Seymour v Regina

Crimes Act 1900 LEGISLATION CITED: Criminal Appeal Act 1912 Criminal Procedure Act 1986 Evidence Act 1995

Ali v The Queen (2005) 214 ALR 1 Dawson v The Queen (1961) 106 CLR 1 DPP v Boardman [1975] AC 421 Gipp v The Queen (1998) 194 CLR 106 Hall v Braybrook (1955) 95 CLR 620 Knight v The Queen (1992) 175 CLR 495 M v The Queen (1994) 181 CLR 487 Melbourne v The Queen (1999) 198 CLR 1 MFA v The Queen (2002) 213 CLR 606 Mraz v The Queen (1955) 93 CLR 493 New South Wales v Bujoso (2005) 222 ALR 663 Nudd v The Queen (2006) 225 ALR 161 Papakosmas v The Queen (1999) 196 CLR 297 Pfennig v The Queen (1995) 182 CLR 461 Phillips v The Queen (1985) 159 CLR 45 CASES CITED: Regina v Aziz [1996] AC 41 Regina v BD (1997) 94 A Crim R 131 Regina v Birks (1990) 19 NSWLR 677 Regina v Ensor [1989] 1 WLR 497 Regina v Falealili [1996] 3 NZLR 664 Regina v Knape [1965] VR 469 Regina v Macraild, Court of Criminal Appeal (BC9707215), 18 December 1997, unreported Regina v Masters (1992) 26 NSWLR 450 Regina v Miletic [1977] 1 VR 593 Regina v Pahuja (1987) 49 SASR 191 Regina v Prasad (1979) 23 SASR 161 Regina v Suteski (2002) 56 NSWLR 182 Scott v The Queen [1989] AC 1242 The Queen v Duke (1979) 22 SASR 46 TKWJ v The Queen (2002) 212 CLR 124 Wilde v The Queen (1988) 164 CLR 365

COUNSEL: SE O'Connor - Appellant S Kavanagh - Respondent

SOLICITORS: CA Davenport SC - Appellant GIO Rowling - Respondent

IN THE SUPREME COURT OF NEW SOUTH WALES COURT OF CRIMINAL APPEAL 2005/1685

HUNT AJA SIMPSON J ROTHMAN J

The appellant was charged, together with a co-accused, with detaining the complainant for advantage and with being armed with an instrument with intent to assault the complainant.

The complainant, who was a prostitute, had sexual intercourse with the appellant, who then refused to let her leave his apartment and said that he was going to cut her toes off with a bolt cutter. When she pleaded with the appellant to let her go, he responded "I just got out of gaol five days ago, you'll dog me to the cops". This evidence was not objected to by counsel for the appellant, who cross-examined the police officer in charge of the investigation to elicit evidence that the appellant's criminal record involved "a fair amount of reading", was "fairly extensive", and involved "a whole lot of street offences", and that the appellant was "a failed crim", but that, so far as the officer knew, it did not include any offences for violence against women.

At the end of the Crown case, and on the application of both accused, the judge gave a Prasad direction, which informed the jury of their right to bring in a verdict of not guilty at that stage without hearing more. The jury returned a verdict of not guilty for the co-accused on both charges but indicated that they would like the case against the appellant to continue. The appellant did not give evidence or call evidence on his behalf. When addressing the jury, counsel for the appellant referred to the appellant's record as being "a very long document" and to the appellant being a "property crim". The appellant was convicted on both charges.

The appellant asserted on appeal that the trial had been unfair, leading to a miscarriage of justice, by reason of the manner in which his counsel had conducted his defence. He also asserted that the verdicts were unreasonable.

Two possible explanations for raising the appellant's criminal record appeared to be: (1) his criminal record provided an explanation for the appellant having been in gaol a short time before these events - that he had been in gaol for only two weeks following a conviction for shoplifting; and (2) the evidence demonstrated the appellant's good character in a particular respect, in accordance with s 110(3) of the Evidence Act 1995, in that the absence of any record of violence against women made it unlikely that he would have acted in a way the complainant had alleged.

Held: (1) If the evidence that the appellant had a criminal record had been objected to, it would have been rejected pursuant to s 137 of the Evidence Act in the light of other evidence in the case.

(2) Even if the evidence had not been rejected, there was no possible rational or responsible explanation for the tender of virtually the whole of the appellant's criminal record or for the emphasis given to its length by counsel.

(3) The conduct of counsel lost to the appellant a chance fairly open to him of being acquitted. There was therefore a miscarriage of justice. TKWJ v The Queen (2002) 212 CLR 124; Ali v The Queen (2005) 214 ALR 1 ; Nudd v The Queen (2006) 225 ALR 161 considered and applied. Hall v Braybrook (1955) 95 CLR 620 ; Dawson v The Queen (1961) 106 CLR 1; Phillips v The Queen (1985) 159 CLR 45 applied.

(4) The seemingly inconsistent results of the Prasad direction resulted because the jury had not had explained to them how the part played by the co-accused made him criminally responsible for the actions of the appellant. There is a danger of giving a Prasad direction in circumstances where there may be a problem for the jury in understanding the real nature of the Crown case. Regina v Prasad (1979) 23 SASR 161; Regina v Pahuja (1987) 49 SASR 191 considered.

(5) It was open to the jury to accept the complainant's evidence. Knight v The Queen (1992) 175 CLR 495; M v The Queen (1994) 181 CLR 487; Gipp v The Queen (1998) 194 CLR 106; MFA v The Queen (2002) 213 CLR 606 applied.

Orders: (1) The appeal is upheld and the conviction is quashed. (2) A new trial is to be held.

IN THE SUPREME COURT OF NEW SOUTH WALES COURT OF CRIMINAL APPEAL 2005/1685

HUNT AJA SIMPSON J ROTHMAN J

1 HUNT AJA: The appellant, Michael Peter Seymour, was found guilty by a District Court jury of two charges: (1) that (contrary to s 86(2)(a) of the Crimes Act 1900), in company with the named male co-accused, he did detain a named female without her consent and with the intention of obtaining an advantage, namely to assault her for calling the co-accused a child molester, and (2) that (contrary to s 114(1)(a) of the Crimes Act) he was armed with an instrument, namely bolt cutters and a lighted blowtorch, with intent to commit an indictable offence, namely assault. On the first charge, Judge Marien imposed a total sentence of imprisonment for five years, with a non-parole period of three years and nine months. On the second charge, he imposed a concurrent fixed term of imprisonment for two years.

