Fox (a pseudonym) v The King; Richards v The King - [2024] SASCA 57

SUPREME COURT OF SOUTH AUSTRALIA
(Court of Appeal: Criminal)
FOX (A PSEUDONYM) v THE KING; RICHARDS v THE KING
[2024] SASCA 57
Judgment of the Court of Appeal
(The Honourable Justice Lovell, the Honourable Justice David and the Honourable Justice Stein)
9 May 2024
CRIMINAL LAW - APPEAL AND NEW TRIAL - APPEAL AGAINST CONVICTION RECORDED ON GUILTY PLEA
APPEAL AND NEW TRIAL - NEW TRIAL - IN GENERAL AND PARTICULAR GROUNDS - PARTICULAR GROUNDS - MISDIRECTION OR NON-DIRECTION - JUDGE'S SUMMING UP
CRIMINAL LAW - APPEAL AND NEW TRIAL - MISCARRIAGE OF JUSTICE
It was alleged the appellants, Fox and Richards, along with two co-accused, Murch and Mather, broke into two houses with the intention of stealing cannabis. All four accused were tried before a jury. Murch and Mather were acquitted. The appellants were found guilty of two counts of aggravated serious criminal trespass, attempted aggravated robbery, aggravated threatening to cause harm and false imprisonment.
The appellants appeal against their convictions on the grounds that counsel for Murch and Mather, in their closing submissions, breached the rule in Browne v Dunn. The trial Judge refused their application for a mistrial and discharge of the jury. On appeal, the appellants submitted that the refusal by the trial Judge to discharge the jury led to a miscarriage of justice.
Held, per the Court, granting permission to appeal but dismissing the appeal of both appellants:
1. The directions by the trial Judge in relation to both counsel’s submissions had the practical effect of maintaining fairness and nullified any potential prejudice that arose.

2. The directions by the trial Judge did not lead to a miscarriage of justice.
Criminal Procedure Act 1921 (SA) s 158(1)(c), referred to.
Al-Salmani v The King [2023] NSWCCA 83; Browne v Dunn (1893) 6 R 67; Dupas v The Queen (2010) 241 CLR 237; Hofer v The Queen (2021) 274 CLR 351; JGS v The Queen [2020] SASCFC 48; Kuhl v Zurich Financial Services Australia Ltd (2011) 243 CLR 361; Macks v Viscariello (2017) 130 SASR 1; MWJ v The Queen (2005) 80 ALJR 329; NCH v Western Australia [2013] WASCA 29; New South Wales v Canellis (1994) 181 CLR 309; Nudd v The Queen (2006) 80 ALJR 614; Perara-Cathcart v The Queen (2017) 260 CLR 595; R v Birks (1990) 19 NSWLR 677; R v Fenlon (1980) 71 Cr App R 307; R v Glennon (1992) 173 CLR 592, considered.

FOX (A PSEUDONYM) v THE KING; RICHARDS v THE KING
[2024] SASCA 57
Court of Appeal – Criminal: Lovell and David JJA and Stein AJA

THE COURT: Wasleys is a small town situated a few kilometres north-west of Gawler. Geoffrey Bown and Shaun Richards lived in adjoining properties in Wasleys, and both grew cannabis on their respective properties. The prosecution alleged that on 29 March 2020 at about 3.45 am, a group of four or five offenders broke into the adjoining houses intending to steal cannabis. Bown was assaulted and tied up. Shaun Richards confronted the intruder who broke into his house and struck him several times with a machete. This person, later identified as the accused Fox, was seriously injured. After Fox was injured, he and the other offenders fled the scene. Fox was taken to the Balaklava Hospital where he received emergency medical treatment.
The appellants, Fox and Jeremy Richards, along with two co-accused, Murch and Mather, were jointly tried before a jury for allegedly breaking into the two homes intending to steal cannabis. Murch and Mather were acquitted. The appellants were found guilty and convicted of two counts of aggravated serious criminal trespass, attempted aggravated robbery, aggravated threatening to cause harm and false imprisonment.
The appellants appeal against their convictions. Both contend that during closing submissions, counsel for both Murch and Mather breached the rule in Browne v Dunn.[1] The appellants applied for a mistrial which the trial Judge refused. On appeal, the appellants submitted that the breach of the rule in Browne v Dunn and the trial Judge’s refusal to discharge the jury led to a miscarriage of justice.
