R v Lyall[2016] QCA 350

SUPREME COURT OF QUEENSLAND

1. MORRISON JA:  I have read the reasons of Philip McMurdo JA and agree with those reasons and the orders his Honour proposes.
2. PHILIPPIDES JA:  I have had the advantage of reading the reasons for judgment of Phillip McMurdo JA.  As to the ground of appeal alleging that the jury’s verdict of guilty of sodomy of a person under the age of 18 years was unreasonable, I agree with his Honour’s reasons for concluding that that ground has no substance and must fail.  I also agree, for the reasons given by his Honour, that no miscarriage of justice occurred in relation to the failure to seek an adjournment.
3. However, I am unable to agree with Philip McMurdo JA as to the first ground of appeal, that a miscarriage of justice occurred because the learned trial judge did not accede to the jury’s requests to rehear a portion of defence counsel’s closing address.  This ground was said to constitute a miscarriage of justice because it involved a departure from trial according to law.^[1]

Factual background

4. Just prior to midday, on the fourth day of the trial, the jury, having retired to consider their verdict late on the previous day, asked if they could “hear the closing statement from the defence regarding the final summary of points as to why we should find the defendant not guilty”.^[2]  Before defence counsel was heard on this question, another note was received in which the jury asked to hear a particular part of the complainant’s evidence again.^[3]  The trial judge determined that the first matter could be left at least until the jury had heard the evidence.^[4]  Defence counsel did not object to the jury hearing the complainant’s evidence first but said that the jury should also be allowed to hear that part of his closing address that they had asked to hear.^[5]
5. At 12.28 pm,^[6] the jury returned to the Court and the trial judge said that they would hear the complainant’s evidence first.  His Honour explained:^[7]

“I have your two notes. Because you have asked for evidence in the second note I’m going to do that first… You will listen to that and then I’ll ask to you to reconsider whether you want the first note; that is, the closing statement again. You may still. I’m not ruling it out, but I thought it’s best you hear the evidence first, go back for a little while and consider that and if you still wish to agitate the first note, that is, the closing statement from the defence, then I’m happy enough to consider that as well.”

6. After the reading of the relevant portion of the complainant’s evidence, his Honour said:^[8]

“I’ll just ask to you now to go back to the jury room to consider that evidence. As I say, I am not in any way restricting you from coming back and asking about this closing statement again. It’s just I want you to consider this evidence first and if you still require that particular matter, then counsel and I will address that particular thing there.”

7. The jury retired at 12.49 pm.  The trial judge said that the jury “seemingly” only wanted the last 10 minutes or so of defence counsel’s closing address^[9] and that they had “at least an entitlement” to hear the portion they had requested.^[10]  At 12.57 pm, the Court adjourned until 2.00 pm.  When Court resumed, the following exchange took place between defence counsel and the trial judge:^[11]

“HIS HONOUR: [Defence counsel], if I might just make myself clear. I did indicate to the jury that they could ask again for the thing they asked for about your particular address to them, but I don’t intend without them asking to play it to them. All right.

…

[COUNSEL]: Could I just put on the record - - -

….

[COUNSEL]: - - - the concerns that I have. A jury, having written a note with a certain request, having that request not addressed and - - -

HIS HONOUR: But it has been addressed, because I said they’re enabled to bring it back if they wished after they considered the other evidence that they wished to listen to.

[COUNSEL]: In my submission, a jury would be reluctant to raise the point again, given what has transpired. I am simply - - -

HIS HONOUR: Well, I disagree with that. I disagree with that. And the words I used were ‘they’re free to bring it back again’. All right.

…

HIS HONOUR: … Well, let’s move on … Now, I understand there was disagreement between you and [the prosecution] about what should be replayed.

[COUNSEL]: What they said in that note, as redundant as it may now be, was that they wanted the final summary of points upon which defence relied.

…

HIS HONOUR: Yes.

[COUNSEL]: There was at the – the difficulty I have is that at the conclusion of my address I didn’t have a final summary of points.”

8. Neither counsel nor the trial judge had the advantage of a transcript of the defence address to peruse at the time of this discussion.  On defence counsel’s insistence that there was no final summary of points, which he later repeated, the trial judge remarked that “half way through [the] address” counsel had dealt with the complainant’s evidence in a question and answer form that referred to the identification of inconsistencies by defence counsel as “seemingly” what the jury wanted but stated:

“I intend also, if we get that far, to, in fact, ask them whether that is a sufficient coverage of what they want. And it seems to me that – my judgment is that it’s from that time onwards that they want to hear and that they’ve characterised as the closing statement regarding the final summary of points.”

9. During the discussion as to the portion being referred to by the jury, the judge was advised there was a second note from the jury saying that they “no longer require[d] the defence’s summary”.^[12]  The matter was left at that.

The appellant’s submissions

10. It was submitted that a miscarriage of justice occurred because the jury was not permitted to hear what they wanted to hear when they wanted to hear it.  Instead, the jury was told to reflect on the evidence they had just heard (which it was pointed out was not all of the evidence in the case or even all of the complainant’s evidence) and then, in the light of that evidence, to consider if they wanted to rehear the requested portion of the address.  It was submitted that there was nothing in the record to suggest that the portion of the address the jury sought to hear again concerned only the evidence sought to be heard again.  Furthermore, even if that was the case, the jury should not have been obliged to reconsider their need to hear some of the address in the light of the evidence.
11. Counsel for the appellant noted that the jury had been told in the summing up that the final addresses “must” be taken into account when evaluating the evidence and it was “entirely” a matter for the jury the extent to which they did so.^[13]
12. Reliance was placed on the following statement of Kourakis CJ in R v Glastonbury:^[14]

“… if a jury requests the transcript of counsel’s addresses in a long or complex trial, speaking generally and subject to any countervailing factors arising in the particular case it should be provided.”

13. It was contended that the present appeal arose from a short “but not straightforward” trial, so that an approach similar to that commended in Glastonbury should have been followed.  In support of that submission, it was said that the possibility could not be excluded that the jurors were inhibited in weighing the merit of some of the defence counsel’s submissions in circumstances where some jurors obviously thought the points he had made were worth hearing again.  Further, it was argued that the impression created was that the jury did not really need to hear counsel’s points, having heard the evidence.  The fact that the jury withdrew the request was effectively forecast by defence counsel, which was said to serve to illustrate the possibility that the jury withdrew the request due to discerning that the trial judge was conveying that there was no real benefit to be derived from hearing the address again.

