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[2008] QCA 412
appellant. Convictions set aside and a new trial ordered on all four counts. The appeal court found a miscarriage of justice arising from the jury direction on the accused’s evidence.
No linked legislation citations have been extracted yet.
The Court of Appeal ordered a new trial because the jury was not clearly told that it could remain unsure about the prosecution case and acquit, even if it did not believe the accused. The judge’s words also risked implying that disbelieving the accused could help prove guilt. The Court rejected the other appeal grounds, including those about the recordings and other directions. All four convictions were set aside.
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2,176 words · generated 02/10/2026
In R v McBride [2008] QCA 412, the Queensland Court of Appeal considered an appeal by John Grant McBride against four convictions arising from allegations by his former de facto partner, identified in the reasons as P. McBride had been convicted of one count of assault occasioning bodily harm, one count of indecent assault and two counts of rape. He was sentenced to six and a half years’ imprisonment on the rape counts, with lesser sentences on the assault counts ([4]).
The prosecution alleged that on 22 March 2005 McBride pushed P over a lounge and kicked and stamped on her lower back. It alleged that, on 28 March, he tried to touch her breast and nipple and later penetrated her vaginally and anally without consent ([7]). McBride’s account differed. He said P had assaulted him during the earlier altercation, and he had held her arms and pushed her away, causing her to fall. He said any contact in bed was incidental and that the later intercourse was consensual ([9]).
The case depended heavily on the competing accounts of P and McBride. The medical evidence concerning the examination after the rape complaint was consistent with both non-consensual and consensual intercourse. Doctors also gave evidence about bruising and abrasions on both P and McBride ([10]). The Court described the other evidence, including DNA evidence, as inconclusive or of limited assistance.
The appeal raised several issues: the admission of secretly recorded conversations, the reasonableness of the assault verdict, the judge’s definition of “indecent”, written summaries given to the jury, and the way the judge directed the jury about McBride’s evidence ([5]). Holmes JA rejected the first four grounds as independent bases for relief, while concluding that the final direction issue caused a miscarriage of justice ([6], [32]). All three Court of Appeal judges agreed with the orders. The Court set aside all four convictions and ordered a new trial ([33]-[35]).
The decisive issue was the jury direction on the relationship between McBride’s evidence and the prosecution’s burden of proof. The judge gave conventional directions that the Crown had to prove each element beyond reasonable doubt and that McBride did not bear a burden to prove his innocence ([25]). But Holmes JA considered that these general directions did not cure the more specific problem in the summing-up.
The judge told the jury that McBride’s evidence might convince them he was not guilty, but also that it “may strengthen the case for the prosecution” ([25]). At the end of the summing-up, he repeated the Crown’s submission that the case came down to “word v. word” and that, looking at the bigger picture, the jury would be satisfied beyond reasonable doubt ([26]). Holmes JA did not treat the final words as the judge endorsing P or directing the jury simply to choose one witness over the other. The concern was that the ending was unfortunate and did not correct the risk created by the earlier direction ([26]).
The jury needed to understand that it could find the defence evidence unconvincing, or reject it, and still acquit if the remaining evidence did not prove guilt beyond reasonable doubt. That intermediate possibility mattered especially because P’s and McBride’s accounts of the central events were starkly opposed and P’s evidence was not corroborated ([30]). The trial judge’s general burden-of-proof directions did not explain that point in the context of assessing the defence evidence.
A further concern was the phrase that McBride’s evidence might strengthen the prosecution case. The Crown was not relying on lies told by McBride as evidence of guilt, and the judge had not given an Edwards direction. In that setting, the phrase could have suggested to jurors that if they thought McBride was lying, that itself supported guilt ([31]). Holmes JA described the direction as dangerous because it left that interpretation open.
The Court assessed the combined effect in the context of the trial, not as an abstract defect in wording. The question was whether the direction had caused a miscarriage of justice. Holmes JA concluded there was a real prospect that McBride lost a chance fairly open to him of being acquitted ([32]). The result was a new trial on every count, not an acquittal on the assault count or a finding that the evidence could not support any conviction.
