Cleland v The Queen [1982] HCA 67; (1982) 151 CLR 1

HG v The Queen [1999] HCA 2; (1999) 160 ALR 554

Ireland v The Queen [1970] HCA 21; (1970) 126 CLR 321

Khoosal & Singh v The Queen (1993) 71 A Crim R 127

Lombardo v The Queen [1999] WASCA 127

Nesterov v The Queen [1999] WASCA 303

Osland v The Queen [1998] HCA 75; (1998) 73 ALJR 173

R v Konstandopoulos [1998] 4 VR 381

R v Small (1994) 33 NSWLR 575

1 MALCOLM CJ: At the conclusion of the argument in this appeal the Court was unanimously of the opinion that the appeal be allowed and the convictions of the appellant be quashed. A new trial was ordered and the appellant remanded on bail to the next status conference date in the District Court.

2 The reasons to be published by Murray J sufficiently state my reasons for joining in the making of these orders.

3 WALLWORK J: I agree with the reasons for judgment of Murray J which more than adequately reflect my reasons for joining in the orders of the Court which were made on 12 April 2000.

4 MURRAY J: The indictment presented against the applicant in the District Court charged him with three offences, all allegedly committed on 1 January 1998 against the same complainant. The first offence charged was one of sexually penetrating the complainant without her consent by introducing the applicant's penis into her mouth. The second charge was of an offence of attempting to repeat that form of sexual penetration without the complainant's consent, and the third offence charged was that the applicant unlawfully detained the complainant. The applicant pleaded not guilty and was tried by a jury and convicted of all the offences.

5 The complainant gave evidence that on the night in question, celebrating New Year's Eve, she had had quite a lot of alcohol to drink, both at home and at a nightclub in Northbridge. She left the club after midnight, substantially affected by alcohol. She was going to the Nookenburra Hotel where a friend was having a party, but she could not find a taxi. At about 3.00 am she met the applicant in the street. He was not previously known to her. She told him about the party and he offered her a lift in his car. She accepted and invited the applicant to attend the party if he wished. Before the motor vehicle journey commenced the applicant made some sexual advances, which she rebuffed.

6 During the course of the journey with the applicant driving, he exposed his erect penis. He tried to get the complainant to handle it, although she resisted, and forced her head down on to his penis. It went into her mouth. This was the first count in the indictment.

7 She said that the vehicle stopped at a service station. The applicant got out and bought soft drinks. She did not make any attempt to escape because it was dark. There appeared to be nobody about and the Nookenburra Hotel was still quite a distance away. As the applicant drove away from the service station he again exposed his erect penis and attempted to force her mouth on to it. This time her resistance was successful. The incident was count 2 on the indictment.

8 When they got to the Nookenburra Hotel the applicant stopped in a service station opposite. Again, the applicant left the car and went into the service station to obtain a pen and paper so that he could make a note of the complainant's telephone number, for which he had asked. Again she did not leave the car because the hotel was in darkness and she could not see where the residential units were so as to be able to run to her friend's party. The complainant gave the applicant a false telephone number, opened the door of the car and commenced to alight. The applicant took hold of her around the waist and endeavoured to pull the complainant back into the car. She fought her way free and ran to her friend's unit. This incident was count 3 in the indictment.

9 The applicant was identified from a video tape taken at one of the service stations. He was located and interviewed by the police on two occasions on 9 February 1998. When first spoken to, although the applicant admitted giving the complainant a lift in his car from Northbridge to the Nookenburra Hotel, he said that none of the activities alleged by the complainant occurred. After the interview concluded and while still at the police station, the applicant said to the investigating officers that he had not told the truth. A second interview was conducted in which the applicant said that the incident the subject of the first count in the indictment had occurred, but it had been initiated by the complainant who had undone his trousers, exposed his penis and voluntarily took it into her mouth. He maintained that the second incident described by the complainant did not occur and he said that, although when they arrived at the Nookenburra Hotel he may have touched the complainant in such a way as to momentarily retard her as she left his car, he did not do anything to detain her against her will.

10 Both interviews on video tape were before the jury. The prosecution relied upon the admissions in both interviews that the applicant had given the complainant a lift in his car and that his description of the journey and the stops made generally coincided with the evidence of the complainant. In addition, the prosecution relied upon the admitted lies told during the first interview and on an earlier occasion, and put to the jury that the applicant had not told the whole truth in relation to what occurred on the journey. The applicant, for his part, did not give evidence at the trial, but he relied upon the proposition that in the second interview he had told the truth about what had occurred, although the opportunity to commit the offences was admitted. Of course, if the jury were not able to reject as untruthful the account given at the second interview, they would not be able to convict the applicant of any of the three offences with which he was charged. In that way an issue of his credibility arose in rather particular circumstances as, of course, did the issue of the complainant's credibility as a witness at the trial.

