Rahman v R

Background to the offending

1. The complainant AA was born in November 2003. She has two older brothers, BB and CC, who were born in 1999 and 2000 respectively.
2. In about 2008 the mother of the complainant engaged the applicant as a home tutor for BB and CC. The complainant began to participate in these lessons in 2010. The tutoring always occurred at the complainant's home, which was first in Lakemba and subsequently in Homebush West.
3. The tutoring classes were always conducted in the dining room, with the applicant and the children seated at the dining room table.
4. BB and CC stopped attending the classes at the conclusion of their schooling in 2016 and 2017 respectively. Thereafter, the applicant continued to tutor the complainant only.
5. The four occasions which resulted in the four charges against the applicant were not isolated incidents. The complainant, after she disclosed the offending to one of her friends, DD, said that the applicant had been touching her inappropriately since she was eight years old. When the applicant participated in a Joint Investigation Response Team interview (JIRT), she said that the inappropriate touching commenced when she was in year 1, and continued to the time when she was in years 4 or 5 when it ceased, but then recommenced in 2018.

Count 1

1. On a day between 20 January and 13 April 2018, the applicant was tutoring the complainant at her home. One of her brothers was in his bedroom and the other brother was lying on the couch near the dining table. The complainant was in the lounge room sitting at her computer, working on an assignment.
2. The applicant sat next to the complainant, and put his hand underneath her dress and touched her on her thigh. The applicant moved his hand around on the complainant's thigh for about two minutes. This tickled the complainant, and she removed his hand.
3. The indicative sentence for this offending was six months' imprisonment with a non-parole period of three months.

Count 2

1. The complainant said that during April 2018 in the school holidays, the applicant was tutoring her at the dining table in the family home. One of her brothers was at home but not in the dining room. The applicant was sitting at the head of the dining table, and the complainant was standing next to him while he was answering a question.
2. While the complainant was standing next to him, the applicant used his hand to grab the complainant's bottom, and squeezed her bottom for approximately ten minutes. That made the complainant feel uncomfortable.
3. The indicative sentence for this offending was two years' imprisonment with a non-parole period of one year.

Count 3

1. On 6 September 2018, the applicant attended the complainant's home at 8pm for a mathematics tutoring session. One of her brothers was home in his bedroom. During the tutoring session, the applicant said to the complainant, "Oh I love you and you know you're really nice to me. If you were your brother's age, I would tell your mother I loved you". At the time when the applicant spoke these words, the complainant was standing next to him.
2. The applicant then put his arm around the complainant, and touched her on the bottom on the outside of her clothing. The applicant tried to hug the complainant and said, "Oh you never hug me back". He tried to kiss the complainant on the mouth with his lips, and kissed her on the corner of her mouth. The complainant said, "I don't like hugs".
3. The indicative sentence for this offending was two years' imprisonment with a non-parole period of one year.

Count 4

1. About five minutes after the incident giving rise to count 3, the complainant was standing next to the applicant when the applicant told her to sit on his lap. The applicant grabbed the complainant's arms and tried to pull her onto his lap. The complainant resisted and said, "No, its okay". The applicant pulled the complainant back onto his lap, and put both of his hands underneath her robe and squeezed the complainant's chest on the outside of her t-shirt.
2. The complainant got up and told the applicant that she had to end the tutoring session because her friend was going to call her. The applicant said that he would disturb the complainant while she was talking to her friend.
3. At 11:24pm that evening, the applicant sent a text to the complainant saying, "How's it going talking to your friend? Entertaining???" The complainant did not respond.
4. The indicative sentence for this offending was two years and six months' imprisonment with a non-parole period of one year and six months.

