THE KING v BORRETT (A PSEUDONYM) [2026] SASCA 37

On Appeal from DISTRICT COURT OF SOUTH AUSTRALIA (HER HONOUR JUDGE BARNETT) DCCRM-23-039201 Appellant / Respondent: BORRETT (A PSEUDONYM) Counsel: MR W MICKAN - Solicitor: GIBSON & ASSOCIATES FAMILY LAWYERS Respondent / Appellant: THE KING Counsel: MR P TATE WITH MS L BROWN - Solicitor: DIRECTOR OF PUBLIC PROSECUTIONS (SA) Hearing Date/s: 20/11/2025 File No/s: SCCRM-25-008667, SCCRM-25-033889 B SUPREME COURT OF SOUTH AUSTRALIA (Court of Appeal: Criminal) DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment. The onus remains on any person using material in the judgment to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court in which it was generated. BORRETT (A PSEUDONYM) v THE KING; R v BORRETT (A PSEUDONYM) [2026] SASCA 37 Judgment of the Court of Appeal (The Honourable Justice Bleby and the Honourable Justice Stanley) 16 April 2026 CRIMINAL LAW - APPEAL AND NEW TRIAL - MISCARRIAGE OF JUSTICE - PARTICULAR CIRCUMSTANCES AMOUNTING TO MISCARRIAGE - MISDIRECTION OR NON-DIRECTION - MISDIRECTION CRIMINAL LAW - EVIDENCE - MATTERS RELATING TO PROOF - STANDARD OF PROOF - DIRECTIONS TO JURY - REASONABLE DOUBT APPEAL AND NEW TRIAL - NEW TRIAL - IN GENERAL AND PARTICULAR GROUNDS - PARTICULAR GROUNDS - MISDIRECTION OR NON- DIRECTION - JUDGE'S SUMMING UP - CONSIDERATION OF SUMMING UP AS A WHOLE This is an application for permission to appeal against conviction. Following a trial by jury, the appellant was convicted of the offence of sexual abuse of a child contrary to s 50(1) of the Criminal Law Consolidation Act 1935 (SA). The complainant gave evidence of a series of indecent assaults in the period from 2015 to 2017. During that period, the complainant, the complainant’s mother and the complainant’s brother resided in the same houses as the appellant. At trial, the central issue involved a contest between the evidence of the complainant and that of the appellant. The prosecution case was wholly dependent on the complainant’s evidence. The appellant did not give evidence at trial, but had participated in a record of interview, tendered at trial in the prosecution case, in which he denied wrongdoing and provided an alternative account. In those circumstances, it was necessary for the prosecution to exclude the appellant’s account as being -- 1 of 17 -- reasonably possibly true. The defence case was that the complainant was not a credible or reliable witness. The appellant sought leave to appeal on a single ground concerning a direction given by the trial judge on the onus of proof. The impugned direction was: “You must bear in mind what [the appellant] said to police when considering whether the prosecution has or has not proven its case beyond reasonable doubt and, of course, as part of that, whether [the appellant] has satisfied you that he did not engage in the conduct alleged by [the complainant].” The appellant contended that the impugned direction invited the jury to assess the record of interview on the basis that the appellant bore an obligation to satisfy them that he did not engage in the alleged conduct; undermining the presumption of innocence and incorrectly directing on the burden of proof. The Director submitted that the direction was taken out of context and that, when read as a whole, the summing up contained repeated correct directions as to the burden and standard of proof, including Liberato directions. Held, per the Court, granting permission to appeal, and allowing the appeal against conviction: 1. In circumstances where the impugned direction: a. linked a misapplication of the burden of proof to the jury’s evaluation of the appellant’s answers in the record of interview, including his denials; b. permitted the jury to reason impermissibly in relation to a matter critical to the defence case; c. invited the jury to reason that the appellant bore an obligation to convince the jury that he did not engage in the alleged conduct, which is fundamentally inconsistent with the burden of proof; and d. had the capacity to affect the jury’s assessment of the credibility and reliability of the appellant’s record of interview. 2. The impugned direction both affected the critical fact finding that the jury had to undertake and had the capacity to prevent the jury from properly discharging its function. An error of this kind is fundamental. 3. The otherwise correct directions as to the burden and standard of proof, including the Liberato directions, did not obviate the risk created by the impugned direction. Contradictory directions on a fundamental matter are apt to confuse the jury. 4. The irregularity, having the realistic capacity to impermissibly affect the reasoning of the jury to a verdict of guilty, amounted to a miscarriage of justice; such that there is no occasion to apply the proviso. 