11 There is no question that it was open to the applicant to rely upon the exculpatory portions of the statement he made out of court, given that those statements were made in the context of what is generally described as a "mixed statement", ie, one containing elements of admission as well as exculpation. In such a case if, as occurred here, the prosecution leads in evidence and relies upon the aspects of the out of court statement which implicate the accused, he or she may in turn rely upon the exculpatory material. But of course, given that such material has a self serving character, its reception strictly constitutes an exception to the rule against hearsay and it may be accorded less weight by the jury than they would be prepared to place upon the statements against interest made out of court by the accused. The rule is an old one, discussed in Cross on Evidence, 5th Aust ed, par [33455] and see R v Cox [1986] 2 Qd R 55 and Spence v Demasi (1988) 48 SASR 536. In this Court, that the rule is as we have stated was accepted by Kennedy J, with whom Malcolm CJ and Walsh J agreed, in Healy v The Queen (1995) 15 WAR 104 at 111 - 2, and by Pidgeon J, with whom Murray J agreed, in MH v The Queen, unreported; CCA SCt of WA; Library No 970203; 7 May 1997 at 8 - 9. In those circumstances the importance from the point of view of the applicant of preserving and bolstering his credibility as far as he could is self-evident, particularly if (as did not occur here) the trial Judge saw fit to remind the jury, that they had not had the opportunity to observe the accused give evidence or hear his account tested by cross-examination: R v Ellis (1998) 100 A Crim R 49, 52.

12 The application to this Court for leave to appeal against the convictions proceeded upon four grounds, that the trial Judge erred:

1. in the direction given in respect of the evidence of the applicant's good character;

2. in the direction given in respect of lies allegedly told by the applicant to the police;

3. in the direction given in relation to the drawing of the ultimate inference of guilt; and

4. in the comments made by her Honour in relation to the applicant's good character and the answers given to questions put by investigating police officers, which comments it is submitted failed adequately to put the defence case and indeed undermined it. The ground is dependent upon grounds 1 and 2 and to the extent necessary will be dealt with in the discussion of those grounds.

13 Following the hearing of the application the Court was unanimously of the view that it should succeed and we then granted leave to appeal, allowed the appeal, quashed the convictions and ordered a new trial, remanding the applicant on bail to a status conference in the District Court. These are my reasons for joining in the final orders made at that time.

14 As to ground 1, the applicant led through the police officer who gave evidence of the video recorded interviews, that he had no criminal or traffic convictions - no previous convictions of any kind - and no charges of any criminal offence outstanding against him. That was accepted at trial to be evidence of the applicant's good character. Indeed it was prosecuting counsel who raised with the trial Judge in discussion prior to her Honour's charge to the jury that she should give a direction about the use which could be made of evidence of good character. Her Honour accepted that she should do so and in due course, in directing the jury, she said:

"Ladies and gentlemen, there has in this case been some evidence of what we call good character. You remember this morning that Mr Smith asked the detective sergeant about the accused and you have evidence that he has no prior convictions or charges pending against him. He is a man of previous good character, has no prior criminal convictions. Now, an accused person is entitled to adduce evidence of previous good character and you would determine that issue as a matter of fact. That evidence can be used to assess his or her credit or depending on your view of all the circumstances, that could be evidence that you may find makes it unlikely that he would have committed these offences. In considering this sort of evidence of good character you of course realise that persons of otherwise good character do, from time to time, commit offences, so that you may find that evidence of good character may be of limited assistance to you in your deliberations, but it is something you should take into account."

15 The recent decision of the High Court in Melbourne v The Queen [1999] HCA 32; (1999) 73 ALJR 1097 provides a comprehensive statement of the law in relation to the admissibility of evidence of the accused person's good character, the multiple relevance that such evidence may have in the circumstances of a particular case, and the question whether any and if so what, direction should be given about such evidence to the jury by the trial Judge.

16 Applying the discussion of the law in that case to this State, it is clear that in the absence of any statutory provision, general evidence of the accused's good character as testified by his general reputation is admissible where relevant to the question whether the accused may be established to have committed the offence charged by reference to the likelihood that he or she would do so or, putting it another way, the accused's propensity to commit the offence charged and/or in respect of the accused's credibility. The admissibility of such evidence in either or both of those circumstances may be regarded as anomalous, given the care taken in the law of evidence as to the restricted circumstances in which evidence of bad character or general propensity to commit an offence such as that charged may be admitted: see per McHugh J at par [47].

