_R v SBB_

Judgment (59 paragraphs)

[1]

CRIMINAL LAW - APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION - APPEAL AND NEW TRIAL - OBJECTIONS AND POINTS NOT RAISED IN COURT BELOW - IMPROPER ADMISSION OR REJECTION OF EVIDENCE - GENERAL PRINCIPLES - where the appellant was convicted by a jury of the offence of unlawful and indecent treatment of a child under the age of 12 - where an interview conducted between police and the complainant child was admitted into evidence pursuant to s 93A of the Evidence Act 1977 (Qld) - whether the evidence was inadmissible - whether the evidence was likely to be excluded pursuant to s 98 or s 130 of the Evidence Act 1977 (Qld)

[2]

CRIMINAL LAW - APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION - APPEAL AND NEW TRIAL - OBJECTIONS AND POINTS NOT RAISED IN COURT BELOW - IMPROPER ADMISSION OR REJECTION OF EVIDENCE - GENERAL PRINCIPLES - where an interview between the police and the appellant took place - where the appellant at the time of the interview had a high blood alcohol content - where the appellant's answers suggested that he was intoxicated - where the prosecutor at trial stated that the interview was wholly consensual - whether counsel at trial was in error in not discussing with the appellant whether to admit or challenge the interview

[3]

CRIMINAL LAW - APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION - APPEAL AND NEW TRIAL - OBJECTIONS AND POINTS NOT RAISED IN COURT BELOW - MISDIRECTION AND NON-DIRECTION

[4]

PARTICULAR CASES - where the learned trial judge accepted and repeated an opinion expressed by the interviewing police officer - whether this amounted to a misdirection in light of the defence case

[5]

CRIMINAL LAW - APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION - APPEAL AND NEW TRIAL - OBJECTIONS AND POINTS NOT RAISED IN COURT BELOW - MISDIRECTION AND NON-DIRECTION - PARTICULAR CASES - where the appellant had told lies - whether a direction in accordance with Edwards v The Queen [1993] HCA 63; (1993) 178 CLR 193 was necessary

[6]

CRIMINAL LAW - APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION - APPEAL AND NEW TRIAL - OBJECTIONS AND POINTS NOT RAISED IN COURT BELOW - MISDIRECTION AND NON-DIRECTION - PARTICULAR CASES - where the appellant wrote letters from prison - where the letters could have been taken as displaying a consciousness of guilt - whether the learned trial judge's direction was sufficient

[7]

Evidence Act 1977 (Qld), s 93A, s 98, s 130

[8]

Dhanhoa v The Queen [2003] HCA 40; (2003) 217 CLR 1, applied

[9]

Edwards v The Queen [1993] HCA 63; (1993) 178 CLR 193, distinguished

[10]

R v Chang [2003] VSCA 149; (2003) 7 VR 236, applied

[11]

Zoneff v The Queen (2000) 200 CLR 234, distinguished

[12]

Director of Public Prosecutions (Queensland) for the respondent

[13]

[1] WILLIAMS JA: The circumstances giving rise to this appeal are fully set out in the reasons for judgment of Jerrard JA and I will not repeat them. As is obvious from his Honour's reasons there were a number of aspects of the evidence of the complainant boy, the complainant's mother, and the appellant which meant that the prosecution case was not a particularly strong one. Despite that, as was conceded by senior counsel for the appellant on the hearing of the appeal, there was evidence, which if accepted, would support a conviction.

[14]

[2] It is against that background that the issues raised by Jerrard JA in his reasons with respect to the letters written by the appellant become of critical importance. It is not necessary for me to summarise the contents of those letters, nor to set out what was said by the prosecutor in his address and the trial judge in her summing up in relation to them; that is sufficiently set out in the reasons of Jerrard JA.

