Jurisdiction : DISTRICT COURT OF WESTERN AUSTRALIA

Criminal law and procedure - Comments by prosecutor as to credibility of defence case - Improper comments by prosecutor in closing submissions as to appellant's exercise of his right to silence - Whether a misdirection as to appellant's right of silence - Whether miscarriage of justice arose out of evidence given in re­examination of a witness - Whether a 'fundamental' departure from the essential requirements of a fair trial - Whether proviso capable of application - Whether a substantial miscarriage of justice

Criminal Appeals Act 2004 (WA), s 30(3), s 30(4)

1 BUSS JA: The appellant appeals, with leave, against his conviction, after a trial in the District Court before Wisbey DCJ and a jury, on two counts of possession of prohibited drugs, with intent to sell or supply the drugs to another, contrary to s 6(1)(a) of the Misuse of Drugs Act 1981 (WA).

2 Most of the relevant facts and the grounds of appeal are set out in the reasons of Miller JA. I agree with his Honour, generally for the reasons he gives, that ground 1 of the appeal has been made out and ground 2 fails.

3 There are, relevantly, two aspects to the decision of the High Court in Petty v The Queen [1991] HCA 34; (1991) 173 CLR 95. First, it must not be suggested that an accused's exercise of the right to silence provides a basis for inferring a consciousness of guilt. Secondly, it must not be suggested that previous silence by an accused about a defence he or she raises at the trial provides a basis for inferring that the defence is a recent fabrication or is otherwise suspect or unacceptable. The notion of 'previous silence' refers to silence by the accused in response to questioning or requests for information by any person in authority. See Petty, (99) (Mason CJ, Deane, Toohey and McHugh JJ), (106 - 107) (Brennan J), (129) (Gaudron J). Also see Harman v The State of Western Australia [2004] WASCA 230 [51] - [62] (Steytler J).

4 Ground 1 has been established in that the learned trial judge erred in law by failing at any time, either before his summing up to the jury or in the course of that summing up:

(a) to refer to the improper comments made by the prosecutor during his closing address as to the appellant's exercise of his right to silence while he was being questioned by investigating police;

(b) to direct the jury that the prosecutor should not have invited the jury to draw an adverse inference against the appellant as a result of his having invoked his right to silence; and

(c) to direct the jury that the appellant was entitled to refuse to answer the questions of the police, that no adverse inference could be drawn against the appellant by reason of his exercise of that fundamental right, and that the prosecutor's improper comments should be disregarded.

5 The learned trial judge gave general or non-specific directions to the jury, in the course of his summing up, that the appellant was entitled to 'remain silent to any questions the police put to him' and that the jury could not draw an adverse inference against the appellant by reason of his exercise of that right. Those generic instructions, made without reference to the prosecutor's comments, were not sufficient, in the particular circumstances of the case, to redress the prejudice caused by the prosecutor.

6 The critical issue in the appeal is whether the 'proviso' in s 30(4) of the Criminal Appeals Act 2004 (WA) is capable of application and, if so, whether it should be applied.

Section 30(3) and (4) of the Criminal Appeals Act

7 Section 30(3) of the Criminal Appeals Act provides that this court must allow an appeal against conviction by an offender if, in its opinion:

(a) the verdict of guilty on which the conviction is based should be set aside because, having regard to the evidence, it is unreasonable or cannot be supported;

(b) the conviction should be aside because of a wrong decision on a question of law by the judge; or

By s 30(4), despite s 30(3), even if a ground of appeal might be decided in favour of the offender, this court may dismiss the appeal if it considers that no substantial miscarriage of justice has occurred.

8 In Weiss v The Queen [2005] HCA 81; (2005) 224 CLR 300, the trial judge had erred in permitting the prosecution to adduce inadmissible evidence. The accused was convicted. The Court of Appeal of Victoria held that the trial judge had made an error of law, but applied the proviso and dismissed the appeal. The High Court reversed the Court of Appeal. Gleeson CJ, Gummow, Kirby, Hayne, Callinan and Heydon JJ enunciated three fundamental propositions in relation to the proviso to s 568(1) of the Crimes Act 1958 (Vic) (a provision indistinguishable, in substance, from s 30(4) of the Criminal Appeals Act) which, their Honours said, must not be obscured:

First, the appellate court must itself decide whether a substantial miscarriage of justice has actually occurred. Second, the task of the appellate court is an objective task not materially different from other appellate tasks. It is to be performed with whatever are the advantages and disadvantages of deciding an appeal on the record of the trial; it is not an exercise in speculation or prediction. Third, the standard of proof of criminal guilt is beyond reasonable doubt [39].

Later, their Honours summarised the statutory task which must be performed by an appellate court in deciding whether to dismiss an appeal against conviction on the ground that no substantial miscarriage of justice has occurred:

That task is to be undertaken in the same way an appellate court decides whether the verdict of the jury should be set aside on the ground that it is unreasonable, or cannot be supported having regard to the evidence. The appellate court must make its own independent assessment of the evidence (Driscoll v The Queen [1977] HCA 43; (1977) 137 CLR 517 at 524 - 525 per Barwick CJ; Storey [1978] HCA 39; (1978) 140 CLR 364 at 376 per Barwick CJ. Morris v The Queen [1987] HCA 50; (1987) 163 CLR 454; M v The Queen [1994] HCA 63; (1994) 181 CLR 487; Festa [2001] HCA 72; (2001) 208 CLR 593 at 631 - 633 [121] - [123] per McHugh J) and determine whether, making due allowance for the 'natural limitations' that exist in the case of an appellate court proceeding wholly or substantially on the record (Fox v Percy [2003] HCA 22; (2003) 214 CLR 118 at 125 - 126 [23] per Gleeson CJ, Gummow and Kirby JJ), the accused was proved beyond reasonable doubt to be guilty of the offence on which the jury returned its verdict of guilty. There will be cases, perhaps many cases, where those natural limitations require the appellate court to conclude that it cannot reach the necessary degree of satisfaction. In such a case the proviso would not apply, and apart from some exceptional cases, where a verdict of acquittal might be entered, it would be necessary to order a new trial. But recognising that there will be cases where the proviso does not apply does not exonerate the appellate court from examining the record for itself [41].

9 In Weiss, it was emphasised that it was necessary, in determining whether to apply the proviso or not, to proceed on the basis of the statutory language rather than secondary sources or materials [31] - [33]. The court also emphasised that it is not correct or of assistance to endeavour to articulate absolute rules or singular tests which are to be applied where an appellate court examines the trial record for itself, beyond the three fundamental propositions I have recorded at [8] above. Gleeson CJ, Gummow, Kirby, Hayne, Callinan and Heydon JJ added:

(The appellate court must itself decide whether a substantial miscarriage of justice has actually occurred; the task is an objective task not materially different from other appellate tasks; the standard of proof is the criminal standard.) It is not right to attempt to formulate other rules or tests in so far as they distract attention from the statutory test. It is not useful to attempt that task because to do so would likely fail to take proper account of the very wide diversity of circumstances in which the proviso falls for consideration [42].

Their Honours acknowledged that no single universally applicable description of what constitutes 'no substantial miscarriage of justice' can be given. They said, however, that one negative proposition may safely be offered:

It cannot be said that no substantial miscarriage of justice has actually occurred unless the appellate court is persuaded that 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 [44].

Also see Darkan v The Queen [2006] HCA 34; (2006) 227 CLR 373 [84], [94] - [96] (Gleeson CJ, Gummow, Heydon and Crennan JJ).

10 In AK v Western Australia [2008] HCA 8; (2008) 232 CLR 438, Gummow and Hayne JJ referred to the passages in Weiss which I have set out at [9] above, and said that the negative proposition in those passages about when the proviso cannot be engaged must not be treated as if it states what suffices to show that no substantial miscarriage has occurred:

To treat the negative proposition in this way would be to commit the very same error which Weiss sought to correct, namely, taking judicial statements about aspects of the operation of statutory provisions as substitutes for the statutory language [53].

11 In Weiss, the High Court noted that there may be cases where it would be proper to allow an appeal and order a new trial, even though the appellate court is satisfied beyond reasonable doubt of the appellant's guilt. The High Court referred, by way of example, to two categories of case. The first included cases 'where there has been a significant denial of procedural unfairness [sic] at trial' [45]. The second included cases where the 'errors or miscarriages of justice occurring in the course of a criminal trial may amount to such a serious breach of the presuppositions of the trial as to deny the application of the common form criminal appeal provision with its proviso' [46].

12 In Weiss, their Honours referred to Wilde v The Queen [1988] HCA 6; (1988) 164 CLR 365, 373. Wilde was concerned with an appeal by an offender who had been convicted following a trial before a judge and jury. The Court of Criminal Appeal of New South Wales held that the trial judge had made a serious error of law in the trial in that evidence relating to one count against the appellant was not admissible in proof of some other counts against him, so that the first count should have been severed from the indictment and tried separately. Nevertheless, the Court of Criminal Appeal was of the opinion that the evidence in support of the counts upon which the appellant was convicted was so strong, and the defence so weak, that there had been no substantial miscarriage of justice. It dismissed the appeal. The appellant's appeal to the High Court also failed.

13 In Wilde, Brennan, Dawson and Toohey JJ held that the proviso was not intended to apply 'when the proceedings before the primary court have so far miscarried as hardly to be a trial at all'; also, that the proviso does not apply 'where an irregularity has occurred which is such a departure from the essential requirements of the law that it goes to the root of the proceedings' so that 'the accused has not had a proper trial and ... there has been a substantial miscarriage of justice' (373).

14 In AK, the High Court heard a criminal appeal from a judge sitting without a jury. The trial judge erred in law by failing to give adequate reasons for his decision to convict the appellant. The trial judge breached the requirement in s 120(2) of the Criminal Procedure Act 2004 (WA) that his reasons articulate the connection identified between the relevant legal principle in AK (proof beyond reasonable doubt) and the relevant findings of fact. The majority of the High Court (Gummow, Hayne and Heydon JJ) held that the trial judge's complete failure to meet the mandatory requirements of s 120(2) of the Criminal Procedure Act with respect to the central issue in the appellant's trial constituted a substantial miscarriage of justice. In particular, it was a substantial miscarriage because the Act required that the appellant's trial produce a reasoned decision that met the criteria specified in the statute. Gummow and Hayne JJ said:

When there has been a trial by jury, and an appellate court concludes that the trial judge made a wrong decision on a question of law or that there was some other miscarriage of justice, deciding whether there has been no substantial miscarriage of justice necessarily invites attention to whether the jury's verdict might have been different if the identified error had not occurred. That is why, if the appellate court is not persuaded beyond reasonable doubt of the appellant's guilt it cannot be said that there was no substantial miscarriage of justice. But just as persuasion of the appellate court of the accused's guilt does not in every case conclude the inquiry about the proviso's application in appellate review of a jury trial, inquiring about the weight of the evidence led at a trial by judge alone does not determine whether there was a substantial miscarriage of justice. In a case, like the present, where the Criminal Procedure Act required that the trial yield a reasoned decision, but no reasons were given for the determination of the central issue tried, it cannot be said that there was no substantial miscarriage of justice [59].

