MAM v The State of Western Australia - [2018] WASCA 35

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

TITLE OF COURT : THE COURT OF APPEAL (WA)

CITATION: MAM -v- THE STATE OF WESTERN AUSTRALIA [2018] WASCA 35

CORAM: MARTIN CJ
BEECH JA
HALL J

HEARD: 6 FEBRUARY 2018

DELIVERED : 16 MARCH 2018

FILE NO/S: CACR 17 of 2017

BETWEEN: MAM
Appellant
AND
THE STATE OF WESTERN AUSTRALIA
Respondent

FILE NO/S :CACR 18 of 2017

BETWEEN :SF
Appellant
AND
THE STATE OF WESTERN AUSTRALIA
Respondent

ON APPEAL FROM:
Jurisdiction              :  DISTRICT COURT OF WESTERN AUSTRALIA
Coram  :GETHING DCJ
File No  :IND 308 of 2016

Catchwords:

Criminal procedure - Conduct and duty of counsel for the prosecution - Improper and prejudicial comments by counsel - Breach of prosecutor's duties - Miscarriage of justice

Legislation:

Nil

Result:

CACR 17 of 2017:
Appeal allowed

CACR 18 of 2017:
Appeal allowed

Category: B

Representation:

CACR 17 of 2017

Counsel:

Appellant: Mr S B Watters
Respondent: Mr R G Wilson

Solicitors:

Appellant: Patti Chong Lawyer
Respondent: Director of Public Prosecutions (WA)

CACR 18 of 2017

Counsel:

Appellant: Mr S B Watters
Respondent: Mr R G Wilson

Solicitors:

Appellant: Patti Chong Lawyer
Respondent: Director of Public Prosecutions (WA)

Case(s) referred to in judgment(s):

Deriz v The Queen [1999] WASCA 267; (1999) 109 A Crim R 329
Holman v The Queen [1970] WAR 2
JJS v The State of Western Australia [2014] WASCA 136
Lyons & Lyons v The Queen (1992) 64 A Crim R 101
McCullough v The Queen (1982) 6 A Crim R 274
R v Roulston [1976] 2 NZLR 644
Vella v The Queen (1990) 2 WAR 537
MARTIN CJ:

Summary

MAM and SF were each convicted after trial by jury in the District Court of Western Australia on one count of sexually penetrating the same complainant without her consent in a circumstance of aggravation, in that they were in the company of each other. The form of penetration alleged was penile penetration of the complainant's vagina.
Each of MAM and SF appeals against his conviction on identical grounds which assert, in effect, that inflammatory, unjustified, misleading and distracting assertions made by the prosecutor in his closing address gave rise to a miscarriage of justice.
For the reasons which follow, leave to appeal should be granted to each appellant, each appeal upheld, each conviction quashed and a retrial ordered in each case.

The prosecution opening

In his opening address to the jury, the prosecutor succinctly described the prosecution case in the following terms:[1]
This young woman, 25 at the time, now 26, was taken from the street whilst drunk, raped and dumped back in Northbridge.
[1] ts 54.
The prosecutor foreshadowed defence admissions to the effect that each accused sexually penetrated the complainant on the night in question and advised the jury that the main question in the trial would be whether the complainant consented.
The prosecutor then outlined the evidence that would be led in greater detail. In essence, the prosecutor suggested that the jury would conclude that the complainant was too drunk to consent to sexual penetration by either appellant.

The opening addresses for the defence

Each defence counsel made an opening address, in the course of which he advised the jury that there would be no dispute that sexual penetration took place, and that the only issue in the case would be the question of whether the complainant consented to sexual penetration. Each counsel asserted that the complainant not only consented but willingly engaged in the sexual intercourse that took place with each man.[2]
[2] ts 72, 85.

The prosecution case

The prosecution led evidence from a Mr Steven Giles, who was walking home from a hotel in Northbridge when he encountered the complainant in a distressed state, crying and shaking. She asserted that she had been taken away by two men in a car to 'King's Cross Park'[3] where she was raped. He accompanied her to a nearby police station. He noticed that her tights or leggings were ripped and that she was very upset and very shaken. The view of Mr Giles was that the complainant 'wasn't intoxicated by any means'[4] and could still walk and talk normally.
[3] Clearly meaning 'King's Park'. Mr Giles gave evidence by video from Sydney.
[4] ts 102.
The complainant gave evidence to the effect that after finishing work at 5 pm on Sunday 5 April 2015 she went home and had one mid-strength beer before catching a train to Perth to meet friends.[5] After meeting her friends at a hotel in the city where she had two pints of beer, the complainant went with her friends to another hotel in Northbridge. At this hotel she had three glasses of bourbon and Coke.[6] After her friends had a disagreement and left, she remained at the hotel. She eventually left the hotel and sat against a wall near a tree.[7] As best she could recall, two men approached her and talked to her, although she could not recall what they said.[8] Her next recollection was sitting in the back seat of a car. She did not know how she got into the back seat of the car.[9] Her next recollection was of lying down on the back seat of the car, with her head against the door, with someone lying on top of her. That person's penis was inside her vagina, but she could not recall how it got there.[10] She recalled another man being present, outside the car.[11] She thought she was in King's Park because she saw trees, but she was not sure.[12]
[5] ts 113.
[6] ts 116.
[7] ts 117.
[8] ts 118.
[9] ts 118.
[10] ts 119.
[11] ts 119.
[12] ts 119 - 120.
The complainant's next memory was looking for her phone in the back seat of the car. She did not find it. She asked the men if they had seen her phone. She gave one of them her number to call her phone to see if it was in the car. She did not hear the phone ring.[13] Her next recollection was of walking down a street when someone approached her.[14] She did not know where the street was.
[13] ts 120.
[14] ts 121.
When asked by the prosecutor whether she consented to having sex with the man in the car in King's Park, she replied, 'Not that I recall'.[15] She could not recall anybody asking for consent or any conversation with anybody while in King's Park.[16]
[15] ts 124.
[16] ts 124.
The complainant confirmed that she told the man she met on the street that she had been raped, and confirmed that she was extremely distressed and that she could not find her phone.[17]
[17] ts 125.
After attending the police station, the complainant noticed that her stockings were torn around the crutch and the knees, and that she was bleeding from her vagina (although it was not her period).[18] The complainant was then taken to the Sexual Assault Referral Centre where she was examined by a female doctor. The complainant noticed that she had bruising on her upper arm and on her legs.
[18] ts 127.
The prosecutor again asked her whether she consented to sexual intercourse with anybody and the complainant replied, 'Not that I recall, no'.[19]
[19] ts 129.
In the course of cross‑examination by counsel for MAM, the complainant confirmed that she had been a heavy drinker in the past and had sometimes lost her memory of things as a result of her drinking, including her memory of how she got into a taxi.[20] She confirmed that there were bits of the night in question which she could not remember.[21] She accepted that she probably was not picked up by the men and bundled into their car.[22] She accepted that it was likely she would have spoken to one or other of the men before getting into the car.[23] When counsel for MAM put to her that she had a discussion with a man before getting into the back of the car, she responded to the effect that she had no recollection of those events.[24] Nor could she remember speaking to any of the men in the car.[25] She was not sure if the second man had had sex with her.[26]
[20] ts 137.
[21] ts 138.
[22] ts 142.
[23] ts 143.
[24] ts 142 - 143.
[25] ts 145.
[26] ts 145.
The complainant also accepted that when she was at the hotel in Northbridge she spoke to strangers, that she was single and available and liked having sex.[27] When asked if it was possible that she had engaged in some conversation, some joking and some fondling in the back seat of the car, she replied 'maybe'.[28] When asked if it was possible that she was active in touching the man or men in the car in a way that might suggest to them she was interested in sex and had forgotten about that she replied, 'I don't know'.[29]
[27] ts 146.
[28] ts 145.
[29] ts 146.
The complainant was unable to remember any threats, demands or violence.[30] She was unable to recall the colour of the car in which she travelled.[31]
[30] ts 146.
[31] ts 149.
Counsel for SF put to the complainant that she could not recall whether she actively engaged in sexual activity in the rear seat of a car parked in King's Park without raising the least objection, to which she replied, 'No, I don't remember'. She then accepted that it was perfectly possible that she may have.[32]
[32] ts 151 - 152.
In re-examination, the complainant stated that she was not in the habit of getting into cars with strangers in Northbridge, including cars with two strange men in them. She confirmed that she had no recollection of any of the matters other than those previously recounted in her evidence.[33] When asked in re‑examination whether she actively engaged in any form of sexual behaviour on the evening in question, she replied in the negative - contrary to her acceptance in cross‑examination that it was possible she may have, and could not recall whether she did or did not. When asked in re‑examination if she consented to anything, she replied, 'Not that I remember, no'.[34]
[33] ts 152.
[34] ts 155.
The next prosecution witness called was a female friend of the complainant who was one of the group who had met the complainant for drinks on the evening in question.[35] According to this witness, the group, including the complainant, was at the hotel in the city for an hour or two before moving to a hotel in Northbridge, where they spent approximately three hours. According to the witness, the complainant was 'hanging out with a male' at the hotel in Northbridge. She described the complainant as being 'buzzed and having a good time but with her wits about her'.[36] According to her, the complainant was 'just a little' affected by drink - relaxed and more happy and excited.[37] The witness left the hotel in Northbridge at about 11.30 pm. The last time she spoke to the complainant before leaving was about 40 minutes earlier, when she was with the man to whom she was talking.[38]
[35] I will not name the witness in the interests of preserving the anonymity of the complainant.
[36] ts 175 ‑ 176.
[37] ts 176.
[38] ts 178.
The next witness called was another member of the group with whom the complainant had been drinking on the night in question.[39] He was unable to recall how many drinks the complainant had in the hotel in the city. According to him, the group went to the hotel in Northbridge 'no later than 10.30'.[40] He was not talking to the complainant at the hotel in Northbridge and was unable to say how much she was drinking.[41] He spoke to the complainant before leaving the hotel in the latter part of the evening when he described her condition as 'fine - I didn't notice anything out of the ordinary - bubbly, that's the way she is'.[42]
[39] Again, I will not identify this witness in the interests of preserving the anonymity of the complainant.
[40] ts 183.
[41] ts 183.
[42] ts 185.
The next prosecution witness called was Detective Senior Constable Geary, who attended upon the complainant when she arrived at the police station. He described her condition at that time as 'considerably disorientated', and from his observation, intoxicated.[43] Detective Geary described the steps which were taken after the complainant presented to the police station, including the gathering of evidence.
[43] ts 187 ‑ 188.
In cross‑examination, Detective Geary agreed that there was nothing in the statement which he prepared at the time recording the intoxication or disorientation of the complainant. When it was put to him that the complainant gave a coherent account of where she had been, he disagreed.[44] Detective Geary agreed that there was no contemporaneous record in his notes of disorientation, confusion or intoxication.[45] However, he was confident that he was able to recall the complainant's condition at the time.
[44] ts 192.
[45] ts 195.
The prosecution also led evidence from a medical practitioner attached to the Sexual Assault Reference Centre. She examined the complainant at about 9.30 am in the morning following the events in question. She described the complainant as cooperative, tearful at times and quite tired.[46] A bruise 1 cm in diameter was noticed on the back of the complainant's left forearm, and a diffuse pink mark which was not clearly a bruise or abrasion was noticed on the complainant's right forearm. A 1 cm diameter bruise was also noticed on the front of the complainant's left thigh, together with redness over the front of the complainant's left knee.
[46] ts 223.
Examination of the complainant's genitalia revealed a smearing of blood on the external genitalia and also on the top of her thighs.[47] However, examination did not identify any source of the bleeding, or any recent injury within the complainant's vagina, or on the external genitalia.
[47] ts 231.
In cross‑examination, the doctor stated that the complainant told her that she had consumed a couple of pints of beer between 7 pm and 9 pm, and three or four bourbon and Cokes at another venue between 9 pm and 10 pm.[48] The complainant told the doctor that she was feeling a bit intoxicated by the time her friends left. She remembered getting into a car with some men she had not met before and told the doctor that she thought they went to King's Park, after which she was dropped off in the city before she met a man who took her to the police station about 4 am. The complainant told the doctor that she thought two men may have had sex with her.[49] The doctor also agreed that the markings she observed on the complainant's body could have arisen in the course of sexual intercourse or just from getting in and out of a car or bumping oneself in other ways as well.[50] The doctor accepted that the presence of the injuries she observed did not imply that any sexual action was necessarily non-consensual.[51] The doctor also agreed that no inference could be drawn from the blood which she observed in relation to the nature or fact of any sexual activity.[52]
[48] ts 241.
[49] ts 242.
[50] ts 244.
[51] ts 244.
[52] ts 245.
Evidence was also given of the DNA analysis of various samples taken from the complainant and her clothing. As each appellant admitted penile penetration of the complainant, it is unnecessary to review that evidence.
Evidence was also led from Detective Senior Constable Willdigg in relation to forensic samples she took from the complainant and with respect to the recovery of CCTV footage from the hotel in Northbridge which the complainant had visited. Officer Willdigg confirmed that the CCTV footage which she reviewed revealed the complainant speaking to various men in the hotel and buying drinks between about 11 pm and 1.45 am, when she left the hotel. CCTV footage also revealed that after leaving the hotel, the complainant leant on the wall of the hotel for approximately two minutes. Officer Willdigg also gave evidence of recovery of account records relating to a mobile phone in the name of MAM's father. When Officer Willdigg telephoned the number of that telephone, she spoke to MAM, who agreed to meet her at Morley Police Station. When MAM attended the police station, he was interviewed by police, and the recording of that interview was tendered in evidence and played to the jury, after the judge directed the jury that the interview was only evidence in the case against MAM.