[15]

[3] Relying on the reasoning of the High Court in Dhanhoa v The Queen [2003] HCA 40; (2003) 217 CLR 1, Mr Martin SC for the respondent argued that no additional warning or direction was called for in the summing up in this case.

[16]

[4] In my view the reasoning of the Victorian Court of Appeal in R v Chang [2003] VSCA 149; (2003) 7 VR 236, in which Dhanhoa was considered, is instructive. It is sufficient to refer to the reasons of Charles JA (with whom Ormiston JA and Cummins AJA agreed on this point). After considering what was said by the members of the High Court in Dhanhoa, Charles JA went on to deal with the issue which arose in the case before him. Relevantly he said at 251:

[17]

"The conduct (apart from lies) of the applicant in the present case which the prosecutor at the outset submitted was capable of demonstrating consciousness of guilt included flight, an assault on a policeman, the laying of a complex false trail, the concealment of the body of the deceased and the preparation of a grave in which the body was to be placed, in addition to a large number of lies allegedly told by him. ...

[18]

It has been recognised, however, particularly in relation to flight, that evidence of post-offence conduct may be highly ambiguous and susceptible to error. ... As the court observed in White (1998) 125 CCC (3rd) 385 at 398-9:

[19]

The danger exists that a jury may fail to take account of alternative explanations for the accused's behaviour, and may mistakenly leap from such evidence to a conclusion of guilt. In particular, a jury might impute a guilty consciousness to an accused who has fled or lied for an entirely innocent reason, such as panic, embarrassment or fear of false accusation. Alternatively, the jury might determine that the conduct of the accused arose from a feeling of guilt, but might fail to consider whether that guilt relates specifically to the crime at issue, rather than to some other culpable act."

[20]

[5] That then led his Honour ultimately to conclude (at 254-5):

[21]

"It follows, I think, that a full Edwards direction should have been given in relation to the applicant's alleged lies and his post-offence conduct generally. The absence of such a direction meant that the applicant was, as was contended on his behalf in this court, denied the protection he would have been given by a warning that his behaviour may not have stemmed from a realisation of his guilt of murder, as distinct from a realisation that he had caused the victim's death and that there were possible explanations such as panic or a desire to escape an unjust accusation for his highly bizarre behaviour. ... Since it was capable of being misused by the jury, the interests of a fair trial required a careful Edwards direction from the trial judge as to all the conduct and lies originally sought to be relied on by the prosecutor in this way. I note that in the passage previously cited from the judgment of Gleeson CJ and Hayne J in Dhanhoa [at [34]] their Honours appear to accept the necessity for the giving of such a direction if 'the judge apprehends that there is a real danger that the jury may apply such a process of reasoning'. That the jury here would have done so seems to me to be certain."

[22]

[6] That in my opinion equally applies to the position in this case. As already noted there were weaknesses in the prosecution case and the jury may well have considered, in the light of the observations made by the prosecutor in his final address to the jury, that the most telling evidence against the appellant was what he had said in the letters to the complainant's mother. I am conscious of the fact that the appellant was given the opportunity under cross-examination of putting forward alternative explanations and did not clearly do so. Further, he was not re-examined at all on the point. That may have been because there was at that stage some assumption that the prosecution would not be relying on consciousness of guilt, but, if that was so, everything changed once the prosecutor made the statements in question in his final address.

[23]

[7] The prosecutor clearly invited the jury to conclude that the letters demonstrated a consciousness of guilt and invited the jury to act on that. In those circumstances it was incumbent on the trial judge to give an Edwards type direction. The terms of the direction could have been moulded to the facts of the case in question. In the absence of such a direction there was a real danger that the jury may have leapt to a conclusion of guilt without taking into account alternative explanations; that is, this case comes within the category of cases referred to by Gleeson CJ and Hayne J in the passage from their judgment in Dhanhoa quoted above.

[24]

[8] It follows that I agree with Jerrard JA that the appeal against conviction should be allowed and a re-trial ordered.