[1] (1893) 6 R 67.
Prosecution evidence
Bown and Shaun Richards were neighbours who shared a boundary fence. They both grew cannabis. The prosecution alleged that the appellants Fox and Richards, along with Murch, Mather and a female, Coller, became aware that cannabis was being grown at the premises and planned to steal it.
The prosecution alleged that on 29 March 2020 at about 3.45 am, the four accused plus Coller, attended Bown and Shaun Richards’ houses. They arrived in two cars that had false or obscured number plates. The offenders were armed and wearing dark clothing, gloves and masks. Coller may have stayed in the vehicle.
Two offenders confronted Bown and demanded to know where the cannabis was. Bown was threatened, assaulted and tied up. He was taken outside and placed against the boot of a car. He heard people cutting down his crop while one offender stood guard over him. The offenders then left after Fox was injured. Bown was later untied by his partner.
The prosecution alleged that Fox broke into Shaun Richards’ house through the kitchen window. Shaun Richards heard glass breaking and saw the offender climbing through a broken window in the kitchen. The police later observed shattered glass inside the house consistent with someone breaking into the house. Grabbing a machete from his bedroom, Shaun Richards confronted Fox who was in the house and struck him. At this time, Shaun Richards saw another person standing outside the window holding a gun. Fox was badly injured and bleeding. Fox was later identified from the injuries sustained during the altercation.
After Fox was struck with the machete, the offenders fled the scene.
The prosecution case was that two cars left the scene, one of which was driven by Coller. Coller, while driving away from the premises, called emergency services at 4.06 am. This call was recorded and the recording was played to the jury. Part of this recording was the focus of submissions at trial. At some point during this call, or shortly after, Fox was transferred from Coller’s car (a Holden Statesman) to the car that was driven by Murch (a Holden Caprice). Murch then drove Fox to Balaklava Hospital along with Mather and Richards. At the hospital Fox required emergency medical treatment.
Mather stayed with Fox at Balaklava Hospital where they were both eventually arrested. Murch and Richards left the hospital in the Holden Caprice. At about 5.48 am, their car was stopped by police and the two accused were arrested. Upon searching the vehicle, police located four pairs of gloves and a “Scream” mask. DNA consistent with the profiles of the victim Bown, as well as Fox and Richards, were found on one glove. DNA consistent with Murch was located on the mask.
The police located Coller’s Holden Statesman at around 5.00 am. A search of the car revealed a shortened .22 rifle, a blood-stained (later identified as Fox’s blood) black long-sleeved top and a hacksaw (for harvesting cannabis) wrapped in a t-shirt. A slogan written on the t-shirt said “You can’t scare me I have two daughters”. It was established at trial that Fox had two daughters. Coller was arrested.
At the scene of the home invasion, police located a rope and cable ties (used to tie up Bown). DNA consistent with Coller was located on a cable tie and DNA consistent with Richards was located on the rope.
The police obtained mobile telephone records. The use and location of the mobile telephones implicated Coller, Fox and Mather.
The appellants denied the offending. Fox and Richards both gave evidence at trial. Neither Murch nor Mather gave evidence at trial.
Fox’s evidence
Fox gave evidence that he was with Richards and Coller prior to the alleged offending. They all attended “Bec’s” (a friend of Coller’s) house and at some point, Fox planned to purchase cannabis from Shaun Richards. It was to occur later that evening with only Fox and Coller attending. Later in the evening, Fox and Coller left Richards at Bec’s house and went to Shaun Richards’ house to purchase cannabis.
Fox went into Shaun Richards’ house while Coller remained in the car. Fox gave evidence that he and Shaun Richards disagreed about the price of the cannabis which resulted in Shaun Richards attacking him with a machete. Fox, who sustained injuries to his arm and was bleeding, retreated to the car and left in the vehicle with Coller.
Coller, while driving away made two telephone calls, one to Richards and the other to the emergency number triple zero. Fox gave evidence that, at the time of these calls, particularly the triple zero call, only he and Coller were present in the car.
Fox said that due to the injuries he suffered he did not have a good recollection of events of what occurred after they left Wasleys.
