Criminal Appeal: Lies Direction and Acquittal

The Court of Criminal Appeal set aside the applicant's conviction for sexual intercourse with a child under 10 years, finding a miscarriage of justice due to the trial judge's failure to give a 'lies direction' or 'Zoneff direction' regarding the applicant's silence and alleged lie. The court also upheld the trial judge's decision to take a majority verdict.

Court of Criminal Appeal Supreme Court New South Wales Medium Neutral Citation: [NAME] v R [2023] NSWCCA 165 Hearing dates: 27 March 2023 Date of orders: 3 July 2023 Decision date: 03 July 2023 Before: [NAME]-[NAME] CJ at CL at [1] [NAME] at [79] [NAME] at [80] Decision: (1) The time in which the application for leave to appeal may be brought be extended up to and including 16 September 2022. (2) The applicant be granted leave to raise grounds 1 and 2 of the Notice of Appeal. (3) Ground 1 be upheld. (4) The appeal be allowed. (5) The applicant's conviction for an offence under s 66A(1) of the Crimes Act 1900 (NSW) entered on 10 September 2021 be set aside. (6) In lieu thereof a verdict of acquittal be entered. Catchwords: CRIMES — appeals — appeal against conviction — sexual intercourse with child under 10 years — applicant 13 years old at time of offending — whether a miscarriage of justice was occasioned by trial judge's failure to give a "lies direction" or "Zoneff direction" in response to [NAME]'s submissions — [NAME]'s reliance on applicant's silence and alleged lie to rebut the presumption of doli incapax involved appeal to consciousness of guilt reasoning — to ensure a fair trial it was necessary for trial judge to have given an [NAME] or Zoneff direction — majority verdict — [NAME] Act 1977 (NSW), s 55F(2)(b) — whether it was open to trial judge to conclude that the preconditions for taking a majority verdict were satisfied — in the circumstances it was open to trial judge to be satisfied of the requirements of s 55(2)(b) — leave to appeal allowed — appeal allowed — whether retrial or acquittal should be entered — notwithstanding the [NAME] having a reasonably strong case the cause of the error favours entering an acquittal — applicant acquitted Legislation Cited: [NAME] 2000 (NSW) Companies (New South Wales) Code 1981 (NSW) Crimes Act 1900 (NSW) Children (Criminal Proceedings) Act 1987 (NSW) Criminal Appeal Act 1912 (NSW) Criminal Procedure Act 1986 (NSW) [NAME] Act 1977 (NSW) Supreme Court (Criminal Appeal) Rules 2021 (NSW) Cases Cited: AK v R [2022] NSWCCA 175 Anderson v The Queen (1991) 53 A Crim R 421 Black v The Queen (1993) 179 CLR 44; [1993] HCA 71 BP v R [2006] NSWCCA 172 Dhanhoa v The Queen (2003) 217 CLR 1; [2003] HCA 40 Edwards v The Queen (1993) 178 CLR 193; [1993] HCA 63 Hofer v The Queen [2021] HCA 36; (2021) 291 A Crim R 114 KE v R [2021] NSWCCA 119 Liberato v The Queen (1985) 159 CLR 507; [1985] HCA 66 [NAME] v R [2012] NSWCCA 1 R v [NAME] (a pseudonym) [2021] NSWDC 829 Spies v The Queen (2000) 201 CLR 603; [2000] HCA 43 [NAME] v R (2020) 102 NSWLR 467; [2020] NSWCCA 142 Zoneff v The Queen (2000) 200 CLR 234; [2000] HCA 28 Category: Principal judgment Parties: [NAME] (Applicant) R (Respondent) Representation: Counsel: [redacted] [NAME] (Respondent)

Solicitors: [redacted] [NAME]) (Respondent) File Number(s): 2020/270252 Decision under appeal Court or tribunal: District Court Jurisdiction: Criminal Citation: [2021] NSWDC 829 Date of Decision: 10 September 2021 Before: Sutherland SC DCJ File Number(s): 2020/270252

HEADNOTE [This headnote is not to be read as part of the judgment] On 10 May 2021 a [NAME] found the applicant, [NAME], guilty of one count of having sexual intercourse with a child under 10 years contrary to s 66A(1) of the Crimes Act 1900 (NSW) (count 1). He was acquitted by the [NAME] of another offence (count 3). The trial judge had previously directed the [NAME] to return a verdict of not guilty on a third count on the indictment (count 2). On 10 September 2021, the applicant was sentenced to a community correction order for 3 years commencing on that same date. The counts on the indictment related to alleged incidents that took place during Easter 2018 at a house rented by several families in the Hunter Valley. The applicant was 13 years old at the time. [NAME], was 5 years old. The applicant and his friend, [NAME], were allowed to sleep in a tent at the front of the house. After dinner on the evening of the first day, [NAME] was alone with the applicant in the tent. [NAME]'s father, [NAME], gave evidence that when he approached the tent to check on [NAME] he was "[v]ery certain" he heard the applicant say, "[d]on't tell anybody, you'[NAME] get me in trouble". [NAME]'s evidence was that he said to them, "[w]hat's going on", and undid the outer zip of the tent. After "one or two seconds", [NAME] said, "[[NAME]], out". [NAME] gave evidence that after approximately "five, ten seconds" of silence (the silence), as he and [NAME] were walking back to the house the applicant called out, "[[NAME]] pulled my pants down when I was asleep" (the alleged lie). Evidence was also given by the head of learning support at the applicant's high school who said the applicant had a "auditory processing disorder" and "moderate expressive language delay". [NAME] relied on this evidence as an explanation for the applicant's silence and maintained in the trial that [NAME] had come into the tent and pulled down the applicant's pants while he was sleeping. The [NAME] addressed the applicant's silence and alleged lie in closing submissions. The [NAME] told the [NAME] there were eight reasons to not accept the applicant's suggestion that [NAME] pulled the applicant's pants down. When giving the seventh reason, the [NAME] said, "[the applicant] didn't say anything as they started to walk back to the house… you might think the reason for this delay is because the [applicant] was making up a story in case [[NAME]] told his parent[s] what the [applicant] had done." After concern was raised by [NAME], the [NAME] told the [NAME] that if they rejected the applicant's suggestion that [NAME] pulled his pants down, they should "put it to one side" and focus on [NAME]'s account. Later in their address, the [NAME] then sought to rebut the presumption of doli incapax by identifying 10 reasons why the [NAME] would find that the applicant knew his behaviour was "seriously wrong". In addressing the 9th and 10th reasons, the [NAME] submitted that the applicant "was silent… until he managed to think up a lie in an attempt to cover up his behaviour" and his alleged lie was a "false story… [told] in case [[NAME]] told someone, told anyone about what the [applicant] had done". The [NAME] retired to consider the verdicts at around 1:00pm on Wednesday 5 May 2021. On Friday 7 May 2021, at around 11:00am, the [NAME] sent a note stating, that they could not agree on an unanimous verdict on counts 1 and count 3. The trial judge gave a "Black direction". At around 3:40pm that same day, the [NAME] sent another note confirming it was still unable to reach a unanimous decision. At around 4:20pm that same day, the trial judge asked the foreperson of the [NAME] on oath, "I have received a note… that says that: 'After further deliberation, we the [NAME] have been unable to come to a unanimous decision on the two counts, namely 1 and 3'. That is the present situation is it?". The foreperson said that it was. The trial judge then gave the [NAME] a majority verdict direction and sent them home for the weekend. On the following Monday, the [NAME] returned a majority verdict of guilty on count 1 and a unanimous verdict of not guilty on count 3. The principal issues on appeal were: 1. whether a miscarriage of justice was occasioned by the trial judge's failure to give a "lies direction" (or a "Zoneff direction") as to how the applicant's silence and alleged lie could be used to support the [NAME] case (the silence and alleged lie issue); 2. whether it was open to the trial judge to conclude that the preconditions for the taking of a majority verdict under s 55F(2)(b) of the [NAME] Act 1977 (NSW) were satisfied (the majority verdict issue); and 3. if either ground is upheld, whether to enter a retrial or acquittal (the appropriate order issue). [ADDRESS] held (per [NAME]-[NAME] CJ at CL, [NAME] and [NAME] JJ agreeing), granting leave to appeal, allowing the appeal and entering a verdict of acquittal: As to the silence and alleged lie issue 1. The chain of reasoning by which the [NAME] contended that the applicant knew his actions were "seriously wrong" assumed, or implicitly asserted, that the applicant's silence and alleged lie were not only evidence that he knew "what he had done" was wrong but that he did what he was [NAME] of doing to [NAME]. The [NAME]'s address was an emphatic appeal to consciousness of guilt reasoning. Even if the [NAME] were satisfied that the applicant used the silence to formulate a lie and then lied, an [NAME] direction would have brought home to the [NAME] the necessity to be satisfied that the applicant did so because he knew that truthfully answering [NAME]'s question, "[w]hat's going on", would implicate him in the offence and that his conduct was not engaged in for some other reason: [45] and [47] ([NAME] agreeing at [79]; [NAME] agreeing at [80]).

