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[2021] HCA 44
appellant. Appeal allowed. Order of the Court of Appeal of the Supreme Court of Queensland made on 8 May 2020 set aside. In its place, order that the appeal to that Court be allowed, the appellant's...
2 cited instruments linked from this judgment.
The High Court decided that Malcolm Orreal must receive a new trial because the first trial was unfair. Both he and the 12-year-old girl who accused him of sexual abuse had the same common herpes virus. That fact was irrelevant and should never have been put before the jury. The prosecutor said it was neutral but still something the jury could think about with their life experience. The judge told the jury to consider it along with everything else instead of ordering them to ignore it completely. Because the entire case depended on whether the jury believed the girl's account, higher judges cannot simply decide for themselves that the virus evidence made no difference. They do not see and hear witnesses the way a jury does. The error created a real risk that the jury used the virus evidence to believe the girl when they otherwise might not have. Therefore the convictions cannot stand and a fresh jury must decide the case without that evidence.
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2,907 words · generated 24/04/2026
The appellant, Malcolm Laurence Orreal, was convicted after a four-day trial in the District Court of Queensland on three counts of unlawfully and indecently dealing with a child under 16 years contrary to s 210(1)(a) of the Criminal Code (Qld) and two counts of rape contrary to s 349 of the Code. The offences were alleged to have occurred on the evening of 29 January 2017 when the 12-year-old complainant and her family were staying at the appellant's home as he was a family friend. The complainant gave evidence, both in a police interview the next day and in pre-recorded evidence at age 14, that while watching a movie on the appellant's bed he rubbed her back and legs, touched her genitals, made her touch his erect penis, digitally penetrated her vagina, then pulled down her shorts and penetrated her vagina with his penis causing her pain. She said she was crying throughout. After the appellant left the room she checked that her mother was asleep, returned to the bed when he came back, then later went to sleep beside her 11-year-old sister on the couch. The sister gave evidence that the complainant was crying quietly and shaking and that she comforted her. The following day the complainant told her mother, who took her to police. Medical examinations on 30 January 2017 and 9 February 2017 revealed genital redness consistent with blunt force trauma and a traumatic break of the hymen. Dr Waugh, a specialist paediatrician, gave evidence that the injuries were consistent with penetration by a penis or multiple digital insertions "a matter of days" before the first examination.
During the trial, evidence was admitted by consent that both the complainant and the appellant had tested positive for herpes simplex virus type 1 (HSV-1). The complainant had been tested at her first medical examination; the appellant had a urethral swab on 8 February 2017 that was negative and a blood test on 10 February 2017 that was positive. It was formally admitted that it was unknown whether the 15-year-old boy who had on one occasion performed oral sex on the complainant had or has HSV-1. That evidence of the complainant's prior sexual activity was led by the prosecution with leave under s 4 of the Criminal Law (Sexual Offences) Act 1978 (Qld) after discussions between counsel, without objection from the defence. Dr Waugh explained that HSV-1 causes cold sores but is commonly found as a genital infection, remains in the body lifelong, can be shed intermittently, and can be transmitted orally or genitally. He could not say when either the complainant or the appellant had acquired the virus, whether either was shedding at relevant times, or from whom the complainant had acquired it.
In her closing address the prosecutor told the jury that the "herpes thing is not the lynchpin in this case. It's very neutral, really" and suggested the complainant might have caught it from her boyfriend's mouth rather than the appellant's penis, yet added that "both of them do have the same virus. It's a sexually transmissible virus" and "it's a matter for you with your life experience what you make of that". Defence counsel submitted that the evidence proved nothing and did not strengthen the prosecution case. In summing up the trial judge recited the admissions, summarised Dr Waugh's evidence that it was not possible to say when or from whom the complainant contracted the virus, and told the jury: "You might think that evidence does not really help you one way or the other. ... You just take that evidence into account along with all of the other evidence."
The jury convicted on all counts. On appeal to the Court of Appeal of the Supreme Court of Queensland the majority (Mullins JA and Bond J, McMurdo JA dissenting) held that a miscarriage of justice had occurred because the trial judge failed to direct the jury to disregard the HSV-1 evidence in its entirety, but that no substantial miscarriage of justice had actually occurred within the meaning of the proviso in s 668E(1A) of the Code. The majority reasoned that the evidence did not impact on the jury's assessment of the complainant's reliability or credibility and that, making due allowance for the limitations of proceeding on the record, the properly admitted evidence proved guilt beyond reasonable doubt. McMurdo JA dissented on the basis that there was a significant possibility the evidence had been misused to support the complainant's account, preventing the appellate court from reaching that satisfaction.