Richards’ evidence
Richards’ evidence was that he did not attend Bown’s or Shaun Richards’ houses and was not involved in the offending. Richards, Fox and Coller were together at Fox’s house prior to the offending. Coller was to go with Fox to buy cannabis. Richards did not attend the drug deal and was dropped off at Bec’s house. He remained there and was later joined by Murch and Mather.
Later, someone received a call that Fox was injured. Murch, Richards and Mather drove to Wasleys to assist Fox and Coller. They located Coller’s car and both cars stopped on the roadside. Richards described where they were as being in the “middle of nowhere”.
Fox, who was badly injured, was put into Murch’s car and taken to Balaklava Hospital. Richards and Mather travelled as passengers.
Issue on appeal
Fox and Richards both allege that a miscarriage of justice occurred due to submissions made by counsel for Murch and Mather. The trial Judge refused their application for mistrial.
The allegation by both appellants is that counsel for Murch and Mather (who were both eventually acquitted), breached the rule in Browne v Dunn by putting submissions to the jury on matters affecting their credit, which had not been put to the appellants when they gave evidence.
For Fox, the address by counsel for Murch is in issue. For Richards, the address by counsel for Mather is in issue.
Both appellants also submit that the trial Judge’s directions on the issue were inadequate.
The respondent accepted that counsel for Murch and Mather did breach the rule in Browne v Dunn but submitted that the trial Judge correctly refused to discharge the jury and gave adequate directions to the jury on the issues.
How the issue in Browne v Dunn arose
Richards
Richards’ evidence at trial, and his case before the jury, was that he had been with Murch and Mather at Bec’s house before travelling with them to Wasleys, after Coller’s telephone call requesting help. That is, he had never attended the premises where the home invasion occurred and had only relevantly met up with Fox and Coller after they had left the scene at Wasleys. His evidence, which was in effect an alibi, was that he, at the relevant time, was with Murch and Mather at Bec’s house, not with Fox and Coller.
During his closing address, counsel for Mather submitted:
… [Y]ou might also think that it’s reasonably possible that Mr Mather has been picked up in the car containing [Fox] somewhere between Wasleys and the Balaklava Hospital.
The effect of the submission was that Mather did not leave Bec’s house with Richards. This proposition was contrary to Richards’ evidence and was not put to him when he gave evidence.
Mather did not give evidence. Not only was the proposition not put to Richards, but there was no support in the evidence for counsel’s submission.
Fox
Coller’s call to triple zero was recorded. During the call, the following exchange occurred between Coller and the emergency services operator.
COMMS: Who who hang on hang on is you need to can you just stop the car for a minute, or who else.
COLLER:I can’t hear you, everyone just be quiet please, be quiet, can I see where I am I can’t.
(emphasis added)
Counsel for Murch during his final address submitted that Coller’s use of word “everyone” suggested that there were others in the car besides Fox and Coller at the time she called triple zero. That submission contradicted Fox’s evidence that, at this time, only he and Coller were in the vehicle. Counsel for Murch did not cross-examine Fox on the content of the triple zero telephone call. Fox was not given an opportunity while in the witness box to give any potential explanation for Coller’s remark to the triple zero telephone operator.
Legal principles: Browne v Dunn
The principle in Browne v Dunn is a rule of procedural fairness which requires notice to be given to a witness in cross-examination of any intention to impeach the credibility of his or her account, so that the witness has an opportunity to respond.[2] That is, where it is intended that the evidence of a witness should not be accepted, that evidence which is relied upon to impugn the witness’ testimony should be put to the witness by the cross-examiner for their comment or explanation.[3]
[2] Macks v Viscariello (2017) 130 SASR 1 at [461]-[462]; Al-Salmani v The King [2023] NSWCCA 83; Kuhl v Zurich Financial Services Australia Ltd (2011) 243 CLR 361.
[3] Hofer v The Queen (2021) 274 CLR 351 at [27] (Kiefel CJ, Keane and Gleeson JJ).