The respondent’s submissions

14. The respondent submitted that the trial judge was at pains to ensure the jury was placed under no pressure in deciding if they wished to pursue their request for the closing points after they had heard some of the evidence.^[15]  It was argued that what occurred was that, having been told in clear terms, the jury could consider the evidence they had asked to be read again, and then consider if they wished to pursue the first request, the jury sent a note saying they no longer wished to re-hear the defence’s summary.^[16]  It was also pointed out that, after receipt of that note, defence counsel did not ask for the jury to hear that which they had initially requested before changing their minds.  It was submitted that this was probably because the jury had made an informed decision, armed with their options, having been directed in clear terms.
15. The respondent contended that there is no miscarriage of justice.  The trial was not complex or lengthy.  Despite the jury’s request, it was a matter of discretion whether it should have been complied with, even without the jury confirmation that they no longer needed it.  There is nothing in the language used by the trial judge which could have been perceived as an indication that they should not persist with their request.  His Honour was very clear in imparting to the jury that it was a matter for them.  In that regard, reliance was placed on R v JX, where Morrison JA said:^[17]

“In my view, the authorities referred to above establish that unanswered jury questions can cause a miscarriage when they evidence confusion or uncertainty in the corporate mind of the jury. Where they do not signify that, the case for establishing a miscarriage of justice becomes harder.”

16. Reliance was also placed on the reference in that case by Morrison JA to R v Lapins,^[18] and his Honour’s statement that:^[19]

“Lapins is a case where the Court found that the jury note or question did not necessarily bespeak confusion or uncertainty in the corporate state of mind. Rather, the simple request was not pursued by the jury.”

17. It was submitted on behalf of the respondent that this was a case where the simple request was likewise not pursued.

Discussion

18. The first ground of appeal raises an important matter as to the principles governing whether a miscarriage of justice has resulted from a failure to address a jury’s question.

R v JX

19. The matter was recently addressed in JX.  In that case, the appellant contended that the decisions of R v TAB,^[20] R v Knight,^[21] R v McCormack,^[22] R v Salama,^[23] R v Hickey^[24] and Lapins^[25] supported the proposition that, where the jury had asked the judge for a direction on a matter of law, that direction should be given before a verdict was taken.  The appellant’s submission was that the jury question there in issue raised a matter of law.^[26]  The jury note said, “Could we please have a direction on one member of the jury informing of being raped as a younger woman”.
20. After reviewing the authorities, Margaret McMurdo P, with whom North J agreed, concluded:^[27]

“This Court should follow the line of authority accepted at appellate level in New South Wales and South Australia that, as a general rule, a trial judge should not take a verdict until any requests from the jury for direction have been answered as fully as possible. That approach accords with the common sense notion that the trial judge must properly direct the jury and that their verdict should not be taken whilst their concerns may remain unanswered, particularly as to matters of law, about which they rely entirely on the judge for direction. It is also consistent with s 620 Criminal Code 1899 (Qld) which states that ‘it is the duty of the court 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’ and that ‘[a]fter the court has instructed the jury they are to consider their verdict.’ The respondent does not contend otherwise. As Hickey identifies, that does not mean, where a guilty verdict is taken before a jury question has been answered, it will inevitably be set aside on appeal. The question for the appellate court is whether it would be a miscarriage of justice to allow the guilty verdict to stand in the particular circumstances of that case.”

21. Morrison JA’s analysis of the same authorities resulted in the following conclusion:^[28]

“In my view, the authorities referred to above establish that unanswered jury questions can cause a miscarriage when they evidence confusion or uncertainty in the corporate mind of the jury. Where they do not signify that, the case for establishing a miscarriage of justice becomes harder.”

22. Margaret McMurdo P’s reasons for allowing the appeal was explained as follows:^[29]

“I cannot accept the respondent’s contention that the jury note in this case was simply to inform the judge and did not require a response before verdict. It was a clear and courteous request for judicial direction following one jury member telling the others that she was raped as a younger woman. It raised the possibility that this juror may be using her past experience to improperly emotionally influence other jurors about the critical question in the trial: the reliability of the complainant. The note was effectively a question about the applicable law. It raised the possibility of some uncertainty in the corporate state of mind of the jury. For that reason, as the trial judge correctly apprehended, despite the initial judicial directions as to impartiality, it was necessary to remind all jurors of their obligation to be impartial, to decide this case on the evidence and to enquire if each juror could do so. A further general enquiry as to whether the jury or any juror had any concerns or questions would also have been prudent. It is true, as the respondent contends, that the trial was short and the jury had been earlier instructed as to the need for impartiality. But the resolution of the complainant’s reliability was by no means a straightforward issue for the jury. It required the careful assessment of her evidence to determine whether it could be accepted as reliable beyond reasonable doubt in light of the delay, her youth and the judge’s firm warning. The jury did not have the benefit of the directions foreshadowed by her Honour before returning their guilty verdicts. This amounted to an error of law. Despite the jury’s difficult task in this case, they deliberated for but a short time before verdict, particularly taking into account the lunch break. In the absence of the direction the trial judge foreshadowed, it may be that the verdict was tainted by the emotions of the juror referred to in the note. There is a real possibility that there has been a miscarriage of justice. The appeal must be allowed and a retrial ordered to ensure justice is seen to be done in this case and to maintain confidence in the criminal justice system.”

23. Morrison JA expressed his reasons for taking a somewhat different path, although ultimately concluding a miscarriage of justice had occurred, by stating:^[30]

“The note here did not evidence confusion or uncertainty. It did not, as in Salama, show confusion that went to the heart of the charge. It did not as in Hickey and Alameddine, go to a question of law at the heart of understanding the offences. The note fitted more in the category dealt with in TAB and Lapins, where the jury resolved the issue to its own satisfaction.

The two matters referred to earlier are: first, the use of the word ‘direction’ in the note; and secondly, the fact that the learned trial judge considered it necessary or advisable to respond to it.

In my view, the fact that a jury uses the word ‘direction’ in a question asked of a trial judge, should normally connote that the question is a formal request on a matter of importance to the jury. However, it does not necessarily bespeak confusion or corporate uncertainty. Each case depends on its own facts. Here the jury had been told that the trial judge would give them ‘directions … on law’ and that if they needed assistance to ask for it: ‘If you need anything, evidence read, if you need further direction on the law, just tell me’. When the jury asked so soon afterwards for a ‘direction’, it must be taken to mean it was seen by the jury as a matter of law.

