82 It is trite that the evidence is the answer and not the question. Even so, the witness did not demur when it was twice put to her, in effect, that she had asked the applicant whether he was having a sexual relationship with the complainant. Nonetheless, it might be said that the questions focussed on the mother's motive for asking whatever question she did, and that the witness did not accede to the proposition that the actual question had been in such a form.
83 Assuming the jury concluded that the witness agreed that her question of the applicant had been phrased in the present tense, one area of uncertainty concerning analysis whether the applicant had impliedly admitted the commission of a particular offence or offences disappeared. But a question so phrased meant that any possible admission could not extend to all the charged offences.
84 In her charge, the learned judge did not refer to any part of the mother's pertinent evidence. Nor did her Honour make mention of the addresses of counsel in that connection. Neither again did she give any direction about the way or ways in which the different versions of that evidence, if accepted, might be used by the jury.
The need for directions
85 The particular evidence was beguilingly simple. But its apparent simplicity concealed a considerable number of real difficulties - both factual and legal. Having analysed, particularly, the issue of implied admission, I very much doubt, regardless how the jury construed the mother's question, that it was open to it to treat the applicant's reaction thereto as evidence of an admission in respect of any particular offence[70]. Logically, any assumed admission could have related to all or some or one of the offences said to have been committed up to the time at which the question was asked. In the end, then, I doubt that the evidence could have been used other than as evidence of the relationship that existed between the complainant and the applicant; and the jury should have been so instructed. But if that conclusion be wrong, then at least there was need for very clear instruction as to the manner in which the jury should deal with the evidence in the context of possible adoptive admission. For on a best view for the Crown, there were, as I have explained, not one but a serious of issues in that connection. They had to do with a piece of evidence which the prosecutor had highlighted, at times in extravagant language, both at the outset and towards the end of his final address.
86 I consider that, on the better view, the necessary direction required these things, in substance to be said.[71] First, the particular evidence relied upon by the Crown, depending upon certain findings of fact, could stand as evidence of the relationship between the accused and the complainant.
87 Second, in the particular circumstances, the initial step was for the jury to decide, if it could, what form the question had taken - that is, whether it had enquired of a past situation, a present situation, or both. If the jury could not be satisfied about that matter, then its consideration of the particular evidence could go no further.[72]
88 Third, it was next necessary for the jury to decide, if it could, approximately when the question had been asked.
89 Fourth, if the jury was able to decide what form the question had taken, and approximately when it had been asked, it was open to the jury to conclude that implicit in the question was an allegation that the accused had engaged in inappropriate sexual conduct generally with the complainant in the period embraced by the question. But it was not open to the jury to treat the question as alleging that the accused had committed any one or more of the particular offences with which he was charged. The asking of the question, moreover, provided no evidence of the truth of the implied accusatory statement.
90 Fifth, the jury could only use the accusatory statement implicit in the question as evidence of the truth of what was stated if it was satisfied that the accused had by his silence admitted the truth thereof.
91 Sixth, in considering the reaction of the accused to the accusatory statement implicit in the question, the jury should consider, first, whether it was satisfied that the accused had heard the question, and second, whether the circumstances were such that the accused should have been expected to make a denial of it. If it was satisfied of each of these matters then it might treat his silence as evidence of the truth of the accusatory statement implicit in the question. In those circumstances, it could treat the evidence as showing a relationship between the accused and the complainant - at least in the period embraced by the question, but not necessarily confined to that period - in which context the evidence of the particular charged offences could be considered.
92 Seventh, in his final address the prosecutor had dealt with the particular evidence as if it could be used in direct proof of the charged offences. That was not so.
The failure of applicant's counsel to take exception to the charge
93 It is implicit in what I have already said, and I consider it to be the case, that the failure of the applicant's counsel to take exception to the charge should not stand in the way of the success of the appeal. I should explain that opinion.
94 There is a strong inclination to hold a party on appeal to a course adopted at trial, particularly if the course likely involved a deliberate forensic decision. The reasons why that should be so have been explained in many cases.[73] But reluctance to allow a new case to be put on appeal yields, in a particular case, to the higher need of preventing a miscarriage of justice.
95 In the circumstances of this case, I consider that appellate interference is required. That is so for two reasons.
96 First, in my opinion there is a real risk that, in the absence of the necessary directions, the jury misused evidence which was highly prejudicial to the applicant and which was highlighted by the prosecutor in his final address.
97 Second, counsel for the applicant was placed in an extremely difficult position at the end of the judge's charge. On the one hand, the judge had said nothing about the particular evidence, and the prosecutor's address in that connection. But that was of doubtful value for the applicant. There was the problem that, in a short trial, the prosecutor had made the particular evidence a focal point of his address; and had done so in a way which obfuscated real complexities. Counsel would understandably have been concerned that the jury might still have that aspect of the prosecutor's address in the forefront of their minds. Those circumstances pointed in favour of counsel seeking a direction. On the other hand, counsel, understandably, would not have wished to have the particular evidence mentioned by the judge in isolation from the rest of her charge - even though, on careful analysis, almost all of what her Honour must have said would have been of assistance to the applicant. In the circumstances, I am not at all persuaded that counsel's failure to seek a direction in respect of the particular evidence should condemn the appeal to failure.
The proviso to s.568(1) Crimes Act 1958
98 It was not submitted for the Crown that, if one of the grounds of appeal was made out, the proviso to s.568{1) of the Crimes Act 1958 could have application so as to sustain the conviction. In my opinion, that was a correct approach. The prosecution case was, I think, a strong one; and it can be said that the jury's verdict shows that the evidence of the complainant was accepted. But a question arises how the jury arrived at that conclusion. The complainant's credibility was attacked. To a large extent, the prosecution case rested on her evidence. Absent the direction that was necessary in the circumstances of the particular case, the jury might simply have reasoned that, despite his later record of interview, the applicant had admitted each of the charged offences. Certainly the prosecutor's final address suggested that such an approach was available. In all, having considered the evidence, having had regard to the fact that the jury found the applicant guilty, and having had regard to the nature of the defect in the trial, I am not satisfied that the conviction should be sustained.