5. The conviction is set aside and the matter remitted to the District Court for retrial. Held, per the Court, granting permission to appeal, but dismissing the Crown appeal against sentence: 1. In circumstances where the conviction has been quashed and a retrial ordered; there is no utility in the appeal against sentence. Criminal Law Consolidation Act 1935 (SA) s 50(1); Evidence Act 1929 (SA), referred to. Bell v The King [2025] SASCA 97; Brawn v The King (2025) HCA 20; Lane v The Queen (2018) 265 CLR 196; Mead (A pseudonym) v The King; R v Mead (A pseudonym) [2025] SASCA 3; McKell v The Queen (2019) 264 CLR 307; Rezaei v The King [2024] SASCA 150, applied. Azzopardi v The Queen (2001) 205 CLR 50; De Silva v The Queen (2019) 268 CLR 57; GBF v The Queen (2020) 271 CLR 537; Gray v The Queen [2020] SASCFC 46; Liberato v The Queen (1985) 159 CLR 507; Murray v The Queen (2002) 211 CLR 193; Perara-Cathcart v The Queen (2017) 260 CLR 595; Robinson v The Queen (1991) 180 CLR 531; Rollond v The Queen (2020) 137 SASR 519; -- 2 of 17 -- R v Markuleski (2001) 52 NSWLR 82; R v Schulz (2016) 126 SASR 476; The Queen v Dookheea (2017) 262 CLR 402, discussed. Douglass v The Queen (2012) 290 ALR 699; R v Aziz [1982] 2 NSWLR 322; R v B & D (1993) 66 A Crim R 192; R v Woods (2008) 102 SASR 422; Warren v The King [2025] SASCA 65, considered. -- 3 of 17 -- -- 4 of 17 -- BORRETT (A PSEUDONYM) v THE KING; R v BORRETT (A PSEUDONYM) [2026] SASCA 37 Court of Appeal – Criminal: Bleby JA and Stanley JA THE COURT: Introduction 1 This is an application for permission to appeal against conviction. After a trial by jury the appellant was found guilty of the offence of sexual abuse of a child contrary to s 50(1) of the Criminal Law Consolidation Act 1935 (SA) (CLCA). The appellant appeals his conviction on the ground that the trial judge erred in a direction her Honour gave on the onus of proof. The impugned direction was: You must bear in mind what [the appellant] said to police when considering whether the prosecution has or has not proven its case beyond reasonable doubt and, of course, as part of that, whether [the appellant] has satisfied you that he did not engage in the conduct alleged by [the complainant]. 2 The appellant contends that the impugned direction occasioned a miscarriage of justice on the basis it invited the jury to assess the appellant’s record of interview from the premise that the appellant bore an obligation to satisfy the jury of the credibility and reliability of his account. 3 The Director of Public Prosecutions (the Director) submits that the ground of appeal takes one sentence of the summing up out of context and complains of an error. 4 At trial the prosecution case was wholly dependent on the complainant’s evidence. The appellant did not give or call evidence at his trial. He participated in a record of interview which was tendered at trial in the prosecution case. 5 The Director also brought a Crown appeal against the sentence imposed for this offending. Circumstances of the offence 6 The prosecution case at trial was that the appellant engaged in unlawful sexual acts against the complainant on a regular basis over the course of three years when the complainant was aged between 12 and 15 years and the appellant was aged between 37 and 40 years. Both the appellant and the complainant were residing in the same houses1 with the complainant’s mother and brother during that time. The complainant’s mother was in a relationship with the appellant. The offending commenced when they were living at Mawson Lakes in 2015, and later 1 Albeit, at an address in Mawson Lakes in 2015, an address in Andrews Farm in 2016 and an address in Davoren Park in 2017. -- 5 of 17 -- [2026] SASCA 37 The Court 2 recommenced in 2017 when they moved to Davoren Park. Over that time the appellant assumed the role of a father figure in the complainant’s life. 7 The complainant gave evidence of a series of indecent assaults in the period from 2015 to 2017. The offending consisted of the appellant laying with the complainant on her bed and touching her bottom, breasts and genital region. This touching occurred frequently at both the Mawson Lakes address and the Davoren Park address. Touching of the bottom and breasts would occur both under and over clothing. On one occasion, the appellant touched the complainant’s clitoris with two fingers. The complainant’s evidence was that the appellant would also touch the complainant’s bottom and breasts over her clothing while lying on a couch. The touching would occur frequently, between once a week to once a month. The exception to this pattern was during the period they resided at the Andrews Farm address. It was not alleged that any of the indecent conduct occurred at that address. 8 The prosecution adduced evidence of uncharged conduct comprised of the appellant slapping or squeezing the complainant’s bottom at other locations at the Mawson Lakes and Davoren Park addresses and making lewd remarks about her bottom. 9 In addition, the prosecution adduced evidence of initial complaint pursuant to s 34M of the Evidence Act 1929 (SA) (Evidence Act). In January 2020 when the complainant was 16, she told her then boyfriend that the appellant touched her when she was younger. She told him that the appellant would enter her room when she was lying down and lie down behind her. She also told him that the appellant would put his hand under her shirt and grab her breasts, and put his hand in her pants and touch her bottom and genital region. 