SMALL -v- THE STATE OF WESTERN AUSTRALIA [2023] WASCA 179 (13 September 2023)

1. The appellant gave evidence at his trial. His case was that he gave the complainant a lift back to her house in his car after they had shared a meal and some drinks at a hotel. On the way to the complainant's home, they stopped at a bottle shop, and the appellant bought some alcohol. When they got to the complainant's home they went inside, taking some of the alcohol with them. Once inside they sat down, had more drinks, listened to music, and talked.
2. Although the appellant said he was not sure how the topic was raised, at some stage during the night they talked about sex. This topic of conversation then led to the two of them making their way to the complainant's bedroom where, according to the appellant, the complainant went and had a shower while he took his clothes off and waited for her. When the complainant came out of the bathroom, she was naked, and she lay down next to the appellant on the bed.
3. The appellant said that he then performed oral sex on the complainant before she also engaged in oral sex, and that they then had consensual sexual intercourse. He said that this initially occurred while the complainant was on top of him. He then moved behind her and they engaged in sexual intercourse while she was on her hands and knees before she then lay on her back with the appellant on top of her. The appellant said that during the sexual activity, he pulled the complainant's hair, and he slapped her. However, his case was that everything occurred with the complainant's consent. The appellant said that after he ejaculated into the complainant's vagina he rolled over and fell asleep, and that he did not wake up until the following morning. When he woke up, he got dressed, threw a blanket over the complainant (who was still asleep), and drove home.
4. The appellant agreed that he sent some text messages to the complainant later that day. He accepted that one of those text messages amounted to an apology and said that he had sent it because he had made a mess at the complainant's home with broken glasses and cigarettes, and he wanted to apologise. He denied that he was apologising for having sexually assaulted the complainant.
5. It can be seen from this summary of the respective cases that despite similarities between the complainant's account and the account that was given by the appellant, there were some significant differences. Importantly, the complainant said that there had been two separate occasions during which sexual activity occurred. By contrast, the appellant said that there had only been one event. Further, while the complainant said that all of the sexual activity occurred without her consent, the appellant's version of events painted a very different picture.

1. The appellant was found guilty of, and judgments of conviction were entered in relation to, counts 1 ‑ 3, 5, 6 and 8 on the indictment. He was found not guilty of counts 4 and 7.

1. The grounds of appeal that were set out in the appellant's case were as follows:
   1. A miscarriage of justice was occasioned by irrelevant and inadmissible text messages passing between the complainant and [AP] being placed before the jury.
   2. A miscarriage of justice was occasioned by the failure of the trial judge to properly direct the jury in his address to the jury about how they could use a text from the appellant to the complainant which was described as an apology.
   3. A miscarriage of justice was occasioned by the failure of the trial judge to properly direct the jury in his address to the jury on the meaning of consent.
   4. A miscarriage of justice was occasioned by the trial judge misstating the defence case in his address to the jury.
2. At the hearing of the appeal the appellant applied for, and was granted leave to rely on, a further ground of appeal in the following terms:

A miscarriage of justice was occasioned by the trial judge's directions to the jury as to the uses to which [AP's] text messages could be put, and his failure to instruct the jury or adequately instruct the jury about the uses to which that evidence must not be put.

1. Given the overlap between grounds 1 and 5 it is convenient to deal with those grounds at the same time. We will then deal with ground 2, before finally turning to consider grounds 3 and 4.

Grounds 1 and 5 - messages exchanged between the complainant and AP

1. At trial the prosecution tendered several photographs of messages that the complainant sent and received via both Facebook Messager and SMS, before, during and after the time she alleged the appellant sexually assaulted her. Some of those photographs, which became exhibits 1 and 2, depicted several messages that the complainant had exchanged with the appellant before the events the subject of the counts on the indictment were alleged to have taken place. Those messages demonstrated that the appellant and the complainant knew each other as work colleagues and that they were on good terms. Some of the messages comprised the communications that had taken place between the appellant and the complainant on 13 July 2020, which ultimately led to them meeting for dinner before going to the complainant's home.
2. A further bundle of photographs was also tendered by the prosecution. This bundle, which became exhibit 7.2, depicted various messages that had been exchanged between the complainant and AP on 14 July 2020. As these messages are central to these two grounds of appeal, we have attached a copy of exhibit 7.2 as Annexure A in order to assist in understanding these reasons.
3. As we have already said, the complainant gave evidence that the appellant sexually assaulted her on two separate occasions during the early hours of the morning of 14 July 2020. She also said that between those two occasions she made several unsuccessful attempts to call AP using her mobile telephone.
4. According to the complainant, after the appellant left her home later that morning, she exchanged several messages with AP, again using her mobile telephone. However, the prosecutor did not show the complainant copies of any of those messages during her evidence‑in‑chief, and they were not tendered as exhibits at that stage. The complainant only gave very general evidence about what was in those messages.
5. Later, in cross-examination, the appellant's counsel showed the complainant two photographs of some of the messages she had exchanged with AP, both of which eventually became part of exhibit 7.2. Those photographs are numbered 14 and 15 in Annexure A to these reasons. When she was shown the messages, the complainant confirmed that she had sent the grey-coloured messages appearing on the left-hand side of the screen shown in the photographs. She also said that the green-coloured messages, appearing on the right‑hand side of the screen, had been sent by AP. When the complainant was asked by defence counsel to explain what she meant by the message, 'If I say it that means it really happened', she said that she was 'trying to forget about it and pretend it didn't happen'.[1]
6. Defence counsel then attempted to tender the two photographs. However, the prosecutor informed his Honour that he intended to tender the photographs as part of what he described as 'the full bundle', through the next witness, AP. As a result, the two photographs were marked for identification at that stage.
7. In re‑examination the prosecutor asked the complainant whether the photographs that had been marked for identification showed all the messages that she had sent to AP. When the complainant confirmed that the two photographs did not show all of those messages, the prosecutor then attempted to show her a larger bundle of photographs of further messages that the complainant had exchanged with AP on 14 July 2020. However, the appellant's counsel objected, and the trial judge then entertained a lengthy debate, in the absence of the jury, about whether the prosecutor should be permitted to put the further messages to the complainant in re‑examination.
8. The basis of defence counsel's objection appeared to be that the proposed re-examination did not arise out of cross-examination. Defence counsel submitted that he had only cross-examined the complainant on a confined number of messages and, given the prosecution had deliberately decided not to tender all the messages during the complainant's evidence‑in‑chief, it was then not open to the prosecutor to ask the complainant questions about those messages in re-examination.
9. However, the trial judge had a different concern. It is plain that he was worried that if he allowed the prosecutor to ask the complainant questions about these other messages in the course of re-examination (messages which had not been the subject of evidence‑in‑chief or cross‑examination) or to lead them through the next witness, defence counsel would be deprived of the opportunity to cross‑examine the complainant about those messages.
10. In fact, defence counsel had not been deprived of any opportunity to cross-examine the complainant about the messages. Regardless of the approach that had been taken by the prosecutor to the tender of the messages, it was always open to defence counsel to ask questions of the complainant about those messages, subject to questions of relevance and any other legitimate basis on which such questioning might not have been permitted. Nevertheless, when his Honour raised his concerns, defence counsel said that he had contemplated this and told the trial judge that he took 'full responsibility for it'.[2]
11. The prosecutor explained to his Honour that before the trial had commenced both counsel had agreed that an 'agreed bundle'[3] would be tendered by the State. The prosecutor said that it had always been the State's intention to adduce this evidence through AP. This was consistent with the fact that he had only had the messages marked for identification during the complainant's evidence‑in‑chief. The prosecutor also told the trial judge that he intended showing the bundle of photographs to the complainant in re‑examination with a view to asking her to confirm that she had sent the relevant messages. He indicated that he then intended to tender the bundle through AP, during her evidence‑in‑chief.
12. The prosecutor said that defence counsel had previously agreed which messages would be tendered as part of the prosecution case. Further, he said that the extent to which any of those messages should be redacted had also been agreed. In that regard it is important to note that the prosecutor told the trial judge that 'there are some redactions [that have been made] where [AP] has made comments that are inflammatory, effectively, and are not helpful to the jury's consideration'.[4] The prosecutor also told his Honour that when AP came to give evidence later in the trial, he did not intend asking her to provide any commentary on what the complainant may or may not have meant in the various messages that she had sent.
13. Ultimately, his Honour decided that the complainant should be recalled to give further evidence‑in‑chief, and that he would allow the prosecutor to show her the complete bundle of photographs, whereupon they would then be marked for identification. He also indicated that it would then be open to defence to cross‑examine the complainant about those messages. The trial judge said that the photographs could then be tendered as an exhibit when AP gave evidence.
14. The appellant's counsel made it very clear that he opposed this course of action. However, after the trial judge had made his intentions known, and for reasons that do not emerge from the transcript, the appellant's counsel said that he wished to revisit the previously agreed redactions. Counsel was allowed a short time to re‑consider the agreed redactions. He then advised the trial judge that he had reached a new agreement with the prosecutor such that all the messages would be tendered in the State's case in a completely unredacted form. Defence counsel told his Honour that 'I've advised that in the light of what we're doing now that I don't agree with the redactions'.[5]
15. When the jury returned to the court the trial judge then told them that he was going to allow the prosecutor to 'reopen the evidence‑in‑chief of the complainant'.[6] The prosecutor then elicited further evidence from the complainant. In that regard, the complainant was shown the bundle of unredacted messages, and she confirmed that they were the messages that she had exchanged with AP. The bundle was then marked for identification as 'MFI 7'.
16. The appellant's counsel did not ask the complainant any further questions in cross‑examination.
17. The prosecutor then called AP to give evidence. He began by asking her some introductory questions before moving on to ask her about the communications she had had with the complainant during the morning of 14 July 2020. AP confirmed that she had received some missed calls from the complainant during the early hours of that morning when she was still asleep. She was then shown MFI 7. After AP confirmed that the various photographs comprising MFI 7 had been taken of her mobile telephone screen, the prosecutor took AP through all the messages that she had sent and received.
18. In her evidence AP essentially confirmed that she had sent and received the messages. The photographs that comprised MFI 7 were ultimately tendered as exhibit 7.2.
19. On three occasions when the prosecutor was asking AP questions about the various messages, the trial judge interrupted the questioning and gave the jury the following directions about certain messages sent by AP:

