GEORGE -v- THE STATE OF WESTERN AUSTRALIA [2020] WASCA 139 (1 September 2020)

1. The prosecution case at trial was as follows. The appellant was an electrician who was known as 'Iggy' to the complainant's family. He had previously done work at their family home, and was doing further work on the date of the alleged offending, 20 April 2017. The complainant, who was 13 years old at the time, was doing some chores in the house, which included putting washing in the laundry. When she was in the laundry, the appellant entered and asked to touch her hair. The complainant allowed him to do this. The appellant then moved his hand down and touched her bottom. She thought that was by mistake. The appellant then asked if he could touch her hair again, and she again agreed. This time he touched her hair and then moved his hand down to her breast and cupped her breast. The complainant was upset by this, and ran screaming and crying out of the laundry and told her mother what had happened.[1]

1. The appellant's case at trial was that the two acts alleged to have occurred in the laundry of the complainant's house simply did not occur. At no stage did he put his hand on a 13-year-old girl's bottom, and certainly at no stage did he deliberately squeeze the 13-year-old girl's breast.[2]
2. In his opening address, Mr S Rafferty, the appellant's trial counsel, told the jury that, given the appellant's position and the onus and standard of proof, their focus in the trial should be on the truthfulness, accuracy and reliability of the complainant. Mr Rafferty said that there would be a number of inconsistencies in what the complainant had said occurred at different times, as well as inconsistencies between the accounts given by the complainant and her mother. He also submitted that a number of aspects of the complainant's account were implausible.[3]

1. We turn to consider the prosecution evidence which was adduced at the appellant's trial.

1. The complainant's evidence was pre-recorded on 8 June 2018, and her evidence-in-chief principally comprised her adoption of a recorded child witness interview (CWI) that had been conducted on 20 April 2017, which was the day of the alleged offences.
2. In the CWI, the complainant said that she had seen the appellant at the house previously, and it was 'uncomfortable being in the house with him' because 'all he did was stare at [her]'.[4] On 20 April 2017, the appellant had also stared at the complainant's chest area when she was in her bedroom and as she brought laundry down the stairs.[5] The complainant said that, when she was in the laundry, the appellant came in and pretended to switch on the light. The appellant then asked the complainant if he could touch her hair, and the complainant responded 'okay'.[6] The complainant then said that the appellant touched her hair and 'he went down all the way to my bum, and I thought that was an accident, and I just let it go'.[7]
3. The complainant said that she moved 'a bit back' and the appellant asked to touch her hair again. The complainant said 'okay', and the appellant closed the laundry door, which was slightly opened. The appellant touched the complainant's fringe, and 'then he went all the way down to my left boob and sort of, like, held it and, like, grabbed it'. The appellant grabbed the complainant's left breast over her clothing and 'squeezed it' but not 'hard'. The complainant said 'what are you doing' and the appellant said 'sorry'.[8]
4. The complainant said that she then ran out of a sliding door leading outside the house, and ran around to the living room sliding door and knocked on the door for her mother. Her mother could not open the door because it was locked, and she went to get the keys. While her mother was doing this, the appellant came into the kitchen and was pleading with the complainant using hand gestures. As the complainant's mother opened the door, the complainant was crying and her mother was on the phone to the complainant's father. The complainant told her mother what had happened.[9]
5. The complainant's mother then started talking to the appellant. The appellant 'just kept on denying it' and, when the complainant's mother mentioned the police, the appellant pleaded for her not to call the police. The complainant said that her mother was recording the conversation with her phone, 'but not everything, because there was one point where he sort of, like admitted it'.[10] At one point, when the complainant's mother was on the phone with the complainant's father outside, the appellant was 'pleading when my mum was not looking', 'mimicking it and using hand signs'.[11]
6. In her pre-recorded evidence, the complainant said that she had seen the appellant at her house on two occasions prior to the offending. On the second occasion he was talking to her father.[12] The complainant said that, on the day of the offending, she saw the appellant in her bedroom as she was picking up some clothes. The appellant asked the complainant how old she was, and she told him she was 13 before going out of the bedroom quickly. She went down to the laundry to do some washing.[13]
7. The complainant said that she was in the laundry 'emptying the clothes and putting them into the washer'. The appellant came in, lent his ladder against the wall and closed the door before asking the complainant if he could touch her hair. The appellant did not do anything with the light switches in the laundry, but 'just looked at them and then he looked at me'.[14]
8. The complainant's evidence was that the appellant had his front to her back when he first touched her hair, and she moved to a side-on position when the appellant asked to touch her hair the second time.[15]

1. At the time of the pre-recording of the complainant's evidence, the appellant was represented by Mr R Lombardi. The cross-examination elicited the following evidence from the complainant:

(1) On the day of the alleged offending, the complainant's mother was upset and moody because the house was in a mess.[16]

(2) The appellant did not try and touch the complainant in any way when they were in her bedroom.[17]

(3) The complainant accepted that, in her bedroom, the appellant may have asked her what year she was in rather than her age.[18]

(4) The laundry sliding door and vertical blinds were open at the time of the alleged offence.[19]

(5) The complainant was used to everyone asking to touch her hair so 'it was just a norm for me', and she assumed the appellant touching her on the bottom was an accident because he moved his hand really quickly.[20]

(6) The complainant was facing the wall right behind the internal laundry door when the appellant touched her bottom.[21]

(7) Although the complainant accepted that she said in her CWI that she was not sure whether the appellant touched her breast with his left or right hand, at the time of the pre-recording she was sure that it was his right hand.[22]

(8) The appellant had no problem getting his ladder into the laundry.[23]

1. After Mr Lombardi indicated that his cross-examination was complete, the prosecutor said that it was appropriate and fair that the defence case be put to the complainant, and that had not been done.[24] Mr Lombardi put to the complainant that the appellant never asked to touch her hair, did not touch her hair, bottom or breast and did not close the internal laundry door. The complainant reaffirmed that the appellant did those things.[25]
2. After Mr Lombardi indicated that there was 'nothing further', the trial judge asked whether he wanted to put to the complainant what the appellant said did happen.[26] Mr Lombardi then did this. The complainant denied that the appellant pushed the internal door as he came into the laundry and it hit her. She denied that the appellant pushed the door two or three times and denied that he put his hand around the door and touched her. The complainant denied that she was facing the door when the appellant came in, and said that she had her back to the door.[27]

1. The complainant's mother gave evidence that, at the date of the alleged offending, the complainant was 13 years old.[28] She knew the appellant because he had previously installed an air conditioner at their house and had done some work on another property they owned. She and her husband had called the appellant out after their lights kept 'tripping' on 18 April 2017. He arrived at about 9 - 9.30 am on 20 April 2020, when the complainant's mother and the three children were home and the complainant's father was at work. The complainant's mother explained the electrical problem to the appellant and 'gave him the freeway to move around the house to diagnose the problems'.[29]
2. At this time, the complainant's mother ordered the children to go and tidy their rooms. The complainant's mother was sitting at a table when she saw the complainant bring some dirty clothes to the laundry. The next thing she was aware of was the complainant at the glass door by 'the office area', knocking, screaming and yelling. The complainant was crying and asked her mother to open the door.[30]
3. The complainant's mother tried to open the door, but it was locked. She 'went to the bedroom to grab the keys'. When she opened the door, the complainant yelled to '[get] that man out of the house' and to 'call the police right now'. The complainant said:[31]

He touched me on my boob. First I thought it was a mistake. He grabbed my hair and let his hand down my back, but then he asked me again to touch my hair because it looked nice, and I said yes. Then he touched my hair and he let his hand touch my boob.

1. At this time, the complainant's mother was standing by the door, but not outside, and she could see the appellant was opening and closing a light switch in the living area. The complainant was screaming and explaining what had happened at the top of her voice.[32] The complainant's mother said that she looked at the appellant and gave evidence of a conversation to the following effect:[33]

Complainant's mother: Iggy, what did you do?

Appellant: What?

Complainant's mother: You've just heard what my daughter is saying. What did you just do to my daughter?

Appellant: I did nothing. I did nothing.

Complainant's mother: Yes, you did something. My daughter is just saying you touched her. Why did you do that? Why?

Appellant: Sorry, these are just kids you know. They are kids. They are kids. I did nothing. They are kids. She's lying. She's lying. I didn't do anything. I was just going into the laundry to do some work. I was holding my ladder. I wanted to do some work.

1. At this time, the complainant said 'Mummy, he's lying. That ladder can't even fit there'.[34]
2. While the complainant's mother was having these discussions, she was on her mobile phone with the complainant's father. At her husband's suggestion, the complainant's mother got the appellant to speak to her husband on another phone while she used her mobile phone to record the conversation. The audio recording was played to the jury and became exhibit B in the trial.[35]
3. At many points, the recorded conversation is indistinct. The complainant's mother can be heard telling the appellant that the complainant is 'not a small child to lie'. The appellant tells the complainant's mother that he has a daughter of a similar age, that he has two daughters, and 'they are kids you know. There is no space'. The complainant's mother can be heard telling the appellant that 'the ladder can't fit'.
4. The complainant's father can be heard asking the appellant what he did to his child. The appellant's reply is not wholly decipherable from the recording, and the transcript of the recording is not wholly accurate. On listening to the recording, it seems to us that the appellant said:

You see, this is, there is no space, buddy. You, you believe me. I'm [indistinct] my age. I have two daughters, ah, teenager daughters. You, you, you misunderstand me. I'm [indistinct] ah, there is no space in laundry room. I push my door. I didn't think someone is inside and, ah, don't think I, I have two daughters.

1. Later, the complainant's father said that the complainant said the appellant touched her. The appellant said 'yes' but that it was 'by mistake'. The complainant can be heard saying that the appellant was lying and that he closed the door.
2. After the audio recording was played to the jury, the complainant's mother gave evidence of paying the appellant for his services and of his departure. She took the complainant to the police station to report the matter. The complainant's mother also gave evidence of the appellant coming back to the house at about 7 pm that evening, when police were in attendance.[36]
3. In cross-examination, Mr Rafferty elicited the following evidence from the complainant's mother:

(1) By April 2017, the appellant had been to her house to perform work on one occasion.[37] The complainant's father was not home on that occasion, so there was no opportunity for him to have had a conversation with the appellant at that time.[38]

(2) She did not have any arguments with the complainant on the morning of the alleged offending, she was in a good mood and she was not upset or moody.[39]

(3) The space behind the interior laundry door was very tight and, if someone were standing behind the door, it would have to be much nearer to the closed position than was shown in a photograph.[40]

(4) There was a point when the appellant said that he was taking a ladder into the laundry and the complainant said he was lying about that.[41]

(5) When the complainant's mother was talking to the complainant, the appellant appeared to be putting a cover back on a light switch in the hallway. The complainant's mother had both the complainant and the appellant in her vision the whole time, and she never saw the appellant with his hands together pleading.[42]

(6) The appellant denied touching the complainant inappropriately whenever it was suggested to him.[43]

(7) The complainant's mother gave a police statement on 20 April 2017, in which she set out everything that happened, which made no reference to the appellant saying that the complainant was lying.[44]

(8) The appellant was never kneeling in front of her, and never said 'do not call the police'.[45]

(9) Her initial conversation with the complainant was at the threshold of the sliding door, and the complainant's mother did not go outside to have the conversation.[46]

1. The investigating officer, Detective First Class Constable V M Saywell, gave evidence of her initial investigation once the incident was reported to police. She said that she was at the complainant's house when the appellant was at the front door and was arrested on suspicion of indecent dealing with a child under 16, over 13.[47]
2. The EROI of Detective Saywell's and Constable Douglas' interview of the appellant on 20 April 2017 was played and tendered through Detective Saywell. The substance of the EROI is summarised below.
3. Detective Saywell was cross-examined by Mr Rafferty. It was in effect put to the Detective that a number of the questions put to the appellant were misleading, given the information then available to her. Whether or not the manner of questioning was designed to provoke an emotional response from the police officer, it appears to have done so.[48] While somewhat aggressive, the cross-examination and the manner in which it was conducted were consistent with the defence case theory that the appellant had been dealt with unfairly in the EROI.

1. The appellant's interview by police commenced at 9.11 pm on 20 April 2017 and concluded at 11.28 pm that evening.
2. At the beginning of the interview, the appellant indicated that he could read and write English and was told to say if he did not understand anything in the interview. He indicated that he understood everything said to that point.[49]
3. The police officers informed the appellant that he had been arrested under suspicion of indecent dealing with a child. They indicated that the appellant had a right to speak to a lawyer and that he had chosen not to do so, but had spoken to his wife to let her know where he was. The appellant was told he had a right to an interpreter if he did not understand what police were saying. The appellant indicated that he understood everything the police were saying. Constable Douglas said that he 'just wanted to clarify' the appellant did not need an interpreter, and the appellant indicated that 'at this stage I don't need anyone, because I didn't do any[thing]'. The appellant was again asked and indicated that he understood what police had been saying so far.[50]
4. Police then administered a standard caution. Because the appellant seeks to challenge the admissibility of the EROI, we will set out the rather lengthy exchange in full. Detective Saywell said that she was going to ask the appellant questions about an indecent dealing offence that had occurred that day. She continued:[51]

1/CON SAYWELL: But before I do I need to advise you that you're not obliged to say anything unless you wish to do so, and anything you do say will be recorded and may be given in evidence. Do you understand what I mean when I've mentioned that? That's called the police caution. In your own words, what does that mean?