Complaint evidence

1. The complainant first disclosed the offending to her school friend, DD in the school holidays in April 2018. The two girls had been to the movies and were sitting in a shopping centre at the time. DD told the complainant that she should tell an adult. The complainant did not tell an adult because she did not think that, as a child, she would be believed.
2. The complainant made a further disclosure to DD at school on Friday, 7 September 2018 because the incidents constituted by counts 3 and 4 had happened the day before. The complainant was crying as she spoke to DD, and another of her friends, EE, noticed and comforted her. The complainant's drama teacher became aware that the complainant was upset, and disclosure was then made to her. The drama teacher explained that she had an obligation to report the matter, and that was done to the Deputy Principal.
3. On 12 September 2018 the applicant was arrested and interviewed. He denied the allegations. An examination of his mobile phone located the text message sent to the complainant on 6 September 2018, and also located four photographs taken of the complainant during a tutoring session on 9 May 2018.

Ground 1: The trial miscarried as a consequence of the trial judge's failure to direct the jury in relation to lies.

1. The applicant gave evidence at the trial. He was cross-examined about photographs on his phone depicting the complainant. The photos had been taken during tutoring sessions. The applicant denied that he had taken the photographs. He said that the children he was tutoring had access to his phone, and that one or more of them had used his phone to take photographs.
2. When cross-examining the applicant, the Crown prosecutor asked these questions: Q. And I suggest you're lying about CC taking these photos? A. INTERPRETER: Of course not. Q. And you're lying because you know that if you took these photographs it would indicate some kind of inappropriate interest in [the complainant]? A. INTERPRETER: Of course it not true.
3. In the closing address, the Crown said this in relation to the applicant's evidence concerning the taking of the photographs: And if you accept that, which I suggest you would, then you'll find the accused was lying about who took those photos. The relevance of the photos is this. They are consistent with the accused's inappropriate sexual interest in AA. Is (sic) inappropriate for a grown man, he's AA's teacher, to be taking photographs of her on her phone, particularly if she doesn't know he's taking those photos during a tutoring session and the Crown says this is something that is consistent with AA's evidence of the accused having a demonstrated sexual interest in her. … I make a few comments about the accused's evidence. I've already talked about the photos and I've already said it to you, you would readily accept that the accused was lying about those photos and that he was the one who took the photos, not AA (sic). … In summary, what I would submit is having reviewed that evidence, having considered what the Crown says was the accused's untruthful evidence about photos, you would not find the accused to be a credible witness, you would not believe his evidence and so when he says that he never touched AA indecently, never squeezed her on the bottom, touched her on the private parts, touched her on the chest, you would reject that evidence beyond a reasonable doubt.

Submissions

1. The applicant submitted that those remarks went beyond an attack on his credibility. He submitted that the remarks amounted to a submission that the jury could regard his allegedly untruthful evidence as revealing a consciousness of guilt.
2. The Crown submitted that it was clear from the closing address that it had relied on the asserted lie (that the applicant had not taken the photographs) at the trial as discrediting his credibility. The Crown submitted that it was the fact that the applicant took the photographs of the complainant, and not the fact that he lied about having done so, that was relied upon by the Crown as some evidence of his sexual interest in the complainant. In those circumstances, the Crown submitted that there was no need for the trial judge to enquire of the prosecutor as to the use sought to be made of the asserted lie, because it was clear from the closing address.

