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Court of Criminal Appeal 10 June 2026

Paulley v R

[2026] NSWCCA 75

Sexual offences
CRIME APPEALS APPEAL AGAINST CONVICTION CONSCIOUSNESS OF GUILT REASONING DIRECTION S DID NOT CURE PREJUDICE MISCARRIAGE ESTABLISHED CRIME

Citation: Paulley v R [2026] NSWCCA 75
Court: NSW Court of Criminal Appeal
Date: 10 June 2026
Judge(s): Kirk JA; Emmett J; Roberts J

Background

The appellant was tried jointly in the District Court with a co-accused on charges arising from a single incident on 21 November 2021. He was convicted of six counts of a sexual nature (four alleged to have been committed in company with the co-accused) and one count of choking, all involving the same complainant.

Both the appellant and co-accused gave evidence at trial. A key piece of evidence was a transcript of text messages exchanged between them on the morning after the alleged offending. The Crown case was that those messages demonstrated an agreement to fabricate a "mutually false account," namely that the co-accused had not performed any sexual acts.

The appellant sought an extension of time and leave to appeal on two grounds. First, that the Crown Prosecutor improperly invited the jury to reason from the appellant's entire trial evidence as a consciousness of guilt lie. Second, that the Crown Prosecutor's conduct during cross-examination and closing address collectively caused a miscarriage of justice.

  • Whether the Crown Prosecutor's submission that the appellant's entire evidence at trial constituted a consciousness of guilt lie involved impermissibly circular reasoning, and whether that reasoning caused a miscarriage of justice.
  • Whether the trial judge's directions, including an Edwards direction and a Liberato direction, were sufficient to cure any resulting prejudice.
  • Whether various aspects of the Crown Prosecutor's conduct during cross-examination and closing address, including personal commentary on the appellant's evidence, mischaracterisation of evidence, improper collusion questioning, compound questions, and inviting the appellant to comment on the complainant's evidence and on defence counsel's examination, cumulatively amounted to prosecutorial misconduct causing a miscarriage of justice.

Decision

Ground 1: Consciousness of guilt reasoning

An Edwards direction is the standard judicial instruction that if a jury disbelieves an accused's lie, and is satisfied it was told because the accused was conscious of guilt, that disbelief may be used as circumstantial evidence of guilt. A Liberato direction addresses how a jury should approach a contest between the accused's account and the complainant's. The Crown Prosecutor here, rather than identifying specific provably false assertions, invited the jury to treat the appellant's entire evidence as a deliberate lie demonstrating consciousness of guilt. The Court found that reasoning was impermissibly circular: it used disbelief of the accused's denial of the offences themselves as proof of those very offences.

The trial judge's summing up, while including correct Edwards and Liberato directions, adopted the Crown Prosecutor's phrase "mutually false account" in describing how the fabricated account "continued" through to the accused's trial evidence. Although plainly unintentional, that phrasing had the capacity to echo the Crown Prosecutor's erroneous submission. The Crown Prosecutor's approach was directly at odds with the Liberato direction and went to the fundamental question of how the jury should treat the accused's account of the charged acts. No redirection was sought by trial counsel, but the Court found there was no objective forensic benefit in failing to do so.

The Court held that the absence of a corrective direction created a realistic possibility that the jury reasoned in the erroneous way the Crown Prosecutor had urged. The error or irregularity could realistically have affected the jury's reasoning to its verdict, and a miscarriage of justice was established.

Ground 2: Prosecutorial misconduct

The Court articulated the test for prosecutorial misconduct as whether, viewed in context, the Crown Prosecutor's conduct was liable to distract or divert the jury from its proper task to an extent which could realistically have affected its reasoning to a verdict. Some degree of unfair or improper conduct was established across all six categories of complaint raised by the appellant, including personal commentary, mischaracterisation of evidence, improper collusion questioning, compound questions, and invitations to comment on the complainant's evidence and defence counsel's conduct. However, the degree of prejudice varied across those categories.

The most significant concern was the Crown Prosecutor's compound questioning and closing address about a specific aspect of the alleged assault. Even so, viewed in the full context of the trial, including other parts of the closing address and the trial judge's summing up, that conduct was not liable to divert the jury from its proper task. The Court noted that where trial counsel did not object, a starting assumption applies that counsel present in the trial atmosphere saw no injustice or error. Viewed cumulatively, the conduct did not so affect or permeate the trial as to have denied the appellant a fair trial. Ground 2 was not made out.

Orders Made

  • Time for filing the notice of appeal extended to 8 December 2025.
  • Leave to appeal granted.
  • Appeal upheld.
  • All convictions on the indictment filed 22 September 2023 quashed.
  • New trial ordered.
  • Matter listed in the arraignment list in the District Court on 16 June 2026.

Key Takeaways

  • Treating an accused's entire trial evidence as a consciousness of guilt lie is impermissibly circular: it uses disbelief of the accused's denial of the offences as circumstantial proof of those same offences, directly conflicting with a Liberato direction.
  • Where a Crown Prosecutor advances erroneous consciousness of guilt reasoning, a corrective direction is necessary. The absence of such a direction may constitute a miscarriage of justice even where correct Edwards and Liberato directions were otherwise given.
  • Adoption of the Crown Prosecutor's terminology in a trial judge's summing up, even unintentionally, can have the capacity to endorse impermissible reasoning and contribute to a miscarriage of justice.
  • Some degree of improper conduct by a prosecutor does not automatically establish a miscarriage of justice. The Court of Criminal Appeal confirmed the operative question is whether the conduct, viewed cumulatively and in context, was liable to divert the jury from its proper task to an extent which could realistically have affected its verdict.
  • A failure by trial counsel to object to a prosecutor's conduct may indicate counsel saw no injustice at the time, and this remains a relevant consideration on appeal even where the formal rule requiring prior objection does not apply directly.

Legislation and Cases Referenced

Legislation
- Criminal Appeal Act 1912 (NSW), ss 5(1)(b), 6(1), 8
- Supreme Court (Criminal Appeal) Rules 2021 (NSW), r 4.15

Cases
- Edwards v The Queen (1993) 178 CLR 193; [1993] HCA 63
- Liberato v The Queen (1985) 159 CLR 507; [1985] HCA 66
- Brawn v The King (2025) 99 ALJR 872; [2025] HCA 20
- Hofer v The Queen (2021) 274 CLR 351; [2021] HCA 36
- Hargraves v The Queen (2011) 245 CLR 257; [2011] HCA 44
- Huxley v The Queen [2023] HCA 40; (2023) 98 ALJR 62
- LPDT v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2024) 280 CLR 321; [2024] HCA 12
- Libke v The Queen (2007) 230 CLR 559; [2007] HCA 30
- Whitehorn v The Queen (1983) 152 CLR 657; [1983] HCA 42
- R v Lane [2011] NSWCCA 157; (2011) 221 A Crim R 309
- Hughes v R (2015) 93 NSWLR 474; [2015] NSWCCA 330
- Crockford v R [2022] NSWCCA 115; (2022) 100 MVR 206
- Gardiner v R [2026] NSWCCA 44
- Glenn (a pseudonym) v R [2020] NSWCCA 308
- LH v R [2024] NSWCCA 165
- Livermore v The Queen (2006) 67 NSWLR 659; [2006] NSWCCA 334
- Lyndon v R [2014] NSWCCA 112
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