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[2026] NSWCCA 171
General information, not legal advice.
Court of Criminal Appeal (NSW)
2026-10-21
Ward P; Hamill J; Fagan J
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Source: NSW Caselaw (www.caselaw.nsw.gov.au). Converted to plain text by ZoeLaw. Not the official version.
Medium Neutral Citation: Galey-Newbury v R [2026] NSWCCA 171
Hearing dates: 2 September 2026
Date of orders: 2 September 2026
Decision date: 21 October 2026
Before: Ward P; Hamill J; Fagan J
Decision: 1. Extend the time for the filing of the application for leave to appeal against the conviction.
2. Grant leave to appeal.
3. Allow the appeal.
4. Quash the convictions and the sentence imposed.
5. Order a re-trial on each of the counts and remit the matter to the Gosford District Court on Thursday 10 September 2026.
Catchwords: CRIME – Appeals – Appeal against conviction – Consciousness of guilt reasoning – Crown submission that applicant and his co-accused gave a mutually false account in their evidence at trial and reliance on this as demonstrating a consciousness of guilt – Summing up repeated the reference to a mutually false account – Circularity of reasoning as to consciousness of guilt – Direction did not cure prejudice – Miscarriage established CRIME – Appeal raising issue materially indistinguishable from earlier appeal by co-accused – Principles as to whether to depart from the previous decision of the Court of Criminal Appeal – Principle of equality before the law requires that differently constituted bench of the same court should follow earlier decision unless compelling reason to depart
Original judgment source is linked above.
Legislation Cited: Crimes Act 1900 (NSW), ss 61J(1), 61JA(1), 61KD(1)(a)
Criminal Appeal Act 1912 (NSW), ss 5(1)(b), 5(1)(c), 6(1), 8, 10(1)(a)
Evidence Act 1995 (NSW), s 38
Supreme Court (Criminal Appeal) Rules 2021 (NSW), rr 3.5(2), 4.15
Cases Cited: Brawn v The King (2025) 99 ALJR 872; [2025] HCA 20
Edmunds v Edmunds and Ayscough [1935] VLR 177
Edwards v The Queen (1993) 178 CLR 193; [1993] HCA 63
Galey-Newbury v R [2026] NSWCCA 140
Kwu v R [2024] NSWCCA 199
Liberato v The Queen (1985) 159 CLR 506; [1985] HCA 66
llievski v R; Nolan v R (No 2) (2023) 112 NSWLWR 375; [2023] NSWCCA 248
Ozgen v R (Cth) [2025] NSWCCA 65
Paulley v R [2026] NSWCCA 75
Scaysbrook v R [2022] NSWCCA 69
Symons v R; McDonald v R [2024] NSWCCA 212
Category: Principal judgment
Parties: Caleb Galey-Newbury (Applicant)
The Crown (Respondent)
Representation: Counsel:
Ms A Cook SC (Applicant)
Ms E Nicholson SC (Respondent)
Solicitors:
Peninsula Law (Applicant)
Office of the Director of Public Prosecutions (Respondent)
File Number(s): 2021/00356742
Publication restriction: Publication restricted until after Applicant’s re-trial
The applicant, Caleb Galey-Newbury, was convicted, following a trial by jury in the District Court jointly with his co-accused, Jayden Paulley, of two counts of aggravated sexual intercourse without consent (in company) contrary to s 61J(1) of the Crimes Act 1900 (NSW) (Crimes Act), one count of aggravated sexual intercourse without consent in company (recklessly inflict actual bodily harm) contrary to s 61JA(1) of the Crimes Act, and one count of aggravated sexual touching (in company) contrary to s 61KD(1)(a) of the Crimes Act. Those convictions were based on an allegation of joint criminal enterprise with his co-accused.
The applicant sought an extension of time and leave to appeal from his convictions on the ground that a miscarriage of justice was occasioned because the Crown case was left to the jury on the basis that the applicant’s version of events was a consciousness of guilt lie.
In Paulley v R [2026] NSWCCA 75 (Paulley v R), the Court of Criminal Appeal (Kirk JA, Emmett and Roberts JJ) upheld the same ground of appeal in relation to Mr Paulley, finding that there was an error or irregularity in the co-accused’s trial which could realistically have affected the reasoning of the jury to its verdict and that a miscarriage of justice was occasioned, quashing his convictions and ordering a new trial.
On the present application, this Court granted leave to appeal and an extension of time for the appeal; allowed the applicant’s appeal against conviction; quashed the applicant’s convictions and made orders remitting the matter for a new trial. The applicant (for separate reasons given ex tempore on 2 September 2026) was released on bail.
The Court (Ward P, Hamill J, Fagan J), allowing the conviction appeal, held:
(1) The Prosecutor’s address invited the kind of impugned circular reasoning against which the High Court warned in Edwards v The Queen (1993) 178 CLR 193. One cannot extract the admission “I did the act” from an assertion that “I did not do the act”.
Edwards v The Queen (1993) 178 CLR 193; [1993] HCA 63 and Edmunds v Edmunds and Ayscough [1935] VLR 177 applied.
(2) There is no material distinction between the issues raised in this appeal and those determined in Paulley v R. The applicant and his co-accused were tried jointly. The impugned portions of the Crown Prosecutor’s closing address and the summing up of the trial judge applied to both of the accused in a manner that was materially indistinguishable. The appeal involved the same point arising from the same trial for a co-accused in the same position as the applicant, as was the case in Kwu v R [2024] NSWCCA 199 (Kwu v R). For the reasons explained in Kwu v R, the appeal must be allowed. None of the countervailing imperatives contemplated in that case as warranting a different conclusion here applied.
Kwu v R [2024] NSWCCA 199; Paulley v R [2026] NSWCCA 75, referred to.
THE COURT: On 2 September 2026, this Court heard an application by Mr Caleb Galey-Newbury (the applicant) for leave to appeal against his convictions for a number of sexual offences against a single adult complainant. Those convictions were based on an allegation of joint criminal enterprise with his co-accused (Mr Jayden Paulley). Mr Paulley was also convicted of those offences and of additional offences with which he was individually charged.
On 1 March 2024, the applicant was sentenced to an aggregate sentence of 9 years imprisonment commencing on 30 August 2023 with a non-parole period of 4 years and 6 months. There is no application for leave to appeal against sentence. The trial judge sentenced Mr Paulley to an aggregate sentence of 17 years’ imprisonment commencing on 30 August 2023 with a non-parole period of 8 years and six months.