Determination

1. In Dhanoa v The Queen (2003) 217 CLR 1; [2003] HCA 40 the issue was whether the applicant was amongst a group of four men who had assaulted and robbed another man who had invited them back to his home unit from the pub where they had been drinking. When the police were investigating the complaint, the police told the applicant that his fingerprints had been found at the unit, and he was asked whether he could explain how his prints came to be there. He said that he had no idea, and he denied that he had been at the hotel and denied knowing anything about the incident.
2. In his evidence at the trial, the applicant admitted he had been at the hotel and that he had gone back to the unit with the three other men. He gave an account of what he did at the unit which, if accepted, could have provided an innocent explanation of the presence of his fingerprints.
3. In his final address, the prosecutor highlighted the differences between what the applicant had said to the police and what he said in evidence at the trial. The prosecutor did not put to the jury that what the applicant said to the police amounted to lies which indicated a consciousness of guilt. The trial judge did not put such a possibility to the jury in his summing up. No directions of the kind considered in Edwards v The Queen (1993) 178 CLR 193 were given.
4. The judgment of Gleeson CJ and Hayne J said at [29] that it was not a case in which it could have been contended that it was reasonably open to the jury to find that, in his answers to the police, the applicant had deliberately lied, and that such lies reflected a knowledge on the part of the applicant that telling the truth would implicate him in the commission of the offences.
5. The judgment went on to say at [34]: It is not necessary for a trial judge to give a direction, either of the kind referred to in Edwards, or of the kind referred to in Zoneff, every time it is suggested, in cross-examination or argument, that something that an accused person has said, either in court or out of court, is untrue or otherwise reflects adversely on his or her reliability. Where the prosecution does not contend that a lie is evidence of guilt, then, unless the judge apprehends that there is a real danger that the jury may apply such a process of reasoning, as a general rule it is unnecessary and inappropriate to give an Edwards direction. Zoneff was said to be an unusual case, and the direction there proposed was said to be appropriate where there is a risk of misunderstanding about the significance of possible lies. The present was not such a case.
6. In the same case, McHugh and Gummow JJ said at [62]: [A]n out-of-court statement is not a lie that can be used as indicating a consciousness of guilt unless ordinarily there is other evidence that indicates it is a lie. Although the lie under consideration in the present case is a testimonial lie, there is no basis for distinguishing between the effects of testimonial and out-of-court lies: Edwards at 198 and 208-209.
7. McHugh and Gummow JJ also said: [63] … Significantly, counsel for [the applicant] sought no direction concerning lies. Nor, as we have said, did the trial judge give any such direction. This strongly indicates that it did not occur to those present at the trial that lies as consciousness of guilt was an issue in the trial or that, from the conduct of the case, the jury might think that lies told by the applicant were evidence of a consciousness of guilt. [64] Accordingly, we do not think that there is a reasonable possibility that the verdict of guilty would have been different if the trial judge had given a direction concerning lies. Indeed, to have given a direction about lies - to have given an Edwards direction - might not only have emphasised the issue but made it difficult for the jury to disregard consciousness of guilt as an issue.
8. It is clear from the Crown's closing address that the evidence of the applicant, said to be untruthful, was relevant only to an assessment of his credibility. Nothing was said to suggest that the applicant gave the evidence he did in that regard because, if he told the truth, that would reveal his guilt about the offences. Although it had been put to the applicant in cross-examination that, if he took the photographs, that would indicate an inappropriate interest in the complainant, the way the Crown dealt with the photos in his closing address was simply to submit that the applicant had lied about taking the photos, and then to submit that the taking of the photos demonstrated his sexual interest in the complainant: And if you accept that, which I suggest you would, then you'll find the accused was lying about who took those photos. The relevance of the photos is this. They are consistent with the accused's inappropriate sexual interest in AA. What the Crown did not do was to pursue the approach from cross-examination to submit that the applicant was lying "because [he knew] that if [he] took these photographs it would indicate some kind of inappropriate interest in [the complainant]".
9. When the Crown returned to the issue of the photos and the assertion that the applicant had lied, the matter was put squarely on the basis of the applicant's credibility: In summary, what I would submit is having reviewed that evidence, having considered what the Crown says was the accused's untruthful evidence about photos, you would not find the accused to be a credible witness, you would not believe his evidence…
10. There is the further problem that there was no clear evidence that indicated that the applicant's denial of taking the pictures was a lie. The evidence of the complainant's brother CC was that he may have taken the photos. When he was first asked in cross-examination about taking the photos he said that he could not remember. He agreed that he had access to the applicant's phone, but only when he was being tutored by the applicant. He was no longer being tutored in May 2018 when the photos were taken.
11. Nevertheless, he then gave this evidence: Q. I suggest to you that there was an occasion when you used the accused's phone to take photographs of your sister. A. I don't remember-- Q. Just to test the phone? A. Maybe, but I don't remember doing it. … Q. Do you ever recall taking any of those photos? A. I may have taken them, but it's - yeah I may have taken those ones.
12. In re-examination, he gave this evidence: Q. You were shown some photos, and asked if you recall taking them. You said, "I may have." Do you have a recollection of taking those photos? A. I think I have taken some but I don't - like, it's been a while so I don't remember if I actually took it. But I think at one time I did take those - take photos.
13. If CC's evidence was accepted, there was no other evidence indicating that the applicant's evidence that he did not take the photos was a lie. It was that evidence of CC which led counsel for the applicant at the trial to suggest in her closing address that it was CC who had taken the photos, and that the applicant was telling the truth in denying that he (the applicant) had taken them.
14. As to the operation of r 4.15 Supreme Court (Criminal Appeal) Rules 2021 (NSW), the applicant accepted that no direction had been sought by counsel for the applicant at the trial, but submitted that there could be no forensic reason for the absence of such a request. The Crown submitted that the seeking of a direction on lies would have served only to highlight the inconsistency in the applicant's evidence about the photographs, and where they were taken from and where he was sitting when they were taken.
15. However, the more likely reason the issue of lies was not raised was because of the way counsel for the applicant at the trial dealt with the photographs, by relying on the evidence of CC. What defence counsel was anxious to do was to point to the inconsistency in the Crown's case as a result of that evidence. If defence counsel had sought an Edwards direction, such a direction would have undermined the submission that CC's evidence showed that no lie had been told by the applicant.
16. No miscarriage of justice was occasioned by the trial judge's not giving an Edwards direction. Lies amounting to consciousness of guilt did not arise at the trial. Nothing in the Crown's final address could have led the jury to consider that, if they found that the applicant lied about taking the photos, he did so out of a sense of guilt. Such a direction from the trial judge would have been confusing to the jury, given the way the trial had been conducted.
17. Leave should be refused under r 4.15.

