R v HMA[2024] QCA 156

SUPREME COURT OF QUEENSLAND

1. [1]
   THE COURT:  After a trial which commenced on 2 March 2023, a jury found the appellant guilty on the following day of one count of indecent treatment of a child under 16 and one count of indecent treatment of the same child while under care.  He was sentenced to an effective head sentence of 12 months’ imprisonment, suspended after six months for an operational period of 12 months.
2. [2]
   The sole ground of appeal is that the learned trial judge erred in ruling that the appellant could not adduce evidence of his verdicts of acquittal at an earlier trial involving a different complainant, who also happened to be a preliminary complaint witness in the subject trial.  This, it is submitted, impermissibly constrained the conduct of the appellant’s defence.  The appellant contends that the ruling is a wrong decision of a question of law within the meaning of s 668E(1) of the Criminal Code.
3. [3]
   The point at issue developed over a series of three separate but related trials before the same trial judge in the District Court at Maroochydore, with the first of those trials taking place before the judge alone.  On each occasion, Mr Pearce of counsel appeared on behalf of the appellant.

The acquittals

4. [4]
   The first trial commenced on 18 January 2022 and concluded on the following day.  The indictment alleged two counts of indecently dealing with a child under the age of 16 years.  The complainant, who shall be referred to as SJ, was the appellant’s adoptive sister.  The offences were alleged to have occurred during one incident in 1981 or 1982, when the appellant was 16 or 17 years of age and SJ was four years younger.
5. [5]
   The sole issue at the first trial was whether the appellant dealt with SJ in the manner alleged.  The only evidence capable of directly proving those allegations came from SJ, although there was a significant body of preliminary complaint evidence which was said by the Crown to support a finding of guilt.  The preliminary complaint witnesses included the niece and nephew of the appellant and SJ.  We shall refer to the niece as JM and the nephew as BR.  They were later to give evidence in the subject trial where JM was the complainant and BR was again a preliminary complaint witness, along with SJ.
6. [6]
   The appellant has consistently denied he sexually assaulted either complainant.  Indeed, he maintained that SJ, JM and BR had together engaged in an attempt to extort money from him.  It was alleged in this regard that BR demanded money and other things in return for SJ and JM not bringing allegations of sexual assault against him.  As to that, it was common ground that BR made such a demand, and that SJ and JM discussed the detail of their allegations before attending the police station together on 19 October 2020 to make their complaints.  However, the evidence that SJ and JM each gave at the first trial as to the content of their discussion was inconsistent.
7. [7]
   During the cross-examination of SJ at the first trial, it was put to her that she was involved in this alleged attempt to extort the appellant.  SJ denied this allegation and, in the event, the trial judge was satisfied that she was not involved in the alleged extortion.  However, the trial judge was not satisfied beyond reasonable doubt of the reliability of the SJ’s account regarding the occurrence of the two offences.  In part, this was because his Honour found that there was an absence of supporting evidence about the offending occurring, and that there were “manifest inconsistencies” in what SJ, as complainant, had said to the various preliminary complaint witnesses (including JM and BR).  His Honour regarded these inconsistencies as “significant”:

3. “[37]
   [JM’s] evidence of her conversations with the complainant is very different to the complainant’s recollection.  Unlike the allegations, [JM] recalls being told the defendant entered the complainant’s room’s on more than one occasion and touched her.  There is no mention of an event in the complainant’s parent’s bed or of the defendant putting the complainant’s hand on his penis.  No satisfactory reason has been advanced for preferring the complainant’s recollection of the conversation to [JM].  This represents a material inconsistency in what has been said by the complainant about what occurred.  Similar inconsistencies emerge when regard is had to the evidence of [BR].  What he said he was told is closer to the evidence of [JM] than to the allegations of the complainant.  Again, I do not think there is any satisfactory reason to reject his evidence of what he was told by the complainant.”^[1]

8. [8]
   In the result, the appellant was acquitted of both counts in the first trial.^[2]

The ruling

9. [9]
   The second and third trials concerned the subject indictment.  The complainant was JM, with both SJ and BR called in the Crown case as preliminary complaint witnesses.
10. [10]
    The two counts of indecent treatment were alleged to have occurred during a 12‑month period commencing in August 1997.  The appellant was then 32 or 33 years old, and JM was about 11 or 12 years old.  By count 1, it was alleged that the appellant indecently dealt with JM and, by count 2, it was alleged he exposed her to an indecent act (on a different occasion).
11. [11]
    The second trial commenced on 28 February 2023 before a jury, but it was aborted on the second day.  This followed the ruling about which this appeal is concerned, and it was the result of events which are set out below.
12. [12]
    During the cross-examination of JM, and after it was established that she and SJ informed each other about their respective complaints and what they intended to tell the police immediately before attending at the station, there was this exchange:

“And you know, don’t you, that [the appellant] stood trial in respect of the things that [SJ] had alleged in January last year?---January ’17.

