R v WBS[2022] QCA 180

SUPREME COURT OF QUEENSLAND

1. [1]
   DALTON JA:  The appellant appeals against conviction on the basis that evidence capable of being viewed by the jury as admissions by conduct was led by the Crown, but the jury was not given a warning not to misuse that evidence either in terms of Edwards v The Queen,^[1] or in a more abbreviated form.  The appellant was convicted by a jury of one count of maintaining a sexual relationship with his daughter for about three years while she was aged between 13 and 16.  As well, he was convicted of six counts of rape.  In respect of the maintaining count, the Crown relied on uncharged sexual acts as well as three of the rapes.  In respect of the rape counts, the Crown needed to prove a lack of free and voluntary consent.
2. [2]
   The appellant did not give or call evidence.  So far as his case was before the jury, it was that he denied the physical acts alleged, except that in one instance he did apply antibacterial cream to the complainant’s vulval area for a legitimate purpose.  That he had always had a very close relationship with the complainant.  That he was at a loss to understand why the complainant had made allegations against him.

The Crown case

3. [3]
   The evidence led by the Crown was:

   1. (a)
      From the complainant, of acts performed upon her.  There were no witnesses to any of the particular acts she recounted.  Her evidence was that in relation to specific occasions, and in general, her father would ask her whether she was “comfortable” or “okay” with him performing sexual acts.  She explained that she would agree on most occasions because he was her father; because (at least initially) she was young and did not understand, and because if she did not agree, the appellant would withdraw affection from her for a period of time, say a week, before revisiting the subject of their relationship and asking whether “this was how she wanted it to be”.  The Crown relied on the last‑mentioned evidence to say that the appellant emotionally controlled and manipulated the complainant in order to have her apparently assent to sexual acts performed upon her.
   2. (b)
      From the complainant’s mother and siblings, to the effect that the complainant and appellant were very close, closer than the other children and the appellant.  That they were constantly touching each other; snuggling, especially on the loungeroom couch, and that the appellant would spend considerable time every night lying on the complainant’s bed with her, supposedly saying goodnight.  He spent longer saying goodnight to her than the other children.
   3. (c)
      From the complainant’s mother, that she had observed the appellant with an erection on two occasions while physically interacting with the complainant.  Further, on two other occasions when she entered the complainant’s bedroom, the appellant acted so as to hide his groin from her.  She had told the appellant that she did not like his physical interaction with the complainant and thought it sexually inappropriate; they had argued about this on occasions over several years.  She and the appellant were not sexually intimate and had not been for years.

On 1 June 2019 she and the appellant had argued, and he had left the house and the marriage.  The subject matter of the argument was his lying on the couch with the complainant in a way which she believed was sexually inappropriate.  Within a matter of hours after the appellant left the house that day, the complainant revealed to her that for years the appellant had been performing sexual acts upon her.  That was a Saturday.  She accompanied the complainant to make a complaint to police on the following Monday.

4. (d)
   The appellant’s recorded interview to police in which he denied sexually assaulting or raping the complainant, but admitted to behaviour which the jury was entitled to see as corroborative of the complainant’s evidence.  He spent more time with the complainant than the other children.  He engaged in physical affection with the complainant to the point that he himself wondered if he was crossing sexual boundaries.  He spent time each night lying on the complainant’s bed with her including, during winter, getting into the bed (under the blankets) with the complainant.  The main bedroom lights would be off, but the “cupboard light” would be on.  On one occasion he had an erection when physically interacting with the complainant and this was observed by his wife.  He had arguments with his wife about what she considered to be his inappropriate sexual interaction with the complainant.

In the course of the interview the appellant gave information to police which the jury might have thought unlikely.  On an occasion or occasions he had slipped whilst giving the complainant an ordinary kiss so that the kiss became something which might be interpreted as inappropriate.  He did not have sexual relations with his wife because, after having a vasectomy and attending a school play against medical advice, he slipped and twisted.  This had the result that ejaculation caused him to vomit.  He thought he had once mentioned this to a doctor, but had not followed it up medically otherwise in the 13 years since his vasectomy.

The appellant told police that his family of origin was one in which physical affection was freely and frequently expressed.

5. (e)
   From the appellant’s sister, who gave evidence that she lived with their parents and that after 1 June 2019 the appellant came to live there too.  After he returned to the house from an interview with police, she cross-questioned him and he said that on one occasion (which was different to the occasion he described to police, and those which his wife described) he had an erection whilst physically interacting with the complainant, but he did not think it was anything to be concerned about.

She gave evidence that physical affection was not freely or frequently expressed in their family of origin, and that in particular, the appellant was the least physically affectionate member of that family.

6. (f)
   Four Snapchat messages sent by the appellant to the complainant.  There was no date on the messages, but they were sent after the appellant became aware that the complainant had made allegations against him, and fairly soon after he left the family home.

On 1 June 2019, before leaving the family home, the appellant spoke to each of his children to reassure them that he loved them and that he hoped they would communicate regularly and that there would be a shared parenting arrangement.  After leaving the family home the appellant messaged all his children.  The eldest son (who did not have a good relationship with the appellant) described him as “spamming” them.  An available inference was that the appellant messaged all his children fairly frequently.  None of those messages were in evidence.  The four Snapchat messages to the complainant were:

“I guess I am just left wondering why, you and I know that I have never harmed you.  I have always kept your feelings in mind.  A lot of times I have said to you that you need to let me know if you have been feeling uncomfortable especially because I think that you felt that you were betraying mum for hugging me tightly.  Now I don’t know if my number is blocked, no one is replying to me.  I am really hurting and I don’t know what to say to fix things.  I need you all in my life and you know that I have never harmed you, I have always had your love held high.  Did you do what you did because you were upset with how mum was looking at you….  I don’t know now what to do for you.  If you don’t want me in your life you need to be the one to tell me.  Do you still want me to care for you, do you feel safe with me…..”

“[Name] please, I understand that you don’t want to look bad by mum eyes, but we both know that I have never harmed or done anything without your consent.  What you are saying can get me into a lot of trouble.  Please don’t do that to me.  What you are doing is going to Remove from your life.  I don’t understand why.”

“I really want to be in your life, watch you grow, get married, have kid’s of your own, what you wrote about me, it could put me in jail for a long time.  I know how it looks but, if you can’t take back what you said and explain that it wasn’t true.  Please [name] I really want to in your life as your Father and Friend.  Are you upset because I left.  I am sorry [name].  Please be careful with what you say and please, please delete these messages, or it could be more damaging not to you but to me.  I love you so much.  Please think about our future.

Can you let me know when you have read all of it.”

“If you feel that I have wronged you please let me make it to you.  I really hope to see you again soon.”

The Snapchat messages

4. [4]
   There was no objection to the Crown tendering the Snapchat messages.  In the absence of the jury, the trial judge wanted to know what directions were sought about them.  The prosecutor said two things, both of which miss the main evidentiary significance of the Snapchat messages, in my opinion.  First, he sought a direction, apparently in accordance with R v Van Der Zyden,^[2] because the messages suggested the complainant had a motive to lie – pleasing her mother in the context of the marital breakup.  The prosecutor spent quite a deal of time in his address to the jury emphatically urging the jury not to accept this motive.  In those circumstances, it was appropriate that the trial judge remind the jury that the appellant bore no onus to prove a motive or anything else.  If the jury did not accept the motive the appellant proffered in the Snapchat messages (and probably in the police interview), that was not the end of the matter; they needed to put that aside, and satisfy themselves that the evidence given by the complainant was truthful before they could convict.
5. [5]
   Secondly, the Crown prosecutor told the trial judge that he relied upon parts of the Snapchat messages as corroborating the complainant’s evidence that her father behaved in a controlling and manipulative way towards her.  This was said to be “relationship evidence” and relevant to the issue of consent.

Implied admissions

6. [6]
   The trial judge suggested to the Crown prosecutor that parts of the Snapchat messages were capable of being understood as implied admissions, and said he ought to give a direction about that.  In my view, that was a correct course.  In this category I would put the statements:

● “I guess I am just left wondering why, you and I know that I have never harmed you.  I have always kept your feelings in mind.  A lot of times I have said to you that you need to let me know if you have been feeling uncomfortable especially because I think that you felt that you were betraying mum for hugging me tightly.  … you know that I have never harmed you, I have always had your love held high.  …  do you feel safe with me …”

● “we both know that I have never harmed or done anything without your consent.”

● “If you feel that I have wronged you please let me make it to you.”

7. [7]
   The Crown prosecutor and defence counsel agreed a document which was given to the trial judge listing evidence the prosecution relied on to prove “the defendant had a sexual interest in the complainant and was prepared to act upon it”.  The judge said to the jury:

“The Crown relies on this … evidence to prove that the defendant had a sexual interest in the complainant and was prepared to act upon it.  The Crown argues that this evidence makes it more likely that the defendant committed the offences with which he is charged.  You can only use this evidence if you are satisfied beyond reasonable doubt that the defendant did act as that evidence suggests and that the conduct demonstrates that he had a sexual interest in the complainant which he was willing to pursue.  If you are not satisfied of those things beyond reasonable doubt, then that may affect your assessment of the complainant’s evidence about the acts which are the subject of the offences with which the defendant is charged.”

