SUPREME COURT OF QUEENSLAND

[1]  McMURDO P:  The appellant was convicted after a three day jury trial of two counts of rape.  He ultimately appealed against his convictions on only two grounds.  First, he contended the judge’s summing up lacked balance.  His second contention was that the judge failed to give proper directions about the appellant not giving evidence in the trial.

[2] Before returning directly to those contentions, it is necessary to understand the essence of the evidence relied on by the prosecution at trial; the defence case and the judge's directions to the jury. 

The evidence at trial

[3] The complainant was the appellant’s 12 year old "niece", at least in the sense that she regarded him as an uncle.  The offences were charged as occurring on a Torres Strait island on 13 May 2005 (count 1) and 16 May 2005 (count 2).  They each involved digital penetration of the vagina.  The complainant was interviewed by police on 17 May 2005.  This was tape recorded and tendered at the trial as her evidence in chief under s 93A Evidence Act 1977 (Qld).  In it she gave the following account. 

[4] On Friday, 13 May 2005 she went home after school at about 2.00pm.  Nobody else was home.  She watched TV.  The appellant arrived and came to where she was sitting on the couch.  He stood in front of her and "poked" her.  He pushed two fingers from his right hand "in" her five times.  He then left through the back door.  Her parents returned.  She did not tell them what had happened because she was scared.  Shortly afterwards she told a young adult male neighbour, TB.  This episode was charged as count 1.

[5] Her account to police of the incident constituting count 2 was as follows.  The day before the police interview, that is, 16 May 2005, she went from school to the house of her cousin, TM.  She said the appellant "came into the room.  He dragged me and he put me into a bed, [indistinct] me on the bed.  And he just put his hand to my pants.  Then I ran out, and I tell [TM].  Then [TM] told my dad.  Then my dad told my mum, then my mum cried.  Then my dad said to – or my mum to us, 'Let’s go to the police station.'".  In response to police questioning, she gave the following details.  The appellant was standing up while she was sitting on the bed.  He put his hands inside her trousers and her underpants.  He put his finger inside her body: "front part".  He moved his finger around.  She was sore.  She told him she would tell her parents.  He stopped and left.  This episode was charged as count 2.

[6] She also gave pre-recorded evidence with the assistance of an interpreter.  In cross-examination by the appellant's counsel, Mr Bradshaw, she maintained her account that the appellant committed both offences.  She said that when count 1 was occurring, she called out to TB "[The appellant] is trying to rape me"; after the appellant left, she told TB to tell TM what happened.  She added that when count 2 occurred, TM was drunk and vomiting.  She said that the appellant left some marijuana in a cupboard in the bedroom for TM.  She agreed she did not tell the police about the marijuana.

[7] TB gave evidence, with the assistance of an interpreter.  His evidence was primarily relevant to count 1 and included the following.  The appellant is his uncle.  On a Friday in May 2005 he saw the appellant behind the complainant’s house near a water tank.  The appellant gave him some money to buy marijuana.  He bought the marijuana and returned to give it to the appellant.  He then saw the appellant through a screen window in the complainant’s house lying on the lounge.  He saw the appellant "poking" the complainant's vagina.  The complainant was lying on the lounge while the appellant was sitting on the ground.  TB said the appellant "was like freaking out … he told me [the complainant] had a big hole, like big vagina, like hole … he went straight out the front of the house, on the side of the tank stand, to have fresh wind, like he was – he was freaking out like when he saw me ….".  The appellant gave him some of the marijuana that TB had purchased for the appellant.  The complainant did not say anything to him after this incident.  In cross-examination, Mr Bradshaw suggested that TB did not see the appellant at the complainant's house that day.  TB rejected that suggestion.

[8] The complainant’s cousin, TM, gave evidence, also with the assistance of an interpreter.  TM's evidence was primarily relevant to count 2 and included the following.  On Monday, 16 May 2005, the complainant came to her house after school.  The complainant was listening to music in TM’s bedroom.  The appellant arrived.  He joined the complainant in the bedroom and shut the door.  TM walked onto the verandah where she could see into the bedroom through a glass door.  She saw the appellant’s right hand inside the complainant’s shorts.  He was kneeling on the floor and the complainant was lying on the bed.  TM thought the complainant was crying.  TM opened the door and said to the appellant, "What the fuck are you doing?"  The appellant said that he had left something in the cupboard for TM.  Later she reported what she had seen to the complainant’s father.  In cross-examination by Mr Bradshaw she said that she later found some marijuana in the cupboard.  She denied being drunk at the time of this incident.  She had not spoken to the complainant about what happened that afternoon since the police interview.  She denied that she made up the story about the appellant touching the complainant.