The trial 2 There had been an earlier trial of these charges against the appellant and the male co-accused which had been aborted on the third day, when a number of jurors reported that they had been approached by a female who had been in court throughout the trial and who was apparently associated with the co-accused. The complainant had given evidence over the two proceeding days. The second trial commenced on the same day as the first jury were discharged. 3 The evidence was that the complainant was on a methadone programme as a result of a heroin addiction, although she continued to take heroin either once a week or a few times a month. In cross-examination, she said that she also took valium pills following the intense grief she had suffered following her boyfriend's suicide. At the beginning of the events which led to the charges, she needed money to obtain about $100 worth of heroin because she was "having some personal problems" at the time. She decided to become a prostitute for the first time in order to earn some money for that purpose. She drank a large bottle of beer and some champagne and went to Kings Cross where she purchased some condoms. She was spoken to at the Cross by the appellant and his co-accused. The men established that the complainant was working as a prostitute, the three of them drank some rum and Coca-Cola in nearby Rushcutters Bay park, and then she accompanied them by train to an apartment at Warwick Farm. 4 The complainant and the appellant showered together and then had consensual sexual intercourse in a bedroom. The complainant received no payment for her services. She was sent from the bedroom to sleep on a couch with the co-accused. She awoke mid-morning the following day, feeling sick because she had not had a methadone dose which was due. She had a hangover and was suffering from withdrawal symptoms. The co-accused purchased a $50 deal of heroin, which they split three-ways. She said that she may "possibly" have asked the co-accused to obtain some heroin for her. She injected her share into her arm, using her own syringe. She said in cross-examination that the heroin did nothing for her. 5 Two men and a boy (apparently friends of the appellant) visited the apartment for a short time, and the co-accused left with them. The complainant then went to sleep. She was woken by the appellant about an hour later, and they watched television together in the bedroom, drinking rum. She said in cross-examination that she was unhappy to remain in the apartment, but she was not scared at that time. She had no money to return home, and she did not know where the train station or the bus stop was. 6 The complainant and the appellant left the apartment to purchase a large bottle of beer. She agreed in cross-examination that she was unhappy to be in the bottle shop, but she had asked no-one in the bottle shop where the train station was. She also agreed that there had been no threats made to her at that stage. She was unable to say whether the appellant would have been prepared to "shout" her the fare to return home. She denied that she had been happy to stay with the two men. 7 The complainant and the appellant shared the beer when they returned to the apartment. According to the Crown case, the appellant then suddenly accused the complainant of calling the co-accused a child molester when they had been on the train together the day before. He told her that, if he had not liked her so much, he would have thrown her from the train. In cross-examination, the complainant said that she did not know why she had not left the apartment at that stage, but she denied wanting to stay there. The co-accused returned to the apartment a short time later with a bottle of bourbon whiskey, which the three of them drank. The complainant said that she had only a little of the bourbon as she was feeling sick, with hot and cold sweats. The appellant then raised again the complainant's accusation that the co-accused was a child molester, and he became "worked up" and shouted at her. She had no memory of having made such an accusation. 8 The next thing the complainant recalled was waking up late that afternoon in the appellant's bed, naked and wet, with a piece of material (either a sheet or a blanket) wrapped around her head. She could see out of only one eye. There was a wound above her other eye. She saw blood on the wall. The appellant and the co-accused entered the room, and she asked to leave the apartment. The appellant shouted at her "You're not going anywhere, you've got blood all over my room". The complainant asked the appellant to tell the co-accused to leave the room as she was naked, and he replied "It doesn't matter anyway because you are going to be dead anyway". She became scared. He pushed her against the bed, and then obtained some bolt cutters out of the bathroom. He returned and said he was going to cut her toes off. He grabbed the complainant by the arm or leg (she was unable to remember which) and placed the bolt cutters on her toe for a matter of seconds whilst he opened and shut the blades, but she pushed herself away. This was repeated. She said there were scratches on her toes, but there had not been any bleeding. 9 The complainant next attempted to dial 000 on her mobile telephone, but the co-accused smashed it against the wall. He told her that her "daddy" had been calling her on her mobile and she pleaded with the appellant to let her go, adding "I won't tell anybody". He replied "I just got out of gaol five days ago, you'll 'dog' me into the cops". She protested that she would not do so. In prison argot, the noun "dog" is a person who informs on someone or who in some other way assists the authorities; that usage was recognised by the High Court in New South Wales v Bujoso (2005) 222 ALR 663 at [7]. The complainant was asked in cross-examination what the appellant had done to her which she could have reported to the police, and she suggested the bolt cutters, not letting her go home, smashing her mobile telephone and "other things I'm not allowed to say". (This was a reference to the assault causing injuries to her face; the charge against both men for having caused those injuries had been withdrawn through lack of evidence.) The complainant subsequently added the wound to her eye and the threat to kill her. She agreed that, in answer to the same question in the previously aborted trial, she had not referred to the bolt cutters, the threat to kill her or the smashing of the mobile telephone. 10 The complainant said that she had felt very scared and frightened for her life. She agreed in cross-examination that she was also worried about what she would tell her parents. The appellant went to a cupboard and returned with a blowtorch, he lit it and then chased the complainant around the room with it. She was screaming and crying. 11 The appellant instructed his co-accused to go and "get some pills". The co-accused left and returned with five or six small pills. Although she did not know what the pills were, the complainant took them because she thought she was going to die following the threat the appellant had made. Next, the appellant started to choke the complainant with a studded leather dog collar. He told the co-accused to put his hand over the complainant's mouth to stop her screaming. She could not breathe for some period. The appellant produced a large syringe, telling the complainant that he could kill her with it. She blacked out. 12 The complaint woke in the middle of the night to find herself in bed with the appellant, who was asleep. She took a t-shirt and trousers she found in the bedroom, dressed in them, took her handbag and left the bedroom. The co-accused was asleep on the couch with a baseball bat beside him. She left the apartment, taking from the letterbox an envelope with the appellant's name on it. She stopped at a public telephone, dialled 000 and asked for an ambulance. 13 She complained to the ambulance officer that she had been held against her will for two nights and assaulted. She referred to being chased with the blowtorch and the attempt to cut off her toe. The ambulance officer saw that there was an injury to her right eye. She was taken to hospital. Police attended the hospital and recorded the allegations made by the complainant. She agreed that she had had consensual sex with the appellant, but she said that the co-accused had a baseball bat with him to keep guard at the front door so that she could not escape. She mentioned the blowtorch and the threat to kill her, and the fact that she had been made to take tablets. She complained about being choked and being punched many times. 14 The police attended the appellant's apartment and found the complainant's passport, Medicare card and pension cards, a Motorola mobile phone and a brassiere which belonged to the complainant. They also located a gas cylinder, studded leather collars and a pair of bolt cutters. 15 At the close of the Crown case, counsel for both accused made an application for a Prasad direction - that is, a direction to the jury that they had the right to bring in a verdict of not guilty at that stage without hearing more. (This procedure is considered more fully later in this judgment, at pars [59]-[60].) The judge overruled the Crown's objection to the application and he gave such a direction. The jury returned a verdict of not guilty for the co-accused on both charges, but they indicated that they would like the case against the appellant to continue. 16 The appellant did not give evidence or call evidence on his behalf. The case put to the jury was that the complainant was an untruthful witness and that she had made up her tale in order to explain the situation she found herself in for the benefit of her parents. It was said that the complainant was an unreliable witness because she was still suffering from the effects of a hangover, having been extremely intoxicated, and because she was hanging out for her methadone or heroin to such an extent that her reliability as a witness had been affected. It was suggested that the complainant had made statements to the police which were inconsistent with her evidence, and that no baseball bat had been found in the apartment. 17 The jury retired late in the afternoon and were permitted immediately to separate. Early the next morning, they returned two verdicts of guilty.