In R v Birks, Gleeson CJ (with McInerney J agreeing) explained that, overall, the rule in Browne v Dunn is to ensure fairness in adversarial litigation:[4]
It is plain that their Lordships [in Browne v Dunn], whilst recognising and affirming a rule of practice in the terms in which they expressed themselves, also recognised the need for flexibility in its application. That need arises from the very nature of the subject matter which it concerns. The central purpose of the rule is to secure fairness in the conduct of adversary proceedings. That consideration provides the best guide, both to the practical requirements of the rule in a given case, and to the consequences which may properly flow from its non-observance, including the remedies that are available to deal with a problem so created.
[4] R v Birks (1990) 19 NSWLR 677, 688 (Gleeson CJ).
In Hofer v The Queen, Kiefel CJ, Keane and Gleeson JJ observed:[5]
The difficulty respecting the rule in criminal proceedings arises not so much from adherence to it as from the proper course to be followed when it is not observed. Criminal proceedings are not only adversarial. In our system of criminal justice, they are also accusatorial in nature, which requires that the Crown prove its case and cannot require an accused to assist in doing so. The position of an accused person, who bears no onus of proof, cannot be equated with that of a defendant in civil proceedings. Moreover, fairness in the conduct of a criminal trial may have a different practical content and require more restraint on the part of a prosecutor.
The need for consideration to be given to the course to be taken when the rule is not observed is likely to arise more often in criminal proceedings. In modern civil proceedings witness statements for each party are exchanged before trial. As a consequence, there is less likelihood that matters which are to be relied upon will not be addressed in some way. Contrast criminal proceedings, where it is not uncommon for matters which have not been put to the appropriate Crown witness to emerge from the evidence of an accused person, including during the course of cross‑examination.
(citations omitted)
[5] Hofer v The Queen (2021) 274 CLR 351 at [29]-[30].
Caution is required when applying the rule in criminal cases.
As Gleeson CJ and Heydon J observed in MWJ v The Queen:[6]
The principle of fair conduct on the part of an advocate, stated in Browne v Dunn, is an important aspect of the adversarial system of justice. It has been held in England, New South Wales, South Australia, Queensland, and New Zealand, to apply in the administration of criminal justice, which, as well as being accusatorial, is adversarial. Murphy J, in this Court, even applied it to the conduct of an unrepresented accused. However, for reasons explained, for example, in R v Birks, and R v Manunta, it is a principle that may need to be applied with some care when considering the conduct of the defence at criminal trial. Fairness ordinarily requires that if a challenge is to be made to the evidence of a witness, the ground of the challenge be put to the witness in cross-examination. This requirement is accepted, and applied day by day, in criminal trials. However, the consequences of a failure to cross-examine on a certain issue may need to be considered in the light of the nature and course of the proceedings.
(citations omitted)
[6] (2005) 80 ALJR 329 at [18].
The authorities deal mainly with the prosecution approach when an accused breaches the rule; that is not what occurred here. However, the rule applies equally to counsel for one defendant who proposes to suggest that a co-accused is not telling the truth.[7] In R v Fenlon, the Court held there was “no distinction in principle” in applying the rule to counsel of a defendant in a trial involving multiple defendants.[8] Defence counsel are still required to make it plain to a witness who is a co-accused that their evidence is not accepted and in what respect it is not accepted.
[7] Cross on Evidence (11th ed, Butterworths, 2017) [665].
[8] R v Fenlon (1980) 71 Cr App R 307, 313.
The rule in Browne v Dunn is a rule of practice, a breach of which may amount to failure to provide procedural fairness to an accused. Procedural fairness in the criminal jurisdiction requires an accused be given a fair trial. Determining if the accused has received a fair trial requires a careful analysis of what is required in the particular case.[9] A failure to afford an accused procedural fairness can amount to a miscarriage of justice. In this case, the breaches of the rule in Browne v Dunn will constitute a miscarriage of justice only if this Court finds them to be of a nature and degree that could have realistically affected the jury’s verdict of guilt despite the trial Judge’s directions.[10]
[9] New South Wales v Canellis (1994) 181 CLR 309, 329 (Mason CJ, Dawson, Toohey and McHugh JJ).
[10] Hofer v The Queen (2021) 395 ALR 1 at [123] (Gageler J).
The complexity in applying the rule in Browne v Dunn requires any breach to be dealt with cautiously; the rule must be carefully applied when considering the conduct of the defence case.[11] That is, the circumstances of the trial may permit some, but not other, remedial actions. Ultimately, it is a discretionary matter for the trial Judge as to how a breach of the rule in Browne v Dunn is dealt with. Regard must be had to the particular circumstances and the interests of justice.