However, the issue of law did not go to the charges themselves. It was as to the position of the jury, given that a juror had made the disclosure. That puts it into a different category, in my view, to the situations in Hickey, Salama and Alameddine.

That being said, the learned trial judge considered it necessary or advisable to respond to it by way of further directions, and announced that decision to counsel for both sides. That gave weight to the question, and, no doubt, the anticipation that the further directions would be given before any verdict. That is a factual twist which is not apparent in any of the authorities referred to. It is the factor that warrants the orders proposed by the President.”

Salama

24. The jury note in Salama stated, “The charge on the indictment states ‘Did fire a firearm with disregard for safety of Alice Salama.  Does this include accidentally?’”  The jury sent a second note shortly thereafter, while counsel and the trial judge were in the process of considering the first note, stating, “Your Honour, we have reached a verdict.  Please disregard the question previously sent in”.  In finding a miscarriage of justice, Kirby J noted:^[31]

“The first note, on its face, betrayed confusion. The confusion went to the heart of the charge. Notwithstanding the jury’s apparent resolution of the issue to their own satisfaction, it was important that the question be answered. It was also important that they should then deliberate further in the light of that answer.”

TAB

25. Salama was considered by Levine J in TAB,^[32] who outlined the following principles drawing on R v McCormack:^[33]

1. a jury should not formally be asked to retire to consider its verdict until all applications for further directions have been dealt with conclusively;
2. in circumstances where the jury asks a question that indicates that further directions as to law are required and which indicates some uncertainty in the corporate state of mind of that tribunal, the trial judge should ensure that no verdict is taken before that question is answered; and
3. where the jury, as in this case, merely asks to be reminded of evidence (and assuming that the reminder was not in practical terms given to it) the verdict of the jury given in the absence of that reminder should be respected.

Hickey

26. In Hickey,^[34] the jury were required to consider offences involving a joint criminal enterprise, and send a note raising the following questions:^[35]

“Can we have a copy of the judge’s directions given on Thursday 16 March 2000. If the facts presented do not support the proposed scenario but we find that the facts support a variation of the scenario is there any point of law preventing a conviction, if the end result of both scenarios is the same?”

27. The trial judge sought clarification as to each question.  A further note was sent asking, “Can the judge please explain joint criminal enterprise?”  In concluding that that question should have been answered before the verdict was taken, James J (with whom the other members of the Court agreed) observed:^[36]

“The question asked by the jury asked the trial judge to explain joint criminal enterprise, that is, to explain to the jury principles of law. The question had been asked, because the jury had been asked by the trial judge to clarify two earlier questions, one of which had asked for a copy of directions the judge had given in her summing up and the other of which would suggest that the jury had doubts about the view of the facts advanced by the Crown.”

Lapins

28. In Lapins, a jury note requested a “transcript of the judge’s directions to the jury”.  After being informed by the trial judge that it was not the practice to give a transcript, the jury were asked to retire again and identify the specific directions they wished to be reread.  No further note was received before the jury returned a verdict.  The Court held that there was no breach of the general principle that questions from the jury should be dealt with before any verdict is taken.  Gray J (with whom Duggan J agreed) said:^[37]

“The jury did not respond to the Judge’s invitation. Several hours passed before their verdict. It is unclear as to what particular concerns led the jury initially to request a copy of the summing up. However, it is clear that the Judge expressly invited the jury to formulate any request they had in writing and that he would then do his best to assist. The jury did not do so.

It has not been established that there was any unanswered or unresolved issue with respect to which the jury wished to have assistance.”

29. Similarly, Vanstone J observed that, after the judge advised the jury that the request that a transcript of the summing up be provided was not one which the judge considered the practice of the Court permitted fulfilling, but that he would receive any specific request for assistance, none was forthcoming.  The case was thus not one where the jury was denied assistance.  Her Honour remarked, “Apparently the jury decided not to pursue the enquiry.  Therefore there was no outstanding request at the time when the jury’s verdicts were delivered”.^[38]
30. I endorse Morrison JA’s observation in JX that Lapins was a case where the Court found that the jury note or question did not necessarily bespeak confusion or uncertainty in the corporate state of mind.  Rather, the simple request was not pursued by the jury.

Alameddine

31. In Alameddine,^[39] which concerned the offence of joint criminal enterprise, the relevant jury note asked, “How much weight can be given in reference to joint criminal enterprise in regard to using the DNA evidence from the interior door handle of the car to implicate the accused for robbery?”^[40]  The jury were asked to redraft the question to clarify what it was they were seeking.  They did not do that, but told the judge they “had finished deliberating”, which meant, it was revealed, that they could not reach a unanimous verdict.  A majority verdict was permitted and given.  Ultimately, no answer was given to the third question.
32. In finding a miscarriage of justice, Grove AJ (with whom the other members of the Court agreed) stated:^[41]

“There is ample authority that a verdict should not be taken until a request for direction has been fulfilled: R v McCormack (1986) 85 A Crim R 445. Where a question manifests confusion, it is important that this be removed and the jury be directed along the correct path. Even if, absent direction, a jury has resolved an issue to their own satisfaction, it has been held erroneous to omit so to do: R v Salama [1999] NSWCCA 105.

It is perhaps understandable how the obtaining of the requested redraft of the question was overlooked, given the focus of the series of communications from the jury concerning its inability to agree but the omission amounted to error. Even where the directions in the initial charge are adequate, it has been held that they no longer remain so in the light of the existence of an unanswered question: R v Hickey (2002) 137 A Crim R 62.”

33. It is apparent that the jury were seeking assistance on a question of law and the note manifested uncertainty as to that issue.

Conclusion

34. It is evident from a perusal of the transcript of the defence address that the defence address was concerned to outline why, based on the evidence before the Court, the jury would have a reasonable doubt as to the appellant’s guilt.  Defence counsel addressed only matters going to the complainant’s evidence and did not reiterate or sum up the evidence given by the appellant, remarking “it’s fresh in your mind”^[42] and observing “it is really on the basis of the complainant … that the prosecution have to rely”^[43] and that the case “rises and falls with him”.^[44]  Counsel went on to outline particular alleged inconsistencies in the complainant’s evidence and difficulties in his accounts and the lack of supporting evidence in terms of medical or DNA evidence.  Counsel also raised the complainant’s psychiatric history as impinging on the reliability of his evidence.
35. Defence counsel ended his address with the following words:^[45]

“So [the complainant] is ultimately the witness that this case rises and falls on. And I would ask you to bring back that idea of – of reasonable doubt now, to unlock it, because when you apply it to the facts in this case – to all the problems with the testimony, the differences of the accounts, the psychiatric issues – what I say is you must have a reasonable doubt about these matters; that you could not be satisfied to the high standard required before you would convict a fellow citizen of charges as serious as that have been levelled against [the appellant].”