15 In Gassy v The Queen [2008] HCA 18; (2008) 82 ALJR 838, Gummow and Hayne JJ said in relation to the observations in Wilde concerning a serious breach of the presuppositions of a criminal trial:

Identifying a priori some kinds of error as precluding application of the proviso presents difficulties of the same kind as are presented by using judicial statements about the application of the proviso as some substitute for the relevant statutory test. That is, it is neither possible nor useful to seek to apply the proviso according to a taxonomy of errors at trial which describes some as 'fundamental' and others as not. And what was said in Wilde v The Queen ((1988) [1988] HCA 6; 164 CLR 365 at 373 per Brennan, Dawson and Toohey JJ; [1988] HCA 6) about 'such a departure from the essential requirements of the law that it goes to the root of the proceedings' is not to be understood as prescribing or defining a class of cases to which the proviso cannot be applied. Rather, what was said in the passage quoted from Wilde is a description, in words other than the statutory words, of one kind of case in which an appellate court could not conclude that there had been no substantial miscarriage of justice. For the reasons given in Weiss, a negative proposition of this kind cannot be taken as a substitute for the statutory language.

Whether the error constituted by giving the impugned instructions is properly described as 'fundamental' or as an error going 'to the root of the proceedings' would depend upon the content that is given to the expressions used. The statutory question is whether the Full Court considers that 'no substantial miscarriage of justice has actually occurred' (Criminal Law Consolidation Act 1935 (SA), s 353(1)). In answering that question it is necessary to consider the nature of the error and in doing that it will be important to consider the possible effect that the error may have had on the outcome of the trial [33] - [34].

The appellant in Gassy was convicted of murder. The High Court, by a majority (Gummow, Hayne and Kirby JJ; Crennan and Kiefel JJ dissenting) quashed the conviction and ordered a new trial. The majority held that certain instructions given by the trial judge to the jury rendered the trial a miscarriage of justice. The impugned instructions were given after the jury had been deliberating on their verdict for some time. The relevant instructions involved her Honour suggesting an approach the jury might take in an attempt 'to move [their] discussions along' [23]. The instructions occasioned a miscarriage of justice because they were unbalanced; in particular, they contained no substantial reference to the competing arguments and considerations relevant to the appellant's case [31].

16 In AK, Gleeson CJ and Kiefel J accepted, as a matter of principle, that 'some errors are so fundamental or involve such a departure from the essential requirements of a fair trial that they exclude the operation of the proviso, irrespective of the strengths of the prosecution case, or the appellate court's view as to the guilt of the accused' and that 'the proviso cannot be applied where the error at trial denies or substantially frustrates the capacity of an appellate court to decide whether a conviction is just' [23]. In AK, Gummow and Hayne JJ held that, although the class is difficult to describe in the abstract, there exists a 'class of ... circumstances' in which 'radical' error at trial renders the application of the proviso all but impossible [54].

17 These observations in AK were referred to recently by Kirby J in CTM v The Queen [2008] HCA 25; (2008) 82 ALJR 978. His Honour said:

The failure on the part of the trial judge to explain to the jury the legal ingredients of an offence, and to assign correctly the burden and standard of proof in respect of them, seem to me to be 'radical' errors inconsistent with the requirements of the law. It cannot matter that the law in question is common law and not, as in AK (See [2008] HCA 8; (2008) 82 ALJR 534 at 545 [55]; [2008] HCA 8; 243 ALR 409 at 422 - 423; cf Gassy v The Queen [2008] HCA 18 at [33] - [34]), expressed in a statute. It is still the law [128].

It was also acknowledged in AK that one of the 'two principal safeguards for the accused in a criminal trial' is 'the criminal burden and standard of proof' ((2008) [2008] HCA 8; 82 ALJR 534 at 558 [102] per Heydon J; [2008] HCA 8; 243 ALR 409 at 440). If this is the case, then surely it must be a grave (or 'radical') error for the trial judge to misdirect the jury on each of these considerations, as occurred in the appellant's trial. If this Court is itself to deny relief to an otherwise successful appellant by its own application of the 'proviso', it must, in my respectful opinion, be consistent in doing so [129].

18 In Glennon v The Queen [1994] HCA 7; (1994) 179 CLR 1, the High Court considered whether the proviso to s 568(1) of the Crimes Act 1958 (Vic) was capable of application in the context of a misdirection by a trial judge on the right to silence. The appellant had been charged with numerous sexual offences involving several complainants. The appellant, in interviews with the police, refused to answer questions relating to three of the counts, including one which alleged indecent assault on Franco Palmieri. The trial judge, in his summing up, directed the jury that they were not to use the appellant's exercise of his right to silence in a manner adverse to him. He then qualified the direction by informing the jury that they might use the appellant's silence to test the veracity of his defence. The appellant was convicted on the three counts I have mentioned, and was found not guilty on two others. The Court of Criminal Appeal of Victoria held that the trial judge's direction was erroneous, but the court applied the proviso and decided there had been no miscarriage of justice, the convictions should stand, and the appeal should be dismissed. The High Court reversed the decision of the Court of Criminal Appeal.

19 In Glennon, Mason CJ, Brennan and Toohey JJ, in a joint judgment, referred to the approach of the majority in Wilde. Their Honours then held that, in the circumstances of the case before them, it could not be said that the trial judge's misdirection on the appellant's right to silence was 'so fundamental' that the trial was 'hardly a trial at all' (8). They added:

Although the right to silence is a fundamental right of any accused person, it cannot be said that any misdirection on that subject is a fundamental irregularity of the kind discussed in Wilde. In this case, the trial judge directed the jury that they were not to use the applicant's exercise of his right to silence in a manner adverse to him. This direction was perfectly proper. However, the trial judge then qualified the direction by informing the jury that they might use the applicant's silence to test the veracity of the applicant's defence. This subsequent direction was clearly erroneous. However, in the context in which it appeared and at a trial in which there was other evidence on which the applicant could be convicted and in which there was no other misdirection by the trial judge, the trial judge's misdirection was not a fundamental irregularity. We would reject the applicant's submissions in so far as they are based on this approach to the proviso (8).

20 Mason CJ, Brennan and Toohey JJ proceeded to consider the appellant's alternative argument, namely, that it could not be said that, in the absence of the misdirection, the jury would inevitably have convicted him. Their Honours held that, in relation to the charge of indecent assault on Palmieri, the appellant's credibility was of central importance to his defence, the trial judge's misdirection related directly to the appellant's credibility and veracity, and it was therefore not possible to say that, in the absence of the trial judge's erroneous direction on the appellant's silence, the jury would inevitably have reached the same verdict. Accordingly, the appellant had lost a chance which was fairly open to him of being acquitted, and his appeal should be allowed, his conviction in relation to the Palmieri allegations quashed, and a retrial ordered. On other counts, where there was independent evidence tending to cast doubt on the appellant's defence, the High Court refused special leave (5, 10).

21 In Glennon, Deane and Gaudron JJ, in a joint judgment, said there was nothing to give any significance to the trial judge's misdirection over and above that which ordinarily attaches to a misdirection as to the use or evaluation of properly admitted evidence. Their Honours concluded:

Accordingly, there is no basis for an argument that, overall, there was not a fair trial according to law and, thus, no scope for the operation of the proviso. The only question is whether, so far as the Palmieri count is concerned, the misdirection resulted in a substantial miscarriage of justice in the sense explained in Mraz (13).

Like Mason CJ, Brennan and Toohey JJ, their Honours decided that the trial judge's misdirection gave rise to a substantial miscarriage of justice in that a finding as to an element of the offence on the Palmieri count necessarily depended on the appellant's credibility.

22 In Jones v The Queen [2005] NSWCCA 443, the appellant was convicted, after a trial, of the malicious wounding of a woman with intent to do grievous bodily harm. The issues at the trial were the identity of the assailant and, if the appellant was the assailant, whether he intended to inflict grievous bodily harm. The appellant's wife, who refused to answer questions from the police in the course of their investigation, gave evidence that she, not the appellant, had committed the offence. The appellant also gave evidence to that effect. There was other evidence indicating that the appellant's wife had struck the victim, but that the appellant had also struck the victim with a car security lock and that the appellant's assault had caused the grievous bodily harm. The appellant's wife was not charged with an offence. The prosecutor cross-examined the appellant's wife to establish that she had not informed the police in the course of their investigation of her version of events and that she had not done so because her version was a recent invention. The trial judge, in his summing up, instructed the jury that they could balance the appellant's wife's refusal to answer questions from the police and her recent assertion that she had committed the offence against the warning which the police had given her in the course of their investigation that she did not have to say anything. The appellant appealed on the basis that the prejudicial effect of the prosecutor's cross-examination was exacerbated by the trial judge's summing up and, in consequence, the trial had miscarried. The Court of Criminal Appeal of New South Wales (McClellan CJ at CL, Simpson and Hoeben JJ agreeing) dismissed the appeal.

23 McClellan CJ at CL referred to the joint judgment of Mason CJ, Brennan and Toohey JJ in Glennon, and said:

In my opinion, the same approach can be taken to the question of whether or not a fundamental error has occurred in the present case. Although it cannot be doubted that Ms Innes [the appellant's wife] was an important witness in the defence case, her evidence fell to be assessed in light of the evidence of the Crown witnesses. The problems with her cross examination and the manner in which her evidence was treated were in part alleviated by his Honour's directions. His Honour reminded the jury that Ms Innes, in the same way as the accused, was entitled to remain silent. His Honour stressed that 'that is a factor which you would want to bear in mind.'

In these circumstances I am not satisfied that the errors which occurred at the trial are such that it can be concluded that there has been 'such a departure from the essential requirements of the law that it goes to the root of the proceedings' [100] - [101].

His Honour concluded that the conviction of the appellant was inevitable and, as a result, the appeal should be dismissed.

24 In Weiss, the High Court referred to a 'significant' denial of procedural fairness at trial as an example of a category of case where it would be proper to allow an appeal and order a new trial, even though the appellate court was satisfied beyond reasonable doubt of the appellant's guilt [45]. The word 'significant' and other formulations by the High Court (for example, a 'serious' breach of the presuppositions of a criminal trial: Weiss [46]; such a departure from the essential requirements of the law that it goes to 'the root' of the proceedings: Wilde, (373); errors which are 'so fundamental' or involved 'such a departure' from the essential requirements of a fair trial: AK [23]; 'radical' error at trial: AK [54]; a 'grave' error by the trial judge: CTM [129]), indicate that questions of degree are involved in determining whether, in the circumstances of a particular case, an appellate court considers that the nature of the error or miscarriage at trial precludes the court from being satisfied, in terms of the proviso, that no substantial miscarriage of justice has actually occurred, irrespective of the strength of the prosecution case or the appellate court's opinion as to the accused's guilt.

In the present case, is this court precluded from applying the proviso?