The video record of interview

The interview took place on 20 May 2015 - approximately six weeks after the alleged offences took place. MAM was advised of the nature of the police inquiries and asked where he was on the night in question. He replied that he could not remember. He told police that it would be fairly unusual for him to go to Northbridge because it was not a place he and his friends liked.[53] He also told police that most nights he went out with his friends he got pretty drunk, which made it hard to remember those nights.
[53] Video ts 7.
When police told MAM of the nature of the allegations made by the complainant, he responded to the effect that the assertions were ridiculous. He told police that he could not remember speaking to a female who was drunk or under the weather.[54] When MAM was shown a picture of the complainant he told police that he could not remember seeing her.[55] He also told police he could not remember being in a car with a female he did not know over the last five weeks.[56] MAM told police he could not remember having sex with a female on the back seat of a car[57] and that he could not 'believe stuff like this happens'.[58]
[54] Video ts 15.
[55] Video ts 17.
[56] Video ts 17 - 18.
[57] Video ts 18.
[58] Video ts 19.
MAM confirmed that the mobile telephone he uses is registered in his father's name.[59] Police put to MAM that the telephone he uses was used to make a call to the complainant's telephone at 2.52 am on the morning in question. MAM denied any knowledge of the call and was unable to provide any explanation for it[60] other than to suggest that somebody might have used his phone, or that he might have lost it and got it back, or perhaps lent it to somebody else.
[59] Video ts 20.
[60] Video ts 22 - 23.
MAM denied having sex with the complainant, or having sex with any girls in the back of a car in Northbridge and, in the context of that line of questioning, told police:[61]
I don't have sex in the back of cars anyway, you know … I am more classy than that.
[61] Video ts 24.
Officer Willdigg was cross‑examined with respect to certain factual discrepancies in the matters that were put to MAM during the interview, including the day of the week on which the alleged incident took place (it was put to MAM that the incident occurred on a Saturday morning when in fact it occurred on a Sunday morning) and in relation to the location of the alleged sexual assault (it was put to MAM that it occurred in Northbridge when the alleged sexual assault took place in King's Park).
Evidence was then led confirming that a call was made from the phone used by MAM to the complainant's phone at 2.52 am on the morning in question.

The evidence led on behalf of MAM

MAM gave evidence. He told the jury that he was then 23 and had been born in Iraq before moving to Western Australia at the age of five. MAM accepted that his statement to police to the effect that he could not recall the incident in question was false, although he did not have a full recollection of everything, and that things were slowly coming back to him during the police interview.[62]
[62] ts 487.
MAM admitted that he had sex with the complainant on the night in question, but asserted that it was consensual - that they were both touching each other and had got to know each other and were cracking jokes and she was laughing at some of his jokes.[63]
[63] ts 491.
MAM gave evidence to the effect that he and SF decided to drive into Northbridge a bit after midnight on the evening in question because they were both bored. He had thought of perhaps going to a pub or a club but on the way to Northbridge he realised that SF was only wearing sandals, which would not allow him entry.[64] SF was driving MAM's father's car, which was a fairly big black sedan.[65]
[64] ts 493.
[65] ts 493.
According to MAM, as soon as they entered Northbridge SF spotted a girl and said that she looked like she was a bit distressed. They parked the car and went to see if the girl was okay.[66] MAM started speaking to her with 'a bit of chit-chat' and 'cracked some jokes'.[67] According to MAM she was responding fine but still looked a bit sad, but after he made her laugh she seemed a bit better.[68] The conversation went for two or three minutes. SF was still in the car.
[66] ts 494.
[67] ts 499.
[68] ts 499.