The judgment’s discussion of jury directions drew on earlier authorities concerning the risk of presenting a criminal trial as a contest over which witness is telling the truth. It referred to R v George [1980] Qd R 346, in which the issue was a direction asking jurors to decide which account, the Crown’s or the accused’s, was more correct. Holmes JA recounted that the omission of the possibility of reasonable doubt could leave jurors thinking their task was to decide which side was lying ([27]).
The judgment also discussed R v Booth [2005] QCA 30 and R v E (1995) 89 A Crim R 325. Booth was described as applying George, while E emphasised that the jury should not be told, in effect, that acquittal depends on accepting the accused’s account. Rather, the prosecution must prove its case beyond reasonable doubt notwithstanding the accused’s denial ([28]). Holmes JA noted that the Queensland Supreme and District Courts Benchbook contained a suggested direction explaining three possible outcomes: the defence evidence may provide a satisfying answer; it may leave reasonable doubt even if unconvincing; or it may be rejected, after which the jury must still assess the prosecution evidence against the criminal standard ([29]).
The judgment did not announce a rule that this detailed direction is mandatory in every trial where the accused gives evidence. Holmes JA expressly said that such a direction “might not be essential in every case”, depending on what else is said ([30]). The decision is therefore fact-sensitive: here the conflicting accounts, the lack of corroboration, the omission of the intermediate possibility and the potentially damaging “strengthen the case” wording combined to produce a miscarriage.
The judgment also addressed the meaning of “indecent”. It applied the reasoning in R v Bryant [1984] 2 Qd R 545 to a sexual-assault offence under s 352 of the Criminal Code 1899 (Qld). The Court considered that “unbecoming or offensive to common propriety” was too broad because it could capture conduct that was merely in bad taste, rather than conduct properly characterised as indecent in the statutory context ([20]-[21]). The Court nevertheless treated that error as insufficient, by itself, to set aside the indecent-assault conviction.
The judgment does not provide a comprehensive account of the law before McBride, nor does the supplied material establish any later change in the doctrine. Its contribution in this case is the application of existing principles to the particular summing-up and the Court’s emphatic support for using Benchbook directions where suitable ([2], [35]).
At [30], Holmes JA identified what the jury had not been told: it could reject or doubt the defence evidence and still acquit if the prosecution had not proved guilt beyond reasonable doubt. In plain English, jurors should not infer guilt just because they do not accept the accused’s version.
At [31], Holmes JA explained the risk in saying the accused’s evidence could “strengthen the case for the prosecution”. In plain English, that wording might make jurors think that deciding the accused is lying helps establish guilt. The judgment distinguishes this situation from one where the Crown relies on lies under an Edwards direction.
At [32], Holmes JA concluded that the problem had real significance in this trial because the case turned on whether P’s evidence was accepted to the required standard. The Court did not decide that P was untruthful or that McBride’s account was correct. It decided that the jury had not been given adequate guidance for determining whether the prosecution had proved its case.
The opening observation from de Jersey CJ at [2] is also notable. He said the case again demonstrated the desirability of using Benchbook directions, and that departing from them risked consequences for the complainant, accused and public. White AJA agreed with that comment ([35]). This was an institutional caution about jury directions, not a separate test for setting aside convictions.
The other grounds show the limits of the decision. On the recordings, Holmes JA said their relevance and probative value were doubtful, but defence counsel had consciously agreed to admission and could have had forensic reasons for doing so ([11]-[15]). On the written summaries, the Court inspected the actual pages and found they were brief particulars of the prosecution allegations, shown to both counsel without objection ([22]-[23]). Those grounds did not establish the miscarriage that the jury-direction issue did.
The most relevant fact pattern is a criminal trial in which the accused gives evidence, the prosecution case depends substantially on a complainant’s account, and the accused gives a directly conflicting account. Where the jury must assess credibility, the direction may need to make clear that the jury is not simply choosing which person to believe. In particular, it should not leave the jury thinking that acquittal requires acceptance of the accused’s evidence.