25 In the present case, I am of the opinion that the nature of the learned trial judge's error was not a 'serious' breach of the presuppositions of a criminal trial of the kind referred to in Weiss or a 'fundamental' departure from the essential requirements of a fair trial. The nature of the error does not preclude this court from being satisfied, in accordance with s 30(4) of the Criminal Appeals Act, that no substantial miscarriage of justice has actually occurred, irrespective of the strength of the respondent's case or this court's opinion as to the appellant's guilt.

26 As Mason CJ, Brennan and Toohey JJ noted in Glennon, although the right to silence is a fundamental right of any accused person, it cannot be said that any misdirection on that subject is a fundamental irregularity of the kind referred to in Wilde (8).

27 In the present case, the improper comments in relation to the appellant's exercise of his right to silence were made by the prosecutor in his closing address. Unlike Glennon, the comments were not made by the learned trial judge. His Honour's error was his failure to give specific directions to the jury as to the prosecutor's improper comments and direct the jury as to those comments in the manner I have described at [4] above. The prosecutor's comments were ameliorated, to some extent, by his Honour's generic instructions to the jury that the appellant was entitled to 'remain silent to any questions the police put to him' and that the jury could not draw an adverse inference against the appellant by reason of the exercise of that right. Also, there was a substantial body of evidence on which the appellant could be convicted and in respect of which there was no misdirection by the learned trial judge. In these circumstances, his Honour's error cannot properly be characterised as a 'serious' breach of the presuppositions of a criminal trial or a 'fundamental departure' from the essential requirements of a fair trial. I conclude, therefore, that this court may dismiss the appeal if it is satisfied that 'no substantial miscarriage of justice has actually occurred', within s 30(4) of the Criminal Appeals Act.

In the present case, should this court apply the proviso?

28 Direct evidence is evidence which, if accepted, tends to prove a fact in issue. Circumstantial evidence is evidence which, if accepted, tends to prove a fact from which the existence of a fact in issue may be inferred. See Festa v The Queen [2001] HCA 72; (2001) 208 CLR 593 [5] (Gleeson CJ).

29 In the present case, it is apparent, from my examination of the trial record, that the respondent's case against the appellant was based, in essence, on circumstantial evidence.

30 As Gleeson CJ and Kiefel J noted in AK, circumstantial evidence is sometimes spoken of as though it were inherently less compelling than direct evidence. Their Honours added:

Often, especially in identification cases, the truth is the opposite. Undisputed objective circumstances may be more reliable than direct testimony [27].

31 Where the prosecution relies upon circumstantial evidence, guilt should not only be a reasonable and rational inference, but should be the only reasonable and rational inference that could be drawn from the circumstances. See Plomp v The Queen [1963] HCA 44; (1963) 110 CLR 234, 243 (Dixon CJ); Shepherd v The Queen [1990] HCA 56; (1990) 170 CLR 573, 578 (Dawson J).

32 Circumstantial evidence must not, however, be considered on a piecemeal basis. It must be evaluated in its entirety. See R v Hillier [2007] HCA 13; (2007) 228 CLR 618, where Gummow, Hayne and Crennan JJ said:

The case against Mr Hillier was a circumstantial case. It has often been said that a jury cannot be satisfied beyond reasonable doubt on circumstantial evidence unless no other explanation than guilt is reasonably compatible with the circumstances (See, eg, Martin v Osborne [1936] HCA 23; (1936) 55 CLR 367 at 375; Plomp v The Queen [1963] HCA 44; (1963) 110 CLR 234 at 243 per Dixon CJ). It is of critical importance to recognise, however, that in considering a circumstantial case, all of the circumstances established by the evidence are to be considered and weighed in deciding whether there is an inference consistent with innocence reasonably open on the evidence (Shepherd v The Queen [1990] HCA 56; (1990) 170 CLR 573 at 579 per Dawson J) [46].

33 In my opinion, although the court will be unable to apply the proviso, in the present case, unless it rejects the appellant's evidence that the drugs in question were not in his possession (in particular, rejects the appellant's evidence as to the drugs having been manufactured and left by 'Colin' at the appellant's house without his consent), the court may reject his evidence by a process of weighing his account of events with or against (as the case may be) the objective circumstantial evidence and the evidence that was not genuinely in contest. If the combined weight of all the circumstantial evidence and the evidence that was not genuinely in contest is so compelling that it requires the rejection of the appellant's account, the court may properly reject his evidence, unless it is corroborated by other, apparently or arguably reliable, evidence. It is essential, however, that the appellant's guilt is the only reasonable and rational inference that could be drawn from the objective circumstantial evidence, etcetera, considered as a whole. Further, this court may accord some weight to the jury's verdict of guilty as an aspect of the trial record, in deciding whether, by the process I have described (that is, weighing his account of events with or against the objective circumstantial evidence, etcetera) to reject the appellant's account of events, if the court is satisfied that the learned trial judge's error of law could not reasonably have influenced the jury's verdict. See Weiss [43]. This court is not necessarily precluded from rejecting the appellant's evidence in material respects because it is unable to assess his demeanour in giving sworn evidence.

34 I am satisfied beyond reasonable doubt, upon my examination of the trial record, that the appellant was guilty of each of the counts in the indictment. The reasons for my satisfaction, to the requisite standard, are as follows.

35 First, the large bag of methylamphetamine contained 282 grams with a purity of 47%. The small bag of methylamphetamine contained 20.3 grams of the drug with a purity of 27%. Detective Sergeant Baddock of the Western Australian Police Service gave unchallenged expert evidence that the 282 grams of methylamphetamine with a purity of 47% could be sold in bulk for at least $50,000 (ts 50). If the purity of the drug was reduced by adding a cutting agent and sold in small quantities for 'street level usage', a total amount of about $564,000 could be realised (ts 50). Plainly, therefore, the drugs in question were manufactured and intended to be dealt with by a person engaged in the commercial manufacture or trafficking of illicit drugs on a significant scale.

36 Secondly, the quantity of the drugs the subject of the counts against the appellant exceeded the quantity specified in Sch V of the Misuse of Drugs Act in relation to each drug and, in consequence, the presumption of intent to sell or supply in s 11 of the Act applied if the respondent established, beyond reasonable doubt, that the drugs were in the appellant's possession.

37 Thirdly, when the police officers searched the appellant's home, they found paraphernalia which is associated with drug dealing. In particular, the police found:

(b) An additional $2,365 in cash in the appellant's wallet.

(c) A security system which comprised three cameras linked to a screen in the appellant's lounge room. Two of the cameras covered the front of his home and the other covered the back. The appellant could observe, from his lounge room, activity at the front and the back of his home.

(g) Methylamphetamine on the appellant's kitchen counter together with a silver spoon and one of the sets of scales, both of which contained traces of the drug.

(h) The other set of scales in a drawer in the appellant's kitchen, which also contained traces of methylamphetamine.

The police evidence as to what they found at the appellant's house was not challenged. Detective Sergeant Baddock gave unchallenged expert evidence to the effect that it is common for drug dealers to possess large amounts of cash; it is common for drug dealers to have surveillance cameras at places where they keep drugs and cash received from the sale of drugs; sophisticated electronic scales are commonly used by drug dealers to weigh drugs; clipseal bags are commonly used by drug dealers in the sale and distribution of drugs; and MSM and epsom salts are commonly used by drug dealers as cutting agents in the sale and distribution of drugs (ts 39 - 40, 50 - 51). It is, of course, true that there may possibly be an innocent explanation for the possession of this paraphernalia (ts 51 - 57).

38 Fourthly, the appellant's mobile telephone was examined by the police and found to contain photographs of clipseal bags containing a white crystalline substance which was, most likely, methylamphetamine (ts 46).

39 Fifthly, adhesive tape attached to the large bag of methylamphetamine was analysed and a partial DNA profile was obtained from it. According to expert evidence, which was not challenged, the probability of finding that partial DNA profile, if the cellular material in the sample had come from someone other than and unrelated to the appellant, was less than 1 in 2.7 million (ts 80 - 82).

40 Sixthly, the MDMA tablets were found by the police in a drawer in the appellant's bedroom, and there was unchallenged expert evidence that his thumb print was on one of the bags which contained the drugs (ts 49).

41 Seventhly, there were numerous incriminating SMS messages on the appellant's mobile telephone. These messages, considered as a whole, are consistent with the appellant being a seller of drugs and inconsistent with his being a purchaser. Detective Sergeant Baddock gave evidence in relation to these messages:

(a) A message from 'Jamie' which said, 'Okay, 5.00, no later, got to go to miss. Bring me 90K' (ts 98).

(b) A message from 'Tash' which said, 'Hello...my mate owes Tony 1K. He said if you wipe that for him and either give him one or take one off our total, he will give you his room number and all' (ts 99).

(c) A message from 'Rose' which said, 'Is it okay to stop by and grab my phone, please, and I grabbed you some gas today if you still need?' (ts 99).

(d) A message from 'Lisa' which said, 'Hi Keith. Just wondering if you still have those 8 K packs. My friends wants LX' (ts 99).

(e) A message from 'Tina' which said, 'I'm chasing. Can you help me? Did my mate call you?' (ts 99).

(f) A message from 'Alicia' which said, 'Is it okay to come past now? Got bit money for my bill to pay off' (ts 99 - 100).

(g) Another message read, 'Ye they were - we sold out by 1 am. They fukn loved em' (ts 100).

42 Eighthly, the appellant's counsel called Robyn Anne Littleton to give sworn evidence. Ms Littleton said, in evidence-in-chief, that she was a friend of the appellant. Her evidence-in-chief corroborated the appellant's sworn evidence that on 24 January 2007 (being the date on which the police searched the appellant's home) she had been at the appellant's home. She arrived at about lunchtime and departed at about 8 - 8.30 pm that day (ts 190). She left very briefly, shortly after arriving, and then returned to the appellant's home. Otherwise, she was there 'the whole time' (ts 191). Also, she corroborated the appellant's evidence that 'Colin' arrived at the appellant's home and manufactured and left drugs there, etcetera. However, Ms Littleton's evidence was discredited in cross-examination. The prosecutor put to her an SMS message which she agreed she had sent the appellant at 4.28 pm on 24 January 2007. The message read:

Just me. Sorry, mate. Love to but no can do tonight or any other Wednesday for the next four weeks. I've got my court mandated counselling appointment with the program counsellor 4.30 to 6 o'clock. Has to be then 'cause that's the only late appointment they will give me the required number of sessions before I go back to court for sentencing. Bronte has organised to have a play date with one of her schoolmates. Sorry, but will get Bronte there or bust myself trying to get to your place on Sunday so the girls can hang out for a bit. That okay? Sorry 'bout this arvo. Later, matey (ts 214 - 215).

Ms Littleton was unable to explain her SMS message in the context of her evidence-in-chief that she was at the appellant's home on 24 January 2007. Her cross-examination concluded with this question and answer:

It stands to reason then, doesn't it, Ms Littleton, that you were not at the accused's house on 24 January 2007?---Well, it would look like that, yeah (ts 216).

Ms Littleton's credibility was not retrieved in re-examination.

