Hennessy v The King [2025] NTCCA 9

Meaning of "free and voluntary" in s 192 of the Criminal Code (NT) - meaning of "fear of harm of any type" in s 192(2)(a) of the Criminal Code - definition of "harm" in s 1A of the Criminal Code not applicable to the meaning of "harm of any type" in s 192(2)(a) of the Criminal Code - emotional harm may result in sexual intercourse not being free and voluntary

Prosecution granted leave under s 38(1) of the Evidence (National Uniform Legislation) Act 2011 (NT) to cross-examine the accused's mother who was called by the prosecution - prosecution's application for an order under

s 38(5) of the Evidence (National Uniform Legislation) Act 2011 that defence counsel examine the accused's mother first refused - Prosecutor examined then cross-examined the accused's mother - no unfairness

Prosecution cross-examined the accused's mother - during cross-examination put to her that she was telling lies about certain matters - questions not objected to - no unfairness to the accused

Prosecution cross-examined the accused on the basis that to the extent put to him he was giving false evidence - no objection taken by defence counsel - no unfairness

Criminal Code Act 1983 (NT), ss 1A, 188, 192, 411, 429

Evidence (National Uniform Legislation) Act 2011 (NT) s 38(1) and (5)

Brawn v The King [2025] HCA 20; (2025) 99 ALJR 872; Castle (a pseudonym) v The King [2025] SASCA 10; Hargraves v The Queen [2011] HCA 44; (2011) 245 CLR 257; Kanaan v The Queen [2006] NSWCCA 109; Kerridge v The King [2025] NTCCA 6; MDP v The King [2025] HCA 24 ('MDP'); Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355; Robinson v The Queen (1991) 180 CLR 53; Stafford v The Queen (1993) 67 ALJR 510; The Queen v Gahani [2022] NTCCA 13; The Queen v Yankovski [2007] VSCA 259; (2007) 17 VR 315; Tjungarrayi v Western Australia [2019] HCA 12; (2019) 269 CLR 150; Whitehorn v The Queen [1983] HCA 42; (1983) 152 CLR 657, referred to.

Respondent: Office of the Director of Public Prosecutions

Hennessy v The King [2025] NTCCA 9

• [1] The applicant sought leave to appeal against his convictions on four counts of sexual intercourse without consent against two complainants and two counts of aggravated assault against one of those complainants on the basis of various matters occurring during his trial by jury which are said to have given rise to a miscarriage of justice. Those matters asserted: (a) a failure of the trial Judge to give an extended unanimity direction in relation to one of the counts of sexual intercourse without consent; (b) an error of the trial Judge in directing the jury that a person does not consent to sexual intercourse if they fear harm of any type, including emotional harm;

(c) unfair questioning by the prosecution of the applicant's mother ("IH"), called by the Crown with leave to cross-examine her; (d) impermissible questioning of the applicant's mother by the prosecution putting to her that she had a motive to give untruthful evidence to protect the applicant, with consequent impermissible submissions to the jury to the same effect, which were endorsed by the trial Judge in summing up; and (e) improper questioning of the applicant about recently inventing his evidence.

• [2] For the reasons which follow, we consider that none of the proposed grounds of appeal has merit.

The charges, trial outcome and proposed grounds of appeal

• [3] The applicant was charged with the following offences:

(a) Between 11 and 31 July 2014, the applicant had sexual intercourse with DS without her consent and knowing about or being reckless as to the lack of consent, contrary to s 192(3) of the Criminal Code (Count 1).

(b) Between 12 July 2014 and 13 February 2015, the applicant unlawfully assaulted DS, contrary to s 188(1) and (2)(a), (b) and (d) of the Criminal Code, and the unlawful assault involved the following circumstances of aggravation:

(i) that DS suffered harm;

(ii) that DS is a female and the applicant is a male; and

(iii) that DS was unable, because of her situation, to effectually defend herself, (Count 2).

(c) On 22 May 2015, the applicant unlawfully assaulted DS, contrary to

s 188(1) and (2)(a), (b), (d) and (m) of the Criminal Code and the unlawful assault involved the following circumstances of aggravation:

(i) that DS suffered harm;

(ii) that DS is a female and the applicant is a male; and

(iii) that DS was unable, because of her situation, to defend herself, (Count 3).

(d) On 20 September 2016, the applicant unlawfully assaulted DS, contrary to s 188(1) and (2)(a), (b), (d) and (m) of the Criminal Code and the unlawful assault involved the following circumstances of aggravation:

(i) that DS suffered harm;

(ii) that DS is a female and the applicant is a male;

(iii) that DS was unable, because of her situation, to defend herself; and

(iv) that DS was threatened with a door, (Count 4).

(e) On 21 September 2019, the applicant had sexual intercourse with MC without her consent and knowing about or being reckless as to her lack of consent, contrary to s 192(3) of the Criminal Code (Count 5).

(f) On 3 January 2022, the applicant had sexual intercourse with MC without her consent and knowing about or being reckless as to her lack of consent, contrary to s 192(3) of the Criminal Code (Count 6).

(g) On 3 January 2022, the applicant had sexual intercourse with MC without her consent and knowing about or being reckless as to her lack of consent, contrary to s 192(3) of the Criminal Code (Count 7).

