1 I have had the advantage of reading draft reasons prepared by Neave and Priest JJA.

2 In the particular circumstances of this case, I do not think it was necessary that the jury be directed that they had to be satisfied beyond reasonable doubt that the text message was sent by the appellant, although it may have been preferable for the trial judge to have done so.

3 The importance of the question whether the appellant or his daughter sent the message was evident. The trial judge recounted to the jury the appellant's denial that he sent the message, followed by these words:

[Counsel for the accused] properly told you that an accused person is not obliged to give evidence in his or her trial. It is the position at law, as I said before lunch, that the accused is presumed to be innocent. He or she carries no obligation to establish their innocence. The onus of proof rests upon the prosecution to prove the case against the accused. Not for the accused to disprove the case.

4 I am of the opinion, however, that the trial judge erred in failing to direct the jury that they were required to be satisfied beyond reasonable doubt that the text message did amount to a confession of guilt of the crime of rape, that is, that the appellant intended to acknowledge that he had sexual intercourse with the complainant without her consent and that the confession was true.

5 The so-called confession was an important component in the Crown case. It was described by counsel for the respondent as a major plank in that case. Yet the text message itself was somewhat ambiguous. The message was to be construed in the light of, inter alia, the evidence of the appellant that when he woke he pressing 'up against' the complainant. The message was open to the interpretation that the appellant was apologising for being in that position and thus scaring the complainant, rather than apologising for raping the complainant. I think that the jury should have been directed that it was necessary for them to be satisfied beyond

reasonable doubt that the interpretation placed upon the message by the Crown was correct.

6 I agree with Priest JA, for the reasons his Honour has stated, that there was a miscarriage of justice and that the convictions for both rape and supplying a drug of dependence should be set aside. Accordingly, I would allow the appeal and order that the appellant be re-tried.

7 On 29 September 2011, the appellant, Justin Magill, was found guilty by a County Court jury of one charge of rape[1] and one charge of supplying a drug of dependence to a child. He pleaded guilty to one charge of possessing cannabis.

8 On 5 March 2013, Tate JA granted the appellant leave to appeal against his convictions on charges 1 and 3 on two grounds. These were that:

1. The judge erred in directing about the standard of proof.

1. The judge erred in failing to direct the jury about how they could use evidence of the text message alleged to have been sent by the appellant to the complainant and alleged to be an admission of guilt.

9 The first ground of appeal has now been abandoned. The second ground pertains only to the conviction on charge 1.

10 On 26 February 2010 the appellant's daughter M was staying with her father for the weekend. The complainant, C, who was one of M's school friends, was also staying overnight at the appellant's house. The girls were both 14 years old.

11 The girls asked the appellant to buy them some alcohol. The appellant took them to a bottle shop and bought a bottle of vodka and four cans of Pulse, an energy drink mixed with vodka. They returned to the house and began drinking. It was

alleged that the appellant also rolled some cannabis joints and allowed the complainant to smoke some of the joint. The appellant's daughter retired to her room feeling unwell. The complainant remained in the lounge room with the appellant. She felt sick, vomited and eventually passed out on a blow-up mattress in the lounge room.

12 The complainant's evidence was that she awoke lying on her stomach and 'could feel myself going up and down, like sliding along the blow-up mattress, and [the appellant] was on top of me'. She said that her face was sliding up and down the mattress and she screamed and tried to hit the appellant. Her tracksuit pants and underpants were around her knees and the complainant could feel the appellant's penis inside her. The complainant was asked how she knew she was being penetrated by the appellant's penis and she said:

his hands were over like that so he was holding himself up and...so obviously it was.

13 The complainant gave evidence that she resisted and told the appellant 'if you let anything go inside of me I will slit your throat'. She rolled over and tried to hit the appellant. He stopped and apologised repeatedly, claiming that he thought she had been someone else.

14 The complainant collected some of her belongings from her friend's bedroom and ran up the highway. She said that while she was putting on her shoes, the appellant kept opening the door of M's room and saying he was sorry and she kept swearing at him.

15 The complainant said she had initially phoned her older brother, but that his phone was turned off. She then phoned two friends for help. The mother of her friend J drove to a hotel car park, where they discovered the complainant hiding in the bushes in a distressed state. The friend's mother called the police. The notes of Senior Constable Neubecker, one of the police officers who attended the scene, recorded that the complainant had said that the appellant's daughter had run after the complainant yelling out: 'He didn't mean it'.

16 In cross-examination the complainant denied telling Constable Neubecker that her friend M had run after her, but said that this might have got mixed up with the fact that while she was running up the highway M had phoned her. M had wanted her to come back and said that her father was 'really pissed and stoned and didn't mean it'. The complainant said she had told her to 'fuck off'. The complainant said she thought she had received only one phone call while she was running up the road, or only one that she answered and that M didn't seem to know what she was saying and 'seemed like she was still asleep'. In the early hours of the morning three phone calls in quick succession were recorded between the appellant's phone and the complainant's phone. One was very short and the other two were longer.

17 The complainant was seen by a forensic medical officer, Dr Phillippa Shilson at 5:30 am on 27 February 2010. Dr Shilson's evidence was that the complainant had given her a history of 'thrusting vaginal penetration', but at that time the complainant was uncertain whether the penetration had been vaginal or penile. The complainant told the doctor she had consumed four cans of Pulse, vodka shots and vodka and had smoked a joint. The doctor said that the complainant said she had not previously drunk alcohol. This was inconsistent with her evidence that the appellant had previously bought drinks for M and her.

18 The doctor said that the complainant refused to have a physical examination, saying that 'I'm not confident with my body. I don't undress in front of anyone'. She had told the doctor that if she went to a gym she would change her clothes in the toilet, rather than in an area where others would see her. In cross-examination the complainant said she refused to be examined, despite the doctor's explanation as to why this should be done because, 'at the time I did not want to be touched by absolutely anyone'.

