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[2020] HCA 40
appellant. Appeal allowed. Orders of the Court of Appeal of the Supreme Court of Queensland made on 1 February 2019 set aside. In lieu thereof, order that the appeal to that Court be allowed, the appellant's...
A man convicted of sexual offences against his teenage half-sister won his High Court appeal because the trial judge told the jury that the lack of any sworn evidence from him contradicting her story 'may make it easier' to believe her. The Court held this comment invited the jury to use his decision not to testify against him, which breaches fundamental rules protecting the right to silence and the presumption of innocence. Even though the judge had earlier given all the correct legal directions and no one asked for the comment to be corrected, the error created a real risk the jury would follow a forbidden line of reasoning in a trial that depended entirely on whether they accepted the complainant's word. The convictions were quashed and a fresh trial ordered.
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1 cited instrument linked from this judgment.
The appellant, GBF, was charged on indictment with seven counts of sexual offences alleged to have been committed against his half-sister between 1 December 2012 and 24 August 2013. At the time the complainant was aged 13 and 14 years and the appellant was aged 33 and 34 years. The prosecution case was wholly dependent upon acceptance of the complainant's evidence. That evidence comprised a recorded police interview given when she was 14 and videorecorded evidence given at a preliminary hearing when she was 17. Both recordings were played to the jury.
The complainant described a course of sexual abuse beginning with an attempt to kiss her while she lay on a mattress (count 1), followed by penile-vaginal intercourse in a bedroom (count 2), further intercourse on the back verandah (count 3), and additional episodes including cunnilingus (count 5), an act of fellatio (count 4), and a final episode of intercourse after she told the appellant she was “not interested” (count 7). The jury returned verdicts of guilty on three counts of rape and three counts of indecent treatment (one as an alternative verdict) and acquitted on two counts of rape.
The appellant did not give or call evidence. In the course of the summing-up Judge Wall QC gave unexceptional directions drawn from the joint reasons in Azzopardi v The Queen concerning the presumption of innocence, the onus and standard of proof, and the impermissibility of using the accused’s silence to fill gaps in the prosecution case or as makeweight. Later, when reminding the jury of the need to scrutinise the complainant’s evidence with great care because of the absence of corroboration and the ease with which such allegations can be made and are difficult to refute, the judge added the impugned statement: “But, in this case, bear in mind that she gave evidence and there is no evidence, no sworn evidence, by the defendant to the contrary of her account. That may make it easier. It is a matter for you in assessing her credibility, but you have got to consider all of the matters that Defence addressed to you about in relation to her credit.”
Neither the prosecutor nor defence counsel sought any redirection. The appellant was sentenced to an effective term of nine years’ imprisonment. His appeal to the Queensland Court of Appeal was dismissed on 1 February 2019. Boddice J (with whom Morrison and Philippides JJA agreed) accepted that the impugned statement should not have been made but held that, read with the earlier clear directions, it did not give rise to a real possibility that the jury misunderstood the law or that the appellant was deprived of a real chance of acquittal. The High Court granted special leave and, on 4 November 2020, unanimously allowed the appeal, set aside the Court of Appeal’s orders, allowed the appeal to that Court, quashed the convictions and ordered a new trial.
The High Court (Kiefel CJ, Bell, Keane, Gordon and Edelman JJ) held that the impugned statement invited the jury to engage in the same false process of reasoning condemned in Azzopardi. The joint judgment emphasised that the statement was not ambiguous: the natural and ordinary meaning of the words “there is no evidence, no sworn evidence, by the defendant to the contrary of her account. That may make it easier” was an invitation to find the complainant’s account more credible and reliable precisely because the appellant had not given sworn evidence denying it.
This reasoning was said to be false because it proceeds on the assumption that an accused may be expected to give evidence. In an accusatorial system the prosecution bears the onus of proving guilt beyond reasonable doubt; rare and exceptional cases apart, there is no expectation that an accused will testify. The attractiveness of the prohibited reasoning is precisely why an Azzopardi-style direction is required in almost all cases where the accused does not give evidence.