2. The [NAME] ran the trial without identifying its reliance on consciousness of guilt reasoning, confirmed to the [NAME] it was not relying on such reasoning but then emphatically sought to rely on that reasoning to address doli incapax. The defect in this trial was occasioned by the manner in which it was conducted by the [NAME]. To ensure a fair trial, it was necessary for the trial judge to have either given an [NAME] direction or a Zoneff direction. The failure to do so had a "real chance" of affecting the [NAME]'s verdict and "realistically [could] have affected the verdict of guilt" and constituted a miscarriage of justice: [50]−[52] ([NAME] agreeing at [79]; [NAME] agreeing at [80]). Edwards v The Queen (1993) 178 CLR 193; [1993] HCA 63; Zoneff v The Queen (2000) 200 CLR 234; [2000] HCA 28; Hofer v The Queen [2021] HCA 36; (2021) A Crim R 114, applied. Dhanhoa v The Queen (2003) 217 CLR 1; [2003] HCA 40, distinguished. As to the majority verdict issue 3. There is no express requirement that a trial judge ask the foreperson of the [NAME] or another juror whether it is unlikely that the [NAME] will reach a unanimous verdict after further deliberation before directing the [NAME] that they can give a majority verdict. The trial was short, and the issues were not especially complex. The [NAME] twice told the trial judge that a unanimous verdict could not be reached. By the time the trial judge was informed on the second occasion, it had been five hours since they received a Black direction. In those circumstances, it was open to the trial judge to be satisfied that the requirements of s 55(2)(b) of the [NAME] Act 1977 (NSW) were satisfied: [60] ([NAME] agreeing at [79]; [NAME] agreeing at [80]). As to the appropriate relief issue 4. The applicant has almost served two-thirds of his community corrections order, though this was principally due to delay on his (lawyers') part in pursuing the appeal. While there remains a reasonably strong [NAME] case and the charge is undoubtedly serious, it is the cause of the error that vitiated the conviction that tips the balance in favour of an acquittal. Having initially told the [NAME] to the contrary, the [NAME] invited the [NAME] to rely on the applicant's silence and alleged lie as a consciousness of a guilt. The [NAME] should not be given a further opportunity to pursue a case against the applicant: [redacted] [NAME] v R (2020) 102 NSWLR 467; [2020] NSWCCA 142; Spies v The Queen (2020) 201 CLR 603; Anderson v The Queen (1991) 53 A Crim R 421, considered.

JUDGMENT 1. [NAME]-[NAME] CJ at CL: This is an application for leave to appeal against a conviction for an offence of having sexual intercourse with a child under the age of 10 years contrary to s 66A(1) of the Crimes Act 1900 (NSW).

2. At the time the offence was found to have been committed, the applicant was just under 14 years old. He was 17 years old when he stood trial. He has just turned 19. The publication of any information that would identify the applicant or [NAME] is prohibited. [1] In the circumstances of this case, the prohibition extends to the publication of the names or identities of the principal witnesses as such publication would most likely identify the applicant and [NAME]. For that reason, the names of the applicant, [NAME] and witnesses have been anonymised in this judgment. The initials used are not their actual initials.

3. The applicant, [NAME], seeks leave to raise two grounds of appeal. The first ground of appeal contends that a miscarriage of justice was occasioned by the trial judge's failure to give a direction to the [NAME] in response to what is said to be a submission by the [NAME] that relied on the applicant's silence and an alleged lie as positive evidence of his guilt. This ground of appeal is pursued even though no such direction was applied for at the applicant's trial. The second ground of appeal contends that it was not open to the trial judge to conclude that the preconditions to giving the [NAME] a direction enabling the return of a majority verdict had been satisfied.

4. For the reasons that follow, I would uphold the first ground of appeal but reject the second. Further, having regard to various factors, including the fact that the applicant has completed most of his sentence and the manner in which the [NAME] addressed the [NAME], I consider it appropriate to enter an acquittal rather than order a new trial.

Background 1. On 29 April 2021, [NAME] was arraigned in the District Court on an indictment that charged him with three counts concerning a single incident, namely, that between 30 March 2018 and 31 March 2018 at Pokolbin, he: (i) had sexual intercourse with [NAME] who was at that time under the age of 10 years, namely, 5 years of age, contrary to s 66A(1) of the Crimes Act (count 1); (ii) in the alternative to count 1, assaulted [NAME], a child then under the age of 16 years, namely, 5 years of age, and at the time of such assault did commit an act of indecency on [NAME] contrary to s 61M(2) of the Crimes Act (count 2); and (iii) assaulted [NAME], a child then under the age of 16 years, namely, 5 years of age, and at the time of such assault did commit an act of indecency on [NAME] contrary to s 61M(2) of the Crimes Act (count 3).

1. The applicant pleaded not guilty to all three counts and the trial ensued. On 4 May 2021, the trial judge, his Honour Judge Sutherland SC, directed the [NAME] to return a verdict of not guilty on count 2. On 10 May 2021, the [NAME] found the applicant guilty of count 1 and not guilty of count 3.

2. On 10 September 2021, the applicant was sentenced to a community correction order for 3 years commencing on that same date (Crimes (Sentencing Procedure) Act 1999 (NSW), s 12; R v [NAME] (a pseudonym) [2021] NSWDC 829; "Button"). Subject to intervention by this Court, this order expires on 9 September 2024. The applicant does not seek leave to appeal from the sentence. Further, at the time of sentencing, his Honour made an order pursuant to s 3C of the [NAME] 2000 (NSW) declaring that the applicant not be treated as a registrable person for the purposes of the Act. His Honour found that the applicant "does not pose a risk to the lives or sexual safety of one or more children or children generally" (Button at [124]).

Extension of Time 1. The applicant lodged a Notice of Intention to Seek Leave to Appeal on 13 May 2021 which was within time. He was sentenced on 10 September 2021. However, he filed the Notice of Appeal with his submissions on 16 September 2022 and so the application was out of time. In November 2021, transcripts from the trial were made available. In January 2022, there was an attempt to obtain advice from counsel said to have experience with such trials but they were not able to provide timely advice. In May 2022, another counsel was briefed but they were also unable to provide timely advice. Counsel was ultimately retained in August 2022. [2]

2. Although this explanation for the delay is inadequate, I nevertheless consider the extension should be granted. The applicant was a juvenile at the time the offence was found to have been committed and is still very young. He seeks to challenge his conviction for a serious sexual offence. His grounds of appeal have substance. That said, as explained below, I consider the inadequate explanation for the delay in the [NAME] of the appeal is a factor bearing on the determination of whether this Court should enter a verdict of acquittal or order a new trial.

