deceased were together on the street then, the jury was directed, it

was open to them to infer guilt from that finding in the context of

the evidence of motive, opportunity and false denial - which his

4. In other parts of the charge his Honour seems to have accepted that the boys' evidence was extremely tenuous and was but one of the

pieces of evidence from which it was open to the jury to draw an

inference that the applicant and the deceased were together in the

street and also the ultimate inference of guilt. Nevertheless, the

earlier misdirection might have led the jury into an entirely false

line of reasoning. It is impossible to be satisfied that the jury

did not convict in reliance upon the direction that the fact of the

presence in the street together of the applicant and the deceased

could be found on the evidence of the boys alone. If the jury so

found and the finding was used as a foundation for the drawing of the

ultimate inference of guilt, there was a miscarriage of justice.

5. Although the Court of Criminal Appeal appreciated the applicant's complaint about the charge, their Honours did not correctly perceive

the significance of the error made. The Court of Criminal Appeal

perceived the error of the learned trial judge as being a mere

failure "to give a direction that no helpful inference as to guilt

could be drawn from the evidence" of two of the boys. The error

was in truth a positive misdirection. Once the misdirection is

identified, the possibility that the jury was led into a false line

of reasoning cannot be excluded. It is impossible to be satisfied

that the accused did not lose a reasonable opportunity of acquittal:

Mraz v. The Queen ((1) [1955] HCA 59; (1955) 93 CLR 493.).

6. The Court of Criminal Appeal was therefore in error in applying the proviso. Special leave must be granted, the appeal allowed and a