[25]

[9] JERRARD JA: On 20 November 2006 Mr S was convicted by a jury of the offence of unlawful and indecent treatment of a child under the age of 12. On 21 November 2006 the learned trial judge sentenced him to nine months imprisonment, and ordered that he be released on parole on 28 February 2007; the learned judge declared that a total of 39 days between 21 March 2006 and 28 April 2006 be declared time already served pursuant to the sentence. Mr S, whose parole release date has long passed, is now on bail. He had remained in custody after 28 February 2007 because of s 180(2)(b) of the Corrective Services Act 2006 (Qld), which prevents a prisoner applying for parole until any appeal against the conviction or sentenced is heard. He had appealed against his conviction, and he was given leave on this appeal to abandon the grounds of appeal in the Notice of Appeal dated 8 December 2006. His amended grounds of appeal were:

[26]

He did not obtain a fair trial due to the way his defence was conducted.
The trial judge did not properly describe the case to the jury.
The learned trial judge did not, but should have, given the jury a specific direction in relation to lies allegedly told by Mr S.
The learned trial judge failed to direct the jury as to the proper use they might make of letters written by Mr S to the complainant's mother, when Mr S was in custody awaiting trial.

[27]

[10] This ground of appeal included complaints, in the written submissions, that the counsel who appeared at the trial did not challenge the admission into evidence of any part of an interview conducted between investigating police and the complainant child. It was submitted that all or part of that interview was either inadmissible or likely to have been excluded on a discretionary challenge made pursuant to either s 98 or s 130 of the Evidence Act 1977 (Qld). That interview between the complainant and the police officer had been admitted into evidence pursuant to s 93A of that Act. A second complaint in the written argument was that no objection was taken to the admission into evidence of any part of an interview between the police and Mr S, although it was apparent that at or about the time of that interview Mr S had a blood alcohol content of .142, and his answers to the first few questions strongly suggested he was still adversely affected by alcohol. Mr S's counsel on this appeal, Mr Davis SC, made the point in his written outline that the prosecutor had emphasised at the start of the trial that the entirety of that interview with the appellant was being admitted with the consent of counsel then appearing at the trial (not Mr Davis SC); the submission in writing was that counsel at the trial was in error in not discussing with Mr S whether to challenge or admit without objection all of those two interviews. That last submission was not pressed in oral argument. A further complaint was the lack of evidence in chief from Mr S of some critical pieces of evidence; Mr Davis SC submitted in the written argument that there was no rational forensic purpose to be achieved by not challenging the admission of either all or portions of both interviews, and in not attempting to lead - or open - evidence of Mr S on those critical pieces of evidence. Mr Davis SC referred to TKWJ v The Queen (2002) 212 CLR 124, and Leali v The Queen (2005) 79 ALJR 662.

[28]

[11] To appreciate ground 1, it is necessary to consider the nature of the trial. The Crown alleged an indecent incident had occurred in 2003 between Mr S and his then five year old stepson, in a house in Cairns. If the complainant child's most serious account of that was accepted, Mr S had dragged him from a bed by the hair, into the lounge room, undressed himself, and attempted to have the complainant child suck Mr S's penis.

[29]

[12] The complainant child's mother, DL, gave evidence of having lived with Mr S for some two and a half years, in a relationship which began in 2002. In 2003 they were living together in Cairns with her two sons, and sometimes his son lived there as well. On an occasion that DL said was in year 2003, "sometime after February and March", and when the complainant was between five and half and six years old (his birthday was in June), she had awoken one night. She suffers from deafness, and had removed her hearing aid, but she was awoken because a light was shining on her bedroom door from the lounge. Often enough the complainant child would be in the bed with her, and on this occasion he was not, although she had taken the child to bed with her that night. Mr S was not in the bed either. He often went to bed after her; she said he would stay up sometimes and drink wine from a cask into the early hours. By implication from her evidence, she shared the bed with Mr S.