GEORGE: Yeah, yeah. Ah - - -

1/CON SAYWELL: Do you have to speak to me?

GEORGE: Yeah. You y-, - - -

1/CON SAYWELL: Do you have to speak? Do you have to answer my questions?

GEORGE: Yeah, I do. You ask whatever.

1/CON SAYWELL: No. Okay. I'm gonna go over this again.

GEORGE: Yeah.

1/CON SAYWELL: So you're not obliged to speak to me.

GEORGE: Mmm.

1/CON SAYWELL: Do you know what that means? Not obliged means that you don't have to speak to me. That is your right.

GEORGE: Mmm

1/CON SAYWELL: Because whatever you do say can be taken down and used in evidence.

GEORGE: Yeah. I don't want to hid anything or whatever.

1/CON SAYWELL: Okay.

GEORGE: Yeah [indistinct]

1/CON SAYWELL: But I need to know that this is your choice to speak to me.

GEORGE: Yeah, yeah [indistinct].

1/CON SAYWELL: That I'm not forcing you to speak to me.

GEORGE: No, no [indistinct].

1/CON SAYWELL: That you, if I ask you ten questions, how many of those questions do you have to answer?

GEORGE: All of them.

1/CON SAYWELL: No.

GEORGE: No prob-, - - -

1/CON SAYWELL: How many do you have to?

GEORGE: I have to answer all of them.

1/CON SAYWELL: No. You have your own free will. Right. You're not obliged to answer any questions.

GEORGE: Oh - - -

1/CON SAYWELL: Do you understand what I mean by - - -

GEORGE: Oh, okay. Yeah, yeah, yeah.

1/CON SAYWELL: Yeah, yeah. So if I ask you ten questions, do you have to answer them?

GEORGE: Mmm. Um, I d-, ah, means y-, you say no need to answer.

1/CON SAYWELL: Yeah.

GEORGE: Ah, so, I have the, ah, yeah. So no need means if I don't like I don't need to answer [indistinct].

1/CON SAYWELL: Yeah. So if you don't wanna answer a question I ask you - - -

GEORGE: Mmm.

1/CON SAYWELL: You can say no comment.

GEORGE: Yeah, yeah.

1/CON SAYWELL: Yep.

GEORGE: Yeah.

1/CON SAYWELL: So that's your choice.

GEORGE: [indistinct]

1/CON SAYWELL: You can choose.

GEORGE: Mmm.

1/CON SAYWELL: You can choose to answer some questions and not other ones.

GEORGE: Mmm.

1/CON SAYWELL: Now, so I understand that y-, you know what I'm talking about - - -

GEORGE: Mmm.

1/CON SAYWELL: Can you explain in your own words what I've just said to you.

GEORGE: You said to me if I don't like any of your questions I, no need to answer. Ah, I mean, I have a r-, ah, I can choose no comment, like that, anything [indistinct].

1/CON SAYWELL: Yep.

GEORGE: Yeah.

1/CON SAYWELL: That's, that's correct.

GEORGE: Yeah.

1/CON SAYWELL: Yep.

GEORGE: That means you are not pushing to answer. Yeah.

1. The appellant then explained his understanding that his answers could be used as evidence in court.[52] The appellant asked if he could say 'no comment' if he did not understand a question. The police officers explained that, if the appellant did not understand, he should say so. If he did not want to answer a question he could say 'no comment'. The appellant indicated that he understood the difference between the two.[53]
2. What followed was a lengthy and often repetitive account of the appellant's version of events. In substance, the appellant said that, as he was checking the lights, he went into the laundry, which he had seen was empty a few minutes earlier. He pushed the door against something two or three times to get in, and put his hand in. He did not realise there was someone there. At some points he accepted that he might have touched the 'lady' who he later appreciated was on the other side of the door. He said 'what are you doing here?'. At various points, the appellant indicated to police that he did not appreciate that the complainant was only 13 years old, and thought she was about 20 years old. He accepted that he may have told the complainant that she had nice hair, but denied asking her for permission to touch her hair. He also said that he told people who were cleaning to get out of the way when they came close to his work. The effect of his account was that any contact he made with the complainant was unintentional, as he attempted to open the laundry door.
3. The appellant told the police that the complainant ran from the laundry screaming and crying, and that he apologised to the complainant and her mother for the 'accident'. He said that he spoke to a man he was told was the complainant's father on the phone, and apologised to him as well. The appellant said that he was paid for his work and went to his next job. On his way home later that day, he spoke to his wife by phone and was told that the police had been at their house. The appellant decided to go back to the complainant's house to talk to her father, where he was arrested.
4. Near the end of the interview, the following exchange occurred:

1/CON SAYWELL: Okay. So, ah, Iggy, has the, um, interview been conducted of your own free will?

GEORGE: Sorry.

1/CON SAYWELL: This interview that we've, we've had, has it been of your own free will? Have you been threatened - - -

GEORGE: No, no, no.

1/CON SAYWELL: To come in and participate, um -

GEORGE: No, no, no. You asked me questions. I answered; that's it.

1/CON SAYWELL: Yeah. And you've answered those questions freely

GEORGE: Yeah.

1/CON SAYWELL: B-, by your choice.

GEORGE: Yeah.

1/CON SAYWELL: Yeah. So that, ah, that's where I'm asking, um, has it been conducted of your own free will?

GEORGE: Yeah.

1/CON SAYWELL: Yeah. Okay. Have you been promised anything in return for participating in the interview?

GEORGE: From -

1/CON SAYWELL: Have we promised you something for participating in this interview?

GEORGE: No.

1/CON SAYWELL: No. Okay. Do you have any complaints about the way the interview was conducted or about the way you've been spoken to by police today?

GEORGE: No.

1. We make the following observations from our viewing of the EROI. The appellant speaks with an accent, but his speech is generally intelligible. He appears to be able to communicate effectively in English without difficulty. The transcript of the EROI is at least generally accurate as to what the appellant is saying. At some points, when he describes his apologies to the complainant and her family, the appellant placed his palms together.[54] When describing his action in reaching behind the laundry door he repeatedly placed his hand on his own shoulder to demonstrate the contact he may have made with the complainant.

1. The appellant elected not to give or adduce evidence at trial. In his closing address, Mr Rafferty made submissions to the following effect on the appellant's behalf.
2. Mr Rafferty submitted that the fundamental issue for the jury to consider was the credibility of the complainant: ie her truthfulness, her accuracy and her reliability. He submitted that there were four categories of evidence that should adversely impact on the jury's assessment of her credibility:[55]

(1) Prior inconsistent statements by the complainant, namely:

(a) In her CWI the complainant said that the appellant closed the laundry door after he touched her on the bottom, while in her pre-recorded evidence he closed the door before asking the complainant if he could touch her hair.

(b) In the CWI the complainant said that the appellant came into the laundry and pretended to switch the light on, while in her pre-recorded evidence she said he did not do anything with the switch but look at it.

(c) In the CWI the complainant could not say which hand the appellant used to touch her bottom, while in her pre‑recorded evidence she was sure it was his right hand.

(d) In the CWI the complainant said she thought the touching on her bottom was an accident, while in her pre-recorded evidence she said that she moved between the two touchings so nothing would happen. The length of her hair, not even half-way down her back, was inconsistent with her thinking that the appellant accidentally touched her bottom.

(e) In the CWI the complainant said she moved back when the appellant touched her bottom, while in her pre‑recorded evidence the complainant said that her back was facing the appellant and she moved side on so she was looking at him.

(f) In the audio recording the complainant can be heard telling her mother 'the ladder wouldn't fit in there', while in her pre-recorded evidence the complainant said the appellant brought the ladder into the laundry.

(2) Issues of implausibility, in that the complainant said she felt uncomfortable with the appellant leering at her chest but then agreed to him touching her hair in the confined space of the laundry and allowed him to do it a second time after he touched her on the bottom.

(3) The layout of the laundry, where the photographic evidence showed and the complainant's mother confirmed that the internal laundry door would be almost closed if the complainant was standing behind it, so that the appellant could not have entered with a ladder.

(4) Inconsistencies between the evidence of the complainant and her mother, namely:

(a) The complainant described the appellant pleading with his hands after the incident, while the complainant's mother said that she kept the appellant in her view and did not see any pleading.

(b) The complainant said that the appellant kept asking her mother not to call the police, while the complainant's mother said that never happened.

(c) The complainant said that the appellant 'sort of, like admitted' the offending to her mother, while the complainant's mother said there was never a point the appellant admitted the conduct.

(d) The complainant gave evidence of a previous occasion when the appellant was at her house and was looking at her while talking to her father, while the complainant's mother said that the appellant had only been to the house to do work once when the complainant's father was not home.

(e) The complainant said that she made her initial complaint to her mother outside in the back yard, but the complainant's mother said she did not go outside at this time.

(f) In her CWI the complainant said her mother told her that the appellant was almost kneeling, but the complainant's mother denied this.

(g) The complainant said that her mother was upset and moody on the morning of the alleged offending, which the complainant's mother denied.

1. Mr Rafferty then cautioned the jury against being tempted to ask why the complainant would lie, which would involve reversing the onus of proof on the appellant. Mr Rafferty said that he had 'no idea why she's telling porkies about this' but did not have to prove anything in that regard. He submitted that the jury had to focus on what the complainant was saying, and the defects in her evidence which he had gone through.[56]
2. Mr Rafferty then turned to the appellant's denial of the offending in the police interview. He submitted that there was gross unfairness to the appellant during the interview. After making various criticisms of the police questions and the difficulty the appellant had in understanding the caution,[57] Mr Rafferty observed:[58]

So my simple point is this. Despite the manner in which he was treated, despite the emotion that was evident in that interview and evident during the course of evidence today, which is grossly inappropriate for a police officer who is meant to be impartial and investigate a matter impartially, despite all the pressure that was heaped on him, he denied his involvement in this offence. Despite all that pressure, despite the difficulties personal to him, he denied it.

1. Mr Rafferty made a submission reflecting the Liberato direction[59] the trial judge would later give.[60] He summed up his closing by contending that the jury were left with:[61]

(1) In a case where it is one word against another, a complainant whose evidence had a number of inconsistencies which went to significant issues revolving around the same time these incidents are meant to have occurred.

(2) Significant inconsistencies between the evidence of the complainant and her mother in relation to the material matters relating to the appellant.

(3) An implausible version of events as to what happened in the laundry.

(4) Physical evidence, being the photographs of the laundry, which married up with the appellant's version of events.

(5) The appellant's denial, which at the very least should create some reasonable doubt, particularly in the context of the four issues just identified.

1. The appellant, who is self-represented in this appeal, now appeals against his convictions on three grounds.
2. In general terms, ground 1 complains about the trial judge's direction to the jury in relation to the appellant's defence.
3. Ground 2 challenges the admission of the appellant's EROI as evidence at trial.
4. Ground 3 is expressed to relate to incompetence of counsel. Ground 3(a) alleges that the interpreter 'did not fully interpret at trial'. Ground 3(b) alleges that counsel failed to advise the appellant about the effect of not giving evidence. Ground 3(c) complains that Mr Rafferty failed to correct errors which Mr Lombardi had allegedly made during the pre-recording of the complainant's evidence.
5. The application for leave to appeal on these grounds has been referred to the hearing of the appeal.

1. By application in an appeal filed on 6 December 2019, the appellant in effect seeks leave to adduce his affidavit sworn 6 December 2019 as additional evidence in the appeal.
2. By application in an appeal filed on 17 February 2020, the State applies for leave to adduce the affidavit of Mr Rafferty sworn 10 February 2020 as additional evidence in the appeal.
3. These applications in an appeal were referred to the hearing of the appeal.

Ground 1: trial judge's direction Directions summarising the appellant's position

1. As the appellant's complaint about the trial judge's direction is relatively confined, it is unnecessary to summarise the whole direction. The complaint is directed at two passages of the trial judge's direction dealing with the elements of the indecent dealing offence. The trial judge said:[62]

The second thing that the State must prove beyond a reasonable doubt, is that Mr George dealt with [the complainant].

So this element requires the State to prove that - in respect to count 1, that he touched her on the bottom. And in respect to count 2, that he touched her on the breast.

Now - and so this is really the important issue in this case. Mr George, of course, says that the touching did not happen. He has consistently denied that it did. (emphasis added)

1. The trial judge then directed the jury as to what it meant to 'deal', which included touching by a willed act. The trial judge said:[63]

So while it's open you - to you on the law to find that a - touching a person on the backside or the breast, is a dealing. You must be satisfied beyond a reasonable doubt, that it was not an accidental touching, but a willed touching.

So in this case, of course, the defence is that there was no touching, but if you do find there was touching, then you need to [be] satisfied beyond a reasonable doubt, that Mr George set out to touch [the complainant].

Now, I would remind you that while the element is the same for each charge, the allegation is different.

So again, in count 1, it's after asking her if he could touch her hair. That while [the complainant] had her back to Mr George, Mr George ran his [hand] down her back and touched her bottom.

