Kerridge v The King [2025] NTCCA 6

Brawn v The King [2025] HCA 20; (2025) 99 ALJR 872; Cooper v The King [2022] NTCCA 16; Doe v The Queen [2008] NSWCCA 203; (2008) 187 A Crim R 328; Doggett v The Queen (2001) 208 CLR 343; EK v The Queen [2010] NSWCCA 199; (2010) 79 NSWLR 740; F (1995) 83 A Crim R 502; Hamilton (a pseudonym) v The Queen [2021] HCA 33; (2021) 274 CLR 531; HML v The Queen [2008] HCA 16; (2008) 235 CLR 334; Hoang v The Queen [2022] HCA 14; (2022) 276 CLR 252; Hofer v The Queen [2021] HCA 36; (2021) 274 CLR 351; Huynh v The Queen (2013) 87 ALJR 434; Huxley v The Queen [2023] HCA 40; (2023) 98 ALJR 62; Katsuno v The Queen [1999] HCA 50; (1999) 199 CLR 40; KTR v The Queen [2010] NSWCCA 271; MDP v The King [2025] HCA 24; Munmurrie v Western Australia [2007] WASCA 184; RG v The Queen [2010] NSWCCA 173; Pattison v Tasmania [2017] TASSC 13; (2017) 30 Tas R 1; South v The Queen [2007] NSWCCA 117; The Queen v E (1996) 39 NSWLR 450; The Queen v Fuge [2001] NSWCCA 208; The Queen v G [1993] QCA 267; [1994] 1 Qd R 540; The Queen v Maiolo (No 2) (2013) 117 SASR 1; The Queen v Uhrig (unreported, NSWCCA, 24 October 1996, Hunt CJ at CL; Weiss v The Queen [2005] HCA 81; (2005) 224 CLR 300; WFS v The Queen [2011] VSCA 347; (2011) 33 VR 406; Wilde v The Queen [1988] HCA 6; (1988) 164 CLR 365, referred to.

Respondent: Office of the Director of Public Prosecutions

Kerridge v The King [2025] NTCCA 6

• [1] The applicant was found guilty by a jury of 15 counts of aggravated assault and sexual intercourse without consent committed from 2015 to 2018. The trial Judge gave directions to the jury about evidence relating to the complainant's motive to lie and the use to be made of relationship evidence. The issues in the application were whether those directions gave rise to a wrong decision on a question of law.

The charges, trial outcome and proposed grounds of appeal

• [2] The applicant was charged on indictment with 17 counts of aggravated assault and sexual intercourse without consent relating to a number of occasions involving his then domestic partner, the complainant.
• [3] The applicant pleaded not guilty to all counts. On 16 September 2021, he was found guilty of 15 counts, namely:

(a) three counts of aggravated assault of the complainant, contrary to ss 188(1) and (2) of the Criminal Code 1983 (NT) ('Criminal Code') (Counts 3, 8 and 13); and

(b) 12 counts of having sexual intercourse without consent, comprised of fellatio, penile-vaginal penetration and penile-anal penetration, contrary to s 192(3) of the Criminal Code (Counts 4, 5, 6, 7, 9, 10, 11, 12, 14, 15, 16 and 17).

• [4] The applicant sought leave to appeal against the findings of guilt on the grounds that the trial Judge's directions to the jury about the complainant's motive to lie and the use to be made of the relationship evidence gave rise to a miscarriage of justice. Leave to appeal was required because the proposed ground of appeal involved a question of mixed law and fact.[1]
• [5] The applicant also filed an application for an extension of time within which to appeal, which was required because the time for filing a notice of appeal expired on 29 November 2021.
• [6] With the consent of the respondent, pursuant to r 82.17(2) of the Supreme Court Rules 1987 (NT), the applications were deferred until the hearing of the appeal. The applications for leave to appeal and an extension of time and the substantive issues were heard together.
• [7] The respondent opposed the grant of leave to appeal on the bases that the directions given by the trial Judge did not contain error and, even if they did, there was no realistic possibility that the jury engaged in impermissible reasoning to guilt. In the alternative, but for the same reasons, the respondent argued that if leave to appeal was granted, the appeal should be dismissed.

• [8] The Crown case at trial was that the applicant and the complainant met at school and started their relationship as young adults. Initially, the relationship was a happy one. They lived in Queensland. They were both working and earning good money. In 2010, just before the birth of their first child, they began having arguments about money. Initially, the arguments were infrequent and verbal, but over time they became more frequent and more severe, to the point where the applicant began physically assaulting the complainant. On one occasion when they argued, the applicant blamed the complainant for their lack of disposable income, called her a 'waste of space', physically assaulted her, pointed a firearm at her torso and head, told her it was loaded, said she 'deserved it' and pulled the trigger. This conduct, committed in Queensland, could not be and was not the subject of any charge.
• [9] There followed a period when the applicant was working and making good money. The relationship was in a good place. In around 2013, the applicant resigned from his job and was unemployed. The relationship soured again because they were reliant on the complainant's income.
• [10] They decided to move to Alice Springs to gain opportunities for better paid work. By that stage, they had two children. After they moved, the issues in the relationship continued and arguments about money were frequent. On one occasion, the complainant ran away from the applicant and he chased her, caught up to her, hit her in the shoulder and kneed her in the leg. On another occasion, the complainant drove to pick up the applicant after he had been out drinking, he demanded that he drive home, the complainant was not comfortable with that, the applicant tried to grab her through the car window and punched the window causing it to shatter. On another occasion, the applicant told the complainant that if she did not pull her head in, he would use a loader to dig a hole in Central Australia and bury her in it. On another occasion, following an argument about money, the applicant assaulted the complainant by kicking and punching her, grabbing her head and banging it against a kitchen panel, then using a cattle prod on her for about four to five seconds. On another occasion, after he had difficulty starting his car, the applicant asked the complainant if she had also had difficulties starting the car, she said she did not, he accused her of lying, slapped her, kicked her, grabbed her hair and slammed her head against a kitchen cupboard. Evidence of these uncharged acts was given by the complainant or tendered as agreed facts. Also tendered were text messages between the applicant and the complainant, which were abusive and offensive.
• [11] On around 5 or 6 October 2015, the applicant and the complainant drank alcohol and argued about money. The applicant struck the complainant in the face. They continued drinking. The applicant told the complainant to sniff some white powder from a plate, saying she needed to 'get on the same level' as him. She understood the powder to be MDMA and snorted some. The applicant told the complainant to take her clothes off because he wanted to have sex with her. She complied. He grabbed her head and pushed it onto his penis. He told her it was her punishment for not paying the bills. He then pushed her onto the bed, pulled her legs open and had penile-vaginal intercourse with her without her consent, during which she told him to stop. That is the offending the subject of Counts 1 and 2.
• [12] Between 23 October 2015 and 1 July 2018, the applicant and the complainant argued about money. He yelled at her and called her a 'waste of space'. He led her into a bedroom, took a gun from a cupboard, loaded bullets into the gun and pointed it at her, telling her the money issues were her fault and this was her punishment. He then put the gun down and told her to get undressed. He told her to suck his penis. She did so but was choking and finding it hard to breathe. She told him she could not breathe and could not do it. He told her to get onto the bed, on her back with her head hanging over the edge of the bed, and to suck his penis again, which she did. Again, she had difficulty breathing and was choking. She was unable to pull away. The applicant then flipped her over and had penile-vaginal intercourse and penile-anal intercourse with her without her consent. That is the offending the subject of Counts 3, 4, 5, 6 and 7.
• [13] Between 1 and 31 July 2018, the complainant was sitting on a couch watching television. The applicant told her it was time to go to the bedroom. He pulled her off the couch by her hair and started hitting and kicking her. Once they were in the bedroom, he retrieved a cattle prod and told her she had to suck his penis and have sex with him or he would use the prod on her again. As a result, she performed fellatio on him and he had penile-vaginal intercourse and penile-anal intercourse with her without her consent. That is the offending the subject of Counts 8, 9, 10 and 11.
• [14] On 25 September 2019, the complainant was asleep on a couch. The applicant slapped her face using his penis. He told her to wake up and go to the bedroom to 'give him a service'. She told him she did not want to. He pulled her onto the floor, hit and kicked her and told her to suck his penis and have sex with him. She then performed fellatio on him and he had penile-vaginal intercourse and penile-anal intercourse with her without her consent. That is the offending the subject of Counts 12, 13, 14, 15, 16 and 17.