[11] MWJ v The Queen (2005) 80 ALJR 329 at [18] (Gleeson CJ and Heydon J).
Buss JA (with Martin CJ and Mazza JA agreeing) in NCH v Western Australia identified the range of potential remedies within the trial Judge’s discretion, namely:[12]
(a) having a witness or witnesses recalled for cross-examination or further cross-examination;
(b) ruling that it is not fairly open to counsel who breached the rule to make a particular submission in his or her closing address;
(c)drawing to the jury’s attention in summing up that a witness was not given the opportunity to respond to particular evidence led from another witness;
(d)informing the jury that the failure to put specified matters to a witness may be taken into account by the jury in assessing the weight to be given to the witness’s evidence about those matters;
(e) if the trial judge is satisfied that the omission was the fault of defence counsel or the instructing solicitor and not the accused, informing the jury of the potential disadvantage to the State’s case or other witnesses from the omission, and stating that this was defence counsel’s or the instructing solicitor’s fault and not that of the accused; and
(f) discharging the jury.
[12] NCH v Western Australia [2013] WASCA 29 at [105].
The trial Judge’s directions

Both the appellants applied for a mistrial based on counsel’s submissions to the jury. Counsel’s submissions placed the trial Judge in a difficult position given the timing of the comments. The prosecution had addressed the jury and so had counsel for Fox. Counsel for Richards was yet to address the jury.
The trial Judge heard submissions on the applications and suggested that a possible remedy was for both appellants to give further evidence on the respective topics. Both appellants declined to be recalled and give further evidence about the issues.
The trial Judge considered that she could cure any potential unfairness by appropriate jury directions; she refused to discharge the jury. The trial Judge discussed with counsel her proposed directions to the jury.
Neither counsel for Fox and Richards objected to the trial Judge’s proposed directions, nor did they ask that she add anything to the directions.
In relation to the appellant Richards, the trial Judge directed the jury in the following terms:
On Mr [Fox’s] evidence, he had a very scant recollection of the injury in the Holden Caprice to the Balaklava Hospital. Mr Richards, however, gave a detailed account of travelling, in the company of Mr Murch and Mr Mather, from Mallala after a call was received notifying them that Mr [Fox] had been injured. The hypothesis advanced on behalf of Mr Mather is inconsistent with that evidence. Neither Mr [Fox] nor Mr Richards were asked whether Mr Mather was collected in Wasleys rather than being in the vehicle as it came from Mallala. Mr Richards and perhaps Mr [Fox] were in a position to comment on that hypothesis proposed.
I need to make it perfectly clear to you that the submission made by Mr Mead on behalf of Mr Mather does not have the status of evidence. Mr Mead was perfectly entitled to make the submission and ask that you consider it because, of course, it is for the prosecution to prove the case against the accused and it is not for Mr Mather to prove anything. Mr Mead argued, as he was entitled to, that that was a reasonable hypothesis consistent with innocence.
However, because it is a submission and it does not have the status of evidence, you may not use it in any way to undermine the evidence given by Mr Richards or Mr [Fox] in the witness box. Simply because it is put as a submission for your consideration does not give it any status to rebut or undermine the evidence to the contrary effect given by Mr Richards and Mr [Fox].
So, ladies and gentlemen, when you consider all the evidence and determine what weight you are prepared to give the evidence given by Mr Jeremy Richards or Mr [Fox], the submission made for your consideration by Mr Mead may play no part in that assessment.
In relation to the appellant Fox, the trial Judge gave the following directions:
In the call, Ms Coller is heard to say the words 'I can't hear you. Everyone just be quiet, please, be quiet. Can I see where I am? I can't'. Mr Mickan submitted to you that you might infer from that statement that there were more people in that car, the Statesman, than just Mr [Fox] and Ms Coller. Mr [Fox’s] sworn evidence was that at that point, the only people in the car were he and Ms Coller.
Let me say something about the context.
Before Ms Coller makes that comment where she refers to everyone, she is being told by Mr [Fox] to watch the road, she appears to be trying to work out where she is by looking at her phone, and you might think it is obvious that she is pretty hysterical in her tone.