43 Ninthly, the appellant's sworn evidence, which is summarised in Miller JA's reasons (in particular, his account of the drugs having been manufactured and left at his home by 'Colin' without his consent, his explanations for the presence of the cash and other paraphernalia of drug dealing and his explanations of the photographs and SMS messages on his mobile telephone) should be rejected. The objective circumstantial evidence, the evidence that was not genuinely in contest and the other evidence, which I have summarised at [35] - [42] above, are, in combination, overwhelming. The material features of the appellant's sworn evidence are inherently incredible, almost ludicrous. Further, he admitted, in cross-examination, that he had told lies and given misleading information to the investigating police (ts 171 - 174). Also, his evidence that Ms Littleton was at his home for most of the afternoon of 24 January 2007 (ts 109 - 110, 116) was false, in view of her concession in cross-examination.

44 After examining the whole of the trial record, I am satisfied beyond reasonable doubt on the evidence (in particular, the matters I have summarised at [35] - [43] above), that no other explanation than guilt is reasonably compatible with the circumstances. I conclude that, despite the learned trial judge's error of law, no substantial miscarriage of justice has occurred. The appellant's conviction on each count was correct, and should not be disturbed.

45 Before this court, counsel for the appellant did not advance any argument to the effect that if this court decided that it was not precluded from applying the proviso, then it could not be satisfied that no substantial miscarriage of justice has occurred. The following exchange occurred in the course of counsel's oral submissions:

BUSS JA: Just suppose for the moment that we are against you on that point and we are of the view that the proviso is capable of being applied here. Is there any reason why in the circumstances we would not apply the proviso?

...

PRATT, MR: I have in fact specific instructions that I would raise no argument in that regard. Having said that, the law is that it is [for] the state to persuade you of that, but on the other hand, the law is that you persuade yourself of it. So I have got specific instructions not to take up the cudgels on that issue (appeal ts 6).

46 Finally, in this context, I should note that my satisfaction beyond reasonable doubt as to the appellant's guilt is not based upon, and I have not accorded any weight to, the jury's verdict of guilty because I am not persuaded that it was unaffected by the prosecutor's improper comments and the learned trial judge's error of law.

48 MILLER JA: The appellant was charged by indictment with two counts of possession of prohibited drugs with intent to sell or supply. The two counts in the indictment are in the following terms:

(1) On 24 January 2007 at High Wycombe, Keith George Mackrell had in his possession a prohibited drug, namely methyl amphetamine, with intent to sell or supply it to another.

(2) On the same date and at the same place, Keith George Mackrell had in his possession a prohibited drug, namely 3, 4-methylenedioxyn, alpha-dimethylphenylethylamine (MDMA), with intent to sell or supply it to another.

49 The appellant was tried between 4 and 6 February 2008 before Wisbey DCJ and a jury in the District Court at Perth and convicted on both counts.

50 The appellant has been given leave to appeal his conviction on two grounds. Those grounds (leaving aside the quotation contained in ground 1) are as follows:

1. There was a miscarriage of justice and the trial Judge erred on a question of law by his having misdirected the jury by failing to direct the jury that:

(a) The fact that the appellant had not answered questions which might incriminate him during the video recorded search of his premises by the police on 24 January 2007 could not be taken into account in its deliberations as to guilt; and

(b) the State Prosecutor's comments ...

ought to be ignored as it [sic they] derogated from the appellant's 'right to remain silent'.

1. There was a miscarriage of justice and the trial Judge erred on a question of law by permitting detective sergeant Battock to be re-examined concerning the contents of SMS messages which were:

(a) not led by the State during Mr Battock's evidence in chief; and

(b) not cross-examined upon by counsel for the appellant;

in circumstances where there can be no suggestion that any such re-examination was required to correct a distortion or complete an account concerning any matter (including other SMS messages upon which there was cross-examination) arising from detective sergeant Battock's cross-examination.

51 The following analysis of the prosecution case is taken from the prosecutor's opening address at the trial.

52 At about 10.00 pm on 24 January 2007, police officers executed a search warrant at the home of the appellant. He was the only person present in the house. Police searched the whole of the house and the search was video-recorded.

53 At the commencement of the search, the appellant was asked by police whether he had any illicit drugs on the premises. He said that he thought there would be drugs there and pointed at the kitchen counter. On the kitchen counter, police found a number of items which included a large clipseal bag later analysed and found to contain 282 g of methylamphetamine, and a second bag later analysed and found to contain in excess of 20 g of methylamphetamine. This second bag had a spoon sticking out of it.

54 Near the two bags were a number of items which it was contended related to drug dealing. There was a blue tub with traces of a substance in it, a paper towel which had two relatively large crystals on it and a box of large clipseal bags.

55 The transcript of the video-recorded search reveals that Detective Kellie Leslie put it to the appellant that he had indicated there were illicit drugs in the house. His answer was that he did not want to say much. He was then cautioned and told that if he did not wish to answer any questions, he could say, 'No comment'. To questions which were then put to him, he consistently answered, 'No comment', although on occasions he gave an answer other than 'No comment'. Those answers were not in any way indicative of guilt of the offences with which he was charged.

56 The appellant did tell investigating police that there were other drugs on the premises. He indicated that there were drugs in his room. There, police found blue tablets in a clipseal bag. There were 19 tablets and they were later found to be 'ecstasy' tablets (MDMA).

57 Investigating police asked the appellant whether he had any money and he replied that he had about $14,000 or $15,000. This, he said, had come from his business and not from the selling of drugs. The money was counted and actually totalled $17,500.

58 Other drugs were found in the house, together with a smoking implement and further sums of money. Towards the end of the search, police located in the kitchen pantry a 400 g can of MSM and some Epsom salts. When asked about these items, the appellant said that he used the MSM for a problem with his right knee where he had had a knee reconstruction. He said he used the Epsom salts to soak in the bath.

59 The drugs found by investigating police were sent for analysis. The large bag of methylamphetamine contained 282 g of that substance. It was of 47% purity. The smaller bag contained 20.3 g of methylamphetamine. It was of 27% purity. Other bags, tubs and scales had traces of methylamphetamine on them. DNA analysis of the bag which was described as 'the plastic bag with tape' found on the kitchen bench next to the large bag of methylamphetamine resulted in a partial DNA profile being obtained from the adhesive tape on it. Expert evidence was given that the probability of finding that partial DNA profile, if the cellular material in the sample had come from someone other than the appellant, was less than one in 2.7 million.

60 Fingerprint analysis failed to disclose any fingerprints on the bag with tape, but a thumbprint matching the thumbprint of the appellant was found on a snaplock plastic bag seized from his bedroom.

61 Evidence from Dr Dominic Reynolds of the Chemistry Centre established that six different samples of methylamphetamine from the appellant's house all had a similar appearance and had been produced by the same method of manufacture, although originating in different batches.

62 The appellant's mobile telephone was analysed and found to have photographs of prohibited drugs on it.

63 Detective Brett Tyrone Baddock gave evidence that he was at the relevant time a member of the Drug Squad. He gave general evidence abut his knowledge of illicit drugs, and, in particular, methylamphetamine. He explained how manufacturers of that drug use MSM, Epsom salts, glucose or other powders as cutting agents to reduce the purity of the drug. Detective Braddock explained the detail of the search of the appellant's house, the various drugs and items found and seized and the 'common characteristics' found in the search of houses of drug dealers. He said:

It's common for drug dealers to have extensive security in the way of security screens and security doors. Also surveillance cameras; this is to detect the arrival of law enforcement agencies. It's also common to find large quantities of cash hidden or secreted in different locations within the premises. It's also common to find digital scales used to weigh the different quantities required for sale.

Thank you. Can you comment upon the usage by persons involved in the drug trade of mobile phones or phones in general?---It's not uncommon for drug dealers to have more than one mobile telephone or a mobile telephone servers, SIM cards et cetera.

64 Detective Baddock was cross-examined by defence counsel about a number of SMS messages on the appellant's mobile telephone. They related to calls between the appellant and 'Tash'. References to 'Tash' were identified as references to Colin's wife. The cross-examination was directed to establish that the appellant was a purchaser of drugs from Colin.

65 After being taken through various SMS messages between the appellant and Colin/Tash, Detective Baddock said:

Okay?---Would you like me to make some comments about these messages?

I am just asking what was found - these were all found on the phone weren't they as far as the report is concerned?---Yes. Would you like me to make some comments?

I am just asking whether they were found on the phone at the moment. That will do.

Clearly, Detective Baddock had information to impart in relation to the appellant's SMS messages, but defence counsel prevented him from saying any more.

66 The prosecutor sought leave to re-examine Detective Baddock in relation to a number of SMS messages other than those in relation to which the detective had been cross-examined by defence counsel. Leave was given to do so. The detective then revealed that there were numerous SMS messages on the appellant's mobile telephone and they came from a number of different persons. Essentially, they revealed that a number of people had messaged the appellant in terms which suggested that they were seeking drugs. For example, 'Lisa' sent an SMS, 'Just wondering if you still have those 8K packs. My friends wants LX'. There was another message which read, 'You put it in letterbox and I'll swing by in a bit'. Another was from Tina saying, 'I'm chasing can you help me'. Another was from Alicia, saying, 'Is it ok to come past now? Got bit money for my bill to pay off'. Still another read, 'Ye, they were sold out by 1 am. They fukn loved em'. Finally, there was a message which gave an address and said, 'Take time. Least known you are coming'.

67 I have mentioned the video-recording of the search which was conducted at the appellant's home on 24 January 2007. The transcript of the recording of the search reveals that, on almost every occasion upon which the appellant was questioned about drugs found, he simply said, 'No comment'. He did say on one occasion that he did not sell drugs. He said that the money which had been found constituted his takings from a hairdressing salon business which he owned. He said he was about to put the money in the bank.

68 During the course of the police search, Belinda Margaret Monnook arrived at the house. She was asked if she was there to buy drugs, and she said that she was not.

69 The appellant testified in his defence and called one witness. He said that he had been at his house during most of the afternoon with Robin Littleton. He had picked up his daughter at 5.00 pm and taken her out for dinner and then, after bringing her back to his house for a swim, he had delivered her home at around 7.00 pm. He said that Ms Littleton was at his house throughout this time and did not leave the house until later that night. He had returned to his house at around 7.20 pm.

70 The appellant testified that, after he returned home, he had a shower while Ms Littleton remained in the kitchen area. Whilst in the shower, the appellant heard a knock at the door. He did not answer the knock, but Ms Littleton put her head around the en suite door and told him that Colin was there.

71 The appellant said that about 20 minutes later, after finishing his shower, shaving and dressing, he was leaving his room when Ms Littleton came up the passageway 'freaking out'. The appellant went to the kitchen to see what was happening and his friend Colin, who was somebody from whom he bought drugs, 'had drugs everywhere'.

72 The appellant said that he asked Colin what he was doing. He observed that Colin had something in the frying pan on the stove and had bags everywhere. The appellant's kitchen scales were out and Colin was obviously 'cooking up', or 'mixing up'. The appellant said again that he 'freaked' and told Colin to get the drugs out of the house. He said:

I had only purchased drugs off this guy a couple of days earlier, and I basically at that time told him, 'Get this shit out of my house' and I freaked, and I went back outside, because Robin was outside. I thought she had left, but she couldn't leave because his car was parked behind hers

...

