Odisho v R - [2018] NSWCCA 19

Court of Criminal Appeal

Supreme Court

New South Wales

Summary available
Amendment notes

Medium Neutral Citation: Odisho v R [2018] NSWCCA 19
Hearing dates: 23 August 2017
Date of orders: 28 February 2018
Decision date: 28 February 2018
Before: Price J at [1]
Bellew J at [17]
Hamill J at [155]
Decision:
1. Leave in respect of ground 4 is refused.
2. Appeal dismissed.

Catchwords:
CRIMINAL LAW – Appeal – Evidence – Unfavourable witness – Cross-examination – Cross-examination of unfavourable witness in respect of matters relevant only to credibility – Whether such questioning went beyond such matters – Whether further grant of leave was required – Whether miscarriage of justice arose

CRIMINAL LAW – Practice and procedure – Summing-up of trial judge – Whether summing-up failed to adequately balance the respective cases of the Crown and the accused – Where trial judge repeatedly reminded the jury of the defence case – Structure of the summing-up a matter for individual judgment – No requirement on the part of the trial judge to “compartmentalise” the summing-up by separately identifying and summarising the defence case – Ultimate question whether the trial judge has put the defence case in such a way as to allow the jury to properly consider the issues raised on the accused’s behalf

CRIMINAL LAW – Appeal – Offences – Where jury found the appellant guilty of wounding with intent to cause grievous bodily harm – Whether verdict unreasonable and could not be supported by the evidence – Whether the evidence was sufficient to establish beyond reasonable doubt that the appellant held the requisite intention – Where a combination of circumstances relied upon by the Crown provided a sound basis upon which it was open to the jury to infer such intention on the part of the appellant – Where issue not explored in evidence by trial counsel
CRIMINAL LAW – Appeal – Practice and procedure – Directions to the jury as to the question of intention – No basis upon which to conclude that issues were conflated by the trial judge – No issue raised by trial counsel as to the directions given – Position taken by trial counsel entirely unsurprising – Leave to appeal refused
Legislation Cited: Crimes Act 1990 (NSW)
Criminal Appeal Rules (NSW)
Evidence Act 1995 (NSW)
Cases Cited: Abdel-Hady (‘SA’) v R [2011] NSWCCA 196
Adam v R (2001) 207 CLR 96; [2001] HCA 57
Aravena v R (2015) 91 NSWLR 258; [2015] NSWCCA 288
AP v R [2013] NSWCCA 189
ARS v R [2011] NSWCCA 266
Casey v R [2016] NSWCCA 77
Castle v R; Bucca v R (2016) 259 CLR 449; [2016] HCA 46
Filippou v R (2015) 256 CLR 47; [2015] HCA 29
Golossian v R [2013] NSWCCA 311
Greenhalgh v R [2017] NSWCCA 94
Haoui v R [2008] NSWCCA 209
M v R (1994) 181 CLR 487; [1994] HCA 63
McKell v R [2017] NSWCCA 291
Palmer v R (1998) 193 CLR 1; [1998] HCA 2
Peacock v R [2008] NSWCCA 264; (2008) 190 A Crim R 454
Piddington v Bennett & Wood Pty Ltd (1940) 63 CLR 533; [1940] HCA 2
Price v Bevan (1974) 8 SASR 81
R v Abusafiah (1991) 24 NSWLR 531
R v Ali (1981) 6 A Crim R 161
R v Ayoub [2004] NSWCCA 209
R v Courtney-Smith (No 2) (1990) 48 A Crim R 49
R v Hunter [1956] VLR 31
R v Inamata [2003] NSWCCA 19; (2003) 137 A Crim R 510
R v Le (2002) 54 NSWLR 474; [2002] NSWCCA 186
R v Meher [2004] NSWCCA 355
R v Parkes [2003] NSWCCA 12; (2003) 147 A Crim R 450
R v Roberts (2001) 53 NSWLR 138; [2001] NSWCCA 163
R v Sanderson (Court of Criminal Appeal (NSW), 18 July 1994 unreported)
R v Schmahl [1965] VR 745
R v Tomazos (Court of Criminal Appeal (NSW) 6 August 1971 unreported)
R v Tripodina (1988) 35 A Crim R 183
R v White [2003] NSWCCA 64
RPS v R (2000) 199 CLR 620; [2000] HCA 3
SKA v R (2011) 243 CLR 400; [2011] HCA 13
Stanoevski v R (2001) 202 CLR 115; [2001] HCA 4
Tarrant v R [2018] NSWCCA 21
Taub v R [2017] NSWCCA 198
Texts Cited:
Hunter, Professor Jill, “Jurors Notions of Justice, An Empirical Study of Motivations to Investigate & Obedience to Judicial Directions” (2013) University of New South Wales and Law and Justice Foundation
Marcus, Paul, “Judges Talking To Jurors in Criminal Cases: Why U.S. Judges Do It So Differently From Just About Everyone Else” (2013) 30 Arizona Journal of International and Comparative Law, 1
Category: Principal judgment
Parties: Michael Odisho (Appellant)
Regina (Respondent)
Representation:
Counsel:
H Dhanji SC and G Lewer (Appellant)
T Smith (Respondent)
Solicitors:
Lenz Legal (Appellant)
Solicitor for the Director of Public Prosecutions (NSW) (Respondent)