10 The complainant’s evidence was given at a pre-trial special hearing, conducted in accordance with s 12AB of the Evidence Act. The video recording of the complainant’s evidence was adduced at trial as part of the prosecution case. The prosecution case at trial 11 The trial was fought solely on the question of whether the sexual acts occurred at all. The prosecution case rested on the capacity of the jury to accept the complainant’s evidence beyond reasonable doubt. In circumstances where the appellant provided a record of interview in which he denied wrongdoing, and provided an alternative account, it was necessary for the prosecution to exclude the appellant’s conduct as being reasonably possibly true in that the appellant was entitled to an acquittal if his evidence could not be excluded as a reasonable possibility. Accordingly, the direction the trial judge gave to the jury about the assessment of the appellant’s record of interview was critical. -- 6 of 17 -- [2026] SASCA 37 The Court 3 The defence case at trial 12 The appellant did not give evidence at trial. The defence case was that the complainant could not be accepted as a credible or reliable witness. There was an emphasis on inconsistencies in her evidence, particularly in relation to her forgetting about the offending, when the offending occurred, and whether the appellant touched her under her underwear. The trial judge’s direction 13 The trial judge directed the jury at the outset in orthodox terms with respect to the presumption of innocence and the burden and standard of proof.2 Her Honour reminded the jury that it was incumbent upon the prosecution to prove beyond reasonable doubt that the acts the subject of the charge occurred when identifying the “real issue” at trial,3 and when dealing with the elements of the first count charged on Information, namely, one count of sexual abuse of a child.4 The trial judge also referred to the burden of proof when directing the jury in conformity with s 34R of the Evidence Act, and referred to the concept of entertaining a reasonable doubt when providing the jury with a Markuleski direction.5 14 The trial judge, in dealing with the appellant’s record of interview, and after summarising the defence case in relation to the record of interview,6 provided the impugned direction, which should be set out in its context:7 All of the comments made by [the appellant] in his interview are evidence in this case. The prosecution rely on some parts of the interview and the defence rely on other parts. You must bear in mind what [the appellant] said to the police when considering whether the prosecution has or has not proved its case beyond reasonable doubt and, of course, as part of that, whether [the appellant] has satisfied you that he did not engage in the conduct alleged by [the complainant]. 15 After summarising the content of the record of interview, the trial judge reminded the jury that the prosecution case was that the complainant was credible and reliable, and again referred to the standard of proof.8 Her Honour next provided a brief synopsis of the defence case, which again included the appellant’s denial in his record of interview.9 Her Honour next directed the jury in language drawn from the formulation of the Liberato direction,10 in De Silva v The Queen 2 Summing up 1-3, 5. 3 Summing up 5. 4 Summing up 6. 5 R v Markuleski (2001) 52 NSWLR 82. 6 Summing up 21. 7 Summing up 21. 8 Summing up 23. 9 Summing up 23. 10 Liberato v The Queen (1985) 159 CLR 507. -- 7 of 17 -- [2026] SASCA 37 The Court 4 (De Silva).11 In the course of her summing up, Her Honour gave two Liberato directions to the jury. In the first of those directions, her Honour said:12 So if you believe [the appellant’s] evidence and what he said in his record of interview, then you must acquit. Even if you do not accept that evidence but you consider there is a reasonable possibility it is true, then you must acquit. On the other hand, if you reject [the appellant’s] evidence, you should put the evidence to one side. However, the question will still remain: has the prosecution, on the basis of the evidence that you do accept, proved the guilt of [the appellant] beyond reasonable doubt? That is in relation to the evidence of [the complainant]. Do you accept her evidence beyond reasonable doubt? 16 Continuing sequentially in the trial judge’s charge, her Honour next addressed motive to lie in unexceptional terms. This included directing the jury that “it is not for [the appellant] to show that [the complainant] is lying. It is for the prosecution to satisfy you beyond reasonable doubt that [the complainant] is telling you the truth.”13 17 The trial judge closed her charge to the jury by repeating the orthodox directions given earlier concerning the burden and standard of proof.14 Her Honour also reiterated the Liberato direction at the close of her charge.15 18 It is relevant that the provision of the Liberato direction occurred against a background of an application for a mistrial by the appellant’s counsel at trial following submissions made by the prosecutor in closing.16 We will come back to this. Consideration 19 The contention that the impugned direction occasioned a miscarriage of justice requires consideration of two matters. The first is the nature of the error and the risk of it affecting the jury’s reasoning process. The second is the realistic possibility that the risk materialised. The second proposition involves considering whether the trial judge’s other correct directions concerning the burden of proof are such that the impugned direction would not have made a difference. 20 The Director submits that it is important when assessing the appellant’s argument that the entirety of the impugned direction ought to be considered, as well as the summing up as a whole. The Director submits the impugned direction has to be read in the context of the direction which immediately followed, 11 (2019) 268 CLR 57 at [12]. 12 Summing up 24. 13 Summing up 25. 14 Summing up 29. 15 Summing up 29. 