Yeah. Because you gave evidence?---I did.

And he was found not guilty ---

HIS HONOUR: Mr Pearce. Members of the jury, you can go out.”

13. [13]
    After the jury retired and a short adjournment was taken, his Honour asked Mr Pearce  how it was “permissible to ask [the] witness the result of a different trial involving your client”.  Mr Pearce explained that it would be alleged as part of the appellant’s defence that JM and SJ were involved in the attempted extortion and, further, in light of the circumstances under which their respective complaints were made, that they were fabricated or at least exaggerated.  He submitted that unless the appellant’s acquittals at the first trial were led, the jury would be left to speculate about SJ’s complaint.  Mr Pearce submitted that he could not “conduct a fair defence” if that possibility was “left hanging”.
14. [14]
    Mr Pearce then foreshadowed the direction he would be seeking in relation to the acquittals:^[3]

“It is simply a matter for direction to a jury that an acquittal in another matter does not mean anything.  It just simply means he has not been found guilty of those other allegations.”

15. [15]
    The trial judge disagreed.  His Honour held to the view that the fact of the acquittal in the first trial was of no relevance “in this proceeding at all”.  While his Honour stated that counsel was not precluded from traversing “what people said, what evidence was given, prior inconsistency, [and suggested] conspiracy”, it was made clear that “[w]hat you can’t do is to lead evidence of the outcome of the earlier trial”.
16. [16]
    As a consequence of this ruling, the Crown sought a discharge of the jury, and that duly occurred.  Shortly after that happened, Mr Pearce mentioned that the ruling “does fundamentally change some of the direction in which I was going to run the defence”, to which his Honour replied:

“The only question you can’t ask is, ‘Was my client acquitted last time?’ You can ask everything else.”

17. [17]
    The following day (i.e. 2 March 2023), the third trial commenced before a different jury.  Before the jury was empanelled, his Honour confirmed that the ruling made on the previous day would continue to apply.  JM was called to give evidence in support of her complaint and was cross-examined, but it was not suggested that she had colluded with SJ in the making of their complaints, or that they had been involved with BR in an attempt to extort money and other things from the appellant.  Before she was excused, but in her absence, his Honour observed there had been no cross‑examination as to a possible “motive to lie”, as had been foreshadowed.  Mr Pearce informed his Honour that he made a “forensic decision to change where I was going to go” in light of the ruling the previous day.
18. [18]
    This Court granted the appellant leave to adduce the evidence of Peter Gerard Boyce of Butler McDermott Lawyers.  Mr Boyce was the appellant’s solicitor at each of the trials.  In his affidavit, Mr Boyce outlines some of the relevant background and explains the basis for the forensic decision.  In October 2020, which was prior to the appellant being arrested and charged for committing the offences concerning SJ and JM, he attended upon Mr Boyce for the purposes of discussing text messages which he received from his nephew, BR.  These messages communicated a threat that if the appellant did not pay money and perform other actions, SJ and JM would make complaints to police alleging that the appellant had committed historical sexual assaults.
19. [19]
    Exhibit D to Mr Boyce’s affidavit is a copy of the text messages alleged to have been sent by BR, as well as a Facebook message acknowledged by SJ to have been sent by her to the appellant on 17 October 2020.  The appellant was not arrested and charged by police in relation to the offences concerning SJ and JM until 12 November 2020.  A text message was sent by BR on 15 October 2020 at 5.54 pm.  The message (in part) reads:

“[SJ] and [JM] both ready and willing to give statements [first name of the appellant].  literally waiting for my call and the polices tonight.  Im fully aware that my threats of very low level blackmail in illegal.  Hence your no reply im guessing!  I am ready to go head to head in the court of law.  You will go down and to be honest a much smarter idea then other things I have thought about doing to you.  Your last chance before our and others worlds get turned upside down…”.

20. [20]
    The Facebook message sent by SJ on 17 October reads:

“Every dog has its day…yours is coming…Woof Woof”.