The [NAME] on Count 1 1. All of the incidents alleged in the indictment took place during Easter 2018 at a house rented by several families in the Hunter Valley. [3] There were at least five children staying at the premises. The two oldest children were the applicant (who was then 13 years old) and his friend [NAME] (who was then 12 years old). [NAME] (who was then 5 years old), [4] was also present. The applicant's sister, [NAME], had sometimes looked after [NAME] but she was not present during the Easter gathering. [5]

2. The applicant and [NAME] were allowed to sleep in a tent in the front yard of the house. The adults and younger children slept inside. [6] The relevant incidents occurred after dinner on the evening of the first day of the holiday while [NAME] was in the tent alone with the applicant. [7] Given the grounds of appeal, it is only necessary to outline the [NAME] and defence case on count 1. 3. [NAME]'s evidence consisted of a recorded interview on 10 April 2018 with the police (the "JIRT interview") [8] and recorded unsworn evidence given before her Honour Judge Girdham SC in November 2020. Both recordings were played to the [NAME] at the applicant's trial and they were provided with transcripts. [9] [10]

4. The incident the subject of count 1 was said to have occurred when the applicant and [NAME] were alone in the tent. Early in the JIRT interview, [NAME] said, "I was on holidays and we, and were, and I was in a tent and in the night someone showed me their private thing" (i.e. penis). [11] [NAME] said this occurred at night and the applicant showed him his penis twice. [12] He said: [13] "Um, so he showed me his penis two times then he said, 'don't tell anyone' then I just told on someone then he said, um, um, um, his sister does that and how he, and he, and he said, [p]ut my, put his penis in my mouth and he said his sister does it. And his sister said, [n]o, and, and, and he was lying to me." 1. [NAME] said that he, [NAME] and the applicant were present in the tent when this incident happened, although the evidence of other witnesses, including [NAME] himself, strongly suggested that [NAME] had left the tent before the time the incident could have occurred. [14] 2. [NAME]'s reference to the applicant "lying" to him was to a supposed lie the applicant told that he (i.e. the applicant) also put his penis in his sister's mouth i.e. [NAME]'s mouth. [15] [NAME] said this lie was told after the applicant had put his penis in [NAME]'s mouth. [16] ([NAME] said that [NAME] later told him that such an incident between herself and the applicant did not happen). [17] [NAME] said the applicant told him, "[d]on't tell anyone". [18] He also said: [19] "So he [the applicant] showed me his penis then, then he said, then he puts his penis two times actually then he actually put my penis in there and then his mouth. Then he did this to his penis and he said, [j]ust do that then she said, um, um, he said, um he's lying to me then, then that's the end. Then he was being, that was a real naughty thing to do. Then my daddy [took] me out of the room and that was the end, I think."

1. At one point in the JIRT interview, [NAME] was asked, "[a]nd you said your dad took you out of the tent?", to which he nodded and said, "[b]ecause I was being naughty" and "I don't know why I was being naughty". [20] [NAME] said he was just wearing a nappy in the tent. [21] He shook his head when asked whether the applicant saw his penis. [22]

2. As noted, [NAME] gave evidence in November 2020 some two and a half years after the JIRT interview. In cross‑examination, he recalled the applicant saying to him, "[d]on't tell anyone". [23] He did not recall the applicant saying to his father, "[[NAME]] pulled my pants down and I don't know what he did". [24] The following exchange took place between [NAME] and [NAME]: "Q. I'm going to say some sentences and I want you to tell us if they're true, not true, or if you're not sure, is that okay? A. Yep. Q. So, the first sentence is, [the applicant] did not take out his penis, is that true, not true, or you're not sure? A. True. Q. The next sentence is, [the applicant] did not show you his penis, is that true, not true, or you're not sure? A. Not true. Q. The next sentence, [the applicant] did not say, 'Put my penis in your mouth?' A. True. Q. The next sentence, [the applicant] did not say anything to you about his penis, is that true, not true, or you're not sure? A. Not true."

1. The use of negatives in these questions robbed the answers of any real evidentiary value. In re-examination, [NAME] said that the applicant did not say anything about his penis but did show [NAME] his penis. [25]

[NAME]'s Father ([NAME])

1. The evidence critical to ground 1 of the appeal was given by [NAME]'s father, [NAME]. He said that his family had lived next door to the applicant's family for a number of years. [26] [NAME] said that after dinner on the first night of the holiday, the children were playing around the tent and, when it was nearing bedtime, [NAME] wanted to sleep in the tent. [27] Close to bedtime, "probably" between 7pm and 8pm, [NAME] saw [NAME] come into the house and asked him where [NAME] was. [28] [NAME] said [NAME] was in the tent. [29] 2. [NAME] said that 10 or 15 minutes later he went out to check on [NAME]. [30] [NAME] said that as he approached the tent he was "[v]ery certain" [31] he heard the applicant say, "[d]on't tell anybody, you'[NAME] get me in trouble". [32] [NAME] said to them, "[w]hat's going on", and undid the outer zip of the tent. [33] His evidence included the following: "Q. Was the zip open or closed when you said 'What's going on'? A. The zip was closed. Q. How loudly did you speak? A. Loud enough, loud enough to be heard. Q. How long after you said those words did you start to open the zip? A. It was probably simultaneously. Q. Then what happened? A. There was silence and then I ordered [[NAME]] to get out of the tent. Q. You say you ordered [[NAME]] to get out of the tent, what words did you say to him? A. '[[NAME]], out.' Q. Can you describe your tone of voice? A. Forceful. … Q. Can I ask you this question, how long was it between the time you said those words 'What's going on' and '[[NAME]], out'? A. Seconds. Q. Are you able to say approximately, no-one's going to hold you specifically, but how many seconds? A. Yeah literally, I would've said one or two seconds. Q. What happened after you said '[[NAME]], out'? A. [[NAME]] came out of the tent. Q. Then what happened? A. We proceeded to walk back to the house. Q. Did anything happen when you were walking back to the house? A. [The applicant] called out '[[NAME]] pulled my pants down when I was asleep'. Q. How loudly was that said? A. Loud enough to, to hear. Q. How far away from the tent were you when those words were spoken? A. Again within metres. Q. Are you able to say how long it was between the time that you said '[[NAME]], out' and [the applicant] said those words that you heard? A. Yeah, no more than probably five seconds, five, ten seconds." (emphasis added)

1. In cross-examination, [NAME] denied that before he went to the tent he heard any shouting. [34] He accepted there was a chance that, as he approached the tent, the applicant could have said, "[d]on't tell anyone because we'[NAME] both get into trouble". [35] He did not accept that the applicant said anything along the lines of, "[[NAME]] pulled my pants down and I don't know what he did". [36] [NAME] was asked whether the applicant said "[[NAME]] pulled my pants down" in response to his question, "[w]hat's going on". [NAME] said, "[[NAME]] was out of the tent and we were walking away when [the applicant] called out '[[NAME]] pulled my pants down while I was asleep'". [NAME] agreed that he told [NAME]'s mother that the applicant had called out, "I was asleep, [[NAME]] was pulling my pants down". [37]

Other Evidence 1. [NAME]'s mother gave evidence that [NAME] told her that "as he was leaving the tent, [the applicant] shouted that [[NAME]] was trying to pull his pants down". [38] [NAME]'s mother recalled [NAME]'s mother telling her that "[[NAME]] was trying to pull [the applicant's] pants down while he was sleeping". [39]

2. The incident was reported to police after [NAME] told the applicant's sister that "[the applicant] asked me to talk to his penis and he put his penis in my mouth". [40] [NAME] told her mother who in turn rang [NAME]'s mother who told [NAME]. [41]

3. The [NAME] called the head of learning support at the applicant's high school. [42] He said the applicant had a "auditory processing disorder" which meant that he "would not understand the fullness of the instructions that were given or the story that was told". [43] He also said the applicant had a "moderate expressive language delay", which could make it difficult for him to express himself, and attention deficit hyperactivity disorder (ADHD). [44] He confirmed that the applicant had never been counselled for touching another student. [45]

Defence Case 1. The applicant did not participate in an interview with the police and did not give evidence. Through his counsel, it was maintained that [NAME] had come into the tent and pulled down the applicant's pants while he was sleeping.

[NAME]

1. To resolve ground 1, it is necessary to outline how the [NAME] made use of [NAME]'s evidence of the applicant's alleged silence after [NAME] said, "[w]hat's going on" and "[[NAME]], out", and the applicant's statement, "[[NAME]] pulled my pants down when I was asleep". The [NAME]'s address was directed to two particular matters the [NAME] had to prove beyond reasonable doubt. The first was whether the applicant placed his penis in [NAME]'s mouth. The second was whether, given the applicant was a juvenile, the [NAME] could prove beyond reasonable doubt that he knew his conduct was "seriously wrong, as distinct from an act of mere naughtiness or mischief" (i.e. doli incapax; see BP v R [2006] NSWCCA 172 at [27]−[29] per Hodgson JA with Adams J and [NAME] JA agreeing).