16 T 151-153. -- 8 of 17 -- [2026] SASCA 37 The Court 5 including, the trial judge’s direction that the jury could accept some aspects of the witness’ evidence and reject others.17 21 The Director further submits that the trial judge gave numerous and frequent directions about the presumption of innocence and the burden and standard of proof.18 A number of these occur prior to the impugned direction and others occur after the direction. The trial judge also gave a direction in orthodox terms about the appellant having spoken to police, and the jury was invited to give him credit for taking that course.19 That direction included telling the jury that the appellant was not obliged to speak to police. 22 The trial judge directed the jury as to their acceptance or rejection of the appellant’s evidence in his record of interview.20 In giving a Liberato direction, the trial judge specifically directed the jury that if they believed the appellant’s evidence and what he said in his record of interview, or if there was a reasonable possibility it was true, then they would be obliged to acquit:21 So if you believe [the appellant’s] evidence and what he said in his record of interview, then you must acquit. Even if you do not accept that evidence but you consider there is a reasonable possibility it is true, then you must acquit. On the other hand, if you reject [the appellant’s] evidence, you should put the evidence to one side. However, the question will still remain: has the prosecution, on the basis of the evidence that you do accept, proved the guilt of [the appellant] beyond reasonable doubt? That is in relation to the evidence of [the complainant]. Do you accept her evidence beyond reasonable doubt? It follows that if after full and careful consideration you are unable to decide where the truth lies, or who is telling the truth, the prosecution will have fallen short of proving its case beyond reasonable doubt and your verdict would be one of not guilty. 23 The Director submits that this direction made it clear that a lack of acceptance of the appellant’s evidence was not the end of the matter, but that the jury still had to consider the evidence on the prosecution case and determine whether that evidence proved the appellant’s guilt beyond reasonable doubt. As we have said, the trial judge’s direction specifically directed the jury that the appellant is entitled to an acquittal if his evidence could not be excluded as a reasonable possibility. 24 We note there are two occasions in the trial judge’s summing up where a Liberato direction was given.22 We have referred to the application by the appellant for a mistrial in the prosecution’s closing address. The prosecutor submitted that the jury was confronted with “two very different accounts about the touching that occurred” and that “[t]hey cannot both be true”.23 The trial judge 17 Summing up 21-22. 18 Summing up 1, 3, 5, 6, 8, 9, 13, 14, 19, 23, 24, 25, 29 and 30. 19 Summing up 21. 20 Summing up 22. 21 Summing up 24. 22 Summing up 24 and 29. 23 T 149.25-28. -- 9 of 17 -- [2026] SASCA 37 The Court 6 accepted that the submission “might, on one view, come close to reversing the onus of proof”.24 However, her Honour refused the application, reasoning that the impugned submissions were later qualified by the prosecutor and, more importantly, could be addressed by “appropriate and full directions”.25 The trial judge did not link the Liberato directions to the prosecutor’s submissions. 25 The Director submits that the trial judge was correct in refusing the application for a mistrial. The Director submits that the submission made by the prosecutor was immediately followed with:26 But when you consider the interview, it is important to remember that [the appellant] does not have to prove anything. If you don’t believe what he says in his interview, it doesn’t automatically mean that he’s guilty. It means you put the interview to the side. You return to the prosecution case and then decide whether you’re satisfied beyond reasonable doubt. 26 The Director further submits that as general directions relating to the burden and standard of proof were given at the outset of the summing up,27 the jury were reminded of those matters shortly before they were invited to retire.28 The relevant legal principles and their application to the facts of this case 27 The Director submits that the appellant’s ground of appeal takes one clause of one sentence in the trial judge’s summing up out of context, in circumstances where the impugned direction was prefaced with a reiteration of the principles relevant to the onus and standard of proof. It is trite that a summing up must be considered as a whole.29 The Director submits that it cannot be ignored that the jury were correctly directed at the outset as to who bore the burden and standard of proof.30 Accordingly, the Director submits that the impugned direction did not misapply the burden of proof, rather it is untenable that the sentence somehow conveyed the impression that the appellant bore the onus. The Director sought to distinguish this case from other cases where the trial judge misdirected the jury as to the onus of proof. The Director submits the impugned direction did not refer to the jury “accepting” the appellant’s version in his record of interview,31 or the appellant’s interest in the outcome.32 28 The Director submits that it is relevant to note that no complaint was made about the direction at the conclusion of the summing up, in circumstances where there were a number of other requests for clarification on other topics. Counsel for the appellant did not request a further direction or a redirection in terms that would have covered the now asserted defect in the charge to the jury. The Director 24 T 158.32-35. 