17 The majority in Melbourne, McHugh, Gummow and Hayne JJ were firmly of the view that where such evidence is admitted the trial Judge retains a discretion whether or not to direct the jury as to the use to which such evidence may be put. In that case the direction given by the trial Judge did not touch upon the relevance of the evidence of good character to the credibility of the accused, particularly in relation to his pre-trial statements and police interviews, the content of which were relevant to the defence of diminished responsibility and the diagnosis of the accused's mental condition made by expert witnesses. The High Court concluded that in the circumstances of that case there was no misdirection so as to cause a miscarriage of justice because the issue at trial was not the evidentiary basis of the expert opinions offered, but the validity of those opinions themselves having regard to all the historical and clinical circumstances, including the statements accepted to have been made by the accused about what occurred relative to the charge of murder before the Court.

18 Kirby J thought a direction about the use of evidence of good character should be given in every case and it should be a complete direction. His Honour would therefore have concluded that in this case, although the direction given by the trial Judge was correct so far as it went, it was inadequate in its scope. Callinan J dissented also, expressing the view that generally speaking, directions on the use of evidence of good character should be given, although his Honour accepted that there was a residual discretion not to give a direction where in the particular circumstances of the case it would be "absurd" to do so. That was a proposition which, incidentally, Kirby J also expressed in drawing the conclusion at par [108] and par [109] that it was now too late to address the anomaly, if it be such, of the admissibility of such evidence, to address its relevance as a predictor of criminal behaviour or the directions which should be given about the use of such evidence. His Honour accepted that, "Certainly, judges should not be compelled to give juries meaningless or absurd directions nor directions which would 'bemuse them' or insult their good sense."

19 At par [108] Kirby J referred also to the debate in the authorities as to whether the absence of prior convictions is synonymous with good character. It will be noted that in this case no other evidence of good character was led than that the applicant had no previous convictions, but this case provides no occasion to examine the debate to which I have referred because on all sides it appears to have been accepted at trial that there was evidence which established the applicant's good character.

20 Kirby J summed up his view about the directions which should be given in three numbered paragraphs at par [120]. The first paragraph adverts to the question whether a direction is required in all cases where there is evidence of the accused's good character, but subject to that expression of a minority view the paragraphs express most completely the law as to the appropriate content of the direction which should be given where one is required. His Honour said:

"1. In all cases in which there is evidence as to the accused's good character, a direction must be given by the judge as to the use to which that evidence may be put by the jury. Unless in the particular circumstances of the case doing so is unnecessary, or would be unwarranted for reasons which the judge gives, the directions on good character must relate both to (a) the way in which that evidence may be considered by the jury to make it less likely that the accused committed the offence charged (propensity) and (b) the reliance which the jury may place upon any evidence which the accused may have given in the trial and any other statements made by the accused out of court whether to police or others which come to the attention of the jury during the trial (credibility).

2. No particular form of words is necessary. However, the directions should convey to the jury that they should bear in mind the accused's previous good character when considering whether they are prepared to draw from the evidence the conclusion of the accused's guilt or a conclusion that the accused's evidence or relevant out-of-court statements are false. The jury are entitled to conclude that a person of established good character may be less likely to commit the crime charged or to make false statements relevant to guilt of that crime.

3. Because of the variety of the circumstances in which the need will arise, the directions must be tailored to meet the particular circumstances of the case. In an appropriate case, the judge will be at liberty to remind the jury that people do commit crimes for the first time and that evidence of previous good character is not a defence in itself and cannot prevail against evidence of guilt which, notwithstanding the accused's previous good character, the jury find to be proved. The judge may comment on the good character evidence and any rebutting evidence, in a fair and balanced way, including in relation to its significance or lack of significance in the circumstances of the particular case. Generally, however, such directions and comments should be brief because it can safely be left to the jury to apply their common sense to such matters."

21 I consider that the first ground of the application must be upheld. At trial it was accepted that there was evidence capable of supporting the conclusion that the applicant was a person of good character. It was further accepted that the case was one where a direction about good character should be given. The evidence had the twofold relevance to which the authorities refer. The jury were required to consider whether the fact that the applicant was of good character made it less likely that he would commit the offences with which he was charged, given that the evidence of the complainant was directly contradicted by the version of the facts contained in the applicant's second police interview where he said that the act said to constitute the crime charged in count 1 occurred at the initiation and with the evident consent of the complainant, the second such act of which she complained did not occur at all, and the complainant was not unlawfully detained in the car, although she may have been momentarily impeded in the process of leaving it.