File Number(s): 2013/00050776
Publication restriction: Nil
Decision under appeal

Court or tribunal:

District Court

Jurisdiction:

Criminal

Date of Decision:

12 October 2016

Before:

His Honour Judge Arnott SC

Judgment

PRICE J: I have read the draft judgments of Bellew and Hamill JJ. I find myself in disagreement with Hamill J in respect of grounds 1 and 2. I agree with the orders that Bellew J proposes and his Honour’s reasons for dismissing grounds 2 and 3, and refusing leave in ground 4 of the appeal. However, in ground 1, the path by which I reach the conclusion that this ground of appeal should be dismissed is different in one aspect to the approach taken by his Honour.
As the facts and issues in the appeal are comprehensively covered in the judgment of Bellew J, it is unnecessary to repeat them. In considering the first ground of appeal, his Honour helpfully refers to relevant authorities which I will endeavour not to repeat. Accordingly, I will immediately proceed to my departure from his Honour’s analysis.
When considering ground 1, Bellew J expresses the view[1] that the trial judge was in error in concluding that leave under s 38(3) of the Evidence Act 1995 (NSW) was not required for the Crown’s cross-examination of the victim. His Honour does not consider that the particular questions asked of the victim by the Crown that he was lying to protect the accused and was lying to protect his own safety required leave under s 38(3), as this line of questioning was directed at “shaking [the victim’s] credibility on the s 38(1) subjects.” Had the Crown’s questioning been limited to that, his Honour is of the view that no error on the part of the trial judge would be established, however, in his Honour’s opinion, the Crown’s cross-examination extended beyond that.
1. At [60].
Bellew J considers[2] that the Crown’s cross-examination of the victim; that he was angry at the police for charging him with additional offences, that he was angry because he had been refused bail, and that he was annoyed because Witness X had received an indemnity, were “impermissibly wide ranging” and “went solely to [the victim’s] credibility.” It is with this analysis that I disagree.
2. At [59].
Section 38(3) of the Evidence Act provides:

38 Unfavourable witnesses
…
(3) The party questioning the witness under this section may, with the leave of the court, question the witness about matters relevant only to the witness’s credibility.
…

As Hamill J observes[3] , the question to be asked for leave to be required under s 38(3) is: “Is it [the evidence in question] relevant only to a witness’s credibility?”
3. At [157].
Section 55(1) of the Evidence Act is in the following terms:

55 Relevant evidence
(1) The evidence that is relevant in a proceeding is evidence that if it were accepted, could rationally affect (directly or indirectly) the assessment of the probability of the existence of a fact in issue in the proceeding.
…