25 T 158.36-38. 26 T 149.29-35. 27 Summing up 1, 3 and 5. 28 Summing up 29-30. 29 McKell v The Queen (2019) 264 CLR 307 at [39]. 30 Summing up 1, 3, 5. 31 Murray v The Queen (2002) 211 CLR 193 at [23]; Douglass v The Queen (2012) 290 ALR 699 at [13]; R v Woods (2008) 102 SASR 422 at [16]; R v Schulz (2016) 126 SASR 476 at [30], [35]. 32 Robinson v The Queen (1991) 180 CLR 531. -- 10 of 17 -- [2026] SASCA 37 The Court 7 contends this is significant in that it points to the conclusion that there was nothing in the trial to occasion a miscarriage of justice.33 As was observed by the High Court in Perara-Cathcart v The Queen:34 [T]he absence of an application by counsel for the defence for a further direction affords some practical indication that the trial judge, whose task was to direct the jury only as to so much of the law as they needed to know to resolve the real issues in the case, succeeded in that task. 29 The Director submits that the jury were adequately directed. Throughout the entirety of the trial judge’s summing up, the jury were reminded of the correct requirements by way of direction with respect to the onus and standard of proof.35 After the impugned direction, as we have said, the trial judge gave directions on the topic of the appellant’s record of interview36 and on the topic of motive to lie, those directions were in mandatory terms and outlined that at all times, and on all topics, the prosecution had to prove the appellant’s guilt of the charge beyond reasonable doubt. To that extent, the Director submits, it is not reasonably arguable that the impugned direction, in the context of the summing up, when read as a whole, against the background of the lack of objection or request for redirection or further direction, would have deflected the jury from its task of considering whether the appellant’s guilt had been proved beyond reasonable doubt. That submission should not be accepted. Contradictory directions on fundamental matters amount to a miscarriage of justice 30 In Murray v The Queen37 (Murray) the appellant complained that the trial judge framed the issue for determination in terms of whether the jury accepted the version of events of the prosecution or the defence. Importantly, the trial judge in Murray had earlier correctly directed the jury in relation to the burden and standard of proof. Gaudron J held that the earlier directions did not guard against the jury engaging in an erroneous reasoning process:38 Although the trial judge, in the early part of her directions, correctly instructed the jury with respect to the onus of proof, in the passages set out above, her Honour posed the question for the jury’s determination with respect to murder as the question whether it accepted the prosecution’s or the appellant’s version of events. That was the central or critical direction in her Honour’s summing up. And as the issue for the jury was not whether it should accept the appellant’s version but whether the prosecution had negatived it as a reasonable possibility, that direction mis-stated the issue for determination in a way that relieved the prosecution of proving its case beyond reasonable doubt. Accordingly, the appeal should be allowed on that ground. 33 R v B & D (1993) 66 A Crim R 192 at 197; R v Aziz [1982] 2 NSWLR 322 at 331. 34 (2017) 260 CLR 595 at [60]. 35 Summing up 1, 3, 5, 6, 8, 9, 13, 14, 19, 23, 24, 25, 29 and 30. 36 Summing up 22-23. 37 (2002) 211 CLR 193. 38 Murray v The Queen (2002) 211 CLR 193 at [23]. -- 11 of 17 -- [2026] SASCA 37 The Court 8 31 Gummow and Hayne JJ held the same view as they explained:39 Although at the start of her directions about murder her Honour told the jury that it was for the prosecution to prove that the appellant had intended to kill or do grievous bodily harm, the references she made, particularly in the passage of the directions set out earlier, to the jury accepting the accused’s evidence or version of events were apt to mislead the jury about the decision they had to make. The choice for the jury was not to prefer one version of events over another. The question was whether the prosecution had proved the relevant elements of the offence beyond reasonable doubt. This required no comparison between alternatives other than being persuaded and not being persuaded beyond reasonable doubt of the guilt of the appellant. 32 Callinan J took a similar approach.40 33 This is a case more like Robinson v The Queen (Robinson).41 34 In Robinson42 the High Court quashed a conviction for rape in circumstances where the jury was directed that in assessing the credibility of witnesses they should take into account the interest a witness might have in the outcome of the case. The judge said that the witness with the greatest interest would be the accused so his evidence should be scrutinised closely. The judge, at the request of defence counsel, gave a further direction that the complainant also had an interest in the outcome. The High Court held that notwithstanding the correctness of other directions the trial judge gave concerning the onus and standard of proof, it was impossible to escape the conclusion that the fairness of the trial was seriously impaired by the effect of the judge’s directions