[9] A registered and remote isolated practice endorsed nurse with a graduate certificate in family and child health gave evidence that she examined the complainant on Monday, 16 May 2005.  She found no tearing, scratching, bruising or any trauma to the vagina, perineum or female genital area.  The complainant told her that a male had digitally penetrated her vagina using two fingers.  If the vagina had the normal lubrication of a 12 year old girl, the nurse would not have expected to see any trauma to the genital area unless the level of penetration was extremely violent.  In cross-examination, she agreed that when she conducted the vaginal examination with a small speculum, there was no reaction from the complainant to suggest any soreness or discomfort.

[10]  Police officer Peachey gave evidence that on Monday, 16 May 2005 at about 3.30 to 4.30 pm the complainant and her parents made a complaint to him that the appellant had inserted his fingers into the complainant's vagina.  He arranged for the complainant to be examined by the nurse and for the complainant and her parents to attend the police station the next day when she was interviewed by two detectives.  TM lived two or three houses away from the complainant and TB lived across the road from TM.  The appellant lived about a half to three-quarters of a kilometre from the complainant.

[11]  After the close of the prosecution case, the judge addressed the appellant in accordance with s 618 Criminal Code 1899 (Qld) in these terms:

"… now is the time to put – put forward matters on your behalf if you want to. You may if you want to give evidence on oath in the witness box, you can remain silent if you wish, you can call evidence from any other witnesses if you want to. Whatever happens Mr Bradshaw will make a speech to the jury on your behalf. Do you want to tell me what you're going to do or will you let Mr Bradshaw tell me what you're going to do? Let Mr Bradshaw do it? Thank you. Mr Bradshaw.

MR BRADSHAW: The accused will not give evidence nor call any witnesses, your Honour."

Counsel's closing addresses

[12]  The prosecution closing address was about 15 minutes in length and emphasised the following matters.  The complainant's evidence was compelling because it was supported by the eye-witness evidence of TB and TM.  The issue for the jury was whether the complainant, TB and TM had made up their versions and were telling lies; if not, the prosecution had proved its case beyond reasonable doubt and they would find the appellant guilty.  The jury would understand why the complainant, TB and TM did not mention to the police anything about illegal activity involving marijuana; this was no reason to reject their evidence. 

[13]  Mr Bradshaw addressed the jury for one hour and five minutes.  He said that "what bothered [him] throughout this trial" was the evidence about marijuana.  The conduct of the complainant and TM was implausible: why did TM leave them alone in her bedroom when TB had told her that the appellant had molested the complainant the Friday before.  Mr Bradshaw was also concerned that TB claimed that he was purchasing drugs for the appellant.  Another thing that worried Mr Bradshaw was that TB claimed that he saw the 12 year old complainant molested by the older appellant and did nothing about it.  This conduct was implausible and inconsistent with the guilt of the appellant.  The defence case was that the appellant was not there when the offences were said to have occurred.  Mr Bradshaw said the "Crown had not brought out the full story" adding:

"… And it’s in that context that my client didn’t give evidence.  Now, no adverse inference can be drawn from that for starters. 

Secondly, there is the fact that young girls have given evidence and my client’s of mature age.  You ponder it because the decision is mine not the client’s.  They look to me for guidance.  The matter was considered.  He didn’t give evidence because you may think the only evidence he can give is negative.  Count 1 didn’t go to the house; full stop.  Count 2 went to the house, had a glass of water, left; full stop.  Then he’ll be cross-examined by [the prosecutor].  No, no, no, no.  No, no, no, no.  As you can see [the prosecutor] is a very persuasive – a very experienced Crown Prosecutor.  You can see that I have the address after [the Crown Prosecutor].  Because of his experience and because of his persuasion, and because of his eloquence, it’s always a matter that you take into account because I've go the opportunity to counter his arguments.  If my client had given evidence – if he had given evidence I would have to address and I’d address you along the lines I am and then I’d squirm at the eloquence of [the prosecutor].