MAM invited her into the car. She took his hand and he led her to the car where she sat in the back seat on the left-hand side.[69] MAM assumed that she had been drinking but her speech was not slurred.[70] According to MAM, the complainant did not need any help to get into the car. MAM sat on the right‑hand side of the back seat of the car next to the complainant and SF drove the car to King's Park.[71]
[69] ts 500.
[70] ts 502.
[71] ts 502.
According to MAM, the drive to King's Park took 10 to 15 minutes, during which time he spoke to the complainant and introduced SF. According to MAM, he was trying to cheer her up and asked her about her work and her age. She told him that she was a nurse and that she was 27 years old. He joked about her being older than him and gave evidence to the effect that he said 'so you're a MILF'.[72]
[72] ts 507.
The trial judge intervened on the basis that he did not understand the word 'MILF'. MAM was asked to explain the acronym and, presumably in the interests of delicacy, replied that it was an acronym for 'mother I like to fondle'.[73] According to MAM, the complainant laughed when he described her as a 'MILF'. When asked if the expression was a well-known term amongst people of MAM's age, he replied, 'It's the most watched category so I would say yes'. It is likely that the jury, or at least some of them, would have understood this evidence to be a reference to categories of pornography available on the internet.
[73] ts 508.
MAM gave evidence to the effect that the complainant took off her seatbelt and moved to the middle of the back seat where she put her seatbelt back on, so that they were next to each other. According to him, the complainant had her hand on his lap and he had his hand around her shoulder.[74]
[74] ts 509.
MAM gave evidence to the effect that the car was parked in a carpark in King's Park. A bit after they parked, the complainant nudged SF, who was sitting in the front seat, and asked him, 'Why aren't you talking?' after which MAM told her that SF did not speak much English.[75] According to MAM, after that they started playing around a bit and he asked SF to leave the car for a few minutes. After SF left, the complainant started playing with his crotch and he started playing with the complainant's breast over the top of her shirt.[76] According to MAM, things advanced further, until SF returned to the car saying he was really cold. He also sat in the back seat, on the left hand side, so that the complainant was in the middle of the seat between the two men.[77] According to MAM, SF and the complainant started 'making out', which he described as 'touching each other's laps and what not', although the complainant continued to have her hand on his hand playing with his crotch. MAM then left the car and sat on a ledge six or seven metres away.[78] After five to seven minutes, SF came over to MAM and told him that he had finished, which MAM took as advising that he had finished having sex.[79]
[75] ts 516.
[76] ts 517.
[77] ts 518.
[78] ts 518.
[79] ts 520.
MAM then returned to the car to 'try my luck with the girl, see if she was still up for it'.[80] He returned to his previous position in the car and he and the complainant resumed what they had been doing. MAM then described the consensual sex which he asserted took place in some detail.[81] In the course of that description he asserted that he had engaged in foreplay with the complainant for about three to four minutes.[82] According to MAM, during that period the complainant said to him, 'You're such a tease'.[83] MAM gave evidence to the effect that he did not have a condom on him, but he withdrew his penis before ejaculation and ejaculated out the door of the car.[84] MAM stated that he believed the complainant was consenting because of the foreplay and the way in which she was touching him, and because of her behaviour during the intercourse which took place.
[80] ts 520.
[81] ts 521.
[82] ts 522.
[83] ts 522.
[84] ts 522.
When MAM was asked by his counsel whether he had spoken to the complainant after having sex with her, he replied:[85]
At the end I just - usually if I finish having sex with a girl I would - I would like to ask about how I did, but I just said - so I asked her, 'how was that?' and I recall her saying, 'it was okay'. So, you know, not a good rating.
[85] ts 523.
MAM then left the car and told SF that he had finished. MAM returned to the front passenger seat and SF drove the vehicle. They put the windows down 'to let a bit of the sexual air or whatever just get out', when he heard one of his friends from school calling out in the nearby vicinity.[86]
[86] ts 523.
MAM's friends came over to the car. They spoke for about three or four minutes. MAM could not remember if he introduced the complainant to them by name, but when they asked him who she was, he said, 'That's just one of our friends we found in Northbridge'.[87]
[87] ts 529.
According to MAM he asked the complainant if there was any specific place she wanted to be dropped off. Because she did not really mind, they decided to drive back to Northbridge. They did not go to any particular place in Northbridge - just somewhere randomly chosen. When they got back to Northbridge, the complainant realised she had lost her phone and became increasingly agitated.[88] MAM got out his phone and asked her to give him her number. He called the number but it went to voicemail and he terminated the call.[89] When the complainant could not find her phone, she got angry, slammed the car door and walked away.
[88] ts 537.
[89] ts 538.
When they got home, SF undertook a thorough search of the car and found the phone in the back seat. MAM did not know what SF did with the phone, although he believed that he used it but he was not sure for how long.[90]
[90] ts 545.
MAM explained the answers he gave to police during the interview on the basis that he panicked because he had never been in trouble with the police before. He was also concerned that if he admitted that he had had sex with the complainant, they would take her word against his if she said that she did not consent and he would be locked up.[91]
[91] ts 548.
In cross‑examination by counsel for SF, MAM stated that when he was speaking to the complainant in Northbridge, he had not exactly formed the intention of trying to have sex with her but in the back of his head, he would ultimately try if it was possible. He would try to flirt with her and see how she would respond 'and then ultimately if it led to sex, I mean I wouldn't - I wouldn't be saying no'.[92] However, when he first met the complainant he just wanted to get to know her - to pick her up, she was kind of cute and dressed nicely.[93] However, during the car journey to King's Park he formed the impression that there might be some form of sexual contact based on her behaviour - sitting next to him and putting her hand on him.[94]
[92] ts 557.
[93] ts 557.
[94] ts 557.
According to MAM, the complainant was not slurring her speech.
Under cross‑examination by the prosecutor, MAM stated that they came across the complainant very soon after they got to Northbridge. He also stated that neither he nor SF had had anything to drink.
When the prosecutor asked MAM why he spoke to the complainant, he replied that he was endeavouring to console somebody who appeared to be distressed. He agreed with the prosecutor that he would do this especially if the person was a young single female.[95] When the prosecutor put to him that it was with the purpose of having sex shortly afterwards, he replied, 'not shortly afterwards, but whatever happens happens'.[96]
[95] ts 581.
[96] ts 581.
MAM denied the prosecutor's proposition that he would look for the drunkest girl on the street, and who was alone.[97] When the prosecutor put to MAM that he spoke to the complainant because she might be up for sex, he replied, 'she might, who knows, but that's not what I talked to her about'.[98]
[97] ts 582.
[98] ts 582.
MAM agreed with the prosecutor's suggestion that he assumed the complainant had been drinking and that because he had not been drinking himself, he would be able to pick up the complainant's use of alcohol very quickly.
When the prosecutor again twice put to MAM that he was trawling the streets looking for a drunken lone female, MAM denied the proposition on each occasion.[99]
[99] ts 585.
MAM agreed with the prosecutor's proposition that King's Park was a better place to have sex with women than Northbridge, but denied that he had decided to have sex with the complainant when they decided to go to King's Park.[100] MAM also denied the prosecutor's suggestion that the complainant was too drunk to speak.[101]
[100] ts 589.
[101] ts 589.
When the prosecutor again put to MAM that he went to King's Park because there might be sex, he replied:[102]
It didn't come to my head at that stage but later when we got closer, I mean, it led to sex.
[102] ts 590.
MAM agreed with the prosecutor that the acronym MILF stood for 'Mothers I'd like to fuck', and stated that he had used the word 'fondle' during his evidence in chief because he did not want to use the word 'fuck'.[103] When the prosecutor asked him what he meant by 'the most watched category', MAM confirmed that he was speaking about categories of pornography. When the prosecutor put to MAM that he had been watching porn films that night, he denied the proposition.[104] However, he accepted that he had watched pornography films from time to time.
[103] ts 592.
[104] ts 593.
When the prosecutor put to MAM that he described the complainant as a MILF because it implied that he wanted to have sex with her, MAM replied:[105]
If you put it this way a lot of people would want sex but they're not going to, you know, push for sex. So I would go - go at it as, you know, as normal, flirt, what not, and if it leads to sex, it leads to sex.
[105] ts 593.
When the prosecutor again put to MAM that the complainant was not saying anything and was drunk, and was not consenting because she did not even know where she was, and was asleep in the back of the car as they were driving up to King's Park, MAM denied all these propositions.
MAM accepted the prosecutor's proposition that the complainant and SF spoke only two words, because SF's English was very limited. When the prosecutor put to MAM that he and SF had gone to Northbridge to pick up a drunken girl with whom to have sex, he again denied the proposition.[106]
[106] ts 612.
MAM admitted to the prosecutor that he had lied to police, and said that he had done so because he had panicked.[107]
[107] ts 627 - 628.
Mr Al Jorany was also called to give evidence by counsel for MAM. He is a friend of MAM and was one of the people who came across MAM and SF in King's Park on the night in question. He saw the woman who was in the car with MAM speaking to him. She appeared to be sitting normally and everything looked calm.[108]
[108] ts 662.
Mr Al Jorany also gave evidence of MAM's reputation within the community of which they were both members. His evidence was to the effect that MAM had quite a good reputation within the community and he had never heard of anything negative about his dealings with women.[109]
[109] ts 665.
Character evidence was led from Mr Al Asadi, a young man who is a close friend of MAM and a member of the Middle Eastern community. He gave evidence of MAM's reputation within the community of people from the Middle East living in Western Australia. His evidence was to the effect that MAM is regarded as honest with a very good reputation for dealing with women - a kind and respectful person.[110] In cross‑examination, Mr Al Asadi was asked if he had ever been to Northbridge late at night with MAM looking for single lone females. Mr Al Asadi stated that he had never done such a thing either himself or with MAM.[111]
[110] ts 695.
[111] ts 700.
MAM's counsel also led evidence from Ms Oz, a young woman of approximately the same age as MAM and a member of the Middle Eastern community. She gave evidence to the effect that MAM had only ever been very respectful of women and was a very considerate person who never made anyone feel uncomfortable. He had no reputation for treating women inappropriately or for engaging in unwanted physical contact with them.
Character evidence was also led from Ms Chambers, another young woman of the same age as MAM who was also a member of the Middle Eastern community. Her evidence was to the effect that MAM had a reputation for being honest, trustworthy, caring and mature. He had no reputation for inappropriate behaviour towards women. She had seen him in the community dealing with females and she had never seen him harass females or engage in any behaviour of that kind. She had gone out with MAM when they were both at school, and he had respected her view that she did not believe in sex before marriage. She considered that he was very reserved when it came to speaking with females.[112]
[112] ts 710.

Summary of the evidence

The prosecution case was not overwhelming. The complainant's evidence with respect to her lack of consent was equivocal, being often couched in terms of 'as far as [she] could recall', and could not be described as emphatic. This is presumably why the prosecutor opened the case on the basis that the complainant was too drunk to consent to the sexual penetration which took place, rather than on the basis that she resisted or opposed sexual penetration. Even if the jury accepted that the complainant was too drunk to consent, the approach taken by the prosecutor, and the evidence given by the complainant, left open a very real issue as to whether the prosecution had established beyond reasonable doubt that the accused men did not have an honest and reasonable belief that the complainant had consented to sexual penetration.
On the other hand, MAM admitted that he lied to police in circumstances from which the jury might have inferred that he lied because he was aware that he was guilty of the offence with which he had been charged, and was trying to obscure that guilt. Although that evidence and process of reasoning was only available in the case against MAM, it was open to the jury to conclude that the course of events narrated by MAM in the evidence which he gave and which was admissible against both men was inherently improbable. Put more directly, it was open to the jury to infer that it was inherently improbable that the complainant would have willingly and actively participated in sexual intercourse with two men she had not previously met, very shortly after meeting them, and after speaking only one or two words with one of those men. If the jury rejected MAM's version of events, it was open to the jury to infer that the only reasonable explanation for the sexual penetration which took place was that the complainant was too drunk to either consent or resist, as the prosecutor contended, and that her condition was such that neither accused could have reasonably and honestly believed that she was consenting.
At all events, as, in effect, the judge directed the jury,[113] the evidence left only two questions alive in the case:
(a)had the prosecution proved beyond reasonable doubt that the complainant did not consent to her sexual penetration by the relevant accused in the back seat of the car in King's Park; and
(b)had the prosecution proved beyond reasonable doubt that each accused did not have an honest and reasonable belief that the complainant had consented to sexual penetration in the back seat of the car in King's Park.
[113] ts 778.
In order to convict either accused, it was necessary for the jury to resolve both questions in the affirmative in relation to that accused.

