Llewellyn v R
[2011] NSWCCA 66
•05 April 2011
Court of Criminal Appeal
Supreme Court
New South Wales
Medium Neutral Citation: LLEWELLYN v REGINA [2011] NSWCCA 66 Hearing dates: Thursday 16 December 2010 Decision date: 05 April 2011 Before: McClellan CJ at CL at 1
Hall J at 3
Garling J at 127Decision: (1) Leave be granted to the applicant to appeal pursuant to s.5(1) of the Criminal Appeal Act 1912.
(2) An order that the appeal is allowed.
(3) An order that the conviction of the applicant for an offence under s.61I of the Crimes Act 1900 entered on 18 June 2010 be set aside.
(4) An order pursuant to s.8 of the Criminal Appeal Act 1912 that there be a new trial in relation to the offence charged under s.61I of the Crimes Act 1900.
Catchwords: CRIMINAL LAW - conviction appeal - rule in Browne v Dunn - whether mistrial if question put to applicant but not complainant - questions from the jury relating to whether counsel was restricted from mentioning certain evidence as he knew it to be untrue - whether trial judge erred in allowing the jury to assess whether counsel's failure to question was an oversight - whether jury should consider counsel's ethical obligations - whether directions of trial judge were sufficient - whether misdirection by trial judge adversely impacted on applicant's credibility - no objection by counsel at trial to direction or request for jury's discharge - whether the verdict was unreasonable on the evidence Legislation Cited: Crimes Act 1900
Crimes (Sentencing Procedure) Act 1999
Criminal Appeal Act 1912
Criminal Appeal Rules 1952Cases Cited: Jones v The Queen (1997) 191 CLR 439
M v The Queen (1994) 181 CLR 487
MFA v The Queen (2002) 213 CLR 606
Mraz v Regina (1955) 93 CLR 493
MWJ v Regina (2005) 80 ALJR 329
Picker v Regina [2002] NSWCCA 78
Regina v Abdallah [2001] NSWCCA 506
Regina v Banic [2004] NSWCCA 322
Regina v Birks (1990) 19 NSWLR 677
Regina v Dennis [1999] NSWCCA 23
Regina v Manunta (Unreported, Full Court, Supreme Court of South Australia, 28 July 1989)
Regina v Rasic [2009] NSWCCA 202
Regina v Scott [2004] NSWCCA 254
Regina v Storey (1978) 140 CLR 364
RWB v Regina [2010] NSWCCA 147
Weiss v Regina (2005) 224 CLR 300
Whitehorn v The Queen (1983) 152 CLR 657
Wilde v Regina (1987-1988) 164 CLR 365Texts Cited: NSW Barristers' Rules Category: Principal judgment Parties: Aidan LLEWELLYN v REGINA Representation: Counsel:
C: P Ingram SC
A: K Averre
Solicitors:
C: S Kavanagh
A: Nyman Gibson Stewart Lawyers
File Number(s): 2009/69047 Decision under appeal
- Date of Decision:
- 2010-08-13 00:00:00
- Before:
- Sweeney DCJ
- File Number(s):
- 09/69047
Judgment
McCLELLAN CJ at CL : I agree with the orders proposed by Hall J and with his Honour's reasons.
The effect of the judge's response to the jury's questions was to make the conduct of defence counsel an issue in the trial. The jury were effectively invited to consider whether defence counsel was being truthful when, through his question to the appellant, he communicated to the jury the substance of his instructions. This should not have occurred and has occasioned a serious miscarriage of justice.
HALL J : The applicant seeks leave to appeal pursuant to s.5(1) of the Criminal Appeal Act 1912 against his conviction by a jury which was entered by the trial judge in the Sydney District Court on 18 June 2010.
On 7 June 2010, the applicant had been arraigned for trial before a jury upon an indictment that pleaded a single count under s.66I of the Crimes Act 1900. The indictment charged the applicant in the following terms:-
"On 25 th January 2009 at Manly, in the State of New South Wales, had sexual intercourse with [name of the complainant] without her consent and knowing that she was not consenting."
Section 61I is in the following terms:-
"61I. Any person who has sexual intercourse with another person without the consent of the other person and who knows that the other person does not consent to the sexual intercourse, is liable to imprisonment for 14 years."
A standard non-parole period of 7 years is provided for an offence under s.61I: Item 7 in the Table in Division 1A of Part 4 of the Crimes (Sentencing Procedure) Act 1999.
The trial commenced on 7 June 2010 and, on 17 June 2010, the jury returned a verdict of guilty in respect of the offence charged.
On 13 August 2010, the trial judge sentenced the applicant to a term of imprisonment of 4 years consisting of a non-parole period of 2 years commencing on 13 August 2010 and expiring on 12 August 2012 with a balance of term of 2 years expiring on 12 August 2014.
On the latter date, the trial judge was informed by counsel for the applicant that a Notice of Intention to Appeal had been filed. Bail was granted pending the determination of the appeal.
The Notice of Intention to Appeal against conviction was filed on 7 October 2010 and on 10 December 2010, a Notice of Application for Leave to Appeal dated 9 December 2010 was filed.
Grounds of appeal
There are two grounds of appeal relied upon by the applicant. They are in the following terms:-
"Ground 1: The learned trial judge erred in law in the application of the rule in Browne v Dunn in allowing the prosecutor to raise the issue in cross-examination and in her direction to the jury and the trial miscarried as a result.
Ground 2: The verdict is unreasonable or cannot be supported, having regard to the evidence."
The facts
The Crown case was that the offence was committed on 25 January 2009 and that the appellant had sexual intercourse with the complainant without her consent in the early hours on that date at Manly.
The issue in the trial was consent.
The complainant gave evidence that on Saturday 24 January 2009, she drove from an area outside Sydney to meet with her friends who, for the purposes of this judgment, will be simply identified as Amy and Timothy. The complainant had completed a TAFE course with her friend, Amy, and the latter's boyfriend, Timothy. The complainant knew that the applicant lived with Timothy in his unit, having visited the unit on one prior occasion. The complainant's boyfriend did not come with her to Sydney on the occasion in question.
The complainant arrived at Timothy's Manly flat at about 2.30 pm on 24 January 2009.
On the evening of 24 January 2009 at about 6.30 pm, the complainant and her friends left to dine at a restaurant after which they attended at a hotel in Manly at about 7.30 pm.
During the course of the night, the complainant and her friend, Amy, consumed alcohol (wine). They obtained a second bottle of Rose wine and took about an hour and a half to consume it. The complainant admitted that by this time she was, to a degree, intoxicated.
By the time they finished the bottle of Rose, the applicant had joined the group at the hotel.
As the night went on, the complainant and her friend, Amy, got up to dance and they were later joined by Timothy and the applicant and another couple. They danced on the floor as a group for about 40 minutes.