2. In her address, the [NAME] submitted that the [NAME] should accept [NAME]'s account of the events (in the JIRT interview). The [NAME] then moved to the applicant's defence, noting that the applicant denied doing anything to [NAME] and that it had been "suggested that it was [[NAME]] that pulled down [NAME]'s pants while [NAME] was asleep". [46] The [NAME] reminded the [NAME] of [NAME]'s denial of this suggestion. The [NAME] then submitted, "there are at least eight reasons why you would not accept that [it was] even a possibility" that [NAME] pulled down the applicant's pants. [47] When it came to the seventh reason, the [NAME] reminded the [NAME] of [NAME]'s evidence (set out above at [20]) and continued: [48] "[[NAME]] took [[NAME]] by the hand and started to walk back to the house. It was only then that [[NAME]] heard [NAME] finally respond to [[NAME]]'s question. He didn't respond straight away. He did not respond when [[NAME]] was ordered out of the tent. He didn't respond as [[NAME]] was opening the interior zipper or when he was coming out of that tent. He didn't respond as [[NAME]] took [[NAME]]'s hand and started to walk back to the house. It took [NAME] quite some time to actually respond. If [[NAME]] had pulled down his pants and if [NAME] was apparently upset enough to swear at [[NAME]], you might think he would have immediately told [[NAME]]'s father when h[is] father asked, but he didn't. He didn't say anything when [[NAME]] ordered him out, when [[NAME]] got out. He didn't say anything as they started to walk back to the house some metres from the tent and you might think the reason for this delay is because [NAME] was making up a story in case [[NAME]] told his parent[s] what [NAME] had done." After addressing the eighth reason, the [NAME] stated, "those are [the] eight reasons why you would reject the suggestion that [[NAME]] pulled down [NAME]'s pants". [49]

1. Shortly after this statement, there was a break in the address. In the absence of the [NAME] raised concerns that parts of the [NAME] address reversed the onus of proof. The [NAME] indicated that she would address the position when the [NAME] returned. [50] When the [NAME] returned, the [NAME] told them: [51] "Just to be clear, by saying that the suggestion that [[NAME]] pulled down [NAME]'s pants doesn't explain that [later] conversation [between [NAME] and the applicant's sister, [NAME]]… The [NAME] is not for a moment suggesting that [NAME] has to explain or prove anything. That burden rests firmly on the [NAME]. The [NAME] says that you would reject that suggestion, that it was [[NAME]] that pulled down [NAME]'s pants, and that you would put it to one side, and focus on [[NAME]]'s very powerful evidence, the [NAME] would say, and his very believable evidence about what [NAME] said in that tent about [his sister] and about [[NAME]] speaking with [the applicant's sister] about this on 4 April, okay?" (emphasis added)

1. This statement does more than merely confirm there was no reversal of the onus of proof; that hardly needed to be stated. Instead, the significance of this statement is that it placed the [NAME]'s seventh reason in context e.g. the [NAME]'s reliance on the applicant's delay in responding to [NAME] and him "making up a story". The [NAME] confirmed to the [NAME] that the [NAME] only relied on the seventh reason to rebut the suggestion that [NAME] pulled the applicant's pants down. The [NAME] was told that, if the suggestion was rejected, they should "put it to one side" and focus on [NAME]'s evidence.

2. Immediately after this, the [NAME] addressed doli incapax. [52] The [NAME] identified 10 reasons why the [NAME] would find that the applicant knew what he did to [NAME] (and the alleged [NAME] of count 3) was "seriously wrong". [53] The ninth and tenth reasons were as follows: [54] "The ninth reason the [NAME] suggests that you would be satisfied that [NAME] knew this behaviour was seriously wrong is because he said to [[NAME]], 'Don't tell anyone. You will get me in trouble.' This shows two very important things about what [NAME] knew, (1) that he knew to tell [[NAME]] not to tell anyone, that it was behaviour that needed to be kept a secret, but the second important thing about what [NAME] said to [[NAME]] is he knew he would get into trouble for what he'd done. Because he knew that he would get in trouble, he knew what he was doing was wrong, wrong enough to get him into trouble, wrong enough that when [[NAME]] entered the tent or opened the tent and asked them what was going on, he didn't say anything at all. He was silent, silent because he knew what he'd done was seriously wrong, silent until, you might think, until he managed to think up a lie in an attempt to cover up his behaviour. The tenth reason… is that [NAME] called out after [[NAME]] had taken [[NAME]] out of the tent, this story about [[NAME]] pulling his pants down. You might think that that shows a capacity and an ability to quickly think up a false story. He not only makes up that false story, but he does this, you might think, in case [[NAME]] told someone, told anyone about what [NAME] had done. So [NAME] understood that, if [[NAME]] did tell someone what [NAME] had done, he would need a story to counter that complaint to discredit [[NAME]] and, if he understood he needed to be this deceptive, you might think he certainly knew that what he did in that tent was seriously wrong. Members of the [NAME], for these reasons, some or all of them, the [NAME] says that you would be satisfied beyond a reasonable doubt that [NAME] knew what he did was seriously wrong and you would find him guilty in relation to counts 1 and 3." (emphasis added)

1. As the latter part of this extract makes clear, this was the final part of the [NAME]'s address to the [NAME]. No complaint was made about this submission during the trial.

2. The first part of this submission relied on the evidence of the applicant telling [NAME] "[d]on't tell anyone, you'[NAME] get me into trouble", as evidence that he knew his actions were seriously wrong. No complaint is made about the making of that submission for that purpose, nor could it be. The reliance by the [NAME] on such evidence to rebut doli incapax is entirely orthodox.

3. In this Court, [NAME] focussed on the balance of the [NAME]'s submission that the applicant's initial silence when [NAME] opened the tent involved him using that time to formulate the supposed lie he told shortly afterwards, namely, that [NAME] had pulled down his pants while he was asleep. It was contended that this submission was an (emphatic) appeal to the [NAME] to employ consciousness of guilt reasoning and use silence and an (alleged) lie as positive evidence that the applicant knew his actions were wrong and as positive evidence that he had sexually assaulted [NAME]. This contention is further addressed below.

The Defence Address 1. In relation to count 1, [NAME] addressed the [NAME] at length about the reliability of [NAME]'s account of events. [55] Counsel also addressed the [NAME] to the effect that the applicant's statement, "[[NAME]] pulled my down my pants when I was sleeping", was plausible. [56] In this context, it was submitted: [57] "You might also think that, given [the applicant's] moderate expressive language delay, something that [the head of learning support] told you can make it difficult for [the applicant] to express himself, that he's somebody who is not quick on his feet. He is unlikely to say anything at that point in time other than what just happened."

The Summing Up 1. At this point it is only necessary to note three matters about the summing up. First, the trial judge directed the [NAME] that, if they rejected the suggestion that [NAME] pulled the applicant's pants down, they should "put [it] to one side" because "[i]t is not a question of in any way reversing the onus of proof and somehow considering that [NAME] needs to establish that that account is correct" (i.e. a "[NAME] direction"; Liberato v The Queen (1985) 159 CLR 507; [1985] HCA 66). This direction is addressed to the substance of the applicant's assertion that [NAME] pulled his pants down. It does not deal with any reliance the [NAME] placed on the applicant's statement that [NAME] pulled his pants down.

2. Second, later in the summing up the trial judge referred to the evidence of [NAME] about the applicant's alleged silence between when he told [NAME] to leave the tenant and when the applicant supposedly called out "[[NAME]] pulled my pants down when I was asleep" (emphasis added). His Honour directed the [NAME] that if they accept that there was a delay: [58] "You may think it [the delay] is significant, and the [NAME] says to you he was thinking of what he should say to try and justify and explain away something innocent rather than something wrong that had been happening, and so he called that out as he was walking away. The defence says to you if there was a delay in calling it out, that is to be explained by understanding this young man's academic and intellectual circumstances and what has been said by the… teacher that has come along here and told you about it."