The appeal 18 The appellant's grounds of appeal against his conviction are expressed in the following terms: (1) A miscarriage of justice occurred by reason of the incompetence of the appellant's counsel. (2) The verdict was unsafe and unsatisfactory. Both grounds require restatement so as to pose the correct issue in each case.

Ground 1 - Miscarriage of justice - conduct of counsel 19 It is now accepted that a trial may have been unfair, leading to a miscarriage of justice, by reason of the manner in which counsel appearing for the accused conducted his defence: TKWJ v The Queen (2002) 212 CLR 124 at [25], [28], [31], [75], [97], [101], [103]; Ali v The Queen (2005) 214 ALR 1 at [9], [99]; Nudd v The Queen (2006) 225 ALR 161 at [2], [12]-[15], [24]-[25], [62], [81], [151]. These three cases may conveniently be referred to collectively as the recent High Court trilogy (as did Kirby J in Nudd v The Queen at [40]). 20 It is, however, important to note that such a ground of appeal neither requires nor permits an inquiry into the competence of the counsel in question; what must be established is the objective fact that there was a miscarriage of justice as a result of counsel's conduct, in the sense that there has been a loss of a chance of acquittal which was fairly open to the accused: TKWJ v The Queen at [13], [16]-[17], [79], [83], [107]; Ali v The Queen at [7], [12], [18], [38], [100]; Nudd v The Queen at [2], [8]-[12], [24]-[25], [62], [64]-[68], [81], [151], [157]. An appellant carries a heavy burden: Regina v Miletic [1977] 1 VR 593 at 597 (cited by McHugh J in TKWJ v The Queen at [74]). 21 Relevant to the existence of a miscarriage of justice in the particular trial are the issues of whether the conduct of counsel represented a legitimate choice a competent counsel could fairly make in the circumstances of that trial and whether, viewed objectively, it was a rational tactical decision in the particular forensic situation in which it was made. When that situation is examined, issues such as the forensic advantage which may have been sought and possible prejudice which may have been caused by counsel's conduct are relevant but not necessarily decisive considerations: TKWJ v The Queen at [16]-[17], [24]-[28], [31], [33], [81]-[85], [95], [97], [106]-[112]; Ali v The Queen at [9], [12], [24]-[25], [98]-[99]; Nudd v The Queen at [9]-[10], [55], [157]-[158] 22 In TKWJ v The Queen, Gleeson CJ said (at [16]): It is undesirable to attempt to be categorical about what might make unfair an otherwise regularly conducted trial. But, in the context of the adversarial system of justice, unfairness does not exist simply because an apparently rational decision by trial counsel, as to what evidence to call or not to call, is regarded by an appellate court as having worked to the possible, or even probable, disadvantage of the accused. For a trial to be fair, it is not necessary that every tactical decision of counsel be carefully considered, or wise. And it is not the role of a Court of Criminal Appeal to investigate such decisions in order to decide whether they were made after the fullest possible examination of all material considerations. Many decisions as to the conduct of a trial are made almost instinctively, and on the basis of experience and impression rather than analysis of every possible alternative. That does not make them wrong or imprudent, or expose them to judicial scrutiny. Even if they are later regretted, that does not make the client a victim of unfairness. It is the responsibility of counsel to make tactical decisions, and assess risks. In Ali v The Queen , Hayne J (with whom Gummow J agreed) said (at [25]): An appellate court does not and may not know what information trial counsel had when deciding whether or not to object to evidence. That is why, in TKWJ , I concluded that the question of miscarriage does not turn on a factual inquiry into why trial counsel acted or did not act in a particular way. That kind of inquiry cannot be made. Rather, the question is whether there could be a reasonable explanation for the course that was adopted at trial. If there could be such an explanation, it follows that the fundamental nature of a criminal trial as an adversarial and accusatorial process that no miscarriage of justice is shown to have occurred. [Citations omitted] In Nudd v The Queen , Gummow & Hayne JJ adopted that statement of Hayne J in TKWJ v The Queen , in saying (at [27]): For the reasons given in TKWJ , the inquiry about miscarriage must be an objective inquiry, not an examination of what trial counsel for an accused did or did not know or think about. The critical question is what did or did not happen at trial, not why that came about. [Citation omitted] See also Callinan & Heydon JJ in Nudd v The Queen at [157]. 23 Earlier, in Regina v Birks (1990) 19 NSWLR 677 at 685, Gleeson CJ summarised the principles relevant to a miscarriage of justice based on the conduct of counsel: 1. A Court of Criminal Appeal has a power and a duty to intervene in the case of a miscarriage of justice, but what amounts to a miscarriage of justice is something that has to be considered in the light of the way in which the system of criminal justice operates.

2. As a general rule an accused person is bound by the way the trial is conducted by counsel, regardless of whether that was in accordance with the wishes of the client, and it is not a ground for setting aside a conviction that decisions made by counsel were made without, or contrary to, instructions, or involve errors of judgment or even negligence.