The case is especially pertinent where the judge says that the accused’s evidence may strengthen the prosecution case, but the prosecution is not relying on lies as an evidentiary basis for guilt and there is no applicable direction explaining the use of lies. The potential problem is that jurors may treat disbelief of the accused as affirmative support for guilt ([31]).
The decision is not a rule that every trial requires identical wording. Holmes JA recognised that the need for a particular direction depends on the rest of the summing-up ([30]). A lawyer examining a similar case would likely compare the full directions, the evidence, the issues at trial and whether the jury was clearly told that the burden remained on the Crown throughout.
The other issues have narrower significance on the facts supplied. The recordings issue involved represented counsel’s conscious choice not to object and no allegation of incompetent representation ([12]-[15]). The indecency issue concerned the use of an overly broad dictionary meaning alongside a later direction referring to contemporary community standards and context ([19]-[21]). The judgment does not make those issues the basis of the order for a new trial.
The material supplied contains the 2008 judgment and identifies authorities considered in it, but it contains no later decisions discussing or applying R v McBride. Later judicial treatment therefore cannot be reliably described from this source alone.
Within the judgment itself, the Court situates its reasoning among existing authorities. Holmes JA discusses George, Booth and E on the need to explain the reasonable-doubt possibility rather than present the case as a simple credibility choice ([27]-[29]). She also refers to Armstrong as approving the suggested Benchbook direction ([29]). Those are authorities the Court used in reaching its decision, not evidence of how courts treated McBride after 2008.
The other cited cases address different parts of the appeal. Bryant supplied the reasoning applied to the meaning of “indecent” ([20]-[21]). Crampton and Gately informed the discussion of the judge’s role and counsel’s control of forensic decisions about evidence ([14]-[15]). Libke was distinguished in relation to judicial intervention, and Edwards was mentioned when explaining why the “strengthen the case” wording was potentially dangerous in the absence of an Edwards direction ([13]-[15], [31]).
The judgment leaves open how much detail is required in a direction about the accused’s evidence in cases with different evidentiary settings. Holmes JA said the Benchbook direction might not be essential in every case, depending on what else the judge says ([30]). The reasons do not specify a single mandatory formula, but stress that the jury must understand the prosecution’s continuing burden and the possibility of acquittal despite rejecting the defence account.
The reasons also do not determine how the same wording would operate where the prosecution does rely on lies, where there is independent corroboration, or where the accused does not give evidence. The judgment’s concern is tied to the actual combination of a credibility-dependent trial, opposed accounts and the words used in this summing-up.
The recordings discussion leaves the assessment of their probative value and prejudice largely fact-dependent. Holmes JA found their relevance doubtful but did not decide that they had to be excluded, given counsel’s deliberate forensic choice ([11]-[15]). The decision does not establish that a judge must always intervene when apparently weak evidence is admitted without objection.
Finally, the supplied judgment provides no later authorities showing whether subsequent courts refined or limited its approach. The actual legal effect in another case would depend on the full summing-up and trial record, as well as any later authorities not included here.
This is general legal information, not legal advice. Zoe can make mistakes. Before acting on this, relying on it, or using any draft, have it checked by a qualified Australian lawyer.
Source: Queensland Judgments (Supreme Court Library Queensland) (www.queenslandjudgments.com.au). Converted to plain text by ZoeLaw. Not the official version.