8. [8]
   In my view, these parts of the Snapchat messages contain statements which the jury might well have found to be admissions, not just that the appellant was sexually interested in the complainant and prepared to act on that interest, but that he had performed sexual acts upon her.  This was a very important part of the probative value of the Snapchat messages.
9. [9]
   The trial judge was in a difficult position because the Crown prosecutor did not put that as part of his case.  However, where it was plainly obvious from an important piece of evidence, in my view the trial judge ought to have raised it with the Crown prosecutor and indicated that whatever case the prosecutor put to the jury, the evidence was open to that interpretation, and the jury ought to receive a direction on that basis.  In circumstances where such a course was not taken, the jury received evidence of what the appellant himself said which was capable of being understood as admitting to sexual conduct towards the complainant, but received no warning that before they could act on the statements as being admissions or confessions, they needed to be certain that what the appellant said was in fact an admission, and was truthful and accurate.
10. [10]
    There was no complaint made on this appeal about the absence of such a direction.  However, as there will be a retrial I think it worth mentioning.  Further, the potential significance of these statements gives important context to the appellant’s asking the complainant to destroy the Snapchat messages, see below.

Need for an Edwards-type direction

11. [11]
    Neither counsel below, nor the experienced trial judge, suggested that an Edwards‑type direction was necessary, despite the trial judge requesting that counsel consider what type of directions were necessary in relation to the Snapchat messages, and despite quite some discussion of these matters during the trial in the absence of the jury.  Further, in his conduct of the trial, the prosecutor never suggested that sending the Snapchat messages was circumstantial evidence which the jury might regard as amounting to admissions by conduct because the messages revealed a consciousness of guilt.  Further still, lawyers acting for the appellant did not identify this as a ground of appeal when the notice of appeal was filed.  That came later by way of amendment.
12. [12]
    Against that background, this Court must be very cautious about interfering with the verdicts on the basis that an Edwards-type direction was not given.  In Zoneff v The Queen^[3] the majority said:

“There may be cases in which the risk of misunderstanding on the part of a jury as to the use to which they may put lies might be such that a judge should give an Edwards-type direction notwithstanding that the prosecutor has not put that a lie has been told out of consciousness of guilt. As a general rule, however, an Edwards-type direction should only be given if the prosecution contends that a lie is evidence of guilt, in the sense that it was told because, in the language of Deane, Dawson and Gaudron JJ in Edwards, ‘the accused knew that the truth ... would implicate him in [the commission of] the offence’ and if, in fact, the lie in question is capable of bearing that character.” (my underlining)

13. [13]
    The majority in that case also expressed the view that had an Edwards-type direction been given in that case it would have been undesirable because it “could have had the effect of raising an issue or issues upon which the parties were not joined, and of highlighting issues of credibility so as to give them an undeserved prominence in the jury’s mind to the prejudice of the appellant”.^[4]
14. [14]
    Three years later in Dhanhoa v The Queen,^[5] Gleeson CJ and Hayne J said, in a case where the prosecutor did not put to the jury that the appellant’s lies indicated a consciousness of guilt:

“It is not necessary for a trial judge to give a direction, either of the kind referred to in Edwards, or of the kind referred to in Zoneff, every time it is suggested, in cross-examination or argument, that something that an accused person has said, either in court or out of court, is untrue or otherwise reflects adversely on his or her reliability. Where the prosecution does not contend that a lie is evidence of guilt, then, unless the judge apprehends that there is a real danger that the jury may apply such a process of reasoning, as a general rule it is unnecessary and inappropriate to give an Edwards direction.” (my underlining)

15. [15]
    In Dhanhoa McHugh and Gummow JJ thought that it would have been better had an Edwards direction been given, but did not think there had been a miscarriage of justice, for the appellant had not established that there was a reasonable possibility that the failure to give an Edwards direction may have affected the verdict.  In coming to this conclusion they said, “Given the way that the prosecution conducted its case, we think that there is only a very slender possibility that the jury would have considered that [the appellant’s] statement to the police indicated a consciousness of guilt” – [61].  They thought that it was “simply speculative” to conclude that the jury might have reasoned along consciousness of guilt lines in that case – [63].  They said:

“Significantly, counsel for Dhanhoa sought no direction concerning lies. Nor, as we have said, did the trial judge give any such direction. This strongly indicates that it did not occur to those present at the trial that lies as consciousness of guilt was an issue in the trial or that, from the conduct of the case, the jury might think that lies told by the appellant were evidence of a consciousness of guilt.”

16. [16]
    The circumstances of this case contrast.  Apart from the implied admissions already discussed, the main evidentiary significance of the Snapchat messages was that they requested the complainant to drop her complaint and destroy the Snapchat messages.  There was a real probability both that: (1) the jury would have used those requests as post-offence conduct displaying consciousness of guilt, and (2) having regard to the importance of the Snapchat messages in the Crown case, this reasoning affected the verdicts.  This means that the failure to give an Edwards‑type direction did cause a miscarriage of justice.  I cannot see that there is any room for the operation of the proviso in s 668E(1A) of the Criminal Code.

Post-offence false conduct

17. [17]
    Edwards v The Queen concerned lies which went further than casting doubt on a defendant’s truthfulness, and were capable of constituting what the High Court called admissions against interest.^[6]  The Court said that a lie would be of this type:

“… only if it is concerned with some circumstance or event connected with the offence (i.e. it relates to a material issue) and if it was told by the accused in circumstances in which the explanation for the lie is that he knew that the truth would implicate him in the offence.”^[7]

18. [18]
    As well as lies, conduct after an offence “may be capable of amounting to an admission by conduct”.^[8]  In this category are cases where an offender, after the offence, conceals, or attempts to conceal, something incriminating.  In R v Farquharson^[9] the Victorian Court of Appeal categorised a defendant’s asking his friend not to tell police of an incriminating conversation as analogous to this, “an attempt to hide the contents of a conversation”.  The Court of Appeal said:

“Consequently, in a case like this involving an attempt to prevent disclosure of a conversation, it is almost always necessary to identify the terms or at least the precise substance of the conversation alleged and to ensure that the jury are made aware that, before they can infer consciousness of guilt from the accused’s efforts to suppress the conversation, they must be satisfied that the terms or precise substance of the conversation were as alleged and thus that the accused’s efforts to suppress the conversation were motivated by fear that disclosure of those terms or precise substance would implicate him or her in the commission of the offence charged.”^[10]

19. [19]
    Another accepted type of post-offence conduct capable of amounting to admission by conduct is attempting to suborn a prosecution witness.  In R v Liddy^[11] Mullighan J said of this type of conduct:

“… Another example given is suborning a prosecution witness. That type of conduct was considered in R v Watt (1905) 20 Cox CC 852. In that case Phillimore J said that the principle was well established. He said (at 853):

‘It is this, that the conduct in the litigation of a party to it, if it is such as to lead to the reasonable inference that he disbelieves in his own case, may be proved and used as evidence against him. The principle is well stated by Sir Alfred Wills ... in his edition of his father’s work upon circumstantial evidence:

“Amongst the most forcible of presumptive indications may be mentioned all attempts to pollute or disturb the current of truth and justice or to prevent a fair and impartial trial, by endeavours to intimidate, suborn, bribe, or otherwise tamper with the prosecutor, or the witnesses, or the officers or ministers of justice, the concealment, suppression, destruction, or alteration of any article of real evidence; any of which acts clearly brought home to the prisoner, or his agents, are of a more prejudicial effect, as denoting on his part a consciousness of guilt, and a desire to evade the pressure of facts tending to establish it.”’

This type of conduct has been treated as an admission by conduct: R v Flanigan (1997) 190 LSJS 499 at 504 per Cox J. Conduct of this nature is not confined to suborning a witness once a trial has commenced. The conduct may occur before the trial just as an inference that a lie was told due to a consciousness of guilt may be drawn from a lie told before the commencement of litigation.”

20. [20]
    It is not all inculpatory post-offence conduct which will attract the need for an Edwards-type direction.  When the concern is with statements, it is only deliberately untrue statements which will attract an Edwards direction, and then, only statements which are capable of being probative of guilt because they might show that the accused lied because he “knew that the truth of the matter would implicate him in the offence”.^[12]  In a similar vein it is “deceitful acts”^[13] or conduct “designed to paint a false picture”^[14] or perhaps conduct which is “inherently discreditable”^[15] which is conduct capable of attracting an Edwards-type direction.  In the extract from R v Watt (above) the conduct was characterised as conduct “such as to lead to the reasonable inference that [the defendant] disbelieves in his own case”.
21. [21]
    The Snapchat messages contained the statements:

● “What you are saying can get me into a lot of trouble.  Please don’t do that to me.  What you are doing is going to Remove [me] from your life.  I don’t understand why.”

● “what you wrote about me, it could put me in jail for a long time.”

● “I know how it looks but, if you can’t take back what you said and explain that it wasn’t true.”^[16]

● “Please be careful with what you say and please, please delete these messages, or it could be more damaging not to you but to me.”

22. [22]
    These statements fell into recognised categories of conduct which might attract an Edwards-type direction.  They amounted to attempts to suborn the complainant, pervert the course of justice and have the complainant destroy evidence of the Snapchat messages which, at least on one view of it, contained implied admissions of sexual offending.  This was conduct analogous to lies: it was conduct designed to deceive, paint a false picture and conceal the truth.
23. [23]
    The appellant relied on a further two statements:

● “Did you do what you did because you were upset with how mum was looking at you …”

● “I understand that you don’t want to look bad by mum eyes”.