The applicant’s sole ground of appeal is that a miscarriage of justice was occasioned because the Crown case was left to the jury on the basis that the applicant’s version was a consciousness of guilt lie. That same ground of appeal was upheld in an earlier conviction appeal brought by Mr Paulley (see Paulley v R [2026] NSWCCA 75 (Paulley v R)).
In Paulley v R, the Court (Kirk JA, Emmett and Roberts JJ) held that what occurred in relation to the submissions made (and repeated in the summing up) as to consciousness of guilt on the part of each of Mr Paulley and the applicant having been demonstrated by the giving of a mutually false account in their evidence at trial constituted an error or irregularity in the trial which could realistically have affected the reasoning of the jury to its verdict and that a miscarriage of justice was occasioned (see at [69]-[70]). The Court quashed Mr Paulley’s convictions and ordered a new trial (see at [201]).
When the applicant’s matter came before this Court for hearing on 2 September 2026, we granted leave to appeal and an extension of time for the making of the application for leave to appeal; allowed the applicant’s appeal against conviction; quashed the applicant’s convictions; and made orders remitting the matter for a new trial (see orders made on 2 September 2026). The applicant was released on bail (see the separate bail judgment – Galey-Newbury v R [2026] NSWCCA 140). We indicated that we would provide our reasons for so doing as soon as practicable.
These are our reasons for allowing the applicant’s conviction appeal.
(a) two counts of aggravated sexual intercourse without consent (in company) contrary to s 61J(1) of the Crimes Act 1900 (NSW) (Crimes Act) (Counts 1 and 6); (b) one count of aggravated sexual intercourse without consent in company (recklessly inflict actual bodily harm) contrary to s 61JA(1) of the Crimes Act (Count 3); and (c) one count of aggravated sexual touching (in company) contrary to s 61KD(1)(a) of the Crimes Act (Count 8).
The applicant accepted that leave to appeal is required for three reasons. First, because the sole ground of appeal is one that involves a question of mixed law and fact (s 5(1)(b) of the Criminal Appeal Act 1912 (NSW) (Criminal Appeal Act)). Second, because r 4.15 of the Supreme Court (Criminal Appeal) Rules 2021 (NSW) (Supreme Court (Criminal Appeal) Rules) applies in circumstances where no objection was taken by counsel for the applicant at trial in relation to the direction that is sought to be impugned on appeal. Third, because the appeal is out of time (see s 10(1)(a) of the Criminal Appeal Act and r 3.5(2) of the Supreme Court (Criminal Appeal) Rules), having been filed on 2 July 2026 approximately 2 years and 3 months after the expiry of the applicant’s notice of intention to appeal (which was filed on 19 March 2024).
In relation to the second of those reasons, the applicant submitted that there was no tactical reason to fail to object or complain and that the issue raised by his ground of appeal cannot be explained by an “atmosphere of the trial” such that the approach of the Crown was not, in fact, unfair or erroneous (cf Scaysbrook v R [2022] NSWCCA 69 at [122](iv)). Rather, the applicant submitted that the failure to complain did not lead to the conclusion that the trial was not unfair and hence r 4.15 would not otherwise defeat the ground if there has been a miscarriage of justice.
In relation to the third of those reasons, the applicant’s solicitor filed an affidavit affirmed on 2 July 2026 explaining the delay. The applicant submitted that, if the appeal would otherwise be allowed, that delay would not prevent leave being granted to appeal pursuant to s 5(1)(c) of the Criminal Appeal Act (citing Ozgen v R (Cth) [2025] NSWCCA 65 at [17]).
The respondent did not oppose the grant of leave or extension of time sought by the applicant. In circumstances where (on the reasoning in Paulley v R) a miscarriage of justice has been established (as explained below), it was appropriate for leave to appeal and the necessary extension of time to be granted.
The complainant was 18 years old at the time of the alleged offences (20/09/23; T 40) and met Mr Paulley via the Tinder app on which they exchanged messages (20/09/23; T 37). On 11 November 2021, she went to his residence, which was his mother’s house, and they had consensual sexual intercourse (20/09/23; T 37-40). They spoke about meeting again in the future (20/09/23; T 40).
The next time the complainant saw Mr Paulley was on 21 November 2021 (20/09/23; T 41). Mr Paulley called the complainant at about 5:20am using the Snapchat app (20/09/23; T 42). She agreed to come over and he booked her a taxi to his mother’s house (20/09/23; T 43). While in the taxi, Mr Paulley told her that he had a friend over and the complainant said words to the effect of “Why is your friend there? You’re not – he’s not to touch me. I was coming to see you” (20/09/23; T 43). Mr Paulley also told the complainant that they would snort cocaine off of her (21/09/23; T 66).
The taxi dropped the complainant off at Mr Paulley’s mother’s house at 6:06am on 21 November 2021 (21/09/23; T 53-54). Mr Paulley let her in and took her to his bedroom (21/09/23; T 57). The applicant was lying down on a mattress (21/09/23; T 61). Mr Paulley closed the door behind them (21/09/23; T 61).
Mr Paulley told the complainant to bend over on the bed so they could do cocaine off her buttocks (21/09/23; T 64). He lifted up the back of her Oodie (a one piece outfit), under which she was not wearing any clothes (21/09/23; T 64), and they had the cocaine (21/09/23; T 66). While they were doing the cocaine, the complainant said “you’re both not fucking me” and “Don’t put me on the spit” (21/09/23; T 72).
After they had all consumed some cocaine, Mr Paulley told the complainant to “Give me head”, and she did so (21/09/23; T 68-69). The complainant was on the bed at the time and naked (21/09/23; T 68-69). The applicant had removed his pants and was masturbating while the complainant was engaged in oral sex with Mr Paulley (21/09/23; T 70-71). Mr Paulley ejaculated and continued touching the complainant (21/09/23; T 71).
The applicant then took a beer bottle from the wardrobe, opened it and passed it to Mr Paulley, who had a sip and then put the neck of the bottle into the complainant’s vagina (21/09/23; T 72, 74, 76-77). It hurt the complainant, who said “Get it out of me” (21/09/23; T 78). The complainant put her hand down and took the bottle out (21/09/23; T 78).
Mr Paulley then put the complainant in a headlock (21/09/23; T 79). The applicant was touching the complainant’s vagina and masturbating, and the applicant told her to look at him (21/09/23; T 80-82). The applicant then stopped, got dressed and left (21/09/23; T 82). It was very abrupt and the complainant did not see the applicant again (21/09/23; T 84). Mr Paulley remained in the bedroom (21/09/23; T 84). Mr Paulley told her that the applicant had a “missus” (21/09/23; T 85).