SUPREME COURT OF QUEENSLAND
CITATION: R v McBride [2008] QCA 412
PARTIES: R v McBRIDE, John Grant (appellant)
FILE NO/S: CA No 307 of 2007 / DC No 587 of 2007
DIVISION: Court of Appeal
PROCEEDING: Appeal against Conviction / Application for Extension (Sentence)
ORIGINATING COURT: District Court at Brisbane
DELIVERED ON: 19 December 2008
DELIVERED AT: Brisbane
HEARING DATE: 26 November 2008
JUDGES: de Jersey CJ, Holmes JA and White AJA / Separate reasons for judgment of each member of the Court, each concurring as to the orders made
ORDER: Convictions set aside and a new trial ordered on all four counts
CATCHWORDS: CRIMINAL LAW – APPEAL AND NEW TRIAL – OBJECTIONS OR POINTS NOT RAISED IN COURT BELOW – IMPROPER ADMISSION OR REJECTION OF EVIDENCE – PARTICULAR CASES – where appellant convicted after trial on one count of assault occasioning bodily harm, one count of indecent assault, and two counts of rape – where complainant, the former de facto wife of the appellant, secretly recorded conversations which were tendered at trial as evidence – where experienced defence counsel considered the evidence and did not object to its admission – where appellant counsel argued, on appeal, that evidence was prejudicial – whether primary judge should have rejected the evidence, notwithstanding the lack of objection by the appellant’s counsel / CRIMINAL LAW – APPEAL AND NEW TRIAL – OBJECTIONS OR POINTS NOT RAISED IN COURT BELOW – MISDIRECTION AND NON-DIRECTION – PARTICULAR CASES – where, in directing the jury in relation to the elements of unlawful and indecent assault, primary judge cited the dictionary definition of ‘indecent’, being ‘unbecoming or offensive to common propriety’ – whether jury’s finding of guilt on indecent assault charge affected by this direction – where appellant objected on appeal to documents given to jury by primary judge, which contained a ‘snapshot picture’ of the Crown’s allegations, which contained brief particulars –whether these documents were unfair to the appellant / CRIMINAL LAW – APPEAL AND NEW TRIAL – OBJECTIONS OR POINTS NOT RAISED IN COURT BELOW – MISDIRECTION AND NON-DIRECTION – PARTICULAR CASES – where primary judge directed jury that its task was to consider whether it preferred the evidence of the complainant or the appellant, without mentioning that if the jury preferred neither, it should acquit – whether a miscarriage of justice occurred – whether a re-trial should be ordered / Criminal Code 1899 (Qld), s 227, s 352 / *Crampton v The Queen (*2000) 206 CLR 161; (2000) 176 ALR 369; [2000] HCA 60, cited / Edwards v The Queen (1993) 178 CLR 193; [1993] HCA 63, cited / Gately v The Queen (2007) 232 CLR 208 [2007] HCA 55, cited / Libke v The Queen (2007) 230 CLR 559; [2007] HCA 30, distinguished / R v Armstrong [2006] QCA 158, cited / R v Booth [2005] QCA 30, considered / R v Bryant [1984] 2 Qd R 545, applied / R v E (1995) 89 A Crim R 325, considered / R v George [1980] Qd R 346, considered
COUNSEL: R J Clutterbuck for the appellant / D L Meredith for the respondent
SOLICITORS: McMillan Boyson for the appellant / Director of Public Prosecutions (Queensland) for the respondent
de JERSEY CJ: I have had the advantage of reading the reasons for judgment of Holmes JA.
The result in this case emphasizes yet again the desirability of judges using the “Benchbook” directions. Disregard of or departure from those directions raises real risk to any subsequent conviction, with drastic consequence for complainant, accused and the public.
I agree with the proposed orders, and the reasons expressed by Holmes JA.
HOLMES JA: The appellant was convicted after a trial of one count of assault occasioning bodily harm, one count of indecent assault and two counts of rape, all said to have been committed against his former de facto wife. He was sentenced to six and a half years imprisonment on the rape counts and lesser sentences on the assault counts. He appeals against the convictions and seeks an extension of time for an application for leave to appeal against the sentences on the rape counts.
The grounds of appeal were many and diffuse, but essentially they amounted to these six: that tape recordings said to amount to “relationship evidence” were wrongly admitted; that the verdict of guilty on the assault occasioning bodily harm count was unreasonable; that the trial judge did not fairly sum up the evidence in respect of the assault occasioning bodily harm count; that his Honour erred in directing as to the meaning of “indecent” in respect of the indecent assault count; that written instructions he provided to the jury were unfair; and that he had wrongly invited the jury to compare the evidence of the complainant with that of the appellant without instructing them that they might be left in a situation of doubt as to the truth of either, and, if so, they should acquit.