24. [24]
    I would include the question, “Are you upset because I left” in this latter group.  The appellant submitted that these statements warranted an Edwards-type direction because they suggested a motive to the complainant as to why she might have acted to disclose his offending and thus to persuade her to retract her statement against him.  It was also suggested that the appellant may have been suggesting reasons the complainant could use (say, when dealing with the police) to explain retracting her complaints against him.  The appellant relied on the context provided by the Crown case that he was manipulative and controlling of the complainant.
25. [25]
    I think the trial judge ought to have left open to the jury the possibility that they might see the statements at [23] as part of the attempt to persuade the complainant to retract her complaint to police.  However, unless the prosecutor argued that the appellant was feeding the complainant excuses to explain a withdrawal of her complaint, I think it would be wrong for the judge to suggest that.  In this respect the case contrasts with a similar factual circumstance in R v SBB.^[17]  That case concerned letters suggesting a mother talk with the complainant child, impliedly to have the child drop the complaint.  The letters suggested that the child had been conditioned by the mother to be angry with the defendant because she herself was angry that he had taken up with another woman.  The prosecutor put this to the jury as an “attempt to put pressure on [the complainant] through [the mother], to say [the complainant] made it up because he was angry”.^[18]  In this case, unless the prosecutor made such a submission, I think it would be wrong for the trial judge to start speculating about what the jury might make of the statements at [23].

Purpose of an Edwards-type direction

26. [26]
    The danger of a jury mis‑using post-offence conduct designed to paint a false picture was described well in a Canadian case, R v White:

“It has been recognised, however, that when evidence of post-offence conduct is introduced to support an inference of consciousness of guilt it is highly ambiguous and susceptible to jury error.  … the danger exists that a jury may fail to take account of alternative explanations for the accused’s behaviour, and may mistakenly leap from such evidence to a conclusion of guilt.  In particular, a jury might impute a guilty conscience to an accused who has fled or lied for an entirely innocent reason, such as panic, embarrassment or fear of false accusation.  Alternatively, the jury might determine that the conduct of the accused arose from a feeling of guilt, but might fail to consider whether that guilt relates specifically to the crime at issue, rather than to some other culpable act.”^[19]

27. [27]
    The jury therefore needs, “Judicial instruction of a need to consider other possible explanations for conduct, consistent with innocence, to prevent that automatic leap …”.^[20]
28. [28]
    In his police interview, the appellant said that he had spoken to the complainant on the phone after he left the family home, and she did not alert him to the fact that she would make allegations against him.  He says, on more than one occasion, that he does not understand why the complainant is making the allegations; that he cannot explain it.  He refers to discussions over the years between himself and the complainant about the fact that their physical relationship upset the complainant’s mother.  This context adds strength to the idea that, in fairness to the appellant, the jury ought to have been directed to consider whether or not the Snapchat messages were indicative of an innocent man wishing to have a false accusation withdrawn in circumstances where he was bewildered as to why the accusations had been made, and was casting around for reasons which might explain them.
29. [29]
    Despite the fact that an Edwards‑type direction has a purpose to prevent unfairness to a defendant, such directions are generally unpopular with defence counsel.  In R v Chang,^[21] Ormiston JA said:

“Unfortunately, it is the complexity of a conventional Edwards direction and warning, and its need to examine and repeat often damning evidence, that has frightened trial judges and lawyers appearing for the accused into recharacterising evidence which otherwise would be treated as evidence of consciousness of guilt.”

30. [30]
    Ormiston JA’s remarks were made in a context very similar to this trial where there were experienced trial counsel, and a very experienced trial judge had chosen not to give an Edwards direction.  Then, new counsel appearing on the appeal had contended that the charge to the jury was inadequate.  Ormiston JA described this situation as recurrent.
31. [31]
    He described a tendency for prosecutors to characterise evidence which portrayed a consciousness of guilt as being relevant for some “lesser use”^[22] or “limited purpose”.^[23]  I think that is a description of the prosecution’s conduct of this case.  There were two main evidentiary points in the Snapchat messages: (1) implied admissions, and (2) admissions by conduct.  This was a relatively strong Crown case without the Snapchat messages, for there was some independent evidence corroborating the complainant’s evidence.  However, in any case of this type, what the accused person himself says on the topic of the allegations made against him will likely be extremely important to the jury’s deliberations.  It must have been here.  There may have been some evidentiary value in the Snapchat messages bearing on whether or not the appellant controlled and manipulated the complainant, and thus on consent.  However, this “relationship evidence”, as the prosecutor termed it, was of a very much lesser significance than what the jury was entitled to see as powerful inculpatory evidence coming from the appellant himself.
32. [32]
    As the facts in this case show, if neither counsel objects to evidence going before the jury which plainly indicates a consciousness of guilt, and yet the prosecution does not expressly rely upon the evidence for that purpose, giving an Edwards direction means that the judge must point out potentially inculpatory inferences to the jury when neither counsel have done so, in order to warn the jury to be careful before drawing those inferences.  One can understand then, that the trial judge is in a difficult position.
33. [33]
    In my view, here, where the Snapchat messages were: (1) plainly capable of being interpreted as showing a consciousness of guilt, and (2) a significant part of the evidence against the appellant, the trial judge ought to have taken the initiative and raised the matter directly with counsel.  As the extracts from Zoneff (above at [12]) and Dhanhoa (above at [14]) show, the mere fact that the prosecutor does not rely upon the consciousness of guilt evidence will not prevent a verdict being overturned on appeal in an appropriate case.
34. [34]
    One option available to the trial judge in such circumstances is to give the type of direction postulated by Davis J at [121] below.  That is, a direction to the jury not to use a consciousness of guilt reasoning when considering the Snapchat messages.  In effect, this is a version of the Zoneff direction, but modified to account for the fact that what is being spoken of is not lies, but post-offence conduct.
35. [35]
    I think there are difficulties with the postulated type of direction in this case.  Where lies are told, a direction as to credit will be given in any case, that is, the topic of the accused’s lies will be something the judge must discuss with the jury, and it flows naturally enough to add to that direction that the jury ought to avoid reasoning that because the accused has told lies he is guilty.  However, where post-offence conduct is concerned, it may be more difficult to give the jury a direction as to consciousness of guilt in relation to that conduct without giving a full Edwards-type direction.
36. [36]
    In the present case, the judge was obliged to speak to the jury about whether or not they could be satisfied the Snapchat messages contained implied admissions inculpating the appellant.  The judge was also obliged to summarise the prosecution argument that the accused’s attempts to persuade the complainant to withdraw her complaint, and his direction to her to destroy the Snapchat messages was relevant to the controlling nature of his relationship with the complainant, and thus consent.
37. [37]
    The trial judge could have said to the jury that apart from their bearing on these two issues, the Snapchat messages were not to be relied upon by the jury as evidence of guilt.  I doubt that a direction as general as that would be efficacious to identify the prohibited type of consciousness of guilt reasoning to the jury.  That is, I think it is too much to expect the jury, who had likely never heard of consciousness of guilt reasoning, to realise that type of reasoning existed and was what the judge was prohibiting.  I think that difficulty is particularly acute here where the appellant’s attempt to suborn the complainant and have her destroy evidence are types of conduct very likely to lead a jury to consciousness of guilt reasoning, although they would not necessarily identify it as a separate reasoning process.
38. [38]
    The difficulty is that as soon as the direction is made more specific, and an explanation is given to the jury of what the prohibited type of reasoning is, and what parts of the Snapchat messages it applies to, the Court has really become involved in giving a partial Edwards‑type direction.
39. [39]
    There are cases which suggest that giving a modified form of the Zoneff direction, rather than an Edwards direction, may be inadequate in a case where the consciousness of guilt evidence is found in conduct, and where the evidence is important in the scheme of the Crown case against the accused (as it is in this case).
40. [40]
    In Melrose (above), evidence of flight was admitted.  At trial the judge was “at pains to emphasise to the jury, and that more than once, that they were to use that evidence merely as explanatory of the ten years and more which had elapsed since the date of the alleged offence and the trial.  His Honour was at pains to point out to them that they must not use it for the purpose of determining the appellant’s guilt or otherwise.”^[24]  The ground of appeal was that the evidence of flight ought not to have been admitted at all and the Court of Criminal Appeal set aside the verdict on that ground.  In discussing the problem caused at trial Connolly J said this:

“… In the result the members of the jury were asked to exclude from their consideration the proven fact that the appellant, shortly after the termination of the committal proceedings left Australia under an assumed name and on a false passport …  I am not persuaded that it would have been easy for the jury to put the appellant’s flight out of their minds, despite his Honour’s careful directions.

The evidence which was admitted was most damning.  I cannot persuade myself that this is the type of case in which, despite the learned judge’s explicit directions, it was possible for the jury to put out of their minds the fact that the appellant had run away when on bail after being committed for trial on this offence; cf. Teper v The Queen [1952] A.C. 480.  The course which was followed really resulted in the appellant getting the worst of both worlds.  The evidence not having been admitted as relevant to guilt, the warnings which would properly accompany its reception for this purpose were necessarily omitted, while, as I have said, it is unrealistic to suppose that the jury could put out of their minds evidence of this nature.”^[25]

41. [41]
    The same type of reasoning is contained in the judgment of Charles JA in R v Chang (above).  There, the trial judge had directed the prosecutor not to put any of the applicant’s post-offence conduct or lies (with one exception called ‘the significant lie’) as evidence of consciousness of guilt.  Charles JA, with whom the rest of the Court agreed, thought this was an error on the part of the trial judge.  He went on to say:

“[44] … But, relevantly to the applicant’s argument, the consequence of the judge so confining the prosecution case was that the jury were given a full and proper Edwards direction only in respect of the ‘significant lie’, and were thoroughly warned that this lie may have been told for a variety of other reasons such as panic. The jury was, however, given no such warning when they came to consider the remainder of the applicant’s post-offence conduct.

