DAMIEN RICHARD EDWARDS v THE KING [2023] SASCA 113

On Appeal from DISTRICT COURT OF SOUTH AUSTRALIA (HIS HONOUR JUDGE DURRANT) DCCRM-20-1543 Appellant: DAMIEN RICHARD EDWARDS Counsel: MS J ABBEY KC - Solicitor: STANLEY LAW PTY LTD Appellant: JULIE ANN PICCININ Counsel: MR A CULSHAW - Solicitor: WILLIAMS BARRISTERS & SOLICITORS Respondent: THE KING Counsel: MR D PETRACCARO SC WITH MS L HURLEY - Solicitor: DIRECTOR OF PUBLIC PROSECUTIONS (SA) Hearing Date/s: 20/09/2023 File No/s: SCCRM-23-010782; SCCRM-23-010792; SCCRM-23-023879 A 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. EDWARDS v THE KING; PICCININ v THE KING [2023] SASCA 113 Judgment of the Court of Appeal (The Honourable Justice Lovell, the Honourable Justice Bleby and the Honourable Justice Kimber) 19 October 2023 APPEAL AND NEW TRIAL - NEW TRIAL - IN GENERAL AND PARTICULAR GROUNDS - PARTICULAR GROUNDS - MISDIRECTION OR NON- DIRECTION - DIRECTIONS AS TO PARTICULAR MATTERS - OTHER MATTERS APPEAL AND NEW TRIAL - NEW TRIAL - IN GENERAL AND PARTICULAR GROUNDS - IN GENERAL - MISCARRIAGE OF JUSTICE - CIRCUMSTANCES INVOLVING MISCARRIAGE - MISDIRECTION CRIMINAL LAW - APPEAL AND NEW TRIAL - PROCEDURE - POWERS OF COURT ON APPEAL - POWER TO ORDER NEW TRIAL OR QUASH CONVICTION AND DIRECT ENTRY OF VERDICT OF ACQUITTAL - WHERE NEW TRIAL ORDERED CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST THE PERSON - ACTS INTENDED TO CAUSE OR CAUSING DANGER TO LIFE OR BODILY HARM OR SERIOUS INJURY - OTHER OFFENCES INVOLVING GRIEVOUS BODILY HARM OR SERIOUS INJURY - GENERALLY Mr Edwards appeals against conviction. Ms Piccinin appeals against both conviction and sentence. The appellants pleaded not guilty to joint charges of the offence of aggravated causing harm with intent to cause harm contrary to s 24(1) of the Criminal Law Consolidation Act 1935 (SA). Both -- 1 of 22 -- appellants were convicted following jury verdicts. The primary judge imposed a head sentence on Ms Piccinin of four years and three months with a non-parole period of two years and two months. The appellants were in a relationship. Ms Piccinin lived next door to the complainant and his family. There was pre-existing tension between the occupants of the two neighbouring houses. On the afternoon of 26 December 2018, there was an altercation between the appellants and the complainant. The prosecution case was that the appellants came through the adjoining side gate between the two properties and Mr Edwards stabbed the complainant. The case against Ms Piccinin was based on principles of joint criminal enterprise. The complainant suffered lacerations to his lip, chin and chest. The aggravated nature of the offending that the jury found proved was that harm to the complainant was caused through the use of an offensive weapon, namely a knife, and was committed whilst the appellants were in the company of one another. Following the incident, the complainant extracted himself and made a triple-zero call. Ms Piccinin also made a triple-zero call. Police attended at Ms Piccinin’s house where body-worn camera footage was captured of Mr Edwards speaking. Each appellant made statements in the triple-zero call and the body-worn camera footage respectively, to the effect that the complainant had been the aggressor. The prosecution submitted that certain of those statements were lies and that what they told police was circumstantial evidence that the jury could use in satisfaction of the charged conduct. Both appellants contended that a miscarriage of justice arose from the primary judge’s failure to give a direction in accordance with the requirements indicated in Edwards v The Queen or those set out in Zoneff v The Queen in respect of those asserted lies. Held (by the Court), allowing both appeals against conviction, quashing the convictions, remitting the charges for retrial and dismissing Ms Piccinin’s appeal against sentence on the ground that it has no utility: 1. It was not appropriate simply to direct the jury that it could use the statement by each appellant for a limited purpose as an item of circumstantial evidence which is more consistent with the actions of a guilty person than the actions of an innocent person, where the prosecution asserted that those statements included lies. To treat asserted lies as ‘circumstantial evidence’ required an accompanying Edwards direction. 2. This was not one of those rare cases where it was appropriate to treat the asserted lies as circumstantial evidence (of a consciousness of guilt). In circumstances where the prosecution apparently did not intend to rely on the asserted lies as evidence of a consciousness of guilt, the appropriate course was not to accord them any forensic value as circumstantial evidence in the first place. 3. Notwithstanding the strength of the prosecution case, the contest of credibility was such that it is not possible for this Court to assess whether guilt was proved to the criminal standard, notwithstanding the erroneous directions. It is not appropriate to apply the proviso. Criminal Law Consolidation Act 1935 (SA) s 24(1); Criminal Law Procedure Act 1921 (SA) s 158(2), referred to. Castle v The Queen (2016) 259 CLR 449; Collins v The Queen (2018) 265 CLR 178; GBF v The Queen (2020) 384 ALR 569; Hofer v The Queen (2021) 95 ALJR 937; Kalbasi v Western Australia (2018) 264 CLR 62; Kirkland v The Queen [2021] SASCA 14; Nudd v The Queen (2006) 80 ALJR 614, discussed. Boyle (A Pseudonym) v The Queen [2022] SASCA 50; Edwards v The Queen (1993) 178 CLR 193; R v Loader (2004) 89 SASR 204; R v Quist (2017) 127 SASR 471; R v Wildy (2011) 111 SASR 189; Zoneoff v The Queen (2000) 200 CLR 234, considered. -- 2 of 22 -- EDWARDS v THE KING; PICCININ v THE KING [2023] SASCA 113 Court of Appeal – Criminal: Lovell and Bleby JJA and Kimber AJA 1 THE COURT: On 2 March 2023 a jury found both appellants in this matter guilty of the offence of aggravated causing harm with intent to cause harm, contrary to s 24(1) of the Criminal Law Consolidation Act 1935 (SA) (‘CLCA’). The circumstances of aggravation that the jury found proved against both appellants were that they used an offensive weapon, namely a knife, to commit or when committing the offence and that they committed the offence while in company with one another. 2 Both appellants have appealed against their conviction. Ms Piccinin has also appealed against the sentence imposed on her for the offence. From a starting point of four years and six months’ imprisonment, the sentencing judge gave credit of three months for time spent on bail. The final head sentence was four years and three months. The judge fixed a non-parole period of two years and two months. He declined to order that the sentence be suspended or that it be served on home detention. The appeals against conviction 3 The Notices of Appeal against Conviction contain grounds common to both appellants (Grounds 1 – 3 in each case) and grounds specific to each (Grounds 5 and 6 in each case).1 Ground 1 in each case raises several issues concerning the judge’s directions in respect of statements made by each appellant shortly after the incident the subject of the charge. The statements by Mr Edwards were recorded on a body-worn camera by a police officer. The statements by Ms Piccinin were recorded during a triple-zero phone call Ms Piccinin made to police. In respect of each of these recorded statements, the appellants complain, respectively, that: • the trial judge gave no, or no adequate, directions on the use of alleged lies (Ground 1.1); • in that context, the judge’s observation to the jury, that it may think that some parts of what each appellant said was self-serving, was unfairly prejudicial (Ground 1.2); • the judge erred in giving a direction in respect of each appellant, to the effect that the jury was only able to use the statements the appellant made for a limited purpose, as an item of circumstantial evidence which is more consistent with the actions of a guilty person than the actions of an innocent person (Ground 1.3). 