High Court rules Queensland judge’s “impugned statement’’ to jury led to miscarriage of justice

Australia’s highest court has ruled a Queensland trial judge’s statement to a jury about an accused teenage sex offender’s failure to give evidence at his trial had led to a miscarriage of justice.

The High Court of Australia last week (Nov 4) unanimously allowed an appeal from the Court of Appeal of the Supreme Court of Queensland in the case of “GBF”

The Court, in a written summary, said the child GBF, has been found guilty by a Queensland District Court jury of six of seven counts of sexual offences allegedly committed against his half-sister when she was aged 13 and 14.

“The prosecution case was wholly dependent upon acceptance of the complainant’s evidence. The appellant did not give or call evidence,’’ the High Court summary says.

“The trial judge directed the jury in unexceptional terms with respect to the presumption of innocence and the onus and standard of proof, instructing the jury that (GBF’s) silence could not be used as a makeweight, to fill gaps in the prosecution’s evidence or to strengthen its case.

“However — later in the trial judge’s charge — after referring to the complainant (child’s) evidence, (the judge) instructed the jury to: ‘bear in mind that (the complainant) gave evidence and there is no evidence, no sworn evidence, by (GBF) to the contrary of her account. That may make it easier’.


“The jury returned verdicts of guilty with respect to six counts.”

GBF challenged his convictions in the Queensland Court of Appeal, contending that, in effect the trial judge’s “impugned statement’’ was a direction to the jury that the absence of evidence from him might make it easier to find him guilty.

The QCA acknowledged that the impugned statement should not have been made but found that there was no real possibility … the jury may have misunderstood the earlier correct directions.

It also found GBF had not been deprived a real chance of acquittal.

The COA held that the impugned statement had not cause a miscarriage of justice. The conclusion took into account the fact that neither the prosecutor nor defence counsel applied for any redirection arising from the making of that statement.

By grant of special leave, GBF appealed to the High Court.


The High Court accepted counsel for GBF’s submission that the effect of the impugned statement was to invite the jury to engage in a process of reasoning that was contrary to the earlier correct directions.

“The impugned statement encouraged the jury to find it easier to accept the complainant’s allegations because the appellant had not given sworn evidence denying them,’’ the High Court found.

“Such a process of reasoning is false because it proceeds upon a view that an accused may ordinarily be expected to give evidence, which is insupportable in an accusatorial system of criminal justice.

“It followed that the QCA was wrong in finding that the impugned statement was not an irregularity amounting to a miscarriage of justice.

“Further, as the impugned statement had the capacity to affect the jury’s assessment of the complainant’s evidence it was not open to find, and indeed the respondent appropriately did not contend, that the proviso, which permits the Court to dismiss an appeal against conviction if it considers that no substantial miscarriage of justice has actually occurred, had been engaged.

“Accordingly, the Court allowed the appeal, set aside the appellant’s convictions and ordered that a new trial be had.’’ Read the full High Court decision here:

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