21. [21]
    Paragraph 7 of Mr Boyce’s affidavit refers to the fact that SJ and JM made complaints about the appellant to police at 8.36 am on 19 October 2020.
22. [22]
    As to the basis for the forensic decision, this is explained by Mr Boyce as follows:

3. “16.
   Because of the ruling that underpinned the discharge of the jury on 1 March 2023, prior to the re-commencement of the trial on 2 March 2023, instructions were obtained from the Appellant as to the manner in which defence counsel should conduct the re-trial.

3. 17.
   In particular, the Appellant was informed that defence counsel was prohibited from informing the jury that the January 2022 trial had ended in an acquittal.  Counsel gave advice that while counsel was at liberty to cross-examine [JM], [SJ] and [BR] about the attempted blackmail, and could also suggest that [JM], [SJ] and [BR] had conspired to bring false accusations against the Appellant, informing a jury, that other like-allegations had been made against the Appellant, without informing the jury of the outcome, brought with it a high risk of unfair prejudice.

3. 18.
   The Appellant had provided trial instructions recognising that counsel’s cross-examination of [SJ], [JM] and [BR] would reveal the Appellant had also been charged with other offences.  After the trial judge’s ruling, and in line with counsel’s guidance, the Appellant instructed that there should be no cross-examination that might reveal to the jury that allegations had been made by [SJ].  The Appellant understood the defence case would thus be devoid of the suggestion that [SJ], [JM] and [BR] had conspired to make false accusations.”

Did the ruling constitute a wrong decision of a question of law?

23. [23]
    The effect of the ruling was that the appellant was prevented from adducing evidence of his verdicts of acquittal in relation to offences concerning SJ.  The improper rejection of evidence may constitute a wrong decision of a question of law.  As observed by Gibbs, Stephen, Mason, Murphy and Wilson JJ in Simic v The Queen:^[4]

“The test thus stated is less favourable to an appellant than that which is applied in cases where there has been a wrong decision of a question of law – cases that would include those in which there has been a misdirection as to the law or in which evidence has been improperly admitted or rejected.”

24. [24]
    In Baini v The Queen,^[5] Gageler J observed by reference to Mraz v The Queen^[6] that this criterion “has always been understood to have the effect that ‘if there is a wrong decision of any question of law the appellant has the right to have his appeal allowed, unless the case can be brought within the proviso’.”
25. [25]
    In the present case, if the ruling constitutes a wrong decision of a question of law, such an error may prevent the application of the proviso.  This is because the effect of the ruling was that defence counsel was forced to adopt a trial strategy that precluded the development of a legitimate line of questioning, which was premised upon the admission of evidence of the verdicts of acquittal in the first trial.  It is unnecessary to reach a conclusion as to whether the error was one which would prevent the application of the proviso as the Crown has made no submission that, in the event of finding error, this Court should apply the proviso.
26. [26]
    For the following reasons, the ruling constitutes a wrong decision of a question of law.  As a preliminary observation, the learned trial judge’s initial reaction to evidence  being led in cross-examination of the acquittals in relation to a different complainant may be readily understood.  Whether evidence of an acquittal is admissible will depend on its relevance.  As is evident from the analysis of the authorities below, questions of relevance and the admissibility of evidence of an acquittal requires a detailed consideration of the facts and circumstances of the particular case.  Here, the evidence of the acquittals in relation to the complaints of SJ arose in the course of cross-examination without any notice and in the absence of any previous discussion with the trial judge.  As a matter of practice, this is undesirable.  Not only does the admissibility of such evidence require detailed consideration of its relevance, if the evidence is made admissible, it may also require specific directions from the trial judge.
27. [27]
    The relevant decisions of the High Court in R v Storey^[7] and Washer v Western Australia^[8] were considered by this Court in R v GJL.^[9]  McMurdo JA analysed these decisions as follows:

3. “[131]
   In R v Storey, the respondents were tried for rape, having been acquitted at an earlier trial of forcibly abducting the complainant with intent that she be carnally known. Their defence to the charge of rape was consent. The Victorian Court of Criminal Appeal quashed the conviction for rape and ordered a new trial on the ground that the Crown was seeking, in effect, to establish that the accused were guilty of the crime of which they had previously been acquitted. By a majority of four to three, the appeal was dismissed. As was observed in the later case of Washer v Western Australia, the headnote to the report of the case fairly summarises the consensus as being that evidence tending to show an accused was guilty of an offence of which he has been acquitted may be admitted if it is otherwise relevant and if the jury can be and is directed not to interpret it in such a way as to deny the acquittal.