The people who are competing for her attention at that point are Mr [Fox] in the car, telling her to watch the road and the 000 operator, who is trying to obtain information from her. She is trying to drive the car and trying to work out where she is. She has got the bleeding Mr [Fox] in the car.
You might think there is a real ambiguity about who she is referring to when she uses the word '[everyone]’ and you should carefully consider whether that word alone is capable of sustaining an interpretation that more than Mr [Fox] and Ms Coller are in the car. That is especially so when you only have the voice of one man in the background prior to the discussion about lights flashing and the car pulling over.
I remind you, of course, of the sworn evidence of Mr [Fox] that at that point, it was only he and Ms Coller in the Statesman.
Appellants’ submissions
Richards
Counsel for Richards submitted that the breach of the rule in Browne v Dunn led to a fundamental unfairness in the trial process. Richards was not given the opportunity to contradict the position that Mather had been picked up at some point after the alleged offending but before the group attended Balaklava Hospital. It was submitted that the submission made by Mather’s counsel unfairly challenged the truthfulness of Richards’ evidence as well as his credibility. The decision to direct the jury, rather than order a retrial, amounted to a miscarriage of justice.
Counsel for Richards further submitted that the trial Judge’s direction was insufficient to cure the unfairness. It was problematic for the trial Judge to direct the jury that counsel for Mather was “perfectly entitled to make the submission”. Whatever the intention of that remark, it enlivened a conflict in evidence that was inappropriately left to the jury to resolve; namely, the jury were to adjudicate whether Richards was telling the truth despite having been told counsel were perfectly entitled to make the inconsistent submission. What was required, it was submitted, was an explanation of the rule in Browne v Dunn, and the consequence of a breach and its effect on the assessment of the matters in issue. The trial Judge should have put to the jury the forensic advantage that Mather gained from his counsel’s submission that Richards was not given an opportunity to contradict.
Fox
Counsel for Murch breached the rule in Browne v Dunn by failing to put to Fox that there were others in the car besides himself and Coller at the time Coller called triple zero. The submission was a direct attack on Fox’s credibility and in effect was a submission in support of the prosecution’s allegations.
The jury had been deprived of Fox’s response in cross-examination on the issue. This breach, it was submitted, was sufficiently serious to require the trial Judge to declare a mistrial. The failure of the trial Judge to order a mistrial amounted to a miscarriage of justice.
It was further submitted that the trial Judge’s directions were insufficient to cure the unfairness. The trial Judge failed to expressly direct the jury that counsel’s submission regarding Coller’s use of the word “everyone” did not amount to evidence. Further, the direction did not inform the jury that neither Fox nor Richards had the opportunity to respond to the submission. The direction did not sufficiently guide the jury as to the use of the submission when contrasted against the evidence that was and was not given.
Respondent’s submissions
The respondent accepted that the comments made by counsel for Murch and Mather in their respective addresses should not have been made in the absence of those matters being put to the accused during their evidence. The breaches of the rule in Browne v Dunn occurred after the close of evidence, and indeed after the prosecution and one of the appellants had already addressed the jury. The trial Judge invited each appellant to consider being recalled and give evidence, but both appellants declined. This restricted the potential remedies available to the trial Judge. However, the respondent submitted, the trial Judge’s directions in the circumstances were sufficient to cure any unfairness.
The respondent submitted that the object of the rule in Browne v Dunn is to ensure fairness in litigation. The trial Judge’s directions had the practical effect of maintaining fairness and nullified any potential prejudice arising from the submissions. The directions removed any probative value from the submissions such that the jury would not engage in prejudicial reasoning that would interfere with their evaluation of lawful evidence. That is, the jury understood that they were not permitted to reject sworn evidence on the basis of the submissions or accept the submissions as evidence.
In relation to Fox, the respondent submitted that counsel did not complain of the proposed directions. Given the circumstances and the trial Judge’s optimal position to ensure fairness, no further comment as to the breach of the rule in Browne v Dunn was required. The direction effectively neutralised any potential unfairness.
The respondent, regarding Richards’ appeal, submitted that the direction by the trial Judge that counsel for Mather was “perfectly entitled to make the submission” fell within the trial Judge’s discretion to deal with the breach. It protected the right of counsel for Mather to make the submission and put to the jury hypotheses consistent with his innocence. No complaint was made of the trial Judge’s direction at the time.
