Causevic v R

[2008] NSWCCA 238

New South Wales
Court of Criminal Appeal

CITATION:	Causevic v R [2008] NSWCCA 238
HEARING DATE(S):	13 August 2008
JUDGMENT DATE:	14 October 2008
JUDGMENT OF:	McClellan CJ at CL at 1; Barr J at 50; Price J at 51
DECISION:	Appeal dismissed.
CATCHWORDS:	CRIMINAL LAW – Appeal against conviction – Malicious wounding with intent to inflict grievous bodily harm – Conduct of prosecutor in addressing the jury – Whether prosecutor’s comments were improper and prejudicial – Whether prosecutor’s submission not based on the evidence – Whether prosecutor conveyed personal opinion – Whether prosecutor encouraged impermissible line of reasoning – Whether prosecutor belittled and disparaged the defence case
LEGISLATION CITED:	Crimes Act 1900
CATEGORY:	Principal judgment
CASES CITED:	Gonzales v R [2007] NSWCCA 321 Libke v The Queen (2007) 230 CLR 559; (2007) 81 ALJR 1309 Livermore v R [2006] NSWCCA 334; (2006) 67 NSWLR 659 Puchalski v R [2007] NSWCCA 220 R v Ita (2003) 139 A Crim R 340 R v Jovanovic (1997) 42 NSWLR 520 R v KNP [2006] NSWCCA 213; (2006) 66 NSWLR 227 R v Liristis (2004) 146 A Crim R 547 R v McCullough (1982) 6 A Crim R 274 R v Rugari (2001) 122 A Crim R 1 R v Saffron (1989) 17 NSWLR 395 at 434 R v Smith [2000] NSWCCA 468 South v R [2007] NSWCCA 117 Tekely & Nagle v R [2007] NSWCCA 75 Whitehorn v The Queen (1983) 152 CLR 657 Wilson v R [2006] NSWCCA 217 [55]
PARTIES:	Damir Causevic (Appellant) The Crown
FILE NUMBER(S):	CCA 2007/4043
COUNSEL:	T Gartelmann (Appellant) D Arnott SC (Crown)
SOLICITORS:	Legal Aid Commission of NSW (Appellant) Director of Public Prosecutions (Crown)
LOWER COURT JURISDICTION:	District Court
LOWER COURT FILE NUMBER(S):	06/11/0887
LOWER COURT JUDICIAL OFFICER:	Ainslie-Wallace DCJ
LOWER COURT DATE OF DECISION:	31 August 2007

4043/2007

McCLELLAN CJ at CL
BARR J
PRICE J

TUESDAY 14 OCTOBER 2008

CAUSEVIC, Damir v R

Judgment

1 McCLELLAN CJ at CL: The appellant was convicted of maliciously wounding Jim Murray with intent to inflict grievous bodily harm contrary to s 33 of the Crimes Act 1900. He appeals against that conviction. He raises one ground of appeal being that the Crown Prosecutor’s final address to the jury gave rise to a miscarriage of justice.

2 There was no complaint by defence counsel at the trial about the prosecutor’s address and rule 4 must be considered (see R v Saffron (1989) 17 NSWLR 395 at 434; R v Ita (2003) 139 A Crim R 340 at [90]; Tekely & Nagle v R [2007] NSWCCA 75 at [89]. In an affidavit read without objection on the appeal trial counsel said that he “failed to raise any objection at trial to the Crown Prosecutor’s closing address because at the time I failed to recognise his submissions as being, in part, the pressing of his own opinions on the jury rather than argument on the evidence.”

3 The principles which guide a prosecutor’s function when addressing a jury in a criminal trial are well known: see R v McCullough (1982) 6 A Crim R 274; Whitehorn v The Queen (1983) 152 CLR 657; R v Rugari (2001) 122 A Crim R 1; Libke v The Queen (2007) 230 CLR 559; (2007) 81 ALJR 1309; R v Liristis (2004) 146 A Crim R 547; Livermore v R [2006] NSWCCA 334; (2006) 67 NSWLR 659; R v KNP [2006] NSWCCA 213; (2006) 66 NSWLR 227 and Gonzales v R [2007] NSWCCA 321.

4 The principles relevant to this appeal may be summarised as follows:

· A prosecutor is required to act in fairness and detachment and with the objective of establishing the whole truth (Whitehorn at 663).