The High Court (Kiefel CJ, Keane, Gordon, Steward and Gleeson JJ) unanimously allowed the appeal, set aside the Court of Appeal's order, allowed the appeal to that Court, quashed the convictions and ordered a new trial.
The High Court decided the case on the basis that the Court of Appeal had misapplied the proviso in s 668E(1A). Both judgments emphasised that the proviso can be applied only where the appellate court is itself persuaded, after considering the whole of the record and the nature and effect of the error, that the evidence properly admitted at trial establishes guilt beyond reasonable doubt. Kiefel CJ and Keane J observed that the HSV-1 evidence had no probative value and was inadmissible. Its admission, coupled with the prosecutor's and trial judge's failure to direct the jury to disregard it in unequivocal terms, created a significant possibility that the jury would misuse it to support acceptance of the complainant's account. McMurdo JA's dissenting analysis in the Court of Appeal was approved on this point.
The joint judgment of Gordon, Steward and Gleeson JJ developed the point further. They noted that the prosecution case rested on the complainant's evidence and that her reliability and credibility were central issues. The appellant's case was that she was an unreliable narrator and that there might be innocent explanations for the physical findings. In those circumstances the impugned evidence was significantly prejudicial. The prosecutor's invitation to the jury to use their "life experience" in relation to a sexually transmissible virus shared by the complainant and the appellant, and the trial judge's direction that the jury could "take that evidence into account along with all of the other evidence", left the jury free to reason that the shared virus supported the complainant's version or dispelled doubts about it. The volume of attention given to the evidence over the course of the trial increased that risk.
Crucially, because proof of guilt was wholly dependent on acceptance of the complainant's evidence, and the error may have affected that acceptance, the appellate court could not accord the verdicts the weight they would otherwise carry. The majority of the Court of Appeal had erred by finding that the evidence did not impact upon the credibility or reliability of the complainant and by placing weight on the guilty verdicts. Citing Pell v The Queen, the Court reiterated that the assessment of credibility based on seeing and hearing a witness is the province of the jury. Appellate courts do not perform the same function in the same way and labour under "natural limitations" when proceeding on the record. This was not a case in which the complainant's evidence was glaringly improbable on the transcript; therefore the Court of Appeal could not be satisfied beyond reasonable doubt of guilt. The nature and effect of the error thus prevented application of the proviso.
The Court also noted that while the defence had made a forensic choice to allow the HSV-1 evidence in order to adduce the complainant's prior sexual activity, that choice did not preclude a finding of miscarriage once the trial judge failed to correct the error in summing up. The respondent ultimately conceded that a miscarriage had occurred, so the only live question was the proviso. The Court held that it could not be applied.
Before Orreal the law on the proviso was settled by Weiss v The Queen, which requires an appellate court to consider the whole of the record and the nature and effect of the error and to be satisfied that guilt was proved beyond reasonable doubt on the properly admitted evidence before it may dismiss an appeal despite a miscarriage of justice. Kalbasi v Western Australia had clarified that some errors, including those in cases turning on contested credibility or wrong directions on elements, may prevent the appellate court from undertaking that assessment at all. Pell v The Queen and Hofer v The Queen had emphasised the natural limitations of appellate review on the record and the distinct function of the jury in assessing credibility based on demeanour and the collective deliberative process.
Orreal applies those principles to a concrete factual setting involving inadmissible but prejudicial propensity-like evidence left before the jury without proper direction in a sexual offence prosecution resting on a child's evidence. The decision confirms that where the error carries a significant possibility of affecting the jury's acceptance of the complainant's account, an appellate court cannot overcome the natural limitations by simply declaring the evidence "neutral" or "incapable" of assisting. The Court of Appeal's approach, which treated the absence of an express link between the HSV-1 evidence and credibility in counsel's addresses as decisive, was held to have overlooked the prejudicial effect that the evidence might have had when combined with the prosecutor's and judge's invitations to the jury to consider it with their life experience.