In the result, I have concluded that only the last ground (although not quite as framed) should be upheld, but I will give my reasons for rejecting the remaining arguments. In respect of the assault occasioning bodily harm count it is necessary to do so because it was contended the verdict was unreasonable, raising the question of whether a verdict of acquittal should be entered on that count. Other arguments concerned the admission of evidence and the directions given. These reasons may assist in the conduct of the re-trial I have concluded is necessary.
The evidence
The offences were said to have been committed against the appellant’s former de facto partner, P. She gave evidence that on 22 March 2005 the appellant had pushed her over a lounge and kicked and stamped on her lower back (the assault occasioning bodily harm count). On 28 March 2005 when she came home in the early hours of the morning he got into bed with her and tried to touch her nipple and breast (the indecent assault count). Later that morning he pushed her into the bedroom and onto the bed and penetrated her first vaginally and then anally (the two counts of rape).
The appellant and P had lived together for about eight years until the relationship broke down in 2004. From September 2004 until March 2005, when the offences were said to have been committed, they remained in the same house, although no longer living as de facto spouses. P gave evidence that during that period, the appellant had, on a number of occasions, committed minor assaults on her: stamping on her foot, kicking her in the shins, and sexual assaults such as grabbing her groin or breasts. From mid-December 2004, she took to covertly recording their conversations using a digital recorder. Seven tapes of those recordings were put into evidence. The first six were apparently intended to provide evidence of the nature of the relationship between the two and related to conversations on unidentified occasions between December and March 2005. The seventh tape recorded the occasion of the indecent assault.
The appellant gave evidence that on the occasion of the altercation on 22 March 2005, P was assaulting him. He held her arms and tried to push her away and she overbalanced over the arm of the lounge. He took the opportunity to make his escape and left the house. On 28 March 2005, P got into the double bed in which he was sleeping. He had not deliberately touched her; any physical contact was simply the product of their proximity while sleeping together. Later that day they had consensual vaginal and anal sex.
Only P and the appellant gave evidence of the events the subject of the charges, but a number of other witnesses was called. P’s former de facto partner gave evidence of P’s complaint of rape, as did a forensic medical officer who also described her examination of P after she made the complaint; her findings were consistent with non-consensual intercourse but equally consistent with consensual intercourse. Two other doctors gave details of bruising and abrasions they found on P and the appellant respectively. A forensic scientist gave what seems to have been entirely pointless evidence about inconclusive DNA samples from P’s underwear. A succession of police officers gave what was said to be relationship evidence, of various occasions on which they attended the premises occupied by P and the appellant in relation to domestic altercations. The appellant’s sister-in-law, brother-in-law and son gave evidence of assaults they had witnessed by P on the appellant.
Admission of the recordings
Of the first six recordings, it can be said at once that their relevance was very doubtful indeed. They consisted largely of fairly obvious attempts by P to obtain an admission from the appellant that he had touched her or was touching her in some way that she objected to. He does not seem to have made any such concession, but instead made a number of accusations of his own, of assaults by her. It is hard to see how anything in those recordings could seriously have been regarded as probative, although there was no very substantial prejudice to the appellant in them. The seventh tape at least covered the time at which the indecent assault was alleged to have occurred. However, it consisted mostly of protestations by P, the answers to which could either not be heard or were not responsive, so its probative value was also dubious.
The Crown put into evidence on this appeal an affidavit from defence counsel (who did not appear on the appeal) in which he said that he had considered the content of the recordings, discussed them with his client, and made the decision that they should be permitted to go into evidence. He did not explain his reasons, but one can see that he might well have been quite content to have them admitted because they cast P in an unattractive light, persisting in a protracted attempt to draw the appellant into some incriminating statement.