[Message read by prosecutor] 'Well, of course I am. A friend you trusted did this. I hate them. Why did you hang around them people? Why do you?'

GOETZE DCJ: Now, just stop there. Where it says: 'A friend you trusted did this.' Ladies and gentlemen, it's for you to determine what's happened not some comment from this witness. With respect to you, madam, it's a jury task to determine what's happened in this case.[7]

...

[Message read by prosecutor] 'That's way, way worse then. It's fucking rape. I'm right, aren't I? One of those two.'

GOETZE DCJ: And again, just ignore those words, 'fucking rape.' There's the complaint of obviously something having happened, but it's for you the jury to determine what has happened, and rather than interrupt again, because it comes up one or two pages on, I'll just make that same warning to you now.[8]

...

[Message read by prosecutor] 'Well, they raped you.'

GOETZE DCJ: And it's the same warning again.[9]

1. Towards the end of AP's evidence‑in‑chief, the prosecutor asked her some questions about a conversation that she had with the complainant later on 14 July 2020, when she went around to see her at her home. In her evidence AP said that the complainant appeared 'traumatised and broken', that she 'burst into tears', and, although the complainant did not descend into the details of what had happened, she said that the complainant told her, amongst other things, that the appellant had forced himself on her on more than one occasion.[10]
2. The appellant's counsel did not ask any questions of AP in cross‑examination.
3. Against that background, it is convenient to commence with ground 1.

1. The appellant submits that there was a miscarriage of justice because certain messages exchanged between the complainant and AP on 14 July 2020 were inadmissible but were tendered in evidence at his trial. The appellant does not suggest that all those messages were inadmissible. He accepts that some of the messages were admissible as part of the context of a recent complaint that was made by the complainant, and that the messages may have assisted the jury to properly understand, and to appreciate the context of, the complainant's messages. What the appellant contends is that a large number of AP's other messages were simply irrelevant. The appellant also argues that in some of the messages, AP used strong and inflammatory language. In other messages, he says that she expressed inadmissible opinions about whether the conduct that the complainant had previously described in her own messages amounted to rape. The appellant also complains that many of AP's messages conveyed her low opinions about men generally, but more importantly, her poor opinions about the appellant's own character and reputation.
2. Apart from the appellant's contention that AP's messages were inadmissible because they were irrelevant, he also submits that several messages were unfairly prejudicial, and should have been excluded by the trial judge in the exercise of his discretion to reject evidence because the risk of impermissible prejudice arising from that evidence outweighed its probative value.[11] However, the trial judge was not at any stage asked to exercise that discretion.

1. On behalf of the respondent, it was submitted that all of AP's messages were relevant and admissible. It was argued that the complainant's messages were admissible because they constituted evidence of recent complaint. In that context, it was submitted that AP's messages were in turn relevant because they provided necessary context, made the complainant's messages intelligible, and demonstrated how the complaint emerged.
2. Notwithstanding those submissions, and on the premise that some or all of AP's messages were inadmissible, including because the unfair prejudice associated with their admission into evidence outweighed their probative value, counsel for the respondent relied on the fact that defence counsel did not object to that evidence. It was submitted that defence counsel did not merely fail to object to the evidence; defence counsel expressly wanted that evidence to be before the jury. It was argued that in those circumstances the question for this court was whether the decision taken by the appellant's counsel to insist that all the messages that passed between the complainant and AP be tendered in evidence was, objectively considered, one that could be reasonably explained on the basis that he was seeking to obtain a forensic advantage for the appellant, so that it cannot be concluded that a miscarriage of justice was occasioned.
3. Counsel for the respondent argued that as the complainant had not made a spontaneous complaint it was open to defence counsel to argue that she had engaged in consensual sexual activity while intoxicated and that, by the time she was communicating with AP, she was experiencing regret. Against that background, it was submitted that it was open to the appellant's counsel to suggest to the jury that the fact that there had been a complaint, and anything said in that complaint, may have been influenced by AP's messages that are said to have been inadmissible, and that the evidence of complaint could therefore not have bolstered the complainant's credibility.
4. It was also argued that when considering whether the admission into evidence of AP's messages occasioned a miscarriage of justice, due regard had to be given to the assumed effect of the trial judge's directions. In that regard, our attention was drawn to the three occasions on which the trial judge intervened to give directions to the jury while AP was giving evidence, to which directions we referred earlier in these reasons. We were also reminded that the appellant's counsel did not make any submissions that those directions were inadequate, or that any further directions were required.

1. It is well established that where evidence has been adduced at a criminal trial without objection, the question on appeal is whether the evidence was technically inadmissible and, if so, whether the appellant's counsel did not object to the admission of the evidence for an apparently rational forensic reason such that, in the circumstances, no miscarriage of justice occurred: R v Soma;[12] Birks v The State of Western Australia;[13] and MLS v The State of Western Australia.[14] It has also been held that inadmissible evidence that is received without objection will only give rise to a miscarriage of justice if the evidence occasioned material prejudice to an appellant: LBC v The State of Western Australia.[15]
2. Recently, in HCF v The Queen,[16] a majority of the High Court (Gageler CJ, Gleeson & Jagot JJ) referred with approval to the decision of Beech‑Jones CJ at CL (as he then was) in Zhou v The Queen,[17] in which his Honour provided a 'summary concerning those errors or irregularities that will amount to a miscarriage of justice'.[18] In that regard, the majority noted his Honour's observations in Zhou that:

if the error or irregularity 'is properly characterised as a "failure to observe the requirements of the criminal process in a fundamental respect" then it would follow that the conviction would not stand regardless of any assessment of its potential effect on the trial', but otherwise there is no miscarriage unless the error or irregularity is 'prejudicial in the sense that there was a "real chance" that it affected the jury's verdict ... or "realistically [could] have affected the verdict of guilt" ... or "had the capacity for practical injustice" or was "capable of affecting the result of the trial"'.[19] (emphasis added, citations omitted)

1. In this case it is not suggested that there was a failure to observe the requirements of the criminal process in a fundamental respect. Accordingly, we will proceed on the basis that the relevant question for this court is, if any of the messages in exhibit 7.2 were technically inadmissible, whether that evidence was 'prejudicial' in the sense referred to by the majority in HCF.

Were any of the messages in exhibit 7.2 technically inadmissible?