By this time, the second bottle of wine had been consumed and the complainant gave evidence that during the evening she consumed a small white pill produced by Amy. After about 30 or 40 minutes, she noticed that the pill had taken effect.
According to the complainant's evidence, during the evening the applicant approached her and asked her "Do you want some liquid ecstasy?" to which she said she responded "No, I'm tipsy enough. I don't want any" .
The complainant said that she danced until about 12.00 am or 1.00 am, mostly on her own with Amy or otherwise generally in a group.
At the end of the dancing, the complainant, Amy, Timothy and the appellant walked back to Timothy's apartment. This involved walking approximately one to two kilometres. The complainant's evidence was that she did not need any assistance.
After arriving at the unit, more alcohol was consumed and there was some dancing at the unit.
The Crown case was that at about 2.00 am, the complainant lay down on Timothy's double bed with her head towards the base and her feet on the pillows and fell asleep. The complainant's evidence was that, after arriving at the unit, she changed her clothes and was with the others there when the appellant produced what he claimed was a $200 bottle of champagne and all four persons were poured a glass each. The complainant consumed the whole of her glass.
The complainant had brought with her a bottle of wine which was opened with a knife by the males then present. The complainant said that she had consumed about a glass of wine over 30 minutes or so. Her evidence also was that Amy had a pill which was crushed and each of those present (that is, the complainant, Amy, Timothy and the applicant) snorted a tiny little bit of it.
The complainant's evening ended when she became very tired and drowsy. This occurred whilst they were in Timothy's bedroom and it was then that she lay down on his double bed. She said the room was spinning and she felt like she was about to pass out suddenly which was why she lay down as she did on the bed.
The complainant fell asleep and apparently passed out. The evidence was that she woke at about 2.00 am to find the applicant. Her evidence was:-
"above me, Aidan was above me. At first I didn't realise what was happening. Then I felt something going in and out of my vagina. And it took me a couple of minutes to realise what was happening. He had his left arm across my chest ... and then he had his right hand pushing down on my left shoulder ... I realised what was happening. I kept saying 'No', saying 'No'. Told him to get off ... He just kept going in harder and faster and wouldn't get off. I tried to push him off with my arm. I couldn't. I wasn't strong enough. I couldn't, I didn't have any strength. I started crying. And he wouldn't stop."
The complainant's evidence was that the applicant never said anything until just before he finished. He either said "Are you on the pill?" or "You'd better be on the pill" .
The complainant's evidence was that she still had her pyjamas on but that her shorts had been pushed to the side. She said that she felt the applicant's jeans against her legs.
Timothy gave evidence that he went into his bedroom upon hearing the complainant crying. He saw her lying on top of the covers of his bed on her side with the applicant on his back. He said that the complainant was wearing pyjamas and the applicant was wearing boxer shorts but he could not remember if he was wearing a shirt. Timothy's evidence was that he asked "What happened?" or "What's going on here?" to which the complainant answered "He raped me" .
He said that whilst Amy was fighting with the applicant he tried to comfort the complainant and again asked her what happened. She did not say much but she was distraught.
Amy's account in evidence was that she walked back into the apartment with Timothy after having a smoke. She crossed the lounge room area towards Timothy's bedroom door and heard the complainant sobbing. She said that Timothy had followed her into the room and the applicant was lying on his left side on the right hand side of the bed. He was leaning on his left elbow. Amy said that she walked into the room first and asked the complainant "What happened?" to which the complainant answered "He's raped me" . Amy said she turned to the applicant and asked him "What the fuck have you done?" but there was no answer to that question.
She said that the applicant was not wearing a shirt and rolled on his back and placed his forearms over his face. Amy again asked him "What the fuck have you done?" but the applicant did not say anything, he just removed his hands from his face.
Amy said that the complainant said twice "I said 'No'" at which point the applicant got up and left the room and went to his bedroom next door.
Amy said she followed the applicant into his bedroom where she continued to question him, to which he answered "Just fucking yell at me Amy, just yell at me" . Amy said that she returned to Timothy's bedroom where the complainant was and asked her to tell her what happened. According to Amy, the complainant said "I said 'No', I couldn't move, I should've done more but he had my arm pinned" .
In cross-examination, Amy agreed that she was intoxicated and could remember some pieces of the conversation very well and others not so well.
Amy also gave evidence that the complainant had mentioned to her that the applicant had said something about her being on the pill, which made Amy angry so she went back into the applicant's room and told him that he made her feel sick. She said that the applicant did not answer her and she threw his shoes at him and left the room.
Amy said the complainant was crying profusely and she advised the complainant to call the police. The complainant said she just wanted to go to sleep and forget about it; she did not want to go to court.
The evidence of Sergeant Westgarth was that on 26 January 2009, he was informed by Newcastle Police of a sexual assault that had taken place in Manly. He then embarked on investigations including an interview with Timothy on 29 January 2009 and, on 30 January 2009, the applicant attended Manly Police Station with his solicitor. He was arrested on that date.
The applicant's case was that he had originally met the complainant in approximately September or October 2008. He said that when he first met her at a restaurant in Manly he was there with Timothy and Amy. He said there was a topic of conversation between him and the complainant which moved from their backgrounds and interests to past sexual experiences.
The applicant gave evidence as to the events of 24 January 2009. He said that he arrived at the Ivanhoe Hotel at about 7.00 pm or 7.30 pm. He gave an account of the events during the course of the night, including consuming alcohol and dancing. He said that he consumed a tablet which he said was given to him by Amy which he thought was ecstasy which made him feel lighter and happier.
He said that when walking back to the unit, he felt drunk and that Timothy, Amy and the complainant looked drunk. He said that he opened a gift of champagne from a client and Timothy put some music on. They all drank the champagne and danced.
He said that after approximately two hours Amy said she was going outside for a smoke and Timothy followed her. He was present with the complainant in Timothy's bedroom. He said that she was not lying on the bed when Timothy and Amy left the room. He said the complainant was standing up and dancing with him and they started kissing. She was kissing him on his neck and that she then pulled him to the bed, sat down and pulled him down on top of her. He said they kissed on the bed for about five minutes.
The applicant described the complainant unbuttoning his jeans, pulling down his zipper and helping him to push down his pants using the soles of her feet to push his jeans down of his hips. (As discussed in relation to Ground 1, this reference to his jeans being pushed down becomes the subject of some importance.) He said that he pulled her pants down a little bit and they started engaging in sexual intercourse which lasted for five or 10 minutes. He said the complainant never said anything. He denied that she ever said "No" or that he held her down whilst they were have sexual intercourse.