Discussion
The trial Judge refused the appellants’ applications to order a mistrial and, to remedy the breaches, chose to direct the jury.
Counsel for Fox and Richards maintained their position that no jury directions could cure the prejudice. However, the trial Judge provided counsel before she summed up on these issues, a copy of her proposed directions. She invited submissions from counsel.
Counsel for Richards objected to the direction that “Mr Mead was perfectly entitled to make that submission”. The trial Judge explained why she would maintain that direction. Apart from counsel for Fox and Richards maintaining that directions could not cure the Browne v Dunn issue, no counsel requested further directions be given, apart from some minor adjustments.
On appeal, the appellants submitted that no direction could cure the prejudice. However, they also submitted that the trial Judge’s directions were inadequate.
Issues argued on appeal need to be considered in the context of the manner in which the trial was conducted. Decisions, for example, such as not objecting to evidence, not asking for specific directions and pursuing, or not pursuing, a particular line of defence are part of the wide discretion that counsel exercises at trial.[13] For example, the absence of a request to the trial Judge to consider giving various directions affords some practical indication of their relevance to the issues at trial.[14] Thus, while there are exceptions, an appellant is generally bound by the case he or she ran at trial.[15] While it is not determinative of the appeal, the decision not to seek further directions does afford a practical indication of the relevance of these matters to the appellants’ case at trial.
[13] Nudd v The Queen (2006) 80 ALJR 614.
[14] Perara-Cathcart v The Queen (2017) 260 CLR 595 at [60] (Kiefel, Bell and Keane JJ).
[15] Nudd v The Queen (2006) 80 ALJR 614; JGS v The Queen [2020] SASCFC 48.
On appeal, the appellant’s submitted that the impugned submissions of the co-accused counsel could undermine the evidence given by them. Thus, the trial Judge’s directions needed to be crafted to avoid any such inference.
Jury directions must be crafted to the particular circumstances of the matter and take into account the interests of justice. Chief Justice Kiefel, Keane and Gleeson JJ in Hoferv The Queen outlined aspects of a direction for when defence counsel failed to properly cross-examine a prosecution witness:[16]
It was necessary that the trial judge put the omissions in perspective, discount any assumption as to why they occurred by reference to other possibilities and warn the jury about drawing any inference on the basis of a mere assumption.
[16] Hofer v The Queen (2021) 274 CLR 351 at [47].
When assessing the significance (or otherwise) of a breach of the rule in Browne v Dunn, it is important to consider the issues at trial between the prosecution and all accused, not just the issues between accused. The prosecution’s case was that both Fox and Richards were lying and that both were active participants in the offending. The prosecutor strongly, but fairly, put to both Fox and Richards that the evidence they gave to the jury was false.
In relation to Richards, the prosecutor clearly put to Richards during his evidence that he was with Fox at the Wasleys address, and not with Murch and Mather at Bec’s place. That is, it was suggested his evidence was untruthful. Richards denied that he was lying to the jury.
In relation to Fox, the prosecutor clearly put to Fox during his evidence that he was in the company with the others at the Wasleys address and not simply there with Coller to purchase drugs. The prosecution case was that his evidence about what occurred at the Wasleys address, as well as his suggestion that he met with Murch, Mather and Richards after they left the Wasleys address, was false. Fox denied that he was lying to the jury.
Thus, the issues of the credibility and truthfulness of both Fox and Richards’ evidence was clearly before the jury.
The trial Judge directed the jury, on more than one occasion, on the onus of proof. The trial Judge carefully put to the jury the evidence of both Fox and Richards. She directed the jury that if they considered that their evidence gave rise to a reasonable possibility, then they should be acquitted. The trial Judge correctly directed the jury that a rejection of their evidence, even as a reasonable possibility, did not prove their guilt. A rejection of their evidence did not improve the quality or strength of the prosecution case. The jury were directed that if they were to reject the accused’s evidence, they were to put it to one side and carefully consider the prosecution evidence in deciding whether the prosecution had proved the elements of the offences beyond a reasonable doubt.