Ground 2: The trial miscarried as a result of the trial judge's failure to properly direct the jury as to the applicant's good character

1. Detective Senior Constable Clarke gave evidence that the applicant had no prior criminal history. In her summing up, the trial judge said this in relation to the applicant's character: The law provides that a jury is entitled to take evidence of accused's good character into account in favour of him on the question of whether the Crown has proved the accused's guilt beyond reasonable doubt. The fact that the accused is a person of good character is relevant to the likelihood of his having committed the offences alleged. You can take into account the accused's good character by reasoning that such a person is unlikely to have committed the offences charged by the Crown. Whether you do reason in that way is a matter for you. None of this means of course that good character provides the accused with some kind of defence. It is only one of the many factors which you are to take into account in determining whether you are satisfied beyond reasonable doubt of the guilt of the accused. What weight you give to the fact that the accused is a person of good character is completely a matter for you, but you should take that factor into account in the way I have indicated to you.
2. The trial judge did not give to the jury the second part of the usual character direction found in the Bench Book as follows: Further, a jury can use the fact that [the accused] is a person of good character to support [his/her] credibility. You may reason that a person of good character is less likely to lie or give a false account either in giving evidence before you or in giving an account of the events in answer to questions asked by the police. Whether you reason in that way is a matter for you to determine

Submissions

1. The applicant submitted that the Crown case substantially relied on the evidence of the complainant. The Crown sought to impugn the applicant's credibility by asserting that he was untruthful in his evidence, thereby leading to a conclusion that he was not a credible witness. That lack of credibility could then be used to disbelieve his evidence that he did not commit these offences.
2. In that context, the applicant submitted that it was crucial that there be a complete direction as to his good character. Because the trial judge made no reference to the second limb of the standard good character direction, there was a critical failure to direct the jury that the applicant's good character was a factor in considering whether to accept or reject his explanation given in evidence.
3. The applicant relied on what was said by Harrison J (Bathurst CJ agreeing) in Xu v R [2019] NSWCCA 178 at [37] that the issue of good character: …is notoriously important in cases of serious sexual assault which turn upon word on word factual disputes between the complainant and the accused.
4. The applicant submitted that there could be no forensic reason for the absence of a request for a redirection as to the applicant's good character, because the Crown relied heavily on the applicant's asserted lies.
5. The Crown submitted that the evidence of good character was limited to a single question and answer given by Detective Clarke: Q. Does the accused have any prior criminal history? A. No.
6. The Crown pointed also to what counsel for the accused had said in his closing address: You also have the evidence of good character. You've heard the officer-in-charge agreeing that there was no - there are no prior convictions for the accused. I asked her the question and she accepted that that was the case. This was submitted to be no more than a passing reference to good character, as had been identified by Gummow J in Melbourne v The Queen (1999) 198 CLR 1 at [79]. The Crown submitted that the outcome in Melbourne informed what should occur in the present matter.
7. The Crown submitted that the failure of trial counsel for the applicant to seek any redirection is readily explicable as an appreciation of the limitations of the evidence that had been called.