· Although the Crown is entitled to put the Crown case firmly and vigorously this must always be done fairly, temperately and with detachment and restraint, bearing in mind that the prosecutor’s function is to aid the attainment of justice, not the securing of convictions (see Liristis at [94]).

· Whether or not the prosecutor has acted with the relevant degree of fairness and detachment may depend upon the atmosphere of a particular trial (see McCullough at 286).

· In considering the question of fairness it is necessary to keep in mind that a criminal trial is of an adversarial nature (see Rugari at [52]; Libke [71] and [72]).

· When complaint is made it is necessary to consider whether the prosecutor’s conduct was such as to distract the jury from rational consideration of the case of the Crown and the defence (see Gonzales at [100]). It is wrong for a Crown prosecutor to become so much the advocate that he or she is fighting for a conviction and to quite impermissibly embark upon a course of conduct calculated to persuade a jury of a point of view by inspiring prejudice or emotion (see R v Roulston (1976) 2 NZLR 644 at 354).

5 In Livermore the court identified a number of matters in a Crown prosecutor’s address which could lead to a miscarriage of justice (at [31]):

(i) A submission to the jury based upon material which is not in evidence.
(ii) Intemperate or inflammatory comments, tending to arouse prejudice or emotion in the jury.
(iii) Comments which belittle or ridicule any part of an accused’s case.
(iv) Impugning the credit of a Crown witness, where the witness was not afforded the opportunity of responding to an attack upon their credit.
(v) Conveying to the jury the Crown Prosecutor’s personal opinions.

6 When it is submitted that a trial has miscarried by reason of the prosecutor’s address it is necessary to consider the whole of that address. Each case will depend upon its particular circumstances.

Facts

7 In the present case the appellant and his alleged victim were residents of a private hotel in the Haymarket. The hotel provided single rooms for its occupants. The appellant occupied room 64 on the third floor. Mr Murray, the complainant, lived directly below him in room 45.

8 Mr Murray said that on the evening of 13 July 2006 the appellant was making a great deal of noise above him. He said that he had heard a sound from upstairs “like somebody using a trampoline in the room above me … it was constant until I got up and knocked on the roof and asked him to stop.” He said there were a few “fuck offs” bantered backwards and forwards and then the noise “proceeded to get worse.” There was a history of unpleasantness between the appellant and Mr Murray who said “… there was always music going on”. Ultimately, on this occasion, Mr Murray had said to the appellant “if he didn’t cut it out I was going to come up and make him cut it out, and that I would meet him halfway up the flight of stairs.” He said he got half way to the landing and there was nobody there. He asked the appellant where he was and he said he replied “I’ll meet you out there.” He then said “Well, I’m already here.” Mr Murray said “… I went to the top of the landing to see where he was and there was still no sign of him, so I put my glasses on … and went to go back downstairs … the next thing I had no glasses left on my face … I felt something hit me on this [the left] side of my head.”

9 Mr Murray was stabbed with a knife in his neck, left chest and left elbow. He had a deep stab wound to his neck below the left ear. There was no doubt that the appellant had inflicted these wounds. The principal issues in the case were whether or not the appellant had intended to harm Mr Murray and whether he had acted in self-defence. A subsidiary issue was whether if acting in self-defence he had used excessive force. Of significance to the resolution of these issues was whether Mr Murray was also carrying a knife.

10 The appellant did not give evidence but relied upon the account he gave to the police. In that account he said that Mr Murray had come up the stairs, knocked on the door of his room and then attacked him: first with punches and kicks and then threatened to kill him with a knife which was wrapped in some sort of pamphlet or magazine quality paper fashioned into a scabbard. The appellant claimed that following an attack by the complainant, he crawled to the kitchen and grabbed a knife to protect himself. He said that he “tried frantically to kill (Mr Murray). I wanted to stab him, I just went berserk.” As it happens the appellant suffered only superficial injuries. He was never stabbed.

11 Another resident of the hotel, Mr Grant, occupied a room on the same floor as the appellant. His evidence was that he heard a knock on the appellant’s front door then, he said, “All of a sudden it sounded like they were fighting, then it stopped.” Mr Grant did not see any of the relevant events.

12 The Crown case was that there were a number of circumstances which supported Mr Murray’s account that it was the appellant who had attacked him rather than the other way round. They included the following:

· The knife which the appellant suggested Mr Murray carried was not located nor was any paper sheath.