And in count 2, the allegation is that again after asking if [he] could touch her hair, he then touched fringe at - the allegation I think is that she no longer had her back to him, he touched her fringe, before dropping his hand to squeeze her breast. (emphasis added)

1. The appellant's complaint concerns the emphasised parts of the two passages of the direction just quoted, which characterises the defence case as being that 'the touching did not happen' and 'there was no touching'. In essence, the appellant submits that this fails to recognise the explanation given by the appellant in his EROI as to how he may have inadvertently touched the complainant.
2. The following passages of the trial judge's direction are also relevant to the assessment of this ground.
3. In the course of summarising the State's case, the trial judge said:[64]

The State says you shouldn't believe Mr George when he denies these events in the electronic record of interview and it points to some of the things that he said that confirmed what [the complainant] had said. And I suppose that the State would say that he was unconvincing when he tried to explain what might have happened.

Now, you have the photographs of the house and you can decide for yourself, members of the jury, having seen the photographs of the laundry, whether [the complainant] was or could have been standing behind the door in the laundry and whether Mr George's evidence about how he was getting into the laundry was cogent and convincing. I'll come back to Mr George's evidence though.

1. The trial judge then summarised Mr Rafferty's submissions, including that:[65]

Mr Rafferty also says that Mr George was consistent in his denials and that is a matter that you should give some considerable weight to.

And finally, he said that those denials were inconsistent in the face of an unfair interview. Now, of course, those are all matters, ladies and gentlemen of the jury that you need to turn your mind to.

1. The trial judge then instructed the jury that, if they did not believe the complainant they would not be able to find, beyond reasonable doubt, that the appellant was guilty. The trial judge gave a Liberato direction, which instructed the jury that they could not convict the appellant if they believed what he said in the EROI or thought that it might be true.[66]
2. It is, of course, necessary to consider the effect of the trial judge's direction as a whole and how the jury listening to the direction might understand it.[67] In our view, the direction as a whole made it clear that the touching which the appellant denied was that alleged by the complainant, namely moving his hand from her hair to her buttocks or breast respectively. The summing up referred to the appellant's account about getting into the laundry, and the need for the jury to find the appellant not guilty if they believed that account, or thought it might be true.
3. As this court recently noted in Galipo v The State of Western Australia:[68]

The fundamental task of a trial judge is to ensure a fair trial of the accused. That requires the judge to instruct the jury about so much of the law as they need to know in order to dispose of the issues in the case. It also requires the judge to ensure that the respective cases for the prosecution and the accused are accurately and fairly put to the jury. (citations omitted)

1. Taken as a whole, the trial judge's summing up accurately and fairly summarised the appellant's case. The appellant's criticism of the summing up in that regard is without merit.

1. The appellant's ground of appeal and submissions also refer to errors in the transcript of the audio recording made by the complainant's mother, and of his EROI with police. However, as the State points out, the transcripts were never provided to the jury so any transcription errors could not have misled them.
2. In submissions, the appellant drew particular attention to what he said was a particular error at page 88 of the transcript of the EROI. At this point, as the police are putting the complainant's account to the appellant, the appellant says something. The transcript records the exchange as follows:

1/CON SAYWELL: So she is also down in the laundry. So, so first she has said that you have, um, you have come into the laundry and you have asked her , um, what year she is , and then you have asked her can I touch your hair, and then she has said -

GEORGE: I agree, um - - -

1/CON SAYWELL: She has said yes, that you have touched her hair, but you have continued from her hair and run your hands down her side, which has brushed past her buttocks . ...

1. The appellant submitted that the transcript is incorrect in recording that he said 'I agree' at this point. Having listened to the recording, it is not clear to us what the appellant said at this point, although it could have been 'I agree'.[69] However, shortly before that passage the appellant had denied touching the complainant's hair,[70] and his subsequent account is inconsistent with him asking to touch the complainant's hair.[71] Although it would be a question of fact for the jury to assess what the appellant said, we would not conclude that the appellant admitted to having asked to touch the complainant's hair in the laundry. We also doubt that a jury, watching and listening to the EROI without the transcript, would have concluded that he made such an admission at this point.
2. Irrespective of the accuracy of the transcription, the transcript did not affect the jury's assessment of the EROI as it was not before the jury. Determining what was said at this point was a question of fact for the jury watching and listening to the recording. The lack of clarity in what the appellant said at this point did not provide a ground for excluding the evidence of the EROI. The appellant had a choice to give evidence and explain what he had actually said or meant at this point and (in the manner explained below in dealing with ground 3) chose not to do so.
3. The appellant provided the court with a document which he says identifies errors in the transcript of the EROI. Most of those errors are not errors in transcribing what was said in the interview. Rather, in that document the appellant identifies points at which he asserts his answers do not reflect his intended meaning. For example, he asserts that when he answered 'yes' to many questions he was not agreeing with the proposition being put to him but indicating his lack of understanding. The submissions made in this document do not affect the conclusion, reached for the reasons explained above, that any 'errors' in the transcription of the EROI did not result in any miscarriage of justice.

1. The appellant's submissions also complain that the trial judge's direction did not address the matters referred to in Azzopardi v The Queen.[72] Although the argument appears to us to fall outside the grounds of appeal, we will deal with it in any event, given that the issue is raised by submissions, and the appellant is self-represented.

1. In Azzopardi, the majority of the High Court observed:

In the course of argument of the present matters it was suggested that if a judge said nothing to the jury about the fact that an accused had not given evidence, the jury may use the accused's silence in court to his or her detriment. Plainly that is so. It follows that if an accused does not give evidence at trial it will almost always be desirable for the judge to warn the jury that the accused's silence in court is not evidence against the accused, does not constitute an admission by the accused, may not be used to fill gaps in the evidence tendered by the prosecution, and may not be used as a make-weight in assessing whether the prosecution has proved its case beyond reasonable doubt.

1. In R v DAH,[73] the Queensland Court of Appeal (McPherson JA, White and Cullinane JJ) considered a case where a trial judge directed the jury that the accused's decision not to give evidence did not strengthen the case, or supply additional proof of the case against him. However, the judge did not direct that the accused's silence 'may not be used to fill gaps in the evidence tendered by [the] prosecution, and may not be used as a make-weight in assessing whether the prosecution has proved its case beyond reasonable doubt'. Both McPherson JA and White J, with whom Cullinane J agreed, held that the High Court in Azzopardi did not mandate use of any particular verbal formula, and that the term 'make-weight' is not in common use and has an unattractive flavour of antiquarianism about it.[74] White J identified the essential elements of the direction as being that:[75]

(1) no adverse inference may be drawn from an accused's failure to give evidence;

(3) the accused is presumed innocent until the prosecution adduces sufficient evidence to reach a conclusion of guilt beyond reasonable doubt; and

(4) the failure to give evidence does not strengthen the prosecution case or supply additional proof against a defendant or fill gaps in the evidence.

The court in DAH held that the trial judge's direction in that case warned the jury in terms which were acceptable and sufficient to discharge that obligation.[76]

1. In R v Wilson,[77] the New South Wales Court of Criminal Appeal dismissed an appeal against conviction, in which a ground of appeal was that the trial judge failed to direct in the terms proposed in Azzopardi. The impugned direction failed to mention that the absence of evidence from an accused may not be used to fill gaps in the evidence tendered by the Crown, and may not be used as a make‑weight in assessing whether the Crown has proved its case beyond reasonable doubt. Relevantly, while the appellant in that case had not given evidence at trial, the jury had been shown two videos of her interviews with police. Hunt A‑JA, with whom Grove and James JJ agreed, observed that the decision in Azzopardi did not make it compulsory to give the suggested direction in every case, or almost every case.[78] Later, his Honour observed:[79]

The jury were not faced with total silence on the part of the appellant. They had had played to them her two interviews by the police. What is left is the fact that she had not given evidence supporting her statements to the police and been tested in cross-examination. The judge did direct the jury that no inference of guilt could be drawn from the appellant declining to give evidence.

...

Whilst the trial would not have suffered had the whole Azzopardi direction been given, I do not accept that it was 'desirable' for the missing ingredients to have been included in the terms expressed by the joint judgment in the directions given in this case. The absence of the missing ingredients in those terms would not have led to the loss of any chance fairly open to the appellant of acquittal or to any other miscarriage of justice.

1. Conversely, in Martinez v R,[80] the New South Wales Court of Criminal Appeal (Macfarlan JA, R A Hulme and Adamson JJ agreeing) noted that, in circumstances where the accused did not give evidence and the jury did not have evidence of police interviews before them, the need for an Azzopardi direction was heightened.[81] In Martinez, a direction was held to be desirable given the absence of a police interview, the fact that a co-accused gave evidence and in circumstances where it was contended that Martinez's conduct evidenced consciousness of his guilt.[82] In that case the success of other grounds of appeal made it unnecessary for the court to determine 'the consequences of an inadequate direction being given'.[83]
2. In R v Hartfiel,[84] the Queensland Court of Appeal held that a miscarriage of justice was established by a failure to direct the jury in the terms proposed in Azzopardi. Relevantly, the appellant in that case elected to not give evidence, and there does not appear to have been a police interview in evidence. However, the appellant in that case adduced evidence from two other persons. While the directions indicated that the accused did not need to give evidence, and that the burden of proof fell on the prosecution, they did not foreclose the possibility that the jury might draw an adverse inference against the appellant by her failure to give evidence. Expressing a view reached 'with some hesitation', Muir JA (McMurdo P and Dalton J agreeing) said:[85]

The jury could not have failed to note the appellant's absence from the witness stand. She was charged with specific fraudulent conduct. What she did or did not do at relevant times and in respect of relevant matters was within her knowledge and, in some respects, within her knowledge only. Yet she chose not to give the jury the benefit of her evidence, electing instead to call two witnesses who could testify only in respect of matters on the periphery of the prosecution's allegations. A natural, if not inevitable, response on the part of jury members would have been to wonder why the appellant had opted not to give evidence. It would also have been natural, and possibly almost inevitable, that the jurors, or at least some of them, would have drawn an adverse inference or adverse inferences from the appellant's failure.

1. In Burke v The Queen,[86] the Victorian Court of Appeal (Redlich, Weinberg and Priest JJA) found a substantial miscarriage of justice arose from the combination of the absence of a full Azzopardi direction and other misdirections. In dealing with the Crown's submission, the court observed:[87]

In our opinion, the Crown's contention that the requirement to give an Azzopardi direction was dependent on whether there was something about the case that required such a direction, is to approach the issue from the wrong starting point. The correct view is that such a direction is desirable unless there is some feature of the case that renders it unnecessary or inappropriate.

1. In Burke, the jury had asked a question as to whether a record of interview was the same as a sworn statement.[88] The court observed:

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

The court found it unnecessary to determine whether the failure to give an Azzopardi direction would of itself have constituted a miscarriage of justice.[89]

1. In JPM v The Queen,[90] the trial judge did not give an Azzopardi direction in a case where the accused was charged with an indecent dealing offence. The accused had participated in a recorded interview with police which was tendered at trial, in which he denied the offending. Simpson AJA and Fullerton J held that no miscarriage of justice arose. In agreeing with Fullerton J's analysis, Simpson AJA said:[91]

As a number of the decisions to which reference has been made emphasise, the High Court did not, in [Azzopardi], make a direction concerning the in-court silence of an accused person mandatory. Rather, their Honours said that such a direction will 'almost always' be 'desirable'. Whether, in a particular case, such a direction ought to be given will depend on all the circumstances of the case.

Here, the directions given by the trial judge with respect to the onus of proof, and the use to which the jury could put the applicant's recorded interview, extracted in the judgment of Fullerton J, were, in my opinion, sufficient to bring home to the jury that the applicant was under no obligation to do anything more, including give evidence. The directions concerning the recorded interview all but equated those answers with evidence.

1. Fullerton J held that an Azzopardi direction was not required in every case,[92] and that in the context of the trial and having regard to matters which included the trial judge's directions about the use the jury could make of the accused's recorded interview with police, an Azzopardi direction was not essential.[93] Adamson J dissented, concluding that, in the circumstances, there was such a substantial risk that the jury would have assumed that the accused's silence in court could be taken into account against him because, if he were innocent, he would have given evidence.[94] An application for special leave to appeal against the decision in JPM was refused on the ground of insufficient prospects of success.[95]
2. The decisions in BAH, Wilson, Martinez, Hartfiel, Burke and JPM illustrate the proposition that a failure to give a full direction in terms proposed in Azzopardi may, but will not necessarily, give rise to a miscarriage of justice. They also confirm the High Court's observation that such a direction will almost always be desirable. Whether or not the failure to give the almost always desirable direction gives rise to a miscarriage of justice will depend on the circumstances of the particular case. In particular, it will be important to consider whether there was a perceptible risk that the jury might improperly use the accused's silence to support the prosecution case in the absence of a direction.

Significance of the absence of an Azzopardi direction in this case

1. In the present case, the trial judge did not give a direction in the terms said by the High Court in Azzopardi to be almost always desirable. In particular, the trial judge did not direct the jury that the fact that the appellant did not give evidence could not be used to fill gaps in the State case.
2. However, in directing the jury about the presumption of innocence and the standards and onus of proof, the trial judge observed:[96]

So during this trial Mr George, from the moment he entered the court until you deliver your verdicts, is presumed to be innocent. And it's only by your verdicts that, that presumption can be taken away. That means that Mr George was not obliged to enter the witness box and give evidence and be cross-examined.

