving relevant evidence in relation to matters other than those directly concerning the fifth count, for example as to the movements of the appellant on the night in question, the lighting available and whether doors were open or closed. It is not for this Court to speculate on what evidence the appellant's wife might have been thought by the jury as able to give. It may be, as was submitted, that the prosecutor had not suggested that the failure of the appellant's wife to give evidence could be taken as an indication that it might have incriminated the appellant. However, this submission ignores the reality of the situation and the reference to the expectation of the jury that she would be called, which was made without distinction as between prosecution and defence. Looked at logically, it may be that the jurors might reason that the Crown would not call her because it did not know what she might say but they may well have thought that the accused would know what she might say and thus infer that her evidence would not assist him and explain why he had not called her. In my view, the section prohibits the Crown from commenting on the failure of an accused's wife to give evidence in order to avoid any such speculation. 41As the brief outline of the evidence shows, this was a case, essentially, of word against word (although the accused did not give evidence). Such cases are difficult to determine and it would not be surprising if the jury looked at any circumstances, such as the way in which the trial was conducted and, in this case, the failure to call an expected witness, as providing support, to a greater or lesser extent, for subjective beliefs as to who was telling the truth in particular, of course, the complainant. It seems to me, therefore, that the combination of the evidence and the Crown Prosecutor's submission in respect of it carried the real risk of inadmissible speculation by the jury, which required at the least, strong directions from the trial judge that any such reasoning must be avoided. 42In my view, in light of the breach of the statutory prohibition and the risk of significant unfair prejudice to the appellant, Rule 4 should not prevent the appellant from relying on this ground of appeal. It was not submitted that there could have been some tactical advantage for not taking the objection or seeking the redirection. 43In my view this ground of appeal has been made out. 44I now move to ground of appeal 3. The thrust of the submission of MrOdgers in respect of this ground was that the Crown Prosecutor's address invited the jury to use the evidence of the appellant's behaviour as described by the complainant's mother as evidence of consciousness of guilt, without explaining precisely the process of reasoning involved. The prosecutor, describing the evidence in some detail, submitted that the appellant's behaviour was an attempt to preoccupy the complainant's parents and divert them from paying attention to their daughter. MrOdgers submitted that this implied that the appellant was aware of something that the complainant might say that incriminated him, in the particular context, that he had sexually abused the complainant, and was worried that she might tell her mother. In short, the jury was invited to infer consciousness of guilt. It is submitted by Mr Odgers that when conduct is relied upon by the prosecution as evidence of consciousness of guilt, that evidence should be precisely identified, as should the circumstances and events that are said to indicate that it constitutes as it were an admission by conduct. A principal authority relied on for this submission is Edwards v The Queen (1993) 178 CLR 193 particularly per Deane, Dawson and Gaudron JJ at 210 - 211. Although Edwards was, of course, concerned with the significance of post-offence lies, it seems to me that the fundamental thrust of the requirements concerning the use of lies as evidence of consciousness of guilty must apply to all post-offence conduct said by the Crown to fall into this category. In every case, it is for the Judge to determine whether the evidence relied on as consciousness of guilt is capable of being so regarded. If the evidence is admitted for that purpose, careful directions are needed to ensure that the jury is made aware of the way in which such evidence is to be examined. 45In R v Nguyen (2001) 118 A Crim R 479 the question was whether, when the accused shot his wife (which was admitted), he had done so with murderous intent or, as he claimed, accidentally. Winneke P (with whom Chernov JA and Smith AJA agreed) said (at 489) - The probative strength of post-offence conduct, such as concealment of weapon or flight, with or without "covering lies", will depend upon many factors including the circumstances in which the conduct occurred and the issue in proof of which the evidence is tendered. If it is open to be used by the jury for the purpose of drawing an inference as to the state of the accused's mind at the relevant time, the conduct will have to be assessed in the light of the probabilities. But, because such evidence is capable of being misused by the jury, the interests of a fair trial to the accused require, as I think they are required in this case, a careful direction from the trial judge of the type referred to in Edwards. Such a direction should have involved a specific identification by the trial judge of the conduct being relied upon by the Crown to prove murderous intent; a direction that they could only use such conduct as proof of guilt if they were satisfied that