[30]

[13] On the occasion described in her evidence, she walked down the passageway towards the lounge room, and saw Mr S standing in it between a display cabinet and table, naked, but with a cigarette in his left hand. It was not unusual for him to walk around without clothes; on this occasion -

[31]

"I did see my son's mouth come in contact with his penis. At that stage he did not have an erection. He also noticed me standing at the door so he threw my son away from him. I just said to him 'What are you doing?' and he said to me he was measuring [the complainant's] height because [he] had started hormone growth injections in that - on that particular year. And I said to him, 'No, I saw what I saw. You were trying to get my son to suck your dick'. He said to me, 'No', it was all in my head. So I got my son and took him back to bed with me".[3]

[32]

[14] DL's evidence was that she did not tell the police or anyone else what she had seen, because "I didn't want to," as they were "boyfriend/girlfriend, de facto".[4] She said that "we drank a lot and there was a lot of violence involved" (in their relationship). It appears that she was persuaded to make a complaint by a Mr Bennett, in December 2005, after the latter had heard the complainant child at a barbecue talking "about [the appellant] running around with no clothes on, wanting to make him suck his dick".[5] Mr Bennet spoke about it with DL, and then himself reported it to the police.

[33]

[15] DL's evidence in chief included that in January 2006 Mr S had telephoned her, asking her to "drop the charges, honey".[6] A number of letters were put in evidence, which he had written to her in the period in which he was held in custody without bail. Those letters were long, and Mr S expressed considerable affection for DL in them, and also suggested that she talk with the complainant child; the letters conveyed the suggestion the complainant had been conditioned (by DL) into believing an offence had happened, and had complained only because he was angry with Mr S. The evidence generally established that around the time of the complaint to the police, Mr S was in a relationship with another woman, and that DL knew of it and was not pleased with that, and also showed that the complainant's relationship with Mr S had been adversely affected by his mother's anger.

[34]

[16] DL agreed, both in her evidence in chief and cross-examination, that on occasions Mr S had attempted to teach the complainant boy how to wash his penis and to keep his foreskin clean. Mr S's defence was that, if he was doing anything with the boy, that was all he was doing when challenged by DL. When the complainant child was interviewed by police on 20 December 2005, the interview about which Mr Davis SC submitted in writing objection should have been taken, the complainant said that he had not liked living with Mr S because "he is a gay", which he said meant a "poofter", who "fucks other men"; all of this was information that other people "tell my mum".[7] It seems that his mother had told him those things. The complainant also said his mother had told him that Mr S "goes out naked and goes around and sits on the - seat naked";[8] and that Mr S stole his mother's money. He added that he did not feel "OK" around Mr S because "he touches up my mum",[9] and that "he's done some things to me". In answer to questions, he explained that once when "me and my mum were asleep" the appellant had woken him up and taken off the appellant's clothes, after dragging the complainant into the lounge room, and then "he hold up his private and then he made me suck it", and "then when my mum comes around the corner he just pushed me right away".[10]

[35]

[17] That account was very close indeed to the one his mother gave, but its reliability as an independent account is much weakened by the fact that[11] he told the investigator that he knew this happened when he was five because "my mum tell me, and then I remember". More than once in that interview he expressed the matter that way - "That's what my mum told me and then I remember".[12] In answer to other questions, he said that he knew the appellant had wanted him to suck the appellant's penis, because "he was gay". Those answers suggested DL had told him Mr S was "gay", that the complainant child's statements were affected by his knowledge of his mother's attitude to Mr S, and so too was his description of the event. But for all that, it is probable that had objection been taken and exclusion been sought under either s 98 or s 130 of the Evidence Act 1977, the trial judge would have ruled that those matters went to weight rather than admissibility, and did not establish that it would be unfair to the appellant to admit that evidence, or that it would be inexpedient in the interests of justice that the statement be admitted. Section 130 continues the power of a court to exclude evidence if the court is satisfied that it would be unfair to the person charged to admit it; s 98 gives a specific discretion to reject a statement taken under s 93A of that Act if it appears for any reason to be inexpedient in the interests of justice that the statement should be admitted. The judge could well have ruled, correctly, that the possibility of DL's hostility having guided and affected her son's account of events was certainly a possibility for the jury to consider, but a matter for them to determine, in the light of all of the evidence. Exclusion would not be automatic.