The prosecutor's closing address

The prosecutor[114] commenced his closing address at the opening of proceedings on the seventh day of the trial. He started with some general introductory remarks, in the course of which he observed that it was open to the jury to accept or reject anything he said. He invited the jury to put aside any prejudices against either accused, or any sympathy towards the complainant.[115]
[114] Who was not counsel for the respondent in this appeal.
[115] ts 2 - 3.
The prosecutor then focused his observations upon the evidence given by the complainant. He drew upon that evidence to submit that the complainant was 'very drunk'.[116]
[116] ts 6.
Because the entire focus of this appeal is upon the prosecutor's address, it is necessary to set out significant portions of that address in full. In the context of his review of the complainant's evidence, the prosecutor said:[117]
This is also a young woman who quite clearly said, 'I like men. I like sex.' But also, she's not in the habit of getting into strange cars with strange men, so again, something to consider about her. She was not standing, she's sitting on the pavement somewhere near a tree near the road. I suggest she's helped into the car.
[117] ts 7.
Shortly thereafter the prosecutor turned his attention to the accused. He said:[118]
Now, look at these two men. What are they doing that night? They are trawling around Northbridge, looking for the drunkest single lone female, and for one purpose - and one purpose only - and that's to have sex with her. These two men have nothing to drink, so there's no excuse that, 'Oh, we were drunk,' or something. They're stone cold sober, on the hunt.
On the hunt for what? For a woman to have sex with. Because that's really - when you look at what they, that's what it's all about. [MAM] told us he wanted to see what Northbridge was like on Sunday. Well, okay, 'Did you go into Northbridge?' They didn't get into Northbridge, did they? They didn't go there. They didn't go round any of the streets, on his account. This is the first road they went down, and then they spy [the complainant]. Does that sound right? Well, what about the seeing Northbridge?
What about going round and seeing how much action there is in Northbridge? You can drive around most of it. That wouldn't take very long either, but no, this is the first street they come down and then they spy a potential victim, and that's [the complainant].
Of course, [MAM] and [SF] had a very different reason for going to Northbridge that evening last year, and it wasn't to see the nightlife, see the action, it was to pick up a girl, the drunkest, the most vulnerable - that's the ideal target. So [the complainant is] leaning against a wall somewhere. Then [MAM] approaches her. And again, what's his reason? Why approach her? Is it out of concern for her as an individual? Are they going to assist her? 'Oh, let me take you to the taxi. Let me take you home. Let me take you to a police station. Let me take you anywhere. Let me phone a cab for you because you look in need.' No, they're not.
They're like vultures or they're like a hyena on the savannah in Africa waiting to pick on the most vulnerable animal, helpless, lost and alone. And here, that is the drunkest lone female they can find. And it's, of course, as they say, the first person. And that happened to unfortunately be [the complainant]. Again, members of the jury, it wasn't meant to be like that. Things happen in life. It wasn't meant to be like that. [KE] fell on a step, whether he was drunk or not - well, he'd obviously had some drinks - but he fell on that step, and then him and Valerie - well, he was ejected, and Valerie and him went home. So she is left all alone. So there she is, this drunk lone female.
They know that she's drunk, and again, I suggest they know that she may not remember sex if that took place or indeed who they are and where they took her and the events that unfold. And in any event, they could always claim that she's a willing participant, but just drunk. And that's exactly what they've done here. That's the way out. And that's the only way they've got, really, because the DNA points, to a large extent, that they're there, and obviously other evidence as well points that way. So these men are predators picking off the drunken lone single females. Why else are they there? Well, visiting Northbridge, never went in there at all.
[118] ts 7 - 8.

The prosecutor made the following observations specifically with respect to MAM:[119]
[MAM], he has a very high opinion of himself, I suggest, and again, you've seen him give evidence, you've seen him in the interview, it's all friendly chitchat and he's so charming, as he claims, that after three minutes talking to this sad, distressed - and I say drunk - female, she's willing to get into a car with two strange men with nothing particular in mind and nowhere to go in mind either, something she says she's never done in the past, and again, it's not really surprising that people don't get into strange cars with strange people because it's potentially dangerous if one person's there; but two people in the car, a lone female - very easy to overpower a lone female by two fit young men. So not the sort of thing, I'd suggest, that many - if any - sober women would do willingly. And again, the high regard he holds himself in - and again, in questioning: I was just like - I put my hand up, like a gentleman sort of way. Well, a gentleman, members of the jury. I can think of nothing further from a gentleman about his behaviour that night. But of course, that's a matter for you.
[119] ts 9.
He also said of MAM:[120]
[MAM] accepted that he calls her phone. Again, very stupidly, I suggest, and that was his first mistake. Now, it's only two seconds but it's a mistake. Without that call, really, no one would have been found for this offence at all and this charge would have remained unsolved because no one would have been found.
So, again, why the call? Well, it will be suggested, 'Oh, well, he was trying to help her because he helped her along. He was doing her a favour by having sex with her or is it just that she is getting distressed. Calm the woman down. Maybe there was a police car going by. Calm her down by phoning.' But, again, members of the jury, it's something for you to consider.
[120] ts 10 - 11.
On the subject of consent the prosecutor submitted:[121]
Now, dealing with injuries, injuries can result from consensual sex and I accept that. But what we also have here is the tights had been ripped. Again, not an obvious sign of a willing participant but one of someone who's not able or not willing to take her clothes off and not able because she's a dead weight, a comatose drunk. Otherwise takes the tights down, and the knickers, because they might get in the way. Put them somewhere safe. In the bag, which she had there, so you could put them back on later, or was it just rough sex?
[121] ts 14.
In the portion of his address relating to the statements made by MAM in the course of his interview by police, the prosecutor said:[122]
And then this is him: I don't have sex in the back of cars anyway, you know? So he's categoric, absolutely categoric. 'I don't do that.' Mm, I'm more classy than that. So he's put himself up above this. 'I wouldn't dream of doing that. My character is unimpeachable.' This is what he's really saying. Quite clearly, members of the jury, he's not more classy than that. He's actually a lot more seedy than that, and again we've heard how seedy he really is.
[122] ts 19.
In a more general review of the evidence, the prosecutor said, of MAM:[123]
Now, the starting point he is stone cold sober and so is [SF]. They've got to Northbridge to see what's going on that Sunday, but again they don't go into Northbridge proper, they go down the street near the Elephant & Wheelbarrow and it's the only street they go down in Northbridge. Why? Again, looking for lone females, the drunker the better, again I suggest.
…
So what's he doing? Again, as I suggested, trawling for prey and this just happened in the first street they drive down. They happen to see a drunken female. Well, again, I'm sure it wasn't the first street that he went down but that's his account and again it is a drunken woman.
Now, we've got [the complainant] sitting down with her back to the wall, knees drawn up holding them with her arms and her head down. And again, looking at the evidence from various sources that are in chief, cross‑examination by myself and Mr Eyers, that's what it amounts to. He's gone there because the girl looks distressed, as he said. Drunk, I suggest. He's such a friendly guy is that what - he's just concerned for her safety.
[123] ts 21 - 22.
Shortly thereafter, the prosecutor submitted to the jury:[124]
His reason for approaching her at the early stage is apparent again from his evidence on the whole. I suggested: For the purpose of having sex with them shortly afterwards? - - with them being her - Not shortly afterwards, but whatever happens, happens. So it's there, it's in his mind. So I'd suggest you can conclude from that, that he was intent on sex. That's why he was there and it's this lone female and it's from the first moment he set eyes upon her. He is, and his mate are predators and she is the prey. A lone, single, female. I asked him whether she might be up for sex and his response was: She might be, who knows. So again, he's up for it isn't he, he's up for sex? So what does he do, he gives her some chit-chat as he called it. I suggest there was no chit-chat.
[124] ts 22.
A little later the prosecutor said:[125]
So on his account, again looking at his account, after three minutes of his charm, she's willing to get in the car. He must be very charming. Three minutes, get in the car with two strangers, not just one but two strangers and go on a journey into the unknown. Nowhere, doesn't matter, 1.40 after you've been drinking a good part of the night. Again members of the jury does that sound likely or not? I suggest, she's stinking of alcohol too and he's assumed she's drunk, and she is and that is the reality, that she is too drunk to know what's going on.
[125] ts 23.
A little later the prosecutor said:[126]
So he gets in the back with this cute girl as he said and asks her to get closer and I'm sure she does. Sounds very romantic, boy meets girl. But he's only met her 10 minutes before when she's so distressed on the streets. But he so lifted her mood with that three minutes of sparkling conversation and wit.
[126] ts 23.
Shortly thereafter the prosecutor said:[127]
He then joked with her that she's a milf. Now again, that means, 'Mother I'd like to fuck'. Doesn't mean, 'Like to (inaudible) mother I'd like to fuck'. So again, I suggest that from the very first moment, sex was on his mind. He selected his sexual prey for the night. It's the most watched category. Again, a little thing that he's dropped in there, this is porn films that he's watching or been watching. The most watched category. So you know where his mind has been throughout. It's why he's gone out that night, sober, (indistinct) whatever. Go to Northbridge, you can pick them off, easy. So that's what he's done. So whether he's been watching that porn that night or not, I can't say but again it's something that's in his mind and again what did he say again: If sex comes, I won't say no. Well, of course he wouldn't, course he wouldn't, because that's the whole purpose of going out that night. So having arrived at Kings Park, members of the jury, his charms are working again.
[127] ts 24.
In the course of his reference to the events which took place in King's Park, the prosecutor observed:[128]
She's then having sex with, not the charming one, not the one who's been scintillating in his wit and jokes and everything are fantastic, it's the other bloke. He said nothing and she's having sex with him first of all.
[128] ts 25.
In the same context the prosecutor submitted:[129]
[MAM] gets back in and what he says: Because you know, I thought I would, you know, try my luck with the girl. See if she was still up for it. How nice. Such a gentlemen. So this is the second bloke who's having sex with her after about 25 minutes after she (indistinct) on the streets and then she's distressed, on the street, he charms her. So [MAM] gets back to it. He gets a bit of rubbering and a bit of the breast and a bit fingering and she puts his hand on her fitted undies. He had to tell us that she had fitted undies because you needed to know that sort of detail. And she's in such a hurry to get his penis inside her, he's such a tease. Well, members of the jury, what's that about? I mean, really? The woman's desperate, that desperate. Again it's for you to consider. His foreplay, well, lasted three to four minutes. He normally takes longer. Again, detail you had to know. He's again - he's inflating himself, he's quite confident in himself really, isn't he? He's quite confident like he was in the interview and he lied through his teeth all the way. Now, the only people in a hurry here to get the sex over and done with were [MAM] and [SF]. They wanted sex quickly and then they could drop this drunken woman off because that's what they wanted. Pick the lone female, take her up, sex, quick, chuck her back. She may not even remember anything about it.
[129] ts 25.
A little later the prosecutor said of MAM:[130]
This is a man who thinks a lot of himself, thinks he's massively attractive to the opposite sex.
[130] ts 26.
The prosecution also said, as follows:[131]
So what does he do after the sex? He does - he gets back in the front passenger seat, away from the woman he's just had sex with and again, why? This woman you've just had sex with - well, you could have at least be friendly but no that, that's not the purpose, is it? The purpose is to have sex, get it over and done with, get her back to Northbridge and move on.
…
I asked him, 'Didn't you think having sex with this woman, it would be nice for - would be gentlemanly to take her home or something?' 'Oh well, I thought about it later but I didn't think about it at the time'. Well, of course, he didn't think about it at the time because that wasn't the purpose. The purpose was to have sex, get her out, go, go home. That's your night - your entertainment for the night. Picking up drunken woman, having sex with her, dumping her back in Northbridge.
[131] ts 26 ‑ 27.
On the subject of MAM's credibility generally, the prosecutor said:[132]
Now, you'll have to assess [MAM's] evidence, he is an accomplished liar, that's an assessment I've made. You look at him in the interview, you saw him on Friday and indeed yesterday, so you make your own judgment of that.
[132] ts 28.
With reference to the character witnesses called on behalf of MAM, the prosecutor said:[133]
Again what you make of them is entirely up to you but obviously [MAM] has a very different side - side to women in his community and that's the point. He's respectful, he's not physical because there are rules and he abides by the rules within his community, no sex before marriage and he abides by that with those girls. But this is not those girls within his community, this is a white, single, drunken female. Very different rules apply; very different rules. You're entitled to pick them up on the street and try and have sex with them as soon as you possibly can. And let's go to Kings Park, do it immediately, sex is always on your mind, she's a MILF, it's all there all the time but not with you own, with others and that's what it is. There's a different story. There's different sides to [MAM], the nice side, the considerate side, the family side, the community, his community. The other community, different rules apply, completely different rules apply. But when he's out with [SF], and perhaps some of his other mates, I don't know, he becomes a predator and that's what he was this time, a predator looking for the single, drunk female, to have sex, to use, abuse and throw away. She was disposed of, wasn't she?
[133] ts 28.
In the same context the prosecutor submitted:[134]
The fact that he'd hunt for lone, single females, again all made no difference to those witnesses. They are his friends; they see one side of him. You, on the other hand, have seen the other side and you will be able to make an assessment of his character. Of course, you don't know him but you've seen the other side, they haven't seen the other side of him. So you know perhaps more about [MAM] than they do. Jekyll and Hyde and that's what you've got - his community, good guy, outside community, not such a good guy.
[134] ts 29.