All right. Had you expected [Colin] to be at your house that night?---No, no, totally unannounced.

The appellant said that, after going outside, he went into the house for a second time:

Basically the second time I went in he had pretty much packed up by then. Everything had been in - he had a black bag, some sort of sports bag. He basically had a little bit left. He put a little bit in a pipe and we shared it just to try it. Then we started walking out of my house together, okay? As I was walking up the passage towards the end of my house I asked him - I said, 'Look, is all the - is there any shit in my house? Have you got everything?' He replied that, 'Yes, I have got it all here but I have just cooked some MSM and I just wrapped it up and put it in your fridge, if that's okay.'

73 The appellant's evidence was that Colin left the house, leaving Ms Littleton still there. He told the appellant that he would be back in 20 minutes or half an hour, but after a delay of about 40 minutes, the appellant tried to ring Colin to get him to come back and pick up what he had left at the house. This included a package in the fridge which was wrapped up. The appellant said that he opened up the bag in the fridge and saw four bags within it. His evidence was:

So when you opened up the bag, what did you see?---I saw four bags. I saw one big bag, a small bag, a bag of pills and a really small bag, sort of bundled together.

Did you open up those bags?---I remember taking the two smaller bags. I remember touching them and pulling them to the side and the two bigger bags, I thought - I really wanted to know if it was MSM so I remember getting a spoon and prying them open. I had a - I put a paper towel down to pry them, I wanted to take something from each of the bags and put it on the towel to test to see if it was exactly what I thought it was, you know, if it was MSM or if it was drugs.

74 The appellant explained how he panicked. He was unsure whether he should flush the drugs down the toilet, but then he thought that it would be dangerous to do so because Colin himself was dangerous. He knew that he had touched the bags, and so he took them to his room to wipe his prints from them. This was why a packet of blue pills was found on the top of his chest of drawers, and another packet found on a bed. He said he did not know what to do with the drugs when the police raided the house.

75 The appellant gave explanations for the presence of MSM and Epsom salts in the house similar to those which had been given in the video-recorded search. He said that the scales had been brought to his house by his ex-partner. He gave evidence that text messages on his mobile telephone were related to Colin and/or Colin's wife, Tash, from whom he bought drugs. He made reference to other text messages and explained to whom they were made and what they meant. He denied that he ever supplied drugs to any of the people whose names appeared in the text messages.

76 When cross-examined, the appellant was insistent that the drugs at the house were not his, and that he expected Colin to return for them in 20 minutes' time. He insisted the Ms Littleton was present at the house when Colin arrived and he said that he would be calling her as a witness.

77 The appellant admitted that he lied to the investigating police when he said that he did not know what the substance was that was in his house. He explained that he lied because he was 'all flustered'. He also accepted that he lied in relation to a glass smoking implement when he said he did not know whether he had seen it before. He explained that he had forgotten all about it.

78 The appellant was questioned about a number of cameras he had around the house. He had three cameras, one of which faced the backyard and two of which covered the front of the home. They were linked to a screen. He denied that it was a sophisticated system, but admitted that it is possible that people in the drug trade used security systems with cameras.

79 The appellant was cross-examined about SMS messages on his telephone. He was taken to a number of SMS messages and it was put to him that they related to the sale by him of drugs. In the face of this cross-examination, he denied that the messages such as 'I'm chasing can you help me' meant that he was a drug supplier. He contended that people were seeking hairdressing equipment from him, not drugs.

80 Ms Littleton was called to give evidence. She contended that she had been at the appellant's house on 24 January 2007, but it was put to her that an SMS message she had sent to the appellant that day was to the effect that she could not attend on 24 January. When it was put squarely to her that she was not at the appellant's house on 24 January, she said, 'Well it would look like that yeah'.

81 The prosecutor reminded the jury that the police search at the appellant's premises had revealed the presence of a substantial quantity of illicit drugs. He then made reference to the evidence of the appellant, pointing out that he did not have to give evidence, but chose to do so. He said that 'he may ... have thought it was necessary for him to do so to explain what all of these items were doing in his house'. He then went to the explanations given and ridiculed the appellant's evidence. Included in what he said was the following passage:

So when the police arrive not long after, what would you do, ladies and gentlemen, in the scenario painted? I suggest that blind Freddy would know how bad it looked, and you, being each of you, upstanding citizens in our community, would surely immediately say to the police: 'Look, this nasty man just came to my house and put a lot of drugs here; here they are.' So what did the accused do? He offered no comment to the police and he told them some lies.

Ladies and gentlemen, does this story have the ring of truth about it or is it a fabrication designed to get him out of his problems? Ladies and gentlemen, I suggest to you that the reality is clear in this case: the accused didn't tell the police about Colin because this is an explanation contrived to fit the evidence.

82 The prosecutor then turned to the evidence of the appellant which he described as 'full of irrelevant details, belligerent, argumentative and evasive'. He made reference to the SMS messages on the appellant's mobile telephone and suggested that they were clear evidence of drug dealing. He then added:

Turning to the scenario the accused has painted in court, if it were you, wouldn't you explain to the police all about the person who could confirm this strange story you have just been part of? Did the accused do that on the night? Was there a single mention of Robyn Anne Littleton in the whole search video? Ladies and gentlemen, I suggest, though you can check it if you wish, there was not. I also suggest that there is good reason why there is no mention of her in that search video, because she wasn't there.

83 There were further references to the appellant's failure to give an explanation to the police:

He didn't tell the police, for example, on the night anything about any intermediatory money storage facility, and his other explanations are ones that you may find lack credibility.

...

I suggest to you that this case is not about some detail of whether the accused cooperated with police - well, apart from not telling them very much - and it is not about intimidation or some alleged event that occurred after the police raid.

...

Rather it is about an accused man getting caught with a very large amount of prohibited drugs without any possible reasonable explanation for those drugs.

84 The prosecutor then referred to the evidence of Ms Littleton. He put to the jury that an SMS message on her telephone made it quite clear that her evidence was fabricated and she was never at the house as both she and the appellant had contended. He concluded his address by putting to the jury what the prosecution case was:

Ladies and gentlemen, in fact the state's case is not that the accused cut the methylamphetamine there or then, or even at all; it is that he possessed the methylamphetamine found in his house that night with the intent to sell or supply it to others, and similarly with the MDMA tablets. The accused was caught red-handed with a very considerable amount of methylamphetamine and a number of MDMA tablets, and the state submits to you that the only reason he had those drugs was to sell or supply them to others.

85 The trial judge did not interrupt the prosecutor's address when reference was made by the prosecutor to the appellant's failure to give an explanation to the investigating police. He did not give any direction to the jury at that point that the prosecutor was wrong to suggest that any inference could be drawn from the appellant's failure to comment to the investigating police. Nor did he do so at the close of the prosecution address.

86 Counsel for the appellant complained to the trial judge about the prosecutor's address. He put to the trial judge that the prosecutor was inviting the jury to conclude that the appellant had an obligation to give an explanation to the police when they arrived at his house, when he clearly did not have such an obligation. He submitted that the trial should be aborted for that reason.

87 The trial judge indicated that he would not abort the trial and discharge the jury. He invited defence counsel to address the jury.

88 In the course of his address, defence counsel told the jury that his client had no obligation to speak with investigating police. He said:

He didn't need to talk to the police, for example. My friend said to you that would you have expected him to tell the police about the drug dealer and tell the police about the presence of Ms Littleton. He didn't have to. It is his right not to. You can't form any adverse inference as a result of his exercising his right to make no comment to the police.

89 At the end of this address, the trial judge gave no direction to the jury which related to this issue.

90 The trial judge explained to the jury that the appellant was not obliged to give evidence and entitled to 'remain silent to any charge brought against him'. He also said that he did not have to participate 'in any evidentiary sense in the search video'. What the trial judge meant by the words 'in any evidentiary sense' is unclear. There was no obligation upon the appellant to participate at all (my emphasis). His direction was as follows:

As I have said to you, he didn't have to participate in an [sic any] evidentiary sense, in respect [sic of] the search video which is in evidence and which we have already seen, as was pointed out to him there. He did not have to comment at all on any matters.

He's entitled to remain silent to any questions the police put to him, and the fact that he exercises that right by making no comment in respect to matters is not a matter from which you can draw any inference adverse to him because he was simply exercising that right. In respect to the evidence, in part, the state case is circumstantial. That simply means that you're being asked to draw inferences of fact from the material that has been placed before you.

91 This direction was repeated in another passage when his Honour said:

The accused person, I remind you, because it is important that you always bear in mind he doesn't have to prove anything and you cannot draw adverse inferences from his silence ...

92 There was no reference by the trial judge to the submissions of the prosecutor on the issue of the appellant's silence.

93 At the close of the trial judge's summing up to the jury, defence counsel said:

The only other issue, your Honour, was that I hoped that your Honour would - your Honour correctly, with respect, directed the jury in respect of the use they could make of his no comments, but I would hope that your Honour would correct what had been said earlier that one would have expected him to have told the police about this person and that person, by my friend in his closing. I was hoping for some sort of direction that is not a line they should go down.

94 The trial judge declined to give any further directions. He said:

WISBEY DCJ: I think I told them in respect that he didn't have to - that he had a perfect right not to say anything and that they couldn't draw any inference from his no comment.

95 This ground contends that the trial judge failed adequately to direct the jury in relation to the right of the appellant to remain silent during police questioning, and in relation to the prosecutor's reference during the course of his closing address to the appellant's failure to offer an explanation to police.

96 The trial judge did tell the jury twice the appellant was entitled to 'remain silent to any questions the police put to him', and his Honour made it clear that the jury could not draw an adverse inference against the appellant by reason of his exercise of that right. To the extent that the first paragraph of ground 1 contends to the contrary, it has no substance.

97 However, the trial judge made no attempt to correct the statements of the prosecutor in his closing address to the effect that (a) the appellant could have been expected to have explained to investigating police the circumstances in which drugs came to be placed at his house, and (b) instead of giving such an explanation, the appellant chose to make no comment.

98 On the hearing of the appeal, the respondent conceded that the prosecutor made improper comment in the course of his closing address by inviting the jury to draw an adverse inference against the appellant by reason of his failure to tell investigating police about Colin and Ms Littleton.

99 The concession was properly made, as appears from the following passage in Petty v The Queen [1991] HCA 34; (1991) 173 CLR 95 [99] (Mason CJ, Deane, Toohey and McHugh JJ):

A person who believes on reasonable grounds that he or she is suspected of having been a party to an offence is entitled to remain silent when questioned or asked to supply information by any person in authority about the occurrence of an offence, the identity of the participants and the roles which they played. That is a fundamental rule of the common law which, subject to some specific statutory modifications, is applied in the administration of the criminal law in this country. An incident of that right of silence is that no adverse inference can be drawn against an accused person by reason of his or her failure to answer such questions or to provide such information. To draw such an adverse inference would be to erode the right of silence or to render it valueless ...