there was no other explanation, consistent with innocence for it; and that the accused only engaged in the conduct because he knew that revelation of the truth would implicate him in the offence charged. Properly directed, the jury should also have been told that conduct such as that relied on by the Crown could stem from reasons other than realisation by the accused of his guilt of the crime charged, what those other reasons might be, and that, if they accepted that a reason of that kind was the explanation for the conduct, they should not use the evidence as probative of guilt. (footnotes omitted) 46In my view, the evidence relied on in this case could not be used as consciousness of guilt by the jury. 47In R v Ho (2002) 130 A Crim R 545, the Crown Prosecutor invited the trial judge to give a direction on flight as evidencing guilt. The case for the defence was that the accused's flight was attributable to wrongful conduct other than that said to constitute the alleged offence. It was submitted on appeal that the evidence of flight was not capable of supporting an inference of guilt and, hence ought not to have been admitted. Bell J (with whom the other members of the Court agreed) held that the mere fact that a credible explanation could be advanced did not render the evidence inadmissible (unless it was intractably neutral), nor was it necessary that the prosecution prove the conduct beyond reasonable doubt (see at [52] and [55]). 48The most obvious point to be made is that the mother's evidence could only be material if it indeed followed the night on which the complainant alleged the appellant had misconducted himself. Given that the complainant, not surprisingly, was unable to be precise about the date upon which the alleged offences occurred and said, in effect, that she had on (perhaps many) other occasions slept over at her uncle's house and also had not described any of the conduct to which her mother testified as having occurred on the following morning, there was no proper basis upon which a jury could infer with any relevant or significant degree of likelihood that the events described by her mother took place at the material time. Nor did the complainant's mother fix the date with any useful particularity. Her evidence did not permit the conclusion that the occasion which she recalled was the only occasion on which the complainant and A had overnighted at the appellant's house, although she said that this was the only occasion that she remembered . It would be reasonable to infer that she remembered it because of the "oddness" to which she referred and, hence, that there may well have been other occasions when the complainant and A overnighted at the appellant's house which were forgotten because nothing of any significance had occurred. This issue was not explored by the prosecutor in the mother's evidence. The date was fundamental to the relevance, let alone the significance, of her evidence. 49In my view, the evidence as it stood could not have permitted the jury to find to any degree of reasonable satisfaction that the mother was describing events that occurred following the evening of which the complainant had given evidence. The Crown Prosecutor did not submit to the jury that the evidence enabled the inference to be drawn that there was only one sleepover involving the complainant and A. Moreover, the submission that the appellant's conduct was an attempt to delay communication between the complainant and her mother was little more than speculation; certainly he made no attempt to elicit with any precision from the complainant's mother what actually occurred. Given that the events were being described ten years later the risk of reconstruction or confabulation was substantial. 50In my opinion, had the trial judge been asked to direct the jury that this material could not be used as consciousness of guilt, such a submission would have been irresistible. 51As I mentioned, assuming the evidence was rightly admitted and the Crown submitted that it demonstrated the appellant's consciousness of guilt, careful directions were required as to the appropriate approach to be taken by the jury. To adapt the language of Deane, Dawson and GaudronJJ in Edwards (at 210 - 211) to the circumstances in the present case, the conduct in question should have been precisely identified, as should the circumstances and events that were said to indicate that it constituted an admission by conduct and the jury should have been instructed that they could take the conduct into account only if they were satisfied, having regard to those circumstances and events, that it revealed a knowledge of the offence or some aspect of it and occurred because the accused knew he had committed the offences and was attempting to conceal his guilt. Moreover, the jury should have been instructed that there could be other explanations for the conduct in question, such as the innocent desire to show the mother the things that she identified or even a wish to deflect some attention from the complainant for some other reason concerning an interaction having nothing to do with any sexual misconduct. The jury would need to be warned of the fundamental importance of being satisfied that the conduct relied on actually occurred on the morning after the night during which the complainant alleged the sexual misconduct occurred, in the context of the prosecution's inability to identify any occasion by either date or some particular unique event, not only by way of the evidence of the complainant but also her mother. Furthermore, the mother's evidence concerned events that had occurred some ten years previously, when visits to her sister's house to collect her daughter and younger son were or may have been not infrequent. The possibilities of misdating or confabulation must necessarily have been real risks which should have been brought to the jury's attention. 