1. The messages in exhibit 7.2 commenced with communications that were capable of supporting the complainant's oral evidence that she had made several unsuccessful attempts to call AP during the very early hours of 14 July 2020, and that she had then sent AP one message in which she asked her to answer her telephone. The appellant does not suggest that these communications were inadmissible.
2. Exhibit 7.2 also demonstrates that after AP woke up on the morning of 14 July 2020, and then responded to the complainant's message in which she asked AP to answer her telephone, there then followed a relatively lengthy exchange of messages. As can be seen from that exchange, the complainant's initial messages were relatively cryptic, as she only hinted at what she later alleged had happened. However, under some pressure from AP to provide more details, the complainant eventually responded with a message that said:

Please don't tell anyone, I don't ever want anyone to know... You were right before just not entirely right... I did sleep with someone but I don't want to call it that because I wasn't really aware of it. I was asleep when it started and then it got scary and I didn't know what to do

1. A short while later, after AP had sent a series of messages in which she asked a number of questions and made several of her own observations, the complainant responded with:

I was asleep when it started and then I didn't really know how to get away because I was being held by my throat, I just had tears streaming down my face the whole time and then when I did get away I locked myself in the bathroom and was just crying in the shower and he was going to kick the door down so I got dressed and went back to sleep and then it happened again and I was shaking and crying.

1. The complainant and AP then engaged in a further lengthy exchange of messages. As we apprehend it, with some isolated exceptions, the focus of the appellant's complaint in the context of grounds 1 and 5 is on the messages that were sent by AP during this further series of messages.
2. On the assumption that all the complainant's messages were admissible, it is difficult to see how any of AP's messages that formed part of this further exchange were relevant to any fact in issue at the appellant's trial. In that context it must be remembered that the only basis on which the respondent submits that AP's messages were relevant is that they provided necessary context for the complainant's messages, and in particular the messages that were relied on as evidence of recent complaint. The respondent also argues that those messages explained how that complaint emerged.
3. For the purposes of this appeal, it is unnecessary to give detailed consideration to all of AP's messages that were sent during this further exchange. It is only necessary to focus on the messages that demonstrate that after AP attempted to guess who had engaged in sexual activity with the complainant, and then, having narrowed the field down to two men, one of whom was the appellant, AP offered some express and implied opinions about the appellant's character. In that regard, AP's messages included comments such as:
   • 'The only person I know that low is [redacted] ... If not him it must be smallsy [sic]?'.[20]
   • 'Why do you hang around them people [sic]'.
   • 'Some people are pieces of shit'.
   • '[The appellant and another male were] the only people [she] can think of'.
   • 'What a low piece of crap'.
   • 'All these woman [sic] protect the reputation of these pieces of shits who deserve to go to jail'.
   • 'I know it's smallsy ... Who else [sic]?'.
   • 'It's smallsy? ... Fuck him! ... I'm sorry I just can't think of anyone I trust less'.
   • '[Y]our choice in friends bothers me so much'.
4. Further, although AP had not witnessed any of the sexual activity that had taken place at the complainant's home, in several messages she offered her opinion about what she believed had occurred by describing it as 'rape'.
5. In our view, and contrary to the submissions made on behalf of the respondent, none of AP's messages in this further exchange were admissible. None of them were required to provide necessary context for any of the complainant's messages. On the assumption that the complainant's messages that were sent during this part of the exchange were themselves relevant and admissible, those messages were readily understandable without the benefit of AP's messages. The jury did not need the assistance of AP's opinions, including her opinions about the appellant's character and reputation, in order to understand any of the complainant's messages. Further, given that the complainant had already told AP what she alleged had occurred earlier in the exchange of messages, the jury did not require AP's later messages to appreciate how the complaint emerged. The particular messages to which we have referred at [58] of these reasons were not capable of rationally affecting the jury's assessment of any fact in issue (that is, of affecting that assessment in any manner other than one that was merely prejudicial: see [76]). They were irrelevant and therefore inadmissible.
6. It is significant to note that the prosecutor who appeared at the trial initially intended to tender a version of what became exhibit 7.2, in which almost all of AP's messages to which we have referred had been redacted. It can be inferred that the prosecutor had decided to redact AP's messages after he had given consideration to the question of whether those messages were relevant, and with a view to avoiding any potential prejudice to the appellant. We also note that, in the absence of the jury, the prosecutor took the prescient step of having the previously agreed redacted version of the messages marked for identification, no doubt so that the proposed redactions would be available in the event of an appeal.
7. Given our conclusion that AP's messages to which we have referred were inadmissible, it is unnecessary for us to deal with the appellant's alternative submission, namely, that the trial judge should have exercised his discretion to exclude those messages because their probative value was outweighed by the danger of unfair prejudice.
8. As technically inadmissible evidence was adduced without objection, the question that then arises is whether there could be any reasonable explanation for counsel's decision not to object to that evidence.

Did counsel make an apparently rational decision not to object to exhibit 7.2?

1. Earlier in these reasons we set out the circumstances in which exhibit 7.2 came to be tendered as part of the prosecution case at the appellant's trial. Although it was for the prosecutor to decide how to present the State's case, and it was open to him to adduce the messages between the complainant and AP as he saw fit, it is curious that he did not at least have the complainant identify the relevant messages during her evidence‑in‑chief. In any event, the prosecutor clearly believed that an agreement had been reached with the appellant's counsel that the messages could be adduced in evidence as part of the prosecution case, in a redacted form, and we have no reason to doubt that he was justified in that belief.
2. As we have said earlier in these reasons, when the prosecutor eventually sought to have the complainant identify the redacted messages in re‑examination, the appellant's counsel raised an objection.[21] That objection was without merit. The intended re‑examination was unobjectionable because the prosecutor was entitled to clarify the cross‑examination of the complainant that might otherwise have suggested to the jury that the complainant and AP had only exchanged a limited number of messages. Unfortunately, however, the prosecutor's attempt to re‑examine the complainant in this way set in motion a lengthy and often confusing debate between the trial judge and both counsel about whether it was open to the prosecutor to tender all of the redacted messages in the course of that re‑examination.
3. Ultimately, the trial judge made rulings that he clearly hoped would ensure the fairness of the trial.[22] By those rulings his Honour intended that the complainant would be 're‑called' so that she could be asked further questions about the redacted messages as part of her evidence‑in‑chief. His Honour also intended that defence counsel would then have the opportunity to cross-examine the complainant about those messages. The appellant makes no complaint about any of those rulings.
4. What is significant, however, is that after the trial judge indicated that he intended to have the complainant recalled, defence counsel obtained a short adjournment so that he could reconsider the previously agreed redactions that had been made to the messages, and so that he could obtain the appellant's instructions. When the trial resumed, defence counsel informed the court, in effect, that in light of the trial judge's rulings the defence no longer agreed to the redactions and instead wanted the messages that had been exchanged between the complainant and AP tendered in full.[23]
5. Accordingly, although the trial judge had over-ruled counsel's objection to the re-examination of the complainant and had made a ruling that the appellant's counsel did not agree with, the unredacted messages (including the messages we have found were inadmissible) were ultimately tendered as exhibit 7.2 because of a deliberate decision taken by the appellant's counsel. His Honour's ruling did not require the tender of the unredacted messages. Further, this was not a situation in which evidence was wrongly admitted because of an erroneous ruling made by the trial judge, or because counsel merely failed to object to inadmissible evidence. On the contrary, having had the benefit of time to consider his position, counsel effectively insisted that the prosecution adduce evidence of all the messages that passed between the complainant and AP on 14 July 2020.
6. In the respondent's answer it was submitted that defence counsel's decision that the unredacted messages be tendered by the prosecution could be rationalised on the basis that he was pursuing a forensic advantage for the appellant. In that regard it was submitted that it was open to defence counsel to ultimately submit to the jury that the appellant and the complainant had engaged in consensual sexual activity while intoxicated and that, by the time the complainant began exchanging messages with AP, she had started to regret what had occurred. The respondent submits that in that context it was open to defence counsel to argue that the fact that the complainant made a complaint, as well as the content of her disclosures to AP, may have been shaped or influenced by AP's messages. It was argued that, on this basis, it was open to defence counsel to contend that if the jury found that the complainant had made a recent complaint, then that may not have in fact bolstered the complainant's credibility.
7. However, we are not persuaded that this is a reasonable explanation for counsel's decision to require the prosecution to tender the unredacted and inadmissible messages. The complainant had sent messages to AP in which she communicated that she had engaged in sexual activity without her consent well before AP sent her the first of the messages that we have concluded were inadmissible. The inadmissible messages that were sent by AP at a later point in time were therefore not logically capable of 'shaping' the alleged complaints made by the complainant.
8. During the hearing of the appeal, other possible explanations for defence counsel's decision to insist that the unredacted messages be tendered were explored with counsel. It was suggested that defence counsel may have required all of the messages to be tendered in order to make a submission, which he ultimately did make in his closing address to the jury, that the complainant never sent a message to AP saying 'come and get me'.[24] However, that submission appeared to have been made by counsel with a view to inviting the jury to disbelieve a specific aspect of the complainant's evidence where she said that she had called AP while she was in the bathroom, after she had been sexually assaulted and while the appellant was still in her house, because she 'wanted [AP] to come and get me'.[25] The inadmissible messages that were sent by AP after the appellant had left could not have assisted that argument.
9. It was also suggested that counsel may have required all the messages to be put before the jury to demonstrate that AP was biased against the appellant. However, we do not think that this provides a reasonable explanation for counsel's decision either. In her evidence, AP simply identified the messages that she had exchanged with the complainant, then gave some relatively brief evidence about a conversation she had with the complainant on the afternoon of 14 July 2020. We infer that this is the nature of the evidence that defence counsel was expecting she would give. There could have been no forensic advantage in establishing that AP was biased against the appellant.
10. Although we are required to determine this issue objectively, it is notable that AP, who gave evidence almost immediately after exhibit 7.2 had been tendered, was not cross‑examined, and it was never suggested to her that she was biased against the appellant, and no similar suggestion was made in counsel's closing address.
11. As can be seen from the messages we have reproduced at [58] of these reasons, a significant number of AP's messages were prejudicial to the appellant. In some of those messages, AP expressed very negative opinions about the appellant and his character. In other messages, negative opinions can be inferred.
12. After the complainant and AP had exchanged a series of messages which ended when the complainant effectively conceded that it was a 'work guy', AP said, 'Knew it ... The only person I know that low is [redacted] ... If not him it must be smallsy?'. In those messages, it can readily be inferred that AP, who had known the appellant for a number of years as a work colleague,[26] believed that the appellant was the type of person who would be 'low' enough to have done what the complainant told her had happened. Then, a short while later and in a similar vein, AP said, 'Was it smallsy? ... Or [redacted] ... They're the only people I can think of', and later still, 'I know it's smallsy ... Who else?'. Then, after AP had evidently confirmed in her own mind that the appellant had engaged in sexual activity with the complainant without her consent, she sent messages to the complainant that read, 'I'm sorry I just can't think of anyone I trust less' and 'your choice in friends bothers me so much'.
13. In our view, there is a real danger that the jury may have impermissibly used the various opinions that AP expressed about the appellant in reasoning towards guilt. In that regard, the message 'I'm sorry I just can't think of anyone I trust less' was particularly prejudicial to the appellant, and unfairly so. By the time that message was sent, AP clearly believed that the complainant had been sexually assaulted by the appellant. Accordingly, and where it might be supposed that AP was in a good position to provide an accurate insight into the appellant's character, she having worked with him at a remote mine site, there was a real and perceptible risk that this evidence may have led the jury to have impermissibly concluded that the appellant was the type of person to carry out a sexual assault.
14. The highly prejudicial nature of the inadmissible messages sent by AP reinforces our conclusion that, considered objectively, counsel's decision to insist on the tender of the unredacted messages was not for a rational forensic reason or purpose.