The complainant was in pain from the bottle, and there was also blood (21/09/23; T 85-86). The complainant got up to leave and said “I have to leave”, but Mr Paulley said “You’re not leaving” (21/09/23; T 90). They both laid down on the bed and Mr Paulley fell asleep (21/09/23; T 90). The complainant then sent text messages to a friend (21/09/23; T 90-94).
Eventually, Mr Paulley moved the complainant’s hand to his penis and she was “performing, like, a hand job on him, basically” because “he moved my hand to his penis” and “I didn’t know what else to do” (21/09/23; T 94-95). They then had sexual intercourse (21/09/23; T 95). She did not want to do so, but she did not know what else to do (21/09/23; T 95). She mentioned that she was in pain (21/09/23; T 96). Mr Paulley told her “Do you like it when I rape you?”, she replied “Yes” and he said “Tell me you like it when I rape you” (21/09/23; T 96). She was in “auto mode” (21/09/23; T 96). Mr Paulley was being quite aggressive towards her, had a hand on her neck and was choking her for a few seconds (21/09/23; T 97). She said “Stop” and “It’s hurting me” and she removed his hand (21/09/23; T 99).
While they were still having sex, Mr Paulley filmed them twice (21/09/23; T 99-100). She did not consent to this (21/09/23; T 99).
The complainant left and her friend picked her up (21/09/23; T 104).
After this evidence, the Crown Prosecutor successfully obtained leave pursuant to s 38 of the Evidence Act 1995 (NSW) to cross-examine the complainant, as she had not given any evidence in support of some of the counts at that stage (counts 1 and 6) (21/09/23; T 123-125). In that cross-examination, the complainant gave the following evidence. While doing cocaine, Mr Paulley slapped her right bottom cheek and the applicant slapped her left bottom cheek (27/09/23; T 97). After Mr Paulley put her in a headlock, he told the applicant to “put your dick in her mouth” and the applicant did so and forced her to give him oral sex (27/09/23; T 98). The complainant said that she said “stop, get it out” but he kept going until he pulled his penis out about 30 seconds later, stroked it with his own hand and ejaculated on her face (27/09/23; T 98-99).
The complainant said that when the bottle was in her vagina, Mr Paulley had his hand over her mouth and said to “Be quiet” and “Shut up”, and that the applicant was standing near her head the whole time watching (27/09/23; T 104).
The complainant said that the applicant lay down on the bed and Mr Paulley grabbed the complainant and plopped her on top of the applicant (27/09/23; T 104-105). Mr Paulley then pushed a little bit of his penis into her anus (27/09/23; T 105). The complainant said “Get it out” and Mr Paulley pulled it out (27/09/23; T 105, 108). The complainant said that the applicant was touching her vagina at the time while he masturbated (27/09/23; T 105-106). The complainant also gave further evidence about having sexual intercourse with Mr Paulley when he was choking her (27/09/23; T 110-113).
Mr Paulley gave evidence that he communicated with the complainant on Tinder and then Snapchat and had consensual sexual intercourse on 11 November 2021 (06/10/23; T 504-505); that he then called her via Snapchat in the early hours of 21 November 2021 to ask if she wanted to come over (06/10/23; T 506-507); and that he told her “I’ve got a mate staying over as well on the mattress” and she said “Yes, that’s fine” (06/10/23; T 507).
Mr Paulley said that, while she was on the way in the taxi, he asked her if he and the applicant could “snort coke off your ass” and she said yes (06/10/23; T 508). Mr Paulley said that she also said, “Oh, youse aren’t put me on the spit” and “Well, your mate’s not touching me” and that he said “Yeah, all good, I never said he was going to touch you. I said he was going to sleep on the mattress” (06/10/23; T 508).
The complainant arrived and she, Mr Paulley and the applicant were then in Mr Paulley’s bedroom (06/10/23; T 509). Mr Paulley took a bag of cocaine out of his pocket and asked, “Oh, are we still good to rack it off your ass” (06/10/23; T 509). He said that the complainant said yes, and he and the applicant did so (06/10/23; T 509).
Mr Paulley and the complainant started kissing and he started putting his fingers in her vagina (06/10/23; T 510). Mr Paulley said that the applicant was on the mattress and she tried to reach over to him to try to get him involved but the applicant said, “No, I’ve got a missus” (06/10/23; T 510-511). Mr Paulley then grabbed the mattress, put it in the lounge room next to his bedroom and the applicant left (06/10/23; T 511). Mr Paulley and the complainant then kept having sex (06/10/23; T 511). Mr Paulley thought he may have ejaculated and his “penis started going soft” (06/10/23; T 513). Mr Paulley said that he started to finger the complainant and tried to put his penis into her vagina but it was not working (06/10/23; T 513). He said that he grabbed the bottle and asked “Can I use this?” and the complainant said “Yeah” (06/10/23; T 513). He then put it into her vagina four times (06/10/23; T 513). Mr Paulley said that the complainant said, “Oh my God, oh my God” and he said to her to be quiet (06/10/23; T 514). He did not want his mother to hear (06/10/23; T 514).
Mr Paulley and the complainant then lay down in the bed (06/10/23; T 514). Mr Paulley sent text messages to the applicant (06/10/23; T 514-519). (The text messages were Ex JP3.) Asked about these, Mr Paulley said “I wasn’t going to tell his missus that he was in the room when he snorted coke off her arse” (06/10/23; T 519).
After messaging the applicant (until 7:18am), Mr Paulley then fell asleep (06/10/23; T 519). When he woke up, he asked the complainant, “Do you want to fuck again” and she said yes (06/10/23; T 520). They then had sexual intercourse, which is what he filmed (06/10/23; T 520-522).
In cross-examination, it was put to Mr Paulley that the text messages in Ex JP3 (see below) were about Mr Paulley and the applicant sexually assaulting the complainant (not snorting cocaine). Mr Paulley said that the word “I” in “I did nothing” in one of the text messages (Mr Paulley’s message to the applicant that “…just remember I did nothing idk why your overthinking it”) was a mistake, either an autocorrect or a typographical error, and should have been “you” (09/10/23; T 585-586).
The Crown Prosecutor put a number of what he referred to as “some global propositions” to Mr Paulley to the effect that Mr Paulley had spoken to the applicant about the prosecution brief of evidence and that they agreed on the evidence to be given (09/10/23; T 609-610). There was the following evidence (09/10/23; T 611-612):
Q. First, it was agreed between you and [the applicant] that the first sexual act, namely [the applicant] putting his penis in [the complainant’s] mouth at your direction whilst you held her in an arm around her neck, that that sexual act didn’t happen. That was the agreement between the two of you.