So that's sometimes spoken of as the right to remain silent. And of course in this case Mr George did not elect to give evidence in this matter and that was entirely within his rights. He did - he doesn't, because of that - shouldn't be treated in any different way by you. He was perfectly entitled not to give evidence in this matter.

Mr George, of course, did speak to the police on 20 April 2017 and the electronic record is part of the evidence in this case. But when he did that he didn't - he didn't, by doing that, become obliged to prove anything either. And I will speak to you a little bit later about how you must treat that evidence of Mr - the evidence of the electronic record of Mr George.

1. Later, prior to giving the Liberato direction noted above, the trial judge said:[97]

Now, I do want to give you some special directions about the evidence of both Mr George ... First of all, Mr George didn't give evidence during this trial. I've mentioned this already and I'll remind you that was his right because the presumption of innocence applies and he was at liberty not to give evidence.

But he did give his version of events in his interview, the electronic record of interview with the police. Bear in mind he was also entitled to stay silent during that interview but he did - he did - did choose to go ahead with the interview.

Now, the fact that he gave his side of the story to the police does not in any way detract from the important principles that the onus is on the State to prove the charges that it presents against him. And he is presumed innocent until the charges are proved beyond a reasonable doubt. (emphasis added)

1. The appellant submits that the Liberato direction is not a substitute for an Azzopardi direction. The appellant submits that it can be inferred from the guilty verdicts that the jury must have rejected the account he gave in the police interview. Having done so, the appellant submits that there is a perceptible risk that the jury might have given greater weight to the prosecution evidence because he exercised his right to silence.[98]
2. It would certainly have been preferable for the trial judge to have given a direction that the fact that the appellant did not give evidence could not be used to fill gaps in the State case. However, given the fact that the appellant's account was before the jury via the EROI, the directions noted at [84] and [85] above, and the Liberato direction, there does not seem to us to be any material risk that the jury might have thought this to be the case. As coun[99]l for the State noted,99 as part of the Liberato direction the trial judge directed the jury that even a positive rejection of the appellant's account in his EROI could not be used against him. Her Honour instructed the jury that rejection of his account would require them to put his account to one side and to 'look again at all the evidence' and consider whether they were satisfied beyond reasonable doubt a[100]he offence occurring.100 We accept counsel's submissions that there is no perceptible risk that the jury, having been told that even a positive rejection of the appellant's account could not be used against him, would go on to reason that the fact that his interview account was not repeated at trial on oath was a matter which could, in any way, influence their deliberations.
3. While the omission of the direction is to be discouraged, we are satisfied that the absence of a direction in terms of that said in Azzopardi to 'almost always be desirable' did not, in all the circumstances of this case, give rise to any miscarriage of justice.

1. Although not referred to in the ground of appeal, the appellant's submissions in relation to ground 1 assert that 'exhibit D' was not disclosed to the appellant until it was presented in court, and edits were made to the EROI without his consent.
2. Exhibit D was two photographs of the complainant's clothing worn at the time of the alleged offence.[101] However, Mr Rafferty did not object to the tender of these photographs or complain about non‑disclosure at trial. Given the matters in contest at trial, the photos of the complainant's clothing were of no material significance. Further, there is no evidence, as opposed to a mere assertion in the submissions, that there was a failure to disclose the photographs.
3. As to the EROI, before the video was played the prosecutor indicated that it had been edited by agreement, and the judge explained this to the jury.[102] Mr Rafferty did not take any issue with these statements. Again, there is no evidence, as opposed to assertion by the submissions, that the EROI was edited without the agreement of the appellant's counsel.
4. If the appellant is to be understood as submitting that Mr Rafferty agreed to the edits to the EROI without the appellant's consent, then the submission is without merit. Generally speaking, it is within the remit of defence counsel to agree to edits excising portions of an EROI which are not perceived to be in an accused's interests. Counsel does not generally need to take instructions before doing so.

Ground 2: admission of EROI Appellant's contentions

1. Ground 2 challenges the admission of the EROI as evidence at trial. He raises three points.
2. First, the appellant says that the officers did not make it clear to the appellant that he was being charged with a serious offence. However, at the commencement of the interview, police indicated that the appellant was arrested under suspicion of indecent dealing with a child.[103]
3. Secondly, the appellant says he did not understand his right to silence. That was certainly the case at the beginning of the interview. However, as the passages set out above illustrate, the appellant did appear to eventually understand the point.
4. Thirdly, the appellant points to his language difficulties and unfamiliarity with the Australian legal system, effectively indicating that he did not understand the significance of the discussion or the importance of having an interpreter. However, it appears from the transcript that the appellant did generally understand what police were saying to him and was able to give an intelligible account of events.

1. The principles governing the admission of confessional statements to police are well established, and were summarised in Kelly v The State of Western Australia,[104] including in the following:

It is a fundamental common law requirement that a confessional statement must be voluntary. It is presumed that a confessional statement is voluntary if there is nothing to suggest that it is involuntary. If the issue of voluntariness is raised, the State bears the onus of establishing, on the balance of probabilities, that the statement is voluntary.

...If a confessional statement is not voluntary, it is not admissible in the State's case. Subject to the Criminal Investigation Act, if a confessional statement is voluntary, it is prima facie admissible. ...

If a confessional statement is voluntary, it may nevertheless be excluded by the court in the exercise of discretion. .... An accused who asserts that a voluntary confession was improperly or unfairly obtained or should, on some other recognised basis, be excluded bears the onus of proving facts that would justify an exercise of the residual discretion in his or her favour. (citations omitted)

1. The evidence before this court and the trial court indicates that the appellant's answers were voluntarily given. While it took some time, the appellant eventually indicated his understanding that it was his choice whether to answer questions. The purpose of the process was explained to him, and he indicated his understanding that his answers could be used as evidence in court. On the face of the EROI, the decision to answer questions was a result of the exercise of the appellant's free choice, even assuming that this means that the choice to speak must be an informed choice.
2. In any event, as the majority of the High Court recognised in Tofilau v The Queen, at least generally the concept of a voluntary confession is of a confession which is not made under compulsion or duress, or of fear of prejudice or hope of advantage as a result of statements made by a person in authority.[105] While they may have taken a broader view of the concept of 'basal voluntariness' than other members of the majority in that case, Callinan, Heydon and Crennan JJ adopted the following passage of Gleeson CJ's judgment in R v Azar:[106]

There is no justification for the proposition that a statement is voluntary ... only if the maker of the statement was aware, at the time it was made, that the law offered a choice between speaking or remaining silent. Admissions are frequently made by accused persons, often to persons other than police officers, and sometimes to police officers, in circumstances where the maker of the statement is uninterested in, and unaware of, the legalities of the situation. Indeed if ... a statement may be voluntary even though made pursuant to a legal obligation, a fortiori a statement may be voluntary even though the maker is unaware of what the law requires.

... There are numerous statements in the law reports to the effect that a confessional statement to a police officer is not inadmissible merely because no caution has been administered. It is hardly likely that those statements were intended to apply only in the case of an accused person who knows of his right to silence even without a caution.

1. So, in Australian law, an accused person does not need to have understood that he or she has a choice as to whether or not to speak before a statement is taken to be voluntary. A failure to give a caution at all, while relevant to the exercise of the residual discretion, does not render confessional statement inadmissible on the basis that it was involuntary.
2. There might have been some prospect of arguing that the EROI should have been excluded in the exercise of the residual 'fairness' discretion. If the appellant had sought to exclude the admission of the EROI on this basis, it would probably have been necessary for him to have given evidence in a voir dire. The prospects of success of an application to exclude the EROI on this basis may have depended on the manner in which the trial court regarded the credibility and reliability of the appellant's evidence.
3. However, the appellant did not ask the trial judge to exclude evidence of the EROI in the exercise of her Honour's discretion. In those circumstances, the trial judge cannot be said to have made any wrong decision on a question of law. The admission of the EROI will only provide a ground of appeal if it constituted a miscarriage of justice. The problem facing the appellant in that regard is that the appellant and his counsel made a tactical decision not to object to the admission of the EROI to obtain a forensic advantage in the trial.
4. As explained below in dealing with ground 3, the appellant, acting on Mr Rafferty's advice, made a strategic decision not to object to the admission of the EROI. Mr Rafferty perceived two advantages in the admission of the EROI. First, the EROI provided a means of putting the appellant's account of events before the jury without the appellant giving evidence. That advantage was obtained in the context where Mr Rafferty considered it important for the appellant's account to be before the jury, so they were not just left with the complainant's evidence, and where Mr Rafferty's assessment was that there was a significant possibility that the appellant would present as a terrible witness. The other strategic advantage which Mr Rafferty perceived in the admission of the EROI was that it would enable him to criticise the behaviour of the police, who he believed had behaved inappropriately during the course of the interview. The EROI could then form the basis of the submissions which Mr Rafferty later made to the jury to the effect that, despite inappropriate police behaviour during the interview, the appellant denied the offences. Mr Rafferty accordingly advised the appellant that he should not give evidence, and instead, rely upon the EROI to place his account before the jury. That advice reflected an objectively rational forensic decision, and was accepted by the appellant.
5. The above tactical advantages constituted a rational forensic basis for the decision not to object to the EROI.
6. In McKinnon v The State of Western Australia,[107] this court held that no miscarriage of justice resulted where the only inference to be drawn from the conduct of the defence case was that a forensic decision had been made not to object to complaint evidence because it was to be relied on as part of the defence case. The court applied the following dicta of McHugh J in Suresh v The Queen:[108]

[B]y not objecting to the admission of the statement and then using it to support the defence theory of the case, the appellant exercised his right to a fair trial. It would undermine the system of adversarial criminal justice if the admission of technically inadmissible evidence, not objected to for rational forensic reasons, could result in the quashing of a conviction because the forensic tactics had failed to bring about the accused's acquittal.

The principle was also recently applied by a majority of the court in MNA v The State of Western Australia.[109]

1. In our view, this principle is applicable in the present case. There is no miscarriage of justice arising from the admission of the EROI when the appellant and his counsel chose not to object to its admission to obtain a tactical advantage in the trial. That is so even assuming (without deciding) that the trial judge should have ruled the EROI to be inadmissible if objection had been taken.

Ground 3: incompetence of counsel General principles

1. The relevant general principles as to when a miscarriage of justice may arise through incompetent representation were recently summarised by this court in Huggins v The State of Western Australia.[110] We adopt that comprehensive analysis without repeating it, noting the following passage of the reasons in that case:[111]

An appellant who seeks to demonstrate that the conduct of his or her counsel caused a miscarriage of justice undertakes a heavy burden which is not easily discharged. This is a consequence of the adversarial nature of a criminal trial and the role played by counsel. Ordinarily, an accused is bound by the way the trial is conducted by counsel even if that was not in accordance with the wishes of the client. It is not a ground for setting aside a conviction that decisions made by counsel were made without or contrary to instructions or involved errors of judgment or even negligence. It is not the province of appellate courts to review the wisdom or prudence of the conduct of a trial by trial counsel. For example, an apparently rational decision by trial counsel as to what evidence to call or not to call does not give rise to a miscarriage of justice simply because an appellate court thinks it worked to the probable disadvantage of the appellant. (citations omitted)

1. Further, as was recently reiterated in Jeffery v The State of Western Australia,[112] this court does not examine whether a decision taken by the accused's counsel at the trial was, in fact, taken for the purpose of obtaining a forensic advantage or avoiding a forensic disadvantage. Rather, the court is concerned only with whether counsel's decision is capable of explanation on that basis. The question is whether there could there be any reasonable explanation for the decision. The test is objective in character.
2. In Jeffery,[113] it was held that a miscarriage of justice occurred because inadequate advice was given to Mr Jeffery by his legal advisers about his choice of whether or not to give evidence. Relevantly, defence counsel spoke to Mr Jeffery while he was in the dock, after the prosecutor in that case had closed the State's case and shortly before the trial was to resume after the lunch adjournment. It was found that they did not discuss the factors which caused counsel to advise Mr Jeffery not to testify, all of which (in the court's view) were debateable and one of which was incorrect. That occurred in circumstances where the court was satisfied that, on an objective assessment of the relevant facts and circumstances, there was, in substance, no forensic reason to not call Mr Jeffery as a witness.
3. In Craig v The Queen, the High Court considered how inadequate legal advice on an accused's choice to give evidence may give rise to a miscarriage of justice.[114] The court recognised that a trial may be unfair because the exercise of an accused's right to give evidence in his or her defence was effectively foreclosed by the receipt of incorrect advice.[115]
4. However, the High Court rejected the proposition that, where an accused is aware of the right to give evidence, any material error in legal advice bearing on the exercise of the right denies an essential condition of a fair trial.[116] In the context of a decision not to give evidence, the court considered that: [117]

At the least, demonstration that incorrect advice has occasioned a miscarriage of justice will require consideration of the relation between the advice and the decision not to give evidence.