He said that the complainant rolled from her back to face away from him and started crying. He said he was completely shocked however he did not do much. Approximately five or 10 seconds later, Timothy and Amy walked into the room. Amy asked "What the fuck happened" to which he said he responded "We just had sex" . Amy spoke to the complainant and then said to him "You raped her" . The applicant said that he did not know what to say and got out of the room when Amy told him to "Get the fuck out" . He said that he walked into the lounge room and Timothy followed him and asked him what happened. He said that he told Timothy "We just had sex ... Everything was fine until you two walked in" . He said that Amy came out of Timothy's bedroom and started swearing at him and words to the effect of "What the fuck have you done?" .
The complainant said that at the time Timothy and Amy walked into the bedroom just after the complainant commenced crying, he had only pulled up his boxer shorts and not his jeans.
Grounds of appeal
(1) Ground 1
The first ground of appeal is in the following terms:-
"Ground 1: The learned trial judge erred in law in the application of the rule in Browne v Dunn in allowing the prosecutor to raise the issue in cross-examination and in her direction to the jury and the trial miscarried as a result."
In the Crown submissions, it was contended that the grounds of appeal did not involve "a question of law alone" . Accordingly, the application, it was submitted, should be treated as an application for leave to appeal against the conviction pursuant to s.5(1)(b) of the Criminal Appeal Act : Regina v Rasic [2009] NSWCCA 202 at [2], [12]; RWB v Regina [2010] NSWCCA 147 at [128].
Cross-examination of the complainant
The complainant was cross-examined on the basis that she had engaged in consensual sexual intercourse with the applicant, a proposition which she denied.
In the cross-examination, a number of matters (detailed below) were put to her concerning her alleged conduct and which were ultimately relied upon by defence counsel as indicating that sexual intercourse had been consensual. The complainant denied each of the matters put to her.
One such matter put to her was that she had "helped push down [the applicant's] pants". In that respect, it was not put to her that she had used the soles of her feet to do so or that she used the soles of her feet against the outer side of both of the applicant's legs to slide his jeans down.
It is necessary to refer to some of the evidence in relation to the matters put to the complainant by counsel for the applicant and recorded in the transcript of proceedings of 7 June 2010 (AB 123):-
"Q. You see, when Tim and Amy left, you and Aidan started kissing didn't you.
A. No, he never kissed me once.
Q. And in fact he started to kiss you on the neck, didn't he?
A. No, he didn't.
Q. You started to kiss him on the neck?
A. No, I didn't.
Q. You led him to the bed?
A. Where I was already lying? How did I lead him to the bed?
Q. And you lay down on the bed, didn't you?
A. No
Q. You unbuttoned his jeans?
A. No
Q. Pulled down his zip?
A. No, none of that happened.
Q. And helped push down his pants, right?
A. No.
Q. And you then had consensual sex, didn't you?
A. Why would I leave all my clothes on?
Q. You then had consensual sex, didn't you?
A. No." (emphasis added)
In relation to the applicant's case, the following evidence was given by him in evidence in chief (transcript, 10 June 2010, AB 335):-
"Q. And when you're on the bed, what are you doing?
A. Kissing
Q. How long was that going on for?
A. Five minutes.
Q. What then happens?
A. She undid the button on my jeans --
Q. Was there any chat?
A. No.
Q. She undid the button of your jeans?
A. Yes.
Q. And then what?
A. She undid my fly.
Q. And then what did she do?
A. And then she pulled my jeans down with the soles of her feet, like if you turn your feet, it's like a round curve, and slid my jeans down.
Q. And how did she do that, just describe that?
A. Well, if your feet are flat on the ground, you pick them up and then you turn sideways and bend you feet, then you press, and she slid them off my hips ..." (emphasis added)
The applicant went on then to describe the events leading to sexual intercourse which he said was consensual.
During the course of the cross-examination of the applicant, the Crown put to him that he had not heard it being put to the complainant during cross-examination that she had pulled his jeans down by using her feet. In this regard, the following questions and discussion occurred (transcript, 10 June 2010, AB 376):-
Q. Would you agree, Mr Llewellyn that when [the complainant] was being cross-examined, it was never suggested to her in cross-examination that your jeans were pulled down by her using her feet in the manner that you've described for us just a little while ago?
BRADY: I object to that.
HER HONOUR: No, I'm going to allow it.
WITNESS: Q. How do you mean, sorry?
CROWN PROSECUTOR: Q. I'll just put the proposition to you again. Would you agree that in cross-examination of [the complainant] it was never suggested to her that she actually pulled your pants down, your jeans and so forth, using her feet in the manner that you've just described?
A. Yes.
As the Crown observed in its written submissions, the cross-examination of the applicant on this matter did not extend to an outright suggestion of recent invention.
In re-examination, the applicant was asked the following questions and gave the following answers (transcript 10 June 2010, AB 382):-
"Q. You are being asked questions about in my cross-examination and whether I cross-examined [the complainant] about the fact that she pushed your jeans around with her feet, do you remember that?
A. Yes.
Q. And being asked of you that I didn't put that to her, do you remember that?
A. I do.
Q. Did you give me some written instructions about that?
A. I did.
Q. In those written instructions did you say this: 'She then started to undo my jeans button while I was on top of her. She unzipped my fly and pulled my pants down with the soles of her feet'. You told me that didn't you?
A. I did.
Q. That was before I started cross-examining, wasn't it?
A. I'm sorry, I'm lost.
Q. Well you told me that before I cross-examined you?
A. Yes.
Q. In fact you told me that some time ago?
A. I did."
Two questions by the jury
Ground 1 is directed to two questions which the jury asked and the directions given by the trial judge in response to each question. I will refer to these in the discussion that follows as "Question 1" and "Question 2".
Question 1
After the conclusion of the evidence, but before addresses by the Crown or by counsel for applicant, the jury asked the following question:-
"Question 1:
Can Mr Crown and Mr Brady make statements or infer certain things took place if they know them to be false? Do their code of ethics mean that they are bound by the same oath as the witnesses?"
The jury note in relation to this question was marked MFI 5, "Jury note re Counsel's Ethics" .
The transcript records the following exchange between the trial judge and counsel in the absence of the jury in relation to question 1 (transcript, 11 June 2010, AB 392):-
"HER HONOUR: And the third one is a bit of a doozey:-
(The jury question - "Question one" - was then recorded in the transcript)
I suppose the answer is counsel act on instructions.
BRADY: Could your Honour just read that out once again?
HER HONOUR: Yes (the question was then re-read).
I suppose the position is, the Crown presents its witnesses and defence counsel present their case and act on instructions. And yes, they're bound by code of ethics. It's not the same oath as witnesses obviously, because witnesses take an oath to tell the truth. Counsel have a different role.
BRADY: I'm, your Honour, just taking a moment or two, it's --
HER HONOUR: Yes, I know, it's an unusual question."
A little later, the transcript records:-
"HER HONOUR: You have reached a form of words?