• [4] The applicant pleaded not guilty to all counts. At trial, the jury found the applicant not guilty of Count 3 but guilty of all other counts.
• [5] The applicant sought leave to appeal against the findings of guilt and an extension of time within which to appeal against his convictions. He was granted an extension of time by a single Judge, but his application for leave to appeal was refused.
• [6] Pursuant to s 429(2) of the Criminal Code, the applicant applied for leave to appeal to this Court constituted by three Judges. The application for leave to appeal and the substantive issues were heard together.
• [7] The respondent opposed the grant of leave on the basis that none of the proposed grounds of appeal have merit. In the alternative, but for the same reasons, the respondent argued that if leave to appeal was granted, the appeal should be dismissed.
• [8] By the time of the hearing,[1] the applicant pleaded the following proposed grounds of appeal:
  1. A miscarriage of justice occurred on Count 1 because of the failure of the trial Judge to give an extended unanimity direction.

2(a) A miscarriage of justice occurred in relation to Counts 1 and 5 because the trial Judge erred in her directions regarding the meaning of "free and voluntary" in relation to consent to sexual intercourse, in that the directions given misstated the definition of "harm".

4(a) A miscarriage of justice occurred on all counts on which there was a conviction as a result of the manner of examination in chief of IH in that the questioning by the prosecution was unfair.

1. A miscarriage of justice occurred on all counts on which there was a conviction as a result of the examination in chief of IH, in that:

(a) the prosecution impermissibly questioned the witness about, and submitted on, the purported motive to lie which undermined the accused's presumption of innocence; and

(b) the trial Judge erred in her directions regarding assessment of witnesses in a manner which undermined the accused's presumption of innocence.

1. A miscarriage of justice occurred on all counts on which there was a conviction as a result of an improper allegation of recent invention made against the accused by the prosecutor during the cross-examination of the accused.

• [9] In broad summary, the Crown case at the trial was as follows.
• [10] The applicant was between 23 and 31 years of age at the time of the offending. The offending involved two former female partners of the applicant.
• [11] The offending against the first complainant, DS, occurred on a number of occasions between 2014 and a day in September 2016 when their relationship ended. The following year, the applicant commenced a relationship with the second complainant, MC, and he then offended against her on three occasions, first in late 2019 then in January 2022, then again in January 2022 resulting in the end of that relationship.
• [12] The offending against both complainants involved domestic relationships in which the applicant became increasingly jealous, controlling, then violent and demanding of sex leading to his offending against each of the complainants.
• [13] During the applicant's relationship with the first complainant from 2013, they lived in a shipping container on a family property at Noonamah. The shipping container was near the home of applicant's parents. While living there they had a child together. The child was born in July 2014.
• [14] As to Count 1, only two weeks after the birth of their child, the applicant pressured the first complainant into having sex with him, despite her post childbirth injuries and over her protest. When she finally gave in, he continued to have sex with her, despite her crying and then saying "enough".
• [15] The relationship with the first complainant became increasingly volatile and the applicant increasingly violent. First, the applicant was increasingly verbally abusive and engaged in play fighting until he hurt the first complainant. He then proceeded on a number of occasions to choke her out with his hand, and on one occasion forced her to the ground while she was carrying their newborn child. Two of these incidents constitute Counts 2 and 3.
• [16] Count 4 is the final incident involving the first complainant. It led to her leaving the home and the applicant for good. On this occasion the first complainant was at home breast feeding their child when the applicant returned home. He went inside and sat on a couch while the first complainant continued breast feeding while standing in the doorway of the shipping container. They had an argument and the applicant got up and walked over to the first complainant. She still had the child in her arms. The applicant grabbed her by the throat with one hand which he forced up under her chin.
• [17] The applicant pulled the first complainant out of the doorway and forced her to walk backwards down a step and onto the ground. When the applicant grabbed the first complainant's throat she screamed while he yelled accusations that she had been cheating on him. He stood over her and continued to hold her on the ground and yell at her and make abusive comments about her.
• [18] In response to the commotion, the applicant's mother, IH, came and took the baby from the first complainant. IH told the first complainant to pull her head in and get herself together. She then left taking the baby with her.
• [19] The applicant's relationship with the second complainant, MC, began well. It commenced about a year after the applicant's relationship with the first complainant came to an end. However, the relationship deteriorated at about the time the applicant was involved in a car accident in early 2019.
• [20] In 2019, after the applicant had been living with the second complainant and her sons from a previous marriage for a month or so following his car accident, he demanded constant care, massages and sex when he wanted it, and he became increasingly verbally abusive and violent. On the day of a housewarming in Woodroffe, the applicant demanded sex and yelled abuse until the second complainant relented in fear. The applicant pushed her legs apart and proceeded to have sex with her. This incident constitutes Count 5.
• [21] In 2022, after the applicant had been living with the second complainant for some months in Bellamack, he demanded sex from her. When she refused because she had her period, the applicant grew violent and held the second complainant down on the bed. He sat on her and forced her to have oral sex with him. He then forced her to have penile/vaginal sexual intercourse with him. These incidents constitute Counts 6 and 7.

• [22] After the close of the Crown case in the trial, the applicant gave evidence. He denied the offending.