3. [132]
   In his judgment in Storey, Barwick CJ said:

‘The correct principle relevant to the admissibility in a subsequent trial of evidence given in an earlier trial which has resulted in an acquittal is, in my opinion, no more than this: that a verdict of acquittal shall not be challenged in a subsequent trial: the accused in the hearing of a subsequent charge must be given the full benefit of his acquittal on the earlier occasion. Evidence which was admissible to establish the earlier offence is, in my opinion, not inadmissible merely because it was tendered in the earlier proceedings: but it may not be used for the purpose of challenging, or diminishing the benefit to the accused of, the acquittal. …

…

[T]he citizen must not be twice put in jeopardy, that is to say, … must not be placed at the risk of being thought guilty of an offence of which he has been acquitted, or of in any sense being treated as guilty.’

3. [133]
   In his judgment in Storey, Gibbs J said:

‘From this survey of the authorities it will have been seen that there is a well-established principle that a verdict of acquittal once given is binding and that the Crown cannot in subsequent proceedings seek to show that the accused was guilty of an offence of which he has previously been acquitted. … Since the Crown cannot challenge an acquittal, and the accused is to be taken as entirely innocent of the offence of which he was previously acquitted, it must follow that evidence will be inadmissible if its only relevance is to show that the accused was guilty of an offence of which he has been acquitted. … Where such evidence is admitted it will sometimes be necessary to warn the jury that the accused having been acquitted in the previous proceedings is to be taken as entirely innocent of the offence with which he was then charged.’

…

3. [136]
   In Washer v Western Australia, the appellant had been tried and acquitted on a charge that, between April 2000 and March 2001, he conspired with two men to sell or supply methylamphetamine. He was subsequently tried and convicted of conspiring with two other persons to possess methylamphetamine with an intent to sell or supply it. The period of the second alleged conspiracy was between 18 May 2000 and 2 June 2000 (thereby, within the period of the previous charge). At his second trial, the prosecution led evidence that had been led at the previous trial. The prosecution relied upon that evidence from the previous trial to prove that the appellant was, at the relevant time, a dealer in drugs. The evidence also went to disprove a suggestion that in recorded telephone conversations, the appellant had been talking about things other than methylamphetamine. The evidence of some of the recorded conversations went beyond mere propensity evidence. The appellant sought to adduce evidence of his acquittal at that trial. The evidence was not admitted. The High Court held, by a majority, that evidence of his acquittal in the earlier trial was not admissible in the later trial.

3. [137]
   Gleeson CJ, Heydon and Crennan JJ there said:

‘In whatever way the problem arises, and whether it takes the form of a question of admissibility of evidence, preclusion of proceedings, or the exercise of a discretion to stay proceedings, the underlying legal principles relating to double jeopardy require, in their application, an accurate identification of the effect of the earlier acquittal and its relationship to the later charge. Where the issue arises as one of the admissibility of evidence, then relevance is likely to be the focus of argument. Relevance will be decided in the light of the legal principles applicable to the prosecution and defence of the charge against the accused, as related to the facts and circumstances of the particular case. If, in this case, the appellant had a legal right, by reason of his acquittal, to be given the benefit of an assumption relevant to the assessment of the other evidence in the case, then evidence of the acquittal would be relevant. If the fact of the acquittal had some logical connection with the assessment of the probabilities concerning some fact or facts in issue, the evidence would be relevant. In either case, however, a decision about relevance requires consideration of the effect of the acquittal. Accepting that the appellant was entitled to “the full benefit of the acquittal” the question is what that “full benefit” entailed.’

3. [138]
   As to “the effect of the earlier acquittal”, their Honours said:

‘It was neither explicit nor implicit in the acquittal at the earlier trial that the appellant was not a drug dealer. For the purposes of the law, the acquittal established that the appellant was not a party to a conspiracy with [the alleged co-conspirators in that case] to supply drugs to others; nothing more, and nothing less.’”