Determination

1. In Melbourne v The Queen McHugh J said: [30] …[t]his Court should not depart from the rule that a judge is not obliged to direct the jury concerning the accused's good character. The preferable position is that the trial judge must retain a discretion as to whether to direct the jury on evidence of good character after evaluating its probative significance in relation to both: (a) the accused's propensity to commit the crime charged; and (b) the accused's credibility. [31] The judge may conclude that the good character evidence adduced is of probative significance in relation to (a) only, (b) only, both (a) and (b) or neither (a) nor (b), and can direct (or not direct) the jury accordingly. Whether the discretion has miscarried in a particular case will depend upon the facts of that case. But Australian courts should not now introduce a rule that a direction on character is always required once the accused has adduced evidence of good character.
2. His Honour then made reference to the character evidence upon which the accused relied (the lack of previous convictions bar one drink driving charge), the fact that he was not adversely known to police, and to the evidence that he was a "quiet man", a man who was "always gentle", and had "never" been "aggressive". His Honour said of this evidence: [54] None of this evidence had any direct probative bearing on the truthfulness or credibility of the accused. It was all directed to the unlikelihood that he would commit the offence charged. The trial judge gave an adequate direction in this regard. Whether or not the trial judge intended, but forgot, to give a credibility direction with respect to the character evidence, no miscarriage of justice has occurred. If her Honour had given such a direction, it would have given the accused an advantage to which in point of law he was not entitled. Not only was this not a case requiring a credibility direction, in my opinion it would have been a wrongful exercise of discretion to have given it.
3. Justice Hayne (with whom Gummow J agreed) said at [156]: When is there an issue about the use of character evidence that will call for judicial direction of the jury? The simplest example is, of course, if prosecution and accused make contrary submissions to the jury about whether evidence of prior good character can be used by the jury in assessing the probability of the accused committing the offence charged or in assessing whether the accused should be accepted as having sought to tell the truth in statements he or she has made in or out of court. Clearly, in such a case the judge must tell the jury what is the true position in law: that the previous good character may be used in either or both of these ways. And even if there is no conflict between the parties in their submissions to the jury about how the evidence may be used, there may be occasions where it may be wise for the trial judge to draw the matter to the attention of the jury. So, to take a common example, if an accused of previously undoubted honesty in money matters is tried for an offence of fraudulently obtaining financial advantage, the judge may think it appropriate to draw the attention of the jury to the fact that prior good character may be thought, by them, to make it less likely that the accused acted with dishonest intent. But even in such a case, if no more is known than the bare facts of the case as I have described them, there is no requirement for the judge to give such a direction. Or, to put the matter another way, the absence of such a direction does not lead to the conclusion that the trial miscarried.
4. It is apparent that counsel for the applicant at the trial made only passing reference to the brief evidence of Detective Senior Constable Clarke in relation to the applicant's having no prior criminal convictions. The remark to the jury was not made in the context of whether they should believe the applicant's evidence. The Crown in his closing address said nothing about the issue of character. Neither side asked the trial judge to give a character direction, and counsel for the applicant did not ask for a redirection at the conclusion of the Judge's summing up. In the context of the character evidence given, that was no doubt because that evidence did not bear on the issue of the credibility of the applicant but only, as the trial judge said, on the likelihood of whether he had committed the offences.
5. In the light of the character evidence and the way the trial was conducted, it cannot be said that the failure by the trial judge to refer to the second of the character direction constituted a miscarriage of justice.
6. Leave should be refused under r 4.15.