Counsel for the appellant contended that, notwithstanding the failure of experienced defence counsel to take any objection to the evidence, the trial judge should have investigated the tapes for himself and ruled them inadmissible. In the circumstances of this case, that suggestion seems to me to envisage a remarkable level of intervention by the presiding judge into the responsibilities and the decision-making of defence counsel. Counsel made a valiant attempt to justify his submission by reference to the dissenting judgment of Kirby and Callinan JJ in Libke v The Queen1 in which their Honours said that the duty to ensure a fair trial extended to a duty in the trial judge
“to make appropriate interventions if [impermissible or unacceptable questions], capable of jeopardising a fair trial, are asked”.2
“One of the objects of a system which leaves it to the parties to define the issues, and to select the evidence and arguments upon which they will rely, is to preserve the neutrality of the decision-making tribunal. Courts are hesitant to compromise features of the adversarial system which have implications fundamental to the administration of justice”.
“It is for the parties, by their counsel, to decide how and on what bases the proceeding will be fought. Consent by counsel for a party to a course of conduct is usually an important indication that that party suffers no miscarriage of justice by pursuit of the intended course”.
Here, as in Gately, there was no allegation of incompetent representation. I do not think in the circumstances of this case it was incumbent on his Honour either to urge counsel to consider the question of admissibility or to act himself to exclude the evidence.
The assault occasioning bodily harm count - direction and conviction
“from memory, she appeared fine. Our – our purpose of attending, of course, was to ascertain whether or not she was going to commit suicide, so, no, she appeared fine”.
The appellant had indicated P intended to overdose with Valium; there was no evidence to confirm that. According to the officer, she and her partner
“ascertained that there was no harm to any persons. The reason that we’d gone there was because the female was threatening suicide, and from that, well, my observations, she wasn’t, and we had no further dealings in that matter”.
In his summing up, the learned judge reminded the jury of P’s version of the assault, reading out her evidence in relation to it, both in examination-in-chief and in cross-examination, and similarly reprised the appellant’s evidence denying any such assault. Later in the summing up he reminded the jury of the police officers’ evidence of attending in relation to the supposed suicide threat, explaining that it was the date on which the assault occasioning bodily harm was alleged. He mentioned only that the police officers had decided that there was no danger of suicide, and did not deal with the attendance in any greater detail.
The appellant’s point was this: P did not complain of any injury and the police officers did not observe any injury on her. Those matters should have been highlighted to the jury in order to put the defence case fairly, and the jury’s conviction on that count, given that evidence, was unreasonable. I do not think that either proposition holds water. The point that, although assaulted earlier in the day, P did not complain and showed no obvious sign of injury might have been worth making in defence counsel’s address. Because the addresses were not part of the appeal record, one does not know whether that argument was made or not, but it was not incumbent on the trial judge to raise or repeat it. It was not a particularly powerful argument. It was entirely possible that P thought the assault on its own was not sufficiently serious to warrant a complaint to the police, and she may well have been pre-occupied with convincing them she was not suicidal. Any bruising on her back would, presumably, have been covered by her clothing. This was not a point so compelling that it should have caused the jury to acquit on that count.
The indecent assault direction
“Well the definition of assault, of course, is still the same. The meaning of unlawful is, of course, still the same, and indecent bears its ordinary, everyday meaning. It is what the community regards as indecent. A dictionary meaning of indecent is unbecoming or offensive to common propriety …”
Subsequently he completed the direction in unexceptional terms, explaining that what was indecent was to be judged by:
“…contemporary community standards … having regard to when the conduct was committed, the place at which it was committed, and the circumstances in which it was committed …”.5
In R v Bryant6 the trial judge had similarly referred to a dictionary definition of indecent as “unbecoming or offensive to common propriety”; in that case in connection with an offence of doing an indecent act with intent to assault or offend under s 227(2) of the Criminal Code7. McPherson J, as he then was, pointed out that the word “indecent” was used in the context of many quite different offences, some of which involved lewd forms of behaviour while others did not. Indecent language was one such context; indecent assault another. It was not the function of the Criminal Code or, more particularly, of s 227, to punish lapses of good taste or good manners because jury members regarded the behaviour concerned as “unbecoming” or “offensive to common propriety”. A great deal of human conduct could fall within that formulation without constituting an indecent act within the meaning of s 227. Sheahan J agreed, noting that the section under consideration was in chapter 22 of the Code, the heading of which was “Offences against Morality”; the offences contained in it were related to sexual impropriety or conduct containing the element of lewdness. The word “indecent” in s 227 ought not to be construed so as to include conduct which was merely “unbecoming” or “offensive to common propriety”.