CROWN PROSECUTOR: It's a bit of a scribble, your Honour, but I'll - my friend and I invite the reply along these lines, as a direct response to that question to say the following, the Crown calls the relevant witnesses about the factual circumstances and that we are concerned with in the trial."
The trial judge then queried the reference to "we" which the Crown Prosecutor indicated that that word should be left out.
A little later the Crown Prosecutor is recorded as saying (AB 393):-
"Defence counsel act on the accused's instructions. Issues of honesty, accuracy and reliability are matters for the jury to determine.
HER HONOUR: Reliability of witnesses?
CROWN PROSECUTOR: Yes. Then, your Honour, we ask that a question be directed towards the jury and that they can perhaps retire and consider it, as to whether or not there is a matter that has arisen in the trial that prompts the note which may have an effect upon their ability to objectively determine the issues.
HER HONOUR: Alright. I can do that.
BRADY: Just as I am sitting here thinking about this, as the Crown was reading that out, which we agreed to, I can't help but think that it may have arisen due to my failure to cross-examine about pushing his pants down with the feet, because the issue came up in the way that it came up. I wonder whether, if that is the case, it might be worthwhile indicating of course while I act on instructions, the way the trial was run was a matter for me.
HER HONOUR: I am happy to say that. But also what, counsel bring their expertise into how they run the trial?
BRADY: Maybe that might be the best or in that circumstance, lack of expertise.
HER HONOUR: Alright. So do you want me to say also bring their expertise to how they run the trial. So, it's a matter for counsel.
BRADY: I suppose if - my theory is that they have in some way, shape or form inferred that because I didn't say that, somehow I believe that to be untrue, rather than, of course, just simply missed it, as I did.
HER HONOUR: Well, I don't know. I don't think we can sort of speculate that it is any one question.
BRADY: No. I suppose that if your Honour is proposing to then inquire as the Crown and I have asked, then we will find out."
Her Honour then agreed and then moved on to another matter.
The trial judge's directions in relation to Question 1
The trial judge, in response to question 1 (referred to in the transcript as the "third question" ), told the jury (transcript, 11 June 2010, AB 395-396):-
"... Your third question, can Mr Crown and Mr Brady make statements or infer certain things took place if they know them to be false, do their code of ethics mean that they are bound by the same oath as witnesses?
The situation is the Crown calls relevant witnesses about the factual circumstances that the trial's connected with. Defence counsel act on the instructions of the accused, although they also bring their professional expertise to bear in deciding how to run the trial. Questions of honesty, accuracy and reliability of witnesses are for you to decide as the jury but if there's a particular matter that's happened in the trial that's caused you to ask this question and if you think that that's going to affect your ability to objectively determine the issues in the trial, then I would like to know that.
So if you'd like to go out and talk amongst yourselves about this for a short while, if you think you need to do that, and let me know whether there is a particular matter that's happened that's worrying you that gives rise to this question. And if there is, then maybe we can assist you with you. Do you want to go out and talk about for a short while?
FOREPERSON: No.
HER HONOUR: No? You're happy? Alright. Well if there needs to be a further question or further questions, please feel free to put them to me."
Question 2
The transcript of 11 June 2010 (AB 396) records that following a short adjournment, her Honour stated:-
"There are some further questions. I'll just give the jury the option of going back upstairs to their more comfortable accommodation if they want. They say the specific matters which they are discussing are, Mr Brady, you were right about what you thought was bothering them partly."
Question 2 was in the following terms:-
"Question 2:
Mr Brady, when suggesting consent had been given by [the complainant] is only using kissing as the main example. More compelling examples are available from Aidan's evidence. If Mr Brady knows some evidence to be untrue, for example, [the complainant] pulling down Aidan's pants, is he restricted by ethics to suggest it is true?"
After reading the question to counsel, her Honour made the comment (AB 396):-
"I don't know where they get that from."
The transcript then records counsel stating (AB 396):-
"BRADY: Well, the difficulty is this, your Honour, I would have thought, that what I did in cross-examination I have to say unfortunately it has been raised because of the issue that I didn't put to her that she used her feet. What I said is you led him to the bed, you lay down on the bed, you unbuttoned his jeans, you pulled down his zip, you helped push down his pants, you had consensual sex. And I didn't say push down pants with feet."
The transcript then records Mr Brady saying:-
"Then it has become an issue and I have, of course, then had to say that Aidan obviously told me that and it's clearly - everyone on the courtroom but the jury would know that is clearly me making an error. That's what it comes down to.
The trial judge then discussed with counsel aspects of her response to the jury's question.
The trial judge's directions in relation to Question 2
When the jury returned, her Honour stated:-
"Members of the jury, thanks for your further note. I am going to say some things to you and I'm going to remind you of some evidence. You have said that Mr Brady, when he was suggesting consent to [the complainant] only talked about kissing, whereas Mr Llewellyn's evidence you say went beyond that and you have asked if Mr Brady knows some evidence to be untrue, for example, [the complainant] pulling down Mr Llewellyn's pants, is he restricted by ethics to suggest it's true. I'm just going to read the questions that Mr Brady put to [the complainant] to remind you that in fact Mr Brady did go into a fair bit of detail and I'll read that first and then I will say more things to you ..."
The trial judge then read from the transcript all the questions and answers set out in paragraph [54] above.
The trial judge then continued (transcript 11 June 2010, AB 398-399):-
"Now, when Mr Llewellyn was giving evidence he said that [the complainant] used her feet to pull down his jeans and the Crown asked him, 'Well, you didn't hear that put to [the complainant] and as I have just read, what Mr Brady put to [the complainant], he didn't refer to using her feet but then Mr Brady re-examined Mr Llewellyn and Mr Llewellyn agreed that he had a long time ago told Mr Brady that she used her feet.
Now the situation is, members of the jury, counsel are human and sometimes they just forget things. It's up to you if you think that's what has happened here.
But you have got that evidence that in fact Mr Llewellyn had told Mr Brady about the feet before Mr Brady started cross-examining the [the complainant] and it's matter for you whether you think Mr Brady might have just overlooked that detail when he was going through that. Now, if that satisfies you, we can continue. If you have got further questions about that, please feel free to ask. I don't want anything to be festering away in anyone's mind that is distracting you. But really, you should focus on the evidence of the witnesses, [the complainant] , Mr Llewellyn more than the role of counsel.
Alright. Are you happy to continue now and hear addresses? Yes, okay. Mr Crown, are you happy to address?
CROWN PROSECUTOR: Yes, yes thank you, your Honour."
Submissions
In the applicant's submissions, it was contended that the trial judge's direction in answer to the first question was erroneous. In this respect it was argued that the trial judge left it open to the jury to determine whether the failure by counsel to put an issue to the complainant in cross-examination was an oversight on his behalf ( Outline of submissions and grounds on behalf of the appellant ):-
"... The jury were not given a direction as to what inference could be drawn in the event that they determined it was not an oversight on the part of counsel for the appellant."