That incident of the right of silence means that, in a criminal trial, it should not be suggested, either by evidence led by the Crown or by questions asked or comments made by the trial judge or the Crown Prosecutor, that an accused's exercise of the right of silence may provide a basis for inferring a consciousness of guilt. Thus, to take an example, the Crown should not lead evidence that, when charged, the accused made no reply.

100 In R v Reeves (1992) 29 NSWLR 109, it was held in the Court of Criminal Appeal of New South Wales that, where evidence is given which discloses that an accused has exercised his right of silence, a direction should invariably be given to the jury - as soon as the evidence is given and, if necessary, again in the summing up - that the accused had a fundamental right to remain silent and that his exercise of that right must not lead to any conclusion by the jury that he is guilty.

101 In the present case, the trial judge should, in my opinion, have given the jury a direction about the appellant's entitlement to exercise his right of silence at the time when the video record of the search was shown.

102 Once an accused person has been warned that he need not answer any questions asked of him, his failure to answer questions thereafter cannot be counted as an admission. In R v Ireland [1970] HCA 21; (1970) 126 CLR 321, Barwick CJ at 331 made reference to a police interrogation in which a series of questions were put to the accused person in response to which he said on each occasion, 'I don't wish to answer'. His Honour said:

The applicant submits that the police witnesses' account of the questioning was admissible as relevant to the issues at the trial because it conveyed information to the respondent and that the trial judge having exercised his discretion to admit it his exercise of discretion ought not to have been disturbed. But in my opinion the account of the questioning was not relevant at all to the issue. The respondent had been warned that he need not answer any questions asked of him. His failure to answer questions thereafter could not be accounted as an admission. In those circumstances the fact that he was asked and made no answer was not relevant : it would not be probative of any relevant fact or circumstance. It was therefore not admissible.

103 In the present case, it is arguable that, to the extent that the appellant exercised his right of silence when questioned by investigating police, the questions and the answers 'No comment' were inadmissible. However, no point is taken about that.

104 What clearly should have done in the present case is that the trial judge should, at the time the search video was played, have directed the jury that the exercise by the appellant of his right of silence was a fundamental right which he had, and the exercise of it could not lead the jury to any conclusion that he was guilty. This was not done.

105 Further, in my opinion, the trial judge should have directed the jury during, or immediately after the prosecutor's closing address to the jury, that the prosecutor's observations about the appellant remaining silent and not giving an explanation to investigating police were inappropriate and contrary to law. That direction should then have been repeated during the course of the summing up (see Marshall v The State of Western Australia [2007] WASCA 96 [126] (Miller AJA)).

106 Unfortunately, the trial judge failed at any time, either before his summing up to the jury, or during the course of that summing up, to advert to the illegitimate observations made by the prosecutor about the appellant's exercise of the right to silence. To the extent that he failed to do this, the trial judge was, in my opinion, in error, and to that extent, ground 1 of the grounds of appeal is made out.

107 This ground contends that the trial judge erred in law in permitting re-examination of a police officer concerning the contents of certain SMS messages found on the appellant's mobile telephone.

108 I have set out the circumstances in which the re-examination occurred. It followed cross-examination of the officer by defence counsel on the content of certain SMS messages on the appellant's mobile telephone. The cross-examination was directed to establish that SMS messaging on the appellant's mobile telephone showed that he was a purchaser of drugs, not a seller.

109 In these circumstances, it was clearly open to the prosecutor to re-examine the officer in relation to other SMS messages found on the appellant's mobile telephone which led to the inference that he was a seller of drugs. I have already quoted a number of the messages, or parts of them. The questions arose out of cross-examination and, in my opinion, were properly allowed.

110 The relevant authorities are summarised in the following passage in Connell v The Queen (No 6) (1994) 12 WAR 133 at 209 - 210. The court (Malcolm CJ, Pidgeon and Nicholson JJ) said:

It needs to be remembered that the purpose of re-examination is not merely to remove ambiguities and uncertainties. Re-examination is allowed wherever an answer in cross-examination would, unless supplemented or explained, leave the court with an impression of the facts, whether in issue or facts relating to credibility, which is capable of being construed unfavourably to the party calling the witness and which represents a distortion or incomplete account of the truth as the witness is able to present it: see R v Lavery (No 2) [1979] 20 SASR 430 at 435, per Wells J; and (at 451), per King CJ: see also R v Chambers (1848) 3 Cox CC 92; R v Pullman [1942] SASR 262; R v Szach (1980) 23 SASR 504.

111 In my opinion, there is no substance in the second ground of appeal, and it should be dismissed.

112 The primary issue in this appeal is whether the failure of the trial judge to advert during the playing of the search video to the entitlement of the appellant to remain silent when questioned by police and to inform the jury that no adverse inference could be drawn against the appellant for that reason, combined with the trial judge's failure to direct the jury that the prosecutor had erroneously contended that an inference of guilt could be drawn from the appellant's exercise of that right of silence upon questioning constituted a fundamental error in the trial process.

113 The right of silence is one of the fundamental principles of the criminal law. This is made clear in Petty by Mason CJ, Deane, Toohey and McHugh JJ in the passage I have previously quoted. Their Honours speak of the right of silence being 'a fundamental rule of the common law ... applied in the administration of the criminal law in this country'. Clearly, it is a critical feature of the criminal law. It underpins the whole basis of the criminal trial process. It is directly related to the onus of proof cast upon the prosecution and to the fundamental proposition that no onus or obligation is cast upon an accused person to prove anything in a criminal trial.

114 The question is whether failure to direct the jury in accordance with the principles expressed in Petty, and more particularly Reeves, is an irregularity which is such a departure from the essential requirements of the law that it goes to the root of the proceedings: Wilde v The Queen [1988] HCA 6; (1988) 164 CLR 365, 373 (Brennan, Dawson and Toohey JJ). There is no rigid formula to determine what constitutes a radical or fundamental error in the trial process and in Wilde Brennan, Dawson and Toohey JJ said:

There is no rigid formula to determine what constitutes such a radical or fundamental error. It may go either to the form of the trial or the manner in which it was conducted. There are those cases which identify irregularities which are sufficient to vitiate a trial and afford a basis for a writ of venire de novo. They are concerned more with the form of the trial but even in that area they provide no real touchstone for determining when an irregularity is so serious as to cause a mistrial: see Cooke, 'Venire de Novo' (1955) 71 Law Quarterly Review 100 at 128; R v Rose [1982] 1 WLR 614 at 621-2 ; [1982] 2 All ER 536 at 542; and, in the House of Lords [1982] AC 822 at 831-4. But the wording of the proviso is quite general and it is clear that it may be applied notwithstanding a misdirection concerning the law or the wrongful admission of evidence. In the end no mechanical approach can be adopted and each case must be determined upon its own circumstances.

115 In Weiss v The Queen [2005] HCA 81; (2005) 224 CLR 300, Gleeson CJ, Gummow, Kirby, Hayne, Callinan and Heydon JJ effectively repeated these observations, saying:

[N]o single universally applicable criterion can be formulated which identifies cases in which it would be proper for an appellate court not to dismiss the appeal, even though persuaded that the evidence properly admitted at trial proved, beyond reasonable doubt, the accused's guilt. What can be said, however, is that there may be cases where it would be proper to allow the appeal and order a new trial, even though the appellate court was persuaded to the requisite degree of the appellant's guilt. Cases where there has been a significant denial of procedural fairness at trial may provide examples of cases of that kind.

It is unnecessary in this appeal to examine that issue further, or to consider the related question whether some errors or miscarriages of justice occurring in the course of a criminal trial may amount to such a serious breach of the presuppositions of the trial as to deny the application of the common form criminal appeal provision with its proviso: see, eg, Wilde v The Queen [1988] HCA 6; (1988) 164 CLR 365 at 373; cf Conway (2002) 209 CLR 203 at 241 [103] per Kirby J, referring to R v Hildebrandt (1963) 91 WN (Pt 1) (NSW) 143 at 148 per Herron CJ; R v Henderson [1966] VicRp 8; [1966] VR 41 at 43 per Winneke CJ; R v Couper (1985) 18 A Crim R 1 at 7 - 8 per Street CJ. [45] - [46]

116 In Glennon v The Queen [1994] HCA 7; (1994) 179 CLR 1, the trial judge had made reference to the applicant's exercise of his right of silence by first directing the jury that they were not to use the applicant's exercise of his right of silence in a manner adverse to him (a perfectly proper direction), but had then qualified the direction by informing the jury that they might use the applicant's silence to test the veracity of the applicant's defence (see Glennon at 8).

This subsequent direction was clearly erroneous. However, in the context in which it appeared and at a trial in which there was other evidence on which the applicant could be convicted and in which there was no other misdirection by the trial judge, the trial judge's misdirection was not a fundamental irregularity.

A misdirection as to the use or evaluation by a jury of properly admitted evidence does not ordinarily result in there not being, overall, a fair trial according to law in the sense discussed by Deane J in Wilde. Rather, a misdirection of that kind is ordinarily one that must be evaluated in the light of the issues in the trial and the way in which the trial was conducted before it can be ascertained whether it might have affected the jury's deliberations.

119 Although decided before Weiss, Glennon would appear to answer the contention that in the present case there was 'a serious breach of the presuppositions of the trial process' (Weiss (supra) at 300). Fundamental though the right to silence is in a criminal investigation or criminal trial, a misdirection or lack of full directions (which is more relevantly the case here) as to the use or evaluation by a jury of the accused's exercise of his right of silence will not generally result in a fundamental irregularity of the type described in Wilde (see also Jones v The Queen [2005] NSWCCA 443).

120 In the present case, the trial judge properly directed the jury on the question of the accused's right of silence. What he failed to do was correct the prosecutor's misstatement as to the use that the jury could make of the accused's exercise of that right. As I have pointed out, it was incumbent on the trial judge to direct the jury at the time the prosecutor adverted to the issue and again when summing up to the jury, that no adverse inference could be drawn against the accused by reason of his exercise of the right to silence on police questioning.

121 Nevertheless, the decision in Glennon makes it clear that the failure of the trial judge to properly direct the jury on the appellant's entitlement to remain silent during police questioning does not constituted a fundamental error of the type discussed in Wilde (or a breach of the presuppositions of the trial process as discussed in Weiss).

Should the proviso be applied in this case?

122 I have had the opportunity of reading in draft the reasons for judgment of Buss JA in which his Honour reaches the conclusion that, on an examination of the whole of the trial record, he is satisfied beyond reasonable doubt on the evidence that no other explanation than guilt is reasonably compatible with the circumstances and that, despite the trial judge's error of law, no substantial miscarriage of justice has occurred (at [44]).

123 As Murray AJA points out in his reasons, I have reviewed in detail the evidence which was led at trial. For the reasons given by Buss JA, and, having regard to the totality of the evidence against the appellant, I am satisfied beyond reasonable doubt that the appellant's convictions on both counts on the indictment were inevitable. The case against him was overwhelming. The case he advanced in his defence at trial was incredible, and incapable of giving rise to any reasonable doubt in relation to his guilt.