The nature of the appeal and the proper approach

• [23] Each of the proposed grounds of appeal relies on the third limb of s 411(1) of the Criminal Code - that there was a miscarriage of justice.
• [24] In MDP v The King,[2] the High Court held (at [102]) that a misdirection by a trial Judge on a matter of law involves a wrong decision on a question of law within the second limb of s 411(1) of the Criminal Code, whether or not the decision was the subject of submissions of counsel caused or contributed to the decision. The High Court also held that the failure to give a particular direction will not ordinarily (but may in some circumstances) involve the making of a decision on a question of law within the second limb, but it may nevertheless amount to a miscarriage of justice under the third limb.
• [25] Proposed appeal ground 1 involves an assertion of a failure to give an extended unanimity direction and proposed appeal ground 2(a) involves a suggested misdirection as to the meaning of the term "harm" in s 192(3) of the Criminal Code. Those proposed appeal grounds would fall within the second limb of s 411(1), but they have not been expressed that way. They are expressed as falling within the third limb.
• [26] Notwithstanding that expression, both parties argued proposed appeal grounds 1 and 2(a) on the footing that the issue is whether the trial Judge was required to give the unanimity direction as a matter of law and misdirected the jury as a matter of law. Thus, these appeal grounds were treated by the parties as if they fell within the second limb of s 411(1). Consequently, we will address them applying the legal principles in MDP.
• [27] In MDP, the High Court identified (at [102]-[107]) the three steps for an appellant to engage the second limb as:

(1) identify a decision by the trial Judge on a question of law - relevantly here the necessity at law to give an extended unanimity direction (proposed appeal ground 1) or a misdirection on a matter of law (proposed appeal ground 2(a));

(2) establish that the decision on a question of law was wrong; and

(3) show that the wrong decision involved an error that was either fundamental to the trial or, if not fundamental, was material in the sense that it involved an error that could realistically have affected the reasoning of the jury to the verdict of guilty in the trial that was had.

• [28] In MDP, the High Court held (at [108]) that if the appellant establishes those three matters, the appeal must be allowed unless the prosecution establishes that no substantial miscarriage of justice occurred, by applying the proviso in s 411(2).
• [29] The applicant did not argue that the wrong decisions on a question of law were fundamental in the sense used in MDP. Hence, the materiality test applies if the appellant establishes a wrong decision on a question of law.
• [30] The other proposed grounds of appeal properly invoke the third limb of s 411(1).
• [31] The third limb of s 411(1) encompasses errors or irregularities affecting an appellant's trial which are either fundamental, in which case there will be a substantial miscarriage of justice, and other errors or irregularities.[3] The applicant did not argue that the matters raised comprised a fundamental error or irregularity in the sense used in Brawn.
• [32] For other errors or irregularities to constitute a miscarriage of justice, they must be material in the sense that the error or irregularity could realistically have affected the reasoning of the jury to a verdict of guilty that was returned by the jury in the criminal trial that occurred, where 'could' means 'having the capacity to' and 'realistically' distinguishes assessment of the possibility of a different outcome from a possibility that is fanciful or improbable.[4] This threshold of materiality is for the appellant to establish, but the burden is not onerous, and it does not invite an analysis of whether, but for the error, the accused might or might not have been found guilty.[5] This assessment is qualitatively different from the assessment to be made in applying the proviso, namely whether the evidence properly admitted at trial proved, beyond reasonable doubt, the accused's guilt of the offence on which the jury returned its verdict of guilty.[6]

Proposed appeal ground 1: Failure to give extended unanimity direction

• [33] As to proposed appeal ground 1, counsel for the applicant summarised the contentions as follows.
• [34] The charge of sexual intercourse without consent (Count 1) was left to the jury as being capable of being found by two alternative pathways to guilt, namely: (1) the first complainant never consented to sex because any agreement to intercourse was not free and voluntary, or (2) after the first complainant voiced her lack of consent, the applicant continued to have sexual intercourse with her.
• [35] The applicant gave evidence that the first complainant had consented to sex but withdrew her consent, and that when she withdrew consent he ceased immediately. The issues in dispute were therefore: (a) with respect to the first pathway, whether there was consent (and the applicant's state of mind as to that issue); and (b) with respect to the second pathway, whether the sexual intercourse continued (and the applicant's state of mind as to that issue).
• [36] The jury were directed that if they found the first pathway proven, they need not consider the second pathway. When sentencing the applicant, the trial Judge made findings of fact that there was consent which was withdrawn and the applicant continued for a short time after it was withdrawn. The trial Judge found proven, on sentencing, a factual basis that the jury were directed they need not consider.
• [37] The peculiar facts of the case meant that an extended unanimity direction was required because, not only was each pathway to guilt capable of sustaining a conviction of sexual intercourse without consent, but that the sexual intercourse the subject of each pathway was a different physical element and gave rise to different issues.
• [38] That is, each pathway was not a different manner of proving the same element but required proof of different elements. Each pathway constituted a complete rape in and of itself. There was a risk that some jurors convicted the accused on the first pathway and did not find proved, or did not consider, the second pathway; whereas other jurors did not accept the Crown case on the first pathway but convicted on the second pathway. There was a real risk of individual jurors then pooling their findings such that no jury of 12 has convicted the applicant of an act of sexual intercourse with a corresponding absence of consent.

• [39] In response to the applicant's submissions, the Crown relied on the first complainant's evidence that there was a single act of sexual intercourse to which she did not consent, and the applicant continued to engage in sexual intercourse after she voiced her objection to the sexual intercourse. The Crown submitted that, as this case involved a single act of sexual intercourse, provided the jury were unanimous in their conclusion that during the act of sexual intercourse there was an absence of consent, together with the requisite mental state on the part of the applicant, it was irrelevant at what point in time the various members of the jury considered there was an absence of consent.
• [40] The decision of the Victorian Court of Appeal in The Queen v Yankovski[7] is instructive. In that case, Yankovski was convicted of one count of rape and sought leave to appeal the conviction. The complainant gave evidence that Yankovski inserted his penis into her vagina while she was asleep, and that he continued to penetrate her after she woke up and repeatedly told him to stop. Yankovski's defence was that he penetrated the complainant with her consent and when requested to stop he did so. On the appeal, he argued that the verdict was afflicted with latent duplicity or uncertainty in that it was not certain whether the verdict was based on either or both of two possible acts of penetration by the accused, that is the initial act of penetration or the continued penetration after he failed to stop. The Victorian Court of Appeal rejected that argument.
• [41] Chernov JA (Vincent and Redlich JJA agreeing) held (at [21]-[23]) the following.