• [15] The applicant did not give evidence and did not call any evidence at the trial. The applicant's case was that the jury could not be satisfied beyond reasonable doubt of the reliability of the complainant's evidence, including because she had a motive to lie.

The nature of the appeal and the applicable principles

• [16] This is an application for leave to appeal under s 410(b) of the Criminal Code. The proposed notice of appeal contains two grounds, as follows:

(a) The trial Judge's directions as to the complainant's motive to lie caused a miscarriage of justice (Ground 1).

(b) The trial Judge's directions as to the use that could be made of the relationship evidence caused a miscarriage of justice (Ground 2).

• [17] At the hearing, the applicant sought to amend the proposed notice of appeal to include, in each ground, that the trial Judge's directions comprised a wrong decision on a question of law. That application was not opposed by the respondent.

• [18] Section 411(1) of the Criminal Code provides that, on an appeal against conviction, the Court shall allow the appeal if it is of the opinion that the verdict of the jury should be set aside on the ground, firstly, that the verdict is unreasonable, or cannot be supported having regard to the evidence; secondly, that the judgment of the court of trial should be set aside on the ground of a wrong decision on any question of law; or thirdly, that on any ground whatsoever there was a miscarriage of justice. Those 'three limbs' are followed by 'the proviso' in s 411(2), which provides that the Court may nevertheless dismiss the appeal if it considers that no substantial miscarriage of justice has actually occurred. Section 411 of the Criminal Code is a common form of criminal appeal provision found in the States and Territories of Australia.

• [19] The High Court has recently delivered two decisions in which the Court has attempted to provide clarity of the principles applicable to:

(a) the second limb of the common form criminal appeal provision, namely MDP v The King [2025] HCA 24 ('MDP'), in which the Court unanimously stated the principles;[2] and

(b) the third limb of the common form criminal appeal provision, namely Brawn v The King [2025] HCA 20; (2025) 99 ALJR 872 ('Brawn'), in which the Court unanimously stated the principles.[3]

Second limb of the common form appeal provision - MDP

• [20] Relevantly for the purposes of this appeal, in MDP, the High Court held that the first step in engaging the second limb of the common form appeal provision is for the appellant to identify a 'decision' by the trial Judge on a question of law.[4] Such a decision is not confined to decisions of a trial Judge that are made over the objection of a party; rather, it involves some determination or response to a question of law by a trial Judge that has legal effect in the trial, considered in the context of the duties and obligations of a trial Judge at a criminal trial.[5]
• [21] The responsibility to deliver a summing up that correctly states the relevant principles of law rests with the trial Judge and thus, if a trial Judge misdirects the jury on a matter of law, there will be a wrong decision on a question of law for the purposes of the second limb, whether or not those decisions were the subject of submissions or counsel caused or contributed to the decision.[6]
• [22] Although a mere failure by a trial Judge to give a particular direction will not ordinarily involve the making of a decision on a question of law unless a party has requested such a direction: (a) the failure to give a direction that was not requested may nevertheless amount to a miscarriage of justice (under the third limb); and (b) given the context of the duties and obligations of a trial Judge in a criminal trial, there may be circumstances in which a trial Judge's failure to give a direction that has not been requested that has legal effect in a trial gives rise to a decision on a question of law.[7]
• [23] The High Court held that the second step in engaging the second limb of the common form appeal provision arises if there is a decision on a question of law and, if there is, the appellant must then establish that the decision was wrong.[8]
• [24] The High Court held that the third step in engaging the second limb of the common form appeal provision arises if it is shown there was a wrong decision on a question of law, in which case the appellant must show that the wrong decision involved an error that was either fundamental to the trial or, if not fundamental, material in the relevant sense.[9] The same approach to significance and materiality of the wrong decision for the purpose of the second limb corresponds with that applying to the third limb as explained in Brawn[10] (see below).
• [25] An error fundamental to the trial is an error in the sense discussed in the authorities as necessarily meaning there was a substantial miscarriage of justice.[11] By way of example, in Hofer v The Queen [2021] HCA 36; (2021) 274 CLR 351, such an error was described (at [123]) as an error 'so profound as to be characterised as a failure to observe the requirements of the criminal process in a fundamental respect'. In Huxley v The Queen [2023] HCA 40; (2023) 98 ALJR 62, such an error was described (at [44]) as an error 'so serious that it will be a substantial miscarriage of justice irrespective of whether it might have affected the outcome of the trial'.
• [26] In MDP, the High Court held that, if the wrong decision is fundamental to the trial, the guilty verdict must be set aside; the proviso is necessarily inapplicable, and it is unnecessary to undertake any further assessment of whether the wrong decision could have had any effect on the verdict and whether no substantial miscarriage of justice has occurred; and the appeal must be allowed.[12]
• [27] Otherwise, the appellant must establish that the wrong decision involved an error that could realistically have affected the reasoning of the jury to the verdict of guilty in the trial that was had.[13] This does not include 'truly innocuous or irrelevant wrong decisions'.[14]
• [28] The fourth step in engaging the second limb of the common form appeal provision arises if the wrong decision on a question of law does not concern a question that was fundamental to the trial but is nevertheless found to be material and, in such cases, the appeal must be allowed unless the prosecution establishes that no substantial miscarriage of justice occurred, by applying the proviso.[15]
• [29] In MDP the High Court held that, if the evidence the subject of a particular decision on a question of law was admitted over objection by counsel or the direction the subject of a decision was sought by counsel but refused or given over opposition by counsel, then no question of the conduct of counsel who made the objection or sought the direction contributing to any wrong decision will arise.[16] While the decisions of counsel will often provide the context in which a trial Judge may make a decision on a question of law,[17] whether the conduct of counsel caused or contributed to the decision by the trial Judge being wrong is irrelevant to whether there is a wrong decision on a question of law.[18]