· At one stage of his interview with police the appellant told them that he was bleeding profusely on the floor as he crawled to his cupboard to get the knife. No blood was found in his unit consistent with this allegation.

· The injuries which he claimed to have suffered were not consistent with those observed by the ambulance officer called to the hotel.

· Although the appellant said he was punched and kicked by Mr Murray there was only evidence of a minor abrasion to his forehead.

· The appellant told police he stabbed Mr Murray once. In fact he stabbed him multiple times.

· Mr Murray’s account of being attacked by surprise and feeling a blow to the left side of his cheek which stung was consistent with the stab wound found in his neck behind his left ear. His evidence was consistent with the position in which his glasses were found in the corridor. The pools of blood on the floor were found outside the appellant’s room.

· The appellant did not seek help or report the matter to anyone after he was allegedly attacked. This was inconsistent with his claim that he was the victim.

The Crown Prosecutor’s address

13 The appellant submitted that the Crown Prosecutor’s final address to the jury led to a miscarriage of justice because of four matters:

1. The prosecutor made a submission not based on the evidence.
2. The prosecutor conveyed personal opinions or views about the evidence.
3. The prosecutor did not put to the principal Crown witness that he was mistaken about certain facts before making this submission to the jury and invoked an impermissible line of reasoning about the matter.
4. The Crown Prosecutor belittled and disparaged the appellant’s case.

A submission not based on the evidence?

14 This issue arises because of an apparent inconsistency between the evidence of Mr Murray and that of the witness Mr Grant. Mr Grant did not give oral evidence.

15 I have related the essence of Mr Murray’s evidence in [8].

16 When cross-examined he denied that he went to the appellant’s door, thumped or kicked it or hit the appellant in the face when he opened the door.

17 Mr Grant’s evidence was that he heard a knock on the door followed by the sounds of an altercation. As I have related in [10] the appellant said in his ERISP that Mr Murray came to his door.

18 In his final address to the jury the Crown Prosecutor accepted that Mr Murray’s account of the sequence of events was not correct. In the course of his address he said the following:

“Don’t think at all, ladies and gentlemen, this is a case of Mr Murray being the aggressor in any real sense of the word. Yes, he was angry. Yes, he gave warning that he was on his way to see the accused. But think of the consequences of those two things. If you know that a person is angry with you because you’ve disturbed him, you know you disturbed them because of the noise. He had already shouted out to him what the source of the annoyance was. The accused knew why Mr Murray was on his way up to see him; and he opened the door. He opened the door. He chose not just to meet Mr Murray, I say, but attack him.
Mr Murray said that he reached the point, if I understood his evidence correctly – but if you understood it differently, then that’s a matter for you; you can go back and check these things. But the impression I got from Mr Murray was that he didn’t make it as far as the door; and the number 64. He stopped a little way short of that before deciding to turn around and started his way back.
I’m going to suggest to you that Mr Murray was wrong about that. I’ve thought about the way that the evidence unfolded, all of the evidence. And I actually think Mr Murray was wrong about that and I’ll tell you why, a couple of reasons .. (not transcribable) .. when I looked at the photographs, it occurred to me that most of the blood in that whole place was immediately outside the door of number 64. Someone outside of number 64 had been bleeding very heavily and of course it was Mr Murray.
That suggested to me, as it may suggest to you, that Mr Murray did make it as far as the door to number 64 another fact [sic]. And again, it only occurred to me after we heard the officer admit to Mr Crawford-Fish [counsel for the appellant at the trial] that – I beg your pardon. It was me who asked an officer yesterday about a conversation that was had with Mr Grant, one of the neighbours, do you remember the one that I’m talking about that conversation and Mr Grant said that he [heard] noises from next door. He heard shouting and he said he heard banging on the door. And then he heard shouting immediately afterwards.
So what if Mr Murray did make it as far as the door? What if he did bang on it as one would expect this is in the evening from someone who was going up to remonstrate his noisy neighbour. What if things were a little bit different? What if things happened to that extent the way that the accused told police they happened in his ERISP, in his interview? He said that Mr Murray came to his door and banged on it. This is one of the important features of trial by jury just as her Honour told you at the beginning of the case. You have the ability, in fact you have the duty in making an assessment of the witness to say whether or not you can rely on your evidence because most things seem to be right, most things are consistent with your experience of the world and the way that things happen. Some things may be right. Do you reject the whole of the witness’s evidence? That’s a matter for you.
I would suggest to you that Mr Murray in being incorrect if my analysis is right about actually getting to the room doesn’t amount to a ..(not transcribable)..it doesn’t mean anything. And this is why – look at all the other things he was honest with you about, the anger, the approach; saying that he was ready for a confrontation. Why would he lie to you; that is, knowingly tell you an untruth, try and change things about such a simple little thing as moving an extra couple of steps and knocking on the door? Why would he lie? I would suggest to you that he wasn’t lying, he wasn’t knowingly telling you an untruth. He was simply mistaken.
Mr Crawford-Fish, I’m sure, as his duty demands him will remind you of other areas in which Mr Murray had made small mistakes or didn’t remember things on this occasion as he had in the previous trial or in the statement he made to police. Hand up if you have a perfect memory. I haven’t met a human being once who does. But your duty, ladies and gentlemen is to say whether or not you can forgive the mistakes and still find Mr Murray a reliable witness and I would invite you to do exactly that. For reasons that I haven’t yet finished..(not transcribable).. there is more. And these are some of the things.
I suggest that on my analysis Mr Murray has arrived at the door. He’s knocked on the door loudly. What happened after that? Well, according to the accused as soon as he opens it Mr Murray launches at him with a flurry of blows to the face and knocks him down. It was only after, according to the accused’s version in the evidence, it was only after a number of blows had been delivered that he knocked the accused backwards into his own room that he was able to eventually arm himself with a knife. And he said, if I remember correctly, that he did that after seeing Mr Murray pull up his shirt and reveal a knife in a paper scabbard, a magazine sheath wrapped around it, tucked into his trousers. Does that have the ring of truth about it?
Here’s an armed man, armed with a knife, who goes into a room intending violence of the most serious kind. Why didn’t he use the knife first up? Why didn’t he just launch at the accused with the knife as soon as he opened the door? Why would he give another man with whom he was angry and whom he, Mr Murray, had intended to stab, why would he give him the chance to do what he did; and that’s being armed himself, why would he give him a chance to defend himself? Why wouldn’t he launch into a life-threatening attack with a knife as soon as the door ws opened/ Why bother with punches to the head at all? And I say the answer to that rhetorical question I’ve just posed is that: it is nonsense. It’s rubbish. I say what the accuse put forward is a version of this event to the police in his ERISP cannot be relied upon as an accurate version at all; save with the exception of this, he was right perhaps about Mr Murray making it as far as the door.
What happened, I suggest, ladies and gentlemen, is this: when the door was opened the accused was ready with the knife. He knew he was coming up the stairs. He’d had a shouted warning. Herein comes the twisted version of that old myth, the siren’s song. Was it the case the accused left the noise up loud even though he heard his neighbour shouting, remonstrating with him downstairs, threatening to come up and throw him out the window? Did he turn the sound down? Did he turn if off for fear that he was upsetting someone or that he might provoke violence? No.
He knew, the accused knew that Mr Murray was coming up to confront him. He knew he was angry so he was ready for him and that continued loud noise was a twisted version of a siren’s song. He left it on knowing that that would draw Mr Murray up the stairs and to his door and that’s precisely what it did. And when he opened that door, he was ready for him and he stabbed him. And he stabbed him multiple times. And he caused him very serious harm.”

19 The dilemma faced by the prosecutor was readily apparent from the objective evidence. Two significant pools of blood, which must have come from Mr Murray, were observed immediately outside the door to the appellant’s room. One appeared to extend inside the room. A trail of blood spots proceeded from these pools back toward the stairs. The presence of the pools of blood at the appellant’s door was inconsistent with the complainant’s testimony that he did not reach the doorway.

20 Although the prosecutor’s submission did not adopt Mr Murray’s account of the sequence of events, his submission was nevertheless based on the evidence. It was consistent with Mr Grant’s evidence, and in relation to the events prior to the altercation, consistent with the appellant’s statement to the police. In respect of the events which followed the jury were required to determine whether to accept Mr Murray’s evidence that he was attacked by the appellant with a knife, or the appellant’s case that he was forced to defend himself from Mr Murray’s attack.

21 As it happens by putting the matter before the jury as he did the prosecutor’s analysis of the evidence was, if anything of assistance to the appellant. The prosecutor invited the jury to reject as unreliable part of Mr Murray’s evidence. This not only gave rise to the possibility that other parts of his evidence may not be reliable, but also meant that Mr Murray had arrived at the appellant’s door at the very least in an angry mood.