4 The other complaints common to both appellants are that: 1 Both appellants abandoned a common Ground 4. -- 3 of 22 -- [2023] SASCA 113 The Court 2 • there was a miscarriage of justice occasioned by the failure of the trial judge to warn against choice reasoning (Ground 2); and • there was a miscarriage of justice occasioned by the inadequacy of the trial judge’s directions on motive to lie (Ground 3). 5 Mr Edwards further complains that:2 • there was a miscarriage of justice in his case occasioned by the trial judge’s directions on Ms Piccinin’s triple-zero call, which did not include a direction on the male voice that could be heard in the background (Ground 5); and • there was a miscarriage of justice occasioned by the combined effect of deficiencies in the trial judge’s directions on lies, on joint enterprise and on what is an “act” (Ground 6). 6 Ms Piccinin further complains that:3 • there was a miscarriage of justice occasioned by the inadequacy of the trial judge’s directions on joint criminal enterprise (Ground 5). This ground arises in circumstances where the prosecution case against Ms Piccinin was based on principles of joint criminal enterprise; and • there was a miscarriage of justice occasioned by the directions about self-defence given in relation to Ms Piccinin (Ground 6). 7 For the reasons that follow, the appellants have established error in the terms contemplated by Ground 1 in each case, in that the trial judge did not give adequate directions on the use of alleged lies. Further, this is not a case where it is appropriate to apply the proviso. We allow the appeal on Ground 1 in each case. We set aside the convictions and remit the matters for retrial. It is not necessary to determine the remaining grounds on the appeals against conviction. It also follows that Ms Piccinin’s appeal against sentence lacks utility and should be dismissed. The prosecution case 8 The appellant Ms Piccinin lived next door to the complainant and his family in Smithfield. There was tension between the occupants of the two houses. That tension had worsened over time. 9 In the afternoon of 26 December 2018, the complainant returned home. His father had called to say that the neighbours had smashed a window of their house. On returning home, the complainant saw a broken window in the laundry and 2 Permission to appeal has already been granted on those grounds. 3 Permission to appeal has already been granted on those grounds. -- 4 of 22 -- [2023] SASCA 113 The Court 3 bottles. He called the police, who attended at about 3:40pm. Police were unable to raise anyone at Ms Piccinin’s address and departed. 10 The complainant and his cousin started to clean up the broken glass. The cousin was inside the house. The complainant was frustrated at what had happened and threw two or three bottles back over the fence, one at a time, in the direction of the appellants’ kitchen window. Within a couple of minutes, he heard voices swearing and saying ‘fuck’ and ‘coward’ at the adjoining side gate. 11 The complainant was concerned that the appellants wanted to fight. He picked up a bottle, thinking that this would scare them off. He opened the gate and saw both appellants standing next to each other. Mr Edwards was holding a stainless-steel kitchen knife and said, ‘you want this fucker’. The complainant was scared and smashed the bottle on the ground. He tried to push the gate closed. Mr Edwards prevented him from doing so. Ms Piccinin came through the gate and stood next to Mr Edwards. 12 Mr Edwards lunged at the complainant with the knife but missed. He lunged again and sliced the complainant’s lip, chin and chest. The complainant tried to wrestle the knife out of Mr Edwards’s hand and sustained lacerations to his finger and back. He grabbed a bottle and hit Mr Edwards to the left side of his face. Mr Edwards said, ‘help me, bitch’. Ms Piccinin started to kick the complainant’s legs and to punch his shoulders. 13 The complainant extracted himself and called triple-zero. The appellants left the scene and Ms Piccinin also called triple-zero. 14 Police attended at about 4:40pm. They found the complainant by his laundry door. Blood was coming from his face. He told police he had been stabbed with a knife by the appellants. 15 Police attended at Ms Piccinin’s house. They located Mr Edwards. He had sustained a laceration to the top of his left ear and two lacerations to his scalp and neck, near to his ear. He was bleeding heavily. Police found a knife matching the description given by the complainant on the kitchen bench in Ms Piccinin’s house. Ms Piccinin’s triple-zero call 16 We have listened to the audio recording of the triple-zero call that Ms Piccinin made to police. For present purposes, it is sufficient to identify aspects of that call. During that call, Ms Piccinin: • is not particularly responsive to the operator. At one point she says she is going to call an ambulance, even though she is speaking on a triple-zero call; • says, ‘the next-door neighbours just threw a bottle through the window and stabbed … oh my God’; -- 5 of 22 -- [2023] SASCA 113 The Court 4 • can be heard to ask someone whether they are ok, and says that they are not ok; • asks for an ambulance; • says, ‘and then he went to retaliate and … it’s gotten bad’; • clarifies when asked that it was Mr Edwards who ‘retaliated’; • says, ‘he attacked him with a knife’; • then says, ‘he tried to grab it off of him and he pushed it towards him and he got a broken. They’re still throwing bottles through our windows’; • when asked if Mr Edwards stabbed the neighbours, says, ‘No, they stabbed Damien’. She then says, ‘Yeah he, they cut him with a broken bottle and then a knife. There’s blood everywhere and then they’re still throwing things through the window’; • says to ‘Damien’ not to ‘go out there’. 17 Senior counsel for Mr Edwards identified that a male voice can be heard in the background to the call. Some of the statements that Ms Piccinin is heard to make are repetitions of what is being said by the male. Those statements include that the neighbour had stabbed the male with a knife, the male had tried to grab it off him and that the male had pushed the knife towards the neighbour. 18 There was no evidence that any male other than Mr Edwards was present. The body-worn camera footage of Mr Edwards 19 When police attended at Ms Piccinin’s house after the triple-zero calls, they spoke to Mr Edwards and recorded a conversation on a body-worn camera. In the course of that conversation, Mr Edwards: • said he ‘got attacked by a neighbour’; • said he ‘was attacked by a knife’; • said the neighbour ‘got me with a broken beer bottle after he failed to get me with the knife. Threw it at me pretty much like’; • said, ‘Well he went for me with a knife, I’ve grabbed that off him and just pushed it against him and in his other hand it looked like he had this broken beer bottle’; • said the neighbour had come to the front door of Ms Piccinin’s house; -- 6 of 22 -- [2023] SASCA 113 The Court 5 • said the knife was a ‘kitchen sort of like a big knife’. The handle was ‘wood maybe’; • When asked if he had stabbed the neighbour, said, ‘Oh I pushed it towards him I reckon I did get him yer’. He confirmed that this was with the knife that the neighbour was holding. Other evidence 20 The prosecution relied on the complainant’s and Mr Edwards’s injuries as being broadly consistent with the account given by the complainant. 