A. We never had any agreement, actually.
Q. Secondly, that [the applicant] left the bedroom before the insertion of the beer bottle by you in [the complainant’s] vagina, and that he was not present in the room, and did nothing - well, I’ll just break that down. There was an agreement between you that--
MOIR: I object at this stage. I’m not sure if my friend’s putting a proposition or if he’s asking him.
HER HONOUR: He’s putting a proposition. There’s an agreement.
CROWN PROSECUTOR
Q. That is, he left the bedroom before the insertion of the beer bottle incident--
A. There was never--
Q. --even though he was present at the time.
A. There was never agreement. That’s the honest truth. He did leave the bedroom.
Q. Well, he left the bedroom - we know that. But I’m putting to you the agreement was between you that whilst both of you were there and when you inserted--
A. There was no agreement.
Q. --the beer bottle - well, listen to the question. He was present in the bedroom with you whilst you inserted the beer bottle in [the complainant’s] vagina, and the agreement was - so, he has done nothing to assist or encourage you to commit that violent sexual assault?
A. No.
Q. Thirdly, there was an agreement between the two of you that [the applicant] was not in the bedroom to commit the offence of sexually touching [the complainant’s] vagina. That’s the agreement - that he was out of the room and couldn’t have committed the offence that [the complainant] has given evidence about?
HER HONOUR: So, this is an agreement as to the version they would give at court, is that what you mean?
CROWN PROSECUTOR: That is right.
Q. What I will ultimately [be] putting is that there is a mutually false account given at trial in relation to your defence of these charges. Do you understand? Agree or disagree with that.
A. Disagree.
Q. And the agreement was that you did not penetrate [the complainant’s] anus with your penis because the agreement was he was out of the room and wouldn’t be able to give evidence about what happened in the bedroom?
A. No.
The applicant’s evidence may be summarised as follows. At the time of 21 November 2021, and at the time of trial, he had a partner, Jacinta (09/10/23; T 614.38-48). Together with Jacinta, he has a stepchild and biological child (09/10/23; T 615.4-7). At the time of trial he was supporting Jacinta, who was on maternity leave (09/10/23; T 615.15-16).
On 21 November 2021, the applicant arranged to go out with Mr Paulley and their friend, Aaron (09/10/23; T 615.18-22). They were all close friends and knew each other from school (09/10/23; T 615.28-31). Jacinta was aware that the applicant was going out and had set some ground rules for him (09/10/23; T 615.39-43).
The applicant and the co-accused went to TGI Fridays while waiting for Aaron, then they all met at The Bavarian before going to a party and afterwards they went to Aaron’s girlfriend’s house (09/10/23; T 616.5-13). From there the applicant and the co-accused went to the co-accused’s home (09/10/23; T 616.18-19).
When the applicant arrived at the co-accused’s house they said “g’day” to the co-accused’s mum and got the mattress out of the garage (09/10/23; T 616.31-32).
When the applicant entered the co-accused’s bedroom he sat down on the bed, took his shirt and shoes off, and laid down (09/10/23; T 616.46-50). While he was in the room the complainant entered the room (09/10/23; T 617.5-9). The applicant had no prior knowledge that the complainant was coming to the room (09/10/23; T 617.11-12).
The complainant entered the room and was introduced to the applicant before sitting down on the bed (09/10/23; T 617.15). The applicant, the co-accused and the complainant had a conversation where the applicant was sitting on the additional mattress and the complainant was on the main bed, shoulder to shoulder with the co-accused (09/10/23; T 617.20-28). The applicant observed “a little bit of flirty behaviour” between the complainant and the co-accused (09/10/23; T 617.31).
At some point in the conversation, the co-accused asked the complainant if they could do a line of coke “off her ass” (09/10/23; T 617.43). The complainant said yes (09/10/23; T 617.46).
The co-accused was “sicking on” the applicant to grab the cocaine from the bedside table (09/10/23; T 618.3). The applicant saw the cocaine towards the back of the bedside table and grabbed it and passed it to the co-accused (09/10/23; T 618.2-12). The complainant rolled onto her stomach and her Oodie had been lifted up to reveal that she was naked underneath (09/10/23; T 618.16-18).
The co-accused poured the cocaine and “snorted” some and then the applicant did as well (09/10/23; T 618.35-41), using a straw (09/10/23; T 618.43-44). After consuming the cocaine, the applicant sat back down on the mattress (09/10/23; T 618.49-50). He then heard what he assumed was “probably foreplay” and he got up to leave the room (09/10/23; T 619.2-6). As he left the complainant reached towards his trouser area but he moved her hand away, told her no and continued out the door to exit the room (09/10/23; T 619.9-16).
The applicant walked out the back and “had a vape” (09/10/23; T 619.19-22). The applicant then came inside and saw the co-accused who was bringing out the mattress for him (09/10/23; T 619.29). The applicant lay on the mattress for 10 to 20 minutes (09/10/23; T 620.14-15). During this time, the applicant saw the co-accused’s mother and spoke with her and she offered him a lift (09/10/23; T 620.18-30). He declined the offer and called a taxi instead (09/10/23; T 620.24-33). The applicant started getting ready to leave and sent a text to the co-accused to bring out his shirt and shoes (09/10/23; T 620.39-40).
The applicant attended the co-accused’s room to collect his shirt and shoes (09/10/23; T 620.42-43). He asked the co-accused not to tell his partner about the cocaine (09/10/23; T 620.46).
The applicant then went outside to catch a cab (09/10/23; T 621.10-11) to his mother’s home, where he went to bed (09/10/23; T 621.18-19).
The Crown Prosecutor cross-examined the applicant about the text messages in Ex JP3 to the effect that the applicant was concerned about his partner finding out that he had sexually assaulted the complainant (rather than being concerned about the cocaine usage). The applicant agreed with the Crown’s suggestion that text messages between him and the co-accused (in Ex JP3) constituted “a nod and a wink don’t say anything” but gave evidence that they were only in relation to his partner (10/10/23; T 645.33-43).