19 Dr Shilson asked the complainant to insert a tampon, on which the doctor later observed a spot or streak of fresh blood. Dr Shilson said that the insertion of a clean tampon would not normally cause bleeding. No semen or male DNA was detected. Dr Shilson said in cross-examination that:

If there was just penetration of skin on skin without ejaculation, it is much less likely [that contact would] leave DNA that can be salvaged.

20 Blood and urine samples taken from the complainant confirmed the presence of cannabis and alcohol in the complainant's system. The evidence of Ms Crump, a toxicologist, was that the cannabis was at a relatively low level, and could have been used in the last day, last week or several weeks, depending on whether the person was a chronic user. In response to a question from the judge the toxicologist said that the alcohol concentration in the blood sample collected at around 7 am in the morning was consistent with a blood alcohol content of about 0.1% at midnight the night before.

21 The complainant was cross-examined about the fact that she had told the doctor that she was not sure whether the appellant had put his finger or his penis into his vagina. She said that by the time she was interviewed by the police she had realised it must have been penile penetration, because he was supporting himself with his hands next to her.

22 She was also cross-examined about her inconsistent statements about whether she had previously used cannabis and alcohol. In her VATE the complainant initially said that the appellant was rolling joints and she had initially 'had a few drags because she thought it was a normal smoke' but then noticed it was not, so she gave it back. It was put to the complainant in cross-examination that she told J's mother C that the accused had been rolling joints and giving them to her and M. She said that she could not remember if she had told C that, but said that the appellant had not given cannabis to M, adding that M did not smoke cannabis. She admitted to having used cannabis previously and said it was not the first time she had smoked cannabis at M's house. It was put to her that she had lied to the police about this and she said that she did not admit to the police she had used cannabis previously, because her mother was watching her being interviewed.

23 M gave evidence for the Crown, having been advised that she was not required to give evidence against her father. M said that when she and the complainant had previously stayed with M's father they would have some alcohol, but that on the night of the alleged offending 'this was the most I had ever drunk, both of us'. She said that she had never seen her father give the complainant cannabis, but that she (M) had previously been offered cannabis by her father. Although her father was smoking cannabis on the night of the offence she had not seen the complainant smoking cannabis that evening. She did not recall phoning the complainant in the early hours of the morning.

24 M said she had woken up about 10 am the next morning and called the complainant on the appellant's phone, before the appellant had woken up. The complainant had simply told her that she had gone home early and had then terminated the call. She said that the complainant 'didn't really answer anything properly and she seemed really upset'. A phone call was recorded between the appellant's phone and the complainant's phone at about 10.04.

25 At 10:30 am on 27 February 2010 a text message was sent to the complainant from the appellant's phone. It read:

Dad is so fucking sorry, he was stoned and pissed. He had no idea what he was doing and I know sorry doesn't cut it. But he really has a lot of respect for you and if knew it was you he would never have did it. Please (C), I'm so fucking sorry. And my dad is too. He love U as a daughter and he is sorry and so am I.

26 M's evidence was that she began writing a text message to the complainant but the appellant had said he would do it for her, taken the phone from her, finished the text message and sent it. The appellant's daughter gave evidence that she wrote 'Hey, it's (M)' before the phone was taken from her.

27 In cross-examination it was put to M that it was she who had sent the text message to the complainant. She said that 'I've said from the start that he's written that and I remember him writing that'.

28 N was the first friend contacted by the complainant after she left the appellant's house. N's evidence was that she had been woken up after midnight after the complainant's call. The complainant was distressed and said that 'something bad had happened and she didn't know what to do and she had lost her virginity'. After a couple of phone calls between the complainant said she would try and contact another friend J, to come and collect her.

29 J's evidence was that she had been phoned by the complainant at around 1.30 in the morning. The complainant was crying and hysterical and said she had left M's house after being raped by M's father. J and her mother C went to pick up the complainant who was hysterical when they got there. The complainant told J said that she had been raped and said that 'her box was burning'. She said the complainant had said that she was asleep. She felt 'movement' and thought that her covers were being pulled on to her, but then felt her pants coming down and pressure and weight on her back. She had said that the accused had bought them Vodka and given them marijuana.

30 J's mother C said that when she picked up the complainant she was hysterical and had said that the appellant had 'stolen her virginity' and that 'her box was burning'. She said she had been given vodka and cans of Pulse by the appellant and he had rolled some cannabis joints. The complainant gave C an account of a sexual assault by the appellant similar to that which she later gave at the trial.

31 In his evidence the appellant admitted to buying alcohol for M and the complainant, but denied giving the complainant cannabis. He said that on the evening of the alleged offending he was sitting on a bean bag watching television when he fell asleep. The bean bag was in front of the television set and was leaning against the couch. He said that when the blow-up mattress was brought into the lounge room it had been placed resting up against the back of the couch. He did not recall the mattress being moved to the floor in front of the couch from behind it.

32 When he awoke he was lying sideways on the bean bag and the complainant was 'up against him'. She had said 'What are you doing? What's going on'. He said he had told her that he 'didn't even realise you were there and I'm sorry and had then said that 'I wouldn't do anything untoward'. The complainant had got up and gone to M's room. After she had left the house he woke up his daughter and told her that the complainant had 'freaked out and asked her to make a phone call and make sure that the complainant was OK'. His daughter had gone out the front of the house and returned saying the complainant said that her brother was going to pick her up. As I have said, the daughter did not recall going out of the house or making the call, although the complainant said she had received a call from her friend while she was running up the road.

33 The appellant said that in the morning he had a conversation with M and asked her to ring the complainant. He had said 'I don't want her to think that something untoward has happened or anything else like that'. His daughter had told him that the complainant seemed all right but was very quiet. The appellant denied offering his daughter or the complainant cannabis that evening and said he had never offered cannabis to his daughter. He denied having intercourse with the complainant and said that he had a hand injury which would have prevented him from holding himself up on the mattress in the manner described by the complainant.

34 The appellant denied having, or attempting to have, sexual intercourse with the complainant. He was cross examined about the text message as follows.

COUNSEL: The next day you sent the text message apologising again.

No, my daughter sent that message.

COUNSEL: Admitting you raped her.

That is not true.