The response of defence counsel

Following the completion of the prosecutor's address, both defence counsel made submissions to the trial judge, in the absence of the jury, in relation to aspects of the prosecutor's address. Counsel for SF drew attention to the portions of the prosecutor's address in which he drew analogies to the accused as being like vultures or hyenas in Africa, trawling for prey, and the other points in the prosecutor's address in which he referred to the accused as predators.[135] Counsel for SF indicated that he was drawing these matters to the attention of the trial judge, to deal with them as he saw fit, and that he had no instructions to apply to abort the trial.[136]
[135] ts 742.
[136] ts 742 ‑ 743.
Counsel for MAM also advised the trial judge that he did not have instructions to make any application to abort the trial. He drew the attention of the trial judge to the same portions of the prosecutor's address as had been identified by counsel for SF which were described as a 'call to very colourful prejudices'. He also drew attention to the prosecutor's speculation as to whether or not MAM had been watching pornography on the evening in question. When pressed by the trial judge on the question of what counsel for MAM suggested should be done, counsel suggested that a direction should be given to the jury in strong terms.[137]
[137] ts 747.
In the course of debate with counsel, on two occasions the trial judge drew an analogy with robust and strident submissions made to the jury by defence counsel in a trial he had recently conducted.[138] However, the cases to which I will refer clearly establish that the duties of a prosecutor, and the forensic strategies permissibly employed by a prosecutor, are quite different to the duties of defence counsel, and the forensic strategies permissibly employed by defence counsel.
[138] ts 743, 748.
Both defence counsel made the point to the trial judge that the terms of the prosecutor's address left them in a difficult position, because of the real risk that if they responded specifically to the matters of which they complained, it would simply serve to emphasise, in the minds of the jury, the assertions which the prosecutor had made.[139]
[139] ts 742 ‑ 744.

The trial judge's directions to the jury

Following the addresses of defence counsel, the trial judge commenced his charge to the jury at the commencement of the eighth day of the trial - 24 hours after the prosecutor's address. He made specific mention of the prosecutor's address at an early stage of his directions to the jury, in the following terms:[140]
[140] ts 760 - 761.
In the course of his closing remarks, Mr Fitzpatrick made a comment to the effect that he could not say whether or not, [MAM] was watching porn before he went out on the night of 5 to 6 April.
He made this comment in the context of [MAM's] evidence, referring to [the complainant] as a MILF and this being the most watched category of porn.
Now, [MAM's] evidence is that he did not watch any porn before going out on that night. And there's no evidence to suggest otherwise.
So you should put Mr Fitzpatrick's comment to one side. In particular, you must not speculate about what pornography [MAM] has watched.
…
As I foreshadowed in my opening remarks, you may have sensed an emotional response to something you heard or saw during the course of the trial. This could be positive emotion such as empathy or compassion, or a negative emotion such as prejudice or judgment.
However, as a juror you must put aside any emotional responses and decide the case only on the evidence that you've heard. So I would ask you to keep being mindful of any emotional responses.
It's your duty to assess the evidence objectively and dispassionately and decide whether the State has proven the charges against [MAM] and [SF]. Now, you must not draw any inference against either [MAM] or [SF], simply by virtue of the fact they have been charged with offences of a sexual nature. And are before you as the accused men in this trial. In the course of his closing submissions, Mr Fitzpatrick referred to [MAM] and [SF], as predators and to [the complainant] as being their prey and there was some other similar references.
This of course was a rhetorical flourish, the use of a strong analogy to make a point. And I trust that you recognise these references as rhetorical flourishes and put them to one side, concentrating on the substantive point that was being made. And there may well have been other rhetorical flourishes used by counsel that you will also need to sift out. Now, you must not allow any rhetorical flourishes or emotive language to invoke an emotional response. If you sense an emotional response, either prejudicial or sympathetic, for your recollection of rhetorical flourish or a particular way counsel put something, then you must put this to one side. As I have said, it's your duty to assess the evidence objectively and dispassionately.

The grounds of appeal

There are four separate grounds of appeal. All are concerned with the asserted consequences of the prosecutor's address to the jury. Counsel for the appellants confirmed during oral argument that the grounds should not be construed as separate and discrete grounds to be assessed in isolation, but rather as a single composite ground to the effect that the prosecutor's address, viewed as a whole, gave rise to a miscarriage of justice.[141]
[141] Appeal ts 11.
Before returning to the particular aspects of the prosecutor's address which are said to sustain that conclusion, it is desirable to first address the legal principles relating to the obligations of a prosecutor, and the permissible ambit of a prosecutor's address.

Legal principles

In JJS v The State of Western Australia[142] I endeavoured to succinctly summarise the duties of a prosecutor which were relevant to the issues in that case in the following passage:[143]
[142] JJS v The State of Western Australia [2014] WASCA 136.
[143] JJS v The State of Western Australia [133] ‑ [135], [157] (footnotes omitted) (Pullin JA agreeing, Buss JA agreeing on this issue).
In Goedecke v The State of Western Australia, Mazza JA cited the observations of Deane J in Whitehorn v The Queen, to the effect that the fundamental duty of a prosecutor was to:
'… act with fairness and detachment and always with the objectives of establishing the whole truth in accordance with the procedures and standards which the law requires to be observed and of helping to ensure that the accused's trial is a fair one.'
More specifically, in Goedecke, Mazza JA observed that in the course of a closing address, the prosecutor should not tell a jury something that is not in evidence, offer a personal opinion, introduce false lines of reasoning or invite the jury to speculate about evidence. As Mazza JA observed in Goedecke, not every breach of duty by a prosecutor will lead to a miscarriage of justice. When a breach of duty is established, it will be necessary for the appellate court to assess the significance of that breach in the context of the overall trial. Relevant to that assessment will be the question of whether or not objection was taken by the defence. If no objection was taken, an appellate court may well infer that, in the context of the trial, any breach of duty was not so prejudicial as to deny the accused a right to a fair trial.
In R v Wood, the New South Wales Court of Criminal Appeal reviewed the general duties of a prosecutor. It is unnecessary to reiterate that review. Specific reliance was placed upon observations in an earlier decision where it was observed that any of the following features, if present in the prosecutor's closing address, might necessitate appellate intervention:
(a)a submission to the jury based on material which is not in evidence;
(b)intemperate or inflammatory comments, tending to arouse prejudice or emotion in the jury;
(c)comments which belittle or ridicule any part of the accused's case;
(d)impugning the credit of a prosecution [sic] witness, where the witness was not offered the opportunity of responding to an attack upon credit;
(e)conveying to the jury the personal opinion of the prosecutor.
...
A prosecutor has the right to firmly and vigorously advance the prosecution case, and to attack the defence case, in terms which a jury would readily understand. While slang expressions and pejorative terms are, generally speaking, best avoided, it is entirely appropriate for a prosecutor to describe evidence as 'nonsense' or 'ridiculous', assuming that there is a basis within the evidence for such a proposition. Such terminology does not belittle or ridicule the evidence, but emphatically advances the proposition that the evidence should be rejected because of its implausibility.

