Hargraves v The Queen; Stoten v The Queen [2011] HCA 44 (26 October 2011)


Criminal law – Trial – Directions to jury – Appellants convicted of charges arising from tax avoidance scheme – Appellants’ dishonesty only issue at trial – Appellants gave evidence – Prosecution called appellants’ accountant as witness – Appellants’ counsel cross-examined accountant suggesting he tailored evidence to avoid own prosecution – Trial judge told jury they could evaluate credibility by considering a witness’s “interest in the subject matter of the evidence” including “self-protection” – Whether misdirection causing miscarriage of justice – Whether direction deflected jury from need to be persuaded beyond reasonable doubt of appellants’ guilt – Whether direction invited jury to test appellants’ evidence according to appellants’ interest in outcome of trial – Principles applicable to directions about evaluation of evidence.

42 As has been repeatedly pointed out[30], the judge in a criminal trial must accept the responsibility of deciding what are the real issues in the case, must tell the jury what those issues are, and must instruct the jury on so much of the law as the jury needs to know to decide those issues. The trial judge may, but need not, comment on the facts of the case[31]. The trial judge may, but need not, suggest how the jury might evaluate the credibility of evidence that has been given. In some circumstances the common law[32] or statute[33] may require the trial judge to give a particular warning to the jury about factual issues. But informing and underpinning all of these requirements is that the judge’s instructions to the jury, whether by way of legal direction or judicial commentary on the facts, must not deflect the jury’s attention from the need to be persuaded beyond reasonable doubt of the accused’s guilt before returning a verdict of guilty.

[33] See, for example, Evidence Act 1995 (Cth), s 165.