The reasoning in R v Bryant applies equally, in my view, to sexual assaults under s 352 of the Criminal Code. By incorporating the dictionary definition the learned judge set the parameters for a finding of indecency too widely. Nonetheless, it is implicit in the verdict that the jury accepted P’s account of what happened, and on any view the attempt to touch her breast and nipple, would constitute an indecent assault. Had this been the only error, I would have applied the proviso in respect of this count.
The provision to the jury of summaries of the counts
“The learned trial judge provided documents to the jury likely to contain incorrect material and highlighted the Crown case therein without reference to the defence case”.
It seems that this ground was advanced on a speculative basis, because the appellant’s legal representatives had not actually seen the documents given to the jury. Their anxiety was based on his Honour’s reference in the summing up to having included in them “a snapshot picture … of what the Crown allegation is” when no equivalent “snapshot” had been given of the defence case.
The Prosecution alleges that the Accused pushed the Complainant over onto the lounge; began kicking and stomping on her back leaving bruises on her lower back and buttocks.
The Prosecution alleges that the Accused tried to touch or grab the Complainant on the breasts and groin while in bed and lied on top of her.
The Prosecution alleges that the Accused penetrated the Complainant’s vagina (count 3) AND penetrated her anus (Count 4) without her consent.
Before the summing up commenced, both the Crown prosecutor and defence counsel were shown the three sheets. Neither, unsurprisingly, made any objection. The “snapshots” were nothing more than brief particulars; and there is no substance in this ground of appeal.
The direction as to how deal with the appellant’s evidence
The last of the appeal grounds was that the learned judge gave the jury to understand that it was a question of which version, of the two offered, they preferred. He did not mention to the jury the possibility that they might be left in doubt as to which was true and that, in that case, they should acquit. Indeed, counsel for the appellant went so far, in his written submissions, as to say that his Honour by his closing observations left the jury with the impression that he endorsed P as an honest witness.
The learned judge gave and reiterated the conventional directions to the jury that the appellant could only be convicted of any offence if they were satisfied beyond reasonable doubt that the Crown had proved every element of the offence and that the burden was on the Crown, there being no burden on the appellant to establish anything. More particularly, in respect of the appellant’s having given evidence, he said this:
“Another aspect of the evidence about which I must address you and that is that the accused has given evidence in this trial and has called other evidence in his defence. As I informed you prior to his giving evidence, and as defence counsel has also informed you, he was not obliged to give evidence. The fact that he has given evidence does not mean that he has taken it upon himself the burden of proving his innocence. The fact that he has given evidence may have one of a number of results.
His evidence may convince you that he is not guilty of one or other or all of the counts on the indictment in which case you'll return a verdict of not guilty. On the other hand his evidence may strengthen the case for the prosecution. That is a matter for you as the sole judges of facts to determine.”
“Ultimately, the trial comes down to word v. word, as the Crown says, you look at the bigger picture and when you do that, you will be satisfied beyond reasonable doubt that the prosecution has proved each of the charges before the Court and that you should find the accused guilty of each one.”
The appellant’s complaint overlooks the fact that his Honour was at this stage merely reprising the Crown’s arguments, as he had already done for the defence case. He was certainly not suggesting that the jury adopt the “word v word” approach, let alone that he preferred the word of any witness. It was, however, an unfortunate note on which to end, without any further comment or warning as to the need to refrain from treating the task as one of resolving competing accounts.
“that if they were unable to make up their minds as to truth or falsity of the evidence of either side and they were ultimately left in a situation of doubt, they should acquit”9.