35 It was put to him that he had apologised to the complainant when she woke up and he said that he apologised for scaring her and denied saying that he thought she was someone else.

36 In his jury charge the judge summarised the Crown submissions as follows:

Ms Sleeth put to you that [C] was telling you the truth, and that you should accept her evidence as to what happened. She said that in some ways, the evidence of [C] was supported by [M], her friend. And that the text message which she said you ought to accept on the basis of [M]'s evidence was sent by the accused man, really is an admission by the [accused] if you accept that it was sent by the accused, is an admission by him that there was sexual conduct between himself and [C].

That, she put to you, is only consistent with a reading of what is on the text. He had no idea what he was doing, she told you, respects you a lot. If he knew it was you, he would never have done it. 'Please, [C], I'm so fucking sorry, and my dad is too. He loves you as a daughter, and he is so sorry, and so am I,' et cetera. The prosecution place store in that text. If you accept that it was sent by [the accused] not by [M], but by the accused as [M] says, the prosecution say, well, that is an admission on the part of the accused of the sexual misconduct.

She put to you that the accused man was telling you lies when he gave his evidence. That his account of what occurred was nonsensical and implausible.

37 In summarising the submissions of defence counsel, his Honour referred to matters relied upon to impugn the complainant's credibility. She had lied to the doctor in saying she had not previously used alcohol and had told the police that she had smoked the joint thinking it was 'just a normal smoke' but had handed it back when she noticed it wasn't. This was despite her later admission that she had smoked cannabis before. When giving a history to the doctor she had said she was not in pain but her evidence at the trial was that her vagina hurt after she was penetrated. She had told the doctor that she was not sure whether she was penetrated vaginally or digitally, but in her statement to the police and at the trial she said the appellant had penetrated her with his penis. She had also given evidence that on a previous occasion the appellant had offered to massage her and she had refused. She had not mentioned the massage offer to the police and nor had she told the police that the accused had previously given her cannabis.

38 In discussion prior to the final addresses the prosecutor said that the judge 'might need' to charge the jury in relation to the need to be satisfied that the admission in the text message 'is the truth'. Defence counsel did not add anything to that submission.

39 After the final addresses his Honour raised with counsel the fact that there was no evidence from the accused about the circumstances in which the text message was sent. The prosecutor drew the judge's attention to the accused's evidence that it was his daughter who had sent the message. Defence counsel then accepted his Honour's statement that the defence case was that, as in the telephone conversation between the complainant and M which was said to have occurred while the complainant was running down the road, the substance of the text reflected M's knowledge that the accused was concerned about the complainant. Defence counsel did not submit that a Burns[2] direction should be given because the text message was ambiguous.[3] Nor did he seek any re-direction after the charge relating to the jury's use of the text message.

40 The appellant submitted that the Crown had relied on the text message as an admission of guilt. Because the text message was a major plank in the case against the appellant the judge should have given a Burns direction which required the jury to be instructed that they must be satisfied beyond reasonable doubt both that the appellant had sent the message and that the only reasonable interpretation of its contents was that the appellant had sexually penetrated the complainant.

41 The appellant submitted that where the Crown relies upon an admission of guilt as part of its case the trial judge is required to tell the jury that they must be satisfied beyond reasonable doubt that:

(b) the evidence was an accurate representation of what the accused said;

(d) that the words used by the accused were intended as an admission that he had committed the acts alleged against him.[4]

42 The appellant submitted that even if, contrary to his primary submission, it would have been obvious to the jury that they must be satisfied beyond reasonable doubt that it was the appellant had sent the text, the jury might not have understood that they had to be satisfied beyond reasonable doubt that the text amounted to an admission to a penile rape. The failure to give such a direction was productive of a substantial miscarriage of justice, because the text was inherently ambiguous and might have simply been an apology made by the appellant because he accidentally woke up in close proximity to the complainant. Alternatively the text could have been an admission to a lesser offence, such as an indecent assault or to a digital rape, rather than an admission of the penile rape which the complainant alleged had occurred. In the absence of a Burns direction, the jury might have considered that if they found that the text message had been sent by the appellant, they must necessarily treat it as an admission of guilt which corroborated the complainant's account of a penile rape.

43 Counsel for the Crown conceded that the admission was an important part of the Crown case but submitted that no miscarriage of justice had occurred as a consequence of the judge's failure to give a Burns direction. The judge had given clear directions to the jury about the criminal standard of proof and there was no need for the same direction to be repeated in relation to the text message. It was inconceivable that the jury would not have clearly understood the need to be satisfied beyond reasonable doubt that the text was sent by the appellant, since the claim that it was not sent by him, but by M, was a central plank in the defence case. Further, at the trial it had never been argued that the words of the text message did not amount to an admission of guilt of the offence charged.

44 In my opinion this ground of appeal fails. All of the authorities relating to the requirement to give a Burns direction, which are relied upon by the appellant,[5] are concerned with confessions, in the sense of statements which fully acknowledge the acts said to constitute the offence,[6] rather than with admissions, which only inculpate the accused in part.[7] The distinction is consistent with the common law principles which were intended to protect accused persons from the admission of involuntary confessions.[8] It cannot be the case that a Burns direction is required whenever the Crown relies on an admission to corroborate other evidence against the accused.[9] That requirement would mean, for example, that a Burns direction would be required if the Crown alleged that an accused had admitted being in the relevant place around the time that a crime was committed.

45 In this case the accused did not confess to the crime. Rather, the text message, if sent by the accused, amounted to an admission that the accused thought that the complainant was 'someone else' and believed he had done something warranting an apology to the complainant.