The Court rejected the respondent’s three main arguments. First, the fact that the statement was characterised as a “judicial observation on the facts” rather than a direction of law did not weaken its effect. Even if the jury understood they were not bound by it, the observation still invited them to follow a path of reasoning that was directly contrary to the earlier directions of law on the right to silence and the onus of proof. The joint reasons in Azzopardi had already made clear that permissible comment on failure to offer an explanation is both rare and exceptional and never warranted merely because the accused has failed to contradict the prosecution case. The present trial did not fall into that exceptional category.
Second, the failure of counsel to seek a redirection did not weigh against a finding of miscarriage. While the conduct of counsel may sometimes indicate that a direction was not required or that a statement did not bear the interpretation advanced on appeal, here the impugned statement was a clear contradiction of the earlier directions. The absence of objection could not convert an irregularity into something benign.
Third, the respondent’s contention that the words “may make it easier” could be read as merely meaning the jury’s task was easier because they had only one body of evidence to assess was rejected as straining credulity. The context—immediately following a warning about the ease of fabricating sexual allegations and the difficulty of refuting them—made the impermissible meaning obvious.
Because the statement had the capacity to affect the jury’s assessment of the credibility and reliability of the only witness whose evidence could sustain conviction, it amounted to a miscarriage of justice within the third limb of s 668E(1). The respondent did not attempt to invoke the proviso, correctly recognising that it could not be said that no substantial miscarriage of justice had actually occurred (Weiss v The Queen). The Court therefore allowed the appeal and ordered a new trial.
Before GBF v The Queen the law was settled by the joint reasons in Azzopardi v The Queen that a direction must be given in almost all cases where an accused does not testify, warning the jury that silence is not evidence, cannot be used to fill gaps or as makeweight, and does not strengthen the prosecution case. Comment on failure to give evidence is confined to rare and exceptional circumstances and never justified merely by the absence of contradiction of the prosecution case. The Queensland Court of Appeal had treated the impugned statement as a non-binding observation whose effect was neutralised by the earlier directions and the lack of any request for redirection.
After GBF it is now authoritatively established that a statement in the precise terms used here—expressly linking the absence of sworn contradictory evidence to the ease of accepting the complainant’s account—will ordinarily constitute a miscarriage of justice even in the presence of otherwise impeccable Azzopardi directions. The High Court has clarified that the distinction between a direction of law and a comment on the facts does not save such an observation where it invites the prohibited reasoning. The weight to be given to counsel’s failure to seek redirection is limited; it cannot cure a contradictory instruction that goes to the heart of the jury’s approach to the only evidence capable of proving guilt. The decision reinforces that the prophylactic Azzopardi direction is required precisely because of the seductive danger of the very reasoning the trial judge here appeared to endorse. Section 668E(1) and the third-limb miscarriage test continue to operate according to the principles explained in Weiss v The Queen, with the burden on the appellant to show irregularity and on the prosecution to negative substantial miscarriage if the proviso is invoked.
The joint judgment contains several critical passages. The first sets out the impugned statement in context:
“Now, as I said before, there is no corroboration here. In cases such as this where sexual misconduct is alleged by the complainant, you should approach her evidence with great care and with caution. You should scrutinise it carefully, and you need to be satisfied of its accuracy and reliability beyond reasonable doubt before you can convict. … But, in this case, bear in mind that she gave evidence and there is no evidence, no sworn evidence, by the defendant to the contrary of her account. That may make it easier.”
Plain-English translation: The judge correctly warned the jury to be cautious about uncorroborated sexual complaints, but then immediately undermined that caution by pointing out that the defendant had not given sworn evidence denying the allegations and suggesting this might make it easier to believe the complainant. The High Court said this was the opposite of what the law requires.
On the limits of comment the Court adopted the Azzopardi formulation:
“It is to be emphasised that cases in which a judge may comment on the failure of an accused to offer an explanation will be both rare and exceptional … A comment will never be warranted merely because the accused has failed to contradict some aspect of the prosecution case.”
Plain-English translation: Judges almost never get to tell juries anything about why the defendant stayed silent. Simply pointing out that the defendant has not denied the allegations is never a good enough reason to make any comment.
On the nature of the miscarriage the Court stated:
“Any irregularity or failure to strictly comply with the rules of procedure and evidence is a miscarriage of justice within the third limb of the provision.”
Plain-English translation: Once the judge broke the rules by inviting the jury to use the defendant’s silence against him, that mistake by itself was enough to make the trial unfair in law. The appellant did not have to prove he would definitely have been acquitted; the mere existence of that improper invitation was sufficient to set the convictions aside.