22 In her summing up the trial judge clearly and in a balanced manner reminded the jury of both the Crown case and the case for the appellant. Her Honour said:

“The crown case is that Mr Murray is reliable and that you would accept his account of what happened on 13 and 14 July last year. The crown argued that if there are inconsistencies in his account they are minor and do not undermine his reliability. It is the crown case that Mr Murray went upstairs to the floor above to have a go at the accused about the noise and Mr Murray was prepared for a fight. It is the crown case that Mr Murray was not armed with a knife and the crown case is that the accused waited for Mr Murray and attacked him with a knife when he came upstairs when he opened the door. The crown case is that you would not accept the accused’s account of what happened, his injuries are not consistent with it, the injuries to Mr Murray support Mr Murray’s account of the fight and no knife was found.
The crown case is that the accused deliberately stabbed Mr Murray in the neck and upper chest and in so doing intended to cause Mr Murray serious physical injury. The crown case is that you would not be satisfied that the accused was acting in self-defence or you would be satisfied beyond reasonable doubt that the crown had eliminated self-defence. The crown case is that the accused did not have to open the door, he could have stayed in his room and not engaged with Mr Murray. The crown case is that stabbing Mr Murray was not a reasonable response by the accused to Mr Murray because Mr Murray was not armed with a knife.
The defence case is that you would not find that Mr Murray is reliable. You would find that he was carrying a knife and he went upstairs to the accused’s room armed with a knife. It was argued that Mr Murray’s account was inconsistent in a number of respects which were not minor and which, the defence says, undermines his reliability to the extent that you could not rely on it in determining the crown case. The defence case is that Mr Murray came to the accused’s door and as soon as the accused opened the door he was physically attacked, blows were struck and he was knocked to the ground, which is when Mr Murray took a knife from the waistband of his trousers and held it so that the accused grabbed a knife in fear for his own life and a scuffle ensued in which Mr Murray was wounded.
It is the defence case that the objective evidence, the evidence of the photos, the position of the blood, the position of the glasses and the wounds, support the accused’s account of the fight. The defence case is that what the accused said to the police at the scene and later on adopted in his recorded interview that you have seen was consistent and reasonable. It is the defence case that you would find that Mr Murray was armed with a knife and that the accused’s actions were done in defence of himself, that is, his actions were a reasonable response to the circumstances. He believed that what he did was in his own defence and it was a reasonable response to the circumstances as he perceived them to be.”

23 The critical issue for the jury to determine was whether Mr Murray had come up the stairs having armed himself with a knife. The lack of knife wounds to the appellant, although he claimed that he bled profusely, is a strong indication that the appellant’s account could not be accepted. Given the trauma of the situation it is understandable that Mr Murray may have been confused about the precise sequence. The prosecutor accepted that there was confusion but did not in my view impermissibly put to the jury an account of the events which was not available from the evidence.

Did the Crown Prosecutor convey personal opinions or views about the evidence?

24 On a number of occasions the Crown Prosecutor used expressions such as “I suggest”, “I actually think”, “That suggested to me” and “It occurred to me.” Although on occasions this manner of speaking was of little, if any, consequence that was not always the case.

25 On one occasion the prosecutor said “It occurred to me that most of the blood in that whole place was immediately outside the door of number 64.” The prosecutor should not have advanced his personal view in these terms. However, because the objective evidence was plain and the matter not in dispute this choice of language was not of significance.

26 The use of the expressions “I actually think” and “that suggested to me” were used in relation to a discussion about the position of Mr Murray on the landing when he was attacked. Again, as I have indicated the objective evidence resolved this issue. The blood stains made plain that Mr Murray had been stabbed in the vicinity of the appellant’s door.

27 Although the prosecutor introduced his personal views into the matter he did so in the manner which was different from the prosecutor’s conduct in Livermore. In that case the prosecutor effectively invited the jury to conclude that they were “slow” if they did not agree with him. In the present case, although the prosecutor injected his personal view, with which, although this was unlikely, the jury may not have agreed, any disagreement would not carry with it an inference as to the jury’s attitude to the prosecutor himself.

28 Although the prosecutor made the offending remarks he also reminded the jury that the case turned upon their view of the evidence of Mr Murray. He told them that they were to judge the facts for themselves and that all he was doing was placing arguments before them. The judge reinforced the position when she reminded the jury that counsel’s arguments were not evidence and that they were entitled to take a different approach to that which counsel had submitted.