[45] The judge did indeed tell the jury that they could not use the applicant’s other statements ‘or conduct engaged in by the accused man which you regard as lies or attempts to deliberately mislead or conceal ...’. The director understandably argues that the jury should be presumed to have complied with this direction and, if they did so, could not have used any other of the accused’s lies or post‑offence conduct as evidence of his consciousness of guilt.

[46] A jury will indeed usually be expected to follow faithfully the directions of a trial judge. But, with respect, it would in the present case have been no easy matter. …”^[26]

42. [42]
    Charles JA went on to explain why the facts of that case made it particularly difficult for the jury to follow the direction, and also to say that he thought, in substance, the prosecutor had relied upon post-offence conduct in his address.  He concluded:

“[48] It follows, I think, that a full Edwards direction should have been given in relation to the applicant’s alleged lies and his post‑offence conduct generally. The absence of such a direction meant that the applicant was, as was contended on his behalf in this court, denied the protection he would have been given by a warning that his behaviour may not have stemmed from a realisation of his guilt of murder, as distinct from a realisation that he had caused the victim’s death and that there were possible explanations such as panic or a desire to escape an unjust accusation for his highly bizarre behaviour. The case is, in my view, very close in these respects to what occurred during Nguyen’s trial. The conduct here, I have concluded, would inevitably have been used by the jury for the purpose of drawing an inference as to the state of the accused’s mind at the relevant time. Since it was capable of being misused by the jury, the interests of a fair trial required a careful Edwards direction from the trial judge as to all the conduct and lies originally sought to be relied on by the prosecutor in this way. I note that in the passage previously cited from the judgment of Gleeson CJ and Hayne J in Dhanhoa their Honours appear to accept the necessity for the giving of such a direction if ‘the judge apprehends that there is a real danger that the jury may apply such a process of reasoning’. That the jury here would have done so seems to me to be certain.”

43. [43]
    I note Charles JA’s reference to the duty of the trial judge to ensure a fair trial.  This duty was referred to in a general passage about summing up in RPS v The Queen.^[27]  Also mentioned at that passage is the requirement for a trial judge to identify the issues in the case.  Two important issues in this case were whether or not the Snapchat messages contained implied admissions of sexual conduct having taken place, and whether or not the appellant’s attempt to suborn the complainant and pervert the course of justice by urging her to withdraw her complaint and destroy evidence amounted to admissions by conduct.  The evidence as to those issues was very powerful because it came from the appellant himself, shortly after he became aware that the complainant had made a complaint to police.  I find it difficult to see how a trial judge could sum up this case to a jury without properly exposing those issues and giving directions and warnings to the jury about the uses they were, or were not, able to make of the evidence in the Snapchat messages.  For the reasons just explained, I think that an Edwards-type direction, rather than a short Zoneff-type direction, was required.

Orders

44. [44]
    For these reasons I joined in the orders made.
45. [45]
    DAVIS J:  The applicant was convicted on 25 September 2020 of six counts of rape^[28] and one count of maintaining an unlawful sexual relationship with a child under 16 years.^[29]  The complainant is the appellant’s biological daughter and the offences are all domestic violence offences.^[30]
46. [46]
    The complainant turned 16 years of age on 28 February 2019.^[31]  Three of the counts of rape^[32] were alleged to have occurred before the complainant’s 16th birthday and were therefore particulars of the count of maintaining.^[33]  Three were alleged^[34] to have occurred after the complainant turned 16 and therefore were not particulars of the maintaining count.
47. [47]
    Upon conviction, the appellant was sentenced to six years imprisonment on the count of maintaining an unlawful relationship with a child under 16 years and three years imprisonment on each of the counts of rape.  All sentences were ordered to be served concurrently.
48. [48]
    A notice of appeal and an application to appeal sentence were filed out of time.  The Crown does not oppose time being extended but the application to appeal sentence has been abandoned.  On the hearing of the appeal, the appellant was given leave to amend the notice of appeal to the effect that his single ground of appeal against conviction is:

“The messages contained in exhibit 9 were relied upon by the Crown in such a way that the jury may have relied on those messages as evidence of post-offence conduct demonstrating a consciousness of guilt.  The jury was not directed that they could not use that evidence as evidence of consciousness of guilt except in certain circumstances in terms of Edwards v The Queen (1992) 173 CLR 653.  That failure to direct the jury how the evidence ought not be used as evidence of consciousness of guilt without the jury being satisfied first of the matters that ought be raised in the direction gave rise to a miscarriage of justice.”

49. [49]
    Exhibit 9 were Snapchat messages which were sent by the appellant to the complainant after she made complaint to police.
50. [50]
    There were directions given by the learned trial judge as to how the evidence of the Snapchat messages might be used by the jury.  The appellant’s complaint is of an absence of directions as to how the jury was prohibited from using the evidence of the Snapchat messages.

The trial

51. [51]
    All direct evidence of the alleged offending came from the complainant whose evidence was pre-recorded.
52. [52]
    The complainant gave evidence that when she was in grade 8 or 9 at school, the appellant rubbed cream around her vagina before putting his fingers inside her.  That was count 2 on the indictment.
53. [53]
    On another occasion, when she was about 15 years old, the appellant entered her room and had a discussion with her, the effect of which was that, in his opinion, she would be ready to have sex soon.  While speaking to her, the appellant inserted his finger into her vagina.  That was count 3.
54. [54]
    The third count of rape also occurred when the complainant was 15 years old and is the last count of rape which occurred before her 16th birthday.  She recalled the day of this offence as being a day when she and her sister had made sculptures with air dry clay.  That evening, the appellant came to her room to say goodnight and inserted a finger into her vagina.
55. [55]
    Counts 5 and 6 occurred when the complainant was in grade 11.  That was in 2019 and, given that the complainant’s birthday is in late February, it follows that this offending occurred after her 16th birthday.  She was at home with the appellant.  She was on the couch.  He pulled down her pants and inserted a finger into her vagina.  That was count 5.  He then licked her vagina so as to penetrate her with his tongue.  That constituted count 6.
56. [56]
    In May 2019, the last count of rape^[35] was committed, again in the complainant’s bedroom.  The appellant removed the complainant’s grey pyjama pants and penetrated her vagina with his finger.  That conduct constituted count 7.
57. [57]
    Count 1, which was the charge of maintaining an unlawful relationship with a child, was alleged to have been committed between 25 January 2016 and 27 February 2019, the eve of the complainant’s 16th birthday.  Count 1 was supported not only by the evidence of the commission of counts 2, 3 and 4, but also other sexual offending not reflected by specific counts.  It is unnecessary to analyse that evidence.
58. [58]
    On 1 June 2019, the appellant left the family home.
59. [59]
    Preliminary complaint was made by the complainant to her mother.  Initially, that was contained in a letter and later further complaint was made.
60. [60]
    Police investigated and in due course interviewed the appellant.
61. [61]
    The complainant’s mother gave evidence of the preliminary complaint made to her by the complainant.  She also gave evidence of the relationship between the complainant and the appellant.  In effect, she said that the relationship was not natural and on two occasions she noticed, through his clothing, that the appellant, while with the complainant in her bedroom, had achieved an erection.  The appellant’s wife said that on another occasion, while he was in the complainant’s bedroom, the appellant seemed to position his body so as to hide his groin from her, the inference being that his penis was erect and he did not want his wife to see that it was.
62. [62]
    The complainant’s siblings gave evidence of the relationship between the complainant and the appellant.  In particular, they described that relationship as different to the relationship which the appellant had with his other children.  They gave evidence that the appellant and complainant were often physically close, constantly touching, and that there was a special place for the complainant to sit next to the appellant on the couch.  The appellant would spend more time in the complainant’s room saying good night to her than he did with her siblings.
63. [63]
    The appellant’s sister gave evidence.  She swore that, when growing up, the appellant was not close to his family.  She also gave evidence that the appellant told her that he achieved an erection while with the complainant.  This was on an occasion different to the one described by the appellant in his interview with police to which I later refer.  Both these pieces of evidence were said to prove lies by the appellant and were the subject of directions to the jury by the trial judge.
64. [64]
    The arresting police officer gave evidence, but that was only to prove the recording of an interview she conducted with the appellant.  The recording was admitted into evidence.
65. [65]
    After complaint had been made, the appellant sent Snapchat messages to the complainant.  They were:

“I guess I am just left wondering why, you and I know that I have never harmed you. I have always kept your feelings in mind. A lot of times I have said to you that you need to let me know if you have been feeling uncomfortable especially because I think that you felt that you were betraying Mum by hugging me tightly. Now I don’t know if my number is blocked. No one is replying to me. I am really hurting and I don’t know what to say to fix things.

I need you all in my life and you know that I have never harmed you. I have always had your love held high. Did you do what you did because you are upset with how Mum was looking at you…. I don’t know now what to do for you. If you don’t want me in your life you need to be the one to tell me. Do you still want me to care for you? Do you feel safe with me….

[The complainant] please, I understand that you don’t want to look bad by Mum eyes. But we both know that I have never harmed or done anything without your consent. What you are saying can get me into alot of trouble. Please don’t do that to me. What you are doing is going to remove from your life. I don’t understand why.

I really want to be in your life, watch you grow, get married, have kid’s of your own. What you wrote about me, it could put me in jail for a long time. I know how it looks, but if you can’t* take back what you said and explain that it wasn’t true. Please [the complainant] I really want to in your [life] as your father and friend. Are you upset because I left? I’m sorry [the complainant]. Please be careful with what you say and please, please delete these messages or it could be more damaging not to you but to me. I love you so much. Please think about our future. Can you let me know when you have read all of it.