28. [28]
    From an analysis of the same decisions, Morrison JA in R v GJL identified as one of the relevant principles that an accused must not be placed at the risk of being thought guilty of an offence of which they have been acquitted, or in any sense being treated as guilty.^[10]
29. [29]
    In Storey, Barwick CJ and Gibbs J, together with Murphy J, were in dissent as to the result.  The plurality of Stephen, Mason, Jacobs and Aickin JJ held that while the evidence tending to show that the accused were guilty of an offence of which they had been acquitted was properly admitted, it had not been made clear to the jury that the previous acquittal could not be challenged and that the evidence must not be taken as proving guilt of the previous charge.  Jacobs J considered that the evidence was wrongfully admitted.
30. [30]
    Mason J observed:

“The summing up by the trial judge was deficient in that, although his Honour instructed the jury that ‘… you are relieved of the task of considering whether the accused were, or were not guilty of forcible abduction, and you will confine your deliberations to the various counts of rape’, he did not give sufficient emphasis to the fact that the jury were bound to accept the verdict of acquittal of the charges of forcible abduction as the only possible view of the evidence relating to those charges; it was not open to them to accept a view of the facts inconsistent with that acquittal or to use such a view for any purpose.  In my opinion, the trial miscarried by reason of the trial judge’s omission to give the jury a correct direction on the effect of the acquittal and the use to which the prosecutrix’s testimony as to events at the railway station would be put.”

31. [31]
    Both Storey and Washer concerned cases in which the Crown sought to adduce evidence tending to show that the relevant defendants were guilty of an offence of which they had been acquitted.  This is to be contrasted with the present case where the defence sought to adduce evidence of the verdicts of acquittal for the purpose of advancing a case theory that either or both JM and SJ were aware of, or had been party to, the attempted blackmail of the appellant by BR.  This was in circumstances where SJ and JM attended the police together on 19 October 2020 to make the complaints about the appellant.
32. [32]
    This distinction is relied on by the Crown to support a submission that the appellant’s reliance on Storey and Washer is “misplaced”.^[11]  The Crown submits:

“Properly understood the authorities direct focus on the impermissible use, by the prosecution, of previous evidence, subject to an acquittal, in advancing a subsequent case.  The principle to be derived is not that an accused person is to be afforded a benefit for the acquittal, but that they should not be denied the full benefit.  The principle therefore is to be understood not in the positive, as advanced here, but in the negative.  Understood in this way the limitations of the authorities is clear and must be understood to be that a verdict of acquittal cannot be challenged, not that it must be disclosed to support an accused.”^[12]

33. [33]
    In support of this submission, the Crown refers to the following observation of McMurdo JA in R v GJL:^[13]

“The expressions of the principle by the High Court in the cases I have discussed are consistent in describing the context in which the principle will operate. It can be seen from these authorities that the relevant principle can be conveniently referred to, but not sufficiently defined, by saying that an acquittal is incontrovertible. That incontrovertibility is the effect in law of an acquittal, when put against evidence and argument presented by the prosecution in a subsequent proceeding. That contextual aspect reflects the nature of the principle as one of the underlying legal principles relating to double jeopardy.”

34. [34]
    While it may be accepted that the above passage correctly identifies that the relevant principles discussed in Storey and Washer generally arise in the context of the underlying legal principles relating to double jeopardy, McMurdo JA’s observations should not be understood as limiting the application of the relevant principles to the present case.  As Gleeson CJ, Heydon and Crennan JJ observed in Washer:

“Relevance will be decided in the light of the legal principles applicable to the prosecution and the defence of the charge against the accused, as related to the facts and circumstances of the particular case.  If, in this case, the appellant had a legal right, by reason of his acquittal, to be given the benefit of an assumption relevant to the assessment of the other evidence in the case, then evidence of the acquittal would be relevant.”^[14]

35. [35]
    Aickin J (with whom Stephen J agreed) in Storey implicitly recognised that evidence, requiring a direction as to the effect of an acquittal, may be led by the defence as well as the Crown.  Aickin J acknowledged the apparent artificiality of a direction to the jury that the prior acquittal cannot be challenged in circumstances where the acquittal was invoked by the defence.  His Honour however, concluded that the need for such a direction persisted:^[15]

“I cannot avoid feeling that some degree of artificiality is involved in this approach in the present case, because the transcript of the evidence given at the trial shows that the defence relied substantially upon the nature of the evidence given by the prosecutrix at the previous trial as a basis for suggesting to the jury that all her evidence should be rejected.  It appears to be a reasonable inference that if the prosecution had said nothing about it and not led the evidence at all, it would have been brought out by the defence as a basis of discrediting the prosecutrix.  It remains, however, clear that the direction given to the jury fell short of the requirement that it should be made clear that the accused must be regarded as not guilty of abduction.”