The issues arising from the terms of the prosecutor's address in this case necessitate a somewhat broader review of the principles emerging from the previous cases. In McCullough v The Queen,[144] the Court of Criminal Appeal of Tasmania cited with approval the following portion from the 19th edition of Kenny's Outlines of Criminal Law:[145]
A prosecuting counsel stands in a position quite different from that of an advocate who represents the person accused or represents a plaintiff or defendant in a civil litigation. For this latter advocate has a private duty - that of doing everything that he honourably can to protect the interests of his client. He is entitled to 'fight for a verdict'. But the Crown counsel is a representative of the State, 'a minister of justice', his function is to assist the jury in arriving at the truth. He must not urge any argument that does not carry weight in his own mind, or try to shut out any legal evidence that would be important to the interests of the person accused. It is not his duty to obtain a conviction by all means; but simply to lay before the jury the whole of the facts which compose his case, and to make these perfectly intelligible, and to see that the jury are instructed with regard to the law and are able to apply the law to the facts. It cannot be too often made plain that the business of counsel for the Crown is fairly and impartially to exhibit all the facts to the jury. The Crown has no interest in procuring a conviction. Its only interest is that the right person should be convicted, that the truth should be known, and that justice should be done.
[144] McCullough v The Queen (1982) 6 A Crim R 274.
[145] Kenny's Outlines of Criminal Law, pages 611 ‑ 612.
After citing this passage the court in McCullough observed:[146]
However, it should also be said that the observance of those cannons of conduct is not incompatible with the adoption of an advocate's role. Counsel for the Crown is obliged to put the Crown case to the jury and, when appropriate, he is entitled to firmly and vigorously urge the Crown view about a particular issue and to test and, if necessary, to attack that advanced on behalf of the accused. But he must always do so temperately and with restraint, bearing constantly in mind that his primary function is to aid in the attainment of justice, not the securing of convictions.
As the New Zealand Court of Appeal said in Roulston [1976] 2 NZLR 644 at p 654:
'It has always been recognised that prosecuting counsel must never strain for a conviction, still less adopt tactics that involve an appeal to prejudice or amount to an intemperate or emotional attack upon the accused. Such conduct is entirely inappropriate and a basic misconception of the function of any barrister who assumes the responsibility of speaking for the community at the trial of an accused person. Naturally enough a proper balance needs to be maintained. The view expressed in Halsbury's Laws of England (3rd edition) para 761, the prosecuting counsel "should regard themselves as minister of justice assisting in its administration" ought not to lead to the assumption of a role so emasculated as to merit Lord Devlin's remarks in Trial by Jury (1966), pp 122 ‑ 123:
"In some places the pendulum has swung so far, and the ministry has moved so close to the opposition, that the prosecution's case is not adequately presented, and counsel, frightened of being accused of an excess of fervour, tend to do little except talk of reasonable doubt and leave the final speech on the facts to the judge."
The feel and atmosphere of one trial may make it reasonable and even necessary for tactics to be employed that would seem out of place and disproportionate to the circumstances of another. Nevertheless, it is wrong for Crown counsel to become so much the advocate that he is fighting for a conviction and quite impermissible to embark upon a course of conduct calculated to persuade a jury to a point of view by the introduction of factors of prejudice or emotion. If such a situation should develop and there is a real risk that the conduct complained of may have tipped the balance against the accused then an appellate court will not hesitate to follow the safe course and order a new trial.'
[146] McCullough v The Queen (285 ‑ 286).
An example of the application of these principles is provided by the decision in McCullough, where the court referred to the prosecutor's comments in these terms:[147]
His emphasis upon the sanctity of life and the horrible nature of the crime of murder, together with his characterisation of the applicant as a 'despicable' and 'disgusting' man who felt no remorse and who was prepared to kill someone as another person might 'swat a fly' or 'flick out a match' were calculated to prejudice the jury against the accused by arousing feelings of disgust and revulsion towards him. Those feelings were likely to have been reinforced by the feeling of sympathy towards the deceased and his widow which counsel sought to evoke. ... The conclusion that in making the remarks which he did counsel exceeded the bounds of propriety, would not in itself be sufficient to justify our allowing this appeal: the crucial conclusion which we have reached is that there was a real risk that the jury were improperly influenced by those remarks. We consider that the trial process was compromised in that the possibility cannot be excluded that in convicting the applicant the jury were actuated, partly at least, by indignation, disgust and fear aroused by the intemperate language employed by counsel for the Crown. That is enough to demonstrate that a miscarriage of justice ... occurred and that the verdict cannot be allowed to stand.
[147] McCullough v The Queen (286).
The passage from Kenny, and the passage from R v Roulston,[148] and the passage setting out the conclusion of the court in McCullough were all cited with approval by Malcolm CJ (Kennedy J agreeing) in Vella v The Queen.[149] In that case the court was critical of the prosecutor's resort to rhetoric and metaphor in both cross‑examination and his closing address - including his reference, in the context of charges of stealing arising from commercial transactions to the accused having 'stitched [the victims] up like a christmas turkey'.[150]
[148] R v Roulston [1976] 2 NZLR 644.
[149] Vella v The Queen (1990) 2 WAR 537.
[150] Vella v The Queen (542 ‑ 548).
In Lyons & Lyons v The Queen,[151] Wright J,[152] sitting in the Court of Criminal Appeal of Tasmania, summarised the applicable principles succinctly in the following passage:[153]
Crown counsel is not obliged to pander to the idiosyncratic or hypercritical sensibilities of defence counsel. He is not required to reduce his rhetoric to dull and lifeless factual propositions. He should of course avoid hyperbole and not seek to sway the jury by trickery, prejudice or emotion, but he should not be forced to weigh every word he utters for the potential disapproval it may attract in the Court of Appeal. Our system of criminal justice is adversarial. Crown counsel is an advocate, albeit that his role is special in that he should not fight for a conviction at all costs.
[151] Lyons & Lyons v The Queen (1992) 64 A Crim R 101.
[152] Cox & Crawford JJ agreeing.
[153] Lyons & Lyons v The Queen (104).
In Deriz v The Queen,[154] Parker J,[155] cited the above passage from Lyons & Lyons with approval and observed:[156]
It is clear that prosecuting counsel is charged with the responsibility, in the proper discharge of his or her functions in a trial, of opening the prosecution case with fairness and accuracy and avoiding language likely to excite undue prejudice or emotion; Vella v R (1990) 2 WAR 537, Huynh v The Queen [1999] WASCA 45. It is often said that the impartiality which should characterise the presentation of the Crown case has the consequence that the prosecutor should not fall into the role of urging or fighting for a conviction; R v Roulston [1976] 2 NZLR 644.
It remains the case, however, that the nature of a criminal trial in our system of justice is adversarial. While the prosecutor must not pick and choose the witnesses or evidence to be presented so as only to favour a conviction, but should present impartially the available, relevant credible evidence, whether it tends for or against conviction, and should recognise and not seek to hide any weaknesses of the prosecution case, the impartial role of the prosecution in our adversarial system does not preclude advocacy which fully tests the defence case and which presents the case for a conviction clearly and forcefully and in the best light which it fairly bears. It is the antithesis of the true role of the prosecutor to seek by trickery or the exploitation of prejudice or emotion to secure a conviction. There is no impropriety, nevertheless, in a fair and balanced presentation of relevant evidence even though it may evoke prejudice or emotion. Nor is a prosecutor required to try and remove from the presentation of the prosecution case, or to neutralise, those relevant aspects which evoke prejudice or emotion. As the authorities continue to emphasise, it is undue prejudice or emotion which is to be avoided; cf Lyons & Lyons v R (1992) 64 A Crim R 101 at 104.
[154] Deriz v The Queen [1999] WASCA 267; (1999) 109 A Crim R 329.
[155] Ipp J agreeing.
[156] Deriz v The Queen [65] ‑ [66].
These principles are not novel. An example of their application almost 50 years ago can be found in Holman v The Queen.[157] In that case the Court of Criminal Appeal of this court was strongly critical of the prosecutor's suggestion to the jury that the accused, an African American man, had deliberately urinated on the bed of the complainant before raping her because the proposition was entirely unsupported by any evidence and had the capacity to evoke racial prejudice. Nevile J was also critical of the prosecutor's suggestion that the accused was being supported by the United States Navy (when there was no evidence to that effect), because of the possibility that the jury might consider the trial as 'a contest between the State of Western Australia and the United States Navy' which 'might very well rouse latent patriotic feelings or subconscious feelings of animosity in some members of the jury' and could prejudice the fair trial of the appellant.[158]
[157] Holman v The Queen [1970] WAR 2.
[158] Holman v The Queen (12 ‑ 13).

Disposition

In order to apply these legal principles to the prosecutor's address in this case, it is desirable to place the portions of the prosecutor's address which have been the subject of criticism into the various categories which follow.
It is also convenient to separate the aspects of the prosecutor's address which have been the subject of criticism into the following general categories:
•submissions which lack any evidentiary support;
•submissions evoking prejudice and emotion; and
•criticisms of the prosecutor's address which should not be accepted.

