In GBF v The Queen  HCA 40 (4 November 2020) the High Court was required to determine whether a trial judge had misdirected a jury by instructing the jury to “bear in mind that [the complainant] gave evidence and there is no evidence, no sworn evidence, by the defendant to the contrary of her account. That may make it easier” (the impugned statement).
The defendant had been charged with seven counts of sexual offences against the complainant, the defendant’s half-sister. The conduct was said to have occurred in the period 1 December 2012 to 24 August 2013 when the defendant was 33 and 34 years of age and the complainant was just 13 and 14 years of age. The jury found the defendant guilty of all but two of the charges.
The defendant unsuccessfully appealed to the Queensland Court of Appeal. Boddice J, in the leading judgment, recognised that the impugned statement conveyed a suggestion that the jury were entitled to, but deprived of, the defendant’s testimony. But Boddice J concluded there was no real possibility that the jury misunderstood the trial judge’s directions given that earlier, before making the impugned statement, the trial judge had given specific directions as to the presumption of innocence and neither counsel had made an application for any redirection at the time.
The High Court unanimously overturned the Court of Appeal’s decision finding that the trial judge’s direction was an irregularity amounting to a miscarriage of justice.
In a single set of reasons, spanning 27 short paragraphs, the High Court ruled that, just as in Azzopardi v The Queen (2001) 205 CLR 50, the trial judge’s impugned statement contradicted his earlier direction on the onus of proof and invited the jury to engage in a similar false process of reasoning.
Dr Michelle Sharpe is a Victorian barrister practising in general commercial, real property, disciplinary and regulatory law, 03 9225 8722, email firstname.lastname@example.org. The full version of these judgments can be found at austlii.edu.au.