21 Inside Ms Piccinin’s house, there was a small amount of blood inside the front door and a greater amount in the kitchen/dining area. That blood was not tested. 22 There were blood-like stains in the side yard of the complainant’s house. These were tested. The first returned a single source DNA profile with a statistical weighting of greater than 100 billion in favour of the complainant being a contributor. The second returned a mixed DNA profile (two contributors) with a statistical weighting of greater than 100 billion in favour of the complainant being a contributor and 1.8 million in favour of Mr Edwards not being a contributor. 23 A pair of thongs was located in the side yard of the complainant’s house near the blood-like stains. The various members of the complainant’s family gave evidence that they did not recognise these thongs as belonging to anyone in their house. 24 Testing of the left thong showed as follows: • a blood-like stain on the strap, which returned a single source DNA profile with a statistical weighting of greater than 100 billion in favour of the complainant being a contributor; • a blood-like stain near the toe area, which returned a single source DNA profile with a statistical weighting of greater than 100 billion in favour of Mr Edwards being a contributor; • a blood-like stain on the sole, which returned a mixed DNA profile (two contributors) with a statistical weighting of greater than 100 billion in favour of the complainant being a contributor and 62 in favour of Mr Edwards not being a contributor; • a tape lift taken from the underside of the straps returned a mixed DNA profile (three contributors) with a statistical weighting of greater than 100 billion in favour of the complainant being a contributor and greater than 100 billion in favour of Mr Edwards being a contributor. -- 7 of 22 -- [2023] SASCA 113 The Court 6 25 Testing of the right thong showed a blood-like stain on the strap, which returned a single source DNA profile with a statistical weighting of greater than 100 billion in favour of the complainant being a contributor. 26 DNA results from blood-like stains on the front of Mr Edwards’s t-shirt indicated a mixed DNA profile (three contributors including Mr Edwards) with a statistical weighting of greater than 100 billion in favour of the complainant being a contributor. 27 Police located knives at Ms Piccinin’s house that were consistent with the description the complainant gave of the knife used in the altercation. 28 CCTV footage from a nearby house records a female’s voice at approximately 4:23pm on 26 December 2018 saying, ‘You fucking cunt. Come out you coward. You fucking coward’. There was a dispute about whether that footage also recorded a female voice saying, ‘Damien, he has a knife’, or ‘Damien, grab the knife’. The directions concerning lies 29 Both appellants complain that the judge failed to give a direction in accordance with the requirements indicated in Edwards v The Queen (‘Edwards’)4 or those set out in Zoneff v The Queen5 in respect of what were said, on the prosecution case, to have been lies told by each of Mr Edwards and Ms Piccinin, in the body-worn camera footage and triple-zero call respectively. In order to understand the contentions as to why a direction was required, and to give some context to the direction that was given, it is necessary to start with the approach by the prosecution to what each appellant had said. 30 The prosecutor said in opening: I mentioned earlier that the accused Miss Piccinin told the 000 operator that the neighbour threw a bottle through her window and she said the accused Edwards was attacked by the neighbour. Similarly, the accused Edwards said the neighbours were throwing bottles over the fence and he was attacked by the neighbour. On the prosecution case both accused went about to set up a false story Arif [the complainant] was the aggressor knowing they would be asked by police what happened. What they told police is circumstantial evidence that you can use in satisfaction of the charged conduct. 31 In closing address, the prosecutor further submitted that the accounts given by the appellants were not true: I want to say something about what both the accused and co-accused said about bottles being thrown at their window. When asked about the broken bottles being present at No.22 [the complainant’s house], the accused Edwards said ‘Yeah, he was throwing bottles like the last couple 10 minutes’. You might think that is very similar to what the co-accused Piccinin says in her 000 call. She said ‘They’re still throwing bottles. They’re still throwing 4 (1993) 178 CLR 193. 5 (2000) 200 CLR 234. -- 8 of 22 -- [2023] SASCA 113 The Court 7 things through the window.’ Piccinin also said that ‘One of the thrown bottles hit someone and now they’re bleeding badly’. You might think they are both effectively saying that bottles were thrown for a protracted period of time up until about the time of the police attendance. It is my suggestion to you that what both the accused and co-accused said about bottles being thrown over their fence was not true. 32 This was an unremarkable invitation to reject the truth of the accounts given by the appellants. However, shortly after this, the prosecutor continued, consistently with the statement in opening: If you are satisfied that what the accused said about bottles being thrown is untrue, then you can use that in conjunction with all the other evidence in determining whether the prosecution has proved its case beyond reasonable doubt … You can also use it in assessing whether you accept the accused Edwards’ version is a reasonable possibility. 33 On the prosecution case, both appellants told police lies in their respective accounts, directed to the proposition that it was the complainant who was the aggressor. The prosecution submitted that those lies could be used as ‘circumstantial evidence’. 34 The prosecutor did not identify the fact in issue of which the lies could be used as circumstantial evidence. In the course of the trial, there was discussion about the direction the judge would give with respect to circumstantial evidence. The prosecutor referred to what, on the prosecution case, was the false version given by both appellants about the neighbours continuing to throw bottles and indicated that the use he intended to make of it was ‘similar to’ that in R v Wildy (‘Wildy’).6 The prosecutor did not elaborate on that at the time. 35 Shortly before addresses, the topic of the triple-zero call arose again. The judge raised with the prosecutor the use that could be made of Ms Piccinin’s statements. The prosecutor said that ‘it shows what she knew’. As to the statement about bottles being thrown, the prosecutor reiterated that the jury could use this ‘as a piece of circumstantial evidence’. He confirmed his intention to say that this statement was false. 