Third limb of the common form appeal provision - Brawn

• [30] In Brawn, the High Court held that the third limb of the common form appeal provision captures an error or irregularity affecting an appellant's trial and, if that error or irregularity was fundamental in the sense discussed in the authorities, then there will be a miscarriage of justice and no occasion to address the proviso separately will arise because a fundamental error or irregularity will necessarily mean that there was a substantial miscarriage of justice.[19]
• [31] For other errors or irregularities to constitute a miscarriage of justice within the third limb, 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 the assessment of the possibility of a different outcome from a possibility that is fanciful or improbable.[20] 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.[21] 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.[22]
• [32] In Brawn, the High Court noted that it was not addressing whether or not the establishment of an error or irregularity that is material will be sufficient to establish a miscarriage of justice in circumstances where that error or irregularity was the product of, or contributed to by, the accused as a result of rational forensic decisions of their trial counsel.[23]

• [33] The applicant argued that both its proposed amended grounds of appeal involved complaints both of a misdirection and a failure to direct, in the context of a failure by the applicant's trial counsel to object or seek a direction or re-direction, with the consequence, following MDP, that both the second and third limbs of s 411(1) were at play and required to be considered. The applicant accepted, however, that under either limb the tests about the significance of the wrong decision or error (fundamental and material) were the same.
• [34] In this case, where the proposed appeal grounds take issue with what the trial Judge said and did not say to the jury about certain subjects, it seems to us to be artificial and pointless to separate the arguments under each proposed ground of appeal into arguments about what the trial Judge did say as a misdirection falling within the second limb and arguments about what the trial Judge did not say as an error or irregularity falling within the third limb. The reasons for that view are:

(a) The fundamental and material tests apply in the same way to both the second and third limbs of s 411(1).

(b) The High Court accepted in MDP that a failure to give a direction without trial counsel's request could give rise to a decision on a question of law.

(c) The trial Judge's responsibilities included to deliver a summing up that correctly states the relevant principles of law.

(d) There is no issue in this case whether there was a discernible forensic reason on the part of the applicant's trial counsel for the failure to seek a direction or re-direction. The respondent does not rely on any such reason.

• [35] In the circumstances of this case, a proposed appeal ground which takes issue with what a trial Judge said and did not say about a particular subject matter, in a context where trial counsel made no objection to or request for a direction or misdirection, is sensibly regarded and dealt with as a ground asserting a misdirection within the second limb. In this case, to also deal with such an appeal ground as an error within the third limb is not required and serves no useful purpose.

Consideration of the misdirection in the context of the trial

• [36] In Hargraves v The Queen [2011] HCA 44; (2011) 245 CLR 257, French CJ, Gummow, Hayne, Crennan, Kiefel and Bell JJ observed (at [46]) that a trial Judge's instructions to the jury, whether by way of legal direction or judicial commentary on the facts, must not deflect the jury's attention from the need to be persuaded beyond reasonable doubt of the accused's guilt before returning a verdict of guilty. Accordingly, it was held (at [46]) that the ultimate question must be whether, taken as a whole, the Judge's instructions to the jury deflected the jury from its fundamental task of deciding whether the prosecution proved the elements of the charged offence beyond reasonable doubt, emphasising that whether there has been on any ground a miscarriage of justice must always require consideration of the whole of the Judge's charge to the jury.
• [37] In Huxley v The Queen [2023] HCA 40; (2023) 98 ALJR 62, Gordon, Steward and Gleeson JJ repeated these principles concerning the approach to a misdirection of law (at [40]-[41]) and held (at [42]) that they apply in the same way whether the misdirection is characterised as an error of law, a miscarriage of justice or a wrong decision on a question of law. Their Honours added (at [43]) that where there is a misdirection or other error of law, the jury, who must take their instruction on matters of law from the Judge, must necessarily be misled to some extent unless the error is corrected and whether a direction involves a misdirection on the law may depend upon contextual matters, including the issues at the trial, the evidence, closing addresses by counsel and the whole of the trial Judge's summing up.
• [38] Nothing said by the High Court in MDP (a case where the trial Judge's direction was wrong as a matter of law because it instructed the jury, contrary to the law, that they could use certain (inadmissible) evidence as propensity evidence) or Brawn (a case about a breach of the prosecution's duty of disclosure) has detracted from the principle set out in Huxley that whether there was a wrong decision on a question of law by virtue of a misdirection by the trial Judge to the jury may depend upon those contextual matters.
• [39] Those contextual matters are important in this case, where the applicant's proposed grounds of appeal have a limited and narrow focus on very small parts, mere phrases or single sentences, in the trial Judge's lengthy and comprehensive summing up.
• [40] Also in Huxley, Gordon, Steward and Gleeson JJ endorsed the observation of French CJ, Crennan and Kiefel JJ in King v The Queen[24] that the decision of Defence counsel at trial not to seek a redirection informs consideration of the extent to which, taken in context, the direction was likely to confuse or mislead the jury.
• [41] Again, nothing said by the High Court in MDP or Brawn has detracted from this principle. The High Court held in MDP that whether the conduct of counsel caused or contributed to the decision by the trial Judge being wrong is irrelevant to whether there is a wrong decision on a question of law. However, that is not to say that, especially in a case like this in which the asserted wrong decisions turn on a construction of words or phrases in the trial Judge's instructions understood in the context of the summing up as a whole, it is irrelevant that trial counsel did not raise any concerns with the trial Judge or seek any redirection. The failure to do so is relevant to assessing the meaning and effect of the trial Judge's instruction in the context of the summing up and the trial as a whole.

The trial Judge's directions about the complainant's motive to lie

• [42] In his summing up to the jury, the trial Judge addressed the jury about the drawing of inferences.[25] His Honour told the jury that they could draw inferences from a combination of facts which, when viewed as a whole, persuade them that the inference should be drawn, even though no conclusion can be drawn from looking at each fact individually.[26] His Honour said that when the facts were looked at together in the light of all the circumstances of the case, the jury may be able to be satisfied that an inference can properly be drawn from those facts.[27] His Honour said they may think that the probative force of the combination of the facts looked at together has a cumulative effect and they should therefore not reject one circumstance simply because, standing alone, no inference can be drawn from it, and they are entitled to draw an inference from a combination of facts, none of which viewed alone would support that inference.[28] His Honour then said:[29]

Now, this is important when we consider the subject of motive. It is not essential that either the Crown or the defence establish a motive before you can draw an inference from it. Nevertheless, the presence of or absence of a proven motive may be an important factor in deciding whether or not, for example, [the complainant] has told you a lot of lies about these alleged assaults. But motive is only a piece of circumstantial evidence. The weight to be given to motive, if you find it proved, is a matter to be considered in the whole of the circumstances of the case.