52In my respectful view, it was incumbent upon the trial judge (adapting the language in Zoneff v The Queen (2000) 200 CLR 234 at [17]) to inquire of the prosecution whether it contended that the identified conduct was submitted to constitute evidence of consciousness of guilt and, if so, require identification of the particular conduct in issue and the basis of which it was said to be capable of implicating the appellant in the commission of the offence charged. 53In this Court counsel for the Crown submitted that the prosecutor did not seek to rely on the evidence of the mother as evidence of the accused's consciousness of guilt and contended that the Prosecutor was relying on it merely as evidence supporting the credibility of the complainant, pointing to his reference to the complainant's not hugging her mother that morning. However, this did not support the complainant's credibility in any respect: first, the complainant did not give any evidence at all suggestive of such conduct on her part; and, secondly, the mere fact of an initial reluctance to hug her mother could not support the allegation that she had been subjected to sexual improprieties by the appellant. Nor does the contention deal with the conclusion expressly put to the jury that focused entirely on the appellant's suggested motive for his "odd" behaviour and was plainly the point sought to be made. [It was also submitted that the evidence "helped to locate the relevant day and the opportunity that the alleged offence occurred" (sic).] Of course, this could only do so if the behaviour of the appellant was to be explained by the sexual assaults having occurred the previous night, thus again depending on consciousness of guilt reasoning. Moreover, the Crown Prosecutor at trial did not attempt to use the evidence in this way, except by the implication that followed from the attribution of the appellant's motive. (I have already dismissed the possibility that the evidence as to the failure of the complainant to immediately greet her mother was probative of any relevant fact; nor was it relevant to an assessment of her credibility.) 54It was further submitted in this Court that the mother's evidence would not have been given any real significance by the jury. I am unable to accept this submission. In a case such as this, where there is no supporting evidence for either prosecution or defence, the jury would quite reasonably - and inevitably - search for material that might be able to be used one way or another to resolve the issue of the appellant's guilt or otherwise. The very paucity of the evidence would have been likely, in my opinion, to give rise to a substantial risk that the jury would give undue weight to this material, especially in light of the failure of defence counsel to take up the matter in address. 55This ground of appeal directly concerns the first set of offences, but the impact on both the complainant's credibility and that of the appellant's denials of wrongdoing of acceptance of her evidence in respect of the those offences inevitably affects the verdict in respect of the fifth count. 56It was submitted that leave to raise this ground of appeal should be refused under Rule 4, since counsel for the defence did not seek any correction or a direction from the trial judge upon the issue. Tendered without objection in the appeal was the affidavit of defence counsel at the trial in which she deposes that she did not seek a direction based on Edwards or Zoneff since it had not occurred to her that that there might be an obligation on the trial judge to give directions in accordance with those authorities. She denied that she thought the matter was insignificant or made a tactical decision not to seek a concession or a direction. In my opinion, the omission to clarify the basis upon which the evidence of the complainant's mother was tendered and the absence of clear directions to the jury as to the way in which it should be approached amounted to a miscarriage of justice such as to permit the ground of appeal to be raised, despite the failure of defence counsel to seek the required directions. 57It was regrettable that the Crown Prosecutor did not consider the character of the reasoning which he was exhorting the jury to undertake and apprehend the necessity to do so with care and assist the trial judge to give the jury appropriate directions. After all, as he was making the submission, he had primary responsibility for ensuring the matter was appropriately addressed, not only by him but also the trial judge. It is also regrettable that defence counsel had not appreciated the applicability of the requirements of the authorities. In the result the learned trial judge was left without the assistance to which he was entitled. Conclusion 58In my view each of the errors identified above caused the trial to miscarry and requires the convictions to be quashed. Accordingly, Ipropose that time for bringing the appeal be extended to 19August 2010, the appeal be upheld, the convictions be quashed and a new trial be ordered. 59R A HULME J : I concur with the orders proposed by Adams J for the reasons given by Giles JA.

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