Finally, on the respondent’s attempt to characterise the words as ambiguous the Court said:
“It strains credulity to interpret the instruction ‘[b]ut, in this case, bear in mind that she gave evidence and there is no evidence, no sworn evidence, by the defendant to the contrary of her account … [t]hat may make it easier’ as other than an invitation to find it easier to accept the complainant’s allegations because the appellant had not given sworn evidence denying them.”
Plain-English translation: It is unrealistic to pretend the jury might have understood the judge to be saying only that their job was simpler because there was less evidence to weigh. The obvious meaning was an invitation to treat the lack of a denial as making the complainant more believable.
GBF v The Queen will be triggered in any jury trial where the prosecution case depends substantially or wholly on the credibility of a central witness (classically a complainant in sexual offence proceedings) and the accused has exercised the right not to give evidence. The decisive feature is a judicial observation that links the absence of sworn contradictory evidence from the accused to the ease with which the jury may accept the prosecution witness’s account. The precedent applies whether the observation is framed as a direction of law or as a comment on the facts. It is engaged even where impeccable Azzopardi directions have been given earlier in the charge, because the later statement operates as a contradictory instruction.
The fact pattern does not require that the judge use the exact words “that may make it easier”. Any formulation that invites the jury to reason that the allegation is more likely to be true because it has not been denied on oath will engage the principle. The case is not confined to sexual offences; it applies whenever the prosecution depends on a single witness whose credibility is put in issue and the judge makes an observation that implicitly expects the accused to have given evidence. Conversely, the precedent is not triggered by a mere recitation of the evidence that happens to note the absence of defence evidence, provided the judge does not suggest that absence makes acceptance of the prosecution case easier. Trials falling within the “rare and exceptional” category where comment on failure to explain is permissible are unaffected, but the High Court has reiterated how narrow that category remains.
Although the provided judgment is the authoritative statement, its reasoning expressly follows and applies the joint reasons in Azzopardi v The Queen without qualification. The High Court treated Azzopardi as laying down a principle that is not confined to New South Wales or to the operation of s 20 of the Evidence Act 1995 (NSW). The decision in GBF therefore stands as a direct application and reinforcement of Azzopardi in the Queensland context under the common-form criminal appeal provision.
The Court also cited Weiss v The Queen for the distinction between the third-limb miscarriage test and the proviso. Later courts are therefore directed to analyse any similar judicial observation first as an irregularity (third limb) and only then to consider whether the prosecution can negative substantial miscarriage under the proviso. The judgment makes clear that where the observation has capacity to affect the jury’s assessment of a critical witness whose evidence is essential to conviction, the proviso will rarely avail the Crown. The emphasis on the limited significance of counsel’s failure to seek redirection has narrowed the circumstances in which appellate courts may infer that a contested observation did not carry the prohibited meaning. Overall, GBF has tightened the protection around the Azzopardi direction and made it more difficult for appellate courts to dismiss complaints about comments on silence as harmless or cured by context.
The joint judgment expressly left open whether an irregularity of the kind identified is one that is beyond the reach of the proviso altogether. It was unnecessary to decide the point because the respondent did not attempt to rely on the proviso. Future cases will therefore have to determine whether a direction or comment that invites reasoning from silence in a single-witness credibility case is so fundamentally contrary to the accusatorial system that it can never be saved by the proviso, or whether there may be cases in which the prosecution can demonstrate that no substantial miscarriage actually occurred.
Another open question is the precise boundary of the “rare and exceptional” category in which judicial comment on failure to give evidence remains permissible. The Court reiterated the Azzopardi formulation but gave no further examples. Trial judges will continue to need guidance on what factual situations, if any, genuinely permit such comment without crossing into the GBF error.
The weight to be given to the absence of objection or application for redirection also remains somewhat fact-sensitive. While GBF makes plain that the failure of counsel to seek redirection cannot convert a contradictory instruction into a harmless one, the Court acknowledged that in some contexts counsel’s conduct may support an inference that the statement did not bear the impermissible meaning. Exactly how that inference is to be drawn in future cases is not exhaustively settled.