After Orreal, trial judges in Queensland (and elsewhere) must give clear, unequivocal directions to disregard irrelevant and prejudicial evidence such as shared medical conditions or test results that might invite coincidence reasoning in sexual offence trials. Appellate courts must be slower to apply the proviso in cases where credibility is central and the error could have bolstered the complainant's account even if the evidence was logically neutral. The decision reinforces that the proviso is not a vehicle for appellate courts to retry credibility contests on the papers.
At paragraph 2 of the joint reasons of Kiefel CJ and Keane J the Court stated: "Yet both the prosecutor and the trial judge told the jury that use could be made of it when they ought to have been told in unequivocal terms to disregard it. That should have occurred because, not only was the evidence irrelevant and therefore inadmissible, it was also prejudicial to the appellant." In plain English this means the virus evidence should never have been left for the jury to ponder; once it was, the judge was required to shut the door firmly by telling the jury to pretend they had never heard it.
At paragraph 13 the Court observed: "This case is one which turns on the jury's acceptance of the evidence of the complainant. In such a case the appellate court should not seek to duplicate the function of the jury, because it does not perform the same function in the same way nor have the same advantages." Translation: When everything hinges on whether the jury believes the child, appeal judges cannot simply read the transcript and decide they would have believed her; they lack the jury's live observation of the witness and the benefit of twelve people discussing the evidence together.
In the reasons of Gordon, Steward and Gleeson JJ at paragraph 36 the Court quoted Pell: "the assessment of the credibility of a witness by the jury on the basis of what it has seen and heard of a witness in the context of the trial is within the province of the jury as representative of the community." Plain English: Deciding who is telling the truth after watching them give evidence is the jury's job, not the appeal court's.
At paragraph 37 the Court held: "Where proof of guilt is wholly dependent on acceptance of the complainant's evidence, and a misdirection may have affected that acceptance, the appellate court cannot accord the weight to the verdict of guilty which it otherwise might." Translation: If the mistake might have tipped the scales in favour of believing the complainant, the appeal court cannot treat the guilty verdict as strong evidence that the rest of the case was overwhelming.
The summing-up direction at trial (extracted at paragraph 11 of the second set of reasons) told the jury they were "left with evidence that both the [appellant] and the complainant child both tested positive for the same herpes virus ... You just take that evidence into account along with all of the other evidence." The High Court treated this as the opposite of the required direction to disregard, effectively licensing the jury to use the evidence as they saw fit with their "life experience".
Orreal will be triggered in any appeal against conviction in which (1) inadmissible evidence capable of being used to bolster the credibility or reliability of a complainant has been placed before the jury, (2) the trial judge has not given an unequivocal direction to disregard that evidence in its entirety, (3) the prosecution case depends substantially on acceptance of the complainant's account, and (4) there is a realistic possibility that the evidence could have been misused by the jury to overcome doubts they might otherwise have entertained. The precedent is not limited to HSV-1 or medical test results; it applies to any irrelevant prejudicial material (prior consistent statements, uncharged acts, coincidence evidence, or medical conditions) that might invite impermissible reasoning in a sexual offence trial resting on a single complainant's word.
The fact that defence counsel consented to the admission of the evidence for forensic reasons (here, to open up the complainant's prior sexual activity) does not prevent the precedent applying once the trial judge fails to correct the error in summing up. The length of time the inadmissible evidence is before the jury, the extent to which counsel and the judge refer to it, and any invitation to the jury to use "life experience" or "common sense" in relation to it will all be relevant to whether the error carries a significant possibility of affecting the verdict. Where the appellate record shows corroboration such as timely complaint, observed distress and medical injury consistent with the allegation, that will not suffice to engage the proviso if the credibility error cannot be cured on the papers.
The judgment itself applies and reinforces the principles stated in Weiss at [43]-[45], Kalbasi at [15], Pell at [37]-[38] and Hofer at [59]-[61], [91]-[93]. It treats the reasoning of McMurdo JA in the Court of Appeal as correct on the significance of the risk that the jury would misuse the evidence to support the complainant's account. The High Court reversed the majority's conclusion that the evidence "could not have impacted jury's assessment of reliability or credibility of complainant" and rejected the characterisation of the evidence as merely "neutral".