So part of the defence submission to you was that you can draw an inference that [the complainant] had a motive to lie about the alleged rapes in order to enhance her Family Law and child custody, and so on, aspirations. And the defence took you to, you may remember, a number of matters that they asked you to consider that related to that. [Those matters were summarised.]

... So what is being put to you is from this sequence of events [y]ou can draw the inference that she had a motive to lie in order to enhance her claim to proper[t]y in Family Law proceedings. You may remember that in December 2019, a letter was sent from her lawyer to the accused about Family Law matters.

Or it was put that, in addition, she also had a motive to lie in order to get revenge for all the things that have happened to her. And she denied those things, but you are being invited to draw the inference that that is what happened or, at least, that is what may have happened. And if there is a reasonable doubt in your minds as to whether or not she had such a motive, then it was put to you that you might have a reasonable doubt as to whether the Crown has proved the allegations that are contained in the indictment. And that is a matter for you.

• [43] Subsequently, near the end of the summing up, the trial Judge dealt with some evidence given by the complainant in cross-examination about some notes she had made about one of the incidents.[30] His Honour then said:[31]

Now, of course, ladies and gentlemen, before you can reach your verdicts I tell you, you should scrutinise the evidence in this case with great care. If you have a reasonable doubt as to whether or not [the complainant] had a motive to lie and you have a reasonable doubt that she not only had that motive but that she acted upon it then your verdicts ought to be not guilty.

• [44] The applicant identified the wrong decision on a question of law, the mis-directions, as the underlined parts of the two passages set out above. The complaints about the directions given were three-fold and there was an additional complaint that the directions did not go far enough. They will be addressed in turn.
• [45] First, the applicant argued that the jury were directed that the absence of a motive to lie was a matter that could be taken into account in assessing the complainant's credibility, whether she had lied about the alleged offending.
• [46] This was said to be wrong in law because it was inconsistent with the High Court's decision in Palmer v The Queen [1998] HCA 2; (1998) 193 CLR 1. In that case, Brennan CJ, Gaudron and Gummow JJ held (at [9]) that a complainant's account gains no legitimate credibility from the absence of evidence of a motive to lie, and if credibility which the jury would otherwise attribute to the complainant's account is strengthened by an accused's inability to furnish evidence of a motive for the complainant to lie, the standard of proof is to that extent diminished. Their Honours said that absence of proof of motive is entirely neutral.
• [47] It is clear from this passage in Palmer, from the authorities cited in Palmer both before and after this passage,[32] and from authorities which have followed and applied Palmer,[33] that the concern is the risk that the onus of proof is transferred from the Crown to the accused by reasoning that the complainant's evidence should be accepted if the accused does not prove she had a motive to lie.[34]
• [48] In this case, the applicant's case directly asserted a motive to lie. The applicant's trial counsel made that explicit in his opening address,[35] telling the jury that the complainant's credibility was a central issue in the case, that the applicant did not have to establish that she was lying or provide reasons for why she might be lying, that there would be evidence which, on the applicant's case, provided a motive for the complainant to make false allegations, but the applicant did not have to prove anything, and that ultimately, aside from any issue raised by the applicant, they had to be satisfied of the complainant's credibility and reliability such that they could act on the allegations and find the applicant guilty, and if they had any doubt about those matters they would have to acquit.
• [49] In this case, telling the jury that the presence or absence of a motive to lie may be important in deciding whether the complainant is lying did not transfer the onus of proof from the Crown to the applicant by directing the jury to reason that the complainant's evidence should be accepted if the applicant did not prove she had a motive to lie. It was simply to say that, whether or not the complainant had a motive to lie may be important in the case, given that the complainant's credibility was critical in proving the alleged offences and that the applicant had asserted and relied on evidence said to show that she had a motive to lie. So much is confirmed by the trial Judge having told the jury earlier in his summing up that the question of whether there is a motive to not tell the truth is a matter the jury will need to consider.[36]
• [50] Secondly, the applicant argued that the jury were directed that, before they could act on the asserted motive to lie, it had to be proven. In South v The Queen [2007] NSWCCA 117, Hunt AJA (Simpson and Whealy JJ agreeing) observed (at [42]) that, where there is evidence that the complainant had a motive to lie, the jury's task is to consider that evidence and to determine whether, in the light of such of that evidence as they accept, they are nevertheless satisfied that the evidence given by the complainant of the commission of the offence charged is true. Further, that task necessarily does not include speculating as to whether there is some other reason why the complainant would lie, nor does it include acceptance of the complainant's evidence unless some positive answer to that question is given by the accused.
• [51] There is nothing wrong with reference to a 'proven' motive to lie when: (a) the context clearly indicates that the trial Judge was referring to satisfaction by way of inference; (b) the applicant was relying on evidence said to provide a motive for the complainant to lie; (c) the applicant's trial counsel had clearly indicated in his opening address the motive to lie, the likely evidence about it, and way he was asking the jury to approach that evidence;[37] (d) the applicant's trial counsel reiterated in his closing address that it was not for the Defence to prove a motive to lie, but if there is evidence which admits of a reasonable possibility of it, they would have to acquit;[38] and (e) the trial Judge said to the jury, near the end of his summing up, that there were a few other comments he needed to make and the first of those was in relation to alleged lies.[39] His Honour went on:

Now, a lie is a deliberate untruth. A lie is something where someone knows the truth, but deliberately tells an untruth. That's what a lie is. It's quite different from merely getting it wrong, having a wrong memory but believing that what you're saying is true. It's quite wrong - quite different from being inaccurate in some respects about what you're saying_. Of course, the defence do not have to prove that [the complainant] deliberately lied. They are not required to prove that. The burden of proof throughout this case rests with the Crown. It is the Crown that have to satisfy you beyond reasonable doubt of the elements of each of the charges._