concerning the interest of a witness in the outcome of the case. The High Court held the jury could hardly escape the conclusion that the accused had the greatest interest of all the witnesses in the outcome of the case. Such a direction inevitably disadvantaged the evidence of the accused when it conflicted with the evidence for the prosecution. The High Court held the jury would have understood the judge’s directions as meaning that the evidence of the accused had to be scrutinised more carefully than that of any other witness. This was a serious misdirection which went to the fairness of the trial and undermined the presumption of innocence. Contrary to the submission of the Director, the misdirection in Robinson is comparable with the misdirection in this case. 35 In GBF v The Queen43 (GBF) the trial judge correctly directed the jury with respect to the presumption of innocence, the onus and standard of proof, as well as the appellant’s right to silence. The latter direction used language drawn from Azzopardi v The Queen (Azzopardi).44 However, the trial judge subsequently observed that there was no sworn evidence by the appellant to the contrary of the complainant’s account, and “[t]hat may make it easier”. The appellant appealed 39 Murray v The Queen (2002) 211 CLR 193 at [57]. 40 Murray v The Queen (2002) 211 CLR 193 at [132]. 41 (1991) 180 CLR 531. 42 Robinson v The Queen (1991) 180 CLR 531 at [6]-[8]. 43 (2020) 271 CLR 537. 44 (2001) 205 CLR 50. -- 12 of 17 -- [2026] SASCA 37 The Court 9 to the High Court, contending that the Queensland Court of Appeal was wrong to find that the impugned statement, which was accepted by the Court of Appeal to be wrong, did not occasion a miscarriage of justice. Central to the Court of Appeal’s reasoning, which was endorsed by the respondent in its submissions in the High Court, was the fact that the trial judge had earlier correctly directed the jury, and as a result there was no risk that the jury would reason impermissibly.45 This conclusion was rejected by the High Court. Kiefel CJ, Bell, Keane, Gordon and Edelman JJ concluded:46 Here, the impugned statement contradicted the directions given earlier on the onus of proof and the exercise of the right to silence. Its effect was to invite the jury to engage in the same false process of reasoning as the impugned passage did in Azzopardi. The Court of Appeal was wrong to hold that this was not an irregularity amounting to a miscarriage of justice. 36 Azzopardi further illustrates that contradictory directions are apt to confuse the jury and, where the directions concern a matter as important as the right to silence, this constitutes a miscarriage of justice. By parity of reasoning, the appellant submits that this conclusion would apply with equal force where the directions concern the burden of proof. In Azzopardi, the trial judge instructed the jury in terms which invited them to use the appellant’s exercise of the right to silence in a way adverse to him. The jury had earlier been instructed, correctly, that the accused bore no burden or onus. The joint reasons explained that the impugned direction was “at best, confusing and contradictory of the earlier directions”,47 and invited the jury to engage in an impermissible process of reasoning that was at odds with the earlier direction, which amounted to a misdirection.48 Gaudron, Gummow, Kirby and Hayne JJ concluded that the jury may have been affected in their assessment of the case against the appellant, and as such, the appeal could not be dismissed under the proviso.49 37 Murray was considered by Vanstone J in R v Schulz50 and Peek J in Rollond v The Queen.51 In each case, the Full Court and the Court of Criminal Appeal concluded that each trial judge erred in his directions to the jury going to the burden and standard of proof, and in particular, the approach to the assessment and use of each appellant’s evidence. The vice in the directions in each case was that there was a substantial risk that the jury reasoned that they could not make use of each appellant’s evidence unless they accepted it.52 38 In Gray v The Queen53 (Gray) the trial judge erroneously directed the jury that they could use evidence of discreditable conduct when assessing the 45 GBF v The Queen (2020) 271 CLR 537 at [13]-[14] and [17]-[20]. 46 GBF v The Queen (2020) 271 CLR 537 at [26]. 47 Azzopardi v The Queen (2001) 205 CLR 50 at [75]. 48 Azzopardi v The Queen (2001) 205 CLR 50 at [73]. 49 Azzopardi v The Queen (2001) 205 CLR 50 at [76]. 50 (2016) 126 SASR 476. 51 (2020) 137 SASR 519. See also Mead (A pseudonym) v The King; R v Mead (A pseudonym) [2025] SASCA 3; Warren v The King [2025] SASCA 65. 52 R v Schulz (2016) 126 SASR 476 at [35]-[36]; Rollond v The Queen (2020) 137 SASR 519 at [107]. 