1. The first part of this passage refers to the [NAME]' address without specifying how the applicant's silence was potentially "significant".

2. Third, there was no complaint or application made to the trial judge in relation any of the directions given that even arguably related to the topic of the applicant's silence and alleged lie.

Ground 1: Failure to give a "lies direction"

1. Ground 1 of the Notice of Appeal contends that the trial judge's failure to direct the [NAME] as to how an alleged lie told by the applicant could be used to support the [NAME] case occasioned a miscarriage of justice.

2. The written submissions in support of this ground contended that the [NAME] invited the [NAME] to conclude that the applicant's silence and alleged lie in stating that [NAME] pulled his pants down, were both done out of fear that telling the truth would implicate him in the offence. Even though no directions were sought as to the significance of the applicant's alleged silence and alleged lie, it was submitted that to ensure a fair trial, it was essential that the trial judge give a direction on the use of lies (or silence) as evidence of a consciousness of guilt. Such a direction must precisely identify the alleged lie and direct the [NAME], inter alia, that before it can be used as evidence of a consciousness of guilt, it must be found to be a lie and not the result of confusion, lack of recollection or similar explanation, must relate to a "live" issue in the proceedings and must only be explicable on the basis that [NAME] knew that the truth would implicate him in the offence and was not told for some other reason, such as panic or wanting to escape an unjust accusation (see Edwards v The Queen (1993) 178 CLR 193; [1993] HCA 63 at 210−211). In oral argument, it was contended that, in light of the [NAME]'s apparent disclaimer of the use of the applicant's alleged lie as a consciousness of guilt (noted above at [27]), an alternative may have been to give the [NAME] a "Zoneff direction" precluding the use of the alleged lie for that purpose (Zoneff v The Queen (2000) 200 CLR 234; [2000] HCA 28 at [23]; "Zoneff").

3. The [NAME]'s written submissions in this Court contended that the [NAME]'s address did not invite the [NAME] to infer a consciousness of guilt on the part of the applicant from his silence and alleged lie that [NAME] pulled down his pants. The submissions contended that the [NAME]'s address only invited the [NAME] to reject the applicant's assertion that [NAME] had pulled his pants down and instead focus on [NAME]'s version of events. The [NAME] contended that "there is a difference between the mere rejection, or non-acceptance, of an [[NAME]'s] account… and finding that [they] lied", much less that such a lie amounts to a consciousness of guilt.

4. One matter of great significance as to whether an [NAME] (or Zoneff) direction is required is the use sought to be made of the alleged lie by the [NAME] (whether in submissions or cross-examination: see [NAME] v R [2012] NSWCCA 1 at [36]−[37] and [42] per Latham J with Whealy JA and Hislop J agreeing). Thus, in Zoneff, Gleeson CJ, Gaudron, Gummow and Callinan JJ observed (at 16]): "As a general rule… an [NAME]-type direction should only be given if the [NAME] contends that a lie is evidence of guilt, in the sense that it was told because… '[NAME] knew that the truth ... would implicate him in [the commission of] the offence' and if, in fact, the lie in question is capable of bearing that character."

1. Even so, the fact that the [NAME] did not seek to rely on consciousness of guilt reasoning, expressly or impliedly, is not necessarily determinative as to whether a (Zoneff) direction should be given (Dhanhoa v The Queen (2003) 217 CLR 1; [2003] HCA 40; "[NAME]"). In [NAME] was interviewed by police and denied being at a hotel and an apartment around the time where an offence of robbery in company with wounding and kidnapping took place. At the trial, [NAME] gave evidence admitting that he was at the hotel and then at the unit but otherwise provided an explanation consistent with innocence. In circumstances where the [NAME] did not seek to rely on [NAME]'s statements in the police interview as a consciousness of guilt, the High Court held that it was not necessary to either give an [NAME] direction or a Zoneff direction (per Gleeson CJ and [NAME] at [34], [NAME] JJ at [59]; Callinan J contra at [96]−[97]). Gleeson CJ and [NAME] observed that "[w]here the [NAME] does not contend that a lie is evidence of guilt, then, unless the judge apprehends that there is a real danger that the [NAME] may apply such a process of reasoning, as a general rule it is unnecessary and inappropriate to give an [NAME] direction" (at [34]). To similar effect, [NAME] JJ held that in such a case a miscarriage of justice will be established if there is a "reasonable possibility" that a failure to direct the [NAME] may have affected the verdict, that is, if there is a reasonable possibility that the "[NAME] may have reasoned that [NAME] was guilty because he had lied to the police" (at [60]).

2. In this case, had the [NAME]'s reference to the applicant's silence and then alleged lie ceased at the point noted above at [28], then it could not be said that the Prosecutor contended that the silence or alleged lie amounted to a consciousness of guilt nor that there was a real chance or possibility that the [NAME] might use them as such. However, the [NAME]'s reference to the applicant's silence and alleged lie did not cease at that point. Instead, the [NAME]'s address returned to them and made a submission in the most emphatic of terms. In that part of the address set out above at [30], the [NAME] invited the [NAME] to find that, after [NAME] opened the tent and spoke to the applicant and [NAME], the applicant "was silent" "because he knew what he'd done was seriously wrong, silent until, you might think, until he managed to think up a lie in an attempt to cover up his behaviour" (emphasis added). The [NAME] also invited the [NAME] to find that the applicant had made up a "false story" and did so "in case [[NAME]] told someone, told anyone about what [NAME] had done" (emphasis added).

3. The [NAME]'s submission set out at [30] was made in the context of rebutting any presumption of doli incapax, but at this point that only invites an inquiry as to how the applicant's silence and alleged lie were said to demonstrate his knowledge that his actions were "seriously wrong". The chain of reasoning by which the [NAME] contended he had such knowledge assumes, or implicitly asserts, that the applicant's silence and alleged lie were not only evidence that he knew "what he had done" was wrong but were also evidence that he did what he was [NAME] of doing to [NAME]. To say that the silence and alleged lie revealed the applicant "knew that what he did in that tent was seriously wrong" only makes sense if the silence and alleged lie were also treated as revealing "what he did in that tent" (emphasis added). To say that the applicant was silent "until he managed to think up a lie in an attempt to cover up his behaviour" treats the silence and the lie as evidence that he behaved in a manner that had to be covered up. Properly analysed, the passage from the [NAME]'s address was an (emphatic) appeal to consciousness of guilt reasoning (cf [NAME]).

4. The [NAME] further submitted that, even if the [NAME]'s address did seek to engage consciousness of guilt reasoning, there was no requirement for the trial judge to direct the [NAME] as to how to use the alleged lie to support the [NAME] case. This was said to be so because the assertion that [NAME] pulled down the applicant's pants "formed the centrepiece of the defence case at trial". The submission continued: [59] "Accordingly, the issue in the trial for determination by the [NAME] was whether the applicant sexually assaulted [[NAME]] by convincing [[NAME]] to fellate him, or whether the [NAME] accepted or had a doubt that [[NAME]] pulled down the applicant's pants while the applicant was trying to sleep. The risk of the [NAME] reasoning that the applicant said this simply because he was guilty did not arise, because the innocent explanation for the statement was before the [NAME] as a central dispute between the [NAME] and the applicant in the matter which the [NAME] had to decide."

1. I do not accept this submission. As the [NAME] direction made clear, the trial did not reduce to a simple binary choice as to whether the applicant sexually assaulted [NAME] or whether [NAME] pulled the applicant's pants down while he was asleep. A rejection of the latter did not necessarily mean an acceptance of the former. While it may be that an "innocent explanation" for the applicant's statement that [NAME] pulled his pants down was before the [NAME] (i.e. that it was true), that does not address other possible explanations (e.g. panic on the applicant's part that [NAME] may have misconstrued events) nor other aspects of the [NAME]'s submission which concerned the applicant's silence after [NAME] entered the tent. One of the possible innocent explanations for that silence was raised before the [NAME], being the evidence of the head of learning support at the applicant's high school (see above at [24]). However, other explanations for any such silence which do not involve accepting the [NAME]'s contention that the applicant was using the time to formulate a lie were also possible. Even if the [NAME] were satisfied that the applicant used the silence to formulate a lie and then lied, an [NAME] direction would have brought home to the [NAME] the necessity to be satisfied that the explanation for the silence and lie was that the applicant knew that a truthful answer to [NAME]'s question, "[w]hat's going on", would "implicate him in the offence" and was not told for some other reason such as panic, wanting to escape an unjust accusation or the applicant believing he was in some form of trouble but not being sure why ([NAME] at 211).