22 Further, the evidence of good character was clearly relevant to the applicant's credibility in that the jury were required to consider whether, given that character, having made the mistake of telling lies to the police initially, and having immediately confessed that he had done so, it was less likely that the applicant at the second interview told another set of lies to make innocent the sexual contact which he then admitted he had with the complainant.

23 In the circumstances of this case a fair and appropriate direction would be one which left squarely to the commonsense of the jury the impact of the evidence of good character upon both of those closely related considerations. Her Honour referred in the directions she gave to both aspects of the relevance of the evidence. In my opinion, in this case, it was proper that she remind the jury that people of good character do, of course, commit crimes for the first time and that if the jury were persuaded that they should accept the complainant as a truthful and reliable witness (her intoxication being a factor which might bear upon the latter consideration), her evidence would be direct evidence quite sufficient to establish the applicant's guilt beyond reasonable doubt, against which the jury might think the evidence of the applicant's previous good character could not prevail.

24 Her Honour's remark that in the particular case the jury may conclude "that evidence of good character may be of limited assistance to you in your deliberations", in my opinion seriously disturbed the balance of the direction. It was a remark which tended to denigrate the significance of the evidence of good character which, it is clear, was a central plank in the presentation of the defence case.

25 A direction worded in almost precisely the same terms by a District Court Judge was considered by this Court in M v The Queen (1998) 104 A Crim R 154, the decision of which case was given before Melbourne was decided and well before the trial of this case which took place in November 1999. The Court was on that occasion also critical of the direction and the conviction was quashed upon that and other grounds. At 157 Kennedy J said:

"In my view, it is usually preferable to express the direction in terms that the accused's good character should be used not only in assessing the credibility of the accused as a witness, but also as to guilt. In my respectful opinion, her Honour was rather too dismissive of the value of evidence of good character. It can be a significant factor when the outcome of a trial depends, as in this case, upon the credibility of the complainant, as against that of the accused."

At 165 Wallwork J expressed the view that the remark with which we have also been concerned impermissibly "put down" the evidence of good character. White J agreed with both of their Honours and I would express the same view in the context of this case.

26 Ground 2 is concerned with the direction given to the jury by the trial Judge in relation to the use to which they might put the conclusion, if this was their view, that the applicant had on two separate occasions told lies to investigating police officers. The direction given was clearly based on the law as stated by the High Court in Edwards v The Queen [1993] HCA 63; (1993) 178 CLR 193. But for the applicant it was argued that there was in this case a misdirection because the learned trial Judge effectively invited the jury to have regard to the evidence of the complainant, whose evidence lies told by the applicant might corroborate, in considering whether the jury were prepared to conclude that in one respect what was said by the applicant to the police was not only untrue, but a deliberate lie. To take that course would, of course, provide the complainant's evidence, impermissibly, with what would amount to self-corroboration. Secondly, it was argued that the trial Judge failed to identify precisely the lies which might be relied upon as circumstantial evidence by revealing a consciousness of guilt, thereby allowing an inference of guilt in support of the direct evidence given by the complainant. Thirdly, it was submitted that the suggested lies upon which the Crown relied were in truth not material to the applicant's guilt of any of the offences with which he was charged.

27 Before discussing these arguments it is necessary to say a little more about the facts concerning the police investigation of the complaint made. An early part of the investigation involved the police taking the complainant about the Northbridge area in an endeavour to locate the place which, according to the complainant, the offender had said was his place of work where his vehicle was parked and at which place the journey to the Nookenburra Hotel commenced. The place was located and on 8 January 1998 police officers attended and spoke to persons there, including the applicant. They then believed that the vehicle in which the offences were allegedly committed was a yellow Coupe. They had been given such a description by one of the service station attendants. That was later found to be incorrect. The applicant was asked if he knew anything about a yellow Coupe and he said, no doubt truthfully, that he knew nothing about it. He was then asked specifically whether, on the night of the alleged offences, he knew of anyone who had parked a vehicle at the premises on New Year's Eve and had collected it in the early hours of the morning of New Year's Day. He said he knew nothing about any such vehicle or person.