Ground 3: The trial miscarried as a result of the trial judge's failure to properly direct the jury as to the applicant's right to silence

1. After his arrest, the applicant participated in an ERISP at St George police station on 12 September 2018. The applicant answered a number of questions about when he started to tutor the children, where in the complainant's house it took place, and how he was paid.
2. At question 136 Senior Constable Clarke said that the complainant had made allegations that the applicant had indecently assaulted her, the last time being on 6 September 2019. She asked if he wanted to tell her anything about that, and he replied: Actually, that thing, I don't know about that.
3. The precise allegations of what the complainant said had taken place were then put to the applicant who said "No" in answer to everything. The following exchange then occurred: A I, I know nothing about that. Q138 You know nothing about that? A Yeah. Q139 Do you want to talk to me about that? A No, actually. Q140 [09:22] You don't want to talk about that? A There's nothing to say. DETECTIVE SENIOR CONSTABLE HALL Q141 Have you ever touched AA? A Um, actually, she do the hug, muh, hug me sometimes, yeah. I don't touch, but, uh she do the um, sometimes you know the high fives, sometimes, when the finger comes, the fingers slaps it like that? DETECTIVE SENIOR CONSTABLE CLARKE Q142 OK. So it's alleged that on Thursday you have put your hand on her bottom… A No. Q143 …and squeezed it? A No, no, no. Q144 You hugged her and you kissed her on the side, near the side of her mouth. A No… Q145 And you've put her on your lap, on, and you've put your hand underneath her robe, and squeezed her breast? A No. Q146 No? A … Q147 Is there anything that you want to tell me about that? A No, actually. Q148 OK, Do you want to talk about, me to continue to tell you about the allegations? A No. Of course. Q149 No? No you don't want me to tell you? A No, I don't. No, I don't. Q150 [09:23] Do you want me to continue with the interview? A. No.
4. Senior Constable Clarke then asked the custody manager to come in to speak to the applicant in the usual manner.
5. The recording of the ERISP was played to the jury. The trial judge said nothing to the jury at that time about the applicant's right to silence.
6. In her summing up, the trial judge first made reference to the ERISP, and then to the fact that the applicant had given evidence at the trial. Her Honour said: When you look at that electronically recorded interview with the police and I think you have still all got copies, you will see that the accused got to a certain stage and said that he did not want to be interviewed, then went on and spoke to the police, and then after the first count on the indictment was put to him, I think it was only count 1 was put to him, then he stopped the interview which he is perfectly entitled to do. I think at question 142 it was put to him: "It is alleged that on Thursday you put your hand on her bottom and squeezed it". He said, "No, no, no". "You hugged her and you kissed her on the side - near the side of her mouth? No. And you put her on your lap and you've put your hand underneath her robe and squeezed her breast? No, no. Is there anything you want to tell me about that? No actually. Do you want to talk about - me to continue about the other - about the allegations? No. I think I said the first count on the indictment, I meant the last counts on the indictment, being three and four. That was put to him in the interview by the police and you are entitled to take that into account as well as his sworn evidence in Court. During the trial, the accused has given evidence before you. He has denied the allegations. He denied them before the police, and he denied them in front of you. As a matter of law, the accused has the right to remain silent. He was not required to give evidence. The accused is presumed to be innocent and he was entitled to rely on his presumption of innocence and say nothing at all to you in his defence during the course of the trial. Remember, the fact the accused gave evidence does not change the fundamental proposition that it is for the Crown to prove the guilt of the accused and that it is not altered in any way by reason of the fact that the accused chose to give and call evidence. However, having given evidence as a witness you must consider and assess the accused's evidence in the same way as you would assess any other witness that has given evidence. (emphasis added)