[36]

[18] The complainant was cross-examined in an earlier, video-recorded, proceeding conducted by a judge other than the trial judge, and conducted under Division 4A of the Evidence Act 1977. In brief evidence in chief on that occasion (10 August 2006) the complainant said he had spoken with Mr S (of necessity after the charges were laid), who had said that he did not want to go to goal, and that the complainant should say that "he want to measure the height".[13] The complainant explained "He said, 'I don't want to go to goal, so you can say that I was measuring the height'".[14] That evidence accorded with his mother's account of what Mr S said at the time; in cross-examination the complainant said Mr S was measuring "the height" of Mr S's "private". There was no challenge in cross-examination to the claim that Mr S had spoken to the complainant and suggested what the complainant should say.

[37]

[19] In cross-examination on that occasion, the complainant agreed that he had found it hard to remember 2003, and that his mother had helped him remember; he also agreed that he had been practising what he had to say in his evidence. Then he acknowledged having told a person working in the office of the prosecutor, in an interview conducted "a couple of months ago"[15] (apparently in June 2006) that he could not remember what had happened, and that what he had said to the police was not true. On this appeal Mr R Martin SC for the respondent made the point that that recantation was at or about a time when DL was also attempting to recant, because of requests to that effect by Mr S in his letters to her. That argument does underline, however, the extent to which the complainant reflected his mother's attitudes: she had written a letter around that time to Mr S, expressing disbelief in the truth of the accusation.

[38]

[20] The complainant also agreed in cross-examination that on his account he was asleep when removed from the bed, and had woken up near the kitchen, and so could not really say he was dragged; and that he agreed he now said the appellant had not removed his own clothing, but had merely unzipped his fly. He also said he had not actually touched the appellant's penis.[16] That accorded with his statement in the interview with the police; he had ultimately said then, too, that he had not actually touched the appellant's penis with his mouth. Those answers all significantly challenge the reliability of the accusation he made, and not just because he repeated the acknowledgment in cross-examination that his mother had assisted his recollection.

[39]

[21] But that was not the end of the evidence. Mr S was interviewed on 7 January 2006, between 11.49 am and 12.16 pm, in the Cairns Watch House. The record of interview makes clear he had been arrested for driving with a concentration of alcohol above the prescribed limit, in fact .142. The interviewing officer volunteered in the interview that a reading at that level "is still on the books fairly intoxicated, but you don't seem to me to be very intoxicated at all".[17] The officer added "You appear to be to be quite OK". The officer then proceeded to question Mr S, after giving him an appropriate warning, and most of the early answers were either reproduced as "[indistinct]" or as "Ummm". The interview promptly proceeded to a description by the intervening officer of that officer having observed a record of "several instances of breaches of domestic violence, that sort of thing" in the relationship between DL and the appellant; and Mr S agreed that he was probably a heavy drinker, and that heavy drinking had fuelled violence in the relationship, including from DL.