1. We are of the view that the tender in evidence of AP's inadmissible messages was 'prejudicial' to the appellant, in the sense explained by the majority in HCF. In circumstances in which there was, as we have found, a perceptible risk that the jury may have impermissibly reasoned that the appellant was the type of person to carry out a sexual assault, it follows that the inadmissible messages sent by AP were capable of affecting the result of the trial. There was a real chance that this inadmissible evidence affected the verdicts.
2. For these reasons we concluded that ground 1 should be allowed.

1. Given our conclusion in relation to ground 1 it is to be expected that the parties will not seek to adduce the evidence that we have found was technically inadmissible at any retrial. Accordingly, it is strictly unnecessary for us to deal with ground 5 as it is highly unlikely that the judge who presides at the appellant's retrial will require this court's guidance in formulating the directions that would otherwise have been required. It is sufficient for us to say that notwithstanding counsel's forensic decision to require the prosecution to tender all the messages that had been exchanged between the complainant and AP, the trial judge had a duty to ensure that the appellant's trial was fair.[27]
2. As we have already mentioned, defence counsel did not cross‑examine either the complainant or AP about the messages they had exchanged. In light of defence counsel's decision to insist that the prosecution tender all of their messages in an unredacted form, it was extraordinary that counsel chose not to cross-examine AP at all. It is also surprising that counsel's closing address did not expose any forensic advantage sought to be gained, or any forensic disadvantage sought to be avoided, by the evidence of the unredacted messages. In those circumstances, and with respect, the trial judge should have been alive to the need to give the jury clear directions to avoid the risk of a miscarriage of justice. Such directions would have at least instructed the jury that AP's messages were hearsay that must not be used as evidence of the truth of anything that AP had asserted in them. Further, the jury should have been instructed in clear terms that to the extent that AP had expressed any opinions about the appellant, those opinions were irrelevant and they could not be used by the jury in any way. In our view the three occasions (to which we have referred at [40]) on which the trial judge interrupted the evidence of AP to tell the jury about the use to which only a limited number of her messages could not be put, were insufficient.
3. It follows that we agree with the submissions that were made on behalf of the appellant. A miscarriage of justice was occasioned by the trial judge's failure to adequately instruct the jury about the uses to which evidence of AP's messages must not be put. That failure was prejudicial to the appellant in the sense referred to by a majority of the High Court in HCF. In the absence of a direction instructing the jury that they could not use AP's messages as evidence of the truth of any of her assertions, and in the absence of a direction warning the jury that AP's opinions, including her opinions about the appellant, were irrelevant, there was a real chance that the jury's verdicts were affected by the content of AP's messages.
4. Before concluding, it should be noted that by ground 1 the appellant only sought to argue that a miscarriage of justice was occasioned by the admission into evidence of AP's messages. Further, ground 5 was only concerned with the absence of directions that were required in order to avoid a perceptible risk of a miscarriage of justice relating to AP's messages. However, the appellant did not contend that any of the complainant's messages were inadmissible, and no issue was taken with the directions that were given to the jury about those messages. For the avoidance of doubt, nothing that we have said in these reasons should be taken as amounting to a conclusion that any or all the complainant's messages are or will be admissible at any retrial. Further, it does not follow from what we have said that all of AP's messages are inadmissible. These issues are best left to the trial judge who will preside at the re-trial of this matter to determine in the light of the issues that arise at that trial, and after having heard from both parties.

Ground 2 ‑ the trial judge's directions regarding appellant's apology

1. Shortly after 10.00 am on the morning after the appellant was alleged to have sexually assaulted the complainant, the appellant sent a text message (Text Message) to the complainant in the following terms:

OMG I'm so sorry for last night and sorry for the mess. I'm just sorry, I hate gin [laughing emoji] please don't hate me!!!

1. In his opening address, the prosecutor told the jury that the State's case was that the Text Message was 'effectively an apology for what happened the night before and the State says that's an apology for what he did to her'.[28] The Text Message was tendered towards the end of the complainant's evidence‑in‑chief, and it formed part of what became exhibit 6.
2. In his evidence‑in‑chief the appellant was asked questions about the Text Message, and the other text messages he sent to the complainant after he had left her home. In relation to the Text Message the appellant gave evidence that as he left the complainant's house, he felt bad that he had made a mess with cigarettes, alcohol, and broken glass, and so when he got home, he sent her a message to apologise.[29]
3. The appellant was also asked questions about the Text Message in cross-examination. In a relatively short passage of cross‑examination, the prosecutor suggested to the appellant that the part of the Text Message which said 'sorry for last night' amounted to an apology for having sexually penetrated the complainant without her consent. However, the appellant denied this suggestion and maintained that he was apologising for making and then leaving a mess at the complainant's house.[30]
4. During his closing address, the prosecutor arranged for a copy of the Text Message to be placed onto a document camera so that it could be seen by the jury. The prosecutor then suggested to the jury that the Text Message confirmed the complainant's evidence that the appellant appeared drunk and that he had knocked over some glasses and broke them. However, the prosecutor also suggested to the jury that the appellant was 'clearly apologising for more than just the mess', and that he was 'apologising for ... the sexual assault that occurred that evening'.[31]
5. Defence counsel made very brief reference to the Text Message in his address. While he accepted that the message was an apology, he simply argued that it was 'not for having committed outrageous events against [the complainant]'.[32]
6. The trial judge referred to the Text Message in his directions to the jury. However, his directions about it were given almost in passing, when he said:

The State distinguishes between those two apologise [sic], the defence says no, they're really just one apology for something which is now regretted, that is, the consensual sex.[33]

1. His Honour's reference to 'two apologies' appears to have been to the prosecutor's acceptance, in his closing address, that the Text Message at least included an apology for the mess that the appellant had left at the complainant's home. However, it is less clear why his Honour told the jury that the defence case was that the message was an apology for consensual sex that was later regretted, as that was inaccurate. Somewhat curiously, almost immediately after the trial judge had explained the defence case in this way, he said that the defence case was that the Text Message was an apology for the mess left at the complainant's home:

As I've mentioned his texts later that day were to apologise for the mess, the cigarette ash, the broken glass and perhaps something having occurred which they both regretted, but not because of any offending'[34]

1. Trial counsel did not take any exception to the trial judge's directions about the Text Message. Importantly, defence counsel did not at any time suggest that his Honour should give a direction of the sort that the appellant now suggests ought to have been given.