36 Counsel for Ms Piccinin then raised a concern that the way the prosecutor had expressed it in opening, and how it might be left, would leave the jury with the impression that the statement was being led for the purposes of establishing a lie told by Ms Piccinin. She explained that it was not her understanding that this was to be led as showing consciousness of guilt. The judge confirmed his understanding of this. 37 In the event, the trial judge’s directions in respect of Mr Edwards’s statements recorded on the body-worn camera footage were as follows: 6 (2011) 111 SASR 189. -- 9 of 22 -- [2023] SASCA 113 The Court 8 Both the prosecution and Damien Edwards relied on the body worn footage of when Damien had spoken to the police in the garden… As with all witnesses, you may accept some parts of what Damien Edwards said to police and reject other parts of what he said. You must decide what weight to give those statements and you are entitled to give different weight to what he said at different times. The prosecution says that the version of events given by Damien Edwards in the body worn footage was unclear, that he had had difficulty explaining how he had disarmed Arif without injury and that what he had said was implausible. [Counsel for Mr Edwards] said that the footage provided an immediate explanation by Damien Edwards of what had occurred and was evidence Arif had come to the front door. In assessing that footage keep in mind though that unlike evidence from other witnesses the statements made by Damien Edwards to police are not sworn evidence that has been tested by cross-examination. You may think that some of what Damien Edwards said is self-serving. You are entitled to consider that when deciding what weight you give what he said. … You are only able to use the statements Damien made in that video relied upon by the prosecution against Damien Edwards for a limited purpose as an item of circumstantial evidence which is more consistent with the actions of a guilty person than the actions of an innocent person. To speak of evidence in a case as circumstantial does not imply that the evidence is necessarily weak or unsatisfactory. Circumstantial evidence can afford very secure grounds for a conclusion of guilt. You must look at the item of circumstantial evidence the prosecution relies upon and decide what you accept as established by that evidence and what inference or inferences you are prepared to draw from those facts. (Emphasis added) 38 With respect to Ms Piccinin’s triple-zero call, the judge summed up, relevantly, in very similar terms: Both the prosecution and Julie Piccinin rely specifically on the 000 audio. All parts of that exchange between Julie Piccinin and the operator, including those which might help the prosecution and those parts which might help the defence, are evidence in the case in respect of Julie Piccinin. You must decide what weight you give to her statements to the operator and you are entitled to give different weight to what she said at different times. As with all witnesses you must accept some parts of what Julie Piccinin said to 000 and reject other parts of what she said. Keep in mind though that unlike evidence from other witnesses the 000 call is not sworn evidence that has been tested by cross-examination. You may think that some parts of what Julie Piccinin said is self-serving. You are entitled to consider that when deciding what weight to give to her statements. The prosecution says that Julie Piccinin lied about windows being smashed in the 000 call. [Counsel for Ms Piccinin] said though that the smash reported may have been the window in the next-door laundry further breaking or was a recitation by Julie Piccinin of what the male voice is heard to say on the 000 call. -- 10 of 22 -- [2023] SASCA 113 The Court 9 To be very clear, in your assessment of the 000 call you cannot use it against Damien Edwards. It would be wrong to use that evidence against Damien Edwards. You are only able to use what Julie Piccinin said in the 000 call relied upon by the prosecution against her for a limited purpose as an item of circumstantial evidence which is more consistent with the actions of a guilty person than the actions of an innocent person. (Emphasis added) 39 In each of the highlighted passages extracted above, the judge said that the jury could use the words of each appellant ‘as an item of circumstantial evidence which is more consistent with the actions of a guilty person than the actions of an innocent person’. In neither case did he identify the fact in issue of which those words were circumstantial evidence. 40 These directions were consistent with the approach taken by the prosecutor to the evidence. The highlighted passages appear to be drawn from the judgment of Vanstone J in Wildy,7 to which the prosecutor had already referred. That case concerned an appeal against conviction of a number of sexual offences against a single complainant. There was evidence that the complainant had sent the appellant a letter accusing him of abuse and demanding $50,000. The appellant replied by letter, suggesting that they meet. It was not contested that the appellant later lent the complainant $6,000. There was disputed evidence that the appellant had earlier lent the complainant $1,700. 41 In holding that there was no requirement for a warning or any other direction in respect of the evidence of the $6,000 loan, Vanstone J observed:8 In the present case, evidence going to the admitted loan was merely presented by prosecuting counsel as an item of circumstantial evidence which was more consistent with the action of a guilty man than an innocent one. 42 In that case, the appellant had given detailed evidence about his motivation for making the loan. His evidence was to the effect that the loan had nothing to do with the written threat and that he was looking to assist the complainant with a view to helping him get his life back on track.9 There had been no argument at trial to the effect that the $6,000 loan manifested a ‘consciousness of guilt’ or an ‘implied admission’.10 Prosecuting counsel had not relied on lies in the way that had occurred in Edwards.11 The making of the loan was not, of itself, discreditable conduct. Vanstone J continued:12 The competing evidence and arguments on each side about the significance of both advances were clearly put to the jury by the trial judge. No further or other direction was 7 (2011) 111 SASR 189. 8 R v Wildy (2011) 111 SASR 189 at [33]. 9 R v Wildy (2011) 111 SASR 189 at [32]. 10 R v Wildy (2011) 111 SASR 189 at [33]. 11 (1993) 178 CLR 193. 12 R v Wildy (2011) 111 SASR 189 at [35]. -- 11 of 22 -- [2023] SASCA 113 The Court 10 sought by either counsel. In my view no specific direction going to either advance was required. 43 Wildy clearly provided a model for the trial judge’s directions in respect of the body-worn camera footage and the triple-zero call, highlighted above. However, Vanstone J had observed that Wildy was not a case where there was a danger of misusing evidence; that is, in using it for an improper purpose.13 In that regard, she distinguished it14 from cases where lies were relied on as circumstantial evidence of a consciousness of guilt and required a direction in the terms contemplated by Edwards.15 44 Here, the judge’s adoption of the language in Wildy (at the invitation of the prosecutor) invited the jury to treat the contents of the footage and the phone call as ‘circumstantial evidence which is more consistent with the actions of a guilty person than the actions of an innocent person’. However, this did not identify the fact in issue of which those items of evidence were circumstantial evidence. 