“The best approach, in addition, to saying just that, is to tell the jury that the Crown case depends upon them accepting that the evidence of its principal witness was true beyond reasonable doubt notwithstanding the (sworn) denial by the accused, and that they do not have to believe that the accused is telling the truth before he is entitled to be acquitted.”12
Where, as here, there is defence evidence, usually one of three possible results will follow:
(a) you may think the defence evidence is credible and reliable, and that it provides a satisfying answer to the prosecution’s case. If so, your verdict would be not guilty;
or
(b) you may think that, although the defence evidence was not convincing, it leaves you in a state of reasonable doubt as to what the true position was. If so, your verdict will be not guilty;
or
(c) you may think that the defence evidence should not be accepted. However, if that is your view, be careful not to jump from that view to an automatic conclusion of guilt. If you find the defence evidence unconvincing, set it to one side, go back to the rest of the evidence, and ask yourself whether, on a consideration of such evidence as you do accept, you are satisfied beyond reasonable doubt that the prosecution has proved each of the elements of the offence in question.” (footnotes omitted)
Jerrard JA referred to that proposed direction with approval in R v Armstrong13.
While such a direction might not be essential in every case where a defendant gives evidence (depending on what else is said), in this case it was, at the very least, desirable. This was a case in which P’s and the appellant’s versions of the crucial events were starkly opposed. P’s evidence was not corroborated in any way. It was important that the jury understood that their decision to convict or acquit was not a simple question of deciding which of the conflicting accounts of P and the appellant they found more credible. The direction given failed to explain to the jury that it was possible for them to find the defence evidence unconvincing or, indeed, to reject it, but nevertheless, to acquit if they were not satisfied that the Crown had made out its case beyond reasonable doubt. That deficiency would not have been improved by the note on which his Honour ended the summing up. On the other hand, he did remind the jury repeatedly of the need to be satisfied of the appellant’s guilt beyond reasonable doubt; and if this were the only lack in the summing up, I might not be convinced of a miscarriage of justice.
But in addition to failing to bring the intermediate possibility to the jury’s attention, there was, I think, a real prospect that the statement, “On the other hand, his evidence may strengthen the case for the prosecution”, left the jury with the impression that an adverse view of the appellant’s evidence could serve to bolster the Crown case. This was not a case in which the Crown sought to rely on lies told by the appellant, and no Edwards14 direction was given. His Honour’s reference to strengthening the prosecution case was capable of being understood as meaning that if the jury took the appellant to be lying, it would go to support a conclusion of guilt. In leaving that interpretation open, it was a dangerous misdirection.
The appellant’s counsel at trial sought no re-direction. Notwithstanding, this case turned entirely on whether P’s evidence was accepted so as to satisfy the jury beyond reasonable doubt of the appellant’s guilt. In those circumstances, I consider that the direction as given did lead to a miscarriage of justice; there is a real prospect that the appellant lost a chance fairly open to him of being acquitted as a result of the misdirection.
I would set aside the convictions and order a new trial on all four counts.
WHITE AJA: I agree with the reasons for judgment of Holmes JA and the orders which she proposes.
I also agree with the comment of the Chief Justice about the desirability of judges using the “Benchbook” directions unless there is good reason for not doing so.
(2007) 230 CLR 559. ↩
At 577. ↩
(2000) 176 ALR 369. ↩
(2007) 232 CLR 208 at 232-234. ↩
Italics added. ↩
[1984] 2 Qd R 545. ↩
Criminal Code 1899 (Qld). ↩
[1980] Qd R 346. ↩
At 347. ↩
[2005] QCA 30. ↩
R v E (1995) 89 A Crim R 325. ↩
At 330. ↩
[2006] QCA 158. ↩
Edwards v The Queen (1993) 178 CLR 193. ↩
R
McBride [2008] QCA 412
(2000) 176 ALR 369
(1993) 178 CLR 193
(2007) 232 CLR 208
(2007) 230 CLR 559
Convictions set aside and a new trial ordered on all four counts. The appeal court found a miscarriage of justice arising from the jury direction on the accused’s evidence.