36. [36]
    The appellant relies on the above passage to submit that Aickin J regarded it as uncontroversial that had the Crown declined to do so, the prior acquittal would have been able to be “brought out by the defence as a basis of discrediting the prosecutrix.”^[16]
37. [37]
    The Crown also relies on the decision of the Victorian Court of Appeal in R v PMC.^[17]  In that case, the trial judge did not permit the defence to put to a witness the fact that he had made false allegations against the applicant that resulted in charges being brought against the applicant in circumstances where the applicant was subsequently acquitted at trial of those charges.  The circumstances which gave rise to this issue are outlined in the judgment of Callaway JA as follows:

“The applicant claimed that his brother had incited the complainant to accuse him falsely.  That was denied by both the complainant and the applicant’s brother.  Evidence that the applicant’s brother’s own allegations of sexual molestation had come to trial and that the applicant had been acquitted was not relevant to any fact in issue and did not establish bias on the part of the complainant.  It is said that such evidence should have been received, but it was not admissible.

Complaint is also made that defence counsel was not permitted to ask the applicant’s brother questions about the previous trial as an              attack on his credit.”^[18]

38. [38]
    Callaway JA thought it significant that the applicant’s brother was called solely for the purpose of being cross-examined by defence counsel and his evidence formed no part of the Crown case.  Further, his Honour considered that it was within the discretion of the trial judge to exclude a line of cross-examination, not relevant to a fact in issue or sufficiently relevant for the purpose of proving bias on the part of the complainant, that was calculated to distract the jury from their task.^[19]
39. [39]
    Nettle JA rejected the applicant’s submission that the effect of the judge’s prevention of disclosure of the applicant’s acquittal in the earlier trial was to prevent defence counsel from putting to the complainant that he had made false allegations against the applicant.  Nettle JA considered that defence counsel was free to put that the allegations were false.  The only prohibition was upon using the acquittal as a means of establishing that the allegations made in the earlier trial were false.^[20]  In considering Storey, his Honour accepted that there are circumstances in which an accused would be entitled to rely on the acquittal:

“Storey was concerned with the problem of whether evidence may be admitted in support of a prosecution for an offence notwithstanding that it may tend to show that the accused was guilty of another offence of which he has been acquitted.  The case is authority that evidence of that kind is admissible, provided the jury are adequately directed that the evidence is not to be interpreted as denying the acquittal (and subject to the overriding discretion of the trial judge to exclude the evidence if the risk of prejudice to the accused cannot sufficiently be confined without impairing the utility of the evidence).  The case is also authority that the accused is also entitled to rely on the acquittal in so far as it might be relevant to his defence in the later trial.  But none of that has anything to do with the question of whether an accused may prove an acquittal on another charge in order to discredit a witness who gives evidence against him in the later trial.”^[21]

40. [40]
    Nettle JA, in rejecting the applicant’s submission that it is permissible to use the fact of an earlier acquittal to discredit the testimony of a witness in a subsequent trial, observed:

“That passage cited is surely confined to cases in which evidence given by a witness in an earlier trial for one offence is relevant to facts in issue and a subsequent trial for another offence.  So, for example, if the subject of the earlier trial were a charge of forcible abduction, as it was in that case, and the subsequent trial is for a charge of rape, the accused’s acquittal in the earlier trial might conceivably reflect on so much of the witness’s evidence in the second trial as concerns facts in issue in the earlier trial upon which the witness there gave evidence.  But if the subject of the earlier trial were unrelated to the subject of the second, as it was in this case, the accused’s acquittal at the first trial would be irrelevant to the second.”^[22]

His Honour’s reference to the “passage cited” is to the judgment of Mason J in Storey.^[23]

41. [41]
    These observations of Nettle JA do not support the Crown’s submission that the principles stated in Storey and Washer are limited to cases involving the impermissible use by the Crown of previous evidence subject to an acquittal in advancing a subsequent case.^[24]  To the contrary, the observations of Nettle JA support the proposition that the relevance of the fact of the acquittal must be assessed in the context of the facts and circumstances of the particular case.
42. [42]
    JM, SJ and BR were witnesses in both the first trial and the third trial.  The effect of his Honour’s ruling was that if defence counsel cross-examined these three witnesses as to their knowledge and involvement in the attempted blackmail of the appellant prior to JM and SJ making any complaint to police, there was an inevitability that the jury would learn that the appellant had also been charged with offences in relation to SJ, but would not know he had been acquitted of those charges.  In the result, SJ was not cross-examined at all by defence counsel in the third trial.  This was in circumstances where, in the first trial, she had acknowledged that BR had sent threatening messages to the appellant.  As the trial judge’s ruling proscribed any reference to the verdicts of acquittal in the first trial, the defence case was conducted in a manner which ensured the jury remained unaware that the appellant had previously been accused of other sexual offending.  According to the appellant, this had the consequence that the jury could not be made aware that:

3. “a.
   [SJ] had accompanied [JM] to a police station, where both made allegations of sexual offending by the [a]ppellant;

3. b.
   immediately prior to attending on police, [SJ] and [JM] had discussed the detail of their respective allegations;

…

3. d.
   at the time of their ‘joint’ attendance on police to make their complaints, the appellant was the target of threats of blackmail about the very allegations for which he was standing trial.”^[25]

43. [43]
    The appellant submits, and it may be accepted, that this had the practical effect that he was unable to press an argument that SJ, JM and BR had engaged in a conspiracy to pursue false accusations against him.^[26]
44. [44]
    An important aspect of the evidence led by the Crown at trial were two pretext telephone calls on 9 and 10 November 2020 between JM and the appellant.  These recordings were played to the jury.  The Crown prosecutor in her address to the jury and by reference to the first pretext call submitted that the “defendant’s silence is deafening”.^[27]  The calls were also referred to by the trial judge in the summing up in the following terms:

“It seems to be accepted by both sides that on the Friday before [JM] first went to the police, [BR] sent messages to the defendant, raising – at least in some terms – the allegations now made by [JM], and seemingly demanding some sort of payment or other compensation in order to keep them quiet.  So it is in this context, it seems, that some weeks later, in early November, the conversations occurred between [JM] and the defendant.

It is entirely a matter for you – as I have said – to listen and decide what you hear on the recordings, but you might think that the following emerges – among other things – but these are some matters which I will mention to you.  In the first conversation after [JM] first raises the allegations of the touching and exposing of himself by the defendant, there is – what you might think – is a fairly long pause – perhaps around seven seconds – before the defendant responds by saying, ‘Can we talk about it in person?’  You might think as well, that in the course of the two conversations, there is no clear denial of the allegations that are put to him by [JM]”.^[28]

45. [45]
    It may be accepted, as submitted by the appellant, that the extortion attempt including SJ’s and JM’s knowledge of it would have given context to the pretext telephone conversations between the appellant and JM.  Had the defence been permitted to lead evidence of the verdicts of acquittal in the first trial, the credibility and reliability of SJ could have been tested through cross-examination as to her knowledge and involvement in the attempted blackmail.  This was in circumstances where SJ and JM had made allegations to police at the same time, immediately following “reciprocal” preliminary complaints.  The allegations of both SJ and JM were central to the attempted blackmail by BR.  These matters would have been relevant to the jury’s assessment of the meaning of and motives for the appellant’s responses in the pretext telephone conversations.
46. [46]
    It may also be accepted, as submitted by the appellant, that there was a legitimate basis on the evidence to explore JM’s awareness of the extortion attempt by BR in relation to both her own and SJ’s allegations made to police at the same time.^[29]
47. [47]
    It follows that the evidence of the verdicts of acquittal at the first trial were, in the particular circumstances of the present case, relevant to the above identified issues.  These issues could only be properly explored at trial by revealing to the jury that SJ had also made sexual allegations against the appellant.  In the absence of evidence of the verdicts of acquittal in the first trial (accompanied by appropriate directions as to the effect of these acquittals) the appellant was prejudiced in the conduct of his defence.  Had the evidence of the verdicts of acquittal been admitted, an appropriate direction, as submitted by the appellant, would have been to the following effect:

“Members of the jury, you’ve heard the allegation that SJ made a complaint of a sexual nature.  [The appellant] stood trial for that, and he was found not guilty.  You can’t speculate as to the reasons why [the tribunal of fact] returned a verdict of not guilty, but you would act on that basis.”^[30]

A direction to this effect would have addressed any prejudice to the appellant arising from the jury being made aware of SJ’s complaint and, in turn, limited any impermissible use by the jury of the fact of the acquittals in relation to a different complainant.

Disposition

48. [48]
    The following orders should be made:

1. The appeal is allowed.
2. The convictions are set aside.
3. A new trial is ordered.