[40]

[22] The interview continued and Mr S's answers, where capable of being transcribed, identified that he could recall an occasion when DL had said "And you tried to get my son to suck you off". Mr S said he had been showing the complainant how to wash his foreskin properly and how to pull a foreskin back, and the boy had attempted to touch Mr S's foreskin. Mr S had pushed him away, and -

[41]

"At that moment DL walked out and said 'what are you doing?' and I explained exactly [indistinct] what I was doing and from there there has been little niggles about - oh - and this is what that was all about. I guarantee you. Put money on it".[18]

[42]

[23] That, too, was the thrust of the evidence Mr S gave in cross-examination at the trial, that the occasion on which DL had seen something happening and had said "What the hell's going on?"[19] was an occasion when he was showing the complainant how to wash his penis.[20] There was no suggestion that there had been more than one occasion on which DL had asked that question, and it was clearly conceded she had asked it. Mr S agreed that DL had challenged him over the ensuing years with his account of the event, asserting to him that she believed he had been attempting to get her son to suck his penis.[21] His recollection in cross-examination was that the event had occurred in the dinning room at about 8 pm at night; he said that at least a couple of days passed before she made the allegation of improper behaviour.

[43]

[24] His evidence in cross-examination strengthened the case for the prosecution, because it accepted the happening of an occasion when DL had challenged him as to what he was doing, leaving in contest only what it was that was occurring. It had also become apparent in the evidence that from very early in the piece DL had said to Mr S that he had been attempting to abuse her son. Other evidence in cross-examination which strengthened the prosecution case was the acknowledgement that the many letters posted to DL from the prison contained many declarations of love, promises to buy things for her including a car, and a ring, and to marry her; and that as well the letters had asked for help with the charge, and suggested that DL sit down and have a "good chat" with the complainant. Mr S denied that he had been attempting to have DL put ideas into the complainant child's head, or that he was attempting to get her to persuade her son that the complainant had only said all those things because he was angry, but that was the object and clear thrust of the documents. Mr S had to agree with the proposition that "Never once in any of those letters do you say 'tell the [complainant] to tell the truth' do you ?" He was also obliged to agree that he had attempted to ensure, in the week before 10 August 2006, that the complainant child would not be available to give evidence, by means of a suggestion made by him to DL that she take him away for that week, and not make him available as a witness. He also had to agree that he had suggested to DL to go to his lawyers and "ask them what you have to do to get the cops to drop the charges. I want this shit out of the way so I can be with you. I love you".[22]

[44]

[25] That evidence really reduced the conflict to the narrow issue of DL's account, and her son's, and whether the jury were persuaded beyond reasonable doubt to accept that, despite Mr S's own evidence. His cross-examination did not clarify quite where he said the incident had occurred which DL had in part witnessed, and one of the grounds of complaint persisted with on this appeal is that that evidence on that should have been led in chief. But that is like the complaint about the admission without objection of his interview with the police. Mr Davis SC accepted in oral submissions that there was some forensic advantage in admitting that interview. There was also perhaps a forensic disadvantage in attempting to lead the suggested evidence in chief from Mr S. His account was not clear and may have sounded lame in evidence in chief, which was restricted to the simple denial that he had ever abused the complainant as alleged. It is perhaps significant that even now, when his current lawyers have filed an affidavit from him, the contents of that are restricted relevantly to a three line denial that the alleged incident happened. There is no description at all of what Mr S says did happen, or when. The possibility that it was difficult to get any further instructions from Mr S certainly looms large.

[45]

[26] Regarding the interview with the police, the evidence of Mr S was that DL drank heavily, and her evidence was that he did. His interview with the police officer made that common ground, and also that there was violence in the relationship. It is probable the jurors would have expected that, and DL gave that evidence in chief in any event. The interview allowed the submission that, even when affected by alcohol, Mr S made a strong denial of abuse, and gave an explanation consistent with the evidence given at his trial by him. There was a forensic advantage in his counsel being able to make that submission, and Mr Davis SC volunteered that conclusion on the appeal. Accordingly, that ground of appeal fails. It is probable the s 93A interview would have been admitted if objected to, and there was some benefit for the appellant in the admission of his own interview. It is true, as still submitted on the appeal by Mr Davis SC, that no evidence in chief was led as to his relationship with the complainant child, but that relationship was already apparent to the jury. The boy reflected whatever was his mother's current hostility to, or support of, Mr S. Likewise, no evidence was led of his relationship with the mother, but again that was apparent. They had had a relationship which had now ended, and he had another partner. Complaint is made that no evidence was led of the sleeping arrangements, but DL described those, and there was no challenge to her evidence, which necessarily implied that Mr S and DL shared the same bed, although he would join her later at night. Ground 1 should be dismissed.