... Given the verdict on count 2, the jury must have rejected the applicant's claim that the intercourse was consensual and that when she asked him to stop he did and took his penis out of her vagina.

Counsel argued, however, as I understood him, that even on the complainant's evidence there were two relevant incidents in the course of the applicant's sexual encounter with her. As I have mentioned, the first was when he penetrated when she was asleep and the second when, on her account, he did not stop after she told him to do so. Thus, it was argued, as has been noted, his Honour should have asked the Crown to elect whether it contended that the rape occurred on the first such occasion or the second and given that there was no such election, it was uncertain if there was necessary unanimity by the jury as to the occurrence of either (or both) of the incidents.

It is plain, I think that the applicant's argument must be rejected. The two "incidents" so characterised by the applicant, were but part of the one penetration of the complainant and, as the jury found, there was absence of consent from the complainant as to that. The situation here is, in this respect, materially different from that which occurred in each of the [latent ambiguity] cases to which reference has been made. Here, there were no two discrete penetrations/offences. As was pointed out in argument by Vincent JA, if in the course of sexual intercourse the offender stops momentarily and then continues, the continued sexual intercourse does not constitute a new penetration. On the jury's finding, there was but one continuing penetration and it was in the course of it that the applicant was told by the complainant to stop but he 'kept going'. And assuming that the offender had the requisite intent during the penetration, it is irrelevant at what point or points during that period the various jurors considered there was lack of consent. Thus, lack of consent could have been found to exist at the point the applicant commenced his offending act when the complainant was asleep. It could also have been concluded, additionally or in the alternative, that there was lack of consent when the complainant asked the applicant to stop but he nevertheless continued. And it is irrelevant for present purposes at what point in time the various members of the jury considered that there was absence of consent, providing they were unanimous in the conclusion that during that act of penetration there was absence of consent prior to its termination. It seems to me that it is clear that the jury were unanimous on that issue. [emphasis added]

• [42] In acknowledgement that his argument was very similar to that pressed by the applicant and rejected in Yankovski, counsel for the applicant contended that this case is distinguishable from Yankovski because: (1) here, the jury were specifically directed as to alternative pathways in this matter; (2) the finding of guilt does not necessarily mean that the jury must have rejected the applicant's evidence across both pathways; and (3) this was especially so when the jury were directed that they need not consider the second pathway if satisfied of the first. Counsel for the applicant submitted that his was not a case where the jury must have been satisfied of a single continuous act of intercourse but did not necessarily agree as to when non-consent occurred because the jury may not have agreed on whether there was a continuing act of sexual intercourse after non-consent was voiced.
• [43] These suggested distinctions are without foundation. First, the specific direction as to the alternative pathways makes no difference to the reasoning applied in Yankovski. Second, in Yankovski the Court held that the finding of guilt meant the jury necessarily rejected the appellant's evidence that the intercourse began consensually and ceased when consent was withdrawn. The same applies here. Third, telling the jury that if they were satisfied about the first pathway, they need not consider the second is simply a recognition that the pathways are alternatives. It has no bearing on the reasoning applied in Yankovski. As the respondent submitted, Yankovski is on all fours with this case.
• [44] Counsel for the applicant has not pointed to any authority that supports the contention that an extended unanimity direction is required in cases such as this.
• [45] No error of law is established. This ground of appeal has no merit.

Proposed appeal ground 2(a) (counts 1 and 5): Directions as to "harm"

• [46] Proposed appeal ground 2(a) is concerned with s 192(2)(a) of the Criminal Code as it stood at the time the applicant was alleged to have committed counts 1 and 5 on the indictment. The subsection provided that a person does not consent to sexual intercourse in circumstances where:

the person submits because of force, fear of force, or fear of harm of any type, to himself or herself or another person

• [47] During her summing-up the trial Judge directed the jury as follows:

Whether there is an absence of free and voluntary agreement is a matter for you to decide as a jury. And the law recognises several situations where absence of free and voluntary consent will always be the case. But they are not the only situations where there will not be consent. They do, however, include where a person submits because of force, fear of force, or fear of harm of any type, to themselves or any other person.

So, as a matter of law, fear of harm of any type is what it is. Fear of any type of harm. Now, it might include physical harm, emotional harm, it's very broad. You need to decide whether as a matter of fact that is the case, remembering that any finding must be without - beyond reasonable doubt.

• [48] The applicant's primary contention on proposed appeal ground 2(a) is that the trial Judge erred when directing the jury that sexual intercourse will not be free and voluntary if it is induced by fear of emotional harm, because she failed to direct the jury that any harm needed to be harm as defined by s 1A of the Criminal Code.
• [49] So far as is relevant to this application, s 1A of the Criminal Code defines harm as follows:

(1) Harm is physical harm or harm to a person's mental health, whether temporary or permanent.

(2) ...

(3) Harm to a person's mental health includes significant psychological harm, but does not include mere ordinary emotional reactions such as those of only distress, grief, fear or anger.

(4) ...