It is well recognised that the line between evidence going only to credit as opposed to addressing a fact-in-issue in the trial is not always easy to draw. [4] However, in the circumstances of the trial, I am satisfied that the Crown’s cross-examination of the victim which was directed at establishing the truth of the written statements previously made to police and to his motive to lie in his testimony before the jury was not relevant only to the witness’s credibility.
4. See for example: Palmer v R (1998) 193 CLR 1; [1998] HCA 2 at [51] (McHugh J); Peacock v R [2008] NSWCCA 264; (2008) 190 A Crim R 454 at [60] (Simpson J).
The principal issue in the trial was whether the appellant was in the victim’s car at the time the victim was shot. The victim gave evidence that the references in his statements to the appellant’s presence when Witness X shot him had been inserted by police, were not true, and that he had not seen the appellant that evening. The victim’s credibility was crucial to the determination of this contested factual issue of which the Crown bore the burden of establishing beyond reasonable doubt.
That being so, questions by the Crown of the victim about his possible motives to change his position were necessarily indirectly relevant to the facts-in-issue, particularly as he was the victim of the shooting. In R v Le (2002) 54 NSWLR 474; [2002] NSWCCA 186, Heydon JA said at [90]:

“[90] … Section 38 permits the testing of the evidence in chief with a view to establishing the probability of the truth of the matters asserted in the prior inconsistent statement. Hence it permits examination of the witness on matters of credit with a view to the jury accepting the prior inconsistent statement and rejecting the later sworn evidence. It also permits an examination of the background at the time with which the statements are dealing, the background at the time the prior inconsistent statement is made, and the background at the time when the witness moves to a version different from the prior inconsistent statement. It permits an inquiry into the possible reasons for the change, including the motives for the change.” (Emphasis added.)

The Crown’s inquiry into the victim’s possible motives to depart from his prior statements to police included that he was angry at police for charging him with additional offences, that he was angry because he had been refused bail, and that he was annoyed because Witness X had received an indemnity.
In my view, the trial judge did not err in concluding that leave under s 38(3) was not required as these questions were not relevant only to the victim’s credibility.
Bellew J expresses the concern[5] that if the questioning was allowed to proceed on the basis that it was covered by the grant of leave under s 38(1), “s 38(3) would have little or no work to do.” I do not agree. For instance, a credit attack on the witness relating to fabrications or lies on other occasions unrelated to the facts-in-issue in the trial, to show that the witness was not the truthful person that he presented himself to be, would be relevant only to the witness’s credibility and would require leave under s 38(3).
5. At [59].
There is another matter I should mention. In his short ex tempore judgment, the trial judge told the parties that he was open “to further application if cross-examination gets to the point where the matter needs to be revisited”. [6] The trial judge plainly indicated to the parties that the issue was not closed, but neither the Crown nor counsel for the appellant invited his Honour to revisit the question of s 38(3).
6. (Tcpt, 1 March 2016, p 1-2).
In the event that I am wrong in my view that leave under s 38(3) was not required, I agree with Bellew J that the trial judge could not have refused leave if an application had been made and no miscarriage of justice has been established.
Accordingly, I agree with the following orders:

Leave in respect of ground 4 is refused.

The appeal is dismissed.

BELLEW J: The appellant was tried before his Honour Judge Arnott SC and a jury in the District Court on an indictment containing the following counts:

on or about 9 February 2013 at Bass Hill in the State of New South Wales did wound the victim with intent to cause grievous bodily harm (count 1);

in the alternative to count 1, on or about 9 February 2013 at Bass Hill in the State of New South Wales, whilst in company with Witness X, did wound the victim and was reckless as to causing actual bodily harm to him (count 2);

on or about 9 February 2013 at Bass Hill in the State of New South Wales did use a pistol without being authorised to do so by licence or permit (count 3).

