GBF v The Queen [2020] HCA 40

HIGH COURT OF AUSTRALIA

KIEFEL CJ, BELL, KEANE, GORDON AND EDELMAN JJ

GBF APPELLANT

AND

THE QUEEN RESPONDENT

GBF v The Queen [2020] HCA 40 Date of Hearing: 10 September 2020 Date of Judgment: 4 November 2020 B18/2020

ORDER

1. Appeal allowed.

2. Set aside the orders of the Court of Appeal of the Supreme Court of Queensland made on 1 February 2019 and, in lieu thereof, order that the appeal to that Court be allowed and the appellant's convictions be set aside and a new trial be had.

On appeal from the Supreme Court of Queensland

Representation

S C Holt QC with M J Jackson for the appellant (instructed by Legal Aid Queensland)

C W Heaton QC with C N Marco for the respondent (instructed by Office of the Director of Public Prosecutions (Qld))

Notice: This copy of the Court's Reasons for Judgment is subject to formal revision prior to publication in the Commonwealth Law Reports.

CATCHWORDS

GBF v The Queen

Criminal practice – Trial – Directions to jury – Where appellant charged in seven counts with sexual offences allegedly committed against complainant half-sister when she was 13 and 14 years old – Where prosecution case wholly dependent on acceptance of complainant's evidence – Where appellant did not give or call evidence at trial – Where trial judge directed jury in unexceptional terms with respect to presumption of innocence and onus and standard of proof – Where trial judge later stated that failure of appellant to give sworn evidence "may make it easier" to assess complainant's credibility ("impugned statement") – Where neither prosecutor nor defence counsel applied for redirection arising from making of impugned statement – Whether impugned statement occasioned miscarriage of justice because its effect was to invite jury to reason to appellant's guilt from his exercise of right to silence – Whether influence of impugned statement weakened because it was comment not direction of law – Whether failure of either counsel to seek redirection weighed against conclusion that integrity of trial compromised – Whether impugned statement ambiguous such that there was no reasonable possibility jury would have felt it open to reason impermissibly.