28 The police later obtained the video taken by the security camera at the service station opposite the Nookenburra Hotel. That showed the male person whom the service station attendant and the complainant agreed was the person who had been with her in the car and who had gone into the service station to obtain pen and paper. The police officer conducting the investigation recognised the person as the applicant to whom he had previously spoken at the business premises in Northbridge. In the result the applicant was spoken to again on 9 February 1998. As I have mentioned, there were two interviews recorded on video tape. I have already mentioned the essential content of those interviews. Having given his account in respect of the matters of which complaint had been made at the second interview, the applicant admitted that what he was now saying differed significantly from what he had said to the police on 8 January and what he had said in the first interview conducted on 9 February. It was put to the applicant that what he had said on 8 January was that he "had no knowledge of this incident at all" and the applicant accepted that.

29 As to the first argument in support of the contention that there was in this case a misdirection, it is true that when she referred to the admitted lie that the applicant engaged in no sexual activity with the complainant in the car at all, her Honour mentioned the applicant's explanation that he lied to the police at the first interview because he thought the complainant was only 15 years of age and he was therefore concerned that the consensual sexual activity which took place would nonetheless be an offence because the complainant was what is colloquially sometimes referred to as being under the age of consent.

30 Of course it was abundantly clear to all at the trial, the jury included no doubt, that if that was or might have been the motivation of the applicant for the lie told, then it lacked the probative value that could be accorded it by the jury if they found that the lie revealed a consciousness of the applicant's guilt of the offences with which he was charged. In that context her Honour reminded the jury that there was a conflict of evidence between the complainant and the applicant. The applicant asserted that the complainant told him that she was 15 and the complainant denied that she had done so. So the evidence to support that that was his motivation for telling the lie was solely that which emerged from the answers given by the applicant to the police at the second interview on 9 February 1998. It seems to me that it was appropriate that the trial Judge should make that point and, as she put it, it would not in my view have suggested to the jury that they might rely upon the evidence of the complainant to establish that any untrue statement was a lie. It must have been clear that if any such statement was to be found to be a deliberate lie, it would only be upon a consideration of what the applicant said to the police compared with the facts as the jury found them to be that the fact of the lie would be established.

31 As to the other matters raised, I think there is no doubt, on a proper reading of the directions to the jury, that the trial Judge did adequately identify the lies upon which reliance was placed. The first alleged lie was said to be that told on 8 January 1998 "about whether he had parked at his father's premises and then gone back there in the early hours to give somebody a ride home". The second lie relied upon was identified by the Judge as being that told during the first video interview on 9 February "when he vehemently protested that nothing of a sexual nature happened in the motor vehicle." The jury were invited to consider whether those statements were deliberate lies by reference to admissions which they might think had been made at the second video interview. If these were found to be lies, their materiality to the applicant's guilt of the offences charged was self-evident.

32 In my opinion, the jury were instructed in terms consistent with the statement of the law in Edwards that they could only use a lie as evidence from which the applicant's guilt might be inferred (which would therefore make it evidence corroborative of the truth of the account given by the complainant) if they were satisfied that the lie was told to avoid implication in the offences charged, as opposed to the applicant's explanation that anything the jury might find to be a lie was motivated by his worry that by reason of the age of the complainant, he might have committed an offence by the act of consensual sexual penetration which he asserted in his statements to the police occurred in the car. I would not uphold ground 2.

33 Ground 3 is related to ground 2, being concerned with an alleged error in failing to direct the jury adequately:

"...in relation to the drawing of the ultimate inference of guilt, particularly by failing to direct the jury that it was for the Crown to satisfy the jury beyond reasonable doubt that any reasonable hypothesis consistent with innocence was excluded."

A direction about drawing an inference of guilt was accepted to be required on the basis of the potential for the jury to regard the identified lies told by the applicant to investigating police officers as circumstantial evidence in the form of an implied admission of guilt, corroborative therefore of the evidence given by the complainant.

34 The trial Judge gave such a direction. She told the jury:

"Members of the jury, there is no room in a criminal trial for guessing or speculating or for looking for theories which are not supported by the evidence; but you may draw inferences from facts which you find. An inference is simply a logical deduction from a fact or a number of facts. It's important, however, that you bear in mind this rule: you can only draw an inference adverse to the accused man if it's the only reasonable inference open on the facts you find.

That means if there are competing inferences equally open that can properly be drawn it would not be proper to draw an inference against the accused. In the event of any ambiguity in the evidence, if there may be more than one reasonable inference which can be drawn the accused is entitled to have that resolved in the manner most favourable to him."