124 In the circumstances, I would therefore dismiss the appeal.

125 MURRAY AJA: I have had the advantage of reading in draft the judgment published by Miller JA.

126 I respectfully agree with Miller JA that ground 1 is made out. In making the observations identified by Miller JA in his closing address, prosecuting counsel invited the jury to reject as truthful evidence that given by the appellant and by his witness Robyn Littleton because, when his house was searched, the appellant generally made no comment when matters were put to him by investigating police officers. He did not say that all the drugs belonged to the man Colin, from whom the appellant had bought drugs in the past. The appellant did not say the drugs found in the search had been left there by Colin, who was expected to return and pick them up. Nor did he say that that story, which the appellant gave in evidence, could be supported by Ms Littleton, who was present at the time.

127 In that way, counsel's comments were at odds with the exercise by the appellant of his right to remain silent when questioned by the police. The leading case cited by Miller JA is Petty v The Queen [1991] HCA 34; (1991) 173 CLR 95 per Mason CJ, Deane, Toohey and McHugh JJ at 99. It is quite different if the accused proffers a self-serving observation when questioned by the police which he maintains until it is abandoned at trial. In such a case it may be proper to invite the jury to consider whether the accused's behaviour reflects a consciousness of guilt on his part: Petty per Brennan J at 107. But that was not the course adopted by the appellant in this case.

128 I respectfully agree with Miller JA that the error made by the trial judge in this case was that, although he directed the jury that they could not use against the appellant the fact that he remained silent when questioned by the police, his Honour did not go on to firmly tell the jury that they could not reason that, had the facts been as the appellant testified, he would be expected to advance the version of the facts given in his evidence and that Ms Littleton had the capacity to support that explanation, when he was first questioned about the drugs in his house.

129 That had to be made abundantly clear if the derogation from the right of silence was to be completely expunged. It was not sufficient that the jury were directed in appropriate terms about the onus and burden of proof, the circumstantial nature of the prosecution case and the drawing of

an inference of guilt from the uncontested evidence as to the circumstances uncovered by the search of the appellant's house.

130 I agree also, with respect, that ground 2, which complains of a miscarriage of justice said to arise out of the matters dealt with in the re-examination of Detective Sergeant Baddock in relation to the SMS messages on the appellant's mobile telephone, is not made out. I have nothing to add to the reasons of Miller JA in that regard.

131 The respondent argued that if, as has proved to be the case, it should be held that the trial judge fell into error in the manner of which ground 1 complains, the appeal should nonetheless be dismissed on the ground that no substantial miscarriage of justice has occurred; known as the proviso, for which the Criminal Appeals Act 2004 (WA), s 30(4), provides. The appellant argues that such a course should not be taken because the nature of the error the subject of ground 1 was so fundamental to the achievement of a proper trial that it becomes impossible to say that no substantial miscarriage of justice has occurred, regardless of the conceded strength of the prosecution case.

132 Miller JA has summarised the evidence. As I have observed, there was no contest about the nature of the drugs found, the high level of purity of the amphetamine drug, its quantity or the circumstances in which it was found. There was no dispute about the finding of the ecstasy and the circumstances in which that was found. There was evidence of an undisputed kind about the appellant's fingerprints and DNA to show his close connection with the drugs. There was no dispute about the finding of a large sum of money, or the cutting agents, MSM and Epsom salts. There was the forensic evidence about the links between six different samples of amphetamine found in the house. There was the evidence about the nature of the security system involving the use of surveillance cameras. Finally, there was telling evidence in the form of messages recorded on the appellant's mobile telephone.

133 In addition, the collapse of the credibility of the witness Ms Littleton, who effectively admitted that she had not been at the house and that her evidence to the contrary was fabricated, had a profound impact upon the credibility of the appellant as a witness of truth. She was his witness and his evidence referred to her and exchanges with her at the material time. The conclusion that the appellant lied on oath in his defence, as he conceded he had done on occasions when answering the questions of police officers, was inevitable.

134 During the debate on the hearing of the appeal, Buss JA put to the appellant's counsel that if the proviso was capable of application in this case, 'is there any reason why, in the circumstances, we would not apply the proviso?' Counsel responded that he had specific instructions to, 'raise no argument in that regard', 'I have got specific instructions not to take up the cudgels on that issue.'

135 The proper approach to the application of the proviso has been authoritatively determined by the High Court in Weiss v The Queen [2005] HCA 81; (2005) 224 CLR 300. That was a case of the wrongful admission of evidence which was, although irrelevant, prejudicial in the sense that it may have had an impact upon the jury's verdict that the appellant was guilty of murder. The High Court held that in relation to the application of the proviso, the task of the Court of Appeal was to consider whether, making due allowance for the natural limitations flowing from its position of having to consider the matter entirely on the record, upon the whole of the evidence, absent that which was wrongly admitted, the guilt of the accused was proved beyond reasonable doubt: 316 [41] - [42].

136 However, their Honours went on at 317 [45] - [46] to say:

that there may be cases where it would be proper to allow the appeal and order a new trial, even though the appellate court was persuaded to the requisite degree of the appellant's guilt. Cases where there has been a significant denial of procedural fairness at trial may provide examples of cases of that kind.

It is unnecessary in this appeal to examine that issue further, or to consider the related question whether some errors or miscarriages of justice occurring in the course of a criminal trial may amount to such a serious breach of the presuppositions of the trial as to deny the application of the common form criminal appeal provision with its proviso.

137 It is noteworthy that in Weiss, in the passage quoted, the court did not firmly describe a category of cases where the error constituted such a fundamental flaw in the presuppositions of a proper criminal trial as to preclude the application of the proviso. What was said in Weiss merely leaves open such a possibility.

138 In support of the proposition that such errors may occur, the court in Weiss cited Wilde v The Queen [1988] HCA 6; (1988) 164 CLR 365 at 373, per Brennan, Dawson and Toohey JJ, Deane and Gaudron JJ dissenting. There their Honours spoke of cases, which they said could not be determined by any 'rigid formula', where, despite the fact that, 'on a proper trial the appellant would inevitably have been convicted', the proviso should not be applied. Their Honours said:

The proviso has no application where an irregularity has occurred which is such a departure from the essential requirements of the law that it goes to the root of the proceedings. If that has occurred, then it can be said, without considering the effect of the irregularity upon the jury's verdict, that the accused has not had a proper trial and that there has been a substantial miscarriage of justice. Errors of that kind may be so radical or fundamental that by their very nature they exclude the application of the proviso.

139 In Conway v The Queen [2002] HCA 2; (2002) 209 CLR 203, there had been a misdirection by leaving to the jury, in the context of a corroboration warning, matters described as being corroborative of the evidence of accomplices when that was not in fact so. The proviso was applied. In doing so, at 241 [103], Kirby J described the sort of case, to which Wilde referred, in these terms:

Sometimes in a criminal trial a mistaken direction is so significant that the 'trial' is regarded as 'fundamentally flawed'. The 'irregularity' in such a case is treated as sufficiently serious to warrant the conclusion that the accused has not had a proper 'trial' at all. In such an event, without considering other matters, there will be judged to have been a substantial miscarriage of justice. The present is not a case of that kind.

Certainly no court has attempted to more closely define such a category of cases where the nature of the error precludes the application of the proviso.

140 In King v The Queen [2003] HCA 42; (2003) 215 CLR 150, Kirby J joined in the conclusion of the majority that the appeal should be dismissed. His Honour dissented from the majority, however, in their conclusion that the trial judge had not erred. Nonetheless, Kirby J joined in the order dismissing the appeal by the application of the proviso. The error his Honour identified might be thought to have been of a fundamental kind. It was an omission to direct the jury as to the availability of a particular defence. In fact, however, the issues in the case, otherwise squarely before the jury, covered the ground of the matter of defence which was omitted.

141 Kirby J referred to Wilde and the concept of a fundamental error discussed in that case as providing a category of cases where the proviso simply could not be applied. At 181 [100] his Honour said:

This suggested category, demanding a retrial of significantly flawed criminal proceedings resulting in a conviction, has frequently been mentioned in the cases. However, rarely, has it been the foundation of appellate orders. That this is so is scarcely surprising. Normally, as in this case, the statute that gives jurisdiction and power to a court of criminal appeal is the same statute that contains the legislative instruction for the disposition of criminal appeals where a legal error at trial is shown. That instruction includes the requirements of the proviso. On the face of things, therefore, the proviso governs all cases where error is demonstrated: whether such error is fundamental or non-fundamental.

142 In Bounds v The Queen [2005] WASCA 1, the Court of Criminal Appeal, by majority, Murray and Steytler JJ, McKechnie J dissenting, applied the proviso in a case where a simple offence had wrongly been joined with an indictable offence and the appellant had been jointly tried and convicted of both offences in the District Court. On appeal to the High Court: Bounds v The Queen [2006] HCA 39; (2006) 80 ALJR 1380, that decision was upheld by Gleeson CJ, Hayne, Callinan and Crennan JJ, Kirby J dissenting. The court held that the misjoinder of the simple offence and the consequent joint trial in the District Court was not so fundamentally flawed as to require the approach to which Wilde refers to be adopted. It was therefore the case that whether the proviso was to be applied was to be determined by what happened at the trial: 1384 [13]. In so holding, the majority observed that, '[i]t is not necessary decide what was meant in the joint reasons in Wilde by reference to 'such a departure from the essential requirements of the law that it goes to the root of the proceedings' or what it is that would set some errors apart from others as 'radical or fundamental'.'

143 As to the approach generally to be taken to the application of the proviso, the recent decision of the High Court in Gassy v The Queen [2008] HCA 18; (2008) 82 ALJR 838 is instructive. The case concerned a redirection given by a trial judge to a jury after lengthy deliberation which had not produced a verdict. The redirection focused upon the prosecution case, reminding the jury of the factual elements of the circumstantial case relied upon by the prosecution. Little, if any, reference was made to countervailing arguments presented on behalf of the appellant, who contended on appeal that the further summing up lacked balance and was unfair, causing the trial to miscarry when, very shortly after the trial judge's redirection was completed, the jury found the appellant guilty of murder. By majority, Gummow, Hayne and Kirby JJ, the High Court agreed that there had been a miscarriage of justice and they declined to apply the proviso, holding that the nature of the circumstantial case made by the prosecution precluded the conclusion by an appellate court that the guilt of the appellant had been proved beyond reasonable doubt. Crennan and Kiefel JJ dissented, holding that there had been no miscarriage of justice.

144 The majority dealt with the question of the application of the proviso squarely by the approach discussed in Weiss, holding that the nature of the prosecution case was such that an appellate court could not be persuaded beyond reasonable doubt of the appellant's guilt. As to the suggestion that the nature of the trial judge's error was of a kind which precluded the application of the proviso, having regard to the decision in Wilde, Gummow and Hayne JJ seem to me to explain the decision in Wilde so as to substantially qualify its application. At 847 - 848 [33], their Honours said:

Identifying a priori some kinds of error as precluding application of the proviso presents difficulties of the same kind as are presented by using judicial statements about the application of the proviso as some substitute for the relevant statutory test. That is, it is neither possible nor useful to seek to apply the proviso according to a taxonomy of errors at trial which describes some as 'fundamental' and others as not. And what was said in Wilde v The Queen about 'such a departure from the essential requirements of the law that it goes to the root of the proceedings' is not to be understood as prescribing or defining a class of cases to which the proviso cannot be applied. Rather, what was said in the passage quoted from Wilde is a description, in words other than the statutory words, of one kind of case in which an appellate court could not conclude that there had been no substantial miscarriage of justice. For the reasons given in Weiss, a negative proposition of this kind cannot be taken as a substitute for the statutory language.