Because the decision was delivered in December 2021, the judgment does not itself record subsequent treatment. However, the principles it reiterates have been applied in the Court of Appeal's own reasons at [10]-[16] and [94] (the passages expressly approved by the High Court) and in the forensic choice analysis drawn from Nudd, Baden-Clay, Hamilton and Craig. The decision stands as authoritative guidance that an appellate court cannot overcome the natural limitations of proceeding on the record by asserting that logically neutral evidence could not have been used by the jury to bolster credibility when the trial judge left the evidence open for consideration.
The judgment leaves open whether a sufficiently emphatic direction to disregard the HSV-1 evidence, had one been given, would have cured the prejudice. The Court noted that "Had the jury been directed to disregard the evidence, such prejudice would almost certainly have been overcome, but that did not occur." It remains to be seen in future cases how explicit and repeated such a direction must be, and whether a direction given immediately upon admission of the evidence would suffice or whether it must be reinforced in summing up.
Another open question is the precise boundary between cases in which the record allows an appellate court to say the complainant's evidence is glaringly improbable (as in Hofer) and those in which any risk that the inadmissible evidence affected credibility precludes the proviso. Orreal confirms that medical corroboration of injury and distress does not automatically move a case into the former category if the credibility assessment remains live.
The interaction between defence forensic choices and the proviso also remains nuanced. While the Court accepted that the initial decision not to object did not prevent a finding of miscarriage once the summing-up left the evidence open, it is not yet settled whether a deliberate tactical decision to leave the evidence before the jury without seeking a direction could bar the proviso analysis entirely. The judgment notes that the respondent conceded miscarriage, so the point was not fully argued.
Finally, the decision does not address the position where the inadmissible evidence is truly incapable of assisting the prosecution and the prosecutor unequivocally disavows any reliance upon it. Whether such a combination could permit the proviso remains for future cases, although the Court's emphasis on the prosecutor's actual language in this trial suggests that anything short of a clear instruction that the evidence is irrelevant and must be ignored will carry risk. These questions will require careful factual analysis in subsequent appeals.
S J Keim SC with P F Richards for the appellant (instructed by Legal Aid Queensland)
C W Heaton QC with C W Wallis for the respondent (instructed by Office of the Director of Public Prosecutions (Qld))
Notice: This copy of the Court's Reasons for Judgment is subject to formal revision prior to publication in the Commonwealth Law Reports.
Criminal practice - Appeal - Miscarriage of justice - Application of proviso that no substantial miscarriage of justice actually occurred - Where appellant convicted of unlawfully and indecently dealing with child under age of 16 years and rape - Where evidence admitted by consent that both appellant and complainant tested positive for herpes simplex virus type 1 ("impugned evidence") - Where impugned evidence irrelevant and inadmissible - Where Court of Appeal found miscarriage of justice because trial judge failed to direct jury to disregard impugned evidence in its entirety - Where Court of Appeal applied proviso because it concluded impugned evidence could not have impacted jury's assessment of reliability or credibility of complainant - Whether no substantial miscarriage of justice had actually occurred.
Words and phrases - "contested credibility", "jury's assessment of the reliability or credibility of the complainant", "miscarriage of justice", "natural limitations", "nature and effect of the error", "proviso", "substantial miscarriage of justice".
"So then let's go to the medical evidence, and that's where the problem really lies for the [appellant]. I'm going to get to the problem in a moment, but I'll deal first with this herpes thing. The herpes thing is not the lynchpin in this case. It's very neutral, really. We know from Dr Waugh's evidence that we can't say whether the [appellant] gave [the complainant] the virus or even whether [the complainant] gave the [appellant] the virus or even if they both independently had the virus of each other.
We also know from [the complainant] that she'd had one instance of sexual contact before and that involved her boyfriend performing oral sex on her. That's the one sexual instance that she spoke about or the only other sexual instance that she's been involved in. And you might well think that given the evidence that we heard about herpes simplex virus type 1 generally being associated with oral herpes, you might well think that she caught it from her boyfriend's mouth rather than the [appellant's] penis.