So the practical advantage in a negative situation is for the accused not to give evidence and to try and counter the Crown case because that is what we are doing.  That’s what this case is about.  It just didn’t happen.  So at all times we’re countering the Crown argument."  (errors as recorded in the transcript)

[14]  Mr Bradshaw emphasised that, when the complainant was examined by the nurse, there was no medical evidence of any tearing, scratching, bruising or trauma to her genitals.  He suggested to the jury that this contrasted with the complainant's evidence that she was sore in that area.  Mr Bradshaw spoke at length about what he submitted was the implausibility of the evidence of the complainant, TB and TM.  He suggested that they may have fabricated their evidence, with TM as the "older girl … ring leader in all this … the drug dealer".  He emphasised what he submitted were inconsistencies in the complainant's evidence.  Mr Bradshaw said that the complainant's story was not supported by the independent evidence of the nurse; he urged the jury to find that the Crown had not proved its case beyond reasonable doubt.

The judge’s directions to the jury

[15] The contention that the summing up lacked balance means that I must refer in some detail to the judge’s final directions to the jury, which relevantly included the following. 

[16]  The jurors were bound by the directions the judge gave them on the law but questions of fact, and ultimately whether the appellant was guilty or not guilty of each offence, was for them alone.  They must decide the case only on the evidence and put aside feelings of sympathy or prejudice that might well arise from the charges against a man for having sexual relations with a 12 year old girl.  When assessing the evidence of witnesses, the jury should keep in mind that events occurred over 18 months ago so that memories may not be accurate.  A question put to a witness but not accepted by the witness is not evidence.  Barristers do not give evidence; witnesses give evidence.  Submissions made by barristers are not evidence and barristers are not entitled to give evidence during their addresses.  Whilst the judge was entitled to make comments on the evidence or counsel's submissions, he had “no right, authority or intention to try to lead [the jury] to any particular verdicts.”  Anything the judge said about the facts of the case did not bind the jury in any way whatsoever.  Every person is presumed innocent until proven guilty.  There is no obligation on an accused person to prove that he is not guilty.  The prosecution brings the charges and must prove them beyond reasonable doubt.  They must return separate verdicts on each charge; they could find the appellant not guilty of both offences or guilty of one and not the other.

[17]  There is, of course, no complaint about those unexceptional directions.  I refer to them only to ensure that the following controversial directions are in their appropriate context:

"In this case [the appellant] has not given evidence. That is his right as you heard me explain to him at the end of the prosecution case. The fact that he has not given evidence does not prove anything. He has no obligation to prove anything and I direct you that no adverse inference can be drawn against him because he has not given evidence. In other words, you cannot say to yourselves he has not given evidence therefore he is more likely to be guilty. The burden of proof beyond reasonable doubt always remains with the prosecution.  What it does mean is that the evidence you have heard during the prosecution case is uncontested, uncontradicted, and unexplained by any sworn evidence from the accused.

Members of the jury, I am sorry to have to draw this to your attention, but during Mr Bradshaw's address he offered you explanations as to why the accused did not give evidence. Ignore those explanations. The accused could have given evidence. He does not have to. He does not have to prove anything. It is not right to say that if he had given evidence all he could say is, "I didn't do it". If he had given evidence he could have explained on the defence case that has been put he just was not there on the Friday, was not there at [TM’s] house, was not there when [TB] says he saw him and spoke to him. He could have given an explanation as to where he was. On the case that has been put on his behalf he called into [TM’s] place – sorry, [the complainant’s] house – it was the first one, wasn't it, I'm getting confused there.

On the incident that's alleged to have occurred on the Monday and according to the case that's been put he appears to have arrived in the car with someone else, went in briefly had a drink of water and left.

He could have explained all of that to you and, of course, had he given evidence he would have been subject to cross-examination by [the prosecutor] as were all of the prosecution witnesses subject to cross-examination by Mr Bradshaw. 