The applicant said that the word “I” in the message that contained the words “I did nothing” “might be a typo” and should have been “U” (09/10/23; T 585.35-50). There was later the following exchange (10/10/23; T 660.14-42):
Q. Why do you make an assumption that it’s a typo?
A. Because otherwise it wouldn’t make sense.
Q. Because you heard Mr Paulley’s evidence yesterday, didn’t you? Were you in court when Mr Paulley was giving evidence? I assume you were--
A. Yeah.
Q. --being a co-accused, yes?
A. Yes.
Q. You heard him give that explanation it is a typo.
A. Coming across this? No, no. I had already established before Mr Paulley gave his evidence that it was a typo.
Q. When did you establish this?
A. When going over my evidence with my legal team.
Q. I put it to you, it’s a very convenient explanation about a typo that you’re giving to the jury.
A. A very what?
Q. Convenient explanation on your behalf to give, that is a typo. Well, I understand you’re having difficulty with that. Just let me put it this way. This is an example - disagree with me what you want - about you tailoring your evidence to basically be tailored with what the accused Paulley has said to the jury in this trial. You can agree or disagree.
A. I disagree.
Q. I want to put this to you, that there’s been an agreement between you and the accused Paulley, that in your defence, that the first sexual act alleged by [the complainant] that you performed on her, that is, you put your penis in her mouth, didn’t happen.
A. I disagree.
Q. That was an agreement between yourself and Mr Paulley, I’m putting to you, that that particular sexual act never happened.
A. Disagree.
Q. It was also an agreement between you and Mr Paulley that you weren’t in the room at the time of the bottle being inserted or shoved into [the complainant’s] vagina. Agree or disagree?
A. Disagree.
Q. The agreement was for you to distance yourself from any involvement in the sexual assault of [the complainant]. Do you agree or disagree?
A. Disagree.
Q. There was an agreement between yourself and Mr Paulley that you were not in the bedroom so you could not have committed the sexual touching of [the complainant’s] vagina.
A. Disagree.
Q. There was also an agreement that you were not in the bedroom at the time that the accused Paulley put his penis into the tip of [the complainant’s] anus.
A. I disagree.
Q. I put to you your evidence on all these issues about the sexual assault, not being in the room, is false.
A. I disagree.
Q. It was part of [the complainant’s] evidence that you slapped her bare bottom while she was on the bed at the time of consuming cocaine. What do you say to that?
A. I disagree.
The applicant denied engaging in sexual acts with the complainant (10/10/23; T 649-665).
In re-examination, the applicant said that it was a condition of his bail that he not contact Mr Paulley, and that he had not breached his bail conditions (10/10/23; 949.50-950.12).
As you know, both accused were cross-examined by me that their evidence to you at this trial is based on getting their heads together to give you - that is, you the jury - a mutually false account of what happened. It is a false story to be given in order to deflect you from accepting the truth of what [the complainant] said happened in the bedroom.
The accused Paulley says that all sexual activity was consensual and took place in the absence of the accused Galey-Newbury, who conversely gives evidence that he was outside the bedroom at the time of the sexual activity and says, basically, in support of the accused, Paulley, that he was not in the bedroom whilst that sexual activity took place. The Crown would ask you to reject their evidence as it is based on a falsehood. The evidence is given in order to exculpate each other from the commission of a very serious sexual offending. What do I mean by exculpate? That they will not be found guilty by you of that sexual offending.
If you look at that two-page document [Ex JP3] and the text messages sent between the two accused, there appears to be an agreement reached between each accused not to say anything about what had actually happened in the bedroom. The evidence he was frightened. Isn’t that an incredible piece of evidence coming from Galey-Newbury’s lips. Frightened about what? There’s only one thing you would be frightened about. Not cocaine off the backside of [the complainant]. You have to ask yourself, why the secrecy? This is not just about snorting cocaine off [the complainant’s] backside. The Crown relies on these text messages as evincing an agreement reached after the event - because it’s after the sexual acts I’ve just described. After the event. That is, after the accused Galey-Newbury left the bedroom, that nothing should be said about what had actually occurred. [Emphasis as per Paulley v R at [52]]
It reveals that at an earlier time, at a time of the commission of each of the offences, there existed - the Crown relies on this evidence, adduced by the accused Paulley - it relies on this evidence that there existed a joint criminal enterprise to commit sexual offending against [the complainant] at an earlier time. That is, a matter of an hour or half an hour or so beforehand. If it was just about snorting cocaine off her backside, one text would suffice. And I put that to Galey-Newbury. There was a lot of iffiness about Galey-Newbury’s evidence about these text messages, I might submit. But there is a lot happening in those test [sic, text] messages. That old adage that what happens on tour stays on tour is being invoked. That’s what the Crown would say, in those text messages.
In essence, that all exploits during a tour must be kept strictly confidential, never to be discussed with anyone outside the group. The adage is particularly relevant when sexual escapades are being committed on tour, and it’s the thrust of that particular adage. I’ve had a few things to say already about the nature of those texts. There’s a lot of issues about secrecy. One text would suffice to say about cocaine. But in any event, there was a discussion not to talk to his missus. Why the texts? That’s why the Crown says that these text messages themselves are indicative of an issue that something far more serious happened.
The explanations given by both accused in relation to what the text messages mean is, frankly, unbelievable. That’s what the Crown submission is and it does indicate to a significant degree that there is cooperation no matter that they’re saying that there’s a, you know, bail condition stopping his talking, you know, all of this. Both accused gave evidence of one particular text where the accused, Paulley, says, “I know” - and I can get it for you, “I know” and he said, “No. No, this is a spelling mistake. It should be, ‘you know’,”. So that was Paulley’s evidence yesterday. I remember - yes, it’s not “I know”. Sorry, it’s, “I did nothing.” So this is on the second page, “I did nothing. IDK. I don’t know why you’re over-thinking it.”
So isn’t it curious that both - you can understand why Paulley would say, “This is a text message where it was - it’s not “I” it’s “U”. The letter U not the letter I. It’s a spelling mistake.” And I pointed out to the accused, Paulley, yesterday that when you put U in it it’s not changed to I but, lo and behold, today the same evidence is given by Galey-Newbury about this text message. That there’s a spelling mistake - the same spelling mistake. It’s a curious piece of evidence about - the Crown just says it’s proof positive that they’re tailoring their evidence to - you know, to suit their defence.
So you will recall I put a series of propositions - an alternative case to the accused, Paulley, yesterday and the Crown case - the alternative case - the Crown case is, “That you have violently sexually assaulted [the complainant]” and the accused, Paulley, says, “Incorrect” and I put to him that, “You basically” - these text messages were for the purpose of showing his girlfriend that nothing happened, but it’s actually more than that. It’s that there appears to be an agreement - and you can see it if you read the text messages – you know, not to talk about it, and it’s not a just about cocaine off, you know, [the complainant’s] backside. Galey-Newbury’s already said earlier that he’s taken coke. He’s not afraid of telling Jacinta that. [This paragraph was not extracted in Paulley v R]
I mean, its, frankly, unbelievable and consistent - fully consistent with the Crown case that they have - a mutually false story has been woven to deflect you from your true duty in adjudicating this matter based on [the complainant**’s] account.** … [Emphasis as per Paulley v R]
Other than as indicated in the extract above, this part of the closing submissions was reproduced in Paulley v R (see from [51]).