The appellant pleaded not guilty to all counts. He was found guilty by the jury of counts 1 and 3.
On 12 October 2016 the appellant was sentenced in respect of count 1 to a non-parole period of 5 years and 8 months imprisonment with an additional term of 3 years and 4 months. He was sentenced in respect of count 3 to a fixed term of 3 years imprisonment which was wholly concurrent with the sentence imposed in respect of count 1.
The appellant now appeals against his conviction on the grounds more fully set out below. Although the notice of appeal set out 5 grounds, the last of those grounds was subsequently abandoned.

AN OVERVIEW OF THE CROWN CASE AGAINST THE APPELLANT

The following summary of the Crown case is drawn from the written submissions filed on behalf of the appellant.
At approximately 3:00am on 9 February 2013 the victim attended Bankstown Hospital with three gunshot wounds to the lower part of his body. Two were below the knee and one was in the region of the right lateral buttock. Police were called to the hospital and spoke to the victim. The appellant and Witness X were later arrested and charged in respect of their alleged involvement in the victim’s shooting. Ultimately, Witness X’s charges were withdrawn and he received an indemnity in return for giving evidence against the appellant (as well as others).
It was the Crown case that Witness X and the appellant were parties to a joint criminal enterprise to punish the victim by shooting him. The motive for the shooting was said to be the use, by the victim and Ahmed Hoblos (“Hoblos”), of an amount of cocaine which Witness X had left with the victim without the victim making payment for it. The evidence at trial regarding the original source of that cocaine was inconsistent. The victim gave evidence that he was storing it for Witness X. Witness X maintained that he provided it to the victim on behalf of another person, Fadi Helou (“Helou”), and that the victim was to sell the cocaine for Helou.
Witness X gave evidence that on the evening of 9 February 2013 Ahmed Khalil (“Khalil”) drove him, along with the appellant, the victim and Hoblos, to a house occupied by a Mr Sanoussi. The purpose of going there was to meet Helou. Witness X said that on arrival, he went inside with the appellant, Khalil and Helou. The victim and Hoblos remained in the car. Witness X said that at time, an agreement was reached between himself, the appellant, Helou and others, that he was to shoot the victim at least twice as punishment for his use of the cocaine without paying for it. Witness X said that he was told that unless he shot the victim, he (i.e. Witness X) would himself be shot because he had vouched for the victim. On the Crown case, the appellant had obtained a pistol and was to go with Witness X to ensure that he carried out the shooting.
The appellant, Witness X, the victim and Hoblos then left Sanoussi’s premises and drove to where the victim had parked his car. Witness X then drove that car to the victim’s house, with the appellant in the front passenger seat and the victim in the back seat. Witness X stopped along the way, at which time the appellant loaded the pistol and handed it to him. Witness X then turned around and shot the victim at close range while the victim was sitting in the back seat of the car. Witness X then drove to a house where he and the appellant left the victim and his vehicle. The victim then got into the driver’s seat of his car and drove himself to hospital. He took two cartridge cases from his car and threw them in a bin at the hospital. They were later recovered by police.
The victim later provided two statements to police, the contents of which were broadly consistent with the Crown case as outlined above. However at trial, the victim disavowed the accounts he had given in those statements, and gave evidence that the appellant was not present when Witness X shot him, and that he had not seen him on that evening. He maintained that the reference in his statements to the appellant’s presence at the time of the shooting had been inserted by the police. The Crown was granted leave to cross-examine the victim in respect of his prior accounts to police. Such grant of leave forms the basis of ground 1 of the present appeal.
In support of its case, and in addition to the evidence of the victim and Witness X, the Crown relied on a recording of a conversation between the victim and Witness X which took place when the victim was wearing a listening device. The Crown submitted that there were references in that recording to a person called “Mikey” which supported the appellant’s involvement in the offending.
Forensic evidence was also relied upon by the Crown to support a conclusion that the appellant was in the car at the time of the shooting. This included evidence of the appellant’s DNA on a $5 note located in the car, and evidence of his fingerprint on one of the car’s windows. The victim had made a statement concerning the last time that the car had been cleaned, which the Crown relied upon to date the forensic evidence.
Finally, the Crown relied on the fact that the appellant had told police that he had been at home ill on the night of the shooting. The Crown relied upon telephone evidence to establish that his was not true.
The appellant did not give or call any evidence at trial.