Finally, the decision leaves open how appellate courts should analyse cases in which the impugned observation is more oblique than the one in GBF or is accompanied by an immediate correction or further reinforcing directions. The High Court’s insistence on the natural and ordinary meaning of the words used suggests a strict approach, but the application of that test to differently worded comments will require further elucidation.
Most practitioners still assume that a comprehensive Azzopardi direction given at the outset of the charge will immunise any later casual judicial remark about the state of the evidence. GBF demonstrates this is a dangerous misconception; the later observation can operate as a contradictory instruction that undoes the earlier correct law even if the judge labels it a mere comment on the facts. Another trap is the belief that the absence of any objection or request for redirection by experienced defence counsel is almost decisive against a finding of miscarriage. The High Court made clear that while counsel’s conduct can sometimes shed light on the perceived effect of the statement at trial, it cannot cure an invitation to follow a path of reasoning that is fundamentally at odds with the presumption of innocence. Trial judges and appellate counsel who treat the impugned statement as “just an observation” do so at their peril; once the language links the absence of sworn contradictory evidence to the ease of accepting the complainant’s account, the miscarriage is prima facie established and the conviction is at serious risk.
S C Holt QC with M J Jackson for the appellant (instructed by Legal Aid Queensland)
C W Heaton QC with C N Marco for the respondent (instructed by Office of the Director of Public Prosecutions (Qld))
Notice: This copy of the Court's Reasons for Judgment is subject to formal revision prior to publication in the Commonwealth Law Reports.
Criminal practice - Trial - Directions to jury - Where appellant charged in seven counts with sexual offences allegedly committed against complainant half-sister when she was 13 and 14 years old - Where prosecution case wholly dependent on acceptance of complainant's evidence - Where appellant did not give or call evidence at trial - Where trial judge directed jury in unexceptional terms with respect to presumption of innocence and onus and standard of proof - Where trial judge later stated that failure of appellant to give sworn evidence "may make it easier" to assess complainant's credibility ("impugned statement") - Where neither prosecutor nor defence counsel applied for redirection arising from making of impugned statement - Whether impugned statement occasioned miscarriage of justice because its effect was to invite jury to reason to appellant's guilt from his exercise of right to silence - Whether influence of impugned statement weakened because it was comment not direction of law - Whether failure of either counsel to seek redirection weighed against conclusion that integrity of trial compromised - Whether impugned statement ambiguous such that there was no reasonable possibility jury would have felt it open to reason impermissibly.
Words and phrases - "absence of evidence", "contradictory instruction", "directions of law", "exercise of the right to silence", "false process of reasoning", "irregularity", "judicial observation on the facts", "miscarriage of justice", "onus of proof", "presumption of innocence", "proviso", "real chance of acquittal", "reason to guilt by an impermissible path", "redirection", "standard of proof", "sworn evidence".
KIEFEL CJ, BELL, KEANE, GORDON AND EDELMAN JJ. The appellant appeals by grant of special leave from the orders of the Court of Appeal of the Supreme Court of Queensland (Morrison and Philippides JJA and Boddice J) dismissing an appeal against his convictions for six sexual offences. All the offences were alleged to have been committed against the appellant's half-sister. The prosecution case was wholly dependent upon acceptance of her evidence. The appellant did not give or call evidence. In the course of his charge, Judge Wall QC instructed the jury to: "bear in mind that [the complainant] gave evidence and there is no evidence, no sworn evidence, by the defendant to the contrary of her account. That may make it easier" ("the impugned statement"). The appellant challenged his convictions in the Court of Appeal contending that, in effect, the impugned statement was a direction that the absence of evidence from him might make it easier to return verdicts of guilty. The Court of Appeal acknowledged that the impugned statement should not have been made. Nonetheless, the Court of Appeal found there was no real possibility that the jury may have misunderstood earlier, correct directions of law that had been given, and no real possibility that the appellant had been deprived of a real chance of acquittal. Their Honours held that the impugned statement had not occasioned a miscarriage of justice. This holding took into account the fact that neither the prosecutor nor defence counsel had applied for any redirection arising from the making of the impugned statement. The appeal in this Court is brought on a single ground which contends that the Court of Appeal was wrong to find that the impugned statement did not occasion a miscarriage of justice. The appellant submits that the impugned statement invited the jury to reason to his guilt from his exercise of the right to silence. He submits that in its effect the impugned statement is indistinguishable from the impugned