Rule 4.15 and Miscarriage of Justice 1. In this Court, the [NAME] noted that no direction to the effect now sought on appeal was sought at the trial. The [NAME] referred to r 4.15 of the Supreme Court (Criminal Appeal) Rules 2021 (NSW) and contended that no miscarriage of justice was occasioned. The [NAME]'s submissions noted that, at the trial, [NAME] had sought a direction to the effect that the [NAME] could use the fact that the applicant was a person of good character to support the credibility of his statement(s) that [NAME] pulled his pants down. [60] The [NAME] submitted to the trial judge that, if such a direction was given, then the trial judge should also reiterate the eight reasons given by the [NAME] for not accepting the statement(s). [61] Later, in the absence of the [NAME], the trial judge observed that there was "force" in the [NAME]'s submission and declined to expand the character direction in the manner sought by [NAME]. [62] [NAME] did not press the issue further. [63]

2. The [NAME] contended that the applicant's trial counsel had "made a considered decision not to seek a direction that would lead to the trial judge summarising the reasons that the [NAME] had submitted the [NAME] would not accept the applicant's statement that [[NAME]] had pulled his pants down". It was submitted that for the same reason, such counsel either did not seek, or if he was aware of the issue would not have sought, an [NAME] direction as that would also require a restatement of the eight reasons why the [NAME] said the statement was a lie. As there was, or at least appeared to be, a proper forensic basis for not seeking a direction, it was submitted that r 4.15 should be applied and there was otherwise no miscarriage of justice. [64]

3. I do not accept that it is proper to characterise the course of events as trial [NAME] evincing an intention not to have the [NAME]'s eight reasons reiterated to the [NAME] at any cost. [NAME] made the application for an expansion of the character direction and never withdrew that application. It was the trial judge who expressed apprehension about repeating the eight reasons, not [NAME]. In any event, this debate took place in a context whereby the [NAME] had expressly disclaimed consciousness of guilt reasoning but then reintroduced it when addressing the [NAME] on doli incapax. If [NAME] had been alert to the proper effect of the [NAME]'s submission noted above at [30], which I doubt they were, then any reticence on their part to have the eight reasons for the alleged lie repeated may have dissipated. Further, given the [NAME]'s earlier disclaimer, this only highlights that the proper response to the [NAME]'s submission was to give a Zoneff direction. The giving of such a direction would not have required any recitation of the [NAME]'s eight reasons why the applicant's statement(s) was false.

4. Lastly, it is pertinent to note that the accepted vice in the trial arose in circumstances where the [NAME] ran the trial without identifying its reliance on consciousness of guilt reasoning, made the submission noted above (at [27]), confirmed that it was not relying on such reasoning (at [28]) but then emphatically sought to rely on that reasoning to rebut the presumption of doli incapax (at [30]). [NAME] could have sought a direction to alleviate this. However, properly analysed, the defect in this trial was occasioned by the manner in which it was conducted by the [NAME]. If follows that, to the extent it may be necessary, leave should be granted under r 4.15 to raise this ground.

Conclusion 1. In light of the manner in which the [NAME] addressed the [NAME], I consider that to ensure a fair trial, it was necessary for the trial judge to have either given an [NAME] direction or a Zoneff direction. Given the issues at the trial, I consider that the failure to do so had a "real chance" of affecting the [NAME]'s verdict (Hofer v The Queen [2021] HCA 36; (2021) A Crim R 114 at [41] and [47] per Kiefel CJ, Keane and Gleeson JJ and at [118] per Gageler J; "[NAME]") and "realistically [could] have affected the verdict of guilt" ([NAME] at [123] per Gageler J, cited in AK v R [2022] NSWCCA 175).

2. I would grant leave under r 4.15 to raise this ground of appeal. I would uphold the ground.

Ground 2: Taking of a Majority Verdict 1. Ground 2 of the appeal contends that the trial judge's decision to allow the return of majority verdicts without concluding, pursuant to s 55F(2)(b) of the [NAME] Act 1977 (NSW), that it was unlikely the [NAME] would reach a unanimous verdict after further deliberation occasioned a miscarriage of justice. As will become clear, this ground does not precisely embrace the real complaint made on appeal, which was that it was not open to the trial judge to reach that conclusion.

[NAME]

1. The [NAME] retired to consider the verdicts at around 1:00pm on Wednesday 5 May 2021. On Friday 7 May 2021, at around 11.00am, the [NAME] sent a note stating, "we the [NAME] cannot agree on a unanimous decision on count 1 and count 3". [65] His Honour then gave the [NAME] a "Black direction" concerning the resolution of the deadlock (Black v The Queen (1993) 179 CLR 44; [1993] HCA 71). Just after lunch on 7 May 2021, the [NAME] were provided with transcripts of the evidence in the trial and the addresses of counsel. [66]

2. At around 3.50pm on 7 May 2021, the [NAME] sent another note stating, "after further deliberation, we the [NAME] have been unable to come to a unanimous decision on counts 1 and 3". [67] At around 4.20pm that same day, the foreperson of the [NAME] came into court and was affirmed. [68] The following exchange took place: "HIS HONOUR Q. I have received a note, this is a formal requirement, that says that: 'After further deliberation, we the [NAME] have been unable to come to a unanimous decision on the two counts, namely 1 and 3'. That is the present situation is it? A. Yes, your Honour. Q. Thank you. Will you please have a seat." (emphasis added)

1. His Honour then gave the [NAME] a majority verdict direction and sent them home for the weekend. [69] The [NAME] returned on Monday 10 May 2021 and deliberated further. Just before lunch that same day, the [NAME] returned a majority verdict of guilty on count 1 and a unanimous verdict of not guilty on count 3.

Majority Verdicts 1. Section 55F of the [NAME] Act relevantly provides: "55F Majority verdicts in criminal proceedings (1) This section applies in respect of a verdict in criminal proceedings where the [NAME] consists of not less than 11 persons. (2) A majority verdict may be returned by a [NAME] in criminal proceedings if— (a) a unanimous verdict has not been reached after the jurors have deliberated for a period of time (being not less than 8 hours) that the court considers reasonable having regard to the nature and complexity of the criminal proceedings, and (b) the court is satisfied, after examination on oath of one or more of the jurors, that it is unlikely that the jurors will reach a unanimous verdict after further deliberation."

1. There was, and is, no issue about the satisfaction of s 55F(2)(a). However, in relation to s 55F(2)(b), the applicant's submissions noted that the question asked of the foreperson was confined to the "current situation" and did not address the terms of s 55F(2)(b), which is addressed to an unlikelihood that the jurors will reach a unanimous verdict in the future. In oral argument, it was accepted that the subsection does not impose an obligation on the trial judge to ask a particular question or questions of the jurors who are examined on oath. Further, contrary to the manner in which the ground of appeal is expressed, it was not submitted that the trial judge did not address s 55(2)(b) (cf KE v R [2021] NSWCCA 119). However, it was submitted that, given the narrow inquiry that was made by the trial judge and the circumstances that preceded the foreperson being affirmed, it was not open to the trial judge to form the conclusion that the requirements of s 55F(2)(b) had been "satisfied". [70]

2. I accept that it would have been preferable if the trial judge has asked the foreperson a specific question directed to the likelihood or unlikelihood of the juror reaching a unanimous verdict if further deliberations took place. I also accept that it may have been preferable to send the [NAME] home for the weekend without giving a majority verdict direction and allow a further period of deliberation on the Monday morning before giving that direction. However, those observations all have the benefit of hindsight. This was a short trial. It commenced on Thursday 29 April 2021. The [NAME] retired to consider the verdict on the following Wednesday 5 May 2021. By late Friday afternoon, the [NAME] had been deliberating for around two and a half days. The issues in the trial were not especially complex. The [NAME] had twice told the trial judge that a unanimous verdict could not be reached. By the time the trial judge was informed on the second occasion, it had been five hours since they received the Black direction. In those circumstances, it was open to the trial judge to be satisfied that the requirements of s 55F(2)(b) of the [NAME] Act were satisfied.