53 [2020] SASCFC 46. -- 13 of 17 -- [2026] SASCA 37 The Court 10 appellant’s evidence. The Court concluded that the trial judge’s subsequent redirection failed to remove the risk of a miscarriage of justice. Central to this conclusion was that the main issue at trial was the contest between the evidence of the complainant and that of the appellant.54 While the focus of Gray was on the redirection, which was not sought here, the analysis of Lovell J, as he then was, on the necessary components of any redirection going to a matter as fundamental as the assessment of an accused’s evidence, and by extension, a record of interview, is instructive and, for reasons which follow, assists in illustrating why the correct directions given by the trial judge in this case do not countermand the impugned direction:55 There is no one rule that governs the content of a redirection. The starting point of any analysis of a redirection’s content must be to determine the nature of the error and the issue to which it relates. Identification of those matters will determine the error’s significance in the context of the issues at trial and therefore inform what is required by way of redirection. While minor factual errors may be corrected quickly and easily, significant errors of fact or law may require more detailed explanation. I acknowledge that, after the summing up has been completed and counsel are seeking redirection, the temptation is to complete submissions quickly and not keep the jury waiting. However, that temptation should be resisted where significant issues require redirection. … Given the importance of the issue, what was required by way of redirection was a clear instruction that the impugned direction was incorrect and that the jury could not and must not use the evidence in the way the impugned direction suggested. Further the redirection needed to make it clear to the jury that it should not approach the appellant’s evidence with caution. That is, the jury needed to be redirected, as it had been instructed earlier, that it should approach the evidence of the appellant in the same way as every other witness. 39 The impugned direction in this case is wrong. We do not understand the Director to suggest otherwise. The direction that the record of interview was relevant to “whether [the appellant] has satisfied you that he did not engage in the conduct alleged by [the complainant]” can only be interpreted as inviting the jury to reason that the appellant bore an obligation to convince the jury that he did not engage in the alleged conduct. Plainly, this is fundamentally inconsistent with the burden of proof. 40 Significantly, the misapplication of the burden of proof was linked by the impugned direction to the jury’s evaluation of the appellant’s answers in the record of interview. The effect of the direction was to invite the jury to reason that the appellant bore the onus of satisfying the jury as to the credibility and reliability of those answers, including his denials of sexual offending. This is because of the connection between the first clause of the direction, namely, “[y]ou must bear in mind what [the appellant] said to police…”, which necessarily drew attention to the denials, and the later clause: “… whether [the appellant] has satisfied you that he did not engage in the conduct alleged…”. The impugned direction therefore 54 Gray v The Queen [2020] SASCFC 46 at [24]. 55 Gray v The Queen [2020] SASCFC 46 at [23] and [26]. -- 14 of 17 -- [2026] SASCA 37 The Court 11 permitted the jury to reason impermissibly in relation to a matter critical to the defence case, and to proof of the charged conduct beyond reasonable doubt. 41 As was observed in De Silva56 in the joint reasons of Kiefel CJ, Bell, Gageler, as he then was, and Gordon JJ:57 When an accused gives, or calls, evidence there is a natural tendency for the focus to shift from the assessment of the capacity of the prosecution case to establish guilt to an assessment of the perceived strengths or weaknesses of the defence case. 42 While this risk more commonly arises where an accused gives evidence on oath, De Silva itself acknowledges that there will be cases in which the risk arises where an accused participates in a record of interview. In such a case a Liberato direction may be appropriate.58 For these reasons, the impugned direction in this case both affected the critical fact finding that the jury had to undertake and had the capacity to prevent the jury from properly discharging its function. An error of this kind is fundamental.59 43 Where the direction permitted reasoning fundamentally at odds with the burden of proof, and the reasoning was directed to a matter as critical as the appellant’s interview, the logical conclusion is that there has been an irregularity amounting to a miscarriage of justice. It cannot be said with any certainty that the jury did not reason in an impermissible way. As the appellant submits, the impugned direction was part of the first direction given by the trial judge about the record of interview, which itself included a reminder that the record of interview contained a denial of wrongdoing on the part of the appellant, and that the denial formed part of the defence case. The fact that the jury’s first instruction about the use of the record of interview occurred in circumstances where they received an incorrect direction on the burden of proof is relevant to the capacity of the other directions to obviate the risk of a miscarriage of justice. It is plausible that the jury would have seen the impugned direction as an exception to the other directions in the context of the specific task of assessing the appellant’s account in the interview. 44 That risk is not obviated by the correct directions as to the burden of proof at other parts of the summing up. As explained in Murray, GBF and Azzopardi, it is critical that at no time did the trial judge identify that the impugned direction was incorrect and inconsistent with the burden of proof. In those circumstances, to conclude that the jury did not act on the direction, it is necessary to assume that the jury, in effect, identified for itself as an antecedent step in analysing the prosecution case the impugned direction as being incorrect and inconsistent with the burden of proof. It is difficult to have any confidence that the jury did so. Moreover, for the risk to be avoided, the jury would have had to ignore the impugned direction. Again, there can be little confidence that the jury did so, 56 De Silva v The Queen (2019) 268 CLR 57. 