1. By ground 2 the appellant complains about the adequacy of the trial judge's directions about the Text Message. The appellant accepts that the Text Message contains an apology. However, he submits that the message is ambiguous and that it is not clear what the apology relates to. In oral submissions at the hearing of the appeal, counsel said that three possible interpretations of the Text Message were put to the jury. The first interpretation was the one relied on by the prosecution, which was that it constituted an apology for, and therefore an admission concerning, a sexual assault that had occurred at the complainant's home. The second interpretation was the one offered by the appellant in his evidence, namely, that it was an apology because he had made and left a mess at the complainant's home. The third interpretation was the one erroneously referred to by the trial judge in his summing up, namely, that it was an apology for consensual sexual activity that was later regretted.
2. It is submitted that, in circumstances where the Text Message was a 'critical link'[35] in the prosecution case, it was incumbent on the trial judge to direct the jury that they needed to be satisfied beyond reasonable doubt that the Text Message was intended by the appellant to be an admission that he had engaged in the offending conduct charged in the indictment. The appellant contends that such a direction was required to be given in the circumstances of this case because of what was said by the plurality in Burns v The Queen in the following frequently cited passage:[36]

It is clear and elementary law that once a confessional statement has been admitted into evidence its weight and probative value are matters for the jury. It is for the jury to determine whether the alleged confession was made and whether it was true in whole or in part. Unless the jury are satisfied that so much of a confession as tends to show the guilt of the accused was true they cannot treat it as a proof of guilt. However, a confessional statement may be only one piece of the evidence against the accused and the jury are entitled to consider all the relevant evidence together in deciding upon their verdict. The nature of the direction necessary to be given properly to instruct the jury as to the use of evidence of an alleged confession must depend on all the circumstances of the case. 'There is no rule of law or of practice which requires the Judge to caution the jury against acting on such evidence or which prescribes any measure of the comment which it is his duty to make upon it.' (Ross v The King [[1922] HCA 4;] [1922] HCA 4; (1922) 30 CLR 246, at p 255). In some cases it may be clear or undisputed that a confession was made and the crucial question may be whether it has any probative value: for example, it may be suggested that the confession had no weight because it was extracted by force or given under a mistake or because the accused when making it was ill in body or disturbed in mind. In a case such as the present, where the accused person alleges that the confession which he is said to have made is a complete concoction, a reasonable jury, once satisfied that the confession was made, might readily be satisfied also that it was true. In such a case the absence of a specific warning to the jury that they should not act upon the confession unless they were satisfied of its truth might be of less significance than in a case where it was not in issue that the statement was made, but it was claimed that it was untrue.

1. In support of his submissions, the appellant relied on the decisions of Cotic v The Queen[37] and Magill v The Queen.[38]
2. In Cotic, the prosecution case was that the accused had in effect, admitted his guilt in a video interview. At the trial it was conceded by the accused that he had made a confession. However, he gave evidence, and his counsel cross-examined witnesses, on the basis that the confession was false and that he had made it to obtain bail. Wallwork J,[39] with whom Kennedy and Miller JJ agreed, referred to Burns, and also to a series of other cases[40] that were decided after Burns, in which it had been held that a direction should have been given in the particular circumstances of those cases that before the jury could use evidence of a confessional nature they had to be satisfied beyond a reasonable doubt that it was, and was intended to be, a true acknowledgment of the accused's guilt of the crime charged. Based on those authorities, it was held that the trial judge had erred in not giving such a direction.
3. In Magill, the accused was convicted of one count of rape and one charge of supplying a drug of dependence to a child. The day after the offences were alleged to have been committed a text message that was said to have been sent by the accused, and which contained an apology, was sent to the complainant. The text message, which was considered to have been an important component of the prosecution case, was ambiguous. However, if it had been sent by the accused it could be regarded as an admission that there had been sexual contact between himself and the complainant. By a majority, the Victorian Court of Appeal held that the trial judge erred in failing to direct the jury that they were required to be satisfied beyond reasonable doubt that the accused had intended to acknowledge that he had sexual intercourse with the complainant without her consent, and that the confession was true.
4. At the hearing of this appeal, in response to a question from a member of the coram, the appellant's counsel appeared to submit that in addition to giving a direction contemplated by Burns, the trial judge was also obliged to instruct the jury that the Text Message could not be used in and of itself to prove any of the specific counts of sexual penetration that were in the indictment.
5. The appellant accepts that his counsel did not ask the trial judge to give any of those directions. Nonetheless, it was submitted that the trial judge's failure to give those directions was a serious error that justifies the quashing of the convictions.

1. On behalf of the respondent, it was submitted that directions of the sort contended for by the appellant were not required. It was submitted that the real question for the jury to determine was whether the Text Message amounted to an admission that the appellant had knowingly engaged in non-consensual sexual activity with the complainant, or whether it was an apology about the state of the complainant's home. If the message was an admission, then it was obvious that it could not be sufficient proof of any one or more of the discrete offences with which the appellant had been charged, but it could provide support for the complainant's own evidence about those offences.
2. It was argued that there was no risk that the jury may have failed to appreciate that they could not use the text message to support the complainant's evidence unless they were satisfied that it amounted to an admission that the appellant had knowingly engaged in non‑consensual sexual activity with the complainant. It was further submitted that it was not necessary for the jury to be satisfied beyond reasonable doubt that the text message was an admission of such conduct because it was not a complete confession and because it was only one piece of evidence that the jury were entitled to consider together with the rest of the evidence. The respondent also relied on the fact that trial counsel did not seek any further directions about the Text Message and submitted that this is a strong reason to conclude that no miscarriage of justice was occasioned.
3. Counsel for the respondent referred to the decision of Michael v The State of Western Australia.[41] In that case the critical issue for the jury to determine was whether the accused had sprayed the complainant with pepper spray before or after the complainant had thrown him to the ground. In a video record of interview with police the accused had made an admission that he might have sprayed the complainant with pepper spray before he had been thrown to the ground. However, at trial, while the accused agreed that he had made the admission, he denied that this is in fact what had occurred. In Michael, it was argued on appeal that the trial judge was required to direct the jury not to act on the admission unless satisfied beyond reasonable doubt that it was truthful and accurate, relying largely on what had been said in Cotic. Counsel for the respondent submitted that in Michael, it was held that as the accused's statement to police in the video record of interview was not a full confession, a direction of the sort now contended for was not required in that case.
4. The respondent also referred to some more recent authorities in which it was argued that a warning was required in circumstances in which the prosecution relied on evidence of an admission. We were referred to two decisions of the New South Wales Court of Appeal, Hewitt v The Queen[42] and Flood‑Smith v The Queen,[43] in which grounds of appeal contending that directions of the sort that were held to have been required in cases such as Magill were not upheld in the circumstances of those cases.
5. In Hewitt, the prosecution relied on a text message and a lawfully intercepted telephone call as evidence of admissions that supported the complainant's evidence that the accused had indecently assaulted her, and that he had sexual intercourse with her without consent. At [76], Payne JA accepted that a direction of the type referred to in Magill, and in the cases which his Honour cited at [72] of his judgment, was not required as a matter of law in every case in which there is a dispute about whether a confession of admission is truthful and accurate. His Honour was ultimately persuaded that there was no need for that type of direction in the circumstances of that case, having regard to the fact that no direction was sought at trial, and to the fact that one had not even been formulated on appeal.[44] He also referred to the fact that experienced trial counsel may not have sought a direction for tactical reasons.[45]
6. In Flood-Smith, the prosecution relied on several oral statements that were alleged to have been made by the appellant, namely, 'I didn't mean for none of this to happen', 'I don't know what happened, I don't know what I've done', and 'I don't know what I've done'.[46] The prosecutor only made brief reference to those statements in her closing address, defence counsel did not deal with them other than to suggest that they were understandable, and the trial judge only referred to them when summarising the prosecution case. The appellant submitted, on appeal, that the trial judge erred in failing to direct the jury that they could not act on any admission unless they were satisfied that the words were intended to be an admission of guilt of the offences charged and that they did not bear some other innocent meaning. It was held that the absence of the direction contended for did not constitute a miscarriage of justice because no submission was made at trial that the trial judge should direct the jury in those terms. It was also held that the direction contended for was unnecessary because, as a matter of common sense, if the jury did not think that the statement amounted to an acceptance of guilt, then it would not use it as such. Accordingly, the court held that there was no risk that the jury misunderstood what it was required to do.[47]
7. The respondent also referred to R v Booth,[48] a case to which we will refer later in these reasons.