29 In all the circumstances, although the prosecutor should not have spoken as he did, I do not believe it has led to a miscarriage of justice.

An impermissible line of reasoning - did the witness have a motive to lie?

30 Defence counsel opened the appellant’s case by submitting that Mr Murray was lying when he said he was the victim in the fight rather than the aggressor. He also put to Mr Murray that “You lied to the police about this matter in order to avoid you being charged yourself, didn’t you?” He answered “No”.

31 The issue in this case was clear. Either the appellant was the aggressor or Mr Murray attacked the appellant. On the defence case Mr Murray had told lies to hide the fact that he was the aggressor. Another explanation was that Mr Murray’s recollection was faulty. He was cross-examined in the following terms:

“Q: You were so angry about this noise that what you did, Mr Murray, was that you shoved a knife down your pants, didn’t you?
A: No.
Q: You wrapped it in some sort of paper sheath.
A: No.
Q: You put it down your pants, didn’t you?
A: No.
Q: Or in your pocket.
A: No.
Q: And you went upstairs, you charged upstairs angry, didn’t you?
A: No.
Q: You went straight to Mr Causevic’s door and you thumped on it about ten or more times?
A: No.
Q: You kicked it a number of times?
A: No.
Q: And you screamed, ‘You fucking cut it out, you fucking wog. Open up, you fucking wog cunt.’
A: No.
Q: Mr Causevic opened the door and you smashed him in the face, didn’t you?
A: No.
Q: You hit him in the face at least three times when he opened the door.
A: No.
Q: And you said, ‘I’m going to kill you, you animal cunt.’
A: No.
Q: Mr Causevic, on being hit by you, he fell to the floor with his nose bleeding. Do you agree with that or not?
A: No.
Q: And he was kneeling on the ground at his door, bleeding from his nose, and he was trying to stop it with his hand.
A: (No verbal reply)
Q: You need to answer, Mr Murray
A: No.
Q: He grabbed the doorframe and tried to get up and you stepped back. Do you agree with that or not?
A: No.
Q: You pulled up your guernsey and you took something out from the front of your pants, didn’t you?
A: No.
Q: It was either a black or brown-handled kitchen knife wrapped in shiny coloured paper.
A: No.
Q: Having pulled that out of your pants, you held the knife down the side of your body and you shook the paper sheath off.
A: No.
Q: You then moved towards Mr Causevic with the knife at your side, saying ‘I’m going to fucking kill you.’
A: No.
Q: Mr Causevic scrambled, moved back – was still on the ground. He moved back into his room and you moved in on him then, and you were kicking him while he moved back into his room, kicking him.
A: No.
Q: And you were saying, ‘I’m going to fucking stab you.’
A: No.
Q: Mr Causevic was kicking away at you with his foot and he grabbed a knife from a shelf in his room.
A: No.
Q: He got up and he charged you.
A: No.
Q: Pushing you back out of his room into the hallway.
A: No.
Q: And he was screaming, ‘Stop or I’ll fucking kill you. Stop or I’ll fucking kill you.’
A: No.
Q: You were swinging your knife, weren’t you?
A: No.”

32 As I have indicated in his address the Crown Prosecutor submitted that Mr Murray was mistaken about two related matters: firstly, how far along the corridor on the appellant’s floor he had walked before being attacked and secondly, that he was mistaken in his belief that he had not knocked on the appellant’s door. However, the prosecutor did not, in re-examination, ask the witness whether he may have been mistaken about having knocked on the appellant’s door. The matter was left with Mr Murray’s evidence being inconsistent with the evidence of both Mr Grant and the appellant’s ERISP.

33 It was submitted that it was not open to the Crown Prosecutor to argue that Mr Murray was mistaken when the prosecutor had not put that to the witness. However, this was not a case of the Crown Prosecutor impugning the credit of his own witness, where the witness had not been afforded the opportunity of responding to that attack. It is apparent that it was put to Mr Murray in cross-examination that he had both thumped on the appellant’s door a number of times as well as kicked it. Both assertions were denied by him. The Crown might possibly have sought to ask the witness in re-examination whether he could have been mistaken about having knocked on the appellant’s door. This may or may not have met with an objection – it would effectively have been an invitation to the witness to change his evidence. However, if that was a lost opportunity it was to the advantage of the appellant. That did not prevent the Crown Prosecutor from making a submission to the jury, as happens regularly in trials, that notwithstanding the witness’ evidence on the point he was nonetheless mistaken.