3. I would reject ground 2 of the appeal.

Appropriate Relief 1. As I would uphold ground 1 of the appeal, an issue arises as to what order the Court should make as a consequence. The applicant contends that, as he has completed most of his sentence, he should not be put to the oppression of a new trial but instead an acquittal should be entered.

Principles 1. Section 6(2) of the Criminal Appeal Act 1912 (NSW) provides that "[s]ubject to the special provisions of this Act, the Court shall, if it allows an appeal under section 5(1) against conviction, quash the conviction and direct a judgment and verdict of acquittal to be entered." One of the "special provisions" to which s 6(1) refers is s 8(1). It provides: "On an appeal against a conviction on indictment, the court may, either of its own motion, or on the application of the appellant, order a new trial in such manner as it thinks fit, if the court considers that a miscarriage of justice has occurred, and, that having regard to all the circumstances, such miscarriage of justice can be more adequately remedied by an order for a new trial than by any other order which the court is empowered to make."

1. I addressed the operation and application of these provisions in a very similar case, [NAME] v R (2020) 102 NSWLR 467; [2020] NSWCCA 142 ("[NAME]"), at [93]−[96] as follows: "The principles governing the exercise of the power to order a new trial under s 8(1) were distilled by McClellan CJ in Gilham v R [2012] NSWCCA 131 at [648] to [660] ("Gilham"). It can only be exercised if the evidence presented at trial was sufficiently cogent to justify a conviction (Gilham at [648]) which in this case it was. Otherwise, unless the interests of justice require the entry of an acquittal, an appellate court should ordinarily order a new trial of a charge where a conviction in respect of that charge has been set aside but there is evidence to support the charge (Spies v The Queen (2000) 201 CLR 603; [2000] HCA 43 at [104]; "[NAME]"). In this case there are powerful considerations in favour of entering acquittals. The Appellant was aged 15 at the time of the events the subject of the charges against him. He is now 21 years old. The fact that he has already served the non-parole period of his sentence is a very significant factor in favour of entering an acquittal (Jiminez v The Queen (1992) 173 CLR 572 at 590; [1992] HCA 14 per [NAME]). Having regard to the principles applicable on sentencing after a further trial there is no prospect of the Appellant being returned to custody. Of particular concern is the potentially oppressive effect of putting the Appellant to the expense and worry of a further trial ([NAME] at [103]). In his case it would be his fourth trial not including the trial that was marked 'not reached'. In Gilham, McClellan CJ at CL referred to various cases that declined to order a third trial of an [NAME] (at [658]). If the Appellant is to stand trial again, it is unlikely to take place before 2021 which will [be] around four years after he was first arraigned in the District Court. Such a trial will impose a heavy burden on a person charged with an offence they allegedly committed as a juvenile. Against these factors is the seriousness of the charges laid against the Appellant (Haoui v R [2008] NSWCCA 209; (2008) 188 A Crim R 331 at [164] per [NAME]), the public interest in the due [NAME] and conviction of offenders (R v Taufahema (2007) 228 CLR 232; [2007] HCA 11 at [49]; "Taufahema"), as well as the public interest in not usurping the role of the Director of Public Prosecutions ("[NAME]") in deciding to prosecute and the role of the [NAME] in determining the guilt or innocence [of] an [NAME] (Taufahema at [51]). I have not found this aspect of the appeal easy to resolve. In the end result, the decisive factor in my declining to enter acquittals is the nature of the error that has led to the [NAME]'s verdicts being set aside (ALS v R [2013] NSWCCA 63 at [115]). The error did not relate in any way to the nature or quality of the evidence that was led or available to be led in support of the [NAME] case, but instead concerned the legal test applicable to an interlocutory application to recall [NAME]. Given an error of that kind, the decision as to whether to place the Appellant on trial should be left to the exercise of the [NAME]'s discretion rather than pre-empted by this Court. Needless to say, that discretion should only be exercised after very careful consideration." (emphasis added)

1. The reasoning of [NAME] in ordering a retrial in [NAME] was to similar effect (at [99]−[100]). [NAME] disagreed. As a retrial in [NAME] would have been the fourth trial for the applicant and there was no prospect of the applicant being returned to custody, his Honour would have ordered that an acquittal entered (at [1]).

2. Four further matters affecting the power to either order a new trial or enter an acquittal of relevance to this case should be noted.

3. First, in Spies v The Queen (2000) 201 CLR 603; [2000] HCA 43, the High Court ordered a new trial of the appellant on a charge of improperly using his position as a director of a company under former s 229(4) of the Companies (New South Wales) Code 1981 (NSW), notwithstanding that it was "unthinkable" he would receive "any additional punishment" if he was convicted (at [103] per Gaudron, [NAME] JJ). Their Honours noted that the case against the appellant was "strong" and that "members of the [NAME] as well as the general public have a vital interest in ensuring that the directors who abuse their office and breach the criminal or company law do not escape conviction" (ibid).

4. On some occasions, the sentencing of an offender following conviction for sexual offences can engage legislative regimes that are designed to protect the community beyond simply incarcerating the relevant offender (see, for example, s 3A of the [NAME]). In a particular case, the possibility that entering an acquittal on an otherwise strong case might preclude the engagement of statutory provisions designed to protect the community could be a factor in favour of ordering a new trial. It is unnecessary to consider this further given that, in this case, the trial judge made a declaration that had the effect of excluding the applicant from the operation of the [NAME]. In those circumstances, it seems extremely unlikely that such an order would be made if the applicant was convicted at a retrial.

5. Second, as the above discussion indicates, one factor in favour of ordering an acquittal is that a particular appellant has served all, or perhaps much, of their sentence. In this case, the appeal is being determined when the applicant has served almost two-thirds of his community corrections order. However, the fact that the appeal is being determined so close to the end of the applicant's sentence is principally due to the delay on his part, or more accurately his lawyers' part, in pursuing the appeal (see above at [8]). At least in circumstances where an appellant is not serving a custodial sentence, the fact that most, if not all, of the "sentence" has been served by the appellant when the appeal is decided, and which is principally due to delay on their part in the [NAME] of the appeal, is a factor weighing against the entry of an acquittal. As a general proposition, in such cases, persons who do not appeal their convictions with diligence should not be placed in a superior position to those who do.

6. Third, as noted in [NAME], I considered the "nature of the error" which vitiated the conviction was a matter affecting whether to order a new trial or enter an acquittal. The error in [NAME] was a misconstruction by the trial judge of s 306J of the Criminal Procedure Act 1986 (NSW) in determining not to allow further cross‑examination of a complainant at a retrial. That error did not affect the "nature or quality" of the evidence that was lead at the trial and it was not inevitable that, had the error not occurred, leave to cross-examine the complainant at a retrial would have been granted ([NAME] at [96]). In this case, the error concerned the use that could have been made of the applicant's alleged silence and alleged lie by the [NAME]. It seems likely that, if pressed, the [NAME] would have agreed to a Zoneff direction which would have restricted the use that could be made of the silence and alleged lie. That said, even if the silence and alleged lie were not relied on as evidence of a consciousness of guilt, the [NAME] case remains reasonably strong.

7. Fourth, in some cases, it will also be necessary to consider how the relevant error occurred and who was responsible for it. This is famously illustrated by Gleeson CJ's reasons for not ordering a retrial in Anderson v The Queen (1991) 53 A Crim R 421 at 453 where his Honour observed: "The trial of the appellant miscarried principally because of an error which resulted in large part from the failure of the [NAME] adequately to check aspects of the Jayawardene theory [being the case theory ultimately relied on by the [NAME]]. This was compounded by what I regard as an inappropriate and unfair attempt by the [NAME] to persuade the [NAME] to draw inferences of fact, and accept argumentative suggestions, that were not properly open on the evidence and that were in some respects contrary to the evidence. I do not consider that in those circumstances the [NAME] should be given a further opportunity to patch up its case against the appellant. It has already made one attempt too many to do that, and I believe that, if that attempt had never been made, there is a strong likelihood that the appellant would have been acquitted."