36. It is apparent from this extract that, contrary to the submission made by defence counsel before the trial judge, which was referred to in this Court, defence counsel did provide “a final summary of points”.  In that regard, no misunderstanding of counsel’s address is evident in the first note of the jury referring to “the final summary of points” as to why the appellant should be found not guilty.  That summary was, namely, “all the problems with the [complainant’s] testimony, the differences of the accounts, the psychiatric issues”.^[46]
37. Given that the defence address was only concerned to outline the deficiencies in the complainant’s evidence, it is understandable that the focus of the second note was a request to rehear a particular portion of the complainant’s evidence.
38. The trial judge did not fail to respond to the jury’s initial request.  Rather, his Honour took a very sensible and pragmatic approach of first providing the jury with the part of the evidence that jury had expressly identified as being of interest to them.  Having been provided with the precise evidence requested, the jury indicated that they “no longer required the defence summary”.
39. It is plain that this trial was not “long or complex” one, nor is the case one where the jury’s request concerning the defence address went unanswered.  The experienced trial judge took great care to explain to the jury that the second request was being attended to first and that they could still send a further note as to the defence summary.  The jury did precisely that, indicating that they no longer required the defence summary.  I do not accept that it can be inferred that there was “a real possibility” that what the trial judge told the jury may have “influenced” the jury to send the further note.  It is pertinent to note that the jury’s initial request did not concern a question of law.  Nor do I consider that there is any basis to conclude that the initial request to hear part of the defence address evidenced “at least the possibility of an imperfect understanding by the jury, or some of the jury, about the defence arguments”.
40. That the jury asked to hear “the final points of summary” indicated no more than that they wished to be reminded of them.  But after hearing a particular part of the complainant’s evidence of interest that had been requested, the jury indicated they no longer required the defence summary.  In my view, there is no basis for concluding that there was a possibility that:

1. the first note evidenced any “imperfect understanding”, it was simply a request to hear the “final summary of points” again;

2. the trial judge’s careful directions to the jury that they could make a further request after hearing the actual evidence sought would have “influenced” the jury to take a particular course.

41. No miscarriage of justice arose as a result of the trial judge’s approach in relation to the jury request.  Great caution is to be exercised in disturbing a jury’s verdict, which was clearly open on the evidence.
42. PHILIP McMURDO JA:  After a trial before a jury in the District Court, the appellant was convicted of an offence of the sodomy of a person under the age of 18 years.  He was sentenced to a term of four and a half years’ imprisonment with no parole eligibility date fixed.  He appeals against the conviction upon three grounds.
43. The first ground is that a miscarriage of justice occurred because the trial judge did not respond to the jury’s request, during the consideration of their verdict, to hear again a summary of the defence case.  The second ground is that a miscarriage of justice occurred because, as a result of inadequate advice from his trial counsel and solicitor, the appellant did not seek an adjournment in order to procure the evidence of a man, whom I will call C, who was alleged to have been present when the offence was committed.  Thirdly the appellant argues that the verdict was unreasonable, meaning that it was not open to the jury to convict because the case depended upon the complainant’s evidence about which any jury should have been left in doubt.
44. For the reasons that follow, the appeal should be allowed upon that first ground.