3. However, there may arise cases where something has occurred in the running of a trial, perhaps as the result of "flagrant incompetence" of counsel, or perhaps from some other cause, which will be recognised as involving, or causing, a miscarriage of justice. It is impossible, and undesirable, to attempt to define such cases with precision. When they arise they will attract appellate intervention. 24 The ground of appeal in the present appeal was obviously based on the reference to counsel's incompetence in Regina v Birks. The phrase "flagrant incompetence" was taken by the Chief Justice from Regina v Ensor [1989] 1 WLR 497, where it had been used by Lord Lane CJ when delivering the judgment of the Court of Appeal in a case where the appellant claimed he had suffered a miscarriage of justice as a result of his counsel's failure to seek severance of the two charges of rape against him. The Lord Chief Justice (at 502) identified the correct approach to be that, if counsel for the accused makes a decision or takes a course of action which later appears to have been mistaken or unwise, generally speaking his conduct does not provide a proper ground of appeal, but that, if the court had any lurking doubt that the appellant might have suffered some injustice as a result of flagrantly incompetent advocacy by his advocate, it would quash the conviction. The Court of Appeal held, however, that in that case counsel had made a carefully considered (even if erroneous) decision not to apply for severance, and the appeal failed. 25 The phrase was relevant to Regina v Birks, the facts of which have now been described in more detail by Gleeson CJ in Nudd v The Queen at [18]. For present purposes, it is sufficient to say that, in that case, there were three matters which in combination had caused a miscarriage: (i) the failure of counsel for the accused to cross-examine the Crown witnesses on an important issue, (ii) his examination of his client on a completely erroneous basis, and (iii) his failure to correct the position when his client was cross-examined on the basis of his evidence elicited on that erroneous basis to suggest that the evidence was false. It was held that counsel's conduct had not been the result of a deliberate, even if perhaps unwise, tactical decision to make as little fuss as possible about subjects on which it was thought that the less said the better - it was not a matter of taking a calculated risk; counsel simply did not know what to do, and so he did nothing until it was too late to repair the damage (at 686). That conduct could fairly have been described as falling within the phrase which had been used in Regina v Ensor. It certainly falls within the principles stated in the recent High Court trilogy. 26 What must therefore be examined in this case is what counsel who appeared for the appellant at the trial did, and whether there could be a rational (or reasonable) basis for what he did. 27 The specific conduct of the appellant's counsel identified as causing the trial to be unfair was the introduction of his criminal history into evidence. This introduction was deliberate, as the appellant gave written instructions on the day the first trial commenced authorising his legal representatives to raise the issue of character and to introduce his criminal record into evidence. The document is obviously the work of his legal representatives, and it may safely be assumed that it was preceded by advice to the appellant that such a course was in his best interests. It has not been suggested that the appellant had himself sought to have the issue raised. 28 The proposed course of action was raised before the Crown case was opened at the first trial (see par [2] supra). The Crown prosecutor informed the judge that he would be opening the conversation when the complainant pleaded to be let go, to which the appellant responded "I just got out of gaol five days ago, you'll dog me into the cops" (more fully described in par [9] supra). He said that counsel appearing for the appellant was aware of that statement and "is happy for that evidence to be given". The judge asked counsel whether that was so, and counsel affirmed what had been said, adding: "This is one of those cases in which we will admit the prior record". He said it was relevant to the defence. The Crown prosecutor proceeded to open his case - that the complainant was a prostitute, that she had accompanied the two men to the apartment at Warwick Farm, the events of which she would give evidence, including the promise not to tell and the appellant's response to it. 29 Counsel for the appellant exercised his right to open his client's case after the Crown prosecutor had finished his opening address: Criminal Procedure Act 1986, s 159. He told the jury that they were "off on an expedition to a fairly sordid part of life", referring to the Crown prosecutor's opening as demonstrating that the complainant was "a lady of the night" (to which he added later that she was also "a heroin addict"), and that the appellant "had a criminal record". He went on to say: Those matters are relevant for reasons that we will come to eventually [...]. In fact having heard that opening, you might think they are spectacularly serious criminal offences the like of which might try your credulity although at this level of society you might think that anything can happen. [...]

This is going to involve as you have probably guessed areas in this case which might excite your prejudice, your revulsion about the various aspects of it and your sympathy about the various aspects of it when you hear which I am sure you will the details of [the complainant's] background, you won't be able to help but be a bit sorry for her. But equally as you hear the evidence you might be prejudiced against her by virtue of the things that she does as a result of her addiction and you will hear from our side the story that she has spun through the Crown is a far cry from what actually happened in that she was strung out, couldn't get - you have already heard that they had to go and get some heroin in the morning, and you will hear that various things happened in the afternoon by which time the accused couldn't wait to get rid of her rather the opposite of what she says.

[...] what I'm saying to you is that there will be some distressing times I expect. It's going to be necessary to ask her questions that may be distressing, both about life as a prostitute and a heroin addict but also some personal sexual things that went on that are relevant. They are necessary in order that you can have a look and perform your function, to find out whether the Crown can prove its case beyond reasonable doubt. 30 I have quoted that part of the opening address by counsel then appearing for the appellant in an endeavour to identify the tactical result sought to be achieved by counsel's decision to introduce the appellant's criminal record into evidence. In my view, such a statement of intention made during the course of the trial is of some assistance in this Court's task of determining whether the decision was "an apparently rational" one (TKWJ v The Queen at [16]), or whether "there could be a reasonable explanation for the course that was adopted at trial" (Ali v The Queen at [25]), as part of the "objective" inquiry which must be undertaken (Nudd v The Queen at [27]). All three citations are more fully quoted in par [22] supra. It was made clear at the hearing of the appeal that evidence from counsel would not be appropriate. 31 When cross-examining the complainant during the first trial, counsel for the appellant asked her what it was she would "dob" him in for (the Crown's opening used the prison argot "dog", but the transcript of the evidence in the first trial uniformly records the word "dob" being used). In response, the complainant identified hitting her in the eye or using a weapon, as she did not remember being hit. (According to a discussion in the absence of the jury at the second trial, it was asserted, without dissent, that the complainant had remained silent for five minutes "while she tried to think of a reason why" she would want to report the appellant.) The complainant denied having banged her head when she "blacked out". There were no further questions asked relating to the relevant promise made by the complainant and the appellant's response, but the cross-examination of the complainant by counsel for the appellant had not been completed at the time the jury in that trial were discharged. 32 When opening the Crown case at the commencement of the second trial, the Crown prosecutor did not refer to either the complainant's promise or the appellant's response. Counsel for the appellant again exercised his right to make an opening statement immediately after the Crown's opening address. He said: Ladies and Gentlemen of the jury just to introduce you to a bit of reality in a way as you have gathered from what you've been told we're in for a ride really down to the bottom of society. This case involves, as you have heard the - you will have to rely on the evidence of a young twenty year old woman who is embarking on prostitution to pay for her drug habit. You will hear that she was a heroin addict from the age of fifteen. You will hear many distressing and upsetting aspects to this case because it is concerned with life as I say at the bottom and it involves, as you have heard from the Crown allegations very serious criminal behaviour.

You might think because you are encouraged to bring your common sense along as you will hear later on after the evidence is in, you might hear the most spectacular serious criminal behaviour. You will hear that there is a succession of assaults on her which strain the credulity. You go from a bolt cutters to a blowtorch to being strangled, to taking pills, to be [ sic ] threatened with a syringe all within about a very short period of time all at a crucial time of the day. [...]

So we are in for a bit of a journey ladies and gentlemen. There is going to be some distressing aspects of it and you can't help but feel sympathy for the complainant, for this little twenty year old.

There is also going to be some perhaps embarrassing questions about sexual behaviour later on in the trial. Again they are necessary for you to understand the nature of the case and there is also going to be questions surrounding what happens to you when you are a heroin addict and when you can't get drugs and you start to get, I believe the expression is "strung out" and start to crave and you start to behave in an interesting fashion I suppose is all I could say. 33 When counsel for the appellant asked the complainant during the second trial what it was that she would "dog" him in for, she produced the more detailed answer described in par [9] supra rather than the shorter answer she gave during the first trial. Counsel for the appellant told the judge (in the absence of the jury) that this was relevant to the defence that the complainant told a lie when she asserted that he had said he had been out of jail for five days, and that the allegations of being detained and assaulted had been put forward by the complainant as a justification for that lie. In fact, the appellant had been out of jail for nine days, but it is unclear whether that minor discrepancy was also being put forward as relevant. When the judge pointed out that the complainant's answer had been no more than a speculation, counsel replied that he now had two inconsistent speculations. The judge disallowed any further speculation by the witness as to why the appellant would have said that she would dog him in if he allowed her to leave, as it did not affect her credit as a witness. Counsel did not in the end suggest to the witness that her evidence of what the appellant had said was false.

34 There was some confusion in counsel's mind - and even greater confusion in the complainant's mind - as to the stage at which the promise and the response occurred, whether before or after the bolt cutters episode, and she conceded that she had some trouble as to the sequence of events.