comment considered in Azzopardi v The Queen. There is no principled basis, he argues, for coming to a conclusion contrary to the Azzopardi majority's conclusion. It follows on this analysis that the Court of Appeal was bound to allow the appeal unless the prosecution established that no substantial miscarriage of justice had actually occurred. And, in his submission, it was not possible for the prosecution to do so given that the impugned statement allowed the jury to reason to guilt by an impermissible path. For the reasons to be given, those submissions should be accepted, the appeal allowed, and a new trial ordered. Background The indictment presented in the District Court of Queensland charged the appellant in seven counts with sexual offences which were alleged to have been committed between 1 December 2012 and 24 August 2013. In this period the appellant was aged 33 and 34 years and the complainant was aged 13 and 14 years. On 2 August 2016, the jury returned verdicts of guilty with respect to three counts of rape (counts 2, 3 and 7) and two counts of indecent treatment of a child under the age of 16 years (counts 1 and 5). The appellant was acquitted on two counts of rape (counts 4 and 6). In relation to the sixth count, the jury returned a verdict of guilty of the alternative charge of indecent treatment of a child under the age of 16 years. On 4 August 2016, the appellant was sentenced to an effective term of imprisonment of nine years with a parole eligibility date of 3 February 2021. The complainant was first interviewed by the police on 24 August 2013 ("the interview"), when she was 14 years old. The interview was recorded and the recording was in evidence. The remainder of the complainant's evidence was taken at a preliminary hearing when she was 17 years old. The evidence was videorecorded, and the videorecording was presented to the Court at the trial. It suffices to describe the complainant's account of the offences in broad outline. The sexual abuse commenced on an occasion when she and her siblings, including the appellant, were staying in the same house. The first episode of sexual contact was an occasion when the appellant tried to kiss her as she lay beside him on a mattress (count 1). On another occasion the appellant came into the bedroom in which she was sleeping, pulled her shorts down and had sexual intercourse with her (count 2). On a further occasion the appellant had sexual intercourse with her on the back verandah of the house (count 3). She estimated that there were five more occasions of sexual contact after the incident on the back verandah. On two of these occasions the appellant had sexual intercourse with her. On one such occasion the appellant licked her vagina (count 5) and instructed her to suck his penis (count 4). On another occasion when the two of them were sitting on the couch watching television the appellant put her hand on his penis and asked her to suck it. In response to his entreaties she did as he asked (count 6). The last occasion on which sexual contact occurred was at the complainant's home in August 2013. The appellant followed her into her sister's bedroom. She told him that she was "not interested" and she threatened to report the abuse to her sister. The appellant responded saying, "just one last time" and he proceeded to have sexual intercourse with her (count 7). The prosecution led evidence of "preliminary complaint". On 24 August 2013, the complainant's sister, SNE, asked the complainant why the appellant was ringing her all the time. The complainant broke down saying that the appellant had "fucked her". Later that day, SNE approached the appellant and started throwing punches at him. He looked surprised and walked away denying any knowledge of what was going on. On the same day, SNE had a further conversation with the complainant in the presence of their mother, step-father and sisters. During this conversation, the complainant said that the appellant had "had her suck him off and went down on her, did oral sex on her and stuff like that". Thereafter SNE accompanied the complainant to the police station, where she made her complaint. The complainant's mother gave evidence that, at a family meeting that occurred "a couple of weeks" before the complaint, the appellant and the complainant had been asked if there was anything going on between them. The complainant had denied any involvement with the appellant. The mother said that the appellant was never allowed to sleep in any of the girls' bedrooms and that it was always a "full house". She said she would never permit the complainant to be alone with the appellant in the house at night. It was the appellant's case that none of the sexual acts described by the complainant had occurred. In closing submissions, the appellant's counsel argued that the complainant's account contained inconsistencies and had features that were inherently implausible such that it could not be acted upon to establish guilt beyond reasonable doubt. The directions The trial judge directed the jury in unexceptional terms with respect to the presumption of innocence and the onus and standard of proof and, in language drawn from the joint reasons in Azzopardi, his Honour directed: "Now, the accused's silence in Court is not evidence against him. It does not constitute an admission by him and may not be used to fill gaps in the evidence tendered by the Prosecution. It may not be used as a makeweight in assessing whether the Prosecution has proved its case beyond reasonable doubt. The onus of proof lies