• [52] It is sufficiently clear from the summing up considered as a whole that, when the trial Judge referred to a 'proven' motive to lie, his Honour was referring to such of the evidence about the complainant having a motive to lie as they were prepared to accept.
• [53] Thirdly, the appellant argued that the jury were directed that they should acquit if they had a reasonable doubt about the complainant acting on her motive to lie, rather than if there was a reasonable possibility that she was acting on her motive to lie. This was said to be wrong in law because it imported the concept of reasonable doubt into consideration of the existence of a motive to lie and was confusing because if the jury were not satisfied about the possibility of the existence of a motive to lie, that would not lead to an acquittal, they would simply put the motive to lie to one side.
• [54] The first reference to 'reasonable doubt' in the summing up extracted in paragraph [42] above is in the context of a summary of the Defence argument. This is made clear by the words 'then it was put to you' and the consequence, 'that you might have a reasonable doubt as to whether the Crown has proved the allegations'. Consequently, what the applicant's trial counsel said to the jury in his opening and, particularly, his closing addresses would have been fresh in their minds and is relevant in considering how this part of the summing up would have been understood by the jury. As set out in paragraph [51] above, the applicant's trial counsel told the jury that it was not for the Defence to prove a motive to lie, but if there is evidence which admits of a reasonable possibility of it, they would have to acquit.
• [55] Further, that reference to 'reasonable doubt' is preceded by the words 'you are being invited to draw the inference that that is what happened or, at least, that is what may have happened', and is followed by the words 'whether or not she had such a motive'. It is in that context that the word 'doubt' was said. In that context, it is sufficiently clear that what was being referred to was a reasonable possibility that the complainant had a motive to lie.
• [56] On that basis, the two references to 'reasonable doubt' in the summing up extracted in paragraph [43] above are properly understood as references to the reasonable possibility that the complainant had the motive to lie, and the reasonable possibility that she acted upon it.
• [57] The applicant also argued that the trial Judge did not direct the jury that, if they did not accept that the complainant had, or there was a reasonable possibility that she had, the motive to lie, that does not mean that they would accept her evidence and find the accused guilty. Reliance was placed on the observations of Latham J in Doe v The Queen [2008] NSWCCA 203; (2008) 187 A Crim R 328 (at [58]) that where the defence case directly asserts a motive to lie, and the issue has featured in the addresses of counsel, a miscarriage of justice may arise if the summing up gives undue emphasis to the issue of motive or goes beyond the asserted motive and poses the question at large, and the summing up does not contain full, firm and clear directions on the onus of proof, including a direction that the accused bears no onus to prove a motive to lie and that rejection of the motive does not justify a conclusion that the evidence of the witness is truthful.
• [58] True it is that the trial Judge's summing up did not include an express direction that rejection of the motive to lie does not justify a conclusion that the evidence of the complainant was truthful. However, when addressing the jury about evaluating evidence, the trial Judge explained the purpose of cross-examination, which was to test a witness's evidence to see if the witness is truthful or accurate or both. His Honour went on:[40]

So, you need to consider the performance particularly of [the complainant] whilst under cross-examination by counsel for the accused.

Did you consider that her approach to the answers, to giving answers to the questions put to her in cross-examination was to do her best to tell you what she understood to be the truth or not? Was she giving direct answers to the questions that were being put to her or do you think she was trying to be evasive? Do you think she made appropriate concessions when she was being cross-examined? And if she did does that assist you to draw a conclusion about her honesty? Did she make or offer to make explanations about things when none was sought? So, that's another matter which might suggest a witness is being more than just a witness.

I'm going to come to motive a little later on but the question of whether there is a motive to tell the truth is also a matter that you will need to consider.

Another matter is was the witness's credit put in issue, particularly by reference to her prior statement which is shown to be inconsistent with what she has given to you in evidence? [The complainant was one of only two witnesses, and the only female witness, taken to a prior statement in cross-examination.] ...

• [59] Given these clear references to the need for and manner of the jury's assessment of the complainant's evidence, with the motive to lie being only one of the relevant matters going to her credibility (which both the applicant's trial counsel and the prosecutor also made clear in their closing addresses), the failure to expressly direct the jury that rejection of the motive to lie does not justify a conclusion that the evidence of the complainant was truthful is of no moment. That direction was unnecessary because it was plain that, aside from the motive to lie, it was necessary for the jury to be satisfied of the reliability of the complainant's evidence before they could convict the applicant of the charges.
• [60] Consequently, we are not satisfied that, in relation to the issue of the complainant's motive to lie, the trial Judge made a wrong decision on a question of law within the second limb of s 411(1) of the Criminal Code.
• [61] That is sufficient to dispose of this proposed ground of appeal.

• [62] Given the above conclusion, it is strictly unnecessary to consider this issue. However, we will do so briefly.
• [63] For the same reasons that the impugned direction about the motive to lie was said to be a wrong decision on a question of law, the applicant argued that it was fundamental in the sense referred to in the authorities cited in Brawn. In particular, it was said to reverse the onus of proof or diminish the standard of proof.
• [64] For the same reasons as set out above to conclude that the impugned direction about the motive to lie was not a wrong decision on a question of law, we reject that argument. In the context of a lengthy and comprehensive summing up, and the addresses of both counsel, in which it was repeated many times that it was for the Crown to prove the elements of the offences, that the applicant did not have to prove anything, and that the jury would have to be satisfied of the reliability of the complainant's evidence before they could convict, the burden of proof was not, by the trial Judge's summing up, reversed or diminished.
• [65] Even if we were satisfied that the impugned direction was a wrong decision on a question of law, we do not accept that it was material. That is, we do not accept that it could realistically have affected the reasoning of the jury to the verdict of guilty in the trial that was had, taking into account the summing up as a whole, and the addresses of both counsel. We do not accept that the jury could have reasoned to acceptance of the complainant as a credible witness, even in part, on the basis that there was no proven motive to lie. Nor do we accept that the four references to 'beyond reasonable doubt' in relation to the motive to lie could have led the jury to reason this way. We find that to be so notwithstanding the low bar for the test of materiality.

• [66] It follows that proposed Ground 1 would fail.

The trial Judge's directions about relationship evidence

• [67] At the trial, the Crown relied on evidence concerning the relationship between the applicant and the complainant and the conduct of the applicant towards the complainant in that relationship.[41] In particular, the Crown relied on this evidence to establish that the complainant felt that she had to acquiesce to whatever the accused wanted her to do, no matter how much she did not want to do it.
• [68] Evidence of this nature, commonly referred to as 'context' or 'relationship' evidence, may be admissible for purposes other than tendency reasoning, including the following:[42]

(a) as affecting the plausibility of other evidence or to assess the credibility and coherence of the complainant's evidence;

(b) as essential background against which the evidence of the complainant and the accused necessarily falls to be evaluated, to show the continuing nature of the conduct and to explain the offences charged;

(c) to overcome a false impression that the event was an isolated one, that the offence happened 'out of the blue', particularly where the acts are closely and inextricably mixed up with the history of the offence;[43]

(d) to ensure that the jury are not required to decide issues in a vacuum; and

(e) as negativing issues raised such as accident or mistake.

• [69] Such purposes also include to explain acquiescence to sexual abuse, which may otherwise be confused with consent on the part of the complainant and belief on the part of the accused that the complainant was consenting, if evidence of the full history of violence and coercion is not placed before the jury.[44]
• [70] During the complainant's evidence in chief, the trial Judge directed the jury about the use to which they could put the relationship evidence.[45] His Honour told the jury they must consider each count separately and be satisfied beyond reasonable doubt that the Crown had proven each one of them. His Honour then told the jury that evidence about the relationship was admitted only for a very limited purpose and could only be used for that purpose and for no other purpose. The purpose of the evidence was to enable the jury to make findings about certain matters to assist them as to whether they were satisfied, for example, that the complainant did not consent to the sexual intercourse with the accused the subject of the charges; to assist the jury as to whether they accepted the truthfulness and accuracy of the account which the complainant had given in relation to the alleged offences, whether or not she consented to any of the charged acts and whether or not the accused knew she was not consenting or was reckless about that. His Honour told the jury they should ask themselves what kind of relationship it was, an ordinary one or one of enmity and distrust or something else. His Honour said that, if the relationship evidence satisfies them that the relationship was one of enmity and distrust, that would be evidence from which they might infer that the complainant was not consenting and the accused must have known that. His Honour went on:[46]

Whichever view you take of the relationship evidence, that evidence, by itself, doesn't prove anything. It is a circumstance which, taken with the other circumstances in the case, you are entitled to consider in deciding whether or not the Crown has proven the elements of the offence.