The following day (Day 12; 11 October 2023), the Crown Prosecutor’s closing address continued. The Crown Prosecutor addressed in relation to the topic of lies (11/10/23; T 736ff). The Crown Prosecutor first addressed lies that were only relevant to the assessment of the applicant’s credibility. The Crown Prosecutor then went on to address the jury in relation to lies as evidence of consciousness of guilt (11/10/23; T 737-739), in passages also extracted in Paulley v R:
Yesterday, I addressed you about how both the accused have got their heads together in order to present a mutually false account of what happened in the accused Paulley’s bedroom. I just want to say something more about that, and how the Crown says you can use their mutual account if you are satisfied that they indeed have provided such a false account. Their evidence given in court - now, this is separate trials, so there are separate trials here – but both accused have given evidence in their own cases. The evidence given in the court is what the Crown says is post-offence conduct. That is, conduct of an accused - in this case, both accused - which occurred after the commission of the offence, with which the accused has been charged. So we’re talking about the day. The commission of the offence is 21 November 2021. We’re talking about something that happened after that date. [Emphasis as per Paulley v R at [54]]
As I said, it is the evidence given in this trial that the Crown says constitutes the post-offence conduct. The Crown says that if you find that their evidence was indeed a mutually false story that has been woven by each accused to deflect you from your duty by adjudicating this matter based on **[the complainant’**s] account, then you could rely on that finding that they have lied in giving the evidence that they have given as constituting consciousness **of guilt on each of the accused’**s part. However, before you make such a finding, there are certain things which you must be satisfied about the character of that type of evidence. That, first, the lie is deliberate; (2) that it relates to a material issue; (3) that the motive for the lie is a realisation of guilt and fear of truth; and (4) the lie must be capable of being seen as indicating consciousness of guilt of the specific offence for which the accused is charged. [Emphasis as per Paulley v R at [54]]
So I will deal with each of those matters. The first is that the lie is deliberate. Each accused has given sworn evidence in support of their own defence. Their account, you may consider, is tailored or designed to complement each accused’s case. The accused Galey-Newbury says that sexual acts alleged against him didn’t happen and doesn’t know what happened in the bedroom because he wasn’t there. The accused Paulley says certain sexual acts relating to him and the accused Galey-Newbury, with [the complainant] did not happen, and otherwise says that any sexual acts and the act of choking that took place but did so with [the complainant’s] consent. If you accept that each accused’s account is a lie, then you will also find that each accused knew at the time of giving evidence that the evidence was untrue. In other words, a deliberate lie. [Emphasis as per Paulley v R at [54]]
The second matter is the lie relates to a material issue. The account of each accused, as I have indicated, relates to whether the act of sexual intercourse took place with [the complainant] without her consent. It therefore relates to a material issue. The accused Paulley is also charged with the act of choking, but he says that was consensual. So the evidence that’s been given relates to a material issue. That is, the very issue that is the subject of this trial and the counts on the indictment. Thirdly, that the motive to lie is the realisation of guilt and the fear of truth. The Crown says that the fact that the mutual accounts of the accused are complementary to each other, such that one accused’s account buttresses and supports the other accused’s account.
The uncontradicted evidence in this case is that [the complainant] arrived at the accused Paulley’s premises shortly after 6.06am. That is the taxi ride, when the taxi dropped her off. And Fiona Greer, the accused Paulley’s mother, gave evidence that she saw the accused Galey-Newbury in the house at about 7am that morning. There is an earlier time when Fiona Greer sees her son and Galey-Newbury, just after they were dropped off in a taxi which is about 5.30am or so in the morning. But Fiona Greer’s evidence is after that, the next time she sees Galey-Newbury is at roughly about 7am. This coincides, so it is, with the messaging between both accused, which commences, as I believe it, at 7.02am. That is, exhibit JP3, which indicates that the accused Galey-Newbury is out of the bedroom by this stage.
So there is about just under an hour, 50 minutes or so, which you have to put aside the accused Galey-Newbury’s evidence on this issue about what he did. But without that evidence, there is about 50 minutes that remains to be explained. As I said, Fiona Greer says that she saw the accused Galey-Newbury at about 7am, when her evidence is, as you will recall, she’s walking around the house all the time. I’m grateful for the layout of the house. You can see that that became exhibit JP2, and looking at that JP2 the layout of the house is fairly open, from the kitchen towards the family room. There’s no dividing walls in that large area just past the kitchen, so it would appear.
The Crown says that the motive for the evidence given by each accused is because they knew they were guilty, and the evidence given was conduct undertaken to conceal their respective involvement in the commission of the offences subject of the counts in the indictment. They each feared that telling the truth would implicate them in the commission of these offences. Lastly, the lie must be capable of being seen as indicating consciousness of guilt of the specific offence for which the accused is charged. There are no other charges, it is only the counts on the indictment, and the post-offence conduct relied on by the Crown is capable of indicating consciousness of guilt to the commission of these specific offences.
So, I have addressed the four separate aspects that you must be satisfied of, and her Honour will give you complete directions of law about this. Now, to be specific, the Crown says that the evidence of the accused - starting with Galey-Newbury to start with, regarding what he says about what happened in the bedroom, when he left the bedroom, his denial of committing any sexual act with [the complainant], and what he did when he left the bedroom - is relevant conduct to be considered by you in determining whether the lies told by that accused, that is, Galey-Newbury, warrant a finding that his evidence manifests consciousness of guilt.