So, members of the jury, put those matters out of your mind. They are irrelevant, but I remind you again he has no obligation to give evidence. He has no obligation to prove anything and you cannot draw an adverse against him for failing to give inference.

It means nothing more and nothing less other than the evidence you've heard during the prosecution case, whilst disputed on his behalf, has not been contested or explained or disputed by any sworn evidence from [the appellant].

As I said, the prosecution always has the burden of proof and so you should focus on the evidence of the witnesses you heard because that's the evidence, and consider whether or not you satisfied beyond reasonable doubt that [the appellant] is guilty of any one or more offences based on that evidence."  (Errors as recorded in the transcript)

[18]  His Honour next explained that the verdict must be unanimous.  The judge directed the jury as to the applicable law and there is no complaint in respect of those directions.  The judge explained that consent was not an issue on the defence case, which was that the offences did not happen at all.  The jury must, however, be satisfied as to the truthfulness and reliability of the complainant’s evidence as to the commission of each offence, including absence of consent, before they could convict on either charge.  If the jury accepted the evidence in respect of one count, they could use that evidence in deciding if they were satisfied beyond reasonable doubt on the other count.  The judge then summarised the evidence given at the trial.  The judge explained that, if the jury were not satisfied on the evidence that the complainant did not consent, the alternative verdict of unlawful and indecent dealing was open on each count.  The judge then set out the elements of that offence.  His Honour explained that there was nothing unusual in the way the complainant gave her evidence by way of audio and video tape; the jury should treat it in the same way they treat other evidence in the case.  The judge reminded the jury that, for many of the witnesses, English was not their first language and their native language was unsophisticated.  The judge explained the use that could be made of the evidence of the complainant’s report of the alleged offences to witnesses called in the prosecution case.  His Honour told the jury that they should not think that, because there was some peripheral evidence about drugs in this case, the appellant may be associated with drugs and therefore is more likely to have committed these offences.  It is not suggested that any of those directions were flawed. 

[19]  The judge observed that some attention was paid during the barristers' addresses to the question of fabrication.  The following comments, his Honour said, were not directions but were given by way of assistance to the jury.  The complainant’s evidence of the first incident had to be either fabricated or true.  The appellant did not have to prove that it was fabricated.  The prosecution must prove beyond reasonable doubt that the complainant was telling the truth.  TB’s evidence on count 1, about seeing the appellant’s hand up the complainant’s pants, must also be either fabricated or true.  These were not matters about which someone could be innocently mistaken.  TB’s version and the complainant’s version were so precisely similar that it would seem their evidence was either fabricated or accurate.  The essence of their evidence was not something a witness would be likely to be mistaken about.  The judge made similar observations about the evidence from the complainant and TM in respect of the second count.  His Honour again emphasised that the appellant did not have to prove that the witnesses fabricated their evidence nor that they fabricated their evidence together; the prosecution must prove the evidence was true.  The judge continued:

"[The appellant] does not have to prove that these accounts have been fabricated. The prosecution must satisfy you beyond reasonable doubt that these accounts are true. But since on the evidence you might think they are really the only two feasible possibilities, that the accounts are either fabricated or true, you may care to take into account, in your consideration of the evidence, whether fabrication is a reasonable possibility in those circumstances."

[20]  His Honour then observed that counsel, particularly defence counsel, Mr Bradshaw, addressed the jury with “a great deal of forensic flourish”.  His Honour continued:

"Mr Bradshaw … spent a lot of time telling you about his worries. … what's been going through Mr Bradshaw's mind during the course of this trial or overnight when he went for a slow walk or during his address are of no relevance whatsoever. He was simply using a flourish in order to make submissions to you that you should be worried about things. But his worries are of no relevance whatsoever. The fact that he might have been worried about something is of no relevance to whether you should be worried about something.

But nevertheless, if the matters which he's raised and made submissions about on the evidence cause you concern, if you think there's substance in the submission rather than the personal worries of Mr Bradshaw, then you're entitled to give them weight. If you think that the matters about which he was addressing you and telling you his worries had no persuasive value at all, you don't give his submission any weight."