GROUND 1 – A miscarriage of justice was occasioned by the Crown being permitted to cross-examine the victim on matters relevant only to his credibility without having been given leave to do so pursuant to s 38(3) of the Evidence Act

The evidence given by the victim at the trial

The victim made two statements to the police, one on 13 February 2013 and the other on 28 March 2013, in which (inter alia) he placed the appellant in his (i.e. the victim’s) car at the time of the shooting. He departed from that account when giving evidence at the trial. [7]

The application by the Crown pursuant to s 38 of the Evidence Act

7. As set out at [26] above.

It became apparent to the Crown prior to the commencement of the appellant’s trial that the victim would not give evidence in accordance with his statements. Accordingly, at that time the Crown put the appellant’s representatives on notice that it was proposed to make an application pursuant to s 38 of the Evidence Act 1995 (NSW) (“the Act”) to cross-examine the victim. After the victim was called by the Crown, and having departed from the account he gave to the police, the Crown made that application to the trial judge in the following terms:

CROWN PROSECUTOR: The application is made under 38(1)(a), (b) and (c) and the application is also made for leave, in addition to those aspects, for leave under 38(3).
HIS HONOUR: Do you want to identify the various areas?
CROWN PROSECUTOR: Firstly, it is unfavourable, generally that is clearly the case that it is unfavourable to the Crown. So that is under (a). It is unfavourable because the witness is providing an account in which the accused was not present. The matters in relation to subs (b), there were a number, but the first that comes to mind is about the car, the washing of the car. Your Honour will see that in the statement of 28 March the witness outlines when his car was washed, how it was washed, what was done and that is when he was asked about the car wash. In fact, his attention was drawn to the SMS message where he said he was actually at the car wash. He didn't recall. It's the Crown's submission that is not making a genuine attempt about a matter that he may reasonably be supposed to have knowledge. But largely-- [8]
8. Tcpt, 1 March 2016, 17(31)-(48).

Having tendered a number of documents in support of the application, the trial judge observed that the account given by the victim to the police was “certainly very different” from the evidence he had given. [9] His Honour then raised the application of s 38(3) of the Act which, as set out below, governs a grant of leave to cross-examine as to credibility:
9. Tcpt, 1 March 2016, 19(39)-(40).