45 In R v Quist (‘Quist’),16 the appellant was accused of having lit a fire in a toilet cubicle in a shopping centre. She made five separate and inconsistent exculpatory statements in respect of her movements in the centre at the time the fire had ignited. The prosecution case was that these statements were lies. The trial judge gave directions generally in accordance with Edwards, restricted to lies ‘tending’ to show a consciousness of guilt. The judge did not identify with any precision what parts of the appellant’s accounts constituted lies. 46 A majority of the Court held that the alleged lies should not have been left to the jury as lies told from a consciousness of guilt. Blue J held that to do so would involve impermissible circular reasoning, as the evidence was incapable of proving that the statements were lies absent acceptance of the prosecution case that the appellant had lit the fire.17 Lovell J held that it was not open to leave the five statements to the jury as individual lies, as the simple fact of five inconsistent and variable statements did not identify the lie relied upon. The jury was simply left with the proposition that the appellant was a liar generally with respect to her version of events.18 47 In the course of discussing the use that can be made of lies, Lovell J said:19 It can be accepted that in limited circumstances guilt may be inferred from an accused’s post-offence conduct. Such evidence may be probative and relevant as an implied admission. An example of an implied admission can be a lie told by an accused. Other conduct, such as flight from the scene of the crime, can also be, in certain circumstances, an implied admission. Such evidence can be led by the prosecution as a piece of 13 R v Wildy (2011) 111 SASR 189 at [28]. 14 R v Wildy (2011) 111 SASR 189 at [29]. 15 (1993) 178 CLR 193. 16 (2017) 127 SASR 471. 17 R v Quist (2017) 127 SASR 471 at [238]-[254]. 18 R v Quist (2017) 127 SASR 471 at [311]. 19 R v Quist (2017) 127 SASR 471 at [283]-[285]. -- 12 of 22 -- [2023] SASCA 113 The Court 11 circumstantial evidence to permit a jury to draw an inference of the accused’s consciousness of guilt. If a lie can be used by the prosecution to show a consciousness of guilt on the part of an accused, a direction in line with the decision in Edwards v The Queen20 (an Edwards direction) should be given. If the lie is to be used as going solely to the credit of an accused, a direction in line with the decision in Zoneff v The Queen21 (a Zoneff direction) should be given. There are of course cases where, even though the prosecution allege than an accused is lying, no direction about the use of lies need be given. It can be a difficult task to determine whether a lie told by an accused amounts to a lie told from a consciousness of guilt therefore attracting an Edwards direction. Such lies are rare and a prosecutor should exercise caution before making such a submission to a jury and asking a judge to give an Edwards direction. (Footnotes in original) 48 Quist provides a helpful framework for analysis of the directions given in the present matter. The starting point is that the prosecution characterised statements of Mr Edwards in the body-worn camera footage and Ms Piccinin in the triple-zero call as ‘not true’. Specifically, this submission referred to the statements by each that bottles were being thrown over the fence, for a protracted period of time, until the police arrived. 49 In the circumstances of the case, the characterisation of these statements as ‘not true’ can only have been understood as identifying them as lies. Were it left there, that might be thought to be of little consequence. That an accused person gives an account in a record of interview that the prosecution subsequently characterises as untrue is hardly remarkable. The fact that this is such a commonplace supports the observation of Lovell J in Quist, that lies told from a consciousness of guilt are rare and that caution should be exercised before a prosecutor requests an Edwards direction. 50 However, the prosecutor did not leave the submission there. He also said that what the appellants told the police was circumstantial evidence that the jury could use in satisfaction of the charged conduct. The difficulty is that having characterised what the appellants both said as ‘not true’, he did not identify the fact in issue of which these ‘not true’ statements were, on the prosecution case, circumstantial evidence. The passage quoted above from Quist illustrates that having been characterised as lies, if these statements were to be elevated on the prosecution case to circumstantial evidence of a fact in issue, that was (and could only have been) as circumstantial evidence of a consciousness of guilt. 51 The judge, however, adopted the approach of the prosecution and characterised each statement in summing up as ‘an item of circumstantial evidence which is more consistent with the actions of a guilty person than the actions of an innocent person’. By taking this approach, modelled on the observation of 20 Edwards v The Queen (1993) 178 CLR 193. 21 Zoneff v The Queen (2000) 200 CLR 234. -- 13 of 22 -- [2023] SASCA 113 The Court 12 Vanstone J in Wildy, these directions failed to engage with the only possible use of these statements as ‘circumstantial evidence’, that is, as circumstantial evidence of a consciousness of guilt. 52 The difficulties with this approach can be viewed in stages. Perhaps most obviously, once it is understood that evidence of statements by the appellants, which on the prosecution case were ‘not true’, was to be deployed as circumstantial evidence of a consciousness of guilt, it was necessary for the judge to give an Edwards direction. In Quist, Blue J identified that it may be necessary to direct the jury as to some or all of the following matters, depending on what precisely is in issue and the risk of impermissible reasoning:22 1. identification of the specific statement alleged by the prosecution to be a lie and its meaning intended by the defendant; 2. the need for the jury to be satisfied that the statement was made, was false and was a deliberate lie;23 3. how each such statement is alleged to be false (unless not in dispute or self-evident); 4. the principal evidence bearing on whether each such statement is false (unless not in dispute or self-evident); 5. the need for the jury to be satisfied that the asserted lie relates to a material matter;24 6. the need for the jury to be satisfied that the defendant told the asserted lie because he or she knew that the truth of the matter about which he or she lied would implicate him or her in the offence or an element of it; 7. the need for the jury to be satisfied that the defendant did not tell the lie for some other reason – such as out of panic, to escape an unjust accusation, to protect some other person or to avoid a consequence extraneous to the offence; 8. the circumstances and events said to indicate that the defendant told the asserted lie because he or she knew that the truth would implicate him or her; 9. a warning not to engage in circular reasoning, ie the finding that the defendant lied because he or she knew that the truth would implicate him or her must be based on material and reasoning that is not dependent on the jury finding him or her guilty; 10. a warning not to engage in impermissible reasoning that because the defendant lied, he or she must be guilty. (Footnotes in original) 53 The trial judge did not direct the jury even in the minimum terms indicated in this list. The reason for this appears to be that the prosecutor did not think he 22 R v Quist (2017) 127 SASR 471 at [188]. 