There are plenty of explanations here. It's almost like a chicken and egg argument, but it's still a factor for you to take into account because the point is that both of them do have the same virus. It's a sexually transmissible virus, and the allegation in here is that the [appellant] forced her to engage in sexual contact and conduct, and so it's a matter for you with your life experience what you make of that. But I don't suggest that you would really put any weight on it." (emphasis added)
"[Defence counsel]: Now, just briefly in relation to the evidence regarding the herpes virus. The fact that the [appellant] and complainant have the herpes virus doesn't prove anything. You've heard how common the virus is from the expert and you've also heard how the virus can be transmitted separately, even by having oral sex which, you know, she had with her boyfriend at some point in time. There's no evidence from the prosecution how old the boy was, or that that boy was even tested, who she had the oral sex with, for the virus. If you had the results for the boy and he was also positive for herpes virus, what would you think then? Then again - - -
[Trial judge]: Don't invite them to speculate, [defence counsel].
[Defence counsel]: I suggest to you that the evidence of the herpes virus doesn't help you with your decision making process at all. It certainly doesn't strengthen the [prosecution] case as you don't know where - you don't know where she got it from, or how long she's even had it."
"I am going to deal first with the evidence about herpes virus. Before referring to [Dr Waugh's] evidence on that issue, I will remind you of the admissions in exhibit 7. They are that the [appellant] had a swab taken of his urethra on 8 February 2017 which returned a negative result for the herpes virus, but he then had a blood test two days later on 10 February 2017 which returned a positive result for the herpes virus. There is also an admission that it is not known whether the male child who performed oral sex on the complainant ... had or has herpes virus. That is, herpes virus type 1.
Now, what was Dr Waugh's evidence about that? He gave evidence that the complainant ... also tested positive for herpes virus 1 on a swab taken from her vagina. So that is the same herpes virus that the [appellant] returned a positive blood test for. He said that that virus, herpes virus 1, causes common cold sores around the mouth. It can also cause genital infections. He said the virus is also commonly found as a genital infection. In that case, it would normally be spread oral to genital or genital to genital. He did not see any evidence of herpes on the complainant's physical examination. He said you can have that herpes virus without knowing that you have it; that is, you can have no symptoms.
This is probably the most important part of his evidence, and there are three parts of it. First, it is not possible to say with any certainty when ... the complainant, contracted the virus. Second, he said it is not possible to say when the [appellant] contracted the virus. Third, he said it is not possible to say who the complainant ... contracted the virus from. He said for a child her age, it would be unlikely for her to have had a genital herpes virus infection for a long period beforehand. He said it does require genital contact to acquire it, but he does not know when that happened.
So where does that leave you? You might think that evidence does not really help you one way or the other. You are left with evidence that both the [appellant] and the complainant child both tested positive for the same herpes virus, but on the state of the evidence, you cannot know when she contracted it, you cannot know when the [appellant] contracted it and you cannot know who she contracted it from. You just take that evidence into account along with all of the other evidence." (emphasis added)
Whether no substantial miscarriage of justice actually occurred
"[T]he assessment of the credibility of a witness by the jury on the basis of what it has seen and heard of a witness in the context of the trial is within the province of the jury as representative of the community. Just as the performance by a court of criminal appeal of its functions does not involve the substitution of trial by an appeal court for trial by a jury, so, generally speaking, the appeal court should not seek to duplicate the function of the jury in its assessment of the credibility of the witnesses where that assessment is dependent upon the evaluation of the witnesses in the witness-box. The jury performs its function on the basis that its decisions are made unanimously, and after the benefit of sharing the jurors' subjective assessments of the witnesses. Judges of courts of criminal appeal do not perform the same function in the same way as the jury, or with the same advantages that the jury brings to the discharge of its function.
... The assessment of the weight to be accorded to a witness' evidence by reference to the manner in which it was given by the witness has always been, and remains, the province of the jury." (footnote omitted)
Orreal
The Queen
[2020] QCA 95
(2006) 80 ALJR 614
(2016) 258 CLR 308
(2021) 95 ALJR 894
(2018) 264 CLR 202
(2005) 224 CLR 300
(2018) 264 CLR 62
(2016) 259 CLR 449
(2010) 242 CLR 233
(2002) 76 ALJR 1024
(2003) 214 CLR 118
(2021) 95 ALJR 937
(2020) 268 CLR 123
(2012) 246 CLR 92
(2018) 265 CLR 196
(2018) 265 CLR 178
Appeal allowed. Order of the Court of Appeal of the Supreme Court of Queensland made on 8 May 2020 set aside. In its place, order that the appeal to that Court be allowed, the appellant's convictions be set aside and a new trial be had.