35 In relation to this ground of the application it is apposite to quote from the joint judgment of Deane, Dawson and Gaudron JJ in Edwards at 210:

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

36 The citation by their Honours of Shepherd v The Queen [1990] HCA 56; (1990) 170 CLR 573 provides the reminder that in that case the High Court firstly made it clear that Chamberlain v The Queen (No 2) [1984] HCA 7; (1984) 153 CLR 521 was authority for the proposition, consistent with the onus borne by the prosecution to prove guilt beyond reasonable doubt, that an inference of guilt may not be drawn from circumstantial evidence unless the circumstances found by the jury exclude any reasonable hypothesis consistent with innocence. As Dawson J, with whom Mason CJ (in separate reasons), Toohey and Gaudron JJ agreed, put it in Shepherd at 579:

"It will generally be sufficient to tell the jury that the guilt of the accused must be established beyond reasonable doubt and, where it is helpful to do so, to tell them that they must entertain such a doubt where any other inference consistent with innocence is reasonably open on the evidence."

37 As noted by their Honours in Edwards, the High Court in Shepherd went on to hold that Chamberlain was not authority for the proposition that in a case resting upon circumstantial evidence, the jury might only properly draw an inference of guilt upon primary facts establishing the particular circumstances of the case which were themselves proved beyond reasonable doubt. It would only be necessary to attain that standard of proof in relation to the proof of primary facts from which the inference might be drawn in the situation summarised in Edwards that the relevant fact was the only evidence against the accused or an indispensable link in a chain of evidence necessary to prove guilt.

38 This is not such a case. Apart from the direct evidence of the complainant which, if accepted, was of itself entirely capable of establishing the applicant's guilt beyond reasonable doubt, the circumstantial evidence was the lies told by the applicant to the investigating police which, if the jury so found, might constitute an implied admission of guilt which would tend to confirm the truth of the complainant's evidence and would be a circumstance from which the jury might infer guilt.

39 It follows in my opinion that the direction about drawing an inference of guilt, if it was to be of assistance to the jury, should not have been given in the bald terms it was following a direction about the necessity of being able to rely on the evidence of the complainant if guilt was to be established, which direction referred to the fact that as a matter of law there was no need for the complainant's evidence to be corroborated without adding the observation that if the jury considered that the lies told constituted an implied admission of guilt by revealing that the applicant was conscious that he was guilty, that would be evidence which would corroborate or confirm the evidence of the complainant. The direction about the drawing of an inference of guilt should have been attached, if it was to be of assistance to the jury, to the one body of evidence which was of a circumstantial character: Fletcher v The Queen [1999] WASCA 18; 14 May 1999 per Ipp J, with whom Kennedy and Wallwork JJ agreed.

40 In my opinion her Honour erred in giving the direction unrelated to the evidence, but more seriously, she erred in the terms in which the direction was given because her Honour did not directly speak about the ultimate inference of guilt, but only of drawing any inference adverse to the accused, and although she said that such an inference could only be drawn if it was the only reasonable inference open upon the facts as the jury found them to be, she went on to say, contrary to the law as stated in Chamberlain and Shepherd, "That means if there are competing inferences equally open that can be properly be drawn it would not be proper to draw an inference against the accused." (My emphasis).

41 That direction involved an obvious departure from the appropriate standard of proof from which, in my opinion, the direction was not able to recover when her Honour went on to say that if there was more than one reasonable inference that could be drawn, the applicant was entitled to have that resolved in the manner most favourable to him. This area of the law is not about drawing inferences one way or the other, either in favour of or adversely to the interests of the accused. It is about the capacity of the jury to draw an inference of guilt of the offence charged. In my view ground 3 was made good.

42 As I have mentioned, there is no need I think to deal specifically with ground 4 beyond the above discussion, but for the above reasons I have formed the view that there had been a miscarriage of justice in this case which, despite the fact that the matters raised on appeal were not points taken by the defence at the trial, necessitate the intervention of this Court: cf Robinson v The Queen [1991] HCA 38; (1991) 180 CLR 531 where the point at issue upon which the High Court allowed an appeal against conviction was taken neither at trial nor in the Queensland Court of Criminal Appeal. In my opinion the errors identified above constituted a fundamental irregularity in the trial process with the consequence that the convictions should be quashed and a new trial had: Wilde v The Queen [1988] HCA 6; (1988) 164 CLR 365, 373; Glennon v The Queen [1994] HCA 7; (1994) 179 CLR 1, 8; Green v The Queen (1997) 191 CLR 334, 346 - 347. It was for those reasons that I concurred in the making of the final orders to which I have referred.