In the submissions for the applicant, attention was drawn to that part of the trial judge's answer in relation to question 2 in which her Honour stated:-
"... And it's [a] matter for you whether you think Mr Brady might have just overlooked that detail ..."
The submission was that this was a misdirection to the jury, not least because it was not legitimately open for the jury's consideration.
It was argued that the issue went to the applicant's credibility in circumstances where credibility was a highly relevant and significant aspect of the trial.
In the written submissions for the applicant, the significance said to attach to what was said to be an erroneous direction was, in part "... that it would not be speculative to consider that the jury formed an opinion that the decision not to put that issue to the complainant had been a decision made by counsel. Such forensic decision having been perceived at that stage to have been taken by competent and experienced counsel due to some opinion on the part of counsel for the appellant as to the credulity of such an assertion" (at 174).
I accept the submission made on behalf of the applicant that, in effect, the jury ought to have been told that they were not to consider the issue of counsel's ethical obligations in the circumstances of the case. In particular, they should have been directed that the conduct of counsel was not a relevant consideration. It is apparent that the Crown accepted that counsel for the applicant had, through oversight, failed to put a question to the complainant on the subject of the alleged method of removal of the jeans. It had also become clear from the closing address of the Crown Prosecutor that he had disavowed any reliance upon the issue as one going to the applicant's credit.
In the Crown submissions, it was contended that the answer provided by the learned trial judge, including in particular, that given to question 2, was adequate. All of the relevant evidence of the complainant and the applicant had been referred to by the trial judge. Additionally, it was said that there had been reference to counsel for the applicant having mistakenly overlooked putting the proposition that the complainant had used her feet to slide down the applicant's jeans.
The Crown submitted that the course adopted by her Honour was sufficient in the circumstances, especially so, given that to have attempted a more detailed response to some of the issues raised in the jury's questions would have led into the difficult area of whether counsel might hold views of the facts and/or the instructions and the nature of the professional obligation to conduct the case where such a view might not be favourable to a client: Crown's Written Submissions at [60].
The Crown also referred to the fact that the applicant's counsel emphasised in his closing address that what he had put to the complainant in cross-examination had, in effect, dealt with the matters relied upon by the applicant and, further, that the aspect of the use of her feet to slide down the pants had been omitted by mistake.
The Crown further submitted (Crown's written submissions):-
"65. The answer to the jury questions and the summing up contain nothing to suggest that the jury could or should consider the circumstances were indicative of anything but an oversight by Defence Counsel. Certainly there was no reference to there being any adverse inference open against the Applicant because the subject had not been raised in the cross-examination of the complainant."
In the circumstances referred to by the Crown, it was contended that the Court would not be satisfied that there had been any miscarriage of justice.
Consideration
A number of general observations may be made about questions 1 and 2. They are as follows:-
(1) Both questions can be seen as related in that they sought information on the subject as to whether there existed ethical restrictions on what counsel may put forward as being true when counsel knew that to do so would be putting forward material he/she knew to be untrue.
(2) Question 2, following the trial judge's response and directions on question 1, was framed in terms that gave it a more detailed or precise focus on the issue that had been expressed in very broad terms in question 1.
(3) Questions 1 and 2, taken together, indicate that they were related to matters that defence counsel had put forward in cross-examination of the complainant based on the proposition, inherent in the questioning, that the sexual intercourse had been consensual.
(4) The phrase in question 1, "Mr Brady make statements" and the expression in question 2, "Mr Brady, when suggesting consent had been given ..." when considered in context, could only have been referring to suggestions or "statements" (or more accurately, propositions) made by way of questions put by Mr Brady to the complainant in the course of his cross-examination.
As the discussion between the trial judge and counsel indicates both questions 1 and 2, insofar as they focussed on counsels' ethical obligations, were somewhat unusual and were seen to be such. However, the questions, nonetheless, clearly related to the central issue in the trial, namely, the issue of consent or absence of consent.
Ground 1 asserts error in the trial judge's directions concerning the application of the rule in Browne v Dunn. Ground 1, can, in my opinion, be seen as including an issue as to the point raised by the Crown Prosecutor, namely, that Mr Brady had not put to the complainant in cross-examination that she had used her feet to remove the applicant's pants. Ground 1 effectively asserts that the claimed misdirection is inextricably linked to that point.
Whilst Ground 1 invokes the rule in Browne v Dunn, it is clear from the cross-examination that Mr Brady did put to the complainant the proposition that she had helped push down his pants. The failure to expressly put that she did so by the use of her feet related only to the means by which she allegedly did so. Such failure, in my opinion, would not have constituted a breach of the Browne v Dunn rule. The rule is one which essentially provides that a party is obliged to give appropriate notice to the other party, and any of the person's witnesses, of any imputation that the former intends to make against either of the latter about his or her conduct relevant to the case, or a party's or a witnesses' credit: MWJ v Regina (2005) 80 ALJR 329 per Gummow, Kirby and Callinan JJ at [38]. Mr Brady put the issue of the complainant's alleged action of pushing down the pants squarely to her which, of course, she denied. The means by which she did so was an incidental matter only.
An issue raised by Ground 1, in my opinion, is that, the Crown, having put to the applicant in cross-examination the point that no suggestion had been made in cross-examination of the complainant that she had used her feet in the manner described, was a matter that could only have been relevant to a submission by the Crown of recent invention. However, in the event, as earlier stated, the Crown did not make any such submission.
In the circumstances, at the time questions 1 and 2 were being dealt with (if not before then), the Crown, in my opinion, ought to have made it unambiguously clear that no point or criticism (including a submission as to recent invention) would be made by the Crown in relation to the failure by Mr Brady to put a question to the complainant as to her having used her feet to pull down the jeans. The jury should, accordingly, have been informed of that when the trial judge gave directions in relation to question 2 and the jury told that accordingly no significance whatsoever should attach to that matter.
The Crown having put to the applicant that the complainant had not been cross-examined on the matter in question, Mr Brady, understandably responded in re-examination by obtaining evidence from the applicant that he had, in fact, given instructions on that very matter prior to the trial.
Questions 1 and 2 indicate that one or more jurors were seeking instructions on "statements" or "suggestions" (or more accurately, propositions made in questions put to the complainant by Mr Brady) on matters relevant to the question of consent or absence of consent, particularly, those matters which the defence contended indicated consent by the complainant. The jury, in my opinion, ought to have been told that the re-examination of the applicant on the point had been rendered necessary by the issue having been raised by the Crown, but that, in fact, the issue was no longer one of any significance in the trial.