The prosecution case at the trial

45. The complainant was born in 1967.  Shortly after leaving school in grade 10, he went to work and stay at the appellant’s house and stables near the Gold Coast where the offence was said to have been committed.  He was then aged 15 or 16 years.  The appellant was born in 1949 so that he was then in his early 30s.
46. The complainant’s mother was in a horse riding club near to her house in outer Brisbane.  She came to know the appellant because he was her riding instructor.  The complainant met the appellant when the complainant rode in the pony club which operated from the same site.
47. The appellant lived in a house on this property near the Gold Coast, where he had stables which were used in his business.  The appellant lived there alone.  The complainant said that he went to that property twice.  On the first occasion the complainant was taken by his mother for a few days where he was to do some casual work cleaning out the stables.  The complainant’s evidence was that at the end of his first day’s work, he was served some alcohol by the appellant, specifically brandy with Coke or cola, before an incident which occurred as the complainant emerged from the shower wearing only a towel wrapped around his waist.
48. His evidence was that the appellant “just grabbed my genital parts through … the towel”.  He was then asked by the appellant to sit down and the appellant turned on the television which then showed a pornographic movie.  When the appellant then left the room to take a shower, the complainant dressed.  Subsequently, before the complainant went to his bedroom for the night, the appellant told him that “a lady friend of his was coming over” and that if the complainant was to look through a window into the house from the verandah, he would see some sexual activity between him and the woman.  The complainant said that this is what occurred.  The alleged touching of the complainant on the outside of his towel was the subject of another charge on the indictment, namely that the appellant unlawfully and indecently dealt with the complainant.  The jury acquitted the appellant on that charge.
49. A day or two later, the complainant left the property, at which time the appellant said he would have some more work for him in the upcoming weeks.  The complainant said that his mother picked him up from the property and dropped him off at the Waterford Hotel where he met a friend whom I will call H.  He recalled that he and H became very drunk over the course of that day and night.  H was called in the prosecution case to say that he and the complainant used to drink at different hotels at this time, including the Waterford Hotel, although H was only aged about 16 at the time.  He said that his friendship with the complainant began when he was about aged 14 and continued for about nine years.  At no time did the complainant say anything to him to the effect that the complainant had been sexually abused by anyone.
50. Not long after his first visit to the property, the complainant was asked by the appellant to return to do some further work.  This time the appellant drove the complainant to the property, having fixed a time and a place to pick him up not far from the complainant’s house.  The complainant said that whilst he was waiting for the appellant he encountered someone with whom he had gone to school.  A fight developed between the two of them in which the complainant inflicted a “bloody nose” on the other boy.  That person was called as a witness in the prosecution case and said that he remembered having that fight with the complainant.
51. It was on this second visit to the property that the offence was alleged to have occurred.  On the day of his arrival, the complainant was introduced by the appellant to C, whom the appellant described as a friend.  Later that day the complainant spoke to a woman whom I will call W, whom he knew from his mother’s riding club.  The complainant’s evidence was that she said to him “you’re a young man now, you’re out working, we’ll be having a few beers and that after work and these men will look after you.”  His evidence was that after their conversation she had left that afternoon.  She was called in the prosecution case and said that she used to visit the property in the early 1980s to do some bookkeeping work.  She remembered that C was there frequently.  She had no recollection of seeing the complainant at the property.
52. That evening the complainant, the appellant and C ate takeaway food and drank brandy and Coca-Cola, which the appellant served.  After the complainant was “very much” affected by the alcohol, he was told by the appellant to have a shower which he did.  As he was getting out of the shower the appellant came into the bathroom, grabbed his arm and led him to a bedroom.  The complainant said that C was in this bedroom on a seat against a wall and was then masturbating.  The appellant then pushed the complainant down and said “suck [C’s] cock”.  The complainant did not do so but moved away and fell onto a bed in the room.  The appellant then said “well, I will” and he then did so.  After “not too long”, the appellant then moved to the complainant and put his mouth on the complainant’s penis.  In an endeavour to get away, the complainant rolled over.  But the appellant held onto him and the complainant said he then felt the appellant “get on behind and start – I felt a few pushes into me backside with his penis”.  The complainant said “I think it went in”.  He said that “I was in fright and scared and … I just blacked out”.
53. The complainant recalled waking up the next morning and feeling “grease, like, Vaseline or squeeze all around between my legs” and that his “backside” was sore.  No one was then in the house and the complainant went outside and went to work on the property.  That afternoon the complainant saw the appellant and C outside the house when the appellant asked him if he wanted a drink.  The complainant said he then fled the property, running through bushland and swimming across a body of water before hiding in bushes.  He said he saw the appellant’s silver Fairlane on a bridge nearby and heard the appellant and C calling out for the complainant to return.  He remained in hiding and after about 15 minutes the men left.  He said that he then walked back to near Brisbane where he lived.  He was unable to recall where he spent that night.
54. The complainant’s mother gave evidence that two or three days after he went to the appellant’s property on this occasion, he returned to her house “very distressed” and “fidgety”.  The complainant then told her that he had returned because “something bad happened” which he did not wish to discuss.  He said only that something happened which caused him to run away when he was chased by the appellant and “his mate” through bushland.
55. The mother’s evidence was that she then telephoned the appellant but was told he was unavailable.  At her riding class on the following Saturday, the mother was told by the woman W that the appellant had “had an emergency” and “gone overseas” so that “he will never be our instructor again.”  In her evidence, W had no recollection of saying this to the mother.  But it was an admitted fact that the appellant left Australia on 15 June 1984 and returned five days later.
56. At this stage, it appears, the complainant was not living with his mother for at least all of the time.  He sometimes stayed at another woman’s house nearby where he also had some casual work.  He said that after these events at the appellant’s property, he “stayed there for a bit” before moving to Western Australia.  He was then away from Queensland for many years.  He said that he did not tell anyone about this offence until 2011 when he told his mother what had occurred.  He later told a psychologist, Mr Esser, of what had happened and eventually went to the police with this complaint, he believed, in 2013.
57. The complainant had returned to live with his mother and had been there for some time before telling her of this incident.  In that period he had told her that his first sexual experience had been with one of her friends but he would disclose nothing further.
58. In relating the incident to the psychologist Mr Esser, the complainant said that there was more than one person involved.  But Mr Esser could not otherwise remember what the complainant had said.  The police officer to whom the complainant spoke when first reporting the matter recalled that the complainant had said that it was the appellant, C and also the woman W who were involved in a sexual assault upon him.
59. W was never charged.  But at the commencement of this trial C was a co‑defendant, having been charged with the appellant of this offence upon the basis that he had been a party by an encouraging presence.  At the conclusion of the complainant’s evidence‑in‑chief, the trial judge accepted the submission for C that he had no case to answer and he was discharged.
60. The last of the prosecution witnesses had given evidence by lunch time on the second day of the trial.  In the absence of the jury, the appellant’s counsel told his Honour that he intended to call evidence from both the appellant and C.  He told the judge that C was “considerably distressed at the prospect of returning to a court room from which he has just been discharged in respect of serious allegations”.  But he said that he was confident that C would be “in a position to give evidence, but not this afternoon” and that he did not wish to open his case until he knew whether C was going to be capable of giving evidence.  He sought and was granted an adjournment until the following day.
61. At the commencement of the next day, the prosecutor closed his case.  The appellant’s counsel then opened his case saying that the appellant would be his only witness.  As I will discuss, by this stage instructions had been given that C was not to be called.

The appellant’s case at the trial

62. The appellant gave evidence that he lived on this property from 1981 to early 1986.  He was not its owner but he lived and conducted a business there as did the owner who lived in another house.  A caretaker and his family lived in a third house on the property.
63. The appellant said that he had no recollection of the complainant’s mother and no recollection of a child of any person associated with the riding club staying at his house.  But he accepted that he must have taught her at the riding club.  He said that he could not “in any way, shape or form recollect or remember [the complainant]”.
64. The appellant said that by the time of the trial, he had known C for 50 years, through his equestrian business.  He said that C would stay at the property if he came down from the country to do something with C’s horses which the appellant would look after and show for him.  He agreed that he said that W did some bookkeeping work for his business at the time and was at the property “a day or so every week”.
65. The appellant denied having any pornographic material.  He denied all of the allegations of sexual misconduct.

Was the verdict unreasonable?