Submissions

1. The applicant submitted that from question 139 he exercised his right to silence. The applicant submitted that the trial judge ought to have given the jury a modified direction with regard to his right to silence. The applicant submitted that it was incumbent upon the trial judge to direct the jury that they were not permitted to take into account the fact that he stopped being questioned in a manner to be used against him at all. The applicant submitted that the fact that her Honour indicated that he was "perfectly entitled to do so" by stopping the interview, did not have the same force and effect as directing the jury that the accused's silence cannot be used against him in any manner at all.
2. The Crown drew attention to what was said by the trial judge in the passage set out at [70] above, and particularly to the portion of the summing up where her Honour said that the accused had the right to remain silent and was not required to give evidence. The Crown submitted that whilst the latter part of that direction was given by reference to the applicant's evidence at the trial, it must have been readily apparent to the jury that the same applied to his interview with the police. The Crown submitted that it was clear from the content of the interview itself and the manner in which it was conducted that the applicant was not obliged to answer questions.
3. The Crown submitted that it was not suggested by any party to the proceedings that the applicant's decision not to be interviewed further could (much less should) be used against him.
4. The Crown pointed out that no request was made by the applicant's trial counsel for any further direction, and in those circumstances r 4.15 applies. The Crown submitted further that the applicant has not expressly formulated the direction which he now asserts ought to have been given.

Determination

1. In Petty v The Queen (1991) 173 CLR 95 the High Court (Mason CJ, Deane, Toohey and McHugh JJ) said at 99: That incident of the right of silence means that, in a criminal trial, it should not be suggested, either by evidence led by the Crown or by questions asked or comments made by the trial judge or the Crown Prosecutor, that an accused's exercise of the right of silence may provide a basis for inferring a consciousness of guilt. Thus, to take an example, the Crown should not lead evidence that, when charged, the accused made no reply. Nor should it be suggested that previous silence about a defence raised at the trial provides a basis for inferring that the defence is a new invention or is rendered suspect or unacceptable.
2. In R v Reeves (1992) 29 NSWLR 109 this Court was dealing with the position where evidence had been given by a police officer that the accused would not say anything about the incident in respect of which he was later charged.
3. Justice Hunt (with whom Mahoney JA agreed with additional reasons and Badgery-Parker J agreed) said at 114-115 that Petty v The Queen: did not lay down any rule of universal application that evidence may not be given of questions asked and of the answers given where the evidence discloses that the accused has exercised his right of silence. … However, where such evidence is given which discloses that the accused has exercised his right of silence, a direction should invariably be given - as soon as the evidence is given and, if necessary, again in the summing up - to make it clear to the jury that the accused had a fundamental right to remain silent and that his exercise of that right must not lead to any conclusion by them that he was guilty: R v Astill (Court of Criminal Appeal, 17 July 1992, Unreported) at 9. It would usually be appropriate also to remind the jury that (if it be the fact) the accused had specifically been cautioned by the police that he was not obliged to answer any questions, so as to avoid any suggestion of a familiarity by the accused with criminal investigation procedures.
4. Justice Mahoney said this at 112: The right to silence is to be observed. If it is to be observed, it is necessary that it be protected. One method of ensuring that it is protected against infringement is to set aside a conviction produced by the infringement of it. But when there has been an infringement and a conviction, one cannot be sure that the infringement did not produce, or at least influence, the conviction. Therefore, in order to ensure that no conviction has resulted from infringement, it is necessary to set aside a conviction which might have resulted from it. And the law acts against the possibility that the infringement has produced the conviction.
5. Although Adamson J in Taylor-Joycey v R [2021] NSWCCA 29 (Leeming JA and Harrison J agreeing) said at [89] that she was not persuaded that the use of the word "invariably" in the passage extracted from Reeves had the effect that there had been any error of law in the case her Honour was dealing with, that should not be taken as a statement of general principle to weaken what was said in Reeves. It is evident from what her Honour went on to discuss at [90]-[91], that the way the trial was conducted by counsel for the accused in that case meant that the absence of a direction in relation to the accused's silence did not lead to an error of law. In particular, her Honour said at [91] that there were reasons why defence counsel may not have sought such a direction.
6. By reason of what was said by Mahoney JA in Reeves, the position is that where evidence is led by the Crown of the applicant's exercise of that right to silence, a conviction will ordinarily be set aside where no direction was given in circumstances such as here.