The trial judge's directions in relation to question 2, in other words, should, in my opinion, have expressly and directly dealt with the matter in a way which would have taken the failure to cross-examine the complainant on the above issue completely out of consideration. The imprimatur of the trial judge given to a statement by the Crown that the failure to cross-examine on the matter was of no significance would have reinforced that point.
That not having been done, I consider that the directions were deficient and therefore constituted a serious misdirection.
The directions that were given by the trial judge left as an issue for the jury's determination whether Mr Brady's failure to cross-examine on the removal of the jeans was an oversight or not. However, that was not an issue within the capacity of a jury to determine. The fact is, of course, that there may be different reasons behind the failure to raise a matter in cross-examination. The trial judge should, in answering question 2, have emphasised that oversights by counsel do occur during a trial and that that is what did happened in this case. That would have brought the matter to an end. The observations made in RWB (supra) by Simpson J at [101] are important in this respect. There, her Honour observed:-
"These authorities make it very plain that a trial judge should exercise great caution in directions to the jury concerning the failure of an accused's counsel to comply with the rule in Browne v Dunn. Browne v Dunn is an ancient and useful rule of practice and casts a considerable burden of care on counsel. But counsel are fallible and more than one inference may be drawn from non-compliance with the rule. Opposing counsel will always suggest that the only, or the proper, inference is that the client (or witness) failed to include the contentious matter in his/her instructions or statement. But the reality is that that is far from the only available inference, and it may be, and often is, quite unfair to suggest to a jury that that is the only inference, or the inference that they should draw."
It is clear not only that Mr Brady had, in fact, received written instructions from the applicant about the removal of the jeans issue prior to cross-examination of the complainant, but also that the Crown accepted that there had been an oversight.
The misdirection in relation to question 2 was an important one. It went directly to the issue of the applicant's credibility, a matter that was central to the question which the jury had to decide, namely, whether the sexual intercourse was consensual or not.
It was properly observed that no objection was taken to the direction nor any discharge of the jury sought and that, therefore, an issue arises as a result of the operation of the Criminal Appeal Rules 1952, Rule 4. By Rule 4, no direction, omission to direct, or decision as to the admission or rejection of evidence given by the trial judge presiding shall, without the leave of the Court, be allowed as a ground of appeal or an application for leave to appeal unless the objection was taken at the trial to such direction, omission or decision.
Mr Averre, of counsel who appeared on behalf of the applicant, contended that leave under Rule 4 should be granted as there was and could be no forensic reason for counsel at the trial not asking for a re-direction or discharge of the jury.
I consider that this is a case in which Rule 4 has no application. Questions 1 and 2 raised by the jury were highly unusual and it is clear that they posed difficulty for the trial judge, the learned Crown Prosecutor and defence counsel in determining how the questions should be dealt with. In the particular circumstances of this case in which I have concluded that a substantial injustice arose from the misdirection concerning question 2, this is not a case in which Rule 4 should be applied.
In those circumstances, on the basis that leave to appeal is granted, the question arises as to whether or not the proviso to s.6(1) of the Criminal Appeal Act should be applied.
On the basis of the error and the directions given in relation to question 2, I consider that there was a miscarriage of justice. Section 6(1) of the Criminal Appeal Act provides that the Court may, notwithstanding that it is of the opinion that the point or points raised by the appeal might be decided in favour of the appellant, dismiss the appeal "... if it considers that no substantial miscarriage of justice has actually occurred" .
The provisions of s.6(1) are, of course, to be applied in accordance with the principles governing the statutory task arising in the application of the proviso to the section: Weiss v Regina (2005) 224 CLR 300.
In its written submissions, the Crown contended that, in considering the application of the proviso, this Court should make its own independent assessment of the evidence and determine whether the guilt of the applicant has been demonstrated beyond reasonable doubt upon a consideration of the whole of the record, including the verdict of the jury: Weiss (supra); RWB (supra) at [133] to [134].
The Crown submitted that the Court would be satisfied beyond reasonable doubt of the guilt of the applicant. In support, it referred to a number of matters set out in paragraph [69] of the Crown's written submissions. In summary, these were:-
(1) The circumstance that there was little divergence between the Crown case and that of the applicant except upon the central issue in dispute, namely, consent.
(2) The relatively high degree of coherence of the evidence in the Crown case upon that central issue, particularly that of the complainant and the support for that evidence provided by her contemporaneous complaint to her friends and her contemporaneous state of distress witnessed by those friends.
(3) The evidence of the complainant that she would not have had a consensual intercourse with the applicant because, inter alia, she was at the end of her menstrual period and, in that respect, the evidence of Dr Hamilton.
(4) The implausibility of aspects of the account of the applicant that sexual intercourse occurred:-
(a) in a room adjacent to his own when her friends, Amy and Timothy, were close by outside and expected to return imminently;
(b) the complainant, in her heavily intoxicated condition, had managed to slide his jeans down by pushing them down with the soles of her feet;
(c) the complainant's distress;
(d) the immediate complaint to the complainant's friends, Amy and Timothy that she had been raped.
There are, I consider, two issues to be considered in this case. Firstly, the nature of the failure to properly instruct the jury by way of answer to question 2. Secondly, whether the misdirection was a matter that went to the fairness of the trial in a fundamental way.
The jury's question (question 2) carried with it a significance that went well beyond the omission by counsel for the accused to raise one aspect of a factual matter relied upon by the defence.
The Crown, having drawn attention to the failure by the applicant's counsel to cross-examine the complainant on that aspect and that having been left for the jury to use in its consideration of the evidence, the jury (as indicated by its questions) were left to evaluate the truthfulness or veracity of the applicant by reference, amongst other matters, to his counsel's conduct of the cross-examination of the complainant.
For reasons earlier stated, the jury should not have been permitted to venture into, or to undertake an evaluation of that kind. The directions given by the trial judge by way of answer to the jury's question did not inform the jury that that issue was of no significance whatever in the trial. That omission or failure was compounded by the trial judge's direction which, in effect, left it to the jury to determine whether any omission or failure by counsel to cross-examine the complainant on the matter in question had arisen by reason of counsel's oversight, as distinct, for example, from indicating counsel's disbelief of his own client. This, of course, as earlier stated was an exercise which it was impossible for the jury to resolve.
The erroneous directions by way of answer to question 2, accordingly, left the jury in the position whereby the determination by them of the applicant's credibility could turn upon their determination of what was or had become, in effect, a false issue. In other words, the function of the jury to fairly and properly determine the issue concerning the applicant's credibility overall was, in my opinion, seriously impaired by the failure to properly and adequately answer and direct the jury in relation to question 2.
I do not consider that it could be said that the jury in this case would have inevitably convicted the applicant but for that misdirection.