66. It is convenient to discuss first the appellant’s third ground of appeal, which requires the court to determine whether the evidence was such that it was open to the jury to conclude beyond reasonable doubt that the appellant was guilty of the offence.  This court must make its own assessment of the whole of the evidence to determine whether the verdict can be supported.^[47]  But in determining this question, “the court must not disregard or discount either the consideration that the jury is the body entrusted with the primary responsibility of determining guilt or innocence, or the consideration that the jury has had the benefit of having seen and heard the witnesses.”^[48]
67. The prosecution case depended upon the evidence of the complainant.  There was certainly other evidence which supported parts of his evidence.  For example, there was the evidence of the complainant’s mother and other witnesses which supported his account that he had stayed overnight in the appellant’s house.  There was testimony from W that the appellant liked to drink brandy and that he had a “silvery-blue luxury vehicle”, a description which corresponded with the complainant’s recollection of a silver Fairlane.  W also confirmed that C was a frequent visitor to the house.  There was thereby substantial support for the complainant’s testimony that he did stay overnight at the appellant’s property and that C was there.  However there was no independent support for the complainant’s evidence of sodomy or other sexual misconduct.
68. The complainant’s apparent reliability as a witness was affected by the passage of more than 30 years from the events in question.  It was also potentially affected by his history of drug abuse and mental illness.
69. The following facts as to the complainant’s mental health came from his own evidence in cross‑examination.  In 2004, he had a psychotic episode which lasted for “a couple of weeks”.  In 2005, he was placed under an involuntary treatment order and spent “about a week” in hospital as a regulated patient.  In July 2005, he told a treating psychiatrist that he had not been subject to any sexual abuse as a child.  From at least 2005 he had been treated with anti‑psychotic medication and he had seen many psychiatrists over that period of time.  In 2005 he told doctors that his girlfriend was an undercover police officer.
70. He agreed that “over many years” he had “abused drugs”, namely cannabis and methylamphetamine.  He agreed that he had been diagnosed with a drug‑induced psychosis, schizophrenia and a bipolar disorder.  Only about a month before speaking to police for the first time, the complainant had gone to a hospital and told a doctor that over the previous four months he had experienced increasing paranoid ideas.  In particular he told this psychiatrist that he thought people were following him and telling him to do things.  He did dispute that he had told the psychiatrist some things about his condition.  But what he then told the psychiatrist was contained in the hospital’s records.  They recorded information from him that a certain television program and a certain radio station had transmitted thoughts to him, that his five year old daughter had transmitted thoughts to him telling him not to give up smoking, that his ex‑girlfriend had tried to poison him by injecting salt into him instead of methylamphetamine and that years earlier, when he had been admitted to hospital as a regulated patient, he had slashed himself with a broken beer bottle.
71. There were further matters which were relevant to the complainant’s reliability.  The complainant had told police officers that as he fled the property, he was drunk.  But his evidence at the trial was that on that evening (the evening following that on which the offence was committed) he had had nothing to drink.  That discrepancy was part of the problematical nature of his account of how he had escaped.  He said that he left this property, which was near the Gold Coast, and “kept on foot towards Brisbane way” and he was “not sure where I went that night”.  He thought that he may have gone to the house of the woman who lived near to his mother and for whom he did some casual work.  But that would have been a considerable journey on foot: in cross‑examination he agreed that it would have been about 70 kilometres.  At that point of his evidence he said that he remembered “running and hitchhiking that night”, although he was “not very sure” about the matter.
72. However there was the evidence of the complainant’s mother that his arrival home was unexpected, which provided some support for his evidence that he had left the appellant’s property under unusual circumstances.
73. As the trial judge directed the jury, there were therefore many reasons for the jury to approach the complainant’s evidence with special care.  Not only was there the long delay from the time of the alleged offence, the complainant’s mental illnesses created a particular risk that his evidence “might be a result of delusions, rather than based on reality”, as his Honour described it.
74. However the reliability of the complainant’s evidence was enhanced by his ability to recall things about his visit to the property which appeared to be true according to other evidence.  His recollection of details of things such as the appellant’s car and, importantly, the presence of C, made his evidence apparently credible at least to the extent that he had stayed overnight in the company of these men.  It was not suggested in cross‑examination that he had deliberately falsified his claim of this offence.  Rather, his evidence was challenged as unreliable because it may have been the result of his delusions.
75. However that argument had to be considered by reference to his mental health, or apparent mental health, at the time he gave evidence in this trial in 2016.  He said that at that time he had not “touched [drugs] for years” and he was “like, getting through all this.”  The most recent of the events which recorded his mental illness was in early 2012.  Of course the jury were not psychiatrists, but they did have the opportunity, not enjoyed by this court, of seeing the complainant and making their own assessment of his apparent health.  The evidence of his history of drug abuse and mental illness was clear.  But the complainant explained that his condition had improved and that he was no longer a user of drugs.  In my view, it was open to the jury to accept that particular evidence without it being fortified by the opinion of a health professional.
76. Conceivably the complainant may have said to his mother in 2011 that this conduct had taken place, without having a real recollection of it.  Conceivably he may have thought that he should then maintain this allegation having initially made it.  But again, it was open to the jury to find otherwise and to consider, having seen him give the evidence, that he was neither delusional nor untruthful.
77. This is a case where the long passage of time from the events in question and the complainant’s history of mental illness provide a basis for doubting the appellant’s guilt of this offence.  But it is also a case where the jury’s advantage in seeing and hearing the complainant’s evidence is capable of resolving any doubt which this court might experience.^[49]  It was open to the jury to conclude that the complainant was not delusional as he gave this evidence.  His account was in several respects one which descended to details which were supported by other evidence.  His account of the sexual misconduct, although not supported by other evidence, was not flawed in the sense that it had inexplicable discrepancies or inadequacies.
78. His account of the journey from the property was far from clear.  But it was open to the jury to find that this did not significantly diminish the weight of his evidence: the facts of that journey may not have been as memorable as the serious sexual misconduct which he said he had suffered.
79. The appellant’s argument that it was not open to the jury to find that the appellant was guilty of this offence is ultimately unpersuasive.

The jury’s unanswered question

80. The jury retired to consider its verdict late on the third day of the trial.  A few hours into their deliberations on the following morning, the jury sent a note to the judge as follows:

“May we hear the closing statement from the defence regarding the final summary of points as to why we should find the defendant not guilty?”

81. His Honour was beginning to discuss that note with counsel when he received a further note from the jury as follows:

“May we hear [the complainant’s] testimony regarding the second incident from having the shower to being at [the house to which the complainant went after leaving the appellant’s property]?”

82. After he had read that second note to counsel, his Honour said that it seemed to him that he “should allow that first [and that] it may be as a result of that that they want to reassess this [request for the address]”.  He said that “just in terms, though, of the timing, it seems to me we can leave this first matter raised at least until they hear that [evidence].”
83. Defence counsel said that he had no difficulty with that sequence but submitted that the request of the jury in the first note was clear and that there was no good reason why the jury should not hear that which they had requested.  But his Honour said in response: “Let’s just see what they [the jury] might want as a result of [rehearing] the evidence.”  There was then a discussion with counsel as to the ambit of the complainant’s testimony which the jury had requested.  Clearly “the second incident”, as the jury described it in the note, was that in which the offence was said to have occurred.
84. After this discussion, defence counsel again raised the first note, which, he observed, had been presented to the bailiff by 11.39 am and that nearly an hour had passed since.  Defence counsel said “I’m just conscious of dealing with these matters in a timely fashion.”  His Honour responded:  “No … I agree entirely.  …  We’ll get the jury back and I’ll explain [the evidence] to them.”  Both counsel said that after then, they might address his Honour about the first note, to which his Honour responded:

“Well, we’ll just see what they want – I’m going to address them about both notes and just see whether they want to reconsider the first note after they hear this.  I mean, they’re entitled to make their mind up about what they want to do but if they come back and want to do that as well, then, we certainly go ahead.”