Submissions lacking evidentiary support

The sole purpose of each accused in going to Northbridge that night was to find a drunken woman with whom to have sex - irrespective of her consent

A dominant theme - perhaps the dominant theme of the prosecutor's address - evident in the passages I have set out above,[159] was the contention that the purpose of each accused, when they travelled into Northbridge together that evening, was to find a drunken woman with whom to have sex, irrespective of her consent. Although the prosecutor did not expressly enunciate the proposition in terms of the lack of consent of the prospective victim of the accused men, in a trial in which the only issues were consent and honest and reasonable belief in consent, the prosecutor's recurrent theme would only have had any relevance or significance to the jury if it was taken by them to connote the proposition that the men were intent upon having sex with a woman incapable of resisting their advances and therefore incapable of consenting, or otherwise were intent on having sex with a woman regardless of whether she consented. A purpose in going to Northbridge of finding a drunk woman who was willing to have sex would not, in itself, have advanced the State case. On appeal, counsel for the respondent accepted that this was so.[160]
[159] See ts 7 ‑ 8, 21 ‑ 22, 24 ‑ 29.
[160] Appeal ts 17.
The fundamental problem with the prosecutor's recurrent theme is that there is no evidence capable of supporting the proposition. The proposition was put to MAM three times in cross‑examination, and on each occasion it was denied. Counsel for the respondent to the appeal submitted that the proposition could nevertheless be sustained by the following matters, taken in combination:
•neither man had been drinking;
•SF was not appropriately dressed to enter licenced premises;
•the men did not go to Northbridge until after midnight;
•although MAM claimed that the purpose of the men was to 'see Northbridge at night' they did not go to the streets most frequented by people but located the complainant on a side street shortly after their arrival;
•the complainant was sitting on the footpath with her head down in a state of intoxication; and
•very shortly thereafter each man engaged in sexual intercourse with the complainant in the back seat of the car in Kings Park.[161]
[161] Respondent's written submissions [38]; appeal ts 14 ‑ 15.
None of these things, either singly or in combination were capable of sustaining the proposition that either or both men travelled to Northbridge for the purpose of having sex with a woman incapable of either resisting or consenting or regardless of whether she consented. The fact that the men had not been drinking, and that one of them was not appropriately dressed to enter licenced premises, and that it was late were entirely consistent with MAM's evidence that their purpose was to see Northbridge at night and is quite incapable of sustaining the proposition that the men went to the precinct for the purposes of having non‑consensual sex with a drunken woman. The fact that they encountered the complainant shortly after their arrival was, at one point expressly disavowed by the prosecutor when he said, of MAM's evidence, 'I am sure it wasn't the first street that he went down',[162] but in any event the time at which the men encountered the complainant, relative to their intention of driving around Northbridge, is logically irrelevant to, and sheds no light upon their purpose. No inference could be drawn from that fact (if it was a fact) that their purpose was to have sex with a drunken woman irrespective of her consent.
[162] ts 21.
Neither the condition of the complainant when the men encountered her, nor the events which later took place in Kings Park are capable, as a matter of logic, of shedding light upon the purpose of the men before they encountered the complainant. The reasoning process involved in the proposition that an adverse inference can be drawn from these matters is dangerously circular. It implicitly involves the following steps:
•the men encountered a drunken woman and had sex with her;
•because the men encountered a drunken woman and had sex with her it can be inferred that their purpose in travelling to Northbridge was to have sex with a drunken woman;
•because the purpose of the men in travelling to Northbridge was to have sex with a drunken woman, the jury should infer that their purpose was to have sex with such a woman irrespective of her consent; and
•because the purpose of the men in travelling to Northbridge was to have sex with a woman irrespective of her consent, the jury should conclude that the complainant did not consent, and that the State had proved beyond reasonable doubt that neither man had an honest but mistaken belief that the complainant had consented.
Not only did the prosecutor's recurrent theme encourage the jury to engage in circularity of reasoning which, if accepted, would inevitably lead to a conclusion of guilt, the proposition focused the attention of the jury upon the purpose of each man when he travelled to Northbridge, which was a dangerous distraction from the real issues in the case, which were limited to the question of whether the complainant consented to the sexual intercourse which took place in Kings Park, and whether the State had established that neither man had an honest and reasonable belief that the complainant consented.
For these reasons the prosecutor's theme, to which he returned many times in the course of his address to the jury, contravened the legal principles to which I have referred because it was unsupported by any evidence capable of sustaining the proposition advanced, encouraged the jury to a process of circular reasoning which would inevitably lead to the conviction of each accused, and distracted the attention of the jury from the live issues in the case.

The suggestion that MAM had been watching pornography earlier that evening

The prosecutor's suggestion that MAM had been watching pornography before going to Northbridge that evening was entirely consistent with, and supportive of his emphasis upon the men's purpose at the time they travelled to Northbridge.[163] It was accepted at trial,[164] and on appeal,[165] that there is no evidentiary basis whatever for the prosecutor's suggestion, which was expressly denied by MAM when it was put to him.[166] This was a clear breach of the prosecutor's duties and of the legal principles I have set out above. I will deal with the effect of the direction given by the trial judge on this topic later in these reasons.

The prosecutor's suggestion that the accused men had engaged in predatory behaviour against women on other occasions

[163] ts 24.

[164] ts 747.

[165] Appeal ts 25.

[166] ts 593.

In the context of dealing with the character evidence led on behalf of MAM, the prosecutor said:
But when he's out with [SF], and perhaps some of his other mates, I don't know, he becomes a predator and that's what he was this time, a predator looking for the single drunk female, to have sex, to use, abuse and throw away. She was disposed of, wasn't she?
Clearly implicit in this proposition is the suggestion that MAM, and perhaps SF, perhaps with other friends of Middle Eastern origin, were in the habit of engaging in predatory behaviour in the form of having sexual relations with women who were too drunk to resist. This suggestion sought to reinforce the prosecutor's recurring theme, to which I have referred.
There is no evidentiary basis whatever for this proposition, which was not put to MAM as habitual behaviour, and which was, as I have said, denied when it was put to him in the context of the events the subject of the trial.[167] The suggestion was highly improper and a clear breach of the prosecutor's duties, and the legal principles to which I have referred.
[167] ts 699 ‑ 700.
In summary, in breach of his duties the prosecutor advanced three propositions to the jury which lacked any support in the evidence. Only one of those propositions was the subject of a direction by the trial judge.

Submissions evoking emotion and prejudice

Emotive language - predator and prey

On at least four occasions the prosecutor resorted to the language of predation, including the words 'predator' to describe each accused, and the word 'prey' to describe the complainant.[168] On the State case, what the appellants did after they encountered the complainant might fairly have been described as predatory. However, that is not the context of the prosecutor's use of the language of predation. That language was used in the context of, and for the purpose of reinforcing the prosecutor's recurrent submission that the purpose of each man, when travelling to Northbridge, was to have sex with a woman incapable of consenting or resisting. It is irrelevant to speculate about the prosecutor's purpose in using language of this kind - for the purposes of this appeal the relevant question concerns the likely effect of the language upon the jury. Quite clearly its effect would be likely to induce notions of sympathy for the complainant and prejudice towards each accused. Because the prosecutor's recurring theme was flawed in the respects and for the reasons I have given, the prosecutor's repeated use of pejorative language of this kind to advance this theme was a further breach of his duties and of the legal principles to which I have referred.

Submissions with the capacity to evoke racial prejudice

[168] ts 8, 21, 22, 29.

Each accused was of Middle Eastern origin. The complainant was of Anglo Celtic origin. In that context the prosecutor's use of metaphors comparing the accused with African animals (vultures and hyenas on the Savannah), and comparing the complainant to the prey of such animals was most ill‑advised, and had the capacity to evoke notions of racial prejudice against the accused, and sympathy for the complainant. The prosecutor's later submission, to the effect that MAM, SF, and perhaps some of their Middle Eastern friends were respectful of women within the Middle Eastern community but preyed sexually upon women outside that community was a submission of the same character, and risked evoking cultural stereotypes arising from sensational media reports of sexual offences committed by young men within the Lebanese community in Sydney. The latter submission may have been a clumsy attempt to diminish the weight of the character evidence by contrasting the evidently good behaviour while he is in his community with his behaviour on the night in question. But in suggesting that the appellants and other mates, by implication others of his community, habitually act differently, and become predators, the prosecutor created a real risk of evoking racial stereotypes. In combination, the two submissions were clear breaches of the prosecutor's duties, and of the legal principles to which I have referred.

Submissions relying upon sarcasm - mocking and deriding the accused

It is evident from the portions of the prosecutor's address which I have set out that his submissions were replete with references to the accused, most particularly MAM, which are on occasions sarcastic, on other occasions mocking, and on other occasions derisive. For example, he mocked MAM's evidence as portraying himself as 'so charming', suggesting that he held himself in high regard and was a gentleman.[169] He suggested to the jury that MAM regarded himself as doing the complainant a favour by having sex with her;[170] as suggesting that he was 'classy' in his interview by police when in fact he was 'seedy';[171] and that he was 'such a friendly guy'.[172] The prosecutor mockingly characterised MAM's evidence as describing a 'very romantic, boy meets girl' situation in which he 'lifted her mood with that three minutes of sparkling conversation and wit'.[173] The prosecutor suggested to the jury that when they arrived at Kings Park MAM's 'charms are working again',[174] and that he had been 'scintillating in his wit and jokes'.[175] In his reference to MAM's evidence of the sexual intercourse, he described MAM as 'such a tease' and disparaged his description of the foreplay which took place.[176] He described MAM as a man 'who thinks a lot of himself, thinks he's massively attractive to the opposite sex'.[177]
[169] ts 9, 23.
[170] ts 11.
[171] ts 19.
[172] ts 22.
[173] ts 23.
[174] ts 24.
[175] ts 25.
[176] ts 25.
[177] ts 26.
The authorities to which I have referred indicate that a prosecutor will be allowed a degree of latitude appropriate to an advocate advancing a point of view. On occasions the reasonable and appropriate use of linguistic devices like rhetoric and sarcasm may fall within the latitude given to a prosecutor. However, much depends upon the tenor of the address as a whole, and the circumstances in which such devices are engaged. Excessive use of rhetoric and sarcasm might take a prosecutor beyond the reasonable bounds of legitimate advocacy and amount to an intemperate or emotional attack upon the accused.[178] Mockery, scorn and derision will seldom, if ever, be appropriately engaged by a prosecutor.
[178] Using the language of Raulston.
In this case, there is room for the view that the prosecutor's repeated use of sarcasm, mockery and derision went beyond the legitimate bounds of advocacy appropriate to a 'minister of justice'. It is unnecessary to describe whether this aspect of the prosecutor's address, separate from the other complaints, was a breach of his duties. It is unlikely that a breach of a prosecutor's duties of this kind would of itself give rise to a miscarriage of justice. However, in this case the prosecutor's very substantial use of sarcasm, mockery and derision is relevant to an assessment of the likely effect of his address, viewed as a whole.
For these reasons I have concluded that the prosecutor's repeated use of language apt to evoke feelings of prejudice, sympathy and emotion and the submissions which he made which could have had the effect of inducing notions of racial prejudice and corresponding notions of sympathy for the complainant, constituted breaches of his duty and of the legal principles to which I have referred.