HIS HONOUR: The only question I need to clarify with you is, I'm satisfied that the evidence he has given is unfavourable to the party that has called him. I am also satisfied that he is a witness who may reasonably be supposed to have knowledge and about which it appears to the Court the witness is not, in his examination-in-chief, making a genuine effort or attempt to give evidence, and also that he has made prior inconsistent statements. How does subparagraph (3) of section 38, which relates to cross-examining the witness about matters relevant to his credibility, arise?
CROWN PROSECUTOR: I seek to cross-examine the witness about the reasons why he is, in the Crown's submission, lying in his evidence.
HIS HONOUR: Yes.
CROWN PROSECUTOR: And that will take me into areas of credit. There is no escaping it. I seek to explore reasons why he may be lying. I have tendered the statements of the police who spoke to him recently in January, when he said that he had received threats and I certainly will seek to explore that. But he has indicated that he doesn't trust the police. He has also recently been charged and bail refused and I will seek to question him in relation to that and the relationship of that circumstance to him lying in his evidence.
HIS HONOUR: A motive for lying would be relevant to an issue in the case. To my mind a matter relevant only to credibility would be, "You are a pathological liar, aren't you?" In other words, something unrelated to this matter.
CROWN PROSECUTOR: I certainly seek to raise issues relating to credit in terms of his circumstances that he was charged recently, that he was bail refused, to explore issues as to whether that has heightened how he has expressed he feels about the police. I'm going to be putting to him that he is lying under oath. That is why I have sought the leave to extend, because in my view inescapably what I am seeking to put to him and I am obliged to put these things to him, that I want to submit to the jury, inescapably that leads me to questioning him on issues of credit.
HIS HONOUR: On the assumption - and I don't find the facts in this case - but assuming the jury reasoned that he was lying, you would ultimately submit to the jury "The possibilities for him lying, the motive behind it are the following:" What would they be?
CROWN PROSECUTOR: Because he is scared. Your Honour will see in paragraph 40 of his original statement, 13 February that he made, that he outlines that he is scared, but certainly he has recently told police that he has been threatened, that he is friends with the accused and is assisting the accused. Sorry, that he is scared, that he was threatened and worried for his family's safety. That is all in the one. That he is friends with the accused, that he is assisting the accused, that he doesn't like the police, doesn't want to assist the police, that he doesn't want to be a dog, which is something that he said to Constable Sutherland at the hospital whilst he was taking notes. Those are the likely areas. But scared of the Brothers For Life, which the accused was a member or in the very least a close associate of the members of that group.
HIS HONOUR: Just going back to the "don't like the police", part of that might be because he has got a long criminal history. I don't know.
CROWN PROSECUTOR: It may be. It may be because he was recently charged and bail refused. These are the issues that I would like to explore in cross-examination and in my submission it inevitably leads to credit. [10]

10. Tcpt, 1 March 2016, 19(44)-21(4).

The judgment of the trial judge on the Crown’s application

In granting the Crown’s application for leave under s 38(1), the trial judge said the following:

I give leave to the Crown to question the witness as though she were cross-examining the witness about the matters that she has outlined. The evidence given by the witness is clearly very different from statements that he has made to police about a number of matters which have been highlighted in the submissions which will be found in the transcript. I consider that s 38(1)(a), (b) and (c) have been engaged, an application of the Evidence Act was engaged.
The Crown submits that she be also given leave to question the witness about matters relevant only to the witness’s credibility. At present it would seem that the matters that the Crown wants to cross-examine the witness about go to the issues in the case and his motive for why he has, in Crown’s submission, changed his evidence in court from those statements that he has previously given to the police. Accordingly, I cannot see that subs (3) is engaged, but I am open to a further application if cross-examination gets to the point where the matter needs to be revisited.
In making this decision I take into account the fact that notice was given to defence very promptly after it came to the notice of the Crown that the witness would give evidence different to that contained in his statements to the police.

The Crown proceeded to cross-examine the victim extensively without making any application for leave under s 38(3).

The application by counsel for the appellant to cross-examine the victim

At the conclusion of the Crown’s cross-examination of the victim, counsel for the appellant foreshadowed an application to cross-examine in respect of a series of particular issues. Counsel said:

Can I indicate just to sort of set wheels in motion, if that needs to be done, I will be seeking leave to cross-examine this witness as to how long he was ………………………. I will be seeking leave to cross-examine as to how long he was at the hotel, that the Crown adduced evidence from the witness yesterday that he was at a hotel, at least as I understood his evidence on 13 February 2013 and I will be seeking leave to cross-examine the witness as to how long he has lived in the Pritchard area. [11]
11. Tcpt, 3 March 2016, 269(44).

Counsel continued:

… the Crown can’t have it all one way. The Crown can’t rely upon that evidence, if I don’t have the opportunity to cross-examine the witness on it and it seems to me that from his evidence, that he is no longer ……… …………………., because he refers to it in the past tense. So it is relevant, if that be the case as to when he ………………………………………….. [12]
12. Tcpt, 3 March 2016, 270(29).

Counsel articulated the specific questions he wished to put to the victim as follows:

how long was the victim at the hotel?

how long was the victim living at Mount Pritchard?

how long was the victim ………………………. ?

when did the victim ………………………………. ?

why did the victim …………………………………? [13]
13. Tcpt, 3 March 2016, 331(16).