1. As we have already observed, the appellant's primary contention, which is said to be based on what was said by the High Court in Burns, is that there was a miscarriage of justice because the trial judge did not direct the jury that they needed to be satisfied beyond reasonable doubt that the Text Message was intended by the appellant to be an admission that he had engaged in the charged conduct, and that it was a true admission, before it could be used by them in considering whether the prosecution had proved that he was guilty of any one or more of the offences charged.
2. It was authoritatively said in Burns that a warning may be required in circumstances in which the prosecution relies on evidence of confessional statements made by an accused.[49] However, it is important to appreciate that the High Court also said, by reference to the earlier decision of Ross v The King,[50] that there is no rule of law or practice that requires a warning to be given in every case in which the prosecution relies on such evidence, or which prescribes the content of any such warning if one is needed. Further, it was said in Burns that the nature and content of any direction that may be required will necessarily depend on the circumstances of each case.
3. As there is no rule that requires a trial judge to give a direction or warning whenever the prosecution relies on evidence that an accused has made an admission or a confession, including a direction of the nature and content that the appellant now submits should have been given at his trial, the critical question is whether the particular circumstances of this case were such that a direction of that type was necessary to avoid a perceptible risk of a miscarriage of justice. As this court said in DLS v The State of Western Australia:[51]

The general principle is that a trial judge should give the jury a warning whenever a warning is necessary 'to avoid a perceptible risk of miscarriage of justice arising from the circumstances of the case'. The 'possibility of a miscarriage of justice' is both the occasion for giving a warning to the jury and the determinant of its content.[52]

1. There was no question raised at the appellant's trial that he was the author of the Text Message. It was also not in dispute that what he said in that message was true. The only issue for the jury to determine was what the appellant meant by the words that he had used in the Text Message. More specifically, the only issue concerning that message was what the appellant meant when he said, 'I'm so sorry for last night'. In that regard, there was a very clear distinction drawn between the respective positions taken by the parties. The prosecution case was that those words amounted to an apology for, and therefore an implied admission about, a sexual assault that had taken place at the complainant's home. The defence case, on the other hand, was that the appellant was just apologising for having made and then leaving a mess at the complainant's home.
2. In those circumstances there was no appreciable risk that, in the absence of a warning that the jury may somehow misapprehend the issue that they were required to determine. It would have been obvious to the jury that they could not use the Text Message as evidence of the appellant's guilt unless they were first satisfied that it amounted to an apology for, and therefore an admission of, having knowingly engaged in sexual activity without the complainant's consent. If the jury concluded that the Text Message amounted to such an admission, then it would also have been obvious that it was not capable of being used as an admission of any of the specific offences charged in the indictment. The two verdicts of not guilty that were returned by the jury amply support that reasoning.
3. The trial judge's initial erroneous summary of the defence case about the meaning to be ascribed to the Text Message, namely, that it was an apology for consensual sex that was later regretted, does not affect those conclusions. Even if the jury were of the view that this was the correct interpretation of the words that were used in the Text Message, then that could only have been to the appellant's advantage. On that interpretation the Text Message could never have been regarded by the jury as amounting to a confession or admission that the appellant had engaged in any non-consensual sexual activity with the complainant.
4. The question that then arises is whether, in order to avoid a perceptible risk of a miscarriage of justice, the trial judge was required to direct the jury that before they could use the Text Message as an admission, they had to be satisfied beyond reasonable doubt that it was intended to be a truthful admission that the appellant was guilty of the offending conduct charged in the indictment.
5. There is nothing in Burns that expressly suggests that, even if a warning is considered necessary in circumstances in which the prosecution relies on evidence of confessional statements, the jury must also be instructed as part of that warning that they can only act on the confession if they are satisfied beyond reasonable doubt that it was intended by the accused to be an admission that they had engaged in the charged conduct, and that it was true.
6. It appears from the reasons of Priest JA in Magill, that such a direction is routinely given to juries in Victoria where an admission or confession forms an important part of a prosecution case. Indeed, his Honour referred to several previous cases decided in that jurisdiction in which a miscarriage of justice was found to have occurred because a trial judge failed to give such a direction.[53] In Booth, the Queensland Court of Appeal observed that '[s]uch a direction has been described as "conventional" or "standard" in Victoria for "cases where the Crown relies in part on statements, made by way of admission or confession, to support its case"'.[54] Similarly, in R v Eastman (No 50),[55] Kellam AJ noted, in a brief but useful summary of the law, that:

when a 'Burns direction' is given juries are often directed that they must not act on evidence of a confession or admissions unless they are satisfied beyond reasonable doubt that it was made and was true. However, judges are not obliged to give a Burns direction in every case in which evidence of a confession or admission is admitted (see Burns at 261 and 269, R v Mitchell [2006] VSCA 289, R v Lewis [2000] VSCA 140; 1 VR 290 and R v Brooks [1999] VSCA 5; 103 A Crim R 234). However, and certainly in Victoria, a Burns direction is generally given in relation to all confessions and admissions, notwithstanding that the confession or admission does not amount to an indispensable intermediate fact. This is acknowledged to be an exception to the general 'Shepherd principles' (see Shepherd v The Queen [[1990] HCA 56;] [1990] HCA 56; (1990) 170 CLR 573)) but is seen to be desirable for 'prudential reasons' (see R v Kotzmann [1999] VR 123 per Callaway JA at 130 and R v Franklin [2001] VSCA 79; 3 VR 9 at 43 per Ormiston JA).

1. In our view, Kellam AJ's reference to the decision of the High Court in Shepherd is significant[56]. Drawing on well‑known passages taken from the judgment of Dawson J in Shepherd, it is trite to observe that the prosecution bears the onus of proving all the elements of an offence beyond reasonable doubt. However, it is well‑established that other than intermediate facts that are an indispensable step on the way to an inference of guilt, which must also be proved beyond reasonable doubt, the prosecution is not required to prove every fact, or every piece of evidence, to the same standard of proof. Accordingly, and with respect, we have found it difficult to understand why it might be concluded that in every case in which the prosecution relies on an admission or a confession, it should be necessary to instruct a jury that before relying on such evidence it must be satisfied to the criminal standard that it was made by the accused and that it was true. We agree, in that regard, with the following observations that were made by Neave JA in Magill:

It cannot be the case that a Burns direction is required whenever the Crown relies on an admission to corroborate other evidence against the accused. That requirement would mean, for example, that a Burns direction would be required if the Crown alleged that an accused had admitted being in the relevant place around the time that a crime was committed.[57] (citations omitted)

1. Applying the principles in Shepherd, it may be accepted that in circumstances in which a confession is the only evidence relied on by the prosecution to prove the guilt of an accused, or to prove an element of an offence, or to prove a fact that is otherwise an indispensable link in a chain of evidence necessary to establish guilt, a direction that the jury must be satisfied beyond reasonable doubt that it was made by the accused and that it was intended to be a truthful admission will be required. This is consistent with what was said by Deane, Dawson, and Gaudron JJ in Edwards v The Queen, the seminal case concerning the directions that must be given to juries when invited to use a lie told by an accused as an implied admission of guilt, when they cited Shepherd and held that:[58]

Although guilt must ultimately be proved beyond all reasonable doubt, an alleged admission constituted by the telling of a lie may be considered together with the other evidence and for that purpose does not have to be proved to any particular standard of proof. It may be considered together with the other evidence which as a whole must establish guilt beyond reasonable doubt if the accused is to be convicted. If the lie said to constitute the admission is the only evidence against the accused or is an indispensable link in a chain of evidence necessary to prove guilt, then the lie and its character as an admission against interest must be proved beyond reasonable doubt before the jury may conclude that the accused is guilty. But ordinarily a lie will form part of the body of evidence to be considered by the jury in reaching their conclusion according to the required standard of proof. The jury do not have to conclude that the accused is guilty beyond reasonable doubt in order to accept that a lie told by him exhibits a consciousness of guilt. They may accept that evidence without applying any particular standard of proof and conclude that, when they consider it together with the other evidence, the accused is or is not guilty beyond reasonable doubt.