Miscellaneous complaints not made out

There are three aspects of the prosecutor's address of which complaint has been made which I do not consider to be justified.

The prosecutor's submissions relating to the complainant getting into the car

The prosecutor made reference to the evidence relating to the complainant getting into the car driven by SF on a number of occasions in the course of his address.[179] On behalf of the appellants it is submitted that these references were improper because they impliedly suggested to the jury that the complainant was forcibly removed into the vehicle, when there was no evidence to support that proposition. It is also submitted on behalf of the appellants that the manner in which the complainant entered the vehicle is entirely irrelevant to the issues of consent which arose only when sexual intercourse was proposed after the vehicle got to Kings Park.
[179] ts 7, 9, 23.
These criticisms should be rejected. When the relevant passages of the prosecutor's address are viewed in their context, and read in their entirety, they do not convey the proposition that the complainant was forcibly removed into the vehicle. To the contrary, in his references to this aspect of the evidence the prosecutor was conveying two propositions to the jury, namely:
•the complainant probably needed assistance to get into the vehicle because she was so drunk; and
•it is unlikely that the complainant would have got into a vehicle with two men she did not know in the early hours of the morning unless she was very drunk indeed.
Each of these propositions was open on the evidence and this criticism of the prosecutor's address should be rejected.

The prosecutor's reference to the complainant's injury and torn clothes

The prosecutor referred to the evidence relating to the bruising of the complainant, and her torn clothes.[180] On behalf of the appellants it is submitted that this reference was improper, because the evidence is not capable of establishing, unequivocally, that the complainant did not consent to sexual intercourse. However, in the relevant portion of his address the prosecutor explicitly accepted that the evidence could be consistent with consensual sex, and invited the jury to consider whether the evidence was more consistent with the complainant being 'comatose drunk' than with the complainant's active engagement in sexual intercourse as described by MAM.[181] The bruising sustained by the complainant, and the condition of her clothing were relevant to the jury's assessment of the evidence, and the prosecutor's submissions with respect to those matters were consistent with the evidence. The criticism of this portion of his address should be rejected.

A submission based on the prosecutor's opinion

[180] ts 14.

[181] ts 14.

On behalf of the appellants complaint is also directed towards the portion of the prosecutor's address in which he told the jury that he had assessed MAM to be an accomplished liar.[182] It is submitted that this proposition contravenes the principle to which I have referred to the effect that it is inappropriate for a prosecutor to put his own opinions before the jury in the form of submissions. However, in this case the manner in which the prosecutor couched his submissions has to be viewed in a context in which he commenced his address to the jury by specifically informing them that it was open to the jury to reject his view in relation to any topic, and in which, immediately after expressing his opinion with respect to MAM's evidence, the prosecutor invited the jury to make their own judgment of his credibility.[183] While it is generally undesirable for a prosecutor to introduce his or her own personal opinions into an address to the jury, in this instance the jury would clearly have understood that they were being invited to make their own assessment of MAM's credibility, and were not being invited to simply rely upon an assessment made by the prosecutor.

The prosecutor's address - summary

[182] ts 28.

[183] ts 2, 28.

For the reasons I have given, the prosecutor put three submissions to the jury which lacked any evidentiary foundation, used language likely to invoke feelings of emotion and sympathy, and which carried the risk of invoking notions of racial prejudice and corresponding sympathy. However, as the authorities make clear, breach of a prosecutor's duties will not necessarily and of itself, result in a miscarriage of justice necessitating a retrial. Rather, the breaches must be viewed in the context of the circumstances of the case as a whole, including the strength of the prosecution case, the extent of any objections by defence counsel to the course taken by the prosecutor, and the directions, if any, given by the trial judge. It is now necessary to turn to those matters for the purposes of ascertaining whether the prosecutor's address gave rise to a miscarriage of justice.

The strength of the prosecution case

For the reasons I have already given, the prosecution case was not overwhelming, essentially because the complainant's evidence was equivocal and not emphatic. On the other hand, there was clearly sufficient evidence to sustain a conviction. There were however live issues which the jury had to resolve in order to sustain a conclusion of guilt.

The objections of defence counsel

As I have noted, in this case each defence counsel took objection to the prosecutor's closing address immediately after it was made. Those objections were not nearly as extensive as the criticisms directed towards to the prosecutor's closing address in the course of this appeal, nor was any application made to abort the trial.
In some cases the lack of objection from senior and experienced defence counsel may support an inference that, in the context of the trial as a whole, the submissions made by a prosecutor were within the legitimate scope of the advocate's role. However, this is not a case in which there were no objections from defence counsel - each counsel in fact objected immediately after the address. The ambit of those objections is to be assessed in a context in which the addresses of counsel are not ordinarily transcribed, with the result that counsel would not have had either the time, nor the opportunity to meticulously review, in detail, the specific matters raise by the prosecutor in the same way as has occurred in support of the appeals. Counsel's objections were chiefly directed to the prosecutor's emotive use of the language of predation. No objection was made as to the lack of evidentiary foundation for, and other flaws in, the prosecutor's recurring theme as to the appellants' purpose of going to Northbridge. In this regard, it may be that defence counsel was distracted by the emotive language of predation from focusing on the fundamental flaws in the prosecutor's recurring theme. Further, no inference should be drawn from the fact that neither counsel applied to terminate the trial, given that a number of competing forensic considerations must always govern a decision of that character.
Ultimately, when breach of a prosecutor's duties has been established, the appellate court must determine whether the breach or breaches has given rise to a real risk that the jury may have been improperly influenced by the prosecutor's conduct. If that possibility cannot be excluded, the interests of justice will require the verdict to be set aside, irrespective of the position which may have been adopted by defence counsel at trial.

The directions given by the trial judge

As a result of the complaints made by defence counsel, the trial judge specifically directed the jury to exclude from consideration the prosecutor's submission that MAM may have watched pornography before going out that evening.[184] However, the effect of that direction must be assessed in a context in which it was given the day after the submission was made, and in a context in which the prosecutor's reference to pornography was clearly made in support of his fundamental proposition that the jury should conclude that the two men had gone to Northbridge that night for the purpose of taking sexual advantage of a woman who was so drunk as to be incapable of either consenting or resisting - a matter which was entirely unaddressed by the trial judge.
[184] ts 769.
The trial judge also directed the jury to review the evidence objectively and dispassionately and, in that context, referred to the prosecutor's description of the accused men as predators and to the complainant as their prey. The trial judge repeatedly referred to those descriptions as 'a rhetorical flourish'.[185] With respect to the trial judge, description of a proposition by reference to expressions common in debating circles or in court is not the best way of communicating an important point to members of the community who may have no experience of such things, and who may not know what is meant by a 'rhetorical flourish'. At all events, it is sufficient for present purposes to observe that the directions given by the trial judge addressed only some of the breaches of duty by the prosecutor, and left many of the significant breaches of duty unaddressed.
[185] ts 761.

Was there a miscarriage of justice?

For the reasons I have given, the prosecutor's recurrent reference to the proposition that each of the accused men went to Northbridge for the purpose of having sexual relations with a woman who was incapable of either consenting or resisting was entirely unsupported by the evidence, implicitly invited the jury to engage in a process of circularity of reasoning, and distracted the jury from the real issues in the case. His suggestions that MAM may have watched pornography earlier in the evening, and that both men, perhaps with other friends, had previously engaged in predatory sexual behaviour on other occasions, were also entirely unsupported by any evidence. Further, the prosecutor's use of metaphors involving African animals to support his contention as to the intention of each accused when travelling to Northbridge, and his suggestion that the two accused men, perhaps with other Middle Eastern friends, were respectful of women within their own community but preyed sexually upon women outside their community, created a real risk of evoking racial prejudice and cultural stereotyping. These breaches were compounded by the prosecutor's repeated use of language likely to invoke feelings of prejudice, emotion and sympathy. The directions given by the trial judge only addressed some of these issues.
Moreover, the judge's direction to the jury invited them to put the rhetorical flourishes to one side and 'concentrate on the substantive point

being made'.[186] But the substantive point being made was the prosecutor's recurring theme as to the appellant's purpose of going to Northbridge. That point was fundamentally flawed in the respects and for the reasons I have explained.
[186] ts 761.

Many of the improper and erroneous features of the prosecutor's address had compounding effects. For example, many of them related to the prosecutor's recurring theme as to the appellants' purpose.
I have no doubt that there is a real risk that the prosecutor's address may have improperly influenced the jury and that the possibility of such improper influence cannot be excluded. It follows that a miscarriage of justice has occurred.
In arriving at this conclusion I do not consider that any distinction should be drawn between the position of the two accused. Although the prosecutor's sarcasm, mockery and derision was mainly directed at MAM, as was the suggestion that he had viewed pornography before going out that evening, the most significant aspects of the prosecutor's address which breached the duties to which I have referred applied equally to SF and give rise to a miscarriage of justice in his case.
Given my conclusion that the objectionable aspects of the prosecutor's address gave rise to a real risk that the jury's consideration of the case may have been improperly influenced, and my conclusion that the prosecution case was not overwhelming, there is no scope for the application of the proviso, as counsel for the State property conceded during the appeal.[187]
[187] Appeal ts 23 ‑ 24.

Conclusion

For these reasons, leave to appeal should be granted to each appellant, each appeal should be upheld, the conviction of each appellant quashed, and a retrial ordered.
BEECH JA: I agree with Martin CJ.
HALL J: I agree that leave to appeal should be granted, the appeals allowed, the convictions of the appellants quashed and that there be a retrial.

I generally agree with the reasons of the Chief Justice, with one reservation. I do not consider that the language of 'predation' used by the prosecutor in his closing address was intended, or had the capacity, to evoke racial stereotypes and, thereby, unfairly prejudice the jury against the appellants. That language was, nonetheless, inappropriate in the circumstances of this case because it was used to reinforce the false line of reasoning, namely that the appellants had gone to Northbridge for the purpose of having sexual relations with a woman who was incapable of consenting and that this was a matter from which lack of consent could be inferred. This reservation does not affect my agreement with the conclusion that a miscarriage of justice has occurred, for the other reasons given by the Chief Justice.