46 However, even I am wrong in that view and a Burns direction may be required in some situations where it is alleged that the accused has made an admission not amounting to a full confession of guilt, the authorities do not support the proposition that a Burns direction must always be given in such circumstances. In Burns the alleged confession was the only evidence which implicated the accused in the alleged offence. The Crown relied on police evidence as to what the accused had allegedly said when he was interviewed but no typed and signed record of his alleged statement was produced in evidence. The defence case was that the accused had not been interviewed or made any confession and that his confession had been fabricated, or in other words, that he had been 'verballed'. Barwick CJ, Gibbs and Mason JJ (with whom Jacobs J agreed) said:

It is clear and elementary law that once a confessional statement has been admitted into evidence its weight and probative value are matters for the jury. It is for the jury to determine whether the alleged confession was made and whether it was true in whole or in part. Unless the jury are satisfied that so much of the confession as tends to show the guilt of the accused was true they cannot treat it as a proof of guilt. However a confessional statement may be only one piece of the evidence against the accused and the jury are entitled to consider all of the evidence together in deciding on their verdict. The nature of the direction necessary to be given properly to instruct the jury as to the use of evidence of an alleged confession must depend on all the circumstances of the case. 'There is no rule of law or of practice which requires the Judge to caution the jury against acting on such evidence or which prescribes any measure of the comment which it is his duty to make upon it.'[10] ...In some cases it may be clear or undisputed that a confession was made and the crucial question may be whether it has any probative value: for example, it may be suggested that the confession had no weight because it was extracted by force or given under a mistake or because the accused when making it was ill in body or disturbed in mind. In a case such as the present, where the accused person alleges that the confession which he is said to have made is a complete concoction, a reasonable jury, once satisfied that the confession was made, might readily be satisfied also that it was true. In such a case the absence of a specific warning to the jury that they should not act upon the confession unless they were satisfied of its truth might be of less significance than in a case where it was not in issue that the statement was

made, but it was claimed that it was untrue.[11]

47 As is apparent from the above passage, their Honours refused to lay down a general rule as to the direction to be given where the Crown relied on an alleged confession. The majority (Murphy J dissenting) also held that the fact that the police knew the accused was in possession of substantial sums of money, after he had allegedly participated in an armed robbery, could be taken into account by the jury, for the purposes of deciding whether his evidence that he had not been questioned by the police at all was truthful.

48 In Brooks[12] the Crown relied upon a confession of guilt made by the applicant to a fellow prisoner, whilst the applicant was on remand and to the police. The applicant submitted that the applicant's low intelligence and, in the case of the confession made to the prisoner, the fact that the confession was made to someone other than a police officer, required the judge to give the jury a specific direction that before the confessions could be relied upon they must be satisfied beyond reasonable doubt that the admission was made and that it was truthful and accurate. That ground of appeal failed.[13] Batt JA noted that:

The absence of an exception by senior counsel then appearing for the applicant to the charge in this regard or of a request by him for such a direction is, to my mind, telling contemporaneous evidence that the direction was not necessary.[14]

49 Batt JA referred to the passage in Burns set out above, noting that if the jury were satisfied that the statements were made it might also readily be satisfied that the statement was true, because there was no evidence suggesting that the applicant was affected by violence, mistake or illness or had made the statement to curry favour or create fear by making a false claim. His Honour said that:

juries are, as a matter of prudence, frequently directed in that way, [that is given a Burns direction] but the authorities cited...do not establish any rule that, whenever a confession is tendered, the jury must be directed in the manner asserted. Indeed, the first of them, Burns, shows that there is no rule prescribing any fixed direction that must be given when evidence of an alleged confession is led. ...

As the passage [from Burns] cited shows, the case is in fact authority for the proposition that there is no fixed requirement to give, even if during the course of evidence, the direction contended for. The other case cited for the applicant, D'Orta-Ekenaike,[15] does not, I think, require a different conclusion.[16]

50 In R v Lewis[17] the applicant had made a number of confessions to different witnesses, which had been held to be admissible against the accused. The applicant's grounds of appeal complained about the trial judge's failure to give a Burns direction. The Court rejected this ground on the following basis.

There is no rule of law or practice which prescribes that, whenever a confession is tendered in evidence, the jury must be directed in the manner in which Mr Holdenson submitted they should have been directed in this case.[18] In some cases, of which D'Orta-Ekenaike is an example, the circumstances may be such that the judge is required, at least as a matter of prudence, to tell the jury that they should be satisfied, before acting on confessional evidence, that the confession was in fact made and/or that it was a truthful acknowledgment of the accused's guilt of the crime charged. That was a case in which the Crown led in evidence and relied upon a plea of guilty tendered at a committal hearing; and the accused asserted that he did not understand the legal or factual ramifications of such a plea and that it had been tendered on advice which had been received at the time. The judge had given no appropriate instruction to the jury as to the manner in which they should approach such evidence and the Court of Appeal took the view that, in the circumstances of that case, the directions were insufficient. Again, in Robertson (above), the alleged admissions were so unspecific that the court concluded that the judge was duty bound to give the jury express directions as to how they should treat and use that evidence.[19] In this case, however, the issues were clear-cut. In respect of the admissions alleged to have been made to Woodbine and Twilley, the defence case was that they were concocted by Woodbine and Twilley. In the case of the admissions made to the police and to Somerville the defence case was that they were deliberate falsehoods concocted by the accused for reasons which he gave. These issues were clearly before the jury, the Crown asserting that in each case they were made and were true; and the defence asserting that in two instances they were not made at all and, in the other two instances, that they were made, but were false. The judge identified those issues and left them to the jury. In our view the circumstances were such, and the issues so clearly defined, that no duty rested upon the judge to tell the jury what must have been clearly apparent to them - namely, that they had to be satisfied that the confessions were made and were true before they could act upon them.[20] ...