[21]  The judge next gave the following directions about Mr Bradshaw's submissions that the complainant, TB and TM may have made false allegations because of involvement in drug dealing.  Whilst the jury must decide whether their evidence is a fabrication or truthful, there was no evidence that the allegations of rape related to drug dealing and no evidence that the complainant, particularly, was involved with drugs at all.  There may be possible explanations as to why the witnesses would fabricate their evidence but, if they did, there was no evidence that any fabrication was connected with drug dealing.  In any case, the defence case advanced was that any evidence from the witnesses about the appellant's involvement in drugs was false. 

[22]  The judge reminded the jury that the complainant’s evidence was that, on the second occasion after the appellant had put his fingers in her vagina, she was sore.  The nurse who examined her some hours later saw no evidence of soreness.  The judge stated that the jury might consider from their own life experiences that soreness sometimes leaves very quickly. 

[23]  The judge concluded his directions to the jury by making some general observations as to the manner in which they might go about their deliberations.  He reminded them to ask for assistance through their speaker with written questions to him if they needed it.  The judge explained the procedure to be followed in the taking of the verdicts, and reminded the jury to ask him for assistance on the law or if they wanted to have evidence read to them.

[24]  After the jury retired to consider their verdict, Mr Bradshaw made lengthy submissions to the judge requesting a redirection so as to fairly put the defence case.  The judge gave the jury the following redirection:

"I discussed with you the issue of possible fabrication. I want to emphasise to you again that the matters I spoke about are not in any way binding upon you. It was a comment about the matter – about the case, and about that issue of fabrication, that I felt might assist you to put in perspective, but you are not bound by anything I said at that stage, and of course the progress of complaint and the like is not the only evidence that you might need to take into account. It’s a matter for you in relation to considering the issue of fabrication, and I think I told you at the time that there were undoubted inconsistencies about some matters as between [the complainant] and [TB] relating to the first incident, and as between [the complainant] and [TM] in relation to the second incident.

Two matters in relation to the discussion between – or the evidence of [the complainant] and [TM] in relation to the second incident were firstly, for instance, [the complainant] said that at some stage [TM] was drunk and vomiting, and [TM] said, 'No, that wasn’t right'. There was a difference in evidence between [the complainant] and [TM] concerning the marijuana in the cupboard, and you may – you may be mindful of other inconsistencies.

I want to make it clear to you that in the discussion that I – or the way in which I discussed this issue of fabrication which you’ve – I was not suggesting that they were the only matters relevant to fabrication or truth. There are other matters as well and inconsistencies between the particular witnesses may very well be something that you consider relevant. In the end it’s up to you. … ."

[25]  Later in their deliberations the jury asked for and were given redirections relating to the evidence and concerning the alternate charges of indecent dealing.  There is no longer any complaint about those redirections.

The direction about the failure of the appellant to give evidence

[26] In Azzopardi v The Queen,[1] Gaudron, Gummow, Kirby and Hayne JJ discussed the obligation of a trial judge to explain to the jury that ordinarily an accused person’s election not to call evidence cannot be used to their detriment.  Their Honours noted:

"... it will almost always be desirable for the judge to warn the jury that the accused's silence in court is not evidence against the accused, does not constitute an admission by the accused, may not be used to fill gaps in the evidence tendered by the prosecution, and may not be used as a make-weight in assessing whether the prosecution has proved its case beyond reasonable doubt."[2]

[27]  In making those observations, their Honours did not mandate any particular form of words, so long as the essential direction was conveyed to the jury.  That is, that no adverse inference may be drawn from an accused person’s failure to give evidence; that the onus of proof lies upon the prosecution; that the accused person is presumed innocent until the prosecution establishes on the evidence the person’s guilt beyond reasonable doubt; and that the failure to give evidence does not strengthen the prosecution case or supply additional proof against the accused person or fill gaps in the evidence.  If these matters are conveyed to the jury then the direction given on the accused person's election not to give evidence is correct: R v DAH;[3] R v Surrey.[4]

[28]  The primary judge’s directions to the jury set out at [17] of these reasons were plainly enough intended to explain to the jury how to approach the portion of Mr Bradshaw's address set out in [13] of these reasons.  This was not a case where the appellant had given an explanation to the police or to others which was in evidence.  The appellant's case, that he was not present and did not commit the offence, was put to the complainant, TB and TM but it was essentially rejected by them.  The judge's explanation that the defence case put to the witnesses in cross-examination was not evidence as it was not accepted by the witnesses was correct.  The judge also correctly stated that the prosecution case was not "contested or explained or disputed by any sworn evidence".