23 This identification can be abbreviated or omitted to the extent that the defendant admits making the statement, or that it is false or that it was a deliberate lie as the case may be. 24 Often this will be obvious and this identification can be omitted. -- 14 of 22 -- [2023] SASCA 113 The Court 13 was adducing the evidence of the statements by each appellant as evidence of a consciousness of guilt, and the judge accepted this. 54 Indeed, there seems to have been considerable, unresolved confusion at trial as to the use to be made of the statements. At one point during the trial, counsel for Ms Piccinin raised with the Court the use that would be made of the triple-zero call. The prosecutor said that Ms Piccinin’s statements showed ‘what she knew’. He also characterised them as ‘statements against interest’ and then said: The prosecution does still allege that a jury can use the evidence in those calls, that bottles were being thrown over the fence, as a piece of circumstantial evidence and in my closing I intend to say that was false. 55 This then led to the following exchange: [COUNSEL FOR MS PICCININ]: Can I just make an observation? The way it’s been put in the opening and how it might be left is with the impression that it’s being left for the purposes of establishing a lie told by Ms Piccinin. I don’t understand it to be led as evidence a lie is consciousness of guilt. HIS HONOUR: No. [COUNSEL FOR MS PICCININ]: But it will be a topic that will need to be treated with some care, in my submission. HIS HONOUR: It will. I had that as a separate topic under the heading ‘Circumstantial Evidence’ – this is only in respect of the statement ‘They’re still throwing bottles’? [COUNSEL FOR MS PICCININ]: Yes. HIS HONOUR: ‘As an item of circumstantial evidence in the form of post offence conduct which the jury can use to consider whether that conduct is more consistent with the actions of a guilty person than with the actions of an innocent person. 56 The judge went on to identify that he had drawn the wording from a formulation of Vanstone J, which is clearly enough a reference to Wildy. However, he then went on: It’s under that rubric of post conduct evidence as to a lie, what use they can make of a lie. So first, they’d have to be satisfied beyond reasonable doubt Ms Piccinin said it and said it at the time that is shown. I would have thought secondly, that they needed to be satisfied beyond reasonable doubt that it’s a lie and, if they’re satisfied of both those things, then it’s a simple direction to say: -- 15 of 22 -- [2023] SASCA 113 The Court 14 ‘If you’re satisfied of that evidence, it’s an item of circumstantial evidence in the form of her conduct after the alleged offending which you can use to consider whether it’s more consistent with her guilt than her innocence’. 57 This exchange illustrates the confusion. The judge had proposed to give a direction that was partly in line with what Edwards required where a lie was to be used as evidence of consciousness of guilt, but which was otherwise governed by the statement by Vanstone J in Wildy. However, that was on the apparent basis that the asserted lie was not to be used as evidence of a consciousness of guilt on the part of Ms Piccinin. This was the concern expressed by counsel for Ms Piccinin. What appears to have been missed throughout the exchanges was that the only basis on which the ‘lie’ could potentially have been deployed by the prosecution as ‘circumstantial evidence’ was as evidence of a consciousness of guilt. 58 The respondent, in written submissions, submitted that the approach taken by the trial judge was consistent with the statements by Duggan J in R v Loader (‘Loader’)25 when addressing post-offence conduct:26 The first ground of appeal asserts that the trial judge erred “in failing adequately to direct the jury concerning the telling of lies by the appellant and his concealment or destruction of material associated with the deaths of the deceased”. First, it was argued that, in so far as the post-offence conduct consisted in the telling of lies, those lies did not have relevance beyond that of credibility. The lies were part of a series of actions and statements by the appellant aimed at creating the impression that the two men were still alive and at distancing himself from their disappearance. These statements and actions included getting rid of Goodwin’s car, ringing his telephone number, making calls from Goodwin’s mobile telephone to the appellant’s telephone, asking for Goodwin at his home, going to the golf club to give the impression that he expected Goodwin to be there, giving Comans’ name when arranging for a locksmith to change the locks at Steamers, suggesting that Goodwin might have met foul play when he was picking up some drugs and telling the police he did not know the whereabouts of the two men. The events after the disposal of the bodies were referred to collectively during the trial as “the false trail evidence”. Conduct after an offence designed to create the impression that an offence has not been committed or that the accused had no connection with the offence constitutes a well known category of circumstantial evidence in criminal cases: Wills on Circumstantial Evidence (7th ed) pp 147-157. In my view, it was appropriate for the trial judge to invite the jury to consider these actions and statements of the appellant as part of the body of evidence from which they were entitled to draw an inference of guilt. They were actions clearly intended by the appellant to distance himself from the disappearance of the two men. The reason why he wished to distance himself in this way was a matter for the jury. However, it was open for the jury to infer that he did so because of his involvement in the murders. To the extent that lies were involved, their relevance was not restricted to mere credibility; they could be used as part of the circumstantial case to establish positive evidence of guilt. 25 (2004) 89 SASR 204. 26 R v Loader (2004) 89 SASR 204 at [27]-[31]. -- 16 of 22 -- [2023] SASCA 113 The Court 15 59 The respondent was more circumspect in the use of this authority in oral submissions. That was appropriate, with respect. The characterisation of lies as circumstantial evidence in Loader occurred in the context of the trial judge having given directions that accommodated the requirements of Edwards.27 In doing so, the judge had identified the contested facts in issue of which the lies told by the accused were said to be circumstantial evidence. The prosecution case was that the lies were told to conceal his involvement in the two murders. 