[I]n the circumstances of this case where the issues relating to the confessional evidence were so clear-cut and squarely before the jury, there is an air of unreality in the suggestion that the jury needed to be told in express terms that they had to be satisfied of the fact that the respective confessions were made and of their truth before they could act on them. In each instance, there was no room for doubt as to the content or significance of the alleged confession; namely 'I stabbed the deceased'. That was the case which the Crown set out to prove and the applicant set out to meet. Having regard to the full and unexceptionable directions given by his Honour on the onus and standard of proof, it would have been unnecessary surplusage for him to have given the jury the directions now contended for by the applicant. The adequacy of the directions which were given, and the fact that they met the circumstances of the case, is confirmed by the lack of exception taken to this aspect of the charge by the very experienced trial counsel who appeared for the applicant.[21]

51 In R v Green[22] the accused confessed to the police that he had tried to choke the complainant to death. He later said that the confession was untrue and he had made it because he was shocked and under great pressure, having been charged with murder. It was held that the jury should have been directed that they had to be satisfied beyond reasonable doubt that the confession was true. Charles JA said:

It is repeatedly emphasised in these authorities that the need for the jury to be directed that before they can rely on confessional statements they must be satisfied as to the truth and accuracy of those statements beyond reasonable doubt comes from the danger that the jury may not recognise that although these statements were made by the accused, it does not follow that they must be truthful; and that it is more important to give the direction where the accused does not dispute making the statements but says they were not true.[23]

52 In my view this appeal raises a similar issue to that which arose in Lewis, where it was held to be unnecessary for the jury to be warned that they had to be satisfied beyond reasonable doubt that the text message was sent by the accused. It could not have been more obvious to the jury that they could not rely on the text message as providing support for the complainant's account unless they were satisfied that it was sent by the accused, and not by his daughter.[24] The trial judge drew the jury's attention to the answers given by the accused denying that he had sent the text message to the complainant and, in that context, reminded them that the Crown bore the onus of proving the guilt of the accused. As would be expected, his Honour gave clear directions about the need to be satisfied beyond reasonable doubt of the accused man's guilt at several points in his jury charge.

53 Nor do I consider that there was a substantial miscarriage of justice because the judge should have given the jury a special warning that they had to be satisfied that the text message amounted to an admission of guilt of the offence of sexual penetration. My reasons for that conclusion are as follows.

54 First, there was no argument at trial that the language of the text message was ambiguous: the sole battleground in relation to the text message was whether it was sent by the accused or his daughter. The authorities dealing with the approach which appellate courts should take when an argument on appeal was not made at trial are extensively canvassed by Maxwell P and Whelan JA in James v R.[25] The issue in James was whether the failure of the trial judge to direct the jury about the availability of alternative verdicts to the charge of intentionally or recklessly causing serious injury gave rise to a miscarriage of justice in circumstances where he had not been requested to do so by defence counsel. However the principles in that case are not confined to that situation.

55 Appellate courts are reluctant to find that a miscarriage of justice has occurred because of the judge's failure to direct a jury on an issue, when defence counsel has made a rational forensic decision not to pursue that issue at the trial. As French CJ, and Hayne, Kiefel and Bell JJ observed in Patel v The Queen:[26]

Although the law recognises the possibility that justice may demand exceptions, it is a cardinal principle of litigation, including criminal litigation, that parties are bound by the conduct of their counsel.[27] The correctness of their counsel's decision for the most part will not be relevant, for it is the fairness of the process which is in question. Where it can be seen that a failure to object was a rational, tactical decision, the Court is entitled to conclude that no unfairness attended the process.[28]

56 In Tunja v The Queen[29] the prosecution case against the appellant was based solely on admissions he was said to have made to eight people. The trial judge directed the jury that they had to be satisfied first that the accused had made the admissions and secondly that the admissions were true. However the Crown conceded that the judge should not have told the jury that evidence of admissions was permitted to be given because:

normally it is considered to be relatively unlikely that an innocent person would untruthfully implicate himself in a crime or make an untruthful admission of fact against his or her interest.

57 The defence case was that the admissions were not made by the accused. The alternative case that the admissions, if made, were not true, was not advanced. Because defence counsel had chosen not to run the argument that if the admissions were made they were untrue the majority of the Court (Maxwell P and Weinberg JA, Priest JA dissenting) held that the misdirection had not given rise to any miscarriage of justice. In their joint judgment their Honours said that:

Whether there has been a miscarriage is to be assessed by considering the misdirection in the context of the trial as a whole - including, in particular, the issues litigated in the trial - and the importance (or otherwise) of the misdirection in that context. No issue was raised in the appellant's trial about whether the admissions - if made - were true. The only matter put in issue concerning the admissions was the prior question of whether the Crown had proved that the appellant had made the admissions.

As Maxwell P pointed out in James v The Queen, it is well established that the making of an informed decision by defence counsel about which issues to contest is itself an exercise of the right to a fair trial. For that reason, appeal courts attach very great significance to such decisions in considering whether the course of a trial has occasioned a miscarriage of justice.

In the present case, the decision about how to deal with the evidence of admissions was an informed decision of just that kind. That is, there was a rational basis for the decision to concentrate solely on the question whether the admissions were made at all. The taking of that course is explicable on the basis that it was most likely to maximise the prospects of an acquittal. It is readily apparent why defence counsel chose not to run an alternative argument to the effect that, if the admissions were made, they were not true. To have done so would have had obvious forensic disadvantages, not the least being the need to confront the improbability of the appellant having falsely made such similar statements (about having stabbed someone) to so many different people.

The misdirection therefore related to a matter which was not in issue in the trial. In the context of this trial, it occasioned no miscarriage of justice.[30]...

Our conclusion that there was no miscarriage of justice does not depend on any failure by defence counsel to take exception to the impugned passage. The point is a more fundamental one. It is that the defence made a deliberate, rational, decision about how to conduct the trial - a decision to put in issue the making of the alleged admissions, and not to put in issue whether, if the admissions were made, they were truthful.[31]

58 In my opinion a similar situation arose in this case. Defence counsel did not argue that the text had an innocent meaning, but rather that the text message was not sent by the accused. In his closing address counsel for the defence submitted that 'the accused man didn't send that text message, his daughter did. In order to use that you need to be satisfied that he sent it, and what I say to you is you can't be'. Defence counsel did not ask for the direction that the appellant now claims the judge should have given and no exception was taken to this aspect of his Honour's charge. As in Brooks, the absence of any exception by counsel to the charge was 'telling contemporaneous evidence that the direction was not necessary'.[32]

59 It is highly likely that defence counsel took a strategic decision that it would not benefit his client to draw the jury's attention to the words of the text message. Those words were consistent with the complainant's account that when she awoke and felt the accused penetrating her from behind her he apologised and said that he thought she was 'someone else'. The accused denied that he had made this statement. The text message gave a similar explanation, thus adding some credibility to the complainant's account of the appellant's statement when she tried to push him away.