If you feel that I have wronged you please let me make it to you. I really hope to see you again soon.”^[36]

66. [66]
    The word “can’t” which I have marked * is probably an error and should read “can”.  There are other obvious typographical errors in the messages.
67. [67]
    The portions underlined are the statements relied upon by the appellant which should, he submits, have been the subject of specific directions.
68. [68]
    During his interview with police, the appellant did not deny that his relationship with the complainant was different to his relationship with his other children.  He said that he was very close to her and would often compliment her appearance.  This, he said, was motivated by the fact that the complainant suffered from alopecia and he thought her confidence needed building.^[37]
69. [69]
    The appellant accepted that he often had physical contact with the complainant but denied there was any sexual context to it.  He accepted, however, that there was an occasion where the complainant was lying on top of him and he obtained an erection which his wife saw.^[38]
70. [70]
    When it was put to him that the complainant alleged that he had kissed her in a sexual way, the appellant said:

“[APPELLANT]: No there’s been a few times there where um I would get up, I would say goodnight, I would lean down give her a peck. I’d walk away she would um, do she’d always do this little sound like ‘cause she’d want another kiss. So I’d go in there and give her more of a kiss. There’s been a couple of times there where if I’ve lost my footing or something similar I’ve it’s made me press in harder or you know. There’s been a taste there where my tooth hit her tooth.”^[39]

71. [71]
    The Snapchat messages were obviously sent after the appellant had contact with police.  There were references to text messages during the police interview^[40] but not the particular Snapchat messages.
72. [72]
    The appellant did not give evidence at his trial, but his counsel relied upon the denials and explanations to police in the interview.
73. [73]
    The Snapchat messages were referred to in the Crown prosecutor’s opening:

“You will also see Snapchat messages that he sent [the complainant] about a week after she had gone to police. Where he denies the offending, but tells her to delete the messages, and tells her what to do. The Crown submission is that those text messages are consistent with his attempts to minimise his conduct and are examples of the degree of control he tried to exert over her.”^[41] (emphasis added)

74. [74]
    After the Crown closed its case and the appellant made his election not to give or call evidence, the trial judge heard submissions on the appropriate directions to be given in the summing-up.  Relevantly here, there was a discussion about the significance of the Snapchat messages and also as to the appropriate directions on lies allegedly told by the appellant in his interview with police.
75. [75]
    As to the Snapchat messages, the following exchanges occurred:

“MR CORSBIE:^[42] I was going to. The first one I was going to talk about was the effectively motive to lie.

HIS HONOUR: Yes.

MR CORSBIE: So I do have a copy to be marked,^[43] if your Honour was minded to - - -

HIS HONOUR: All right. If there are to be any changes, we might have the final one marked although I don’t see any difficulty with this myself, I must say. But I’ve read it. I don’t have any difficulty with it. I’ll see if Ms Juhasz^[44] wants anything else incorporated into it. Ms Juhasz, this is the motive to lie direction.

MS JUHASZ: No. It really encapsulates what’s within the Snapchat messages, I suppose.

HIS HONOUR: Okay.

MS JUHASZ: It wasn’t something that I cross-examined upon but it is raised within that so probably needs to be addressed as to how they use that - - -

HIS HONOUR: All right.

MS JUHASZ: - - - evidence.

HIS HONOUR: Just before we move on from those, they are the messages contained within exhibit 9, aren’t they?

MS JUHASZ: Mmm.

HIS HONOUR: Apart from those issues raised in them, you agree that a direction along those lines should be given, what else is the relevance of exhibit 9 and will those Snapchat messages need to be the subject of further directions? Are you saying they have any other relevance?

MR CORSBIE: I do suggest they have other relevance.

HIS HONOUR: All right.

MR CORSBIE: There are two things I was going to address the jury on in relation to those. My first submission would be that the jury could treat them as an example of relationship evidence and suggest that they are an example of his belief that he could control what she would do - - -

HIS HONOUR: Okay.

MR CORSBIE: - - - and that is through telling her to delete messages that he said would damage him.

HIS HONOUR: All right. Right. I might need to get this down a bit more carefully or maybe you could put this in writing as well, if you don’t mind.

MR CORSBIE: I could absolutely do this over lunch.

HIS HONOUR: But to be fair to Ms Juhasz, do you mind just summarising that again? Exhibit 9, you say - - -

MR CORSBIE: That they are an example of his ability to think he can control her, and the specific example is by having her delete messages that he says would damage him.

HIS HONOUR: Yes.

MR CORSBIE: And by his comment, ‘What you are doing is going to remove me from your life’.

HIS HONOUR: Yes.

MR CORSBIE: And the consistency between that and what she says in her interview to police prior to those Snapchat messages being received, about one of the factors in her consenting is that he would withhold affection and say, ‘Is this how you want it to be?’

HIS HONOUR: All right. I understand. Ms Juhasz, do you have anything – is that all you had to say about that?

MR CORSBIE: I was also going to make a comment on – there are two lines:

We both know that I have never harmed or done anything without your consent.

Which I think is in the first one.

HIS HONOUR: I can’t pick that up at the moment, but anyway:

We both know that - - -

MR CORSBIE: He’s never harmed her or done anything without her consent.

HIS HONOUR: Yes.

MR CORSBIE: And the never last message:

If you feel I have wronged you, please let me make it up to you.

There’s a typographical error in the message, but it’s clear that’s what he means.

HIS HONOUR: What do you say they indicate?

MR CORSBIE: My submission is going to be that those two statements there are a – consistent with his, in hidden terms, acknowledging the nature of the relationship with [the complainant].

HIS HONOUR: So do you say they are, in essence, admissions.

MR CORSBIE: Admissions, yes.

HIS HONOUR: And the first two that you mentioned, the examples of ability to think he can control the complainant and consistent with what’s in her interview, you’re not saying they are admissions. You’re just saying they - - -

MR CORSBIE: They’re relationship evidence.

HIS HONOUR: Relationship. Okay. Do you – what do you say about that, Ms Juhasz?

MS JUHASZ: I agree with the characterisation of the controlling aspects of what’s raised in the Snapchat messages as being – they assist with regards to why she would have given her consent, or at least characterised the relationship in a way where she didn’t make any disclosure at the relevant time. So in that – in that characterisation of relationship evidence. However, with regards to admissions, I think there could be two possible interpretations of that, when you look at his record of interview – and I’d need to find the specific reference. So not just that it’s referencing the specific things that she’s saying. He speaks often in the interview about asking her at various times whether she’s happy with the hugging and the closeness of their relationship and affection, in light of [the complainant’s mother] intervening with regards to that closeness. So there are two inferences open as to what that means and what that’s a reference to.

HIS HONOUR: That wouldn’t deny them being capable of being used in a way the Crown says.

MS JUHASZ: No.

HIS HONOUR: And if the Crown are going to use them in that manner, then they need to be the subject of specific directions that - - -

MS JUHASZ: Yes.

HIS HONOUR: - - - if they are to be relied upon, then – I mean, the words aren’t disputed. They’re in – you’re not disputing your client said those things.

MS JUHASZ: No.

HIS HONOUR: They need to be capable of that interpretation and truthful admissions of acknowledging the relationship. It’s just I need to know how the Crown are going to characterise these things, in case I need to give specific directions. I’m assuming that there are some statements in the interview that we’ve just seen played – exhibit 14 – that the Crown also rely on. So again, in that respect, I would need to probably include all of this as examples of admissions.

MS JUHASZ: Yes.

HIS HONOUR: With the usual directions about them being truthful admissions before they can be relied on.

MS JUHASZ: Yes.

HIS HONOUR: So are you disputing that they can be used in the way Mr Corsbie characterised them, or not?

MS JUHASZ: No, I’m not.

HIS HONOUR: You’re not. All right.

MS JUHASZ: I think they can be on the evidence.

HIS HONOUR: Okay. All right.

MS JUHASZ: But also there’s an alternative. So perhaps, when your Honour’s giving the direction, he also gives an alternative reason for providing that message in the seeking of consent with regards to the closeness of their relationship, which was a father/daughter relationship.

HIS HONOUR: All right. Do you want to collaborate on something that could be combined?

MS JUHASZ: Yes.

HIS HONOUR: I’m happy to incorporate all of that in one direction, but I would envisage probably telling the jury that the Crown relies on the statements in the interview – I’d like to have those identified, as well – statements in these messages in exhibit 9 and any other statements. I mean, I’m not sure, but I was going to assume that maybe there were statements in [the appellant’s sister’s] evidence that were going to be relied upon in a similar vein. So I wouldn’t mind having those all in one place.

MR CORSBIE: Certainly. I do have those identified, so I can simply put together - - -

HIS HONOUR: Yes.

MR CORSBIE: - - - extract those in a separate document.

HIS HONOUR: Are you saying that they also are capable of being used as admissions?

MR CORSBIE: I wasn’t going to approach the interview as admissions. I was approaching that as sexual interest evidence, the conduct he admits to, because he’s specific - - -

HIS HONOUR: Well, it would have to be an admission to sexual interest though, wouldn’t it?

MR CORSBIE: Yes.

HIS HONOUR: So there’s no admission to any discrete offence.