on the Prosecution and the accused is presumed to be innocent until the Prosecution adduces sufficient evidence to enable you to reach a conclusion of guilt beyond reasonable doubt. His failure to give evidence does not strengthen the Prosecution case or supply additional proof against him or fill gaps in the evidence." The impugned statement was made later in the charge, after his Honour had reminded the jury of the complainant's evidence. It should be set out in its context: "Now, as I said before, there is no corroboration here. In cases such as this where sexual misconduct is alleged by the complainant, you should approach her evidence with great care and with caution. You should scrutinise it carefully, and you need to be satisfied of its accuracy and reliability beyond reasonable doubt before you can convict. Human experience in the Courts is that complainants in such matters sometimes, for all sorts of reasons, and sometimes for no reason, tell a false story which is very easy to fabricate and very difficult to refute. But, in this case, bear in mind that she gave evidence and there is no evidence, no sworn evidence, by the defendant to the contrary of her account. That may make it easier. It is a matter for you in assessing her credibility, but you have got to consider all of the matters that Defence addressed to you about in relation to her credit." (emphasis added) The Court of Appeal Boddice J, in the leading judgment, identified the error in the impugned statement as an implicit suggestion that the jury had been deprived of something to which they had an entitlement. His Honour observed that such a suggestion was contrary to both the presumption of innocence and the right to silence. His Honour went on to note the absence of an application for any redirection by either counsel and to suggest that this was unsurprising having regard to the "specific directions" that the jury had been given. The specific directions to which his Honour referred were directions: (i) as to the presumption of innocence; (ii) not to draw any adverse inference from the fact that the appellant did not give evidence; (iii) that the prosecution bore the onus of proof, including the onus of negativing that the appellant was acting under a mistake of fact; and (iv) that any comment his Honour might make on the evidence was an observation that the jury could accept or reject. Boddice J's analysis concluded: "Having regard to those clear directions, there was no real possibility the jury may have misunderstood the trial judge's directions and that the appellant was deprived of a real chance of acquittal as a consequence of the trial judge's inappropriate observation. There has been no miscarriage of justice from that observation." Azzopardi In Azzopardi the impugned passage in the trial judge's charge relevantly instructed the jury that: "[W]here the complainant's evidence or the witness's evidence is left undenied or uncontradicted by the accused, any doubt which may have been cast upon that witness's evidence may be more readily discounted and that witness's evidence may be more readily accepted as the truth." The jury had earlier been instructed, correctly, that the accused bore no burden, onus or obligation to prove anything. The joint reasons explained that the impugned passage invited the jury to engage in a false process of reasoning that was at odds with the earlier direction. Their Honours' conclusion that the impugned passage was a misdirection did not depend on the operation of s 20 of the Evidence Act 1995 (NSW). As the impugned passage may have affected the jury's assessment of a critical witness their Honours said that the appeal could not be dismissed under the proviso. The respondent's submissions In its written submissions, the respondent acknowledged the risk that the jury may have understood from the impugned statement that it was open to more readily accept the complainant's evidence because there was no sworn evidence to the contrary given by the appellant. In the context of the charge as a whole, it was said that it was not reasonably possible that this risk was realised. In its outline of oral argument, the respondent adopted a more robust approach, submitting that the clear directions on the onus and standard of proof did not admit of the reasonable possibility that the jury would have felt that it was open to reason impermissibly. The respondent developed three arguments in support of the last-mentioned contention. First, the impugned statement was a comment, not a direction of law, and at the commencement of the charge his Honour had directed the jury as follows: "I am, however, entitled to make such observations on the facts, on the evidence, as I think appropriate. And if I do make such observations … [i]t's entirely a matter for you. So what I say to you on matters of law, you must accept as correct. If I choose to say anything about the facts, that does not bind you at all." The respondent took from this direction that the jury would have understood that the impugned statement was a comment which members of the jury were at liberty to ignore and thus its potential influence was weakened. Secondly, in circumstances in which it was incumbent on the appellant to demonstrate that the impugned statement had occasioned a miscarriage of justice, the failure of either counsel to seek a redirection was against a conclusion that the integrity of the trial had been compromised. Thirdly, unlike the comment in Azzopardi, the critical words in the impugned statement, "that may make