60 Secondly, the Burns direction is required in circumstances where the authority of the judge is required to warn the jury against dangers of which they otherwise be unaware. Prior to statutory provisions requiring recording of police interviews[33] courts took the view that the jury should be informed that:

It is comparatively more difficult for an accused person held in police custody without access to legal advice or other means of corroboration to have evidence available to support a challenge to police evidence of confessional statements than it is for such police evidence to be fabricated.[34]

61 In such circumstances it was considered that there was a need for a special warning to be given, because of the ease of fabrication. In Burns the direction was intended to protect the accused against being convicted on the basis of fabricated or involuntary confessions to crime. In this case it is not alleged that the admission was fabricated by the police (as in Burns) or by the complainant. Nor is it alleged that the admission was false because the accused made it when he or she was vulnerable or under stress, as was the situation in Green. The accused did not claim that he made an untruthful admission because he was attempting to gain some advantage as in Cotic,[35] where the defence case was that the confession in a video-taped statement was false and made for the purpose of obtaining bail, or because he had been advised that if he pleaded guilty he would get a suspended sentence, as in D'OrtaEkenaike[36]. The question whether the text amounted to an admission of sexual misconduct was, in my view, self-evident.

62 Thirdly, there was no dispute as to the content of the text, since it was before the jury. Once the jury were satisfied that the text was sent by the appellant it was for them to decide what it actually meant. In my view the text was not so inherently ambiguous the jury should have been given a special warning. The reference to the appellant having 'a lot of respect' for the complainant seems to me to clearly refer to misconduct of a sexual nature. It is difficult to imagine why the appellant could have sent a message saying that 'if he knew it was you he NEVER would have did it' if his concern was simply that the complainant might have been frightened because she woke up after rolling against him in her sleep. The statement is also inconsistent with the appellant's claim that when he awoke the complainant was up against him, as it implies that he was acting consciously.

63 The appellant's submission that there should have been a direction relating to the meaning of the text message is related to his argument that the jury were not entitled to rely on the admission as corroboration of the complainant's evidence unless it was an admission of the precise offence with which the appellant was charged; in other words rape. But that submission reflects the incorrect assumption that evidence is only corroborative if it is capable of proving the very offence with which the accused was charged.[37] To the contrary, as long as the jury accepted that the accused had made an admission of some form of sexual misconduct, they were entitled to take the text message into account, along with all of the other evidence in the case, in determining whether the appellant's guilt was established beyond reasonable doubt.[38]

64 Fourthly, both Burns and Green support the view that a Burns direction is more likely to be required when the accused admits to making the alleged admission but later gives evidence denying its truth, than in a case where the accused denies making the admission. Here the accused denied sending the text message. If the jury found beyond reasonable doubt that he had done so, the jury were entitled to take account of his denial in interpreting the message. The appellant's denial that he sent the text is capable of giving rise to the inference that he was admitting to sexual misconduct with the complainant.

65 In my view the other evidence in this case reinforces the view that the failure to give a Burns direction did not give rise to any substantial miscarriage of justice. As was the case in Russo,[39] I do not consider that the text message was a necessary link in the chain of reasoning towards guilt. Rather it was a piece of circumstantial evidence which combined with the other evidence in the case, supported the Crown case against the appellant. Even in the absence of the text message there was sufficient evidence for the jury to find the appellant guilty of the offence charged. Although this was an 'oath against oath case', there was other evidence which supported the complainant's account of events, including the fact that she ran out of the house in the middle of the night, the distress which was observed by J and C, when they picked her up shortly afterwards. Some parts of the complainant's evidence were confirmed by independent evidence. The appellant did not deny supplying the complainant and M with alcohol. The complainant's account of receiving a phone call on the appellant's phone after she ran out of the house was confirmed by telephone records. The doctor's evidence supported the complainant's assertion that she had been penetrated and the complainant gave a credible

explanation as to why she had initially told the doctor that she did not know whether the penetration was digital or penile, but later gave evidence that it was penile penetration.[40] In response to crossexamination the complainant said that she had not initially told the police that she had previously smoked cannabis with the appellant because her mother was present, and that her mother was also present when she told Dr Shilson that this was the first time she had drunk alcohol. In my view that explanation was entirely persuasive.

66 I have concluded that the failure to give a Burns direction did not give rise to a substantial miscarriage of justice. However, even if that view is wrong, the lack of a Burns direction had no relevance to the appellant's conviction for supplying a drug of dependence to a child. His Honour gave a detailed direction to the jury that they must consider each charge separately 'in the light of the evidence that relates to that particular charge'. In these circumstances the verdict of guilty on charge 1 would not have so coloured the jury's approach as to make the conviction on charge 3 unsafe. Thus, even if the conviction for rape were to be set aside and the matter remitted for retrial, the appeal should be dismissed in relation to the conviction on charge 3.

68 Neave JA, whose reasons I have had the advantage of reading in draft, has concluded that there has been no substantial miscarriage of justice in this case. I cannot agree. In my opinion, for reasons that follow, the convictions on both charge 1, rape, and charge 2, supplying a drug of dependence to a child, should be quashed

69 Given, however, that Neave JA helpfully has set out the evidence and the history of the proceedings, I am relieved of the necessity of myself doing so, save to the extent necessary to make my reasons comprehensible.

70 The sole ground of appeal alleges error in the judge's failure 'to direct the jury about how they could use evidence of the text message alleged to have been sent by the appellant to the complainant and alleged to be an admission of guilt'.

71 Counsel for the respondent, Mr Kidd S.C., accepted in argument on the appeal that the text message 'was a major plank in the Crown case'. So much, in my view, could not be gainsaid. He also submitted, however, that 'the complainant gave evidence of an episode which was unequivocally rape'.