1. There is no reason in principle why a different approach should be adopted where the prosecution relies on evidence of an express, or any other form of implied, admission of guilt.
2. It may also be generally accepted that where evidence of a confession is a significant component of a prosecution case, the particular circumstances of the case may require such a direction to avoid a miscarriage of justice. This is consistent with the following passage taken from Burns:

In a case such as the present, where the accused person alleges that the confession which he is said to have made is a complete concoction, a reasonable jury, once satisfied that the confession was made, might readily be satisfied also that it was true. In such a case the absence of a specific warning to the jury that they should not act upon the confession unless they were satisfied of its truth might be of less significance than in a case where it was not in issue that the statement was made, but it was claimed that it was untrue.[59] (emphasis added)

1. Further, as Charles JA noted in R v Green:[60]

It is repeatedly emphasised in [the] authorities that the need for the jury to be directed that before they can rely on confessional statements they must be satisfied as to the truth and accuracy of those statements beyond reasonable doubt comes from the danger that the jury may not recognise that although these statements were made by the accused, it does not follow that they must be truthful; and that it is more important to give the direction where the accused does not dispute making the statements but says they were not true. (emphasis added)

1. In our view, any risk of a miscarriage of justice that may arise from the possibility that a jury may not appreciate that a confession or an admission made by an accused may not be truthful, which then requires a direction to be given to a jury that they must be satisfied beyond reasonable doubt that the confession or admission was intended to be truthful, is only likely to occur where there is evidence that an accused has made a full confession to an offence charged, or where there is evidence of an admission of a fact that must be proved to the criminal standard. The need for such a direction is likely to be more acute in circumstances in which there is no dispute that such a confession or admission was made, but where there is an issue about whether it is truthful and/or intended to have been an admission.
2. This is consistent with the reasons of Steytler P in Michael, with whom McLure JA and Miller AJA agreed. In that case it was concluded that the direction contended for, namely, that the jury was not to act on the admission relied on unless satisfied beyond reasonable doubt that it was truthful and accurate, was not required. In reaching that conclusion, Steytler P distinguished Cotic, as well as the cases of Burns, Pereira, D'Orta‑Ekenaike, and Robertson, which had all been referred to in Cotic, on the basis that in those cases there was evidence that the accused had made a full confession of guilt, the making of the confession or its truth was disputed.
3. It might be argued that the text message in Magill, did not, on its face, amount to a full confession of the offence of rape. However, that text message was accepted to have been a 'major plank in the Crown case'. In that regard, the reasons of Neave JA in Magill reveal that the accused had only been charged with only one count of rape, and it had been put to the accused in cross-examination that he had sent a text message in which, it was suggested, he had admitted that he had raped the complainant.[61] Further, in the directions that were given to the jury the trial judge reiterated that the prosecution case, reflected by the cross‑examination, was that the accused was the author of the message, and that it amounted to an admission that he had engaged in 'sexual misconduct' with the complainant.[62] In those circumstances, and where the text message was ambiguous and therefore open to alternative interpretations, both Buchanan AP and Priest JA concluded that the trial judge erred in failing to direct the jury that they were required to be satisfied beyond doubt that by the text message the appellant intended to acknowledge that he had sexual intercourse with the complainant without her consent, and that such acknowledgement was true.[63]
4. In our view, given the accused in Magill was charged with only one offence of rape, and the jury would have readily appreciated that the prosecution case included a contention that the text message amounted to an admission that the appellant had done all the acts constituting that offence, it is understandable why it might be concluded that such a direction would be required in the particular circumstances of that case.
5. As we have already observed, the issue in this case was what the appellant meant by the words 'I'm so sorry for last night' in the Text Message. The prosecution did not at any stage suggest that the Text Message amounted to a full confession to any of the offences, or that it was an admission of any one or more of the elements of those offences. It also could not be sensibly concluded that any findings of fact made on the basis of the Text Message amounted to intermediate facts being a 'discrete step which must be proven before addressing the next step in the reasoning process towards the ultimate inference of guilt'.[64] Further, there was no perceptible risk that, contrary to the way in which the parties had conducted the trial, the jury may have used the Text Message as a full confession or as an admission of any of the elements of any of the offences charged. The Text Message was only one of a relatively large number of electronic messages that were tendered as part of the prosecution case. Little more than passing reference was made to it during course of the trial. Unlike the situation in Magill and in Cotic, the Text Message could hardly be described as a 'major plank' in the prosecution case.
6. Accordingly, we are of the view that in the circumstances of this case the appellant has failed to establish that there was a miscarriage of justice. There was no need for the trial judge, in order to ensure a fair trial, to warn the jury that they needed to be satisfied, beyond reasonable doubt or otherwise, that the Text Message constituted an admission of guilt to some or all the alleged criminal conduct. A direction of that nature was not required to avoid a perceptible risk of a miscarriage of justice in this case.
7. Our conclusion that the appellant has failed to establish that a miscarriage of justice was occasioned is reinforced by the fact that the appellant's experienced trial counsel, who demonstrated on several occasions during the trial that he was more than capable of making known his views about matters that he perceived were not in client's interest, and who was absorbed in the trial, did not at any stage ask the trial judge to give the direction the appellant now says should have been given. As this court recently said in Wilson v The State of Western Australia:[65]

The absence of objection to a judge's directions is not fatal to reliance on an error if it occasioned a miscarriage of justice, but it may tend against a finding that a perceptible risk of a miscarriage of justice was present at the trial. (citations omitted)

1. In our view, counsel's failure to seek any further directions about the Text Message is in fact capable of being objectively explained on the basis that he was deliberately pursuing a forensic advantage, or that he was deliberately avoiding a forensic disadvantage. In that regard we again note that the Text Message attracted relatively little attention during the trial. It was only mentioned briefly in the prosecutor's opening and then again during the complainant's evidence. Further, the prosecutor spent very little time on the Text Message in his cross‑examination of the appellant. Both counsel made only passing reference to it in their addresses to the jury, and we have set out above the trial judge's very brief remarks that he made when he came to speak to the jury about the Text Message. In those circumstances it would have been reasonable for trial counsel to decide not to seek further directions from the trial judge for fear that this may have only served to unnecessarily highlight the Text Message and therefore give it greater prominence than it had been given in the course of the trial.
2. The appellant is bound by his counsel's conduct, and the correctness of his decision not to seek a further direction about the text message is not the question. Where, objectively ascertained, a failure to seek a direction was a rational, tactical decision, as appears to be the case here, this court is entitled to conclude that there was no miscarriage of justice.[66]
3. Given that the appellant is to be re-tried, one final matter should be mentioned. As the complainant alleged that the appellant had engaged in eight separate acts of sexual penetration, which were alleged to have taken place over the course of two separate and distinct events, it would have been preferrable if the trial judge had explained to the jury in more detail the precise basis on which the prosecution relied on the text message. In that regard it would have been better if his Honour had explained that the prosecution only relied on the Text Message as evidence of an admission which, on the prosecution case, provided general support for the complainant's allegations.
4. Although we granted leave to appeal, we dismissed ground 2.