... So, you cannot leap to the conclusion that the existence of harm in the relationship - or the existence of a bad relationship, proves the accused's guilt. It is only a piece of circumstantial evidence, although you may consider it an important piece of evidence.

Now, you may think that this evidence shows other things; for example, that the accused is a person with a propensity to violence against the victim, or that he is a person of bad character or things of that kind. You are not to use the relationship evidence for these purposes because, to do so would be very prejudicial and that evidence is not probative of any fact in issue, and I direct that you must not take it into account in that manner.

• [71] His Honour reiterated that the evidence was admitted only for one purpose and therefore the only use the jury could make of it was to take it into account in the way he had described. His Honour went on:[47]

You will also remember that there is an allegation about the first time a rifle was used. Well, that's not the subject of a charge, nor could it be because, even if that did happen, it happened in Queensland and this court has no jurisdiction over offences that are committed in other states. But you may think that that shows that an offence occurred. You would need to be satisfied, before you use that evidence that it, in fact, did occur. Then, you would only use it for one purpose and that is to satisfy yourself as to whether or not you accept the complainant's evidence about the fact that the weapon was used against her in relation to one of the charges on the indictment because, otherwise, you might think that this sounds unlikely that he would take a weapon and put shells in it and threaten her with it.

But, if you know that he's done it before, that may assist you to accept her evidence that it happened on the occasion of which it is complained in the indictment. Again, it is only a piece of circumstantial evidence and you must not jump to the conclusion that, just because it happened that time, it must have happened this time. It is just something that you can take into account as a piece of circumstantial evidence to decide whether to accept her evidence or not. Basically, it is, again, a matter of credit.

• [72] In his summing up, the trial Judge again referred to the relationship evidence and said it did not seem to be in dispute that the accused was, from time to time, violent, that he exercised a significant degree of control over the complainant and treated her badly.[48] Again, the trial Judge told the jury that the purpose of the evidence was to give the charges they were dealing with a context in which to consider them, so the jury could look at the entirety of the relationship and ask themselves whether the allegations fit in with that evidence, because otherwise they might think that the allegations just came out of the blue with no particular reason for them.[49] His Honour explained that the relationship evidence was relevant to the issue of consent and how it was relevant, that it was relevant to the issue of the applicant's knowledge about the complainant's consent and how it was relevant, that it was relevant to the complainant's delay in making any complaint, and it was relevant to the complainant's credibility generally. His Honour went on:[50]

... But what you can't do is, you can't reason that simply because the defendant treated her very badly from time to time throughout the relationship, used force on her from time to time throughout the relationship and assaulted her in the matters which have been proven and which are not in dispute that he therefore committed the alleged rapes.

Because you cannot reason in that fashion. You cannot reason that, simply because he treated her very badly, that he necessarily raped her or necessarily must have raped her, because that would not follow as a matter of logic. You cannot even reason that there was sexual intercourse on the occasions between them, whether consensual or not, that are the subject of the alleged rapes, simply because he was a man who was domineering and the like.

But what you can reason, if you find that accept the evidence of [the complainant] that there was these attacks upon her, that you can use the relationship evidence to decide whether you accept that. And to decide whether the Crown has proven that she did not consent to what was happening to her. And to decide whether or not the accused knew that she was not consenting or, at least, indifferent or reckless about whether she was consenting or not.

But be very careful. You cannot just say, look, this is a bad man, he must have been guilty of these rapes. You cannot reason like that because even if he was a bad man, it doesn't mean to say that he necessarily carried out a sexual assault upon her. There are lots of people who are bad people. There are lots of people that commit domestic violence acts against their partners. It does not mean to say that they go on and sexually assault them.