• [50] The above definition of harm includes psychological harm, but not a mere emotional reaction. No mention is made of "emotional harm" in the Criminal Code.
• [51] The applicant's alternative contention was that even if the words "of any type" in s 192(2)(a) indicate a contrary intention, such that the definition of harm in s 1A does not apply, it was still necessary that the trial Judge direct the jury as to the meaning of emotional harm. That direction would need to include that in order to amount to harm, it need not be permanent but needs to be more than transient or trifling.
• [52] No directions were given as to the meaning of emotional harm and counsel for the applicant submitted that there is a real risk that the jury has considered something which is not capable of negativing consent.

• [53] The applicant's submissions about appeal ground 2(a) cannot be sustained.
• [54] As at the relevant time, s 192(2)(a) provided that a person does not consent to sexual intercourse when the person submits due to "fear of harm of any type". It follows that "harm" for the purposes of s 192(2)(a) is not confined to harm as defined by s 1A of the Criminal Code. To so construe s 192(2)(a) would not only render the words "of any type" otiose (a matter which tells against such a construction[8]), but would be directly inconsistent with the natural meaning of those words. In their terms, they deny a limitation upon the nature of the harm which excludes emotional harm. Those words express a contrary intention to the definition of harm in s 1A of the Criminal Code. It is a well-established principle of statutory construction that all definitions are to be read either expressly or impliedly as subject to the qualification 'unless the contrary intention appears'.[9]
• [55] The applicant's contention also ignores the legislative history that bears on the construction of s 192(2)(a). On 1 June 1994, when the original s 192 of the Criminal Code was repealed and replaced, s 192(2)(a) provided that a person did not consent to sexual intercourse where the person submits because of "fear of harm of any type". Significantly, at that time "harm" was not defined in the Criminal Code. Section 1A was enacted on 20 December 2006 when several new harm-based offences were enacted. The second reading speech indicates that s 1A was inserted to overcome certain anomalies that had arisen in respect of the previous definitions of "grievous harm" and "bodily harm" which were repealed. There is no suggestion in the second reading speech, nor the explanatory memorandum, that the Legislature intended to modify the meaning of consent in relation to sexual assault offences.
• [56] Accordingly, "harm of any type" in s 192(2)(a) is not confined by the definition of harm in s 1A of the Criminal Code.
• [57] Further, in our opinion, there was no requirement for the trial Judge to direct the jury about what may be constituted by emotional harm. Those are words of ordinary meaning to which the jury would apply ordinary common sense notions in accordance with community standards.
• [58] No error of law is established. This proposed ground of appeal has no merit.

Proposed ground of appeal 4(b): Unfair questioning of IH

• [59] This ground of appeal largely relates to the applicant's conviction on Count 4 which charged that the applicant assaulted one of the complainants.
• [60] Appeal ground 4(b) pleads that a miscarriage of justice occurred because the questioning of the applicant's mother by the prosecutor was unfair.
• [61] During the trial, in accordance with the Crown's duty to call all relevant witnesses, the prosecutor called the applicant's mother, IH, to give evidence. Before doing so the prosecutor, with the consent of the defence, applied for and obtained leave to cross-examine IH as an unfavourable witness. Accordingly, leave was granted under s 38(1)(a) of the Evidence (National Uniform Legislation) Act 2011 (NT) ('ENULA').
• [62] The prosecutor also sought a ruling under s 28 and s 38(5) of ENULA that the order of questioning of IH be reversed and she be questioned first by counsel for the defence. If such leave was granted, the course of her evidence would have been similar to calling the witness in the Crown case and making her available to the defence to lead her evidence in chief and then be cross-examined by the Crown without affecting the order of final addresses. This application was opposed by defence counsel and was refused by the trial Judge. The Crown was required to lead IH's evidence in chief and then cross-examine her before she was questioned by defence counsel.
• [63] Accordingly, the evidence of IH was received by the Court in a manner that was consented to by the defence. Further, no objection was taken by defence counsel during the course of the trial that her evidence in chief was inadequate or incompletely developed by Crown counsel. Nor did defence counsel seek to significantly expand her evidence during her questioning by defence counsel.
• [64] Despite the conduct of the defence case in the trial, counsel for the applicant submitted to this Court that the manner of questioning adopted by the prosecutor was unfair to the applicant because:
  1. IH was not given the full opportunity to tell her story prior to being subjected to cross-examination; and
  2. The cross-examination allowed the prosecutor to create a 'straw man', and attack that straw man to undermine the case for the applicant.
• [65] Counsel for the applicant contended that evidence should not be adduced by the prosecutor from a witness during evidence in chief if the sole purpose of doing so is to provide a basis for the prosecutor to then cross-examine the witness. A witness cannot be called solely for the purpose of satisfying the criteria in s 38(1) of ENULA before cross-examining the witness. The duty of the Crown is to present the case fairly against the accused by calling all material witnesses and presenting their evidence fairly.
• [66] During the course of the application to cross-examine IH, the prosecutor submitted that the witness, not just the evidence, was unfavourable to the Crown.
• [67] As the Crown accepted that the witness was part of the defence case, it followed that the prosecutor was not adducing the evidence of the witness to establish the guilt of the accused.
• [68] Counsel for the applicant further submitted that as the Crown did not accept the evidence of IH, it was difficult to see how the adducing of her evidence in chief by the Crown was not a mere pretext in order to permit questioning by way of cross-examination aimed at undermining her evidence prior to her evidence being fully presented.
• [69] Counsel for the applicant submitted that the conduct of the trial was unfair because the effect of the manner in which the evidence in chief of the applicant's mother proceeded denied the applicant the full benefit of that evidence. It was adduced in a short manner, comprising only a few questions to adduce the entire narrative. Her evidence was then subject to lengthy cross-examination by the Crown prosecutor aimed at undermining that story. How it was adduced can be contrasted with the way other witnesses' evidence in chief was conducted, where a much more deliberate and detailed approach was adopted.
• [70] It was submitted that the manner of questioning which occurred in chief was unfair to the applicant in that it denied him the full benefit of the evidence of the witness. Had IH been questioned in the normal manner, or even if the s 38(5) application had been allowed, then the jury would have been presented with a full picture of what she had to say, without challenge, prior to being cross-examined by the prosecutor. This could only have demeaned the evidence of IH in the eyes of the jury and is the antithesis of the fair presentation of the case against an accused.
• [71] The evidence of IH, if accepted by the jury as a reasonable possibility, afforded the applicant a complete acquittal with respect to Count 4. He has been denied the fair presentation of the evidence of that witness and that has led to a miscarriage of justice.
• [72] Subsequent questioning of the applicant by the prosecutor also showed that the prosecution sought to tie the applicant to the version of events as given by his mother, which contributed to a miscarriage of justice.