Dealing with the accused Paulley, the Crown says that the evidence given by him regarding what he says - one, what he did in the bedroom. Next point, his denial of committing certain sexual acts with [the complainant], saying they never occurred. Next, his denial that whilst in the bedroom the accused Galey-Newbury committed certain sexual acts with [the complainant]. Next, the admitted sexual acts with [the complainant] which were consented to by her and the whole sequence of those consensual sexual acts. So, there is a number of different aspects there, but those five aspects are relevant conduct considered by you in determining whether the lies told by the accused Paulley warrant a finding that the evidence is given from consciousness of guilt. [Emphasis as per Paulley v R at [54]]
Now, in reaching the conclusion about this issue of consciousness of guilt, you can take into account whether your assessment of the counts, given separately in this trial by each accused, warrant a finding that they have given a mutually false story or account at this trial to you. There is a further matter which the Crown asks you to consider, which is a separate issue to what l’ve just indicated about consciousness of guilt. You have the text messages of JP3, the two-page document - you know, the text at 702 - before you, and you have heard evidence from each accused as to the meaning of those particular texts. [Emphasis as per Paulley v R at [54]]
I now want to say something to you about the Crown’s reliance upon Exhibit JP3, the text messages between each accused on the day of the incident, whilst the complainant is still at the house. ... The Crown case is that those text messages indicate that the accused, at that very early stage, that is, whilst the complainant was still in the house, are fabricating a false account of what happened. Essentially, the false account is that Galey-Newbury did nothing.
The Crown case is that they continued that mutually false account in their evidence at trial, that is, Galey-Newbury’s case at trial is that he did nothing, none of the sexual acts.
The Crown said to you, in his closing address, he relies upon that evidence as demonstrating a consciousness of guilt on behalf of each of the accused, that is, the fact that they were getting their heads together early to concoct a false account. The only reason they would do that, the Crown says, is because they knew they were guilty. It is because they knew they had a guilty conscience. I want to give you a direction about that.
In order to prove the offences beyond reasonable doubt, the Crown relies upon the conduct of each accused after the alleged offending, specifically, those messages that were sent between each accused whilst the complainant was still at the house, Exhibit JP3.
The Crown submitted to you that the text messages are evidence of an agreement to concoct a mutually false account of the events in the bedroom. The Crown argues to you, you should infer from the text messages that they do demonstrate that each accused had a guilty conscience, that is, they were making an arrangement to conceal the sexual assaults that had occurred in relation to the complainant.
I direct you as a matter of law that, before you can use any of this evidence as demonstrating a consciousness of guilt on the part of either accused, you must be satisfied firstly, that each accused engaged in the text messages, I do not expect you would have any difficulty with that, they each say they did. Secondly, that each accused did so because of their knowledge of the offending. Thirdly, that each accused did so because they realised their own guilt in relation to the offences, that is, they knew they were guilty, and they were trying to cover up their alleged conduct. I emphasise that you must be satisfied of what was in their minds when they were sending those texts to each other.
If you are satisfied of all of those matters, that is, that they did text each other, that they did so because they knew of what had happened, and they did so because they realised their own guilt in relation to what happened in the bedroom, then you can draw an inference that each accused’s guilty conscience motivated those text messages. Such an inference cannot be drawn unless other reasonable explanations for the conduct, consistent with innocence, have been excluded.
You will remember both Mr Paulley and Mr Galey-Newbury gave evidence that what they were talking about was Galey-Newbury’s involvement in snorting cocaine off the complainant’s bottom. That is what they were discussing, not sexual assaults that occurred in the bedroom. That is entirely a matter for you, as to what you make of that evidence. You need to be able to exclude other reasonable explanations for that conduct.
If you are satisfied that you can draw the inference that the Crown is asking you to draw, that is, that those texts were motivated by a guilty conscience, then, you can rely upon that as evidence pointing towards their guilt of the offences. Standing by itself, that evidence cannot prove their guilt. What you need to rely upon is, obviously, the complainant’s evidence, as well. Even if you find that those texts were motivated because they had a guilty conscience, that goes towards proof of guilt, but it is not enough on its own to prove their guilt, which I think is common sense, that it is not enough on its own.
The Crown reminded you that the Crown’s submission is that each accused got their heads together to give a mutually false account of what happened in the bedroom and the Crown said that is supported by the text messages between them.
… The Crown said to you that the Crown relies upon the text messages JP3 as demonstrating a consciousness of guilt because there is an agreement reached after the sexual acts that nothing should be said about what happened and I think the Crown submitted, “What happens on tour stays on tour.” The Crown said that is the import of those text messages. He said the explanation by each accused for why they were sending those text messages is, in the Crown’s words, frankly, unbelievable. Ultimately, the Crown said you would return verdicts of guilty in relation to each of the counts that you are satisfied beyond reasonable doubt have been proved.
Those passages were partially extracted in Paulley v R (at [62] and [64]).
As the applicant has here pointed out, the relevant aspects of the trial judge’s summing up as extracted above do not distinguish between the case of the applicant and that of the co-accused. The applicant thus argued that the Court’s findings in Paulley v R in relation to the summing up are equally applicable to him in this case.
As noted above, in Paulley v R the Court upheld the same ground of appeal as is now raised by the applicant. (The Court dismissed a second ground of appeal that a miscarriage of justice was occasioned by the Crown Prosecutor’s conduct. No similar ground is here raised by the applicant.)
The Court held that a miscarriage of justice had occurred because the Crown Prosecutor sought to leave his case to the jury on the basis that the entire account given by Mr Paulley in evidence was a deliberate lie capable of evidencing consciousness of guilt for the offences charged, which was impermissibly circular reasoning (at [59]) and directly at odds with the Liberato direction (a reference to Liberato v The Queen (1985) 159 CLR 506; [1985] HCA 66) (at [68]); and the resulting risk of erroneous reasoning was not rectified by the directions given to the jury by the trial judge (at [66]-[69]).
The Court had earlier observed that, while the Crown is not precluded from relying on lies told by an accused in his or her evidence as consciousness of guilt, it cannot do so if it is only possible to conclude that an accused has lied by first being satisfied of the accused’s guilt of the offence charged as that would amount to circular reasoning (at [47]).
The Court considered that the Crown Prosecutor’s closing submissions required correction through directions from the trial judge “to avoid the possibility that the jury might reason in the erroneous way advanced by the Crown” (at [69]) and found that they were not corrected by the directions given by the trial judge. The Court considered that her Honour’s “inclusion of the phrase “mutually false account” in the summing up had the capacity to echo or endorse the reliance by the Crown Prosecutor upon all of the applicant’s evidence at trial as post-offence conduct revealing a consciousness of guilt” (at [68]).
The Court was satisfied that what occurred in the trial constituted an error or irregularity in the trial which could realistically have affected the reasoning of the jury to its verdict, applying the test in Brawn v The King (2025) 99 ALJR 872; [2025] HCA 20 (at [69]-[70]). Ground 1 was therefore upheld and the appeal allowed. Mr Paulley’s convictions were quashed and a re-trial was ordered pursuant to s 8 of the Criminal Appeal Act.