• [73] The applicant identified the wrong decision on a question of law, the mis-directions, as the underlined parts of the two passages set out above. The complaints were three-fold with an additional complaint that the directions did not go far enough. They will be addressed in turn.
• [74] Before doing so, it is necessary to address a submission put by the applicant that the highly prejudicial nature of relationship evidence meant that 'scrupulous care' needed to be taken to ensure the jury were properly directed as to the use that could be made of the evidence. Two authorities were cited for this proposition.
• [75] The first was MM v The Queen [2000] NSWCCA 78; (2000) 112 A Crim R 519 at [49]. In that case, the prosecutor had relied on relationship evidence for two purposes, namely as context evidence and as tendency evidence (see [48]). Hulme J held (at [49]) that, in those circumstances, it was incumbent on the trial Judge 'to identify with some care' the evidence relied on as establishing the relationship and to direct the jury that, unless the incidents the subject of that evidence were proved beyond reasonable doubt, they could use the evidence for no purpose other than to establish the relationship, and could not use it as tendency evidence. No mention is made in this paragraph of the prejudicial nature of relationship evidence, the words used were 'some care' not 'scrupulous care' and the care was as to identifying the relationship evidence. This authority does not support the proposition for which it is cited.
• [76] The second case cited was MM v The Queen [2012] ACTCA 44; (2012) 232 A Crim R 303 at [45]. In that passage, Burns J observed that the purpose for which relationship evidence is tendered is determined objectively by considering the process of reasoning that the jury will be asked by the Crown to apply in using the evidence. If the process is, in truth, a process involving proof of a tendency, then the evidence is tendency evidence and subject to the relevant statutory provisions. If the process of reasoning that the jury is asked to apply does not involve tendency reasoning, and the context is relevant, and if the evidence is not excluded under ss 135 or 137 of the equivalent to the Evidence (National Uniform Legislation) Act 2011 (NT), it should be admitted as context evidence. Where such evidence is admitted, the jury should be 'carefully directed' as to the confined use that may be made of the evidence, and that a process of tendency reasoning is impermissible. No direct mention is made of the prejudicial nature of such evidence and the degree of care in directing the jury is not qualified by the word 'scrupulous' or any other descriptor. Again, this authority does not support the proposition for which it is cited.
• [77] The first complaint made by the applicant was that the underlined words in the direction set out in paragraph [71] above encouraged tendency reasoning. We do not accept that submission. The impugned passage does not tell or suggest to the jury that, if they find that the applicant pointed a firearm at the complainant on a previous occasion, they may be satisfied that he is a person with a tendency to engage in that kind of conduct, and if so, that tendency may make it more likely that he committed the charged offence of threatening the complainant with a firearm. Rather, as is entirely consistent with the purpose for which it was led, the jury were told that, if they find that the applicant pointed a firearm at the complainant on a previous occasion, that may assist them to accept her evidence that it happened on the occasion for which the applicant was charged. The applicant accepted that this was correct, but complained that this direction did not tell the jury why this would be so. It was correct, of course, because the evidence may assist to overcome a false impression that the event was an isolated one, or that the offence happened 'out of the blue', thereby affecting the plausibility or coherence of the complainant's evidence and thus, her credibility. The impugned direction did not encourage tendency reasoning because: (a) there is no reference to, or suggestion of, any tendency on the part of the applicant to be established or used; (b) it is immediately preceded by the trial Judge telling the jury they can use it in assessing the complainant's evidence because 'otherwise you might think that [her evidence about the charged offence with the firearm] sounds unlikely'; and (c) it was immediately followed by the instruction that the jury must not reason that, just because it happened that time, it must have happened this time. Further, the preceding paragraph telling the jury they can use the firearm evidence in assessing the complainant's evidence because 'otherwise you might think that [her evidence about the charged offence with the firearm] sounds unlikely' answers the submission that the trial Judge did not inform the jury why they could use the evidence in this way. So too does that part of the summing up in which the trial Judge told the jury that they could use the relationship evidence to place the charged conduct in context because otherwise they might think the allegations just came out of[51]he blue.51
• [78] For the same reasons, we reject the applicant's second complaint, namely that the underlined words in the direction set out in paragraph [71] above told the jury that the relationship evidence about the firearm made the complainant's account more reliable than it would be without that evidence. As was observed by Latham J in Qualtieri v The Queen [2006] NSWCCA 95; (2006) 171 A Crim R 463 at [119], context evidence can bolster the credibility of the complainant in that her version of the incident the subject of the charge may be more capable of belief when seen in the context of what the complainant says was her relationship with the accused, and it may explain why the accused and the complainant acted as they did in circumstances where without the context of the relationship those acts might be inexplicable. Latham J added that, other than assisting the complainant's credibility in that way, context evidence does not make the complainant's account more reliable than it would be in the absence of that evidence, or make it more likely that the accused committed the charged offences. The impugned sentence to the effect that 'it is a matter of credit', when read with the trial Judge's references to the prior firearm conduct being only a piece of circumstantial evidence, is entirely consistent with the way relationship evidence can bolster a complainant's evidence, and in no way directed the jury that it made her account more reliable or made it more likely that the accused committed the charged offences.
• [79] The third complaint made by the applicant was that the direction in the last two paragraphs set out in paragraph [70] above did not go far enough because it only told the jury that they could not use the relationship evidence to find that the applicant was a person of bad character or a person with a propensity to violence against the complainant. As we understood it, the submission was that this direction only told the jury that they could not engage in the first stage of tendency reasoning (whether the accused has a tendency) and did not instruct the jury that they could not engage in the second stage of tendency reasoning (the tendency makes the offending more likely). No authority was cited for the proposition that a direction which only instructed the jury not to engage in the first stage of tendency reasoning was contrary to law. In any event, the submission cannot be accepted. If the second stage of tendency reasoning can only be reached after having engaged in the first stage and the jury has been told not to engage in the first stage, an instruction not to engage in the second stage is unnecessary because, if the jury follows the direction not to engage in the first stage of tendency reasoning, they will not arrive at the second stage and will have no opportunity to engage in it.
• [80] The final complaint made by the applicant is that the underlined words in the passage of the summing up set out in paragraph [72] above meant the direction not to engage in tendency reasoning did not adequately address the risk that the jury would so engage and actually invited it.
• [81] Reliance was placed upon Salgado v The Queen [2022] NSWCCA 58. In that case, the appellant appealed against his convictions for three counts of supplying large commercial quantities of drugs. He had been charged with three other counts, to which he pleaded guilty, of supplying much smaller quantities of drugs and dealing with the proceeds of crime. The Crown case was that the appellant was a drug dealer involved in dealing large commercial quantities of drugs. The Defence case was that he was a drug user and small-time dealer but not involved in the supply of large quantities. After an application to sever the indictment and deal separately with the counts concerning large commercial drug supply was refused, the appellant was arraigned on all six counts before the jury panel and entered his guilty pleas to the three lesser charges. The evidence relating to the lesser charges was admitted, not as tendency evidence, but as context and relationship evidence (being a relationship between the appellant and the co-offender). In the trial Judge's summing up (set out at [68]), reference was made to the fact that the accused had pleaded guilty to three counts on the indictment, that the prosecution relied on the appellant's admission by his plea to supplying small quantities of drugs and having a sum of cash in his house, and the trial Judge then said:

It is very important that you understand that you must not reason that, because the accused has admitted his guilt in respect of [the three counts], then he must automatically be guilty of the remaining counts on the Indictment. You can only use the fact that the accused pleaded guilty to those other counts as part of the Crown's circumstantial case, if you are of the view that it does support the Crown's circumstantial case.

... But I repeat, what you must not do is reason that, because the accused pleaded guilty to [the three counts], then he must automatically be guilty of the counts that you have to decide. You must not reason that, because the accused has pleaded guilty to [the three counts], he must be a person who commits offences and commits drug related offences and must therefore automatically be guilty of the other counts. The accused has pleaded not guilty to those counts and it is your role ... to decide whether the Crown has proved beyond reasonable doubt that he is guilty, based on the evidence that has been presented.

• [82] Hamill J (with whom Brereton JA and Campbell J agreed) held (at [77]) that the direction did not constitute an adequate anti-tendency direction 'in the complex circumstances of the case' because the directions failed to identify the use that could properly be made of the evidence concerning the offences to which the accused pleaded guilty, and there was no direction to the effect that the jury could not reason that, if the appellant committed the other offences (to which he pleaded guilty) therefore he must have been the kind of person who commits offences, and therefore he must have committed the charged offences. Hamill J held (at [78]) that a direction does not guard adequately against impermissible tendency reasoning merely by instructing a jury not to conclude 'automatically' that the accused is guilty by virtue of the fact that they have admitted committing a similar type of offence on another occasion. The use of the word 'automatically' had the capacity to undermine the purpose of the direction because it allowed the jury to use the evidence in an impermissible way provided it did not 'automatically' conclude the appellant was guilty. The directions were also inadequate (at [79]-[80]) because they did not address the use, in any way, of the evidence relating to one count (if satisfied of guilt) in relation to the other two counts. Brereton JA agreed with Hamill J's reasons (at [1]), adding that the use of the evidence for the purpose for which it was admitted 'so closely approached an invitation to tendency reasoning that, at the least, a stringent anti-tendency direction was required', which the direction given did not meet and it 'practically invited' tendency reasoning so long as it was not 'automatic'. Campbell J also agreed with Hamill J's reasons (at [6]), adding that the use of the adverb 'automatically' undercut the meaning the direction was intended to convey to the jury because it implied that the jury could employ tendency reasoning as a result of 'mature consideration'. The appellant's appeal against conviction was upheld and the convictions were quashed.
• [83] We do not accept that the observations in Salgado about the adequacy of the directions given by the trial Judge in that case have some broader operation as a principle of law to context evidence generally or relationship evidence in particular. It was a case confined to its facts, which the appeal court described as 'complex circumstances' involving context evidence relied on for a purpose which so closely approached an invitation to tendency reasoning as to require a stringent anti-tendency direction. The direction given failed to identify the use which could be made of the context evidence, which is a fundamental aspect of the anti-tendency reasoning direction. It was in that context that the use of the word 'automatically' was found to invite tendency reasoning.
• [84] To conclude otherwise would be inconsistent with a long line of authority stemming from The Queen v Beserick (1993) 30 NSWLR 510 in which Hunt CJ at CL (Finlay and Levine JJ agreeing) held (at 516) that, where relationship evidence is admitted, an explanation should be given to the jury as to the purpose for which the evidence is admitted, together with a warning that they must not (relevantly for this case) reason that, because the accused may have done something wrong to the complainant on some other occasion or occasions, he 'must' also have done so on the occasion the subject of the charged offence. That passage has been cited with approval by the High Court and multiple intermediate appellate courts as authority for the directions to be given concerning relationship evidence.[52]
• [85] The trial Judge's anti-tendency directions were orthodox and we do not accept that the use of words such as 'must' and 'necessarily' were wrong in law.
• [86] That is sufficient to dispose of this proposed ground of appeal.