60 In any event, in the present case, the judge did not give the direction he had flagged with counsel. Moreover, he did not identify the asserted lies with precision. The prosecution identified the statements by each appellant about the neighbours continuing to throw bottles as being not true. When the judge addressed the statements by each, he identified the asserted lie on Ms Piccinin’s part as follows: The prosecution says that Julie Piccinin lied about windows being smashed in the 000 call. 61 This was not an accurate characterisation of the lie on the prosecution case. In the case of the statements by Mr Edwards, the judge did not identify the asserted lie at all. 62 Neither did the judge give any of the directions required by Edwards. For example, the case against Ms Piccinin was one of joint enterprise with Mr Edwards. An appropriate direction in her case would have included that the jury needed to be satisfied that she told the asserted (and identified) lie because she knew that the truth of the matter about which she lied would implicate her in the offence or an element of it. This is because there was a potential alternative explanation for the asserted lie on her part, namely that she was looking to protect Mr Edwards. 63 Counsel for Mr Edwards emphasised that in circumstances where evidence of an asserted lie was relied upon, it was necessary to direct the jury against circular reasoning. As Blue J expressed it in Quist, above, this is a warning to the effect that finding that a defendant lied, because they knew that the truth would implicate them, must be based on material and reasoning that is not dependent on the jury finding them guilty. 64 Unlike the conclusion that Blue J reached in Quist, we do not think that this was a case where to adduce evidence of the lie necessarily required the jury to engage in circular reasoning. We reach that conclusion based on the proposition that the asserted lie told by Mr Edwards was that bottles were continuing to be thrown, after the incident the subject of the charge. The asserted lie was not incapable of being proved absent acceptance of the prosecution case that the appellants had gone to the side gate and entered the complainant’s property and that Mr Edwards had stabbed the complainant. However, a direction against circular reasoning was unquestionably necessary if the prosecution was to rely on 27 R v Loader (2004) 89 SASR 204 at [21]-[23]. -- 17 of 22 -- [2023] SASCA 113 The Court 16 the statements as lies. That is on the basis that the judge was also required to identify precisely the asserted lie, which he did not do. 65 Whether the statements by each appellant about bottles continually being thrown could appropriately have been relied on as lies evidencing a consciousness of guilt in each case is another matter. Even if the prosecution had characterised the evidence in those terms, that would not have been the end of the matter. The ultimate question is the use that the jury might make of them:28 The fact that a prosecutor makes suggestions to the jury that the lies may be used by the jury as evidence of a “consciousness of guilt” does not make it so. Whether to give an Edwards direction cannot depend on the opinion or purpose of a prosecutor nor on agreement by defence counsel although of course those matters should be given wight. The question to be answered by the judge must be the way the jury might use the evidence. 66 The ground of appeal was argued on the basis of the failure of the judge to give any, or any adequate, direction on the use to be made of lies. The foundation of the need for a direction at all lay in the characterisation by the prosecution, and consequently the judge, of the asserted lies as ‘circumstantial evidence’. However unwittingly, this invited the jury to consider the asserted lies as evidence of a consciousness of guilt in respect of both appellants. That then raises the need for caution that Lovell J expressed in Quist.29 Specifically, in circumstances where the prosecution apparently did not propose to rely on the asserted lies as evidence of consciousness of guilt, it could not have been correct to characterise those asserted lies as having any circumstantial evidential value in the first place. 67 The respondent observed that at no point did counsel for either appellant at trial seek a redirection in the terms that the appellants now say on appeal should have been given. Strictly speaking, that is true. We have set out above some of the exchanges that occurred on the topic. It is apparent that there was confusion on the use to be made of the asserted lies. Shortly before summing up, Counsel for Ms Piccinin revisited the issue: [COUNSEL FOR MS PICCININ]: Your Honour, I’m not sure how the issue of lies was left to the jury by the prosecutor. I’m quite certain it wasn’t left as evidence of consciousness of guilt. HIS HONOUR: No. [COUNSEL FOR MS PICCININ]: I’m sorry, just to be clear that it’s to be left by your Honour as just a credibility issue. HIS HONOUR: Even less than that, that is, lies by your client and by assertive lies. Let me just turn up that part of it so that we’re all on the same page. 28 R v Quist (2017) 127 SASR 471 at [324] (Lovell J). 29 R v Quist (2017) 127 SASR 471 at [283]-[285]. -- 18 of 22 -- [2023] SASCA 113 The Court 17 [COUNSEL FOR MS PICCININ]: It seems that – is it being used as circumstantial evidence? HIS HONOUR: Yes. It was both opened on as circumstantial evidence and it was closed on as circumstantial evidence. What I was proposing to say, and this would correspond for each defendant, there will be a similar statement: ‘You are only able to use the statements Damien made in that video – ‘that is, the body-worn video, ‘- relied upon by the prosecution against Damien Edwards for a limited purpose as an item of circumstantial evidence which is more consistent with the actions of a guilty person than the actions of an innocent person.’ That picks up the language of the case that Mr Adams provided me, the name of which I have forgotten, but the reasons were of her Honour Vanstone J, which I will say out loud and proud is good enough for me. If that’s the way in which her Honour formulated a criminal direction, I’m going to take it. [COUNSEL FOR MS PICCININ]: Thank you. HIS HONOUR: Anyone have any difficulty in that? So that’s how I have dealt with that. There will be a corresponding one for Ms Piccinin. 68 Neither defence counsel took further issue with the proposed direction after this. Having said that, the exchanges throughout the trial had proceeded on the basis that the asserted lies were not to be used as evidence of a consciousness of guilt or even, it seems, an assessment of credibility. The difficulty then seems to be that notwithstanding counsel for Ms Piccinin having raised the issue, the actual forensic use of the asserted lies was, in effect, glossed over by characterising the asserted lies as ‘circumstantial evidence’, relying on Wildy, without identifying the fact in issue of which they were said to be circumstantial evidence. 69 In arguing against any miscarriage of justice, the respondent relied on the principle that an appellant is bound by the conduct of their counsel at trial.30 However, that is not an inflexible principle.31 In circumstances where there was confusion from the outset about the use to which the asserted lies could be put, we do not think it can be said that counsel had acquiesced in the directions ultimately given. Rather, she had queried what was to be said on the topic. The answer she received was misguided, if confidently given, and the product of a confused approach to the evidence of the asserted lies from the outset. That confusion is further illustrated by the fact that the judge did not ultimately give the (partial) lies direction that he had earlier foreshadowed. 