35 Counsel for the appellant raised in his client's criminal record with Det Sen Const Draper, who had been brought back to the witness box at his request in order to do so. The cross-examination was as follows: COUNSEL FOR APPELLANT]: Q. Detective, as officer-in-charge you've familiarised yourself with Mr Seymour's record? A. That is correct.

Q. A fair amount of reading involved in that you'd agree? A. I would agree.

Q. The reason he was in gaol was because he'd been convicted of shoplifting and imprisoned for 14 days, is that right? A. That is correct.

Q. As you've looked across his career it's fair to say that he's been involved in stealing and riding cars and I don't wish to necessarily denigrate those sort of offences, but none of them, with the exception of three I'll come to, have any relationship to violence, is that right? A. Yes, they're more due to property related offences.

Q. He's a failed crim you might say or not a very successful crim? A. In some terms, yes.

Q. However he has got three assault cases against him. One was assault police at the same time he was charged with resist arrest and disorderly conduct and I think he got a $400 fine for that, are you aware of that? A. Yes I am aware of that.

Q. On another occasion I think in Perth again there's a whole lot of street offences. He was convicted of common assault and fined $500 along with a number of offences, breach of bail, false bail undertaking, street drinking, you've seen that record? A. I'm aware of the New South Wales, unaware of the Western Australian.

Q. Perhaps I might show you the Western Australian. Over the page you'll see that line of offences. A. Yeah of course.

Q. Could that be returned. A. I am aware of that.

Q. The other assault is in fact again during the unsuccessful commission of an offence, this time I think he hopped in a car that wasn't his with someone else and the owners came out and chased him and bailed him up and there was a bit of a fracas over that and he was convicted for assault over that? A. Yes I am aware of that.

Q. There's no sign in this fairly extensive record of any, if I can use the term - I'll put it this way, violent behaviour against women? A. No there's nothing in the record that indicates that.

Q. And nothing of a domestic nature that would indicate that he's been in any trouble for domestic disputes or matters of that nature? A. No there is nothing there. When asked by the judge to make it clear why the issue had been raised in this way, counsel for the appellant said that his intention was "just to demonstrate there's no previous record [of] violence [against women] or offences against women"

36 The judge later discussed with counsel the directions he proposed to give to the jury. Counsel for the appellant accepted that it would be appropriate for the judge to tell the jury that the appellant had adduced this evidence to prove his good character in a "particular respect" on the question of his guilt (Evidence Act 1995, s 110(3)), but to add a warning that the jury "cannot, absolutely cannot" use the criminal record as demonstrating a propensity on his part.

37 In his address to the jury, counsel for the appellant said this in relation to his client's criminal record: Finally there is no getting away from the fact that [the appellant] is a not very successful criminal. But he's not a criminal that has any convictions for assault against women. He's a criminal that has the three - can I just step back a bit. He's not a criminal who has any convictions against women that the Crown knows of and I have to say that, remember Det Draper said, I think that's what he said. He didn't know too much about Perth. We showed him the Perth part of his record and there was an assault but he couldn't say definitely that there was no assault against women, but the Crown has got all the facilities. The detective was familiar with what he agreed was a very long document containing his record and he said he's a property crim. Larceny. Getting in and out of cars. Not very well. The last assault was when he got in a car that wasn't his and the owner and someone else as you heard tackled him. And there was a scuffle and he got done for assault as well. And the other two assaults you will recall were assault police amongst street offence [ sic ], resist police and offensive behaviour I think for which he got a fine and one in Perth was a similar matter which he got a fine and he had a whole lot of street offences there too. He is not a vicious criminal. He's not a person who has got any intervening record of him behaving like this. 38 In his summing-up, the judge directed the jury: There was evidence led in the trial from [the complainant] the accused said to her at one point, "I just got out of gaol five days ago. You'll dog me into the cops". Now, [counsel for the appellant] in the course of cross-examining the officer in charge, Det Draper, elicited evidence from him to explain that. The accused in his case concedes that that was the case. That a number of days before that weekend he had got out of gaol. He had been in gaol for a number of days for the offence of shoplifting.

As that was the only relevance of that particular evidence to the trial members of the jury, to explain what Mr Seymour meant when he - in that reference. Or the evidence given by [the complainant]. [Counsel for the appellant] also elicited further evidence from the detective of some convictions for other matters in New South Wales and Western Australia but not for matters of assault against a woman or a female. And Det Draper said that he was not aware of any conviction of the accused for an offence of assault female.

There are two things I need to say to you about this evidence. The first thing is this members of the jury. You have evidence before you that the accused has been convicted in the past of criminal offences but as far as Det Draper knows, he has not been convicted of an offence of this kind or of an offence of assault female. You must not reason and it would be entirely wrong to you to reason that because Mr Seymour has prior criminal convictions that he is therefore the type of person who would commit these offences. In other words, you must not reason that because a person has been previously convicted of a criminal offence which were property offences which were the offences Det Draper referred to predominately, but certainly he did not refer to any offences of assault against females, you must not reason that he is the type of person or he therefore could or would commit an offence such as these with which he stands trial here. That would be totally impermissible. Because the law provides this safeguard, that a person who has a criminal record except in very special circumstances, of which this is not one, that criminal record cannot be taken into account in proving that they committed another offence.

The second matter is this. The evidence from Det Draper, that Det Draper is not aware of any conviction against the accused for assault against a female, was called for this purpose. You are entitled to use this evidence in considering the improbability of the accused committing these particular offences against [the complainant], because such offences are unknown in the past. In other words, you are entitled to take into account this evidence that Det Draper knows of no such convictions for assault female in the past on the question of Mr Seymour's guilt with respect to these charges on the indictment. 39 From the statements of intention made by counsel for the appellant during the course of the trial, it is possible to discern at least two different possible explanations available for raising the appellant's criminal record. Whether or not either of those explanations could be described as rational or reasonable will be considered later. Neither party suggested any other possible explanation, and I have not been able to ascertain any other such explanation myself. Those explanations are that: (1) his criminal record provided an explanation for the appellant having been in gaol a short time before these events - that he had been in gaol for only two weeks following a conviction for shoplifting; and (2) the evidence demonstrated the appellant's good character in a particular respect, in accordance with s 110(3) of the Evidence Act , in that the absence of any record of violence against women made it unlikely that he would have acted in the way the complainant had alleged. 40 Basic to any consideration of the first of these suggested explanations must be an evaluation as to whether the evidence of the appellant's response to the complainant's plea to be allowed to leave - revealing his recent discharge from gaol - would have been rejected had counsel for the appellant objected to it. It is significant that the Crown prosecutor was sufficiently concerned with the admissibility of this evidence, and with the judge's reaction to any reference being made to it in his opening address at the first trial, to have raised the issue with the judge before opening his case to the jury (see par [28] supra).