MR CORSBIE: No.”^[45] (emphasis added)

76. [76]
    The draft direction produced by the barristers and referred to in that exchange became exhibit “MFI-K” and is in these terms:

“In the snap chat messages that the defendant sent to the complainant, the defendant suggested motives for her to lie in her account concerning the conduct of the defendant. Those motives were:

- Did you do what you did because you were upset with how mum was looking at you

- Are you upset because I left

If you reject the motive to lie put forward on behalf of the defence, that does not mean that the complainant is telling the truth. Remember it is for the prosecution to satisfy you that the complainant is telling the truth; for it is the prosecution’s burden to satisfy you beyond reasonable doubt of the guilt of the defendant.”^[46]

77. [77]
    As to the appropriate directions on alleged lies, there was this exchange:

“HIS HONOUR: Okay. In relation to the defendant’s interview, is it being suggested that in any respect he told lies that would necessitate a Zoneff-type direction?

MR CORSBIE: I’m certainly going to be suggesting that he’s not telling the truth and that’s because he does, of course, make specific denials. In terms of lies, they would only be going to credit. Let me just - - -

HIS HONOUR: Well, if you’re going to be saying he’s not telling the truth, in effect that is a lie.

MR CORSBIE: Yes.

HIS HONOUR: So maybe I need to give a Zoneff direction.

MR CORSBIE: Yes. That would probably be appropriate.

HIS HONOUR: Sometimes the prosecution submit that a defendant’s account in an interview should not be accepted, which is slightly different and sometimes the suggestion is that there’s no need for a lies direction there. But if the submission’s going to be made that he’s not telling the truth, then that probably means a lie.

MR CORSBIE: Yes. So I was going to identify the discrepancy between what he – how he describes growing up and the degree of affection, and what his sister says as potentially constituting a lie.

HIS HONOUR: Well, there’s also the - - -

MR CORSBIE: And then also his statement that he only had the erection on the one occasion.

HIS HONOUR: I probably need to give a Zoneff-type direction, don’t I?

MS JUHASZ: With respect to the specific lies that are identified, the fact that he’s saying that he didn’t do these things, it’s just a general denial of him not doing these things. The only person that says it happened is [the complainant]. But I understand the specific direction with respect to the – there being external evidence about the relationship although that’s quite – that’s open to interpretation.

HIS HONOUR: Well, the point is that a Zoneff direction simply informs the jury that, look, there are submissions that the defendant lied in the interview or wasn’t tell the truth. You don’t adopt a process of reasoning that because - - -

MS JUHASZ: Yes.

HIS HONOUR: - - - a person’s lied, that they are guilty of the offence, or something like that. That’s the whole purpose of that direction.

MS JUHASZ: Yes. But perhaps with the – I understand there’s going to be specific details of – apart from his denials about it occurring - - -

HIS HONOUR: Well, I don’t need to emphasise the lies - - -

MS JUHASZ: No.

HIS HONOUR: - - - unless you want me to.

MS JUHASZ: No. So is your Honour’s view that it would be – that’s a general direction as to if there were any lies, how they should be treated and then - - -

HIS HONOUR: That’s right.

MS JUHASZ: - - - leave it to counsel to speak about those.

HIS HONOUR: I’m not leaving them as consciousness of guilt lies.

MS JUHASZ: No. Yes. Okay. Thank you.

HIS HONOUR: I think if there’s no direction at all about it, there’s a risk of the jury misusing the - - -

MS JUHASZ: Yes. I think there has to be a direction about it in the way in which your Honour’s termed it.

HIS HONOUR: Okay. Well, I’ll give a Zoneff-type direction. You can check the benchbook - - -

MS JUHASZ: Yes.

HIS HONOUR: - - - direction, Ms Juhasz, but I would be inclined to just stick pretty much to that without necessarily specifying the lies unless, of course, you want me to.”^[47] (emphasis added)

78. [78]
    In Edwards v The Queen,^[48] the High Court considered the circumstances in which a lie told by an accused might amount to an admission by conduct to be used in proof of guilt.^[49]  In Zoneff v The Queen,^[50] the High Court considered the appropriate direction to juries where the lies of an accused are not capable of constituting an admission by conduct and may only be used in the assessment of an accused’s credit.  Such a direction is commonly called a “Zoneff direction” and his Honour used that term in the exchanges with counsel set out above.
79. [79]
    The two alleged lies of the appellant identified to be the subject of a Zoneff direction are firstly, his description of his early family life and secondly, his statement that he only achieved an erection once when with the complainant.  Both those statements are disproved on the Crown case by the evidence of the appellant’s sister.
80. [80]
    The Crown prosecutor addressed the jury and, in relation to the Snapchat messages, he told the jury:

“So the second thing I want to talk to you about is why you can tell that [the complainant] is not lying. In the Snapchat messages which you’ll have with you in the jury room, he^[51] made two suggestions as to a motive, to explain why [the complainant] might be lying. Those two things he said were did you do what you did because you were upset with how Mum was looking at you? And are you upset because I left?

Now, I want to show you that both of those can’t be true. But as part of that – and his Honour will direct you on this as well, you can’t follow a line of reasoning that – because he hasn’t proven a motive for her to be lying, she must be telling the truth. And that’s because it’s for the prosecution to prove that she’s telling the truth, not for the defendant to prove that she’s lying. So just to touch on these two though, first one: that she made these allegations up to somehow keep her mother happy. The thought that telling her mother, yes, you know what? You were right all those times: my father has been sexually abusing me for years. The thought that telling her mother that would make her mother feel vindicated or satisfied is completely ludicrous. That is one of the worst things a mother could hear.”^[52] (emphasis added)

And later:

“And now lastly on this topic, I want to speak about her relationship evidence. So you’ve heard evidence of the sexual aspects of the relationship between [the complainant] and the defendant, and that’s relevant here as well to this topic. But on top of that, there’s some further evidence that shows the nature of their relationship. You’ve heard the evidence from the rest of the kids, that he seemed to give [the complainant] preferential treatment. [The complainant’s siblings] all spoke about that. The degree of dependence on him that he engendered through treating her that way, led to his ability to control her behaviour.

A physical example of this is in those Snapchat messages. My submission on the way that you would treat those messages is as an example of his ability to think that he can still control her and tell her what reality is. He sent her a message telling her to delete the messages that he says will damage him. He believed he could tell her what to do. He also sent another comment, what are you – what you are doing is going to remove me from your life. Now in and of itself, that’s of this – not very useful. However, when you go back and think, one of the very first things that [the complainant] spoke to police about on the 3^rd of June, so before these messages were even sent, was that one of the ways that her father would get her to take part in these acts was by withholding affection and attention and then he’d go to her and say, is this how you want it to be? And through that, compel her to do as she was told.

Ultimately, those Snapchat messages are in my submission, an example of his attempt to control her, to attempt to threaten her, and to have him conform with his reality. There’s two more lines in particular in those messages I wanted to point out to you. The first one: we both know that I have never harmed or done anything without your consent. And then secondly: if you feel I have wronged you, please let me make it up to you. Now it’s for you to decide what you make of those messages, ladies and gentlemen. But you might think that they are a veiled but very, very clear admission as to the true nature of the relationship that he shared with [the complainant]. Why would he be talking about needing to do anything without her consent in a text message like that unless what she was saying was true? Now as I said, it’s up to you to decide what those mean.”^[53] (emphasis added)

81. [81]
    In the exchange with the trial judge before final addresses were delivered, the trial judge suggested that the passage in the Snapchat message, “We both know that I have never harmed or done anything without your consent”^[54] could constitute an admission.^[55]  The Crown prosecutor seemed to agree with that proposition before turning to other evidence which he described as “relationship evidence”.  He did not put to the jury that the Snapchat messages constituted an admission.
82. [82]
    The Crown prosecutor’s decision not to put the Snapchat messages to the jury as an admission seems odd.  By the time of the Snapchat messages, the appellant knew that the complainant had made complaint of sexual misconduct.  In that context, the statement by the appellant that he had “never … done anything without [the complainant’s] consent” appears capable of constituting an admission to sexual conduct.  No doubt there was some forensic reason underlying the Crown prosecutor’s decision.
83. [83]
    Defence counsel dealt with the Snapchat messages in this way:

“He gives an open assessment of a close relationship he had with his daughter in a context where on my submission, he’s really floundering to work out what’s going on. He’s just separated from his wife and family, where he had a conversation with his children about 50/50 care. His wife’s asked him to remain at the home and he’s left, and he’s trying to make things right and work out what’s happening. And I’d suggest to you as well, looking at the Snapchat messages, that there is a different way in which to perceive those, and they don’t indicate anything sinister. He’s trying to ascertain what’s going on, it’s in that context of being separated from his family, making sure his daughter is okay, at the same time as reaching out to all the other children in the family, as you heard through the evidence of [the complainant’s brother] which I’ll take you through.”^[56]

And later:

“With regards to the Snapchat messages – and I’m approaching the end of what I really want to address, your Honour. My submission is this is an ex – is not an example of extended control. It should be considered in the considered in the context of a man who was married to his wife for 19 years. He leaves her. It’s not the other way around. She wants him to stay. There’s the discussion about 50/50 care. He presumes this is going to occur. He goes and lives with his parents and then, all of a sudden, there’s no contact with his children.