[29]  There were some concerning aspects to the portion of Mr Bradshaw's address to the jury set out at [13] of these reasons.  The decision not to give evidence should have been the appellant's decision, albeit after consultation with his lawyers; it was not Mr Bradshaw's decision.  His Honour did not point this out to the jury but he was not obliged to and it would not have assisted the defence case.  As the judge made clear to the appellant, after the close of the prosecution case and in the presence of the jury, the appellant could, if he wished, give or call evidence.  Mr Bradshaw invited the jury to speculate about what evidence the appellant might have given had he decided to do so.  As his Honour observed, those comments from Mr Bradshaw were neither evidence nor correct.  The appellant could have given evidence consistent with what Mr Bradshaw put to the prosecution witnesses; in cross-examination he may have given evidence of matters beyond those raised in Mr Bradshaw's address.  The judge was entitled to correct any possible misapprehension arising from this aspect of Mr Bradshaw's address.  In doing so, I am not persuaded that the judge's directions were erroneous or unfair.  They did not amount to a direction of the type referred to in Weissensteiner v The Queen.[5]  Importantly, the trial judge raised the issue in the context only of correcting Mr Bradshaw's mis-statement to the jury as to speculation about the evidence the appellant might have given had he elected to do so.  His Honour did not suggest that the fact that the appellant did not give evidence was a circumstance which may bear upon the probative value of the prosecution evidence given at his trial and which the jury could consider and take into account for the purpose of evaluating that evidence.[6]  Rather, the judge instructed the jury to put out of their minds irrelevant speculation raised by Mr Bradshaw as to what evidence the appellant might have given.

[30]  The portions of the trial judge’s directions about which the appellant now complains, set out in [17] and [20] of these reasons, when examined in the full context set out in [16] to [24] of these reasons, were appropriately tailored to fit Mr Bradshaw's presentation of the appellant’s case at trial.  The judge made clear that no adverse inference could be drawn from the appellant's decision not to give evidence; that the onus of proof lies upon the prosecution; that the appellant is presumed innocent until the prosecution adduces sufficient evidence to reach a conclusion of guilt beyond reasonable doubt; and that the appellant's failure to give evidence does not strengthen the prosecution case (that, in the judge's words, "you cannot say to yourselves he has not given evidence therefore he is more likely to be guilty").[7]

[31]  The judge's directions dealing with Mr Bradshaw's comments about the evidence his client might have given were appropriate.  This ground of appeal fails.

Was the judge’s summing up unbalanced?

[32]  The appellant's contentions on this second ground of appeal are as follows.  The summing up generally emphasised the path to conviction and undermined the force of the directions as to the onus and standard of proof.  Where the judge’s directions dealt with the appellant’s arguments, they were actively dismissive of them.  In dealing with inconsistencies in the prosecution evidence, the judge tended to excuse or neutralise them.  In putting before the jury the alternative between the key witnesses' evidence as either being fabricated or truthful, the judge undermined the onus and standard of proof.  The subsequent redirection did not cure this. 

[33]  The primary judge's duty under s 620 Criminal Code was to "instruct the jury as to the law applicable to the case, with such observations upon the evidence as the court thinks fit to make".  In meeting that duty, a trial judge is required to identify the real issues in the case, the facts that are relevant to those issues and to explain how the law applies to those facts: Fingleton v The Queen;[8] R v Mogg[9] and RPS v The Queen.[10]

[34]  There is no complaint about the judge's directions as to the elements of the offences.  The judge made clear to the jury that findings of fact and their ultimate decision as to the verdicts was entirely a matter for them; they should not be influenced by anything they thought was the judge’s view if their own view on these issues was different.  It is true that the judge did not put a detailed explanation of the defence case discretely to the jury.  It is not entirely easy to summarise the defence case from Mr Bradshaw's somewhat rambling address but it does not seem to have been that the complainant, TB and TM were honest but mistaken in their evidence.  Rather, it seems to have been that those witnesses may have fabricated their evidence because of an involvement with drugs and the complainant's evidence was unreliable because of inconsistencies with the evidence of TB and TM.  The judge dealt with those submissions in the course of his summing up, although he also countered them.  Many judges would not have answered the defence submissions in this way.  But the primary judge emphasised on a number of occasions to the jury that they were not bound by his views. 