Turning to Richards, counsel on appeal submitted that the trial Judge should have given a direction on the principles involved in Browne v Dunn and “what went wrong”. We reject that submission. It is important to consider the submission in the context of the directions the trial Judge did give.
The trial Judge reminded the jury of the evidence of both Fox and Richards, identified the inconsistency between the submission and the evidence, and told the jury that despite possibly being in a position to give relevant evidence, neither Fox nor Richards were questioned on the issue. The trial Judge instructed the jury in clear terms that there was no evidence to support counsel’s submission. The trial Judge also made it clear in her directions that as the submission was not based on any evidence, the jury were not entitled to use it to undermine Richards’ evidence (or Fox’s).
Given those directions, there was no utility in expanding on the Browne v Dunn principles any further. Counsel at trial considered that no further direction was required as no such direction was sought. No criticism could be made of counsel’s decision.
The trial Judge told the jury that counsel for Murch was “entitled” to make the submission. We agree with the trial Judge’s direction. The failure of counsel to put that proposition to either Richards or Fox did not entitle the trial Judge to withdraw the submission from the jury.
The trial Judge’s directions nullified any potential prejudice occurring from Murch’s counsel’s submission.
Turning to the issue in relation to Fox’s evidence, the trial Judge identified for the jury the alleged inconsistency between the comment by Coller and Fox’s evidence. The trial Judge reminded the jury that at the relevant time, Fox was telling Coller to watch the road, that she was trying to identify her location, that Fox was bleeding profusely and that both Fox and the triple zero operator were competing for Coller’s attention. The trial Judge suggested to the jury that they may consider that Coller sounded hysterical. The trial Judge directed the jury to be careful when considering what Coller meant when referring to “everyone” as the term in context was ambiguous. The trial Judge directed the jury that they should “carefully consider” whether the word “everyone” alone could sustain the suggestion made by Murch’s counsel. When dealing with the issue, the trial Judge reminded the jury of Fox’s evidence on the point.
In context, it must be remembered that the prosecution case was that Coller and Fox may not have been the only people in the car. The prosecution alleged that there was no “meeting” of the two cars by chance that evening. The cars had left Wasleys together on the prosecution case.
Murch’s counsel’s submission was not evidence, it was a submission on evidence. That is, the inference was open on the evidence. The trial Judge directed the jury as to the weaknesses of the submission. She directed the jury on Fox’s evidence.
The trial judge’s directions in relation to both submissions had the practical effect of maintaining fairness and nullified any potential prejudice arising from counsel’s submissions.
A miscarriage of justice to which s 158(1)(c) of the Criminal Procedure Act1921 (SA) refers includes any departure from a trial according to law to the prejudice of the particular accused. The law, however, accepts that jurors may acquire irrelevant and prejudicial information, but it proceeds on the “footing that the jury, acting in conformity with the instructions given to them by the trial judge, will render a true verdict in accordance with the evidence”.[17]
[17] R v Glennon (1992) 173 CLR 592, 603 (Mason CJ and Toohey J).
The jury’s ability to comply with the trial Judge’s directions must be considered when determining whether a miscarriage of justice occurred. In Dupas v The Queen, the Court emphasised the importance of a jury’s capacity to adjudicate a matter according to the law.[18] The Court held:[19]
What, however, is vital to the criminal justice system is the capacity of jurors, when properly directed by trial judges, to decide cases in accordance with the law, that is, by reference only to admissible evidence led in court and relevant submissions, uninfluenced by extraneous considerations. That capacity is critical to ensuring that criminal proceedings are fair to an accused.
[18] Dupas v The Queen (2010) 241 CLR 237.
[19] Dupas v The Queen (2010) 241 CLR 237 at [29].
The trial Judge, in relation to both appellants, clearly identified the issues involved. The trial Judge’s directions ensured that the jury’s attention remained on the evidence and that the appellants could only be convicted if the jury considered, on the evidence properly admitted, that the prosecution had proven their guilt beyond a reasonable doubt. The jury were instructed in clear terms that the comments made by counsel for Murch and Mather could not undermine the evidence of both Fox and Richards.
Given the comprehensive directions given by the trial Judge, the comments by counsel for Murch and Mather did not lead to a miscarriage of justice.
Order
We would grant permission to appeal but would dismiss the appeals of both Fox and Richards.