30 See, e.g., Nudd v The Queen (2006) 80 ALJR 614 at [9]. 31 Kirkland v The Queen [2021] SASCA 14 at [167] (Lovell JA). -- 19 of 22 -- [2023] SASCA 113 The Court 18 70 We are satisfied that the failure of either counsel to object further was not a forensic decision. The Court indicated, with considerable confidence, that it had answered counsel’s concern. The transcript does not indicate counsel’s agreement. It records an acknowledgement only. Whether counsel was left in a state of uncertainty or had determined that there was nothing more to say, we would not characterise the failure to seek a further direction as the product of agreement that the direction was adequate. The failure to say anything further is no impediment to a finding of a miscarriage of justice. 71 It follows that the directions to the jury the subject of complaint in Ground 1 constituted a miscarriage of justice. It was not appropriate simply to direct the jury that it could use the statement by each appellant for a limited purpose as an item of circumstantial evidence which is more consistent with the actions of a guilty person than the actions of an innocent person, where the prosecution asserted that those statements included lies. To treat asserted lies as ‘circumstantial evidence’ required an accompanying Edwards direction. 72 Having said that, these asserted lies were simply the accounts given by the appellants to police after the event. This was not one of those rare cases where it was appropriate to treat the asserted lies as circumstantial evidence (of a consciousness of guilt). In circumstances where the prosecution apparently did not intend to rely on the asserted lies as evidence of a consciousness of guilt, the appropriate course was not to accord them any forensic value as circumstantial evidence in the first place. 73 Subject to application of the proviso, the appellants have established Ground 1 of the appeal. Application of the proviso 74 The respondent submitted that even if a miscarriage of justice was established, no substantial miscarriage of justice had actually occurred.32 This was on the basis that on a review of the evidence, this Court would find the appellants guilty beyond reasonable doubt. In this regard, the respondent referred to the evidence discussed earlier, being: • the evidence of the complainant; • the complainant’s injuries being consistent with having been inflicted in the way he described; • Mr Edwards’s injuries being consistent with having been inflicted in the way the complainant described; • the blood stains located in the side yard of the complainant’s house; 32 Criminal Procedure Act 1921 (SA) s 158(2). -- 20 of 22 -- [2023] SASCA 113 The Court 19 • the results of testing of the thongs found in the side yard of the complainant’s house, ownership of which the members of the complainant’s house disclaimed; and • the directions given to the jury that it was for the prosecution to prove the case and that the appellants bore no onus and did not have to prove anything. 75 These matters highlight the strength of the prosecution case. We add to them the CCTV footage from a nearby house that recorded a female’s voice saying, ‘You fucking cunt. Come out you coward. You fucking coward’. This is consistent with the complainant’s account. However, there was some dispute about what precisely was recorded on this footage. In particular, as noted above, there was a dispute about whether the woman’s voice could also be heard to say, ‘Damien, he has a knife’, or ‘Damien, grab the knife’. 76 There was also evidence consistent with the defence case. There was blood inside the entry to Ms Piccinin’s house. That blood was never tested. Its presence was consistent with something having occurred at the entry to the house, potentially consistent with the appellants’ case but, of course, not inconsistent with the prosecution case. 77 As to the evidence associated with the thongs, Mr Edwards submitted that the consistency of that evidence with the prosecution case depended on acceptance of the evidence of the neighbours that they did not belong to them. The force of that submission in opposition to the application of the proviso was weakened, however, by the fact that the neighbours’ evidence in this regard was not challenged. 78 The objective evidence favours the conclusion that there was an altercation at the complainant’s house. That physical evidence indicates improbabilities in the appellants’ accounts. However, this was not a case where the treatment, in summing up, of the accounts given by Mr Edwards and Ms Piccinin in the respective recordings was of little significance in the determination of the real issue in the trial.33 The improbabilities in the appellants’ accounts are not so fantastical as to require this Court to not entertain them.34 This case depended heavily on the credibility of the complainant in the first instance and the members of his family. In Boyle (A Pseudonym) v The Queen, this Court said:35 The significance of the advantages of a trial court in finding facts in cases turning on an assessment of the credibility and reliability of witness evidence are well understood in applying the proviso. Decisions relating to the proviso recognise that, in cases which turn on issues of contested credibility and where the error or irregularity precludes the appellate court from giving any significant weight to the jury’s verdict, the appellate court cannot be satisfied that guilt has been proved regardless of the apparent strength of the prosecution 33 Hofer v The Queen (2021) 95 ALJR 937 at [76] (Kiefel CJ, Keane and Gleeson JJ). 34 Cf. Hofer v The Queen (2021) 95 ALJR 937 at [71] (Kiefel CJ, Keane and Gleeson JJ). 35 Boyle (A Pseudonym) v The Queen [2022] SASCA 50 at [145]. -- 21 of 22 -- [2023] SASCA 113 The Court 20 case. That is, the natural limitations of proceeding on the record may preclude a conclusion that guilt was proved beyond reasonable doubt.36 In Kalbasi v Western Australia,37 Kiefel CJ, Bell, Keane and Gordon JJ noted that in “cases which turn on issues of contested credibility”, an appellate court may be prevented “from being able to assess whether guilt was proved to the criminal standard”.38 (Footnotes in original) 79 The treatment by the Court of what were said on the prosecution case to be lies by both Mr Edwards and Ms Piccinin had the potential to interfere markedly with the jury’s assessment of the credibility of the respective accounts. Notwithstanding the strength of the prosecution case, the contest of credibility was such that it is not possible for this Court to assess whether guilt was proved to the criminal standard, notwithstanding the erroneous directions. We would not apply the proviso. Conclusion 80 It is not necessary to determine the other grounds of appeal. We grant permission to both appellants to appeal on Ground 1, allow the appeal, quash the convictions and order that the charges be remitted for retrial. It is not necessary to consider Ms Piccinin’s appeal against sentence. That appeal should be dismissed on the basis that it has no utility. 36 Castle v The Queen (2016) 259 CLR 449 at [68]; Collins v The Queen (2018) 265 CLR 178 at [36]-[37]; GBF v The Queen (2020) 384 ALR 569. 37 (2018) 264 CLR 62. 38 Kalbasi v Western Australia (2018) 264 CLR 62 at [15]. -- 22 of 22 --