[35]  The judge’s observations, that this really was a case where the witnesses were either truthful or fabricating their evidence, was unnecessary and unhelpful.  It risked deflecting the jury from the real issue which was whether the jury were satisfied beyond reasonable doubt that the complainant's evidence as to the elements of each offence was reliable: see Murray v The Queen;[11] R v Zurek.[12]  In context, I am satisfied, however, that the observations were not unfair, especially in the light of the subsequent redirections set out in these reasons at [24].  The judge also made crystal clear that these were his own observations and not binding directions.  Importantly, the judge emphasised in his directions that the appellant did not have to prove that the evidence of the complainant, TB and TM was fabricated and that it was for the prosecution to prove beyond reasonable doubt that their evidence was true as to the elements of each offence.  The redirections set out in [24] of these reasons emphasised that the jury were not bound by the judge's comments about the issue of fabrication and that this was a jury matter.  The judge then highlighted some of the inconsistencies between the evidence of the complainant and that of TB and TM referred to by Mr Bradshaw. 

[36]  When examined in full context, the primary judge in his directions to the jury adequately met his fundamental obligation to ensure the appellant received a fair trial.  He instructed the jury as to the applicable law, identified the real issue in the case as being whether the prosecution satisfied the jury beyond reasonable doubt as to the truth of the complainant's account of the elements of the offences, summarised the relevant evidence and explained how the law applied to the evidence given at trial.  While he made observations on the evidence unfavourable to the defence in the context of a quite compelling prosecution case, he emphasised that these were only his observations, not directions, and these issues were for the jury.  The appellant's contentions on this ground of appeal are also without substance, either standing alone or in combination with the first ground of appeal.

[37]  It follows that the appeal against conviction should be dismissed.

[38]  MACKENZIE AJA:  I agree with the reasons of McMurdo P and wish to add only what follows.

[39]  As a result of what defence counsel had said in his address about the reasons for the appellant not giving evidence, there was a potential for the jury to be misled.  It may, incorrectly, have been left with the impression that all they would have heard, had he given evidence, was his denial of being at the premises at all at the time when the first offence allegedly occurred and evidence of being at the premises for a limited purpose, which did not include committing the offence alleged in the second count.  As the trial judge pointed out in summing-up, that was a wrong submission; the appellant would have also been subject to cross-examination by the Crown Prosecutor with a view to eliciting details of his version of the facts.  But he also strongly stressed, both before and after making his observations about the inaccuracy of what counsel had said, that there was no obligation on the accused to give evidence, that no adverse inference could be drawn against him for not giving evidence and that the onus of proof lay on the prosecution to prove the offences beyond reasonable doubt.

[40]  It is unnecessary to resolve whether correction of this potential misapprehension would fall within the duty of the court to instruct the jury as to the law within the meaning of s 620, the discretion, also recognised there, to make observations on the facts, or whether it has some other character such as an issue relating to procedure.  Whichever way it is viewed, a right to correct any possible misconception created by the terms of counsel’s address cannot be denied to the trial judge.  The nature of the freedom to comment on the facts has frequently been adverted to in authority (eg. R v Guerin (1967) 1 NSWR 255; R v Giffin [1971] Qd R 12; R v Dee (1985) 19 A Crim R 224; R v Boyce [1993] QCA 115; R v CL Lam, Truong, Duong and VT Lam [2001] QCA 279).  Similar latitude to remove the potential misconception created by what counsel had said was available to the trial judge.  I agree with McMurdo P that the terms in which the matter was dealt with by the trial judge did not exceed proper limits.

[41]  I also agree with her comments as to compliance with the observations of Gaudron, Gummow, Kirby and Hayne JJ in Azzopardi v The Queen (2001) 205 CLR 50. 

[42]  I agree that the appeal against conviction should be dismissed.

[43]  CULLINANE J:  I have had the opportunity to read the draft reasons of the President in this matter.  I agree with her reasons and the order she proposes.