145 It is noteworthy that Gummow and Hayne JJ declined to hold that there was no substantial miscarriage of justice because of the impact that the trial judge's error may have had on the outcome of the trial. Before the redirection, the jury had been deliberating for 13 hours without reaching a verdict. Their verdict of guilty was returned within half an hour of the conclusion of the redirection. The other member of the majority, Kirby J, approached the matter in the same way: 859 [108].

146 AK v Western Australia [2008] HCA 8; (2008) 232 CLR 438 was a case which concerned a trial by judge alone in the District Court of WA, where it was accepted that the trial judge had failed to discharge the obligation imposed by s 120(2) of the Criminal Procedure Act 2004 (WA) to give a judgment which included the principles of law applied by the court and the findings of fact upon which the judge relied. The majority, Gummow, Hayne and Heydon JJ, held that the complete failure to meet the mandatory requirements of s 120(2) meant that what had occurred was not a trial by judge alone as envisaged by the law. At 545 [54], Gummow and Hayne JJ, referring to Wilde, said what they were shortly to say in Gassy, before describing the complete failure to meet the mandatory requirements of s 120(2) as a substantial miscarriage of justice, because that was what the law required for a trial by judge alone [56]. The view of Heydon J, at 560 - 561 [108] was to the same effect.

147 The dissenting judges, Gleeson CJ and Kiefel J, were of the view that although there may be cases where the failure to give reasons of the kind required by the Act would demonstrate such a failure of the process of trial that the proviso could not be applied, this was not such a case. Their Honours agreed with the majority of the Court of Appeal, Roberts-Smith and Pullin JJA, Buss JA dissenting, that an evaluation of the undisputed evidence of the complainant (it was a case of indecent dealing), together with some undisputed circumstantial evidence, had the result that the appellate court could be satisfied of guilt beyond reasonable doubt, and could apply the proviso on that basis.

148 The recent decision of the High Court in CTM v The Queen [2008] HCA 25; (2008) 82 ALJR 978 seems to me to be a significant decision for present purposes. It was a case of sexual offences tried in New South Wales. The offences were those defined in the Crimes Act 1900 (NSW), s 66C. The sexual intercourse was alleged to be an offence because the complainant was a child aged between 14 and 16 years. The Act made no provision for a defence that the accused honestly believed, on reasonable grounds, that the child was over the age of 16 years. The High Court held, however, that the defence of mistake under the common law not having been excluded by the statute, it remained available. However, the trial judge was held to have erred because his directions to the jury reversed the onus of proof. The jury were not instructed, as the law required, that if the accused raised some evidence of mistake, then it was for the prosecution to negate the 'defence' of mistake of fact beyond reasonable doubt. The judge instructed the jury that it was for the appellant to establish the 'defence' of mistake on the balance of probabilities.

149 To my mind, an error of that kind might well be described as a fundamental negation of the presuppositions of the trial. But the majority, Gleeson CJ, Gummow, Hayne, Crennan and Kiefel JJ, applied the proviso on the ground that the appellant had failed at trial to discharge the evidentiary burden of fairly raising the issue of mistake of fact.

150 Heydon J took a different view. His Honour would have held that, properly construed, the statute excluded the availability of the common law defence. Kirby J dissented, on the ground that the 'defence' fairly arose on the facts because the evidentiary burden to raise the matter, which the appellant bore, had been discharged. On that view of it, of course, the error of the trial judge assumed considerable significance.

151 Kirby J would have declined to apply the proviso. At 1001 [128], his Honour said:

The failure on the part of the trial judge to explain to the jury the legal ingredients of an offence, and to assign correctly the burden and standard of proof in respect of them, seem to me to be 'radical' errors, inconsistent with the requirements of the law. It cannot matter that the law in question is common law and not, as in AK, expressed in a statute. It is still the law.

152 Turning to cases which are factually closer to this matter, Glennon v The Queen [1994] HCA 7; (1994) 179 CLR 1, was a case in which the misdirection by the trial judge found by the appellate courts was that his Honour told the jury that although they could not use against an accused person his exercise of the right to silence when questioned by the police, they could use that silence to test the veracity of the evidence given by the accused at trial. It was accepted at all times that that was a misdirection. It was, in substance, the misdirection by the trial judge in this case. In that way, Glennon supports the conclusion of Miller JA, with which I agree, that ground 1 succeeds.

153 Before the High Court, however, the question was the exercise of the proviso, the power to dismiss an appeal if the appellate court considers that no substantial miscarriage of justice has actually occurred. Their Honours were unanimously of the view that the proviso could not be applied in the circumstances of the case. Attention was given to the test for the application of the proviso in such circumstances. Of course, what is written in the judgments in Glennon on that topic must be read now in the light of the High Court's decision in Weiss. But Mason CJ, Brennan and Toohey JJ, at 9, relying on the decision in Domican v The Queen [1992] HCA 13; (1992) 173 CLR 555, said merely that in such a case the proviso would be applied if the appellate court was, 'satisfied that, in the absence of the misdirection, the jury would inevitably have reached the same verdict'.

154 In separate reasons, Deane and Gaudron JJ expressed themselves in similar terms, at 12 - 13. They said:

The traditional test of whether there has been a substantial miscarriage of justice for the purposes of the proviso is that laid down by Fullagar J in Mraz v The Queen [1955] HCA 59; (1955) 93 CLR 493 at 514, to which we have already referred, namely, whether the accused lost 'the chance of acquittal which was fairly open'. That test is one which reflects the issue raised when it is argued that a conviction should be set aside. When it is argued that the conviction should be upheld, the issue is usually expressed as being whether the jury would inevitably have reached the same verdict even if the error in question had not occurred.

155 All of the judges in Glennon referred to the decision in Wilde, and the proposition advanced in that case, that in a case where there had been a fundamental irregularity in the trial process, the proviso would not be applicable in circumstances where it could be said that the accused had not, in truth, had a proper trial at all. As to the case before them, Mason CJ, Brennan and Toohey JJ said:

Although the right to silence is a fundamental right of any accused person, it cannot be said that any misdirection on that subject is a fundamental irregularity of the kind discussed in Wilde. In this case, the trial judge directed the jury that they were not to use the applicant's exercise of his right to silence in a manner adverse to him. This direction was perfectly proper. However, the trial judge then qualified the direction by informing the jury that they might use the applicant's silence to test the veracity of the applicant's defence. This subsequent direction was clearly erroneous. However, in the context in which it appeared and at a trial in which there was other evidence on which the applicant could be convicted and in which there was no other misdirection by the trial judge, the trial judge's misdirection was not a fundamental irregularity (8).

156 Deane and Gaudron JJ referred back to their judgments in Wilde, preferring to express the concept which emerged from that case in terms of the incapacity to apply the proviso, 'where, overall, there has not been a fair trial according to law' (12). At the same time, their Honours said that a fundamental error, one involving such a departure from the requirements of the law that it goes to the root of the proceedings, or one so interfering with the concept of a fair trial that the proceedings could hardly be described as a trial at all, would be cases which would qualify for the description that there had not, overall, been a fair trial according to law.

157 As to the case before them, like the other members of the court, their Honours were not of the view that capacity to apply the proviso turned upon such a test. They said:

There is nothing to give any significance to the misdirection involved in this case over and above that which ordinarily attaches to a misdirection as to the use or evaluation of properly admitted evidence. Accordingly, there is no basis for an argument that, overall, there was not a fair trial according to law and, thus, no scope for the operation of the proviso (13).

158 A more recent case, which is similar factually, in which the proviso was applied is the case of Jones v The Queen [2005] NSWCCA 443. The appellant's wife witnessed an incident which led to the appellant being charged and convicted of the malicious wounding of the complainant. She declined to make a statement to the police prior to the trial, but she gave evidence that in fact it was she and not the appellant who assaulted the complainant. The prosecutor submitted to the jury that they should disbelieve the witness on the basis that she had not come forward and taken the blame when her husband was charged. The trial judge did not direct the jury that they should draw no inference adverse to either the appellant or his wife as a result of her silence during the police investigation. In that case, as in this therefore, if the credibility of the appellant's wife was damaged, and she was not believed, then neither would the appellant, whose evidence was consistent with that of his wife, be believed. Again, there are evident parallels between that case and this.

159 The judgment of the NSW Court of Criminal Appeal was given by McClellan CJ at CL, Simpson and Hoeben JJ agreeing. His Honour held, at [82] - [90], that, whether at common law or under the relevant provision of the Evidence Act 1995 (NSW), there had been an impermissible derogation from the appellant's right to remain silent, which encompassed not only his own silence when questioned, but his failure to bring forward any person who might support his innocence.

160 As to the application of the proviso which was argued in that case, it is interesting to see that judgment in Jones was delivered on 16 December 2005, the day after the High Court gave judgment in Weiss. Weiss came from Victoria, and there is no reference to the case in the reasons of McClennan CJ at CL in Jones. His Honour referred to Wilde and Glennon. Following the latter decision his Honour held, at [101], that the failure of the trial judge to deal with the evidence in a way which permitted no derogation from the appellant's right of silence, did not constitute a fundamental error of the kind discussed in Wilde, going to the root of the proceedings. On the contrary, the proviso was applied on the ground that the appellant's conviction was inevitable upon the whole of the evidence.

161 In my opinion, the error of the trial judge in this case was not of such a fundamental kind as to go to the root of the proceedings, as to lead to the conclusion that the appellant was afforded no proper trial at all. I accept, of course, that the appellant's right of silence during the police investigation, including his right to say nothing about Ms Littleton at that time, was, in the circumstances of this case, of a fundamental kind recognised by the law and not detracted from by any statutory provision, as these days often occurs.

162 But the error made by the trial judge was that, although he generally instructed the jury that there was to be no derogation from that right, he did not go on to warn them that in considering the credibility of the accused as a witness, and indeed the credibility of Ms Littleton, they should draw no inference adverse to the appellant and/or his witness on the basis that the account given by them was not given immediately upon the appellant being questioned by the police. I can see no reason why the failure to completely instruct the jury about a limitation upon the way they should approach the assessment of the credibility of the appellant and his witness should be regarded as so destroying the presuppositions of a fair trial as to preclude the application of the proviso.

163 On the contrary, it seems to me that that question was to be approached in the ordinary way, authoritatively determined by the decision of the High Court in Weiss. The evidence is reviewed in detail by Miller JA. As I have said, there is no need for me to repeat that discussion. I have summarised what I consider to be the main features of the evidence, and having done so, I now conclude that, upon all the evidence, the appellant's conviction was inevitable. The case against him was overwhelming. Upon my assessment of the evidence, his guilt was proved beyond reasonable doubt. I would dismiss the appeal.