• [73] Once again, we accept the submissions of the respondent. They were as follows.
• [74] IH was a relevant and material witness. Although her prospective testimony was unfavourable to the Crown case, the Crown was obliged to call her. There was no basis to conclude that she was unreliable or incapable of belief. Her evidence was necessary to unfold the narrative and give a complete account of the events upon which the prosecution case was based.[10]
• [75] However, the Crown's obligation to call all relevant witnesses even where their evidence does not support the Crown case does not deny the prosecutor the opportunity to discredit the evidence of the witness. As was stated by the New South Wales Court of Appeal in Kanaan v The Queen[11] (at [83]-[84]):

Section 38 of the Evidence Act abrogates the common law relating to hostile witnesses, by enabling a party calling a witness to obtain leave to question his own witness as though cross-examining that witness about the evidence which is unfavourable to that party...

The greater availability of cross-examination of a Crown witness by the Crown prosecutor pursuant to s 38 has obviously placed more emphasis on the Crown's obligation to call witnesses whose main relevance is the availability of their evidence unfavourable to the Crown.

• [76] In accordance with the above principles, an application was made to cross-examine IH under s 38(1) of ENULA. The application was not opposed. When making the application the prosecutor informed the trial Judge that the witness and her evidence would most likely be unfavourable to the Crown case.
• [77] As stated above, unopposed leave was granted to the prosecutor to cross-examine IH but, heeding the opposition of the defence, the Crown's application under s 38(5) of ENULA was refused. Counsel for the applicant now presses the very course his counsel opposed at trial. No exceptional circumstance was identified which would preclude the applicant being bound by the conduct of his case at the trial.[12] The obvious forensic purpose for opposing the s 38(5) application was to have IH's evidence begin and end with her version of events which supported the defence case. It does not follow from an acceptance that a witness is unfavourable that they are not being called by the prosecution to prove the Crown case. IH was present when Count 4 was alleged to have been committed and was capable of giving some evidence about what occurred. The fact that the Crown did not accept her evidence is no basis for failing to call her.
• [78] The prosecutor elicited evidence from IH in an orthodox manner. That evidence was a detailed narrative that was consistent with her statement to the police. She was then cross-examined by the prosecutor, again in an orthodox manner. There is no basis for a conclusion that IH was not permitted to present her full narrative before she was cross-examined. No objection was taken by defence counsel to the manner in which IH was examined in chief by the Crown prosecutor. With good reason. There was nothing about that examination in chief which was unfair to the applicant. There is no basis for a conclusion that the examination in chief was undertaken in a manner directed to establishing that IH was an unfavourable witness, not least because the leave to cross-examine was granted before she gave her evidence in chief.
• [79] Defence counsel's cross-examination of IH was brief (only extending for five and a half pages of transcript) and largely involved a number of matters of clarification and expansion of her evidence in chief.
• [80] The manner in which the prosecutor's examination of IH proceeded was thoroughly orthodox and did not result in a miscarriage of justice.
• [81] This proposed ground of appeal has no merit.

Proposed ground of appeal 5: Putting that IH had a motive to lie

• [82] Proposed appeal ground 5(a) asserts that there has been a miscarriage of justice because the prosecutor asserted that the applicant's mother had a motive to lie in order to protect her son and a motive to lie is dependent on proof of the applicant's guilt and therefore cannot be used to reason towards guilt.
• [83] During the course of her evidence, the prosecution put to IH that she was giving dishonest evidence in order to undermine the first complainant's evidence about Count 4. The prosecutor then made a similar submission during her closing address to the jury, to the effect that the witness was lying to protect her son.
• [84] The prosecutor's cross-examination of the applicant's mother and her final address asked the jury to engage in the following reasoning process:

(a) the witness has a motive to lie because of her connection to the applicant;

(b) her evidence is therefore false;

(c) her evidence should be put to one side, and you should rely on the evidence of the first complainant only; and

(d) you should accept the first complainant's evidence and find the applicant guilty.

• [85] This reasoning is circular and illogical. It is a cannon of logic that one cannot prove a fact by a chain of reasoning which assumes the truth of the fact. The submission was likely to distract the jury from their fundamental task and undermine the presumption of innocence because of an assumption in step 1 of the applicant's guilt. IH can only be found to have a motive to lie if the accused is guilty. The reasoning process involved assumes the guilt of the applicant (thus undermining the presumption of innocence) and then uses that assumption to discredit the witness, in order to assist in proof of the applicant's guilt. Put another way, there is no reason for the witness to lie to protect the applicant unless it is first assumed that the applicant is guilty.
• [86] This impermissible reasoning was endorsed by the trial Judge when her Honour directed the jury that when considering the evidence of a witness, they may consider whether the witness was trying to protect someone. The applicant's presumption of innocence was undermined because the jury would have been distracted from their essential task and a miscarriage of justice resulted.