The High Court held that an appellate court's assessment of whether the decision not to give evidence deprived an accused of a fair trial looks to the nature and effect of the incorrect advice on the accused's decision. It is not an assessment of whether an objectively rational justification could be assigned to the decision.[118]

1. We turn to address the particular matters of concern raised by the appellant.

1. The first matter raised by the appellant concerns the use of an interpreter at trial. He contends that, while an interpreter was available to him at trial, the interpreter did not actually interpret so as to enable him to understand the proceedings.
2. As noted above, the appellant declined the offer of an interpreter when interviewed by police.
3. We note that the appellant's aborted first trial commenced on 6 June 2018. At that time Mr Lombardi informed Sweeney DCJ that the appellant's English was 'not excellent but it's passable'. In answer to her Honour's question as to whether the appellant required every word to be interpreted, Mr Lombardi asked that 'the bulk of it' be interpreted. The interpreter was asked to interpret everything to begin with.[119]
4. The first trial was aborted when there was an objection to the admission of the audio recording at the complainant's house and a ruling as to its admissibility was required. In the voir dire, the appellant gave evidence with the assistance of an interpreter, although the transcript does not always make it clear when the appellant was answering questions directly and when his answers were given via the interpreter. He was cross-examined as to his ability to speak and understand English.[120]
5. The interpreter appears to have been interpreting at least the bulk of the proceedings before Sweeney DCJ, including the prerecording of the complainant's evidence when arrangements were made for the appellant to sit with the interpreter in the back of the court where the interpretation would not distract the complainant.[121]
6. At the commencement of the appellant's trial on 7 November 2018, the following exchange occurred between the trial judge and Mr Rafferty:[122]

RAFFERTY, MR: I've spoken to her this morning and can I advise your Honour of this because it's important for the conduct of the trial. I have spoken to Mr George during the course of the preparation of the trial.

GILLAN DCJ: Yes.

RAFFERTY, MR: His English is not bad.

GILLAN DCJ: Yes.

RAFFERTY, MR: And he did not need an interpreter for the course of the record of interview which you'll see played during the course of the trial.

GILLAN DCJ: Yes.

RAFFERTY, MR: In the circumstances, what I've suggested to him is that if he does not understand something during the course of the trial, that he simply turns to the interpreter and asks her to interpret it.

GILLAN DCJ: Yes.

RAFFERTY, MR: Now, obviously, we'll all need to be mindful during the course of the trial so obviously, when that occurs, we might need to slow things down.

GILLAN DCJ: Yes.

RAFFERTY, MR: But I am satisfied that he has a good understanding of the English language for the purpose of this trial and it really is just a back-up - - -

GILLAN DCJ: Yes.

RAFFERTY, MR: - - - to make sure that he understands everything.

GILLAN DCJ: Okay. So that means, Madam Interpreter, that you will need to be listening very carefully of course at all times just in case Mr George is uncertain about something, and I assume that you've done this job before?

THE INTERPRETER: Yes, I have, your Honour.

GILLAN DCJ: Okay, thank you. Thank you very much.

1. In his affidavit, the appellant deposes that in his only pre-trial meeting with Mr Rafferty:[123]

I requested to interpret every word to ensure not to be missed anything at trial. He replied 'jury may think this person didn't ask interpreter at police recording but here he requesting to interpret every word. The jury will have doubts you are trying to hide something'.

1. After deposing as to his lack of understanding of trial procedure, the appellant deposes:[124]

At trial everyone speaks very fast with Australian slang and hard English. I understand only if they speak slowly and clearly statement by statement. I don't understand Australian local norms and customs. I was unable to understand properly to take any decision at the trial. The interpreter did not interpret anything at trial from day 1 to day 3.

1. By contrast, Mr Rafferty's evidence is that:[125]

Prior to the trial commencing on Wednesday, 7 November 2018 I asked the appellant whether he wanted every word spoken during the trial to be interpreted for him. He advised that he did not. I advised him that if he had any issues in understanding anything said during the trial, that he should speak with the interpreter. I also spoke with the interpreter and advised him that the appellant did not need every word spoken during the trial interpreted. I also advised Her Honour Judge Gillan of this at the commencement of proceedings. (see transcript pages 243-244)

1. The appellant's evidence was that the only substantive meeting he had with Mr Rafferty was over about 30 minutes on the afternoon of 5 November 2018, 'just one day before the trial' commenced.[126]
2. The appellant's account of this meeting, which was conducted without an interpreter, was as follows:[127]

Mr. Rafferty asked me couple of questions loudly with anger. He said this is the way prosecutor will cross-examine you at the trial. Prosecutor will twist your answers [in front] of jury, there was a miscommunication happened in this meeting by language difficulty with Mr. Rafferty about touching the complainant. Mr. Rafferty was questioning to me by using EROI errored transcript, 'you agreed already all the allegations to police now why you are changing your statement', you shouldn't agree to police then. means he referred Errored admissions, printing mistakes on the transcripts (especially EROI page 88, 89) but I understood at that time he was referring as I agreed to police that I touched the girl behind the door that was wrong.

...

Mr. Rafferty said to me in this 30 min meeting, I read your transcript and have seen your video Interview, you are changing your statement time to time, you should not give evidence in this way, now you are changing your statements to me, you already agreed all the allegations to police in the police recording. I will follow only police recording transcript, I said but there are many errors, but he replied I already reviewed your video and transcripts there is no errors. It is waste of time to argue with you for everything, if you want to run your [trial] in your way look for another lawyer, let me do my job in my way. He didn't listen when I tell anything to him, he was treating me as a criminal. I was afraid maybe he will tell that he cannot represent to the trial because I don't have any other choice, just one day left to trial.

Mr. Rafferty teach me in this 30 min meeting 'you should wear coat and suit, and tie' If you don't have any of these you have to buy. You must go custody on basement, I will write down details for you' you have to sit peacefully in front of jury, should not make any sound or reject or cry or any other feeling anything happens in the court.

1. Mr Rafferty's evidence is also that there was a substantive conference with the appellant on 5 November 2018, with the trial commencing on 7 November 2018. The appellant indicated that he did not need an interpreter and his wife, who also attended, could assist him. Mr Rafferty deposes that he gave the appellant advice about a number of matters, including that:[128]

That the appellant could exercise his right to silence at the conclusion of the prosecution case, however if the record of interview was objected to and ruled inadmissible, then it was my opinion that he should give evidence so that his version of events would be before the jury for consideration.

1. Mr Rafferty's evidence is that a decision needed to be made as to whether the EROI would be objected to, which could only be made after an assessment of whether the appellant would give evidence at trial.[129] Mr Rafferty then gives the following account of the conference:[130]

During the course of the meeting on 5 November 2018, the appellant strenuously denied touching the complainant in any way. Accordingly, the trial was conducted on the basis that the two acts alleged by the complainant did not occur.

During the course of the meeting on 5 November 2018, I cross‑examined the appellant in the manner that I expected he would be cross-examined were he to-give evidence at trial. His wife was present in my office when this occurred. I cannot recall what I specifically asked the appellant, however I have a very clear memory that I formed the view that the appellant would be a terrible witness were he to give evidence at trial. I conveyed this opinion to the appellant. I recall asking the appellant's wife in the appellant's presence whether she believed that the appellant should give evidence and that she shook her head in response to my question.

I advised the appellant that it was his decision as to whether to give evidence at trial. He stated that he would consider his position and advise me at our consultation the following day.

At no stage during the meeting with the appellant on 5 November 2018 did I have any trouble in understanding him, nor did I have any concerns as to whether he understood me.

1. Mr Rafferty deposes that he again met with the appellant and his wife over about 30 - 60 minutes on 6 November 2018. Mr Rafferty described the decision that was made at that meeting in the following terms:[131]

At the meeting on Tuesday, 6 November 2018 a decision was made to rely on the denials in the electronic record of interview and for the appellant not to give evidence. I advised the appellant that this was appropriate on the basis that:

1. It would avoid the need for him to give evidence, in circumstances in which there was a significant possibility that he would present as a terrible witness;
2. I could criticise the behaviour of the police, who I considered had behaved inappropriately during the course of the record of interview. I made this point strongly in my closing address to the jury.

1. Mr Rafferty also deposes that on 7 November 2018, the first day of the trial, the appellant confirmed his instructions that he did not want to give evidence at trial. Mr Rafferty deposes:[132]

I prepared a hand written document confirming his instructions, which was shown to the appellant. He read the document without assistance, confirmed that he understood what he was signing and then signed the document.

1. The handwritten document was in the following terms:

I [the appellant] have been advised by my counsel, Seamus Rafferty that I can elect to give evidence at my trial in respect of two charges of indecently dealing with a child over 13 years + under 16 years, however I can elect to exercise my right to silence. Mr Rafferty has explained the positive + negative aspects of giving evidence at trial. Having understood all relevant considerations, I have elected not to give evidence. I have made this decision in the exercise of my own free will.

1. The third matter raised by ground 3 is Mr Rafferty's failure to 'rearrange cross-examination with the complainant'. It was common ground between the appellant and Mr Rafferty that a reason for the appellant engaging Mr Rafferty was his dissatisfaction with Mr Lombardi's performance at the pre-recording of the complainant's evidence, which was supposed to be the appellant's trial. As noted above, Mr Lombardi had to be prompted to put the appellant's case to the complainant.
2. In his affidavit, Mr Rafferty deposes that:[133]

That there were issues with the standard of representation of counsel at the pre-recording, however I was of the opinion that it did not reach a level that would allow a Judge to exercise the discretion to have the witness recalled. I also mentioned [to the appellant] that it could be counterproductive to have the witness recalled as I was of the view that she was a very strong witness who presented extremely well in both the visual recording of her evidence and the pre-recording of her evidence. Further evidence at trial would have the potential to reinforce her version of events to the jury.

1. Both the appellant and Mr Rafferty were cross-examined on their affidavits.

1. The appellant did not come across as a credible or reliable witness. In particular, he appeared to be intentionally and significantly exaggerating the difficulties which he has in speaking and understanding English.
2. The appellant requested an interpreter for the hearing of the appeal, and one was provided to him. Unfortunately, the interpreter service was unable to provide an interpreter in court due to the limited number of interpreters in Australia who speak the appellant's dialect of the Tamil language. An interpreter attended the hearing by telephone. The appellant requested that the interpreter interpret everything that was said, and that request was granted. We do not hold that decision against the appellant in evaluating his evidence. It is uncontroversial that English is a second language for the appellant, and he was entitled to have the whole of the legal proceedings translated for him. However, the content of the appellant's evidence in this court and aspects of the manner in which it was given lead us to the inference that he was exaggerating the limits of his capacity to speak and understand English.
3. First, it is apparent from the EROI that the appellant was able to effectively communicate with the police officers. He was able to give his account of events in that interview, and generally appeared to understand what was being said to him. A notable exception relates to his understanding of the police caution which was given to him at the beginning of the interview. However, this appears to have been a result of the appellant, who has no legal training or previous exposure to the Australian legal system, having difficulty understanding the concept of the right to silence, rather than a result of any difficulty in understanding ordinary English words.
4. Secondly, there were multiple occasions during the appellant's evidence to this court where he stopped the interpreter and corrected what was said because he appeared to regard the interpreter's English translation of what he had said as being inaccurate.[134]
5. Thirdly, there were a number of occasions during the appellant's evidence in this court in which he indicated an appreciation of what was being said before it was translated into Tamil. For example, he appeared to himself read and understand the handwritten document quoted at [128] above when it was presented to him on the witness stand.
6. Fourthly, parts of the appellant's evidence were given in English, particularly where he was describing what someone had said in English or was reading from a document written in English. However, sometimes he used relatively sophisticated English words in his own evidence, such as referring to 'facial expression' and 'body language' in describing issues with properly understanding communications. On occasions the appellant himself cross-examined Mr Rafferty in English, using clear and relatively sophisticated language.[135]
7. Fifthly, the appellant accepted in cross-examination that he had been taught English as a second language at school in India,[136] had worked in Dubai (where he spoke English from time to time) for about 12 years before coming to Australia, and sat an IELTS English test for the purposes of obtaining a working visa to Australia.[137] He had lived in Adelaide for three years, undertook an electrical apprenticeship, and obtained his Australian qualification as an electrician in English.[138] The appellant came to Western Australia in 2016 and has completed a TAFE course, including written examinations, in English. The appellant did indicate that he had worked as an electrician for 20 years before obtaining his Australian qualifications so he was already familiar with the concepts he was studying, and his capacity for English was not the focus of the electrical examinations.[139] While we accept those points raised by the appellant, the above history nevertheless indicates that the appellant has a good working knowledge of English and at least a reasonable capacity to understand English in its spoken and written forms, including in Australia.
8. Sixthly, as noted at [118] above, at the commencement of the appellant's trial Mr Rafferty explained to the judge, in plain terms, how the interpreter was to be used. The appellant did not give evidence of asking the interpreter to interpret anything for him at trial, or of indicating either to the interpreter at his trial or Mr Rafferty that he could not understand what was going on.
9. Seventhly, the appellant accepted in cross-examination that, during a short adjournment between his conviction and sentencing, he told Mr Rafferty about his background. He accepts that he did this in English.[140] The result was a note handwritten by Mr Rafferty which was handed to the trial judge as explaining the appellant's personal circumstances for the purposes of sentencing. The note is exhibit C in the appeal.[141] This demonstrates that the appellant had the capacity to communicate detailed instructions over a short period of time without the aid of an interpreter.
10. Eighthly, the evidence of Mr Rafferty, which we generally accept for the reasons noted below, is that he did not have any difficulty in communicating with the appellant in English or have concerns that the appellant did not understand what was being said to him.
11. The above considerations lead us to reject the appellant's evidence as to his complete lack of understanding of what was happening during the police interview or his trial. It also raises a concern about the appellant's credibility more generally. The fact that the appellant was prepared to attempt to mislead the court as to his comprehension of English, which was the focus of his argument in the appeal, makes us cautious about accepting his evidence on other matters.
12. We note two other matters about the appellant's evidence, which impact adversely on the credibility of that evidence to some extent. The first is that when he was asked clear and simple questions in cross‑examination the appellant's answers were often either non‑responsive or responsive with a self-serving elaboration not called for by the question. The second is that, when asked about the handwritten document quoted at [128] above, the appellant repeatedly indicated (in an unconvincing fashion) that he thought he was signing [142]l papers.142 These matters suggest that the appellant was giving his evidence with a good appreciation of the significant issues in the appeal and a desire to tailor his answers in a way that would advance his cause.
13. We also note that the appellant's evidence as to when he met Mr Rafferty in the week of his trial is somewhat confused. The appellant's trial began on Wednesday 7 November 2018. He describes meeting with Mr Rafferty 'just one day before the trial at 5.8.18 2pm'.[143] Of course, Monday 5 November 2018 was two days before the trial. A likely explanation for this confusion is that the appellant is conflating two meetings, which occurred on Monday 5 November 2018 and Tuesday 6 November 2018 into a single meeting which he now recalls.