• [87] Given the above conclusion, it is strictly unnecessary to consider this issue. However, we will do so briefly.
• [88] Correctly, the applicant did not contend that the complaints made in proposed Ground 2 were fundamental errors. The applicant argued, however, that they were material errors.
• [89] Even if we were satisfied that the impugned directions were a wrong decision on a question of law, we do not accept that it was material. That is, we do not accept that it could realistically have affected the reasoning of the jury to the verdict of guilty in the trial that was had, taking into account the summing up as a whole, and the addresses of both counsel. We do not accept that the jury could have engaged in impermissible tendency reasoning. We find that to be so notwithstanding the low bar for the test of materiality.

• [90] It follows that proposed Ground 2 would fail.

• [91] None of the applicant's numerous complaints about the trial Judge's directions and summing up to the jury have been made out. This application for leave to appeal, commenced more than three years after the applicant's conviction and heard more than four and a half years after that conviction, truly fits the description of an 'armchair appeal'. That is, an appeal in which counsel not involved in the trial appears to have gone through the record of the trial in minute detail looking for error or possible arguments, without reference to the manner in which the trial was conducted.[53] The complaints made were overscrupulous and pernickety, being focussed on a few words or a sentence or two appearing in a lengthy and comprehensive summing up in a complex trial involving 17 charges.
• [92] We make the following order:
  1. The application for an extension of time to file an application for leave to appeal and the application for leave to appeal are refused.

[2] The principles set out in the reasons of Gleeson, Jagot and Beech-Jones JJ at [96]-[110] were adopted by Gageler CJ at [3], Gordon and Steward JJ at [9] and Edelman J at [44].

[3] The principles set out in the reasons of the Court at [8]-[16].

[11] MDP at [105]-[106], referring to Brawn at [9], which in turn cited Wilde v The Queen [1988] HCA 6; (1988) 164 CLR 365 at 373; Katsuno v The Queen [1999] HCA 50; (1999) 199 CLR 40 at [35]; Weiss v The Queen [2005] HCA 81; (2005) 224 CLR 300at [46]; Hofer v The Queen [2021] HCA 36; (2021) 274 CLR 351 at [123]; Hoang v The Queen [2022] HCA 14; (2022) 276 CLR 252 at [42]; Huxley v The Queen [2023] HCA 40; (2023) 98 ALJR 62 at [44].

[17] MDP at [109], citing Doggett v The Queen (2001) 208 CLR 343 at [2]; Huynh v The Queen (2013) 87 ALJR 434 at [31].

[23] Brawn at [15], citing Hamilton (a pseudonym) v The Queen [2021] HCA 33; (2021) 274 CLR 531 at [49], [54] and the cases there cited; TKWJ v The Queen [2002] HCA 46; (2002) 212 CLR 124 at [24]- [25], [28]; Orreal v The Queen [2021] HCA 44; (2021) 274 CLR 630 at [14]- [18].

[24] King v The Queen [2012] HCA 24; (2012) 245 CLR 588 at [55]. See also Hamilton (a pseudonym) v The Queen [2021] HCA 33; (2021) 274 CLR 531 at [54]- [55].

[32] At [6], citing The Queen v Uhrig (unreported, NSWCCA, 24 October 1996, Hunt CJ at CL); at [8], citing F (1995) 83 A Crim R 502 at 511-512, The Queen v G [1993] QCA 267; [1994] 1 Qd R 540 at 545-546 per Pincus JA, The Queen v E (1996) 39 NSWLR 450 at 464 per Sperling J and The Queen v Uhrig (unreported, NSWCCA, 24 October 1996, Hunt CJ at CL); at [10], citing The Queen v Uhrig (unreported, NSWCCA, 24 October 1996, Hunt CJ at CL).

[33] Doe v The Queen [2008] NSWCCA 203; (2008) 187 A Crim R 328 at [21] per Latham J (Spigelman CJ and Hidden J agreeing).

[34] See, for example, South v The Queen [2007] NSWCCA 117 at [41]- [44] per Hunt AJA (Simpson and Whealy JJ agreeing); Doe v The Queen [2008] NSWCCA 203; (2008) 187 A Crim R 328 at [58]- [59] per Latham J (Spigelman CJ and Hidden J agreeing).

[41] This was made clear in the prosecutor's opening address: AB 58.

[42] Cooper v The King [2022] NTCCA 16 at [8], citing HML v The Queen [2008] HCA 16; (2008) 235 CLR 334 at [6], [155]-[156], [425], [428], [430], [431], [498], [500], [513].

[43] See also RG v The Queen [2010] NSWCCA 173 at [38] per Simpson J (Campbell JA and Whealy J agreeing); KTR v The Queen [2010] NSWCCA 271 at [90] per McClellan CJ at CL (Simpson and Fullerton JJ agreeing).

[44] HML v The Queen [2008] HCA 16; (2008) 235 CLR 334 at [315] per Heydon J, and at [515] per Kiefel J.

[52] See Hamilton (a pseudonym) v The Queen [2021] HCA 33; (2021) 274 CLR 531 at [70] per Edelman and Gleeson JJ; EK v The Queen [2010] NSWCCA 199; (2010) 79 NSWLR 740 at [59]- [60] per RA Hulme J (McClellan CJ at CL and Simpson J agreeing); Pattison v Tasmania [2017] TASSC 13; (2017) 30 Tas R 1 at [90] per Wood J (Pearce and Brett JJ agreeing); The Queen v Maiolo (No 2) (2013) 117 SASR 1 at [81] per Peek J (Kourakis CJ and Stanley J agreeing); WFS v The Queen [2011] VSCA 347; (2011) 33 VR 406 at [45] per Robson AJA (Buchanan JA and Whelan AJA agreeing); Munmurrie v Western Australia [2007] WASCA 184 at [107] per Miller JA (Pullin and Buss JJA agreeing).

[53] The Queen v Fuge [2001] NSWCCA 208 at [40] per Wood CJ; Ilioski v The Queen [2006] NSWCCA 164 at [155] per Hunt AJA; Darwiche v The Queen [2011] NSWCCA 62 at [170] per Johnson J.