41 Section 135 of the Evidence Act gives to the trial judge a discretion to reject evidence if its probative value is substantially outweighed by the danger that the evidence is unfairly prejudicial to a party. Section 137 requires the trial judge to reject evidence where tendered by the prosecution in a criminal trial if its probative value is outweighed by its prejudicial effect. The evidence is perhaps more likely to be admitted under s 135, because the balance to be undertaken in accordance with that section is whether the prejudicial effect of the evidence substantially outweighs its probative value, whereas under s 137 it is sufficient that the prejudicial effect of the evidence merely outweighs its probative value. In the balancing exercise under both sections, the judge must take into account the extent to which the danger of unfair prejudice caused by the evidence may be reduced by directions given to the jury: Regina v BD (1997) 94 A Crim R 131 at 139-140; or by editing the evidence: Regina v Macraild, Court of Criminal Appeal (BC9707215), 18 December 1997, unreported, at 12. 42 At least one reason why evidence will have a prejudicial effect is that there is a real risk that the evidence will be misused by the jury in some unfair way: DPP v Boardman [1975] AC 421 at 456; The Queen v Duke (1979) 22 SASR 46 at 47-48; Scott v The Queen [1989] AC 1242 at 1258-1259; Regina v Masters (1992) 26 NSWLR 450 at 479; Pfennig v The Queen (1995) 182 CLR 461 at 487-488, 528; Regina v BD at 139-140; Papakosmas v The Queen (1999) 196 CLR 297 at [29], [91], [98]. See also ALRC 26, vol 1, pars 644, 957. There may still be some dispute as to whether prejudice arising from procedural considerations is sufficient to outweigh the probative value of the evidence, but it is unnecessary in this case to deal with that issue: cf Papakosmas v The Queen at [93]; Regina v Suteski (2002) 56 NSWLR 182 at [126]-[127]. (The issue was not debated in the unsuccessful application for special leave to appeal in the second of those cases: [2003] HCA Transcript 493.) 43 What then is the probative value from the Crown's point of view of the facts that the appellant had been released from gaol only two weeks before these events and therefore had a criminal record? The complainant, according to her evidence, pleaded with the appellant to allow her to leave the premises. The alleged response by the appellant which discloses those facts clearly enough suggests that, because he had recently been in gaol, the appellant would be in more serious trouble than might otherwise be the case if the complainant reported his conduct to the police. An available inference is that the appellant was not prepared to allow the complainant to leave the premises, and the evidence thus supports the Crown case on the issue of detention in the first charge, detention for advantage.