He contacts his wife. He has some idea about these allegations which he absolutely denies, and this conversation is an attempt, when he’s finding it difficult to contact his children to clarify what’s going on, see why these allegations are made and try and preserve their relationship, and he does make the comment within that Snapchat conversation – or the messages that he sends because there’s no response – that he never did anything without your consent but, on my submission, this isn’t a reference to the specific sexual acts which are alleged by the complainant.”^[57] (emphasis added)

84. [84]
    It can be seen that defence counsel put to the jury that the comments in the Snapchat messages did not concern the “specific sexual acts which are alleged by the complainant”.  In other words, they are not admissions.  Counsel’s decision to say this, even though the Crown prosecutor did not put to the jury that the comments constituted admissions, is understandable on forensic grounds.  The jury may have regarded the comments as admissions no matter what the Crown prosecutor said.
85. [85]
    On the issue of lies, the Crown prosecutor addressed the jury:

“He seeks to give an explanation for his closeness to [the complainant] as being that…I’ve grown up in a close family where we do hug and kiss each other and stuff, like not yeah, and we can lay there and be close and we don’t have to be distant with it.  But then you’ve heard the evidence of his sister:^[58] he didn’t grow up in a very affectionate family.  And he in particular was not an affectionate person.  He’s lying.”^[59]

86. [86]
    Defence counsel, no doubt acting on a forensic decision, did not directly address the alleged lies or the evidence of the appellant’s sister.
87. [87]
    His Honour commenced the summing-up with some general directions before instructing the jury of the significance, or lack thereof, of the appellant electing not to give evidence.^[60]  His Honour referred to the appellant’s version given in his interview with police and then directed the jury:

“Cases are sometimes described as being word against word. You should understand that in a criminal trial it is not a question of you making a choice between the evidence given by the Crown witnesses and an account given by a defendant. The proper approach is to understand that the Crown case depends upon you, the jury, accepting that the evidence of the complainant is true and accurate beyond reasonable doubt despite the account given by the defendant when he was interviewed by the police. In other words, members of the jury, it is not simply a question of you comparing the competing versions.

Where, as in this case, there is a version of events given by the defendant, usually one of three possible results will follow. First, you might think that the defendant’s account is credible and reliable and that it provides a satisfactory answer to the prosecution case. In that event, of course, your verdicts would be not guilty. Or, second, you might think that although the defendant’s account was not convincing, it, nevertheless, leaves you in a state of reasonable doubt as to what the true position was. Again, in that event, your verdicts would be not guilty.

Or, third, you might think that the defendant’s account should not be accepted. However, if that is your view, you must be very careful not to jump from that view to an automatic conclusion of guilt. If you find that the defendant’s version was unconvincing, you should put it to one side and then go back to the rest of the evidence and ask yourselves whether, based on a consideration of such evidence as you do accept, you are satisfied beyond reasonable doubt that the Crown has proved the elements of the offences.

It follows from the onus of proof resting upon the Crown that where the defence raise some sort of motive on the part of the complainant to give a false account that the defence have no onus of proving that. Here, in this case, in the Snapchat messages that the defendant sent to the complainant, he suggested motives for her to lie in her account concerning his conduct. Those motives were along the lines, ‘Did you do what you did because you were upset with how Mum was looking at you?’, and, ‘Are you upset because I left?’

Now, if you reject those motives to lie that the defendant put forward as part of his defence, that does not mean that the complainant is telling the truth. Remember, it is for the Crown to satisfy you that the complainant is telling the truth because the Crown has the burden to satisfy you beyond reasonable doubt that the defendant is guilty.”^[61] (emphasis added)

88. [88]
    That final passage set out above is a direction in terms of “MFI‑K”.^[62]
89. [89]
    Later, his Honour dealt with relationship evidence.  After directing the jury’s attention to some particular evidence, his Honour continued:

“The Crown also relies on the following acts: a higher degree of physical affection that the defendant demonstrated towards the complainant compared to the other children, that he had an erection when he was interacting with [the complainant], that he behaved in a way that hid his groin from [his wife] on two occasions when he was interacting with [the complainant], and the Snapchat messages that the defendant sent to [the complainant] wherein he stated that, ‘We both know that I have never harmed or done anything without your consent,’ and, ‘If you feel I have wronged you, please let me make it up to you.’

The Crown relies on this other evidence to prove that the defendant had a sexual interest in the complainant and was prepared to act upon it. The Crown argues that this evidence makes it more likely that the defendant committed the offences with which he is charged. You can only use this other evidence if you are satisfied beyond reasonable doubt that the defendant did act as that evidence suggests and that the conduct demonstrates that he had a sexual interest in the complainant which he was willing to pursue. If you are not satisfied of those things beyond reasonable doubt, then that may affect your assessment of the complainant’s evidence about the acts which are the subject of the offences with which the defendant is charged.”^[63] (emphasis added)

90. [90]
    His Honour did not direct the jury to the effect that any statement in the Snapchat messages could be found to be an admission.  No criticism is made of the summing-up in this respect.
91. [91]
    His Honour reminded the jury of counsel’s addresses.  In relation to the Crown prosecutor’s address, his Honour told the jury, relevantly here:

“He then dealt with the Snapchat messages where there were suggestions made as to why [the complainant] might be lying. There was a suggestion that she made the allegations up to make her mother happy. He submitted that was ludicrous. As to the suggestion that the allegations were some form of revenge, Mr Corsbie pointed out that the defendant had already left the family home on a number of previous occasions. He also asked you to bear in mind that when [the complainant] spoke to the police, she said that she did not want to see the defendant going to jail.”^[64] (emphasis added)

And:

“Mr Corsbie submitted that the defendant showed a higher degree of affection for [the complainant]. He referred to the evidence that the defendant had erections when interacting with her. He also referred to the evidence of the defendant’s sister,^[65] where the defendant effectively accepted that he had an erection. He then dealt with the relationship and submitted that the defendant seemed to give [the complainant] preferential treatment. An example he referred to was the Snapchat messages and he asked you to bear in mind the defendant told the complainant to delete the messages.”^[66] (emphasis added)

92. [92]
    As to defence counsel’s address, his Honour told the jury, relevantly here:

“She referred to the Snapchat messages and said the defendant was trying to ascertain what was going on within the family and that you should not read anything sinister into them. She submitted that he was reaching out to all of his children. Ms Juhasz reminded you of the basic principles. The defendant is presumed to be innocent, that the Crown must prove its case beyond reasonable doubt, and that you must put aside any prejudice that you might feel because of the nature of the allegations.^[67]

And:

“Ms Juhasz submitted that no other witness gave evidence that the defendant shunned [the complainant] or withdrew his affection from her. In relation to the Snapchat evidence, Ms Juhasz asked you to bear in mind the context of the marriage breakdown. She submitted that all of a sudden there was no contact with the children. She asked you to bear in mind that the defendant’s messages were to all of the children.”^[68]

93. [93]
    Consistently with the exchanges with counsel before addresses, his Honour directed the jury in relation to lies as follows:

“One aspect of the defendant’s interview that I should make particular reference to and which does require a degree of caution, members of the jury, relates to the question of lies in that interview. It was submitted by the Crown that the defendant lied when he said there was only one time that he had an erection when interacting with [the complainant] and, further, he lied when he said that he grew up in a close family. You will, of course, make up your own minds about whether the defendant was telling lies and, if so, whether he was doing that deliberately.

An inadvertent statement that is not correct is not a lie. If you concluded that the defendant did deliberately tell those lies, that would be relevant only to his credibility and the credibility of the account that he gave in the interview. It is then for you to decide whether those suggested lies do, in fact, affect his credibility.

However, you should bear in mind this warning: you must not follow a process of reasoning to the effect that just because a person is shown to have told a lie about something, that that is evidence of guilt. The only relevance of any suggested lies in the interview, members of the jury, is that it could affect the credibility of the account given by the defendant during that police interview. As I have said, you must not follow a process of reasoning that if the defendant is shown to have told a lie about something, that that is itself evidence of guilt.”^[69] (emphasis added)

94. [94]
    The passage set out in the previous paragraph of these reasons is the promised Zoneff direction.  As can be seen, it specifically relates to what was said in the appellant’s interview with police.  There is no mention of the Snapchat messages.

Post-offence conduct principles

95. [95]
    Post-offence conduct which is probative of guilt of a charged act may take various forms, including evidence of flight,^[70] disposing of evidence,^[71] fabricating false evidence^[72] and lies which are a species of post-offence conduct.
96. [96]
    In Edwards v The Queen,^[73] the High Court identified three pre-conditions to a lie constituting an admission against interest and, therefore, positive evidence in the case against an accused.  They are:

    1. (a)
       an accused has told a deliberate untruth;
    2. (b)
       the lie is concerned with some circumstance or event connected with the offence such that it reveals knowledge of the offence, or at least some aspect of it;
    3. (c)
       the lie was told because the accused knew that the truth would implicate him in the commission of the offence and so the accused is lying through a consciousness of guilt.
97. [97]
    On the issue of directions to a jury on such lies, the High Court observed:

“Moreover, the jury should be instructed that there may be reasons for the telling of a lie apart from the realization of guilt. A lie may be told out of panic, to escape an unjust accusation, to protect some other person or to avoid a consequence extraneous to the offence. The jury should be told that, if they accept that a reason of that kind is the explanation for the lie, they cannot regard it as an admission. It should be recognized that there is a risk that, if the jury are invited to consider a lie told by an accused, they will reason that he lied simply because he is guilty unless they are appropriately instructed with respect to these matters. And in many cases where there appears to be a departure from the truth it may not be possible to say that a deliberate lie has been told. The accused may be confused. He may not recollect something which, upon his memory being jolted in cross-examination, he subsequently does recollect.”^[74]

98. [98]
    Where the pre-conditions are not present, the jury may not use the evidence of a lie (or other post-offence conduct) as an admission and may only use the lie in assessment of the credibility of any version given by the accused.  In those circumstances, a direction to the jury may be required ensuring they limit the use of the evidence accordingly.  That is what the trial judge and the barristers in this case called the “Zoneff-type direction”.^[75]
99. [99]
    It is well-established that directions to a jury on post-offence conduct (even if not lies) should follow the Edwards or Zoneff models, depending upon the case,^[76] although in Cooper v The Queen,^[77] the question of whether the admission of all post-offence conduct must comply with the Edwards rules was left open.^[78]  Here, the evidence of the Snapchat messages was admitted.
100. [100]
     An Edwards or Zoneff direction will not be necessary in every case of post-offence conduct.  It will be necessary where there is a risk of a misunderstanding by the jury as to the significance of the evidence.^[79]

What may the jury have made of the Snapchat messages?