[46]

[27] Ground 2 complains that the learned judge had incorrectly accepted and repeated an opinion expressed by the interviewing police officer, namely that the occasion when Mr S described showing the complainant how to clean a foreskin, and had been questioned by the boy's mother as to what he was doing, was one and the same incident as that which she and the complainant had described. Mr Davis SC submitted that that was an error, because the defence case was not that Mr S was in the lounge room on the occasion charged, and showing the child his penis. The defence case was that that incident had not happened at all, and the incident when cleanliness was being demonstrated was probably in the kitchen, and much earlier at night. Accordingly, Mr Davis SC submitted, the judge had misdirected the jury that Mr S's account was that he was simply showing the boy his own penis to demonstrate how to wash it, and on that account, if accepted, or if it raised a doubt, he must be found not guilty. But with respect, I disagree; the evidence entitled the judge and the jury to accept that there was one occasion only on which Mr S was questioned by DL as to what he was doing, and that was the one described by both adult witnesses. Particulars may have clarified the Crown case, if sought; but Mr S was not entitled to an acquittal if the jury were satisfied that an attempt to have the boy suck his penis happened in the kitchen, not in the lounge; nor if the boy was not dragged by the hair from the bed to the place where it happened.

[47]

[28] Ground 3 complains that the learned judge did not give the jury instructions about the use they might make of lies told by Mr S, when considering a submission by the prosecution that Mr S had given different explanations about what had happened. That remark by the judge reflected the submission by the prosecution that DL said Mr S had told her he was measuring the boy's height when she challenged him that night, and that the boy had said that Mr S had said the boy should say the same; whereas Mr S had said to the police that he was showing the boy how to wash his penis. The prosecution argument depended upon the jury accepting the evidence of both the mother and the boy as accurate, and if they did accept DL's evidence, then Mr S had given one explanation that night, and a different one to the police and to the jury. But it does not follow that the jurors needed any direction on what to make about that fact, and Mr Davis SC did not suggest any particular direction which could or should have been given.

[48]

[29] The complaint about ground 3, that specific directions about lies should have been given, is often enough made on appeal, and frequently after trials in which no direction to that effect was asked for by counsel at the trial. It is difficult to see how a direction in accordance with Edwards v The Queen [1993] HCA 63; (1993) 178 CLR 193 would have been of benefit to Mr S. Likewise a direction in accordance with the judgment in Zoneff v The Queen (2000) 200 CLR 234, to the effect that inconsistent explanations as to what he was doing might adversely reflect on Mr S's credibility, is a direction many counsel would not ask for at a trial. That ground of appeal, focusing solely on those assertedly inconsistent explanations, should be dismissed.

[49]

[30] Ground 4 complains about a failure to direct the jury as to the use of the letters written from prison. Mr Davis SC accepted that the jury might conclude that the letters were written out of a consciousness of guilt, and with the intention to avoid the consequences of his actions. The learned judge reminded the jury that the prosecution argued that Mr S, in writing those letters, was trying to prevent the boy from giving evidence, and had argued that it was significant Mr S had not at any stage suggested that the boy's mother tell the boy to tell the truth. The judge also told the jury that the defence argument was that the letters should be interpreted as -

[50]

"Someone who was bewildered by the allegations that had been made against him. Again he was simply questioning them, trying to make sense of them, casting around for an explanation as to why [the complainant] would make those allegations against him".[23]

[51]

That statement by the judge accurately reflected the submissions by defence counsel at the trial.