72 Mr Tehan QC, who appeared with Mr Pillai for the appellant, in reliance upon Burns,[41] submitted that the jury could only use the text message if satisfied that it contained an admission by the appellant to the offence of rape, and that such admission was truthful. He submitted that it could not be said conviction was inevitable[42] absent a Burns direction, because the Crown had relied on the text message as an admission and as an important part of its case; the Crown, recognising the need for a proper direction so as to avoid a possible miscarriage of justice, had requested the trial judge to give a specific direction on the use of alleged admissions; and yet the judge failed to give the requested direction.

73 It will be remembered that defence counsel put to M that she had sent the text message, not the appellant; and that the appellant gave evidence denying that he had sent the message. In my opinion, before the jury were able to use the text message in proof of the appellant's guilt, it was necessary that they be satisfied beyond reasonable doubt of three things: first, that the appellant, and not M, was the author of the text message; secondly, it contained an admission to the crime of rape (or, at least, an intentional sexual act without consent); and thirdly, in so far as it contained an admission of rape (or an intentional sexual act without consent), it was true.

74 In Burns, Barwick CJ, Gibbs and Mason JJ described it as 'elementary law' that once a confessional statement has been admitted into evidence it is for the jury to determine whether the alleged confession was made and whether it was true in whole or in part.[43] There are many cases where a miscarriage of justice has been found to have occurred where an admission was an important part of the prosecution case but the trial judge failed to direct the jury in accordance with Burns that they must find first, that the admission was made, and , secondly, that it was true.[44] Indeed, such a direction has been described as 'conventional' or 'standard' for 'cases where the Crown relies in part on statements, made by way of admission or confession, to support its case'.[45]

75 Neave JA has drawn attention to what Batt JA said in Brooks,[46] that 'there is no rule prescribing any fixed direction that must be given when evidence of an alleged confession is led'. Every case must depend on its own particular facts, and Brooks was, in context, an unusual case. The confession there impugned was made to a prison informer, who attracted 'a detailed and very strong prison informer's direction', including that it would be 'dangerous in the extreme' to act on his evidence in the absence of independent supporting evidence.[47] Thus, in the peculiar circumstances of that case, the Court was of the view that there was no miscarriage of justice occasioned by the failure to give a Burns direction, although Batt JA (with the concurrence of Phillips CJ and Buchanan JA) acknowledged that 'juries are, as a matter of prudence, frequently directed in that way'.[48] Indeed, notwithstanding the very strong warning given to the jury, Batt JA said 'that I respectfully think that it would have been preferable, though I have decided that it was not necessary, to give the direction'.[49] No direction or warning akin to that attaching to the confessional evidence in Brooks attended the crucial evidence in this matter. In my view, the facts of Brooks are unique to that case, and provide little guidance in the resolution of this appeal.

76 There was a live dispute in this case as to whether the appellant was the author of the whole or any part of the text message. Given that the text message was a major plank in the Crown case, in my opinion the judge needed to instruct the jury in emphatic terms that before they could use it in proof of his guilt the jury needed to be satisfied beyond reasonable doubt that the appellant was the author of the message. He did not do so.

77 Moreover, the terms of the text message itself were far from an unequivocal admission of rape. (The appellant, it will be remembered, gave evidence of waking pressing against the complainant.) Thus, in my view, the judge needed to instruct the jury that if they found that the appellant authored the text message, they could not act on it in proof of the appellant's guilt unless satisfied that he intended it to be an acknowledgment of the crime of rape (or, at least, an intentional sexual act without consent), and that such acknowledgment was true. Again, he did not do so.

78 Neave JA has carried out a detailed analysis of the evidence and has concluded that justice did not miscarry. I do not agree.

79 True it is that the complainant gave evidence of waking up, finding her pants and underpants around her knees and with the appellant on top of her with his penis in her vagina; and that she made a recent complaint of rape to two friends whilst in a distressed state. But she had also told a physician who examined her within a few hours of the relevant events that she was uncertain whether she had been penetrated with a finger or penis, in circumstances where she had awoken from sleep following having been heavily intoxicated. And as has been observed, the appellant gave sworn evidence that he woke up pressing against the complainant, and had apologised.

80 The Crown case was one of penile-vaginal rape. I find it impossible to say that conviction for rape would have been inevitable if the appellant had been the beneficiary of the directions concerning alleged admissions to which he was entitled.[50] Properly instructed, the jury were not have been required to accept the complainant's version to the criminal standard and reject the appellant's version. Hence the conviction for rape should be quashed. Given that the jury's consideration overall may have been coloured by their approach to the admissions, in my opinion the conviction for supplying a drug of dependence must also be set aside. A retrial should be ordered.

[1] He was acquitted of an alternative count of sexual penetration of a person under the age of 16.

[2] Burns v The Queen (1975) 132 CLR 259 ('Burns').

[4] In support of those propositions he relied on Brooks [1999] VSCA 5; (1991) 103 A Crim R 234; Cotic v R [2000] WASCA 414; (2000) 118 A Crim R 393, 394-6_; R v Green_ [2002] VSCA 34; (2002) 4 VR 471, 481,[31] (Charles JA); R v Perera [1986] 1 Qd R 211, 217-9.

[5] As was R v Schaeffer [2005] VSCA 306; (2005) 13 VR 337.

[6] And possibly also the necessary mens rea.

[7] For discussion of this distinction see Mark I Aronson, Jill B Hunter and Mark S Weinberg, Litigation Evidence and Procedure (4th ed, 1988) 452,[16.12] See also Hazim (1993) 69 A Crim R 371, 380 (Coldrey J) (Brooking and Teague JJ agreeing). In R v Russo (No 2) [2006] VSCA 297, [11] Nettle JA treated the Burns direction as applicable to some admissions. However he held that once the jury were satisfied that the admission was made it might readily be satisfied that it was true. Neave JA and King AJA concurred.

[8] See for example R v Lee [1950] HCA 25; (1950) 82 CLR 133, 144.