7. The need for a direction is emphasised in the present case by the fact that the applicant answered questions up until the time that questions were put about the specific allegations made by the complainant. In those circumstances, there was a much greater risk that the jury might wrongly infer against the applicant that something had occurred as the complainant alleged, when it was only at that point in the interrogation that the applicant exercised his right to silence.
8. I do not consider that the direction given by the trial judge was adequate. What her Honour said was that, it was only [when] count 1 was put to him, then he stopped the interview which he is perfectly entitled to do… the accused has the right to remain silent. He was not required to give evidence.
9. The problem with the former of those statements is that there was no explanation about the basis for the entitlement, nor any direction that they could draw no adverse inference from that entitlement. The problem with the latter statement is that there is no reason to think that the jury would have taken it to mean other than that the accused was under no obligation to give evidence. The use of the present tense "has", followed by the reference to giving evidence makes that clear. The trial judge made no connection between the right to silence and what occurred in the middle of the ERISP.
10. The standard direction is relevantly as follows: The accused, as you are aware, chose not to answer questions put to him by the police at the time of his arrest. All people in this country have a right to silence - that is, to choose not to answer questions put to them by the police. That is what the police officer told the accused when he was asked if he wanted to answer their questions. … In this case, it would be quite wrong if the accused, having listened to what the police said, and having decided to exercise his right to silence, later found that a jury was using that fact against him. You must not do that of course. It is important, therefore, that you bear in mind that the accused's silence cannot be used against him in any way at all. The fact that he took note of the caution given by the police and chose to remain silent cannot be used against him. Under our law, an accused person has a right to silence.
11. There are two important aspects to that direction. First, all people have a right to silence. Secondly, it would be wrong to use the exercise of the right to silence against an accused when he acted on the basis of what the police correctly told him. Neither of those matters was clearly conveyed to the jury by what the trial judge said. Although the trial judge said that the accused had the right to remain silent, it was (as noted earlier) said in the context of the accused having given evidence and denied the allegations.
12. The Crown pointed to the caution given by the police during the ERISP, and to what the Crown said in his opening address when he was outlining what took place during the ERISP: The accused denied each of those things; and as what [scil. was] his right, he declined to answer any more questions, and the interview was ended there.
13. Two things can be said about those matters. First, statements by the police and the Crown prosecutor do not carry the authority of the Court, and may not, in the minds of the jurors, carry much weight. On the other hand, a trial judge will invariably tell a jury that they must obey the directions the judge gives to them. Secondly, the statement by the Crown prosecutor (like the statement of the trial judge discussed at [82]-[83] above) does not make reference either to the basis of the applicant's "right", nor to the important matter that no inference can be drawn by the exercise of the right.
14. The parties ought to have sought a silence direction at the time of the tender of the ERISP and in the summing-up: Reeves at 115. When the inadequate direction was given, a further direction ought to have been sought. It is difficult to conceive of any forensic reason why that was not done. It must be assumed to be inadvertence on the part of counsel for the accused.
15. In those circumstances it cannot be said that the applicant did not lose the real possibility of an acquittal fairly open to him. In that way, r 4.15 should not prevent the matter being raised in this Court. It cannot be said that no substantial miscarriage of justice has actually occurred from the absence of a proper direction.
16. I would uphold this ground of appeal.

Appeal against sentence

1. In the light of the upholding of the conviction appeal, it is not necessary to say anything about the grounds concerning the sentence.

Conclusion

1. In the light of the above reasons, I joined in making the orders set out above but it is appropriate that they should be varied so as to make clear that leave to appeal should only be granted in relation to ground 3 and should be refused in respect of grounds 1 and 2. Accordingly, I propose that the orders made should be varied so as to read as follows: 1. Refuse leave to appeal under Rule 4.15 in respect of grounds 1 and 2. 2. Grant leave to appeal in respect of ground 3. 3. Appeal upheld. 4. Quash the appellant's conviction. 5. Order a re-trial.
2. WRIGHT J: My reasons for joining in the orders made on 1 December 2021 were in accord with the reasons given by Davies J and I agree with the proposed variation for the reasons given by his Honour.

Amendments 15 June 2023 - Publication restriction lifted following conclusion of proceedings in the District Court. DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 15 June 2023