34 A not entirely dissimilar argument to the one advanced by the appellant here was rejected by this Court in Puchalski v R [2007] NSWCCA 220 at [69]-[71]. There the driver of a car, Mr Waterman, had been shot at by the accused (who drove another car) in a spate of road rage. Mr Waterman excluded the accused from a photographic array as the shooter. The complaint that the Crown should have cross-examined Mr Waterman before putting to the jury that he had been mistaken in excluding the accused in the photographic array as the shooter was rejected.

35 Juries are routinely told, as they were in this case, that they can accept the entire evidence of a witness or some parts and reject other parts; that a witness may genuinely believe something to be the case but nonetheless be honestly mistaken; that a witness may be accurate in some respects but inaccurate about others. This is nothing novel. It was never suggested by the Crown Prosecutor that the witness was not telling the truth; merely that the witness was inaccurate in some details when compared to other evidence in the case.

36 Mr Murray had given evidence of taking strong pain killers (Panadeine Forte) as well as having consumed alcohol that night. He spoke of the scuffle with his assailant as being a blur. Apart from stab wounds, he incurred a black eye; four stitches were required for an injury to his cheek as well as other bodily bruises. He had no memory of the time between collapsing and waking up in hospital.

37 In his final address to the jury the prosecutor said: “Another consideration that you might make in the forming of your verdicts is whether Mr Murray himself has any motive to lie, any reason to tell the police or to present himself to the police as a victim rather than as an aggressor, rather than as an attacker.”

38 It is “both imprudent and inadvisable” for the Crown to invite the jury to consider the question of motive to lie, “where the question of motive has not been ventilated in the evidence”, because it risks reversing the onus of proof: Wilson v R [2006] NSWCCA 217 [55] citing R v Smith [2000] NSWCCA 468. These issues were recently addressed by this Court in South v R [2007] NSWCCA 117 where Hunt AJA said:

“41 In Palmer v The Queen (1998) 193 CLR 1 at [8], the majority joint judgment said:
‘To ask an accused the question: "Why would the complainant lie?" is to invite the jury to accept the complainant's evidence unless some positive answer to that question is given by the accused.
As a matter of common sense, such an invitation is also extended to the jury where either the Crown prosecutor or the judge asks the jury the same question.’
42 Where there is evidence that the complainant had a motive to lie, the jury's task is to consider that evidence and to determine whether, in the light of such of that evidence as they accept, they are nevertheless satisfied that the evidence given by the complainant of the commission of the offence charged is true. The jury's task necessarily does not include speculation as to whether there is some other reason why she would lie: Regina v Uhrig CCA 24 October 1996 at 15-16; Palmer v The Queen at [8]). Nor does the jury’s task include acceptance of the complainant's evidence unless some positive answer to that question is given by the accused: Regina v F (1995) 83 A Crim R 502 at 511-512; Palmer v The Queen at [8]).
43 Both the Crown prosecutor and the accused are entitled to put arguments to the jury relating to the evidence of a motive to lie which has been asserted in relation to a witness in the particular case, and a satisfactory summing-up should include reference to those arguments: Regina v Uhrig at 16-17; Palmer v The Queen at [10]–[11]. To invite the jury to go beyond both the evidence supporting the asserted motive on which the accused relies and the evidence denying it on which the Crown relies, and to ask “Why would the complainant lie?” is to suggest to the jury that, in the absence of any other evidence beyond that on which the accused relies, they should accept the complainant’s evidence.
44 The jury should never be asked to go beyond the evidence on which both parties rely to establish or refute a motive to lie and to consider the question “Why would she lie?”. Such a question simply should never be asked.”

39 In the present case the issue of Mr Murray’s suggested motive for lying was ventilated in the evidence.

40 Defence counsel had opened on the proposition that the appellant would say that: “Jimmy Murray is lying when he says to you that he was a victim in relation to this fight, rather than the aggressor”. Further, counsel stated: “Another consideration that you might make in the forming of your verdict is whether Mr Murray himself has any motive to lie, any reason to tell the police or to present himself to the police as a victim rather than as an aggressor, rather than as an attacked”. During the trial defence counsel squarely put to Mr Murray: “You lied to the police about this matter in order to avoid you being charged yourself, didn’t you?” This followed a series of questions which had included the assertions put to Mr Murray that he had banged and kicked on the appellant’s door before attacking him.