1. As might be expected of an experienced criminal barrister, Mr Rafferty presented as a polished witness. He answered questions directly and generally confined himself to answering the questions, although there were some self-serving embellishments in a context where the allegation being put to Mr Rafferty by the appellant was in effect that that he was fabricating his evidence to hide his incompetence.[144] However, where the questions asked by the appellant were unclear, Mr Rafferty made a genuine attempt to identify and answer the question which he thought the appellant was asking.
2. In assessing Mr Rafferty's evidence we are conscious of the advantage which a person experienced with court procedures has in presenting as a witness, particularly as compared with person such as the appellant for whom court is likely to be an unfamiliar and intimidating environment.
3. We also allow for the fact that there may be an element of reconstruction in aspects of Mr Rafferty's evidence about advice he gave to the appellant which he would be expected to give to any client facing trial (such as the right to challenge a prospective juror). There is a prospect that a memory of giving particular advice to this particular client is drawn from the regular practice of giving standard advice to clients, and an inference that the advice must therefore have been given to this particular client. However, it would be expected that Mr Rafferty would recall a significant departure from his general practice.
4. We also note that it does not appear that Mr Rafferty generally kept contemporaneous file notes of his discussions with the appellant or the oral advice he gave, so Mr Rafferty was necessarily relying on his memory of what was said. The memory concerned was of a type of conversation which Mr Rafferty would regularly have with clients, and which he would have no particular reason to recall prior to being asked to give evidence in the appeal.
5. However, while conscious of the above matters, we are satisfied that Mr Rafferty endeavoured to provide the court with his best recollection of what had occurred out of court, and was careful to ensure that his evidence was as accurate as possible. Nothing in the way he gave his evidence, or the other evidence before the court, provides grounds for doubting the honesty or general reliability of his evidence.

1. We accept Mr Rafferty's evidence that he first met the appellant in his office on 22 June 2018, the date being verified by Mr Rafferty's electronic diary.[145] That was fairly shortly after the pre-recording of the complainant's evidence on 8 June 2018. That is generally consistent with the appellant's evidence that he first met Mr Rafferty about 5 months prior to trial.[146]
2. We also accept Mr Rafferty's evidence that, at this meeting, the appellant indicated that he was not happy with the way that Mr Lombardi conducted the pre-recording, which was meant to be the trial.[147] At the meeting on 22 June 2018, Mr Rafferty took the appellant through the police statement of material facts and asked the appellant whether he agreed with them. The appellant advised Mr Rafferty that he did not do either of the acts alleged against him, and he would be maintaining his plea of not guilty to both charges. Mr Rafferty advised the appellant of his fee and the appellant said that he would consider whether he wanted Mr Rafferty to represent him.[148]
3. In cross-examination, Mr Rafferty also said that, on 22 June 2016, he told the appellant that he had another trial in the week before the appellant's and would 'back-end' preparation of the appellant's trial. Mr Rafferty's evidence was that the appellant expressed no difficulty with that approach.[149] Although this aspect of the meeting was not recounted in Mr Rafferty's affidavit, we are prepared to accept it although we doubt whether the appellant would have necessarily understood what was meant by 'back-ending' preparation. We are prepared to accept the appellant's evidence to the general effect that he only appreciated that the preparation would be undertaken shortly before trial when he received an email from Mr Rafferty's assistant on 11 October 2018.[150]
4. Mr Rafferty's records show that the appellant engaged Mr Rafferty to appear as his counsel at trial on 5 July 2018, made payment of Mr Rafferty's fee on 22 August 2018 and delivered the prosecution brief to Mr Rafferty's office on the same day.[151] The appellant confirms that the fee was paid on 22 August 2018.[152]

1. Mr Rafferty gave evidence that he read the prosecution brief and watched the EROI and pre-recording of the complainant's evidence before meeting with the appellant on 5 November 2018. Mr Rafferty's affidavit indicated that he could not recall when he did this,[153] We accept that Mr Rafferty watched the EROI sometime between receiving the prosecution brief and meeting with the appellant on 5 November 2018.
2. It is common ground that the appellant, his wife and Mr Rafferty met in Mr Rafferty's offices at about 2 pm on Monday 5 November 2018.[154] It is also common ground that the appellant was asked beforehand whether he wanted an interpreter present at that meeting and said that his wife could assist him.[155] The appellant's evidence is that the reason he did not ask for an interpreter at that meeting was that he was told that he would need to pay for the interpreter and could not afford to do so. It is unnecessary to make any finding as to that aspect of the appellant's evidence.
3. The appellant's estimate of the length of the meeting is 30 minutes, while Mr Rafferty's recollection is that the meeting ran for 60 - 90 minutes. In our view, having regard to the matters requiring discussion, Mr Rafferty's estimate of the length of the meeting is likely to be more accurate. Further, the appellant's evidence was that the meeting on 5 November 2018 came to an end when Mr Rafferty told him he had to leave as another client was waiting.[156] The meeting began at about 2 pm, and Mr Rafferty's diary indicates that his next appointment with another client was not scheduled until 4 pm.[157] This suggests that the meeting with the appellant ran for at least 90 minutes, perhaps up to 2 hours.
4. We accept Mr Rafferty's evidence that at the meeting on 5 November 2018 he advised the appellant about the process of arraignment and empanelling a jury and the anticipated course of the trial, including outlining the witnesses who would give evidence for the State. These would be matters which defence counsel would ordinarily find necessary to discuss with a client, and, at the beginning of the trial, Mr Rafferty reported that he had explained the right of challenging jurors to the appellant.[158] We do not regard as reliable the appellant's denial that this advice was given.[159]
5. It is common ground that, at this meeting, the appellant instructed Mr Rafferty that he had not touched the complainant in the manner she alleged. Mr Rafferty's evidence was that the appellant told him the account given in the EROI was correct.[160] The appellant's evidence is that he told Mr Rafferty that he may have touched the complainant accidentally but was not sure on what part of her body.[161] As that was what the appellant had told police in the EROI, the appellant's and Mr Rafferty's account of the substance of the appellant's instructions as to what had occurred were consistent. We therefore accept that, at the meeting, the appellant instructed Mr Rafferty that he denied touching the appellant in the manner alleged, but accepted that he may have accidentally touched the complainant as he attempted to enter the laundry.
6. We also accept Mr Rafferty's evidence that he discussed with the appellant whether the complainant should be recalled for further cross‑examination. This was a natural subject for them to have discussed, given that at least a significant reason for the appellant's engagement of Mr Rafferty was his dissatisfaction with Mr Lombardi's performance at the pre-recording of the complainant's evidence.[162] Mr Rafferty's recollection is that he advised that the problems with the cross-examination did not reach a level that would allow the judge to order the complainant to be recalled as a witness. Mr Rafferty was also concerned that recalling the complainant could create an impression that she was being bullied, and reinforce her version of events to the jury in circumstances where, on Mr Rafferty's assessment of her pre‑recorded evidence, she presented as a very strong witness.[163]
7. Both Mr Rafferty and the appellant gave evidence which describes Mr Rafferty conducting a 'mock' examination and cross-examination of the appellant. Mr Rafferty describes cross-examining the appellant in the manner which Mr Rafferty expected the appellant to be cross‑examined by the prosecutor were he to give evidence at trial.[164] The appellant refers to Mr Rafferty asking him 'questions loudly with anger', saying 'this is the way [the] prosecutor will cross-examine you at trial'.[165] He then refers to an exchange which appears consistent with a mock 'cross-examination'.[166]
8. There would have been no utility to this mock cross-examination exercise unless it was contemplated that the appellant might give evidence at trial. We accept Mr Rafferty's evidence that the purpose of the exercise was to assess the appellant's performance as a witness, so as to inform Mr Rafferty's advice and the appellant's decision as to whether the appellant would give evidence at trial. That decision was made in a context where Mr Rafferty appreciated that there was a prospect of applying to exclude the EROI from evidence in the trial, but doing so would mean that the appellant would have to give evidence if his account of events were to be placed before the jury.
9. In cross-examination, the appellant accepted that Mr Rafferty gave him advice that he should not give evidence in trial, and that he understood what it meant to give evidence in court.[167]
10. We are satisfied that Mr Rafferty gave the appellant oral advice to the following effect at the meeting on Monday 5 November 2018. Mr Rafferty thought it was important for the jury to have the appellant's version of events before it, either by the EROI or the appellant giving evidence. His assessment after the mock cross-examination exercise was that the appellant would make a 'terrible witness'. While there may be some issues with the EROI, Mr Rafferty's recommendation was that the appellant should not give evidence and to rely on what he had said in the EROI.
11. We are also satisfied that the question of whether the appellant was to give evidence was not resolved on Monday 5 November 2018. We accept Mr Rafferty's evidence that the appellant was left to consider his position overnight and come back to him with his decision.
12. We also accept Mr Rafferty's evidence that the appellant and Mr Rafferty communicated in English at this meeting, that he was able to understand the appellant and did not have any concerns that the appellant could not understand him.[168]

1. The appellant and Mr Rafferty had different recollections of whether there was a further meeting on Tuesday 6 November 2018. Mr Rafferty recalled a meeting of about 30 - 60 minutes on that day, attended by himself, the appellant, the appellant's wife, and a law student who worked for Mr Rafferty part-time. The appellant denies that the meeting occurred.
2. Mr Rafferty does not have any record of the meeting. He says that he did not include the meeting in his electronic or hard diaries, as the further meeting was arranged the previous day. It does not appear that Mr Rafferty kept any file notes or other records of the meeting, or the advice given at the meeting.
3. In the course of cross-examination in the appeal, the appellant indicated what he understood the position of his wife to be, and Mr Rafferty indicated what he understood the position of the law student would be, as to whether there was a meeting on 6 November 2018. However, neither the appellant's wife, nor the law student, were called as witnesses in the appeal. We do not give any weight to the hearsay statements attributed to the appellant's wife or the law student in these circumstances.
4. There were some contextual matters which pointed both towards and against there being a further meeting on 6 November 2018.
5. Pointing towards such a meeting taking place, it would be expected that Mr Rafferty would want instructions as to whether the appellant was going to give evidence before the day of trial. The decision as to whether the appellant would rely on the EROI or give evidence would affect the manner in which he prepared for trial. Further, the appellant gave evidence that he recalls a meeting lasting about 30 minutes the day before the trial, albeit that he recalls only one meeting.
6. Two uncontroversial facts tend to point against the meeting taking place. It is common ground that the appellant emailed Mr Rafferty's assistant documents setting out matters considered relevant for trial at 8.09 pm on 6 November 2018.[169] If there had been a meeting on 6 November 2018, it might be expected that this material, or some of it, would have been handed to Mr Rafferty at that time. At the very least, some discussion about the forthcoming material would have been expected at the meeting. Mr Rafferty did not give evidence of having such a discussion. Further, it is common ground that the appellant signed the handwritten instructions that he would not be giving evidence before court on 7 November 2018. If the decision had been taken at a meeting on 6 November 2018 then it would have been expected that the document would have been prepared and signed at the meeting.
7. We accept that Mr Rafferty's belief that a further meeting occurred on 6 November 2018 is genuine, and that his evidence was honestly given. The absence of any record of the meeting taking place, and the competing considerations just referred to, however leads us to approach the assessment of the reliability of that aspect of Mr Rafferty's evidence with caution. It is unfortunate that Mr Rafferty did not make any file note about the meeting at which a very important decision about the conduct of the appellant's trial was taken. Nevertheless, on balance we think it more probable than not that the meeting did take place in the manner described by Mr Rafferty. Mr Rafferty recalls the meeting taking place on 6 November 2018 and the appellant recalls a meeting with Mr Rafferty, of about 30 minutes duration, the day prior to his trial commencing.
8. In any event, irrespective of whether or not the meeting on 6 November 2018 occurred, we are satisfied that, either on 6 November 2018 or the morning of 7 November 2018 before trial, the appellant informed Mr Rafferty that he wished to proceed in accordance with Mr Rafferty's advice. That is, before the trial commenced, the appellant informed Mr Rafferty that he would follow Mr Rafferty's recommendation not to give evidence and to rely on the EROI to place the appellant's account of events before the jury.
9. We do not accept the appellant's evidence that the handwritten instructions, quoted at [128] above, were presented to him as [170]l papers.170 The appellant appeared to have no difficulty in reading the document when it was shown to him in the witness box. The appellant's evidence in this court as to that document appeared to be a dishonest attempt to explain and distance himself from the signed document acknowledging his choice and the advice given to him in relation to that choice.