Evidence 1. At the hearing of the appeal, the applicant was granted leave to file an affidavit from the applicant's mother concerning the effect of the proceedings on him. The [NAME] filed supplementary submissions indicating that it did not oppose the affidavit being read as it could be said to be "necessary or expedient in the interests of justice" (Criminal Appeal Act, s 12(1)). However, the [NAME] objected to portions of the affidavit on the basis that they were mere expressions of suspicion or belief [71] or were not relevant in that they appeared to be directed to the stress and anxiety of the applicant's mother had experienced from the proceedings rather than the position of the applicant. [72] I would uphold those objections, save for so much of par 8 of the affidavit and annexure A that are objected to which recites that, following his conviction, the applicant was required to leave his school, which he had attended since [NAME] 5, and its effect on his education.

2. The affidavit addresses the effect on the applicant of the stress of court proceedings over a number of years and as well as during the period after he was convicted. His mother observed him to be become withdrawn, stressed and sleep deprived. She said that after his conviction the applicant had to leave his school and his condition worsened. His only educational option was to enrol in TAFE, which became even more difficult than it otherwise would have been because it had to be delivered online during the pandemic. The applicant's mother says that at one point he developed what appeared to be "black outs" from stress-related migraines. In March 2022, he self-harmed by cutting his wrists and arms.

3. There is no doubt that in determining whether to order a new trial or enter an acquittal, this Court can consider the fact that the applicant was a juvenile at the time of the alleged commission of the offence and throughout the period leading up to his conviction. However, the extent to which material of the kind referred to in his mother's affidavit can be considered in determining whether to enter an acquittal or order a new trial is not clear. Presumably, there must be some dividing line between material bearing on the exercise of the Court's powers and material to be considered in the exercise of prosecutorial discretion. It is not necessary to consider this further as I will proceed on the basis, favourable to the [NAME], that when it comes to determining whether a person should or may face another trial, subjective material beyond the status of the applicant as a juvenile are matters that only the Director of Public Prosecutions ("[NAME]") can consider and not this Court.

Resolution 1. [NAME], the question of whether to enter an acquittal or order a new trial is not an easy one to resolve. On the one hand, the applicant has almost served two-thirds of his community corrections order. He was under 14 years old when the offence was alleged to have been committed, he stood trial when was just under 17 years old and is now 19 years old. Even without consideration of his mother's affidavit, it is self-evident that these proceedings, including his conviction, have had a serious effect on him. Against that, there is a reasonably strong [NAME] case and the charge is undoubtedly serious. As noted in the passage from [NAME] (see above at [64]), there is a "public interest in the due [NAME] and conviction of offenders" and in not usurping the roles of the [NAME] in deciding whether to prosecute and the [NAME] in determining the guilt or innocence of an [NAME]. The nature of the error that has vitiated the conviction is such that it still leaves a case of reasonable strength.

2. Ultimately, it is the cause of that error that tips the balance in favour of an acquittal. Having assured the trial judge and then the [NAME] that the only reason to consider the applicant's silence and alleged lie was to "reject [the] suggestion, that it was [[NAME]] that pulled down [NAME]'s pants" and, if the [NAME] did so find they "would put it to one side", the [NAME] instead returned to the same topic by making an emphatic appeal to consciousness of guilt reasoning. Having initially told the [NAME] to the contrary, the [NAME] left the suggestion that a [NAME] with auditory processing issues was a calculating liar whose calculating lie demonstrated his guilt ringing in the [NAME]'s ears. This should not have happened. In these circumstances, I do not consider that the [NAME] should be given a further opportunity to pursue a case against the applicant.

3. I propose that a verdict of an acquittal be entered.

Proposed Orders:

1. I propose the following orders: (1) The time in which the application for leave to appeal may be brought be extended up to and including 16 September 2022; (2) The applicant be granted leave to raise grounds 1 and 2 of the Notice of Appeal; (3) Ground 1 be upheld; (4) The appeal be allowed; (5) The applicant's conviction for an offence under s 66A(1) of the Crimes Act 1900 (NSW) entered on 10 September 2021 be set aside; (6) In lieu thereof a verdict of acquittal be entered. 1. [NAME]: I have had the advantage of reading the judgment of [NAME]-[NAME] CJ at CL in draft. I agree with the orders proposed by his Honour for the reasons provided. As his Honour has observed at [75], the question of whether to order a new trial or enter an acquittal in this matter is a difficult one. His Honour ultimately concluded that a verdict of acquittal should be entered for the reasons provided at [63]−[76]. I have carefully considered the factors identified by his Honour as being relevant to this question and I too am satisfied, on the facts in this case, that the appropriate order is to enter a verdict of acquittal. 2. [NAME]: I agree with the proposed orders of [NAME]-[NAME] CJ at CL and with his Honour's reasons.

**********

Endnotes 1. Crimes Act 1900 (NSW), s 578A; Children (Criminal Proceedings) Act 1987 (NSW), s 15A.

2. Appeal Book ("[NAME]") 5. 3. 30 April 2021 T27.31. 4. 30 April 2021 T27.16. 5. [NAME] interview Q/A 65, Q/A 136; 13 November 2020 T2.12-16. 6. 30 April 2021 T29.8. 7. 30 April 2021 T29.49-30.30, T36.32-35.

8. Exhibit 6 (disc); part of MFI E (transcript). 9. 4 May 2021 T14-23; 5 May 2021 SU 82-83, SU 89-92, SU 97-98; 6 May 2021 SU 99.

10. Exhibit 7; part of MFI E (transcript). 11. [NAME] interview Q/A 45, Q/A 92. 12. [NAME] interview Q/A Q/A 45, Q/A 94. 13. [NAME] interview Q/A 109. 14. 30 April 2021 T31.11-22; 3 May 2021 T54.11-21, T65.47-66.13. 15. [NAME] interview Q/A 141-143. 16. [NAME] interview Q/A 143-147. 17. [NAME] interview Q/A 109; [NAME] 964. 18. [NAME] interview Q/A 149-150. 19. [NAME] interview Q/A 160. 20. [NAME] interview Q/A 197-199. 21. [NAME] interview Q/A 217-218. 22. [NAME] interview Q/A 223. 23. [NAME] 86.40. 24. [NAME] 87.10. 25. [NAME] 93. 26. 30 April 2021 T28.30 27. 30 April 2021 T30.30 28. 30 April 2021 T31.10-15 29. 30 April 2021 T31.15 30. 30 April 2021 T31.38-39 31. [NAME] 314.9. 32. 30 April 2021 T31.48-32.3, T44.44 33. 30 April 2021 T32.12-13. 34. 30 April 2021 T40.10-13. 35. 30 April 2021 T41.21-23, T44.46-445.4. 36. 30 April 2021 T41.28-39. 37. 30 April 2021 T42.27-34. 38. [NAME] 337.20. 39. [NAME] 349.5. 40. [NAME] 319.42. 41. [NAME] 319. 42. [NAME] 373. 43. [NAME] 375.1. 44. [NAME] 375.32. 45. [NAME] 377.18. 46. [NAME] 433.14. 47. [NAME] 433.18. 48. [NAME] 435. 49. [NAME] 436.18. 50. [NAME] 440 to 441. 51. [NAME] 442. 52. [NAME] 442. 53. [NAME] 442.34. 54. [NAME] 449. 55. [NAME] 452 to 457. 56. [NAME] 457.15. 57. [NAME] 457.15. 58. [NAME] 523. 59. [NAME] submissions at [55]. 60. [NAME] 527.3. 61. [NAME] 527.6. 62. [NAME] 545.9. 63. [NAME] 546. 64. [NAME] subs at [66]−[71]. 65. [NAME] 569.3. 66. [NAME] 578.1. 67. [NAME] 578.3. 68. [NAME] 581.1. 69. [NAME] 581 to 584.

70. Tr 27/03/2023 p 12; Applicant's submissions at [58]. 71. [NAME] supplementary submissions at [6(a)]. 72. [NAME] supplementary submissions at [6(b)]. DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 03 July 2023