44 There was, however, an abundance of evidence to support the Crown case that the appellant was not prepared to allow the complainant to leave the premises. According again to the complainant's evidence, the appellant had already made it clear that he could be violent towards her. There was his statement that he would have thrown her from the train the day before when she had called the co-accused a child molester if he had not liked her so much (see par [7] supra). He had also already made it clear that he was not going to allow her to leave the premises. When she had first asked to leave, he had shouted at her that she was not going anywhere, and that she was going to be dead anyway (see par [8] supra). Depending on the reliability of her recollection of the sequence of events, he had also at that stage threatened to cut her toes off whilst holding the bolt cutters and opening and shutting the blades (see par [8] supra). Later, he chased her with the lighted blowtorch (see par [10] supra). 45 What then did this evidence add to the Crown case other than the information that the appellant had been in gaol, and therefore had a criminal record? The Crown did not provide a satisfactory answer to this question. It has argued that material which the jury were entitled to regard as discreditable, and according prejudicial, was disclosed to the jury in any event - that the appellant and his co-accused had picked up the complainant knowing that she was a prostitute, the appellant had had sexual intercourse with her, they had shared heroin the next day and had then consumed intoxicating liquor together. The fact that the appellant had left gaol five days earlier, the Crown has submitted, has not been shown to have "substantially increased" any prejudice already suffered by that evidence. Nor has the failure of the appellant's counsel at the trial to object to the reference to his incarceration in gaol been shown to have created a "significant possibility" that the evidence affected the outcome of the trial, or that it was not a "perfectly reasonable" forensic decision on the part of counsel. 46 I do not accept that in this day and age the conduct of the complainant and the two men would have produced the prejudice it may have many years ago. No one has suggested that this was a Sunday school picnic. It is difficult, however, to imagine more damaging evidence in a jury trial beyond the direct and circumstantial evidence of the crime than the fact that an accused has a criminal record. In Dawson v The Queen (1961) 106 CLR 1, Dixon CJ said (at 16): It is the thesis of English law that the ingredients of a crime are to be proved by direct or circumstantial evidence of the events, that is to say, the parts and details of the transaction amounting to the crime, and are not inferred from the character and tendencies of the accused. In exercising the discretion to exclude such evidence, he said (at 16): […] it became necessary to consider whether the interests of justice were not best served by excluding evidence of the accused's convictions or bad character in order that his guilt should be judged on the facts of the case and not upon the propensities which his past disclosed or the prejudices his character or career might engender. Although the Chief Justice was in dissent in the disposal of that appeal, the first passage was quoted with approval by the majority in Phillips v The Queen (1985) 159 CLR 45 at 55, and his statements of principle were said (at 50-51) to have been held to have been "entirely consistent with the trend of authority". Deane J, who dissented in Phillips , said (at 60) that the long experience of the common law is that evidence in a jury trial of the criminal record of the accused is "liable to besmirch justice with the ugly stain of prejudice or prejudgment", and (at 63) that it introduces "a substantial risk of unfair prejudice". 47 Earlier, in Hall v Braybrook (1955) 95 CLR 620, Dixon CJ referred (at 629) to the general rule that a tribunal of fact should not be informed of the accused's criminal record, bad character or antecedents before that tribunal pronounces a finding of guilt. That general rule, the Chief Justice said (at 628), had become a principle which pervades the law governing the conduct of criminal proceedings, and all concerned in the criminal law are highly sensitive to any infringement of that principle "because of the prejudice to the issue of guilt which is thought inevitably to ensue". The Chief Justice concluded (at 629) that this traditional principle protects an accused from the undue prejudice which "must" be derived from that knowledge. In the same case, Fullagar J said (at 648) that this principle was fundamental to the administration of criminal justice, and that a breach of that principle means that any conviction obtained cannot stand. In Regina v Knape [1965] VR 469, the Full Court of Victoria (Winneke CJ, Pape & Starke JJ) said (at 472) that the law has long recognised the prejudicial effect of such evidence, and that it is "calculated to render a fair trial improbable". 48 My own experience in relation to criminal trials is that the effect of any reference to the criminal history of the accused remains the same today. If the evidence had been objected to at the trial in the present case, the proper balance in this case in my opinion was that the evidence should have been rejected in accordance with s 137. That is not to say that my view is the only one possible. The trial judge, had he been asked to reject the evidence, may for example have said that the evidence could be edited so that it satisfactorily conveyed the appellant's fear that he would be in more serious trouble than might otherwise have been the case if the complainant reported the incident to the police, without disclosing that he had a criminal record. I am not sure myself how that could have been done, but I recognise the possibility that it could have been done. There was already evidence given according to some such arrangement (see par [9] supra). But I am satisfied that the prejudice caused by evidence that the appellant had a criminal record necessarily outweighed the probative value of that evidence to the Crown case, notwithstanding the evidence of what the jury were entitled to regard as antisocial behaviour by the appellant. There was no justification for allowing the fact that the appellant had been in gaol to go before the jury. 49 If it be assumed that, over objection, the evidence of the complainant's evidence would have been admitted by the trial judge without any editing, it would clearly have been a rational or reasonable decision for counsel for the appellant to have elicited evidence as to the reason for his client's incarceration - that it was only for two weeks, and it followed a conviction for shoplifting. However, in my view it would have been unwise to do so, as that evidence inevitably suggests that the complainant's evidence of what the appellant said to her was true. 50 But I can see no possible rational or reasonable explanation at all for the tender of virtually the whole of the appellant's criminal record. Proof that the appellant had no record of violence against women did not require the other details of what his record contained. It would have been sufficient to have asked Det Sen Const Draper whether, in the course of his investigations, he had found that the appellant had no record of convictions for violence against women. Nor can I see any possible rational or reasonable explanation for the extraordinary emphasis counsel placed in his cross-examination of Det Draper, and in his final address to the jury, on (i) the length of the appellant's record ("a fair amount of reading", "this fairly extensive record" and "a very long document containing his record"), (ii) his lack of success in crime ("a failed crim"), (iii) his propensity for "street offences" and (iv) his description as a "property crim". 51 The other possible explanation for the tender of the evidence of the appellant's criminal record was that it demonstrated his good character in a particular respect, in accordance with s 110(3) of the Evidence Act. By the absence of any record for violence against women in his criminal record, it was suggested, it was unlikely that he would have acted in the way the complainant had alleged. There are currently differences in judicial opinion as to whether the mere absence of convictions establishes good character making it unlikely that the accused committed the crime charged: compare Regina v Aziz [1996] AC 41 at 51, Regina v Falealili [1996] 3 NZLR 664 at 667, and Melbourne v The Queen (1999) 198 CLR 1 at [108]. It is unnecessary in this case to resolve those differences of opinion. It is sufficient to say that the mere absence of any record of violence against women does not to my mind suggest very strongly that it is unlikely that the appellant acted in the way the complainant alleged, particularly in the light of the three convictions he had for offences of violence. 52 Whatever value the evidence may have had, however, it was of little if any benefit to the appellant in the light of the other material brought out by his counsel. Section 110(3) permitted the appellant to raise his character in only one particular respect if he wished to do so, and the effect of the other material brought out by counsel for the appellant was to swamp whatever small benefit the absence of convictions for violence against women may otherwise have had. Moreover, the effect of that benefit was seriously reduced by the fact that Det Sen Const Draper was unable to confirm the absence of such convictions in Western Australia, where it appeared that the appellant had spent some time, a fact to which counsel gave unnecessary emphasis in his final address (see par [37] supra). The judge, with the agreement of the parties, went as far as he could go in his directions to the jury in saying that the effect of the officer's evidence was, "as far as Det Draper knows", the appellant had no such convictions in Western Australia. 53 In my opinion, there was no rational or reasonable explanation for the whole course of conduct by counsel for the appellant in eliciting the appellant's criminal record in the way he did, and that conduct necessarily caused the trial to be unfair. As will be seen when consideration is given to the second ground of appeal, the complainant's evidence presented some problems for the Crown case, and the conduct of counsel lost to the appellant a chance fairly open to him of being acquitted: Mraz v The Queen (1955) 93 CLR 493 at 514; Wilde v The Queen (1988) 164 CLR 365 at 371-372. There was therefore a miscarriage of justice. 54 There is one other relevant issue mentioned by counsel for the appellant at the trial to which reference should be made. He suggested at one stage (although he never returned to it) that, if he cross-examined the complainant about the drugs she took and the alcohol she consumed during the time she was in the apartment in order to show that her evidence was unreliable as a result, his client could be cross-examined on his record. Such a suggestion misstates the effect of s 104 of the Evidence Act. That section prevents cross-examination of the defendant in a criminal proceeding on matters relevant only to his credit without leave, and it provides that leave must not be granted unless the defendant has adduced evidence either (a) of his own good character or (b) of the tendency of a Crown witness to be untruthful where the evidence is relevant solely or mainly to that witness's credibility. 55 Dealing with the alternative (b) first, s 104 also provides that evidence of the witness's conduct adduced by the defendant does not include evidence of the witness's conduct in relation to the events about which the defendant is being prosecuted, so the appellant here was not at risk of cross-examination on his record if the complainant were cross-examined in the way proposed. As to alternative (a), the trial judge, in determining whether to grant leave, is required by s 192 to take into account, inter alia, the extent to which that cross-examination on that criminal record would be unfair to the defendant and the importance of the defendant's criminal record to the Crown case. This task was closely examined by the High Court in Melbourne v The Queen (referred to in par [51] supra). It is clear from what I have already said that this would not have been an appropriate case in which to grant such leave. 