1. In light of the above factual findings, we are not satisfied that any conduct of the appellant's trial counsel caused a miscarriage of justice.

1. For the reasons explained at [134] - [142] above, we do not accept the appellant's evidence to the effect that he did not understand anything that was happening at his trial. The appellant was provided with an interpreter to whom he could resort if required. We infer that the reason he did not do so was that he generally understood what was being said.
2. In any event, it is not apparent in the circumstances of this case how any limitations in the appellant's understanding produced a miscarriage of justice. He had provided instructions to Mr Rafferty before the trial commenced, with the advantage of knowing the contents of the complainants' pre-recorded evidence and the EROI. The appellant had made the decision as to whether to give evidence before the trial commenced. The only witness who gave evidence at trial in relation to matters about which the appellant might have given factual instructions was the complainant's mother. There is no evidence that the appellant was unable to give instructions as to any matter relevant to the complainant's mother's evidence as a result of language difficulties.

1. This is not a case where the accused received inadequate advice as to the exercise of his right to give evidence or remain silent at his trial. The appellant received advice as to the advantages and disadvantages of giving evidence before the trial commenced. The advice given was forensically sound. It was in the appellant's interest to have his account of events placed before the jury in some form. Given Mr Rafferty's assessment that the appellant would make a 'terrible witness', his recommendation that the appellant not give evidence and rely on the EROI was reasonable and appropriate.

1. Nor did any miscarriage of justice arise from the manner in which the complainant was cross-examined by Mr Lombardi. The cross‑examination elicited a number of statements which could be, and were, used to challenge the credibility and reliability of the complainant's account. Albeit only at the prompting of the prosecutor and Sweeney DCJ, the appellant's account was put to the complainant.
2. It was an objectively reasonable and rational forensic decision for Mr Rafferty not to seek to recall the complainant to give further evidence. It was well-open for trial counsel to take the view that there were no grounds for recalling the complainant and, in any event, the forensic disadvantages of doing to (appearing to bully the complainant and giving a strong witness an opportunity to reinforce her evidence) outweighed the potential forensic advantages of recalling the complainant.
3. Further, there were a number of inconsistencies, identified by Mr Rafferty's closing address, that emerged from the complainant's testimony and other statements. It is not apparent how the cross‑examination of the complainant gave rise to a miscarriage of justice, or on what basis Mr Rafferty might have applied to recall the complainant for further cross-examination.
4. The appellant's ground and submissions refer to the complainant saying at the end of the audio recording 'I have got other points Mum'. Having listened to the audio, we cannot hear this comment. It was a reasonable and rational decision for Mr Rafferty to have concluded that there was no likely forensic advantage to be gained by cross-examining the complainant on this issue, or at least no advantage that outweighed the forensic disadvantages of recalling the complainant as noted above.

1. Mr Rafferty cannot, in our view, be reasonably criticised for failing to properly put the appellant's defence at trial. His cross‑examination of both the complainant's mother and the police officer appears competent. In closing submissions, Mr Rafferty advanced a detailed and logically structured attack on the prosecution case based on the evidence which had been led.
2. A theme of the appellant's evidence and submissions is that Mr Rafferty did not give sufficient emphasis to the appellant's account of inadvertent touching, which could explain the complainant's distressed reaction. However, Mr Rafferty's focus on the difficulties of the complainant's account reflected the standard and onus of proof placed on the prosecution. Further, if the complainant's evidence was accepted, then there was no prospect that the touching of at least her breast was accidental. The most forensically important feature of the appellant's EROI, from his perspective, was the denial that the events the complainant described ever occurred. It was a rational forensic decision for counsel to focus on perceived deficiencies in the complainant's evidence and on the appellant's denial, rather than on the account of events given by the appellant (which had its own credibility issues).
3. In our view, Mr Rafferty put the appellant's defence as strongly as it could reasonably have been put. We are far from satisfied that Mr Rafferty's conduct of the defence case was in any way incompetent, or gave rise to any miscarriage of justice.
4. In our view, there is no arguable basis for the appellant's contention that the conduct of counsel resulted in a miscarriage of justice at his trial. We would refuse leave to appeal on ground 3.

1. At the end of the hearing of the appellant's appeal, the parties were given leave to file supplementary submissions on the Azzopardi point. The appellant's submissions were accompanied by two affidavits, which sought to raise new factual matters not related to the supplementary submissions. The affidavits were not accepted for filing as there were no orders providing for the filing of further affidavits. The appellant has advanced no proper basis on which the further evidence should be received after the conclusion of the hearing of the appeal, and we have not had regard to that additional affidavit material.

1. For the above reasons, we would make the following orders in the appeal:

(1) The applications in an appeal filed on 6 December 2019 and 17 February 2020, seeking leave to adduce additional evidence in the appeal, are granted.

(2) Leave to appeal is refused on grounds 1, 2 and 3.

1. I have had the considerable advantage of reading in draft the reasons of Quinlan CJ and Mitchell JA. They set out all of the necessary background to this appeal against conviction.
2. For the reasons given by them, I agree that leave to appeal should be refused with respect to grounds 2 and 3.
3. As for ground 1, again for the reasons given by Quinlan CJ and Mitchell JA, save for the appellant's contention that the trial judge failed to direct the jury in accordance with what was said by Gaudron, Gummow, Kirby and Hayne JJ in Azzopardi v The Queen,[171] there is no merit in the ground. In relation to this issue and this issue only, I respectfully differ from the conclusion reached by their Honours. In my opinion, the complaint has been made out. I conclude there has been a miscarriage of justice. Accordingly, I would allow the appeal,

set aside the convictions and order a new trial. My reasons for doing so are as follows.

1. As Quinlan CJ and Mitchell JA have recognised, the appellant is a self‑represented litigant. The complaint made by the appellant, which I will, for convenience, refer to as the Azzopardi point, was not squarely raised in ground 1. However, the point was raised by the appellant, somewhat obscurely, in his written submissions in support of this ground. At the hearing of the appeal, the issue was raised by the bench and both parties were given leave to file supplementary written submissions on the point. These submissions have been received and considered. It is clear that the appellant's supplementary submissions were prepared with the assistance of someone who has legal training. The justice of the case required that the point be adjudicated by this court, even though it was not the subject of a separate ground of appeal. The respondent, properly, took no issue with this approach.[172]

1. Azzopardi concerned two separate appeals. The appellants (Azzopardi and Davis) had each been convicted, after trial by jury, of serious offences in circumstances where each had (as in the present case) denied all allegations against him in a police interview admitted in evidence, but did not testify at the trial. Section 20(2) of the Evidence Act 1995 (NSW) relevantly provided that in a criminal proceeding for an indictable offence, a trial judge may comment on the failure of the defendant to give evidence, but the comment must not suggest that the defendant failed to give evidence because the defendant was, or believed that he or she was, guilty of the offence concerned.
2. In each case, the judge directed the jury, in respect of the accused's failure to give evidence, that he was not obliged to give evidence and that the accused's silence could not be treated as an admission of guilt, but that the accused's failure to give evidence might affect the weight the jury gave to the evidence of prosecution witnesses.
3. The majority, Gaudron, Gummow, Kirby and Hayne JJ, found, in both appeals, that the direction infringed s 20(2) of the Evidence Act (NSW). However, only the appeal with respect to Azzopardi was allowed. The appeal by Davis was ultimately dismissed, having regard to the proviso, because the case against him was 'overwhelming'[173] and the misdirection did not deprive the appellant of a real chance of acquittal.[174]
4. Although Azzopardi was concerned with the application of s 20(2) of the Evidence Act (NSW), the majority made statements of general application which have been taken to apply to all Australian jurisdictions with respect to cases where an accused is silent in court.[175] Relevantly, the majority made plain that the fact an accused does not give evidence at trial is not of itself evidence of guilt. Their Honours elaborated:[176]

The fundamental proposition from which consideration of the present matters must begin is that a criminal trial is an accusatorial process, in which the prosecution bears the onus of proving the guilt of the accused beyond reasonable doubt. It is, therefore, clear beyond doubt that the fact that an accused does not give evidence at trial is not of itself evidence against the accused. It is not an admission of guilt by conduct; it cannot fill in any gaps in the prosecution case; it cannot be used as a make-weight in considering whether the prosecution has proved the accusation beyond reasonable doubt. Further, because the process is accusatorial and it is the prosecution that always bears the burden of proving the accusation made, as a general rule an accused cannot be expected to give evidence at trial. In this respect, a criminal trial differs radically from a civil proceeding. (footnotes omitted)

1. The majority then stated how a trial judge may direct a jury when an accused elects not to testify at trial. It is this statement which forms the basis of what has come to be known as an Azzopardi direction:[177]

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

1. The rationale for the giving of a direction when an accused is silent in court is to ensure that an adverse inference is not drawn against an accused because they exercise their right to silence.[178] The majority in Azzopardi accepted that because there was a perceptible risk that a jury may use an accused's silence in court to his or her detriment, 'it will be almost always desirable' for a trial judge to give a direction which obviates this risk. The detriment which an accused may suffer by reason of his or her silence in court is that it may erroneously be treated by the jury as:

(3) something that can be used to fill gaps in the evidence tendered by the prosecution; and

(4) a make‑weight in assessing whether the prosecution has proved its case beyond reasonable doubt.

1. The majority in Azzopardi did not mandate the giving of a direction in every case where an accused is silent, nor did the majority mandate the use of any particular formula of words where a direction was required. These propositions derive from the statement itself and have been reinforced by intermediate courts of appeal around Australia since Azzopardi.[179]
2. This said, it should not be ignored that the majority in Azzopardi stated that a direction is 'almost always desirable'. In my opinion, an Azzopardi direction should be given 'unless there is some feature of the case that renders it unnecessary or inappropriate'.[180] Cases where the giving of a direction is not required are unusual.[181] An example where an Azzopardi direction may not be required is where a rational forensic choice not to seek an Azzopardi direction is made or may be inferred.[182]
3. The content of an Azzopardi direction in any particular case will depend upon the circumstances of that case. In most cases, it will be sufficient for a judge to direct the jury by reference to the matters referred to in [198] of these reasons. This has been the practice in this State. However, the terms of an Azzopardi direction are not set in stone and any direction that is given must be moulded to the circumstances of the particular case.
4. In R v DAH, White J noted that the expression 'make‑weight' was not in common use and queried how helpful it would be to a jury. His Honour identified the essential elements which must be conveyed to a jury as being:[183]

(1) No adverse inference may be drawn from the defendant's failure to give evidence.

(3) The defendant is presumed innocent until the prosecution adduces sufficient evidence to reach a conclusion of guilt beyond reasonable doubt.

(4) The failure to give evidence does not strengthen the prosecution case or supply additional proof against the defendant or fill gaps in the evidence.

1. In my view, White J's restatement of the essential elements of an Azzopardi direction conforms with what was said by the majority in that case. I respectfully agree with his Honour's observations about the use of the word 'make‑weight'.

1. I now turn to the directions given in this case.
2. Her Honour correctly directed the jury as to the presumption of innocence, the onus of proof and the standard of proof.[184] Her Honour instructed the jury in clear, unequivocal language that the onus of proof never shifts to the accused and that the accused was under no obligation to prove anything.
3. In explaining the presumption of innocence, her Honour directed the jury that the accused was not obliged 'to enter the witness box and give evidence and be cross‑examined'.[185]
4. With respect to the appellant's right to silence, her Honour said:[186]

So that's sometimes spoken of as the right to remain silent. And of course in this case Mr George did not elect to give evidence in this matter and that was entirely within his rights. He did - he doesn't, because of that - shouldn't be treated in any different way by you. He was perfectly entitled not to give evidence in this matter.

Mr George, of course, did speak to the police on 20 April 2017 and the electronic record is part of the evidence in this case. But when he did that he didn't - he didn't, by doing that, become obliged to prove anything either. And I will speak to you a little bit later about how you must treat that evidence of Mr - the evidence of the electronic record of Mr George. (emphasis added)

1. Later in the summing up, her Honour gave 'special directions' about the evidence of the appellant in these terms:[187]

Now, I do want to give you some special directions about the evidence of both Mr George ... First of all, Mr George didn't give evidence during this trial. I've mentioned this already and I'll remind you that was his right because the presumption of innocence applies and he was at liberty not to give evidence.

But he did give his version of events in his interview, the electronic record of interview with the police. Bear in mind he was also entitled to stay silent during that interview but he did - he did - did choose to go ahead with the interview.

Now, the fact that he gave his side of the story to the police does not in any way detract from the important principles that the onus is on the State to prove the charges that it presents against him. And he is presumed innocent until the charges are proved beyond a reasonable doubt.

So it may be that you will believe everything that Mr George had to say during the electronic record of interview. And if that was the case you could acquit him. But even if you prefer the evidence for the prosecution you should not convict him unless you're satisfied beyond a reasonable doubt of the truth of that evidence.