[52]

[31] The complaint by Mr Davis SC in his written submission was that the learned trial judge should have explained to the jurors in what ways it may or may not have been significant if Mr S was attempting to prevent the complainant from giving evidence. The oral argument on the appeal pointed to the statement by the prosecutor[24] to the learned trial judge, before the summing up began and in the absence of the jury, that the prosecutor was not seeking any direction suggesting that the contents of the letters show a consciousness of guilt or anything of that nature. Yet the prosecutor later made the following submission to the jury:[25]

[53]

"He never wanted [the complainant] to come and tell you what happened to him. He tried to make sure [the complainant] would get hidden away. This changing story, saying he was measuring [the complainant's] height, to [DL]. Telling [the complainant] to say he was measuring the height, telling the police he was washing [the complainant's] penis, then the attempt to put pressure on [the complainant] through [DL], to say he made it up because he was angry. Then the attempt to get [the complainant] not ever to come to court. Are these the actions of an innocent man who had nothing to fear from the truth? Because never once did he say in those letters, 'Just get him to tell the truth'."

[54]

[32] Mr Davis SC developed, in his oral argument, the submission that the learned trial judge should have given a direction to the jury, in the nature of a direction frequently given in respect to matters such as flight or lies as allegedly showing a consciousness of guilt, once the prosecutor had made those submissions to the jury. That is, something in the nature of an Edwards direction should have been given, once that submission was made. That was because that part of the prosecutor's address essentially listed all the circumstances which did point to a consciousnesses of guilt, despite the prosecutor's earlier disclaimer. There is substance in that submission. On this appeal Mr R Martin SC contended that the prosecutor at the trial had not really argued that the described conduct demonstrated that Mr S was anxious to avoid a trial because he was guilty, but that was the thrust of that part of the address. Because the argument was made in those terms to the jury, and it was supported by the evidence and had some force, it was incumbent on the learned judge to be alert to the change of position by the prosecution. Those circumstances to which the prosecutor referred were the most apparently unequivocal evidence in the whole trial, pointing to guilt, when the rest of the evidence for the prosecution case was of very questionable quality. That other evidence raised the possibility of either an inaccurate belief of wrongdoing by Mr S or an inaccurate belief of his innocence, both passed on at different times from DL to her son. Accordingly, a properly conducted trial required that the jury be reminded by the judge of the possibility that an innocent person could fear conviction and be anxious to avoid a trial, just as much as a guilty person. That would have put the matter much more evenly to the jury than in fact happened, because the learned trial judge essentially simply repeated the arguments put by counsel. Counsel for Mr S did not ask for the direction Mr Davis SC says should have been given, or argue to the jury on those lines, but it was a point that had to be made to prevent the jury reasoning that the established conduct could only show guilt. Judicial instruction of a need to consider other possible explanations for conduct, consistent with innocence, to prevent that automatic leap, is the essence of what is called an Edwards direction. There is a reasonable possibility that failing to remind the jury of the arguably equivocal nature of that other circumstantial evidence to which the prosecutor had referred, in a submission inviting the jury to find that it pointed to guilt, may have affected the verdict.

[55]

[33] That is particularly because the remainder of the prosecution evidence was of such doubtful reliability and value that, absent a direction putting what appeared to be the strongest part of the prosecution case in its proper perspective, there may have been a miscarriage of justice. Mr S has actually served longer than the learned trial judge intended that he serve in custody, and although the formal order of this Court should be to quash the conviction and order a re-trial, the Director may well consider that there is simply no point in bringing this matter back again before a court.

[56]

[34] I would allow the appeal, set aside the conviction, and order that there be a new trial.

[57]

[35] HOLMES JA: I have read the judgments of Williams and Jerrard JJA and agree with their reasons and conclusions.

[58]

[1] At [8] and [16] per Gleeson CJ; [33] per Gaudron J; [81] per McHugh J and [112] per Hayne J.

[59]

[2] Particularly, at [99] in the joint judgment of Callinan and Heydon JJ.

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Cases Cited (6)