Relevant authorities establish that, where there has been a departure from the requirement of a properly conducted trial, it cannot be said that there has been no substantial miscarriage of justice if the applicant has thereby lost "a chance which was fairly open to him of being acquitted" , to use the phrase of Fullagher J in Mraz v Regina (1955) 93 CLR 493 at 514 or "a real chance of acquittal" , to use the phrase of Barwick CJ in Regina v Storey (1978) 140 CLR 364 at 376.
In Wilde v Regina (1987-1988) 164 CLR 365 at 372, Brennan, Dawson and Toohey JJ observed:-
"... Unless it can be said that, had there been no blemish in the trial, an appropriately instructed jury, acting reasonably on the evidence properly before them and applying the correct onus and standard of proof, would inevitably have convicted the accused, the conviction must be set aside ... Unless that can be said, the accused may have lost a fair chance of acquittal by the failure to afford him the trial to which he was entitled, that is to say, a trial in which the relevant law was correctly explained to the jury and the rules of procedure and evidence were strictly followed: see Mraz v Regina ... The loss of such a chance of acquittal cannot be anything but a substantial miscarriage of justice."
Applying the principles enunciated in Weiss (supra), I am of the opinion that in this case it is not possible to say, notwithstanding the misdirection on question 2, that the jury would inevitably have convicted the applicant. Accordingly, in my opinion, the proviso cannot be applied in this case.
(2) Ground 2
The second ground of appeal is in the following terms:-
"Ground 2: The verdict is unreasonable or cannot be supported, having regard to the evidence."
The submission for the applicant was that an analysis of the totality of the evidence and, in particular, of alleged inconsistencies which it is asserted existed in the evidence of the complainant and of the witness, Amy, that this Court would conclude that the verdict was unreasonable and not supported by the evidence.
It was contended in this respect that there were a number of "key aspects" of the evidence on particular issues which support the above submission made in relation to Ground 2. The submissions for both the applicant and the Crown identify the particular matters with which this ground of appeal is concerned.
Ground 2 then essentially proceeds upon the basis of claimed inconsistencies in the evidence, including inconsistencies said to exist on certain aspects in the evidence of the complainant. The alleged inconsistencies are directed to the proposition that they impact upon the reliability of the complainant's evidence.
The inconsistencies in what are referred to as "... a number of key aspects of the evidence ..." (Appellant's written submissions at [188]) are, accordingly, relied upon as the basis for a conclusion, in terms of s.6(1) of the Criminal Appeal Act , that the verdict of the jury should be set aside on the ground that it is unreasonable or cannot be supported.
In M v The Queen (1994) 181 CLR 487, the High Court, at 492, observed that a court of criminal appeal in deciding whether to set aside a verdict, inter alia, on the ground that it is unreasonable or cannot be supported having regard to the evidence involves a question of fact which the Court must decide by making its own independent assessment of the evidence. At 494, the Court (Mason CJ, Deane, Dawson and Toohey JJ) further observed:-
"... It is only where a jury's advantage in seeing and hearing the evidence is capable of resolving a doubt experienced by a Court of Criminal Appeal that the Court may conclude that no miscarriage of justice occurred. That is to say, where the evidence lacks credibility for reasons which are not explained by the manner in which it was given, a reasonable doubt experienced by the Court is a doubt which a reasonable jury ought to have experienced. If the evidence, upon the record itself, contains discrepancies, displays inadequacies, is tainted or otherwise lacks probative force in such a way as to lead the Court of Criminal Appeal to conclude that, even allowing full allowance for the advantages enjoyed by the jury, there is a significant possibility that an innocent person has been convicted, then the Court is bound to act and to set aside a verdict based upon that evidence ..."
The test to be applied as stated in the joint judgment in M (supra) has since been accepted and applied by the High Court in Jones v The Queen (1997) 191 CLR 439 and in MFA v The Queen (2002) 213 CLR 606 at 614 to 615.
I have examined each of the matters that have been put forward in support of Ground 2. Upon consideration, they are not, in my opinion such as to, in themselves, provide a basis for a conclusion by this Court to intervene upon the basis stated in M (supra). In other words, I do not consider that it can be said that the Crown case, taken as a whole, can be said to have been so significantly diminished by the claimed inconsistencies as to establish, in terms of s.6(1) of the Criminal Appeal Act , Ground 2.
On the basis of the conclusions expressed in relation to Ground 1, I accordingly propose the following orders:-
(1) Leave be granted to the applicant to appeal pursuant to s.5(1) of the Criminal Appeal Act 1912.
(2) An order that the appeal is allowed.
(3) An order that the conviction of the applicant for an offence under s.61I of the Crimes Act 1900 entered on 18 June 2010 be set aside.
(4) An order pursuant to s.8 of the Criminal Appeal Act 1912 that there be a new trial in relation to the offence charged under s.61I of the Crimes Act 1900.
GARLING J : I agree with the orders proposed by Hall J.
I gratefully adopt his Honour's outline of the facts, evidence and directions given at the trial, and also the grounds of appeal. I desire to make some observations of my own because I arrive at the same result as does Hall J, but by a different route.
The first part of Ground 1 concerned the trial judge's decision to allow the crown prosecutor to ask a particular question of the applicant in cross-examination. The second part concerned the adequacy of the trial judge's subsequent directions to the jury in respect of the question.
The question was as follows:
"Q: Would you agree, Mr Llewellyn, that when [the complainant] was being cross-examined, it was never suggested to her in cross-examination that your jeans were pulled down by her using her feet in the manner you've described for us just a little while ago?"
After an objection to that question, which her Honour allowed, the crown prosecutor put the question again in similar, although not identical form. It was:
"Q: I'll just put the proposition to you again. Would you agree that in cross-examination of [the complainant] it was never suggested to her that she actually pulled your pants down, your jeans and so forth, using her feet in the manner that you just described?"
The clear intention behind the questions was to suggest that, because counsel for the accused had not questioned the complainant about the specified matters, the applicant's evidence on those matters was not reliable.
This type of questioning, and the process of reasoning underlying it, has been the subject of much judicial criticism. In R v Manunta (Unreported, Full Court, Supreme Court of South Australia, 28 July 1989), King CJ said:
"It is legitimate, of course, to draw appropriate conclusions from counsel's failure to put in cross-examination some matter to which his client or his witnesses subsequently depose. It is a process of reasoning, however, which is fraught with peril and should therefore be used only with much caution and circumspection. There may be many explanations of the omission which do not reflect upon the credibility of the witnesses. Counsel may have misunderstood his instructions. The witnesses may not have been fully cooperative in providing statements. Forensic pressures may have resulted in looseness or inexactitude in the framing of the questions. The matter might simply have been overlooked. I think that where the possibility of drawing an adverse inference is left to the jury, the jury should be assisted, generally speaking, by some reference to the sort of factors which I have mentioned. Jurors are not familiar with the course of trial or preparation for trial and such considerations may not spontaneously enter into their minds".