57 De Silva v The Queen (2019) 268 CLR 57 at [11]. 58 De Silva v The Queen (2019) 268 CLR 57 at [11]. 59 Lane v The Queen (2018) 265 CLR 196 at [48]. -- 15 of 17 -- [2026] SASCA 37 The Court 12 particularly where the jury received the orthodox direction that they were required to follow the trial judge’s directions on the law.60 Further, the risk cannot be excluded by a comparison with the number of occasions on which the trial judge gave the jury a correct direction as to the burden of proof. That type of reasoning does not properly engage with the nature of the error and its capacity to affect the reasoning of the jury. This is not a case like The Queen v Dookheea (Dookheea).61 In this case the impugned direction was obviously wrong and prima facie permitted reasoning contrary to the fundamental principles of a fair trial according to law. Contrary to the position in Dookheea, in this case it can realistically be supposed that the jury might have been left in a state of uncertainty as to the burden of proof. 45 The risk was not avoided by the Liberato directions. The impugned direction affected the jury’s evaluation of the first and second limbs of the Liberato direction. This is because the suggestion that the appellant bore an onus to satisfy the jury as to his account had the capacity to affect whether the jury believed the appellant (the first limb), or whether the jury considered there was a reasonable possibility his account was true (the second limb). Moreover, a Liberato direction is principally designed to avoid the jury engaging in choice reasoning. The impugned direction here engaged a step which was anterior to choice reasoning, namely, the initial assessment by the jury of the appellant’s account.62 46 The notion that an incorrect direction of such a fundamental nature at one point of a summing up can be overcome by a correct direction at another point, without the trial judge redirecting in a way which discharges the matters canvassed by Lovell J, as he then was, in Gray is wrong in principle. At the very least it is a highly unlikely proposition. The likelihood is the jury were confused by the contradictory directions.63 47 In the circumstances of the error in this case, it is no answer to rely upon the fact that the appellant’s counsel at trial did not seek a redirection. The failure of counsel to do so is not determinative in a case in which the direction was required to avoid a risk of a miscarriage of justice.64 The fact that counsel did not seek a redirection does not support an inference that there was not a miscarriage of justice in this case. As the High Court said in GBF,65 the fact that neither counsel sought a redirection did not warrant a conclusion that the jury acted on the correct directions of law and ignored the incorrect, contradictory instruction.66 The High Court, in allowing the appeal in GBF, found that the impugned statement, being a direction that the absence of sworn evidence by the accused in that case, contrary to the complainant’s account, might make it easier to reach a verdict, was an 60 Summing up 1. 61 (2017) 262 CLR 402 at [39]. 62 Mead (A pseudonym) v The King [2025] SASCA 3 at [56]. 63 Azzopardi v The Queen (2001) 205 CLR 50 at [73]-[75]. 64 De Silva v The Queen (2019) 268 CLR 57 at [35]; GBF v The Queen (2020) 271 CLR 537 at [27]; Rezaei v The King [2024] SASCA 150 at [85]; Bell v The King [2025] SASCA 97 at [306]-[307]. 65 GBF v The Queen (2020) 271 CLR 537 at [19], [25]-[26]. 66 GBF v The Queen (2020) 271 CLR 537 at [27]. -- 16 of 17 -- [2026] SASCA 37 The Court 13 irregularity amounting to a miscarriage of justice. In the circumstances in GBF, in which the impugned statement had the capacity to affect the jury’s assessment of the credibility and reliability of the complainant’s evidence, it was not open to find that no substantial miscarriage of justice had actually occurred. 48 The same position applies here. The irregularity had the realistic capacity to impermissibly affect the reasoning of the jury to a verdict of guilty, and accordingly amounted to a miscarriage of justice. Where the impugned direction had the capacity to affect the jury’s assessment of the credibility and reliability of the appellant’s record of interview, which was a key part of his case, and by extension proof of the charge beyond reasonable doubt, it is not open to find that no substantial miscarriage of justice has actually occurred. Accordingly, there is no occasion to apply the proviso.67 Disposition of the appeal 49 We would grant permission to appeal against conviction and allow the appeal. 50 We would set aside the appellant’s conviction and order the matter be remitted to the District Court for retrial. 51 As we have said, the Director brought a Crown appeal against the sentence imposed for this offending. In the circumstances where the conviction is quashed and a retrial ordered; there is no utility in hearing any appeal against sentence. Accordingly, we would grant permission to appeal but dismiss the appeal against sentence. 67 Brawn v The King (2025) HCA 20 at [9]. -- 17 of 17 --