56 It follows from my conclusion that counsel's conduct at the trial caused a miscarriage of justice that the appellant is entitled to have the verdicts against him quashed. The circumstances in which this miscarriage of justice occurred do not permit the proviso to s 6 of the Criminal Appeal Act 1912 to be applied. The Crown did not suggest otherwise. Normally, this would lead to an order for a new trial. The appellant's second ground of appeal seeks to avoid such an order being made, to which I now turn. If that ground is successful, the appellant is entitled to have a judgment and verdicts of acquittal entered. 57 Ground 2 - Unreasonable verdict This ground of appeal asserted that "[t]he verdict was unsafe and unsatisfactory". It has been clear since at least 2002, when MFA v The Queen (2002) 213 CLR 606 was decided (if it was not clear before), that the appropriate ground of appeal attacking the quality of the evidence leading to the conviction should be stated in the terms of s 6(1) of the Criminal Appeal Act , that the verdict was unreasonable. The appeal has been dealt with on the basis that the ground of appeal should be interpreted in that way. 58 Where this Court is asked by an appellant to exercise its power under s 6(1) of the Criminal Appeal Act, it must make its own independent assessment of the evidence, and then consider whether, notwithstanding that as a matter of law there was evidence to sustain the jury's verdict, it was nevertheless open to the jury on the whole of the evidence to be satisfied beyond reasonable doubt that the appellant was guilty, paying full regard to the circumstances that the jury is the body entrusted with the primary responsibility of determining the issue of guilt and that they had the benefit of having seen and heard the witnesses. This Court must be satisfied that the evidence on which the Crown case relied was cogent and unequivocal, and that it was not inherently implausible. Where the evidence appears on a reading of the record to contain discrepancies, display inadequacies, or lack probative force, its apparent lack of credibility may in many cases be explained by that advantage enjoyed by the jury. But, where the evidence lacks credibility for reasons which are not explained by the manner in which it was given, this Court is entitled and obliged to act on its own assessment of the nature and quality of the evidence if it is satisfied that, even making full allowance for the advantage enjoyed by the jury, there is a significant possibility that an innocent person has been convicted: Knight v The Queen (1992) 175 CLR 495 at 503, 511; M v The Queen (1994) 181 CLR 487 at 492-495; Gipp v The Queen (1998) 194 CLR 106 at [18], [128], [169]; MFA v The Queen at [25], [30], [48], [55]-[56], [59]. 59 The complainant's evidence, as suggested earlier (in par [52] supra), presented some problems for the Crown case. Her recollection was at best variable, and her concentration when giving evidence was uneven. The trial judge formed a strong view that her evidence lacked cogency because of its inconsistencies in relation to a number of matters, that she had made assumptions rather than seen matters to which she had referred, and that this showed that her evidence was unreliable rather than dishonest. Attention was drawn to her assertions that the blowtorch was used and that it was lit when it was used; that the co-accused was standing guard at the door with a baseball bat; that both accused had threatened to kill her; and that a gun had been produced. (The judge appears, with respect, to have been confused as to the state of the evidence in that particular trial in relation to the blowtorch.) There was also the fact that, notwithstanding her assertion that she had been unhappy to remain in the apartment, the complainant stayed with the two men for almost twenty-four hours after she had had sexual intercourse with the appellant, and had not departed even when they went to purchase some beer (see pars [4]-[6] supra). 60 It was these matters which persuaded the trial judge to give a Prasad direction. Such a direction takes its name from Regina v Prasad (1979) 23 SASR 161, in which King CJ was dealing with a submission that a trial judge had a discretion to direct the jury to give a verdict of not guilty if the judge considered that the evidence for the prosecution was so unsatisfactory it would be unsafe to convict on it. In rejecting that submission, the Chief Justice said (at 163) that it would be contrary to law if there was evidence to support a conviction. He continued: It is, of course, open to the jury at any time after the close of the case for the prosecution to inform the judge that the evidence which they have heard is insufficient to justify conviction and to bring in a verdict of not guilty without hearing more. It is within the discretion of the judge to inform the jury of this right, and if he decides to do so he usually tells them at the close of the case for the prosecution that they may do so then or at any later stage of the proceedings. The context makes it clear that the situation in which the Chief Justice thought it was appropriate to give such a directions was where, although there was evidence to support a conviction, the quality of the evidence was such that the jury would be likely to reject it. 61 In Regina v Pahuja (1987) 49 SASR 191, the trial judge had given a Prasad direction which occupied seventeen pages of the transcript. King CJ said (at 201): The undoubted right of a trial judge to inform the jury of its power to bring in a verdict of not guilty at any time after the conclusion of the case for the prosecution should be used sparingly and only when the judge is of opinion that the evidence for the prosecution, although capable in law of supporting a conviction, is insufficiently cogent to justify a verdict of guilty. Even in such a case, the judge should bear in mind that the evidence called by the defence might strengthen the prosecution's case. In that case, it seems, there was no more than the normal and expected conflict between the evidence of the complainant and that of the defence witnesses. Cox J said (at 218): There are two things that I would say about the procedure that was followed in this case. First, any Prasad direction should be put to the jury quite simply and shortly. It is not the occasion for any more than a passing glance at the law and a brief reference to whatever feature of the evidence it is that has led the trial judge to give the direction - usually some serious weakness in the Crown case that has emerged during his presentation. I think, with respect, that this direction was far too long. Secondly, it seems to me that this was not a proper case for a Prasad direction at all. The typical occasion for it in any sexual case will be the discrediting of the complainant in the witness box - admitted lies or plain contradictions or vacillations - or important contradictions with other Crown witnesses. No doubt there may be other occasions for its use as well, but they are the obvious ones. Johnston J agreed with what had been said by King CJ and Cox J. 62 The judge followed closely what was said in those cases. There were no addresses, and only short legal directions. As stated earlier (at par [15] supra), the jury returned a verdict of not guilty for the co-accused on both charges, but they indicated that they would like the case against the appellant to continue. 63 On behalf of the appellant it has been submitted on appeal that, although the co-accused did not physically do more than smash the complainant's mobile telephone and thus prevent her seeking help (see par [9] supra), and put his hand over her mouth to stop her screaming when the appellant was choking her with the studded leather dog collar (see par [11] supra), he was nevertheless a party to a joint criminal enterprise to detain the complainant and to arm the appellant with the bolt cutters and a lighted blowtorch with intent to assault her. It is difficult to see any evidence that the incidents with the bolt cutters and the blowtorch fell within the joint criminal enterprise, or that they were contemplated by the co-accused as possible incidents of its execution, but it is clear that he at least aided and abetted the appellant in relation to those incidents. The two were clearly "in company", the aggravating feature of the charge of detain for advantage. In finding the co-accused not guilty of both charges, the appellant says, the jury must have rejected the complainant's evidence on the basis that it was unreliable. 64 I do not accept this argument. In my opinion, the cause of the seemingly inconsistent results of the Prasad direction arose from the circumstances in which that direction was given. This was a case in which some explanation of the Crown case of a joint criminal enterprise, and of the two accused acting in company, was vital to the jury's understanding of the part played by the co-accused. The Crown prosecutor in his opening address did very briefly outline in conceptual terms how his case relied on a joint criminal enterprise: see Regina v Tangye (1997) 92 A Crim R 545 at 556. That, however, happened a week before the Prasad direction was given. As suggested in Pahuja, the judge did not give any directions of law which explained the conceptual basis of the Crown case. 65 It is clear, in my opinion, that the jury acquitted the co-accused because it had not been explained to them how the part he played in the various events which took place in the apartment made him criminally responsible for the actions of the appellant. The very experienced counsel appearing for the appellant in this appeal very properly conceded that this was perhaps correct. If follows from my opinion that the seeming inconsistency in the results of the Prasad direction disappears. 66 This case demonstrates the danger of giving a Prasad direction in circumstances where there may be a problem for the jury in understanding the real nature of the Crown case. In some cases, it may be possible for the direction to be expanded to make it clear how the Crown put its case, but it seems to me that to do so really negates the whole purpose of this procedure, which is premised on the jury being able, without the assistance of the trial judge or counsel, to judge the cogency of the evidence on which the Crown relies - without addresses and without a summing-up. 67 In my opinion, the evidence of the complainant received some support from (a) the complaints she made as soon as she left the apartment in her 000 call and subsequently that evening to the police, and (b) the location of the gas cylinder, the studded leather collars and the bolt cutters in the appellant's apartment. With due respect to the views expressed by the trial judge, the defects in the complainant's evidence to which attention has been drawn do not demonstrate to my satisfaction that her evidence was so unreliable that is was not open to the jury to accept her evidence. Those defects were not such as to be unexplained by the jury's advantage of having seen and heard the complainant give her evidence. 68 I would reject the second ground of appeal. I propose that the following orders be made: 1. The appeal is upheld and the conviction is quashed. 2. A new trial is to be held. 69 SIMPSON J: I agree with Hunt AJA. 70 ROTHMAN J: I have had the advantage of reading the reasons in draft of Hunt AJA and I agree with those reasons and the orders proposed. 71 ORDERS: (1) The appeal is upheld and the conviction is quashed (2) A new trial is to be held.

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