Gleeson CJ in R v Birks (1990) 19 NSWLR 677 adopted the comments of King CJ and added at 691G:
"I would add that one particular matter which makes it difficult for jurors to use the conduct of counsel as a basis for drawing inferences of fact is that most jurors are unaware of the principles ... relating to the wide discretion available to counsel as to the manner in which a trial may be conducted".
Lusher AJ in Birks said this at 702:
"The primary and basis rule of all litigation, civil and criminal, is that the client's instructions to his legal advisors are privileged and he can freely and properly reveal all to his legal advisors without fear of disclosure or penalty.
The Crown cross-examined the accused vigorously, ... It is pointless to say it was done without objection. The privilege is not that of counsel to waive by not objecting, it is that of the client, the accused, and it is only he who can waive the privilege and nobody suggests that he did. Nor can it be said that for an accused to answer such questions in the witness box is a waiver on his part of privilege; the answer to that is first, the question should not have been put. It was unfair in that it would force an objection embarrassing to the defence and the implications of which a jury would not understand or else cause counsel to seek instructions and advise the accused then in the witness box, and then take perhaps an embarrassing objection. It was inadmissible, and an objection must have been upheld. Secondly, in a criminal trial an admission, and a waiver is in the nature of an admission, can only be made by an accused on the advice of counsel, sensibly and usually in writing, which is difficult to obtain or give in the run of a vigorous cross-examination. Lastly, an accused cannot be required to make an admission or even to consider one."
This Court has subsequently dealt with this issue in R v Dennis [1999] NSWCCA 23 at [35]-[37] per McInerney J, at [45]-[51] per Spigelman CJ; R v Abdallah [2001] NSWCCA 506 at [19]-[24] per Sheller JA; Picker v R [2002] NSWCCA 78 at [38]-[62] per Smart AJ; R v Scott [2004] NSWCCA 254 at [41]-[63] per Hulme J; R v Banic [2004] NSWCCA 322 at [23]-[29] per Barr J; RWB v R [2010] NSWCCA 147 at [63]-[102] per Simpson J.
From these authorities I derive the following principles which can be shortly stated:
(a) Where a defence counsel has failed to put something to a prosecution witness in cross-examination, it may be legitimate, depending on the circumstances of the case, to draw appropriate conclusions from that failure: R v Manunta ; R v Birks at 690-692 per Gleeson CJ; R v Scott at [41]-[63] per Hulme J.
(b) To suggest that the only appropriate conclusion to be drawn is that the accused's evidence should be disbelieved, perhaps as a recent invention or as part of an attack on the credibility of the accused, is a process of reasoning that is fraught with danger and must be approached with caution. There could be many reasons why a defence counsel chose to conduct cross-examination in a particular way: R v Manunta; R v Birks at 691-692 per Gleeson CJ; RWB v R at [101] per Simpson J.
(c) Before a crown prosecutor makes such a suggestion, either in cross-examination of the accused or in summing up to the jury, the crown prosecutor must have a proper basis for it. This is consistent with the specific duties owed by prosecutors, and also the general duties of all barristers: Whitehorn v The Queen (1983) 152 CLR 657 at 663-664 per Deane J; rr 35 & 62-64, NSW Barristers' Rules .
(d) Except in the rarest of cases and only where a proper basis exists, cross-examination of the accused in this manner is highly and unfairly prejudicial to the accused, with the potential to undermine the requirements of a fair trial: R v Birks at 703D per Lusher AJ; R v Dennis at [45]-[46] per Spigelman CJ; Picker v R at [41]-[42] per Smart AJ.
(e) It is unsatisfactory for a crown prosecutor to embark upon this type of cross-examination without a proper basis, and then to rely upon a defence counsel in re-examination or address, or the trial judge in directing a jury during the summing up to try to mitigate the prejudice to the accused. However, if left in this position, the trial judge must, along with giving the usual directions as to the drawing of inferences against the accused, give clear directions to the jury as to the range of possible explanations for a failure by defence counsel to put something to a prosecution witness: R v Manunta ; R v Abdallah at [24] per Sheller JA; Picker v R at [47]-[62] per Smart AJ.
The crown prosecutor's question in this case, and the allowance of it by the trial judge, was in clear breach of these principles. First, there had been no failure by the counsel for the accused, acting in accordance with his proper duty, to cross-examine the complainant adequately, and there was no obligation on counsel for the accused to put to the complainant the precise detail of the way in which she had assisted the applicant to remove his trousers. Thus, the occasion for asserting that the credibility of the accused was able to be criticised by the crown prosecutor, and therefore doubted by a jury, did not arise.
Secondly, the only purpose for the asking of such a question was to suggest that the applicant had recently invented, in the course of his evidence in chief, the version which he had given in evidence, or else that the applicant was not a credible witness of the events of the evening in question. Yet the crown prosecutor was not in a position to make such a suggestion. That was because the evidence which was given in chief was not contrary to, or inconsistent with, any earlier account which the applicant had given. As well, as I have explained above, there had been no failure to properly cross-examine by counsel for the accused. Thus, when the applicant gave evidence in chief, it was the first occasion when the applicant had the opportunity to fully articulate the detail of what had occurred. There was no basis for any suggestion of recent invention or lack of credibility on the part of the accused in giving his evidence.
Thirdly, the question necessarily engaged the applicant either in giving a direct answer, or else in re-examination, in revealing what his instructions were to his counsel. Those instructions were then and remain privileged. To ask a question, the answer to which, or else an explanation for which, must reveal the instructions of an accused to his lawyers which are legally professional privileged, is fundamentally unfair. It is, as Lusher AJ has demonstrated in R v Birks at 702E, a question which requires the accused to make an admission by way of a waiver of instructions, or else place the onus on an accused to reveal his instructions which ought never arise.
Although the question was objected to, it was allowed. The trial judge did not ask the crown prosecutor, in the absence of the jury, to explain the basis for the question. She did not ask counsel for the accused to justify his objection. Whilst it is true, particularly in the course of cross-examination of a witness, such as the applicant, in front of a jury in a criminal trial, it is an appropriate, indeed common, practice to deal with objections without inviting full argument, having regard to the authorities of this and other superior courts for well over 20 years, that questions of this kind raise issues indicating the need for the application of caution, or "much caution and circumspection", these authorities did not seem to have engaged the trial judge. It was inappropriate for the trial judge to have allowed the question without argument demonstrating the basis for that question.
In my opinion, there was no basis at all for the crown prosecutor to ask these questions. In the circumstances of this trial, having regard to the issues which were posed for the jury, and having regard to the terms of the cross-examination of the complainant by counsel for the accused, they were improper questions. They should never have been allowed. As a consequence, in my opinion, without more, the trial was thereby an unfair trial, and it cannot be saved by the application of the proviso. The conviction must be set aside.
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Decision last updated: 28 August 2018
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