So if you find that you have difficulty in accepting the evidence of Mr George but you think it might be true then you can acquit or you must acquit. But even if you do not believe Mr - what Mr George had to say in the electronic record of interview you cannot find in issue, contrary to him, unless the other evidence - let me put this quite rightly.

You can't find an issue against Mr George contrary to what he had to say in the electronic record of interview or unless the other evidence - or his evidence or any other evidence, for that matter, has given rise to a reasonable doubt on the issue. So it's important that you remember it's for the State to prove this charge beyond a reasonable doubt. And if any of the evidence has given rise to a reasonable doubt you cannot convict Mr George.

But even if you don't accept what he had to say in the electronic record of interview and you reject it entirely, it doesn't follow that you would automatically convict him. He doesn't have to prove anything. The State - the law is you can only deliver a verdict of - on the evidence if the State has proven the charge beyond a reasonable doubt. So if you don't believe what he had to say in the electronic record of interview put that to one side and look again at all of the evidence and ask yourself whether you are convinced beyond a reasonable doubt. (emphasis added)

1. This last direction with respect to the appellant's EROI was plainly designed to conform with the direction proposed by Brennan J in his dissenting judgment in Liberato v The Queen (a Liberato direction).[188]

The parties' submissions on the Azzopardi point

1. In its written submissions, counsel for the respondent accepted that the trial judge did not, in clear language, inform the jury that they could not draw an adverse inference from his election to remain silent or that his silence could not be used to fill gaps in the prosecution case. However, the respondent submitted that when the directions actually given by her Honour were taken as a whole and in context, there is no perceptible risk that the jury, acting faithfully in accordance with these directions, would have reasoned in such a manner.[189]
2. Counsel for the respondent submitted that her Honour's directions with respect to the presumption of innocence and the right to silence left the jury under no misapprehension where the onus and burden rested and that the appellant was not obliged to give evidence. Her Honour's statement that because the appellant chose not to give evidence he 'shouldn't be treated in any different way by you' was sufficient to convey to the jury that they could not adopt a process of reasoning in their deliberations that took into account, as a relevant factor, the absence of any evidence on oath from the appellant.
3. The respondent referred to her Honour's Liberato direction and noted that her Honour reiterated that the appellant was under no obligation to give evidence at the trial and the fact that he gave 'his side of the story' did not 'detract from the important principles that the onus is on the State to prove the charges against him' and that 'he is presumed innocent until the charges are proved beyond reasonable doubt'.
4. The respondent submitted that her Honour repeatedly drew a connection between the onus of proof and the appellant's right to silence in a way which belied any notion that the jury would have been under any mistaken belief that the absence of evidence from the accused was relevant to their deliberations.
5. The respondent submitted that her Honour's Liberato direction was unduly favourable to the appellant because the jury was instructed that they could not find any issue against the appellant if his account in the police interview, if not positively accepted, otherwise gave rise to a reasonable doubt on that issue.[190]
6. The respondent submitted that once the Liberato direction was taken into account, along with the other directions given by her Honour, there was no perceptible risk that the jury, having been told that even a positive rejection of the appellant's account could not be used against him, would go on to reason that the fact that his interview account was not repeated at trial on oath was a matter which could, in any way, influence their deliberations.[191]
7. In the appellant's supplementary written submissions, it was submitted that the jury should have been directed that her Honour failed to direct the jury that (a) no adverse inference could be drawn from the failure to give evidence and (b) the failure to give evidence did not strengthen the prosecution case or supply additional proof or fill in gaps in the evidence.[192]
8. The appellant submitted that the Liberato direction given by her Honour, whether or not it was unduly favourable, does not suffice to remedy the failure to give an adequate Azzopardi direction.[193]
9. The appellant submitted that, while it may be inferred that the jury must have rejected the appellant's exculpatory statements in his EROI, there was a perceptible risk that the jury may have arrived at this conclusion on the basis that the exculpatory statements in the EROI were accorded less weight because they were not confirmed on oath by the appellant or that his failure to give evidence on oath may have strengthened the State's case.[194]

1. The fundamental task of a trial judge is to ensure the fair trial of the accused. An aspect of this task is that in some cases, it will require the judge to warn the jury about how they should not reason.[195] As Azzopardi illustrates, it is well accepted that an accused's silence at trial is apt to be misused to his or her detriment.
2. In the present case, the trial judge did not give an orthodox Azzopardi direction, that is, she did not, when dealing with the appellant's silence at trial, give a direction which, in clear language, set out all of the matters referred to in [198] or [202]. However, as mentioned earlier, there is no prescribed form of words which must be given. Thus, it is necessary to consider what her Honour actually said in her direction and to consider the direction as a whole, in the context of the particular circumstances of the case.
3. The real issue to be determined by the jury in the present case was whether, on the whole of the evidence, they were satisfied beyond reasonable doubt, that the acts alleged by the complainant occurred. The State's case depended upon the jury's assessment of the credibility of the complainant's evidence which had to be weighed, amongst other things, against the appellant's denials in the EROI.
4. Her Honour directed the jury:

(b) that the onus of proof never shifted to the accused, and that he was not required to prove anything;

(d) that the accused was not obliged to give evidence at his trial, and his choice not to give evidence 'was entirely within his rights'; and

(e) that by reason of his choice not to give evidence at trial, he 'shouldn't be treated in any different way by you'.

1. In my opinion, the directions given by her Honour left the jury in no doubt as to the onus and standard of proof, the presumption of innocence and that the appellant was under no obligation to give evidence at his trial. However, it is one thing for a jury to understand that an accused has a right to silence at trial; it is another thing to understand what the consequences are of the exercise of that right. As a jury may be apt, indeed tempted, to use an accused's silence at trial to his or her detriment, a direction to obviate that perceptible risk was necessary.
2. In my opinion, the directions that her Honour gave did not go far enough because they did not clearly address this perceptible risk. They did not, in unmistakeable terms, instruct the jury how not to reason as a consequence of the appellant's silence at trial. In my view, this failure left open the perceptible risk that the jury would have used the appellant's right to silence against him in one or more of the ways referred to in [198] above.
3. I do not accept that the phrase that the appellant 'shouldn't be treated in any different way by you' was sufficient to obviate the perceptible risk I have identified. With great respect to her Honour, the meaning of this phrase is unclear and was not elaborated upon by her. I do not think that it can be reasonably assumed that the jury would have understood the phrase to be an instruction that they must not reason that the appellant's silence at trial did not:

(c) supply additional proof against the appellant; or

(d) fill in any gaps the jury perceived in the prosecution case.

1. There is an additional feature of the present case which required her Honour's directions to go further than they did. This was a case where the jury were presented with two video‑recorded versions of what occurred; that is, the complainant's visually‑recorded interview and the appellant's EROI, both of which were recorded on the day the offences were alleged to have been committed. In my view, it is unlikely to have been lost on the jury that the complainant's version was confirmed by her in court on oath while the appellant's version was not so confirmed. This stark contrast is more likely to have led the jury to adopt a path of reasoning which used the appellant's silence in court to his detriment.
2. As to the Liberato direction given by her Honour, while it is true that her Honour reiterated that the appellant was under no obligation to give evidence at the trial, there is nothing in her Honour's Liberato direction capable of amounting to a direction which informed the jury how not to reason as a result of the appellant's silence at trial. A Liberato direction serves to clarify and reinforce directions on the onus and standard of proof in a case in which there is a risk that a jury may be left with the impression that the evidence on which the accused relies will only give rise to a reasonable doubt if they believe it to be truthful, or that a preference for the evidence of the complainant suffices to establish guilt.[196] While an Azzopardi direction and a Liberato direction are designed to avoid a perceptible risk of miscarriage of justice, they address different risks. As the respondent points out, the Liberato direction given by the trial judge in the present case may have been unduly favourable to the appellant, but, in my opinion, this does not answer any inadequacy in the directions that her Honour gave to the jury concerning the appellant's silence at trial.
3. I note that the appellant's experienced trial counsel took no exception to the trial judge's summing up. There appears to me to be no rational forensic reason in this case not to seek an Azzopardi direction.
4. As her Honour's directions left open the perceptible risk that the jury would use the appellant's silence at trial to his detriment, the Azzopardi point has been made out. The appellant has suffered a miscarriage of justice. The respondent, rightly, does not suggest that the proviso in s 30(4) of the Criminal Appeals Act 2004 (WA) should be applied. Accordingly, the appeal against conviction should be allowed, the convictions set aside, and a new trial ordered.

I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.

Research Orderly to the Honourable Justice Mitchell

[54] See, for example, at 1.12.57, 1.13.08 and 1.13.15 of the EROI.

[59] From Liberato v The Queen [1985] HCA 66; (1985) 159 CLR 507, 515.

[67] La Fontaine v The Queen [1976] HCA 52; (1976) 136 CLR 62, 73, 81, 87; R v Dookheea [2017] HCA 36; (2017) 262 CLR 402 [37]; Cooper v The State of Western Australia [2010] WASCA 190 [23], [53] - [54].

[68] Galipo v The State of Western Australia [2019] WASCA 188 [45].

[69] Exhibit C (EROI) at about 1:32:40.

[72] Azzopardi v The Queen [2001] HCA 25; (2001) 205 CLR 50 [51].

[73] R v DAH [2004] QCA 419; (2004) 150 A Crim R 14 [85] - [86].

[77] R v Wilson [2005] NSWCCA 20; (2005) 62 NSWLR 346.

[80] Martinez v R [2019] NSWCCA 153.

[84] R v Hartfiel [2014] QCA 132.

[86] Burke v The Queen [2013] VSCA 351; (2013) 237 A Crim R 130.

[90] JPM v The Queen [2019] NSWCCA 301.

[95] JPM v The Queen [2020] HCATrans 115.

[98] Appellant's Supplementary Submissions, par 9 - 12.

[99] Respondent's Supplementary Submissions, par 10.

[103] EROI ts 4 - 5 (Blue/Green AB 315 - 316).

[104] Kelly v The State of Western Australia [2017] WASCA 221 [34] - [48].

[105] Tofilau v The Queen [2007] HCA 39; (2007) 231 CLR 396 [22], [55] - [64], [339] - [340], [362] - [364], [376].

[106] Tofilau [359] quoting R v Azar (1991) 56 A Crim R 414, 419 - 20.

[107] McKinnon v The State of Western Australia [2010] WASCA 51 [9] - [13].

[108] Suresh v The Queen [1998] HCA 23; (1998) 72 ALJR 769 [23].

[109] MNA v The State of Western Australia [2020] WASCA 84 [33] - [34].

[110] Huggins v The State of Western Australia [2018] WASCA 61 [376] - [401].

[112] Jeffery v The State of Western Australia [2018] WASCA 219 [104] (citing Buss P in Rodi v The State of Western Australia [2017] WASCA 81; (2017) 51 WAR 96 [115]).

[114] Craig v The Queen [2018] HCA 13; (2018) 264 CLR 202.

[127] Appellant's affidavit, par 6 - 8.

[130] Rafferty affidavit, par 12 - 14.

[134] Not all examples of this are transcribed, but an example appears at appeal ts 20.

[135] See, for example, appeal ts 48 - 49.

[145] Rafferty affidavit, par 2 and annexure A.

[146] Appellant's affidavit, par 3; appeal ts 26.

[148] Rafferty Affidavit, par 3; appeal ts 52 - 53.

[151] Rafferty affidavit, pars 4 - 7, annexures B - F.

[155] Rafferty affidavit, par 10 and annexure G; appeal ts 27 - 28.

[157] Appeal ts 40; Rafferty affidavit, annexure H.

[163] Rafferty affidavit par 11(e); appeal ts 59 - 60.

[164] Rafferty affidavit, par 11; appeal ts 50.

[166] Appellant's affidavit, par 6 - 7.

[171] Azzopardi v The Queen [2001] HCA 25; (2001) 205 CLR 50.

[175] R v DAH [2004] QCA 419; (2004) 150 A Crim R 14 [83] ‑ [84].

[178] Le v The Queen [2016] VSCA 100; (2016) 308 FLR 486 [30].

[179] See, for example, the line of cases decided by the New South Wales Court of Criminal Appeal beginning with R v Wilson [2005] NSWCCA 20; (2005) 62 NSWLR 346, up to and including the recent case of JPM v The Queen [2019] NSWCCA 301 and by the Court of Appeal of Queensland, beginning with R v DAH [2004] QCA 419; (2004) 150 A Crim R 14.

[180] Burke v The Queen [2013] VSCA 351; (2013) 237 A Crim R 130.

[181] Johnstone v The State of Western Australia [2019] WASCA 67 [38].

[182] See JPM v The Queen and Le v The Queen.

[188] Liberato v The Queen [1985] HCA 66; (1985) 159 CLR 507, 515.

[189] Respondent's supplementary submissions, par 12.

[190] DKA v The State of Western Australia [2019] WASCA 123 [199] - [202].

[191] Respondent's supplementary submissions, pars 7 - 10.

[192] Appellant's supplementary submissions, par 3.

[193] Appellant's supplementary submissions, par 9.

[194] Appellant's supplementary submissions, par 11.

[195] RPS v The Queen [2000] HCA 3; (2000) 199 CLR 620 [41].

[196] De Silva v The Queen [2019] HCA 48; (2019) 94 ALJR 100 [10] ‑ [11].