1. Given our conclusion in relation to grounds 1 and 5 it is strictly unnecessary for us to deal with either ground 3 or 4. This is because these grounds do not give rise to any issues of general importance and the errors complained of are unlikely to be repeated at any re‑trial. However, we will deal with them briefly.
2. By ground 3 the appellant complains that the trial judge failed to properly explain the statutory meaning of consent to the jury, for the purposes of the offence of sexual penetration without consent contrary to s 325 of the Code. The appellant does not complain about the content of the direction that was ultimately given to the jury about the meaning of consent. The essence of his complaint is that this direction was given too late.
3. The trial judge did not explain to the jury the statutory meaning of consent, as provided for in s 319(2)(a) of the Code, until after they had retired to consider their verdict, and then only after they had been allowed to separate overnight, having already deliberated for a little over two hours. The appellant submits that in circumstances where the issue of consent was a central issue at trial, the failure to provide the jury with directions explaining the legal meaning of consent until after they had engaged in a relatively lengthy period of deliberations occasioned a miscarriage of justice.
4. The appellant's submissions cannot be accepted. Although it is regrettable that the jury were not given a direction about the meaning of consent before they commenced their deliberations, as required by s 112 of the Criminal Procedure Act 2004 (WA), and before they later separated overnight, the fact remains that the correct direction was given before the jury delivered any verdicts. It must also be appreciated that the jury deliberated for a further seven hours after they were eventually given the direction about the meaning of consent and there is nothing to suggest that the jury did not then understand or faithfully apply that direction while considering their verdicts. There is nothing about the circumstances in which the direction about consent was eventually given to the jury that suggests that the assumption on which the system of justice administered by intermediate courts of appeal operates that, as a general rule, juries follow directions given to them by trial judges,[67] has been displaced.
5. Two other matters may be mentioned. Firstly, the principal issue at the appellant's trial was whether the prosecution had proved, beyond reasonable doubt, that sexual activity had taken place between the appellant and the complainant in the way it had been described by the complainant in her evidence. That version of events, if accepted by the jury to the requisite standard, was consistent only with the appellant having sexually penetrated the complainant without her consent, even if the jury was ultimately not satisfied that all the acts of sexual penetration had occurred. On the other hand, while there were some similarities with the complainant's version of events, on the appellant's version of events they had mutually agreed to participate in acts of sexual penetration. If the appellant's version had given rise to a reasonable doubt in the minds of the jury about the circumstances in which sexual activity had occurred, then the jury would have been bound to acquit him. Accordingly, the clearly defined factual issues in the case necessarily directed the jury's attention to the relevant parts of the statutory meaning of consent, namely, whether the complainant had freely and voluntarily given her consent.
6. Secondly, the appellant's trial counsel did not at any stage ask the trial judge to give the jury any directions about the issue of consent, including any directions explaining the statutory definition of consent. As we have already said, the absence of objection to a judge's directions is not fatal to reliance on an error if it occasioned a miscarriage of justice, but it may tend against a finding that a perceptible risk of a miscarriage of justice was present at the trial.[68]
7. It may be accepted that the trial judge failed to instruct the jury on the statutory meaning of consent before the jury retired to consider its verdict, as was required by s 112 of the Criminal Procedure Act. It is also the case that the question of whether the prosecution had proved that the complainant had not consented was a central issue at the appellant's trial. However, in the circumstances of this case it did not amount to a failure to observe the requirements of the criminal process in a fundamental respect, and there was no prospect that it affected the jury's verdict. Accordingly, the appellant failed to demonstrate that there was a miscarriage of justice.
8. For those reasons we refused leave to appeal in relation to ground 3.
9. By ground 4 the appellant complains that the trial judge misstated the defence case, and that this occasioned a miscarriage of justice.
10. We are confident that the trial judge who ultimately presides at the appellant's retrial will read the transcript of the trial, including the directions that were given, and will have regard to what we have said about this ground of appeal when they come to direct the jury. Accordingly, it is highly unlikely that the difficulties that are readily apparent in his Honour's summing up will be repeated. As a result, and as we have allowed other grounds of appeal, it is unnecessary for us to deal with this ground of appeal in detail.
11. There is no doubt that the trial judge did, at least initially, make several significant factual errors when he explained both the prosecution and the defence case to the jury. It is also regrettable that his Honour chose to deal with counsel's lengthy submissions about those errors in the presence of the jury, despite defence counsel's sensible suggestion that they should be dealt with in the absence of the jury.
12. That the trial judge's directions were confusing is amply demonstrated by the fact that immediately after he initially attempted to correct the errors that he had made, the jury foreperson said that she (and/or other members of the jury) was a 'bit confused'. When his Honour gave the jury a further short explanation about the parties' respective cases, the foreperson eventually indicated that she understood what had been put to the jury. However, this only prompted a further lengthy exchange between the trial judge and both counsel, which once again took place in the presence of the jury.
13. What is clear is that the trial judge ultimately gave the jury a final, although very brief summary of what the prosecution were required to prove, by reference to the complainant's evidence. While it is arguable that there were also some shortcomings in that summary, when defence counsel was asked by the trial judge whether he had any difficulties with the directions, counsel indicated that he had no problems, and colourfully agreed with the trial judge that he had 'finally nailed it'.[69]
14. Having regard to the trial judge's directions as a whole, and noting defence counsel's indication to his Honour that he was content with those directions, we are satisfied that the trial judge's failure to accurately summarise the defence case did not occasion a miscarriage of justice.
15. Although we granted leave to appeal, we dismissed ground 4.

1. The respondent did not seek to invoke the proviso in s 30(4) of the Criminal Appeals Act 2004 (WA). Further, the appellant did not submit that if any of his grounds of appeal were made out, and the appeal was allowed, that there be an order other than an order that there be a retrial.
2. For these reasons the following orders were made on 13 September 2023:
   1. Leave to appeal is allowed on grounds 1, 2, 4 and 5.
   2. Leave to appeal on ground 3 is refused.
   3. Appeal allowed.
   4. Judgments of conviction on counts 1, 2, 3, 5, 6 and 8 in indictment 330 of 2021 are set aside.
   5. There be a new trial on counts 1, 2, 3, 5, 6 and 8 in indictment 330 of 2021.
3. We also made further orders requiring the appellant to appear at a trial listing hearing in the District Court.

I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.

[11] R v Christie [1914] AC 545.

[12] R v Soma [2003] HCA 13; (2003) 212 CLR 299 [11] (Gleeson CJ, Gummow, Kirby & Hayne JJ), [79] (McHugh J).

[13] Birks v The State of Western Australia [2007] WASCA 29; (2007) 33 WAR 291 [45], [47] (Buss JA, Steytler P & Pullin JA agreeing).

[14] MLS v The State of Western Australia [2018] WASCA 56 [120] - [124].

[15] LBC v The State of Western Australia [2011] WASCA 201 [10] - [11] (Martin CJ, Hall J agreeing), [39] (McLure P). See also RHU v The State of Western Australia [No 2] [2023] WASCA 49 [138] - [139].

[16] HCF v The Queen [2023] HCA 35.

[17] Zhou v The Queen [2021] NSWCCA 278 [22].

[18] HCF [2] (Gageler CJ, Gleeson & Jagot JJ).

[19] HCF [2] (Gageler CJ, Gleeson & Jagot JJ).

[20] Clearly, AP's references to 'smallsy' were references to the appellant.

[27] LNV v The State of Western Australia [2019] WASCA 180 [51] (Buss P & Sofronoff AJA).

[36] Burns v The Queen [1975] HCA 21; 132 CLR 258, 261 (Barwick CJ, Gibbs & Mason JJ, Jacobs J agreeing).

[37] Cotic v The Queen [2000] WASCA 414.

[38] Magill v The Queen [2013] VSCA 259; (2013) 42 VR 616.

[40] Perera v The Queen (1986) 1 Qd R 211; R v D'Orta‑Ekenaike (1998) 2 VR 140; R v Robertson (1998) 4 VR 30.

[41] Michael v The State of Western Australia [2007] WASCA 100.

[42] Hewitt v The Queen [2021] NSWCCA 227.

[43] Flood-Smith v The Queen [2018] NSWCCA 103.

[48] R v Booth [2018] QCA 74.

[49] Burns 261 (Barwick CJ, Gibbs & Mason JJ).

[50] Ross v The King [1922] HCA 4; (1922) 30 CLR 246, 255.

[51] DLS v The State of Western Australia [2021] WASCA 197; (2021) A Crim R 113.

[54] Booth [58]. The quote was taken from R v Schaeffer [2005] VSCA 306; (2005) 13 VR 337 [65]. See also Schaeffer [13], [65].

[55] R v Eastman (No 50) [2018] ACTSC 321 [4].

[56] Shepherd v The Queen [1990] HCA 56; (1990) 170 CLR 573.

[58] Edwards v The Queen [1993] HCA 63; (1993) 178 CLR 193.

[59] Burns 261 (Barwick CJ, Gibbs & Mason JJ).

[60] R v Green [2002] VSCA 34; 4 VR 471 [31].

[63] Magill [4] - [5] (Buchanan AP), [77] (Priest JA). Only Priest JA considered that it was also necessary for the trial judge to have directed the jury that they had to be satisfied beyond reasonable doubt that the appellant was the author of the text: see [77].

[64] Wark v The State of Western Australia [2020] WASCA 19; (2020) 56 WAR 365 [615] (Beech JA) (emphasis in original); Sturniolo v The State Of Western Australia [2023] WASCA 147 [77] - [78].

[65] Wilson v The State of Western Australia [2023] WASCA 161 [53]. See also, R v Dookheea [2017] HCA 36; (2017) 262 CLR 402 [37].

[66] Patel v The Queen [2012] HCA 29; (2012) 247 CLR 531 [114] (French CJ, Hayne, Kiefel & Bell JJ). See also Booth [60] ‑ [63]; Hewitt [78].

[67] Gilbert v The Queen [2000] HCA 15; (2000) 201 CLR 414 [13] (Gleeson CJ & Gummow J), [31] (McHugh J). See also, HCF [62] (Gageler CJ, Gleeson & Jagot JJ).