85. The jury then returned and his Honour said to them:

“I have your two notes.  Because you have asked for evidence in the second note I’m going to do that first … You will listen to that and then I’ll ask you to reconsider whether you want the first note; that is, the closing statement again.  You may still.  I’m not ruling it out, but I thought it’s best you hear the evidence first, go back for a little while and consider that and if you still wish to agitate the first note, that is, the closing statement from the defence, then I’m happy enough to consider that as well.”

86. The evidence, as requested, was then read to the jury by the Associate over the next 20 minutes, after which the judge then said to the jury:

“I’ll just ask you now go back to the jury room to consider that evidence.  As I say, I’m not in any way restricting you from coming back and asking about this closing statement again.  It’s just I want you to consider this evidence first and if you still require that particular matter, then counsel and I will address that particular thing there.”

87. The jury then retired at 12.49 pm, after which the judge discussed with counsel what might be replayed to the jury from the defence counsel’s address.  The judge said that the jury had an entitlement to have read back or played back to them the part which they had requested.
88. The court then adjourned and resumed just after 2.00 pm, in the absence of the jury, because of a difference in the understanding of counsel as to what was to happen in response to this note from the jury.  Defence counsel said that he wished to have recorded his concern that the jury had made this request and that it had not yet been addressed.  His Honour responded that it had been addressed, because he had told the jury that “they’re enabled to bring it back if they wished after they considered the other evidence that they wished to listen to.”  Defence counsel submitted that “a jury would be reluctant to raise the point again, given what has transpired.”  His Honour rejected that submission.
89. There followed a further discussion as to what would be replayed or read to the jury from defence counsel’s address.  Defence counsel said that “the difficulty I have is that at the conclusion of my address I didn’t have a final summary of points.”  His Honour then said that to his mind, the jury was wanting that part of the address which had commenced with an analysis of the complainant’s evidence “through to the end of your address”, which as transcribed, constituted the last five of the eight pages of address.  In the course of this discussion, the judge received a further note from the jury which he then read to counsel.  It was as follows:

“We no longer require the defence summary.  Thank you.”

90. Just under an hour later, a fourth note was sent by the jury, saying that they had reached a verdict on the first count but had been unable to reach a verdict on the (now relevant) second count.  The jury returned and received a Black Direction,^[50] before retiring at 3.15 pm and returning with their verdicts at 4.34 pm.
91. For the appellant it is argued that a miscarriage of justice resulted, because the jury was not permitted to hear what they wanted to hear when they wanted to hear it.  Although the jury specifically withdrew its request, it is submitted that the jury may have thought that the judge was conveying that there was no real benefit to be derived from hearing the address again.  It is said that the jury may have had that impression from the judge’s statements to them that they may not require to hear the defence counsel’s submissions again, once they had had the complainant’s evidence read to them.  This argument cites R v Glastonbury,^[51] where Kourakis CJ, with the agreement of the other members of the court, said that “if a jury requests the transcript of counsel’s addresses in a long or complex trial, speaking generally and subject to any countervailing factors arising in the particular case, it should be provided”.^[52]
92. The respondent submits that this was not a complex or lengthy trial and it should be inferred that the jury sent the subsequent note saying that they no longer wished to hear the defence’s summary, because in fact they did have a sufficient understanding of the defence case.  The respondent submits that there is nothing which the trial judge said which could have indicated to the jury that it was unnecessary for them to hear again any part of the defence address.  The respondent argues that this case is similar to R v Lapins^[53] where a jury requested a transcript of the judge’s summing up.  The judge informed them that they should retire again and frame the specific directions they would like to have read to them.  Nothing more was heard from the jury before they returned a verdict.  The South Australian Court of Criminal Appeal held that there had been no miscarriage of justice because it had not been established that there was any unanswered or unresolved issue for which the jury wanted assistance.^[54]
93. Lapins and other cases were discussed recently in the judgments in this court in R v JX,^[55] a discussion which it is unnecessary to repeat here.  In JX, convictions of rape were set aside and a retrial ordered because the trial judge erred in law in failing to give the jury the further directions which they had sought prior to returning their verdicts.  The jury in that case had retired about an hour and a half before sending a note which asked for a direction about “one member of the jury informing of being raped as a younger woman.”  By the time the court resumed 20 minutes later for the judge to discuss the note with counsel, the jury had decided upon their verdicts.  They were brought in and the verdicts were taken.  The respondent’s argument in the present case relies in particular upon the statement by Morrison JA in R v JX as follows:^[56]

“In my view, the authorities referred to above establish that unanswered jury questions can cause a miscarriage when they evidence confusion or uncertainty in the corporate mind of the jury.  Where they do not signify that, the case for establishing a miscarriage of justice becomes harder.”

Morrison JA there said that the note in that case did not evidence confusion or uncertainty as to the applicable law or the facts of that case, but rather an uncertainty as to “the position of the jury, given that a juror had made the disclosure.”^[57]

94. In the reasons of the President in JX (with whom North J agreed), it was held that absent the direction which the jury had requested, there was a possibility that “the verdict was tainted by the emotions of the juror referred to in the note”, such that there was a real possibility of a miscarriage of justice.^[58]  The President said this of the principles which are presently relevant:^[59]

“This Court should follow the line of authority accepted at appellate level in New South Wales and South Australia that, as a general rule, a trial judge should not take a verdict until any requests from the jury for direction have been answered as fully as possible.  That approach accords with the common sense notion that the trial judge must properly direct the jury and that their verdict should not be taken whilst their concerns may remain unanswered, particularly as to matters of law, about which they rely entirely on the judge for direction.  It is also consistent with s 620 Criminal Code 1899 (Qld) which states that “it is the duty of the court 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” and that “[a]fter the court has instructed the jury they are to consider their verdict.”  The respondent does not contend otherwise.  As Hickey identifies, that does not mean, where a guilty verdict is taken before a jury question has been answered, it will inevitably be set aside on appeal.  The question for the appellate court is whether it would be a miscarriage of justice to allow the guilty verdict to stand in the particular circumstances of that case.”