101. [101]
     President Sofronoff, in R v Reid,^[80] observed:

“[81] Much confusion about the significance of evidence of post-offence conduct by an accused can arise by restricting one’s consideration of the issue to the broad question whether or not the evidence unequivocally ‘demonstrates consciousness of guilt of the charged offence’.”

102. [102]
     His Honour went on to explain the necessity to analyse the precise relevance of post-offence conduct to particular issues in the case.  This informs admissibility and the necessity for, and content of, directions.
103. [103]
     In assessing the impact of the post-offence conduct evidence here and the adequacy of the trial judge’s directions, it is necessary to:

1. identify the particular passages in the Snapchat messages that are relevant;
2. identify the use which the jury may have put the passages in determining the particular issues before them;
3. consider the effectiveness of the trial judge’s directions to deal with the risk of any impermissible use.

104. [104]
     The particular passages in the Snapchat messages upon which the appellant relies are highlighted in paragraph [65] of these reasons.
105. [105]
     In the passages, “Did you do what you did because you are upset with how Mum was looking at you?” and “I understand that you don’t want to look bad by Mum’s eyes”, the appellant is suggesting to the complainant a reason why she may have made false complaints about him.
106. [106]
     There are various ways in which the jury may have used this evidence.  Firstly, they may have accepted the truth of what the appellant was suggesting to the complainant.  They may have rejected the suggestion.  The danger is, if the jury rejected the suggestion, they may then reason that guilt follows.  That danger was dealt with by an appropriate direction by the trial judge.^[81]
107. [107]
     The jury may have reasoned that the appellant was attempting to manipulate the complainant and suggest that she offer matters concerning her mother as reasons to withdraw her complaint.  Such reasoning was invited by the Crown prosecutor in his address:

“My submission on the way that you would treat those messages is an example of his ability to think that he can still control her and tell her what reality is”.^[82]

108. [108]
     In the passage, “What you wrote about me, it could put me in jail for a long time.  I know how it looks, but if you [can] take back what you said and explain that it wasn’t true.  Please [the complainant] I really want to [be] in your life as your Father and Friend”,^[83] the appellant is imploring the complainant to withdraw the complaint.
109. [109]
     The thrust of the Crown prosecutor’s address was, as already observed, that the Snapchat messages were an attempt to control and manipulate the complainant.  While the Crown prosecutor described those submissions as relevant to relationship, the following reasoning is open:

1. The appellant is guilty of the offending as charged.  That is the Crown case.

2. He is attempting to have the complainant withdraw the charges.

3. He is motivated to have the charges withdrawn so he doesn’t go to “jail for a long time”.

4. He is motivated by his consciousness of guilt and a desire to avoid the consequences of his offending.

110. [110]
     These inferences are strengthened by the last passage relied upon by the appellant: “Please be careful with what you say and please, please delete these messages or it could be more damaging not to you but to me”.^[84]
111. [111]
     By the Snapchat messages, the appellant was communicating with the complainant after she had made complaint of sexual impropriety and after the appellant learned of the fact of those complaints having been made.  Against that context, he asks her to delete the messages.  The jury must have asked themselves, “who doesn’t the appellant want to see the messages?” and the answer to that must be, “the police”.
112. [112]
     Attempts to influence witnesses to change their evidence^[85] or to have evidence destroyed^[86] are classic examples of post-offence conduct.  Dangers arise as to the misuse of that evidence by the jury.

Has the trial miscarried?

113. [113]
     The trial judge directed the jury as he was asked by counsel.  No redirection was requested, at least relevantly to the issues on appeal.
114. [114]
     Mr Minnery of counsel, who appeared for the appellant, accepted that as the trial judge gave directions to the jury as the appellant asked, the appellant must establish that the failure to direct on post-offence conduct resulted in a miscarriage of justice.^[87]  That will be the case where it is reasonably possible that the failure to give the directions now sought may have affected the verdict.^[88]
115. [115]
     Not every failure to direct on the use of evidence of post-offence conduct will result in a miscarriage.  Dhanhoa v The Queen^[89] is an example where no miscarriage resulted.  Holt v R^[90] is another recent example, which shows that one important consideration is the use the Crown attempted to put the evidence.
116. [116]
     It is clear from the Snapchat messages that the appellant was asking the complainant to withdraw the complaint and destroy evidence of him making that request.
117. [117]
     Although the Crown prosecutor described that evidence as “relationship evidence”, the effect of the submission was that the appellant was guilty and was seeking to have the complainant withdraw the complaint so that he did not face prosecution.  This, he said, showed the appellant attempting to control the complainant.  The fact that the Crown prosecutor suggested that the appellant’s post-offence attempts to control the complainant corroborated her evidence to the effect that he was controlling of her during the commission of the offences, did not avoid the prospect of consciousness of guilt reasoning.  It heightened that possibility.  The control was being exercised to avoid prosecution.
118. [118]
     The jury were faced with the sworn evidence of the complainant and the version of the appellant given in his interview with police.  There was some support for the complainant’s version given by other Crown witnesses, although that was circumstantial in nature.  There was no direct corroboration of the acts charged.
119. [119]
     As the trial judge carefully directed the jury, the question was not as to which version was more likely.  To convict the appellant, the jury would need to accept the complainant’s version to a standard beyond reasonable doubt.  However, the real contest in the case was between the complainant’s allegations and the appellant’s denials and explanations.  The Snapchat messages were sent in circumstances where the appellant hoped that their content would not be disclosed.  There can be no doubt that the jury would have properly regarded the Snapchat messages as very important evidence for their consideration.
120. [120]
     In my view, despite the fact that the Crown did not suggest consciousness of guilt reasoning, there was a real danger that the jury may have applied consciousness of guilt reasoning that may have dispelled a reasonable doubt as to guilt which they otherwise may have held.^[91]
121. [121]
     Given that the Crown did not rely on the Snapchat messages as consciousness of guilt evidence, the jury should have been instructed to the effect that:

1. the use of the Snapchat messages was limited to (a) consideration of whether the appellant’s relationship with the complainant was controlling, thus explaining the complainant’s limited cooperation with the offending^[92] and her failure to complain earlier; and (b) credit assessments;

2. that they ought not engage in consciousness of guilt reasoning.

122. [122]
     A miscarriage of justice has occurred.
123. [123]
     In her written submission, Ms Dennis for the Crown relied on the proviso to s 668E of the Code, which is in terms:

“668E Determination of appeal in ordinary cases

(1A) However, the Court may, notwithstanding that it is of the opinion that the point or points raised by the appeal might be decided in favour of the appellant, dismiss the appeal if it considers that no substantial miscarriage of justice has actually occurred. …”^[93]

124. [124]
     Other than stating in her written submissions that the Crown relied upon the proviso, Ms Dennis made no further mention of it.  No argument was developed either in the written submissions or in oral submissions to the Court.
125. [125]
     The proviso has been the subject of much consideration by the High Court.^[94]  The ground of appeal of miscarriage may be established but the appeal dismissed where, upon the appeal court’s assessment of all the evidence, no reasonable doubt as to guilt remains.^[95]  In those circumstances, there has usually^[96] been no “substantial miscarriage of justice”.^[97]
126. [126]
     The real issue at trial was whether the charged acts occurred.  That fell to be determined on assessments of credit.  While the jury accepted the credibility of the complainant,^[98] they did so in circumstances where they may have misused the Snapchat messages.
127. [127]
     In my view, it is not possible from the record to conclude beyond reasonable doubt that the appellant is guilty, so the proviso cannot save the conviction and the appeal must be allowed and a retrial ordered.
128. [128]
     Since composing my reasons, I have had the considerable benefit of receiving Dalton JA’s draft with which I generally agree.
129. [129]
     However, her Honour considered that the trial judge ought to have given an Edwards-type direction as the post-offence conduct in sending the Snapchat messages pointed to a display of consciousness of guilt.  An Edwards direction assumes that the jury may, if satisfied of various prerequisites, use the evidence as establishing a consciousness of guilt.
130. [130]
     I accept, as a general proposition, that there is a certain artificiality in restricting the use the jury may put to evidence which logically may be put to a broader use.  However, trials are conducted on the assumption that juries faithfully follow directions^[99] and that the parties are bound by the way they conduct the trial.^[100]
131. [131]
     As the case was put by the Crown at trial, the Snapchat messages were not relied upon as evidence of consciousness of guilt.  In my view, the jury ought to have been directed accordingly.  Her Honour, in her reasons, expresses concern that the jury may not understand the concept of consciousness of guilt reasoning.  The challenge to a trial judge is to fashion directions to ensure that the jury does understand the principles they are to apply.
132. [132]
     On any retrial, the trial judge will, in my view, not necessarily be obliged to give an Edwards direction in relation to the Snapchat messages.  The judge will be obliged to fashion appropriate directions, the terms of which may depend upon how the Crown puts its case.^[101]
133. [133]
     The court on the appeal made the following orders in which I joined for the reasons explained:

1. The appeal is allowed.
2. The convictions on all seven counts are set aside.
3. The appellant be retried.

134. [134]
     KELLY J:  I agree with the reasons of Davis J and joined in making the orders.