The applicant submitted that the Crown Prosecutor’s closing submissions, extracted above, either refer to the applicant and co-accused’s cases collectively or, where the Crown Prosecutor refers specifically to an aspect of the co-accused’s evidence, a comparable submission is made in relation to the applicant. The applicant thus argued that the Court’s findings in Paulley v R in relation to the Crown Prosecutor’s closing submissions are equally applicable to him in the present case – namely, that the closing submissions invited impermissible circular reasoning in relation to both the applicant and co-accused.
Unsurprisingly, the applicant placed reliance on Kwu v R [2024] NSWCCA 199 (Kwu v R), where the Court considered an appeal from the same trial and raising the same point as an earlier appeal decision (llievski v R; Nolan v R (No 2) (2023) 112 NSWLWR 375; [2023] NSWCCA 248 (IIievski v R (No 2))). There, Kirk JA (with whom Rothman and Yehia JJ agreed) relied upon cases which considered the principle of equality before the law in the sentencing context and found that the appeal before the Court in that case was “materially indistinguishable” from I**Iievski v R (No 2) as it involved “the same point arising from the same trial for a co-accused in the same position” (at [39]). Kirk JA said (at [39]-[42]):
… For the Court as now constituted to set aside the prior decision and simply reconsider for itself whether or not there has been a miscarriage of justice, potentially reaching a different conclusion, has the potential to be an affront to the principle of equality before the law. It would ignore that this appeal is part of the same criminal justice system which led to the trial and earlier appeal. It would be unduly to elevate the identity of the judges hearing the matter. It might tend to undermine confidence in the administration of justice were two appeals from the one trial, raising the same point, to lead to different outcomes simply because different legal representatives and judges were involved.
The principle of equality before the law thus militates in favour of this Court applying the conclusion reached by the majority in the earlier case without simply reconsidering the issue for itself.
However, in some cases there could be countervailing imperatives. For example, it may emerge that the earlier decision was decided per incuriam, that is to say, in circumstances where an applicable statutory provision or relevant (and perhaps binding) authority was not drawn to the attention of the bench. In such circumstances the bench hearing the subsequent appeal might be bound to reach a different result. Another possibility is that the first bench did determine some legal principle and in the second appeal that determination is argued to be plainly wrong.
Thus there can be no invariable rule that the second bench must always follow the decision of the first. It suffices to say that in a situation such as this one, where the court is determining an appeal which is materially indistinguishable from an earlier appeal decision from the same trial raising the same point, then the court should follow the earlier decision unless there is compelling reason to depart from it. It is neither necessary nor desirable to seek to State some exhaustive list of the considerations which might lead the bench in the second appeal to decline to follow the decision made in the first. As has been said with respect to the established plainly wrong/compelling reason test, “much will depend upon the nature of the controversy, the strength of the arguments and the particular circumstances attendant upon the case”: Transurban City Link Ltd v Allan [1999] FCA 1723; (1999) 95 FCR 553 at [31].
It is noted that this reasoning was adopted and applied in Symons v R; McDonald v R [2024] NSWCCA 212 at [42]-[45] (Kirk JA, Dhanji and Yehia JJ).
The applicant argued that his appeal is materially indistinguishable from that determined in Paulley v R, noting that it arises from the same trial and relies on the same point. The applicant submitted that the aspects of the Crown Prosecutor’s closing submissions and the trial judge’s summing up which the Court in Paulley v R found constituted an error or irregularity do not relevantly distinguish between the case of the applicant and that of the co-accused; and that this is not a case where a difference between the trial of the applicant and the trial of the co-accused would cause a different conclusion to be reached. The applicant thus submitted that the reasoning of the Court in Paulley v R is directly applicable to his own trial. (The respondent acknowledged this to be the case.)
Further, the applicant argued that there is no compelling reason for the Court to depart from the decision in Paulley v R. The applicant submitted that there was nothing about the nature of the controversy, the strength of the arguments and the particular circumstances attendant upon the case that would lead to a different conclusion here.
The respondent accepted that it would be open to this Court to conclude that the applicant’s ground of appeal is made out for the reasons given in Paulley v R, and to allow the appeal on the same basis applying the principles in Kwu v R. In particular, the respondent accepted that the impugned portions of the Crown Prosecutor’s closing address and the summing up of the trial judge applied to both of the accused in a manner that was materially indistinguishable.
The respondent further made clear that, in the event that the applicant’s ground of appeal were upheld, the respondent does not rely on the proviso in s 6(1) of the Criminal Appeal Act. The respondent accepted that it would be open to this Court to conclude that if the sole ground of appeal in this case is upheld then a miscarriage of justice will have occurred.
The respondent accepted that, were this Court so to conclude, the appropriate relief is that the applicant’s convictions in respect of counts 1, 3, 6 and 8 of the indictment should be set aside, and a new trial ordered in respect of those offences.
The concessions made by the respondent were fairly made and well-founded. There is no material distinction between the issues raised in this appeal and those determined in Paulley v R. The applicant and Mr Paulley were tried jointly and the impugned portions of the Crown Prosecutor’s closing address and the summing up of the trial judge applied to both of the accused in a manner that we accept was materially indistinguishable.
The Prosecutor’s address invited the kind of impugned circular reasoning against which the High Court warned in Edwards v The Queen (1993) 178 CLR 193; [1993] HCA 63 at 209-211 (Deane, Dawson and Gaudron JJ). Brennan J, dissenting in the outcome, said at 201:
When the supposed admission consists in the making of a false denial of guilt, the prosecution is hard put to turn the denial into an admission. As Lowe J said in Edmunds v. Edmunds and Ayscough [1935] VicLawRp 35; (1935) VLR 177, at p.186:
“(B)y no torturing of the statement ‘I did not do the act’ can you extract the evidence ‘I did do the act.”
This appeal involves the same point arising from the same trial for a co-accused in the same position as the applicant, as was the case in Kwu v R*.* For the reasons explained by Kirk JA in that case, the appeal must be allowed. In his Honour’s words, the principle of equality before the law militates in favour of this Court applying the conclusion reached in Paulley v R “without simply reconsidering the issue” ourselves (see at [40]). None of the countervailing imperatives contemplated in Kwu v R as warranting a different conclusion here applies (in other words, the earlier decision was not decided per incuriam, nor can it be said that the determination by the earlier Court of some legal principle was plainly wrong).
For those reasons, we allowed the appeal and made orders quashing the convictions and ordering a new trial.
**********
Galey-Newbury
R
[2026] NSWCCA 75
(2025) 99 ALJR 872
(1993) 178 CLR 193
(1985) 159 CLR 506
(1999) 95 FCR 553