95. In the present case, the request to hear part of the address by defence counsel evidenced at least the possibility of an imperfect understanding by the jury, or some of the jury, about the defence arguments.  It was, of course, essential for the fairness of the trial that the jury properly understood those arguments.  It was therefore essential for the judge to assist the jury as they had requested.  With respect to the judge, the jury were unlikely to be assisted in their understanding of the defence arguments by rehearing, or having read to them, the critical parts of the complainant’s evidence.  It was not only what the complainant had said but also what the defence was saying about that evidence which had to be clarified.  Yet the judge indicated to the jury that, in his view, they might not need to hear more than the complainant’s evidence.  His Honour did not preclude the possibility of replaying that part of the address which the jury had requested.  But what he said to the jury could well have been understood by them as indicating that it was the evidence of the complainant upon which they should focus and that they might be able to reach their verdicts without hearing again the defence argument.  There is a real possibility that the jury was influenced by this statement by the judge to send a further note, saying that they did not wish to hear the summary of the defence case.
96. If, as the jury’s original request indicated, at least some of the jury had an imperfect understanding of the defence case, that imperfection could not have been remedied by rehearing the complainant’s evidence.  There is nothing to indicate how an imperfect understanding of the defence arguments could have been remedied in some other way.  The possibility remains that the jury reached its verdict with that imperfect understanding, by at least some of the jury, of the defence case.
97. In my conclusion there was a miscarriage of justice such that the verdict should be set aside and a retrial ordered.

C as a witness

98. The other ground of appeal was that there was a miscarriage of justice from the trial being allowed to continue without an adjournment being sought to enable C to be called as a witness in the defence case.  This ground was the subject of evidence from the appellant as to what passed between him and his trial lawyers about the possibility of calling C.  That affidavit evidence was not challenged.
99. On the first day of his trial at the request of his solicitor, the appellant read and signed a document headed “Trial Instructions”.  In paragraph 17 of that document, the appellant instructed “that I will elect to give evidence myself and call evidence.”  He had been informed by his lawyers, during a number of conferences, as to his right to give and call evidence at his trial.
100. The appellant was on bail during the trial.  When C was discharged by the trial judge on the first afternoon of the trial, C gave the appellant a lift home.  C was then upset, saying that he had conferred with senior counsel earlier that afternoon subsequent to his discharge and that he had broken down in tears at that conference.  But he did not provide detail as to what had been discussed at the conference.  He expressed sympathy for the appellant remaining on trial.
101. At about midday on the second day of the trial, during an early luncheon adjournment, the appellant conferred with his counsel and solicitor.  A note of that conference was made by the solicitor’s clerk and the note is exhibited to the appellant’s affidavit.  He says that it accurately reflects what was discussed.  As it records, it was then proposed by his lawyers that the appellant would give evidence and that C would be called as a witness in his case.  The appellant says that he did not know whether C had provided a statement but that he understood that C’s evidence would support the his case.  Significantly, the appellant’s solicitor had acted in this trial also for C although C had different counsel.  In this conference the appellant’s counsel said that he was going to telephone C and “ask if he was okay to give evidence because he had not been feeling well the day before.”
102. On the morning of the third day of the trial, the appellant was told that his solicitor was not sure if C would be called to give evidence and that he needed to talk to counsel about that issue.  The solicitor then said: “It is not imperative that he gives evidence but if he does, it could be good for us.”  That solicitor, of course, was speaking with the benefit of the instructions which he had received from C.  Shortly afterwards, the appellant was waiting outside the courtroom whilst his counsel stood some distance away speaking on his mobile phone.  The appellant saw his counsel and his solicitor then have a discussion, which he could not hear, before they approached him and his counsel said: “[C] is not feeling well.  He will not be giving evidence.”  The appellant says that he then believed that he no longer had the option of calling C to give evidence.  He was not told that he could apply for an adjournment “to ascertain when [C] might be fit to give evidence”.  And he was not told that he could compel the attendance of C to give evidence.
103. The trial then proceeded and after the appellant had given his evidence, his solicitor produced again the Trial Instructions document.  He was asked to initial a change to paragraph 17, recording his instructions that the appellant would give evidence (as he had just done) but that he would not call evidence.  The appellant initialled that alteration.
104. There is also an affidavit from the appellant’s present solicitor, showing his attempts to obtain from the appellant’s trial solicitor potentially relevant documents for this ground of appeal.  The only relevant documents received were those to which I have referred.  The appellant’s trial solicitor also advised that C did not waive his legal professional privilege in relation to his instructions and, in particular, in any statement which he had provided.
105. I have earlier noted the request by the appellant’s counsel for an early adjournment on the second day of the trial in order to procure the attendance of C to give evidence.  The appellant’s counsel and solicitor were obviously of the view then that it was in his interest to call evidence from C.  Counsel’s view is likely to have been enhanced by the fact that his instructing solicitor had also taken instructions from C.
106. Upon this evidence, it is argued for the appellant that there was a miscarriage of justice from his losing the potential benefit of C’s evidence, by not seeking an adjournment, an option for which he received no advice.
107. The respondent argues that there is no evidence from which this court could infer that C’s testimony may have assisted the appellant’s case.  That submission overlooks the fact that the appellant’s counsel and solicitor, the latter with the benefit of his instructions from C, saw fit to request an adjournment on the second day of the trial to procure C’s attendance.  There must have been some basis then for their opinion that C’s evidence would assist the appellant’s case.
108. But the position as at the third day of the trial is more of an unknown.  It cannot be supposed that the lawyers gave no consideration to seeking a further adjournment, if it was the fact that they remained of the view that C’s evidence would be beneficial.  Rather, it should be more readily inferred that they considered that C’s case would not be assisted by C, having regard to counsel’s discussions with C on that morning.
109. In the absence of any evidence from the appellant’s trial counsel, this court is left to speculate about C’s ability and willingness to provide evidence helpful to the appellant’s case, as of the third day of the trial.  The fact that an adjournment was not sought indicates that C was not a willing or helpful witness by that stage, rather than indicating any failure by the lawyers to consider a request for a further adjournment of the trial.  On the present evidence, the appellant’s trial counsel made a forensic decision which is not proved to have lacked a rational basis.  No miscarriage of justice is established by this ground of appeal.

Conclusion and orders

110. The appeal should be allowed upon the ground that there was a miscarriage of justice by the trial judge not acceding to the jury’s request to rehear a portion of defence counsel’s closing address.  I would order as follows:

1. Allow the appeal.
2. Set aside the verdict of guilty.
3. Order a retrial on count 2 of the indictment.