• [87] We reject the applicant's contentions.
• [88] To suggest to a witness, or make a submission to, or direct the jury that a witness has a motive to lie does not assume the guilt of an accused. The existence of a motive to lie, if it be found, is simply but obviously a matter which bears upon the assessment of the credibility of the witness. In taking into account evidence of a motive to lie, and determining whether the witness is telling the truth, there is no assumption as to the guilt of an accused. Nor, if a motive to lie is established, is there any assumption that the witness is lying. That is the very thing the jury is called upon to assess, and the existence of a motive to lie is routinely put to the jury as part of their assessment. The fact that the prosecutor did so in cross-examination of an unfavourable witness is irrelevant. The reasoning process for the jury's assessment of the credibility of the witness is the same.
• [89] Once again, no objection was raised by the defence during the prosecutor's examination of the applicant or at the close of the prosecutor's closing address or at the end of the trial Judge's summing up. Again, for good reason. There was no basis for any such complaint.
• [90] The authorities relied on by the applicant do not support the applicant's contentions. They concern the prosecutor and/or trial Judge impermissibly suggesting to the jury that an accused has a motive to lie as he or she has an interest in the outcome of the trial. This is not such a case.
• [91] In Castle (a pseudonym) v The Queen,[13] a similar contention was raised by the applicant in that case, and the same authorities were relied on. The argument was rejected by the South Australian Court of Appeal. The trial in that case was before a judge alone. The appellant was found guilty of two counts of unlawful sexual intercourse. The appellant did not give evidence but led evidence from his partner, SL. The defence case was that the alleged offending did not occur and that there was no opportunity for it to occur. SL gave evidence that the complainant only stayed overnight at the relevant house on one occasion, that there was a further occasion when the complainant visited their home but that she stayed in the car, and denied that there was an occasion when the complainant stayed at the house alone with the applicant. The trial judge rejected SL's evidence, finding that she took every opportunity to show that there was no opportunity for the applicant to have committed the crimes with which he was charged and SL's evidence that there was no occasion when the applicant was home alone with the children was implausible considering other evidence.
• [92] One of the proposed grounds of appeal was that the trial Judge had regard to an irrelevant matter, namely the prosecutor's submission that SL's evidence was self-serving and "SL's credibility was undermined by the fact that she wished to 'protect' the applicant as he was her partner; and... that to reason in this way her Honour first assumed that the [applicant] was guilty which effectively undermined the presumption of innocence". Leave to appeal on that ground was refused.
• [93] Having considered the authorities[14] relied on by the applicant before us, the South Australian Court of Appeal held (at [77]-[84]) that while an accused's evidence should not be evaluated on the basis of the accused's interest in the outcome, it did not follow that the credibility of other witnesses could not be assessed by reference to their partiality to the accused. The Court of Appeal stated (at [86]-[89]):

Generally speaking, and where there is an evidentiary basis to do so, it is open to a trial judge or jury to take into account a witness's interest in the outcome of proceedings, or lack thereof, or his or her potential motivation for giving evidence, as a relevant factor, when assessing the credibility of the evidence of the witness. This does not, of itself, necessarily undermine the presumption of innocence or reverse the onus of proof. A witness's independence (that is, the fact he or she is not aligned with either the prosecution case or the defence case) is a relevant factor when assessing the credibility of the witness. The weight to be given to this factor will inevitably vary from case to case. Similarly, the fact that a witness (other than the accused) may have a particular motivation or interest in the outcome of proceedings may also be a relevant factor in assessing the credibility of the witness's evidence. Again, whether this is so, and the weight to be afforded to this matter, will vary from case to case.

A trial judge's instructions, however, must not undermine the presumption of innocence or deflect a jury from its proper task, namely to determine whether the prosecution has proved the case beyond reasonable doubt, for example, as occurred in Robinson by '[i]nviting a jury to test the evidence given by an accused according to the interest that the accused has in the outcome of the trial, or suggesting that the accused's evidence should be scrutinised more carefully than the evidence of other witnesses'.

In the present case, the appellant did not give evidence. There was nothing in the trial Judge's reasons for verdict which suggested that her Honour reversed the onus of proof in her assessment of the prosecution case. The prosecutor's submission that KM and SS were 'independent' was available on the evidence, as was her Honour's impression that SS did not have such ill-feeling towards either SL or the appellant to have sought to deliberately undermine them or give false evidence. KM and SS were not aligned with the complainant and her immediate family. There was limited evidence of any hostility between the witnesses and the appellant or SL. The fact of their impartiality as witnesses was a relevant factor (in addition to other matters) when considering the credibility of their evidence as to the appellant's opportunity to commit the charged offences. In reasoning in this way, there was no risk that her Honour reversed the onus or standard of proof in her assessment of their evidence.

Similarly, it was open to the prosecutor to challenge the credibility of the appellant's partner, SL, on the basis that she was embellishing her evidence by reason of her relationship with the appellant...

• [94] As to proposed ground of appeal 5(b), it follows that the trial Judge was not required to direct the jury that they could not have regard to whether the applicant's mother had a motive to lie to protect her son. No such direction was required, nor was one sought by defence counsel at the trial.
• [95] Proposed grounds of appeal 5(a) and 5(b) have no merit.

