Recent Cases

GBF v The Queen [2020] HCA 40 (04 November 2020) (Kiefel CJ, Bell, Keane, Gordon and Edelman JJ)


Criminal practice – Trial – Directions to jury – Where appellant charged in seven counts with sexual offences allegedly committed against complainant half-sister when she was 13 and 14 years old – Where prosecution case wholly dependent on acceptance of complainant’s evidence – Where appellant did not give or call evidence at trial – Where trial judge directed jury in unexceptional terms with respect to presumption of innocence and onus and standard of proof – Where trial judge later stated that failure of appellant to give sworn evidence “may make it easier” to assess complainant’s credibility (“impugned statement”) – Where neither prosecutor nor defence counsel applied for redirection arising from making of impugned statement – Whether impugned statement occasioned miscarriage of justice because its effect was to invite jury to reason to appellant’s guilt from his exercise of right to silence – Whether influence of impugned statement weakened because it was comment not direction of law – Whether failure of either counsel to seek redirection weighed against conclusion that integrity of trial compromised – Whether impugned statement ambiguous such that there was no reasonable possibility jury would have felt it open to reason impermissibly.

Words and phrases – “absence of evidence”, “contradictory instruction”, “directions of law”, “exercise of the right to silence”, “false process of reasoning”, “irregularity”, “judicial observation on the facts”, “miscarriage of justice”, “onus of proof”, “presumption of innocence”, “proviso”, “real chance of acquittal”, “reason to guilt by an impermissible path”, “redirection”, “standard of proof”, “sworn evidence”.