41 This was not one of those occasions, unlike many sexual assault cases, where the jury would have inferred, there being no apparent reason for the victim to lie, that the witness must be telling the truth (see R v Jovanovic (1997) 42 NSWLR 520). Either the appellant was the attacker or Mr Murray was the attacker. On the defence case, Mr Murray had told lies to hide the fact that he was the attacker. The Crown was legitimately entitled to offer a reason to rebut that suggestion by suggesting that rather than having lied Mr Murray was simply mistaken.

42 When the prosecutor raised the possibility of Mr Murray lying he did so in the context of a discussion as to the credibility of his evidence about the alleged attack by the appellant. The prosecutor emphasised that Mr Murray had given an account of the events in which he admitted to his anger and determination to confront and deal with the nuisance which he believed was being created by the appellant. All that the prosecutor was effectively saying was that Mr Murray had admitted to doing things which might suggest he was the aggressor. If he was not prepared to lie about those matters the explanation for his evidence about not going to the door may be that he was mistaken but not that he was lying. The remarks by the prosecutor did not invite impermissible speculation by the jury. The motive to lie was clearly identified – to avoid a conclusion that he was the aggressor. All that counsel was asserting was that, given his preparedness to give evidence contrary to his asserted position, he should be accepted as a truthful, if in some respects unreliable, witness, not as a liar.

Did the Crown Prosecutor’s address belittle and disparage the appellant’s case?

43 The appellant complained that the prosecutor used the word “nonsense” on two occasions in his address to the jury. On the first occasion he said:

“You heard about the alleged ferocity of the attack that Mr Murray launched upon the accused when he opened the door? Do you really think that such a big man, all 6 foot 1 of him do you really think he wouldn’t have been able to get in at least one stab with the knife that he was carrying in pants [sic], in his paper scabbard? Another reason I would suggest to you to conclude that this whole allegation Mr Murray was carrying a knife was nonsense …..”

44 Later the prosecutor said:

“… I say that it’s just nonsense that any of this had anything to do with self-defence and I’ll say nothing more about it.”

45 Although the prosecutor expressed himself in strong language I am not persuaded that in the circumstances of this case it was unacceptable. The authorities make plain that the prosecutor was entitled to firmly and vigorously agitate the Crown case. The defence position was not belittled by expressions such as a “cynical defence” (Rugari). Witnesses were not described as idiots or the defence case as being “silly” or “bizarre” or akin to a plot from “Desperate Housewives” (Livermore). In Gonzales this Court accepted, that in the circumstances of that case, it was not inappropriate for the prosecutor to describe the appellant as being “pathetic” and “absolutely pathetic”.

46 Whether or not the language used by a Crown Prosecutor breaches the obligation of temperateness and restraint will depend upon the circumstances of each case. The issues in this case were vigorously debated and Mr Murray cross-examined with some force. Although the prosecutor expressed himself in strong language I do not believe it was unacceptable in the circumstances. It did not occasion a miscarriage of justice.

47 The trial judge was careful to direct the jury that the Crown case rested principally on the evidence of Mr Murray. The jury were told to consider that evidence carefully and determine “whether it is reliable, that is, whether it is an honest and accurate account … it is for you to determine, whether you are satisfied beyond reasonable doubt that Mr Murray is a reliable witness.” They were further reminded that “it is not a matter of choosing between the versions of the accused and Mr Murray” and that their task was to “determine whether the Crown has proved its case beyond reasonable doubt.”

48 In my opinion the ground of appeal agitated fails and the appeal should be dismissed.

The proviso

49 The Crown submitted that notwithstanding the difficulties in the prosecutor’s address the jury would inevitably have convicted the appellant. Although this Court has not had the benefit of Mr Murray giving evidence before it there are a number of critical matters from which it can be concluded that his account of the events should be accepted. The inconsistency between his evidence and the objective facts can be readily explained by the trauma of the occasion. However, this is not the case with the appellant’s account. His evidence contained a number of flaws which I have identified at [10] above, which make it inevitable that his account would be rejected. Having reviewed the complete transcript I am satisfied that this was a strong Crown case. The conviction has not occasioned a miscarriage of justice.

50 BARR J: I agree with McClellan CJ at CL.

51 PRICE J: I agree with McClellan CJ at CL.

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