Proposed ground of appeal 6: Unfair questioning of the applicant

• [96] Proposed ground of appeal 6 is a complaint about the prosecutor cross-examining the applicant on the basis that he had recently invented certain parts of his evidence. It was submitted that by doing so the Crown undermined his right to silence and the presumption of innocence.
• [97] The recent invention questions related to two topics. First, in relation to alleged assaults by one of the complainants and her use of weapons. The impugned questions were:
  1. Is there a reason you did not give this in evidence earlier?
  2. Well you are inventing that today, aren't you?
• [98] Second, in relation to when the applicant's mother attended during the incident which constituted count 4. The impugned questions were:
  1. So it is now your evidence...
  2. Now you say that happened after she had come over?
  3. And now you are saying, contrary to what your mother said...
  4. You are just making this up on the spot, aren't you, Mr Hennessy?
• [99] The above questions were aimed at discrediting the evidence of the applicant. There must be a sufficient evidentiary foundation for an allegation of recent invention to be made. To make an allegation of recent invention without a sufficient evidentiary basis undermines the presumption of innocence. Where a prosecutor makes an allegation of recent invention without a proper evidential foundation, the prosecution invites the jury to reason from an absence of evidence where the onus is on the prosecution to adduce the evidence.
• [100] The only apparent foundation for questions 1 and 2 set out above is that the applicant did not mention the incident previously. A failure to mention something previously having not been asked about the topic is not evidence of recent invention. The questions asked by counsel in the trial are beyond the control of the accused, and there may be multiple reasons why counsel did not ask a question or did not question on a topic which do not suggest recent invention.
• [101] The only foundation for questions 3 to 6 above appears to be that the evidence of the applicant was in conflict with the evidence of his mother. Any such conflict is not a basis to infer recent invention.
• [102] There was an insufficient evidentiary basis for any allegation of recent invention. The prosecutor asked the jury to reason from something that the prosecution had not adduced in evidence which was capable of proving and thereby undermined the applicant's presumption of innocence.

• [103] The questions now objected to carry no further implication than that the applicant was, to the extent put to him, giving false evidence. No objection was raised by defence counsel at the trial, and nothing further was said of those questions by the prosecutor or the trial Judge.
• [104] Question 1 was about the applicant having not given evidence about one of the complainants threatening him with violence on multiple occasions with weapons. That question was a reference to the applicant's evidence in chief. The question was asked to test the applicant's evidence in circumstances where: (a) he had made no mention of that matter in evidence in chief; and (b) he might naturally have been expected to mention the matter, given what he gave evidence about.
• [105] Question 2 followed the applicant's evidence that he had considered the evidence that he was going to give to the jury and that he tried to give the fullest picture that he could when giving his evidence in chief. Therefore, there was a clear basis to suggest to the applicant that he had invented the assertion that the first complainant would threaten him with weapons.
• [106] Questions 3 to 6 relate to Count 4 on the indictment and were asked during a relatively confined part of the cross-examination. The impugned questions suggest nothing about the applicant's right to silence or the presumption of innocence. At worst there was some confusion as to whether the applicant had said during his evidence in chief that his mother was present when the first complainant allegedly chased him with a knife or whether she had attended and left prior to that incident occurring. That confusion occurred in circumstances where the applicant's mother gave evidence that she was present when the applicant had driven away from the property; the applicant's evidence in chief as to when his mother was present was ambiguous; and the applicant's evidence in chief was that the first complainant was sitting on the couch in the living room before she walked into the kitchen, picked up a knife, and chased him out of the unit, which conflicted with the answers that he gave in cross-examination to the effect that the first complainant had the altercation with the applicant's mother outside the unit before she walked to the kitchen, and chased him out of the unit.
• [107] The Crown case was that the first complainant had never chased the applicant with a knife, the applicant's mother was not present at any time during the commission of Count 4, and the applicant's mother had either intentionally or mistakenly conflated Count 4 with Count 2, on which occasion she was present.
• [108] Questions 3 to 6 in essence suggested that the applicant was giving false evidence to the extent that his evidence was in conflict with the evidence of the first complainant and his mother. Those questions were entirely permissible.
• [109] The impugned questions had a sufficient evidentiary basis and they did not undermine the right to silence or the presumption of innocence.
• [110] This proposed ground of appeal has no merit.

• [111] The application for leave to appeal is refused.

[1] Three proposed grounds of appeal were abandoned by the applicant prior to the hearing.

[2] [2025] HCA 24 ('MDP').

[3] See Kerridge v The King [2025] NTCCA 6 ('Kerridge') at [30]-[31] per Southwood, Brownhill JJ and Riley AJ, citing Brawn v The King [2025] HCA 20; (2025) 99 ALJR 872 ('Brawn') at [9]-[10].

[7] [2007] VSCA 259; (2007) 17 VR 315 ('Yankovski') at [17] per Chernov JA.

[8] See Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355 at [71] per McHugh, Gummow, Kirby and Hayne JJ.

[9] See Tjungarrayi v Western Australia [2019] HCA 12; (2019) 269 CLR 150 at [89] per Nettle J and the authorities there cited.

[10] Whitehorn v The Queen [1983] HCA 42; (1983) 152 CLR 657 at 674 per Dawson J.

[11] [2006] NSWCCA 109.

[12] See The Queen v Gahani [2022] NTCCA 13 at [141] per Southwood, Kelly and Barr JJ.

[13] [2025] SASCA 10.

[14] Robinson v The Queen [1991] HCA 38; (1991) 180 CLR 531; Stafford v The Queen (1993) 67 ALJR 510; Hargraves v The Queen [2011] HCA 44; (2011) 245 CLR 257.