[9] The distinction between confessions and admissions was reflected in s 141 of the Evidence Act 1928, and later in s 149 of the Evidence Act 1958, which modified the common law principles relating to the admissibility of confessions, where the defence alleged that the confession was involuntary, because it was induced by a threat or promise. In R v Lee [1950] HCA 25; (1950) 82 CLR 133 it was held that s 141 applied only to confessions. For discussion of the history of these provisions see Cornelius v The King [1936] HCA 25; (1936) 55 CLR 235, 238-239 (Starke J), 245-246 (Dixon, Evatt and Mc Tiernan JJ).

[10] Ross v The King [1922] HCA 4; (1922) 30 CLR 246, 255.

[11] [1975] HCA 21; (1975) 132 CLR 258, 261. In Burns the High Court held that a direction should have been given but refused special leave to appeal because the trial judge had, in the course of the trial had in the course of the trial warned the jury that they should not rely on the confession unless they were satisfied that it was truthful and accurate.

[12] [1999] VSCA 5; (1999) 103 A Crim R 234.

[13] Ibid 246. It should be noted that the judge had given a direction about the unreliability of the evidence of the prison informer.

[15] [1998] 2 VR 140, 147. This was a case in which the accused had pleaded guilty at committal and later said he had done so because of his counsel's advice and the belief he would receive a suspended sentence. The appeal was allowed on the basis that the jury should have been given a strong warning that they had to be satisfied beyond reasonable doubt that the plea was and was intended to be a true acknowledgement of the accused's guilt.

[16] Brooks, 247. See also R v Schaeffer [2005] VSCA 306; (2005) 13 VR 337, 353 [70] (Eames JA), note also the criticisms made at 341,[12]-[13] (Ormiston JA); R v Russo (No 2) [2006] VSCA 297, [11] (Nettle JA); R v PFG [2006] VSCA 130.

[17] (2000) 1 VR 2 90.

[18] Ross v R [1922] HCA 4; (1922) 30 CLR 246, 255; Burns v R [1975] HCA 21; (1975) 132 CLR 258, 261; R v Brooks [1999] VSCA 5; (1999) 103 A Crim R 234, 247.

[19] [1998] 4 VR 30, 40-1.

[20] Compare McKay v R [1935] HCA 70; (1935) 54 CLR 1, 7 (Latham CJ); R v Burns [1975] VicRp 25; [1975] VR 241, 259 (Pape, Menhennitt and Nelson JJ).

[21] [2000] VSCA 140, [101].

[22] [2002] VSCA 34; (2002) 4 VR 471.

[25] [2013] VSCA 55. Note that the High Court has granted special leave to appeal in James v The Queen [2013] HCATrans 183 (16 Aug 2013). See also A J S v The Queen [2005] VSCA 288; [2005] 12 VR 563, 577.

[26] [2012] HCA 29; (2012) 290 ALR 189, 214 [114].

[27] Nudd v The Queen [2006] HCA 9; (2006) 80 ALJR 614 at 618 [9]; [2006] HCA 9; 225 ALR 161 at 164.

[28] Suresh v The Queen [1998] HCA 23; (1998) 72 ALJR 769 at 772 [13], 773-774 [22]-[23], 780 [55]-[56]; [1998] HCA 23; 153 ALR 145 at 149, 151, 160; [1998] HCA 23; Ali v The Queen [2005] HCA 8; (2005) 79 ALJR 662 at 664 [7], 677 [98]-[99]; [2005] HCA 8; 214 ALR 1 at 4, 21-22; [2005] HCA 8; Tully v The Queen [2006] HCA 56; (2006) 230 CLR 234 at 280 [149]; [2006] HCA 56; Nudd v The Queen [2006] HCA 9; (2006) 80 ALJR 614 at 618-619 [9]; [2006] HCA 9; 225 ALR 161 at 164-165.

[29] [2013] VSCA 174 ('Tunja'). Special leave was requested to appeal to the High Court on 16 August 2013 and the application is yet to be heard.

[33] See for example, Crimes Act 1958 s 464H.

[34] McKinney v R [1991] HCA 6; (1991) 171 CLR 468, 475-6

[35] Cotic v R [2000] WASCA 414; (2000) 118 A Crim R 393.

[36] [1998] 2 VR 140.

[37] See Bui v The Queen (211) 215 A Crim R 93.

[38] See also Doney v R [1990] HCA 51; (1990) 171 CLR 207.

[39] [2006] VSCA 297, [15] (Nettle JA).

[40] A conviction for rape could have been sustained even if she could not be certain whether the penetration was digital or penile. In El-Waly v The Queen [2012] VSCA 184, this Court dismissed an appeal based, among other things on the ground that the Crown was permitted to amend the presentment to include digital penetration, even though the complainant had alleged penile penetration and the fact that the judge had left the possibility of digital penetration open and directed the jury that it did not have to be unanimous as to whether the penetration was digital or penile.

[41] Burns v The Queen [1975] HCA 21; (1975) 132 CLR 258 ('Burns').

[42] Baini v The Queen [2012] HCA 59; (2012) 246 CLR 469; Andelman v The Queen [2013] VSCA 25.

[44] R v Robertson [1998] 4 VR 30, 40-1; R v Green [2002] VSCA 34; (2002) 4 VR 471, 481-2 [31]-[32]; R v Alexander & McKenzie [2002] VSCA 183; (2002) 6 VR 53, 79-80 [55]; R v Buckley [2004] VSCA 185; (2004) 10 VR 215, 224 [30]; R v Schaeffer [2005] VSCA 306; (2005) 13 VR 337, 341 [13], 352 [65]; CG v R [2011] VSCA 211, [11]. Compare R v Brooks [1999] VSCA 5; (1999) 103 A Crim R 234; R v Lewis [2000] VSCA 140; (2000) 1 VR 290; R v Koeleman [2000] VSCA 141; (2000) 2 VR 20.

[45] R v Schaeffer [2005] VSCA 306; (2005) 13 VR 337, 341 [13] (Ormiston JA), 352 [65] (Eames JA).

[46] R v Brooks [1999] VSCA 5; (1999) 103 A Crim R 234, 247.

[50] Baini v The Queen [2012] HCA 59; (2012) 246 CLR 469; Andelman v The Queen [2013] VSCA 25.