it easier", were ambiguous. It was submitted that the jury may have understood that their task was easier merely because they were only required to assess one body of evidence. A miscarriage of justice? The submission that the influence of the impugned statement is to be taken to be weakened because it was a comment was maintained in the teeth of the joint reasons in Azzopardi, in which it was stated: "It is to be emphasised that cases in which a judge may comment on the failure of an accused to offer an explanation will be both rare and exceptional … A comment will never be warranted merely because the accused has failed to contradict some aspect of the prosecution case." It is not suggested that the issues in the appellant's trial brought it within the rare and exceptional category of case in which comment on the failure of the accused to offer an explanation for the prosecution's allegations may be warranted. Moreover, if the jury viewed the impugned statement as a judicial observation on the facts which did not bind them, it remained that it was a judicial observation that invited members of the jury to engage in the false process of reasoning that was contrary to the directions of law earlier given. The submission that the appellant's case is to be distinguished from Azzopardi on the ground that the impugned statement was ambiguous must be rejected. It strains credulity to interpret the instruction "[b]ut, in this case, bear in mind that she gave evidence and there is no evidence, no sworn evidence, by the defendant to the contrary of her account ... [t]hat may make it easier" as other than an invitation to find it easier to accept the complainant's allegations because the appellant had not given sworn evidence denying them. In truth, the impugned statement encouraged the jury to reason in this way. Notwithstanding the earlier directions, why would the jury not take up the trial judge's invitation and find that the complainant's allegations were more likely to be truthful and reliable by taking into account that the appellant had not given evidence denying them? Such a process of reasoning is false because it proceeds upon a view that the accused may be expected to give evidence. And in an accusatorial system of criminal justice, which places the onus on the prosecution to prove the allegation that it brings, rare and exceptional cases apart, there can be no expectation that the accused will give evidence. It is the recognition of the attractiveness of reasoning that an allegation is more likely to be true in the absence of denial that explains the need in almost all cases in which the accused does not give evidence to give a direction along the lines proposed in Azzopardi. The Court of Appeal's conclusion that the appellant had not been deprived of a real chance of acquittal was expressed in terms of the test which was formerly used in deciding whether an appeal could be dismissed under the proviso. The antecedent question for determination was whether the impugned statement had occasioned a miscarriage of justice. The distinction between a miscarriage of justice within the third limb of the common form criminal appeal provision, proof of which lies upon the appellant, and the dismissal of an appeal under the proviso, proof of which lies on the prosecution, is as explained in Weiss v The Queen. Any irregularity or failure to strictly comply with the rules of procedure and evidence is a miscarriage of justice within the third limb of the provision. This is not to suggest that the trial judge's charge is not shaped by the way in which the trial is conducted and the issues that are live for the jury's determination. The fact that defence counsel does not seek a direction may support a conclusion that in the context of the trial the direction was not required. The fact that defence counsel does not seek a redirection may support a conclusion that in the context of the charge as a whole a challenged statement does not bear the interpretation sought to be placed upon it on appeal. Here, the impugned statement contradicted the directions given earlier on the onus of proof and the exercise of the right to silence. Its effect was to invite the jury to engage in the same false process of reasoning as the impugned passage did in Azzopardi. The Court of Appeal was wrong to hold that this was not an irregularity amounting to a miscarriage of justice. The respondent did not submit that, in the event that this Court determined that the impugned statement occasioned a miscarriage of justice, the appeal should be dismissed under the proviso. This was appropriate. The fact that neither counsel sought a redirection did not warrant a conclusion that the jury acted on the correct directions of law and ignored the incorrect, contradictory instruction. Whether, as the appellant argued, the impugned statement was an irregularity of a kind that is beyond the reach of the proviso need not be addressed. It suffices to observe that in these circumstances, in which the impugned statement had the capacity to affect the jury's assessment of the credibility and reliability of the complainant's evidence, it was not open to find that no substantial miscarriage of justice had actually occurred. Orders For these reasons there should be the following orders:
GBF
The Queen
Appeal allowed. Orders of the Court of Appeal of the Supreme Court of Queensland made on 1 February 2019 set aside. In lieu thereof, order that the appeal to that Court be allowed, the appellant's convictions be set aside and a new trial be had.