As to (i), the Crown had commenced to cross-examine the victim in relation to the contents of one of his statements, and in particular that part of the statement in which he stated that he was concerned for his safety, and that of his family. [14] The victim denied making that statement, following which the Crown put to him that he had been moved to a hotel by the police in light of the fears that he had expressed. [15] Whilst agreeing that he had been moved to a hotel, the victim denied that this was done because of any fears he had expressed, and asserted that the police had done so because of a fear that he would breach his parole.
14. Tcpt, 2 March 2016, 221(37).
15. Tcpt, 2 March 2016, 222(3)-(8).
As to (ii), the issue of the victim living at Mount Pritchard arose in circumstances where the Crown had put to him that he was being untruthful in his evidence because of concerns about his safety. [16] His Honour then intervened and the following exchange took place:

HIS HONOUR
Q.   What is being put to you is this: That what you told the police in your statement in 2013--
A.   Yes.
Q.   --was the truth and that you have changed your story in front of the jury because you are worried about yourself and your family?
A.   No, that’s not true.
Q.   By reason of a number of things, including recent threats this year that have been made to you?
A.   No, it’s not true, your Honour, it’s not true, because what am I doing living in like Mount Pritchard if there is actually threats been made? I live in the area, I’m around Bankstown all the time. [17]
16. Tcpt, 2 March 2016, 252(40).
17. Tcpt, 2 March 2016, 253(5)-(17).

As to (iii), (iv) and (v), the sole reference to ………………………………… came in the following answer by the victim to a question put by the Crown:

Q. Have you looked at this statement recently?
A. Well, the last time I looked at it is when I was - when I was …….. ……….. I think. That was like - would have been three years ago. [18]
18. Tcpt, 1 March 2016, 80(33)-(35).

Upon being made aware of these proposed areas of cross-examination, the Crown foreshadowed a claim for public interest immunity. [19] The Crown subsequently filed a notice of motion making that claim, and argued (inter alia) that no legitimate forensic purpose for asking the questions had been established. When asked to articulate that purpose, counsel for the appellant submitted that a significant issue in the trial was whether or not the victim was lying and that it would be unfair if he were not allowed to ask the foreshadowed questions. [20]
19. Tcpt, 3 March 2016, 332(3)-(8).
20. Tcpt, 8 March 2016, 344(18)-(24).

The judgment of the trial judge on the appellant’s application

The judgment of the trial judge is the subject of a non-publication order. For present purposes, it is sufficient to note that the application was refused on the basis that no legitimate forensic purpose for asking the foreshadowed questions had been established. His Honour also concluded that even if such a purpose had been established, the claim for public interest immunity would have been upheld in the conduct of the relevant balancing exercise.

Submissions of the appellant

Senior counsel for the appellant submitted that the subject matter identified by the Crown for the purposes of the application under s 38, and the subsequent cross-examination, were relevant only to the credibility of the victim and not relevant (at least directly) to any fact in issue in the trial. It was submitted that in granting leave under s 38(1) of the Act, the trial judge had erroneously characterised the evidence as going to one or more issues in the trial, and that this led his Honour to erroneously conclude that leave pursuant to s 38(3) was not required. Specifically, it was submitted that the trial judge had erred in failing to:

properly characterise the nature of the evidence which was sought to be adduced in cross-examination;

have regard to the considerations in ss 38(6) and 192(2) of the Act; and

consider the admissibility of the evidence which was likely to be adduced in response to the questions asked.

It was submitted that as a result, the appellant’s trial had miscarried. Senior counsel submitted that in terms of establishing such miscarriage it was sufficient for the appellant to demonstrate that:

leave under s 38(3) of the Act was required;

it was not granted; and

it was not inevitable that such leave would have been granted had it been sought.

It was submitted that a consideration of the factors in s 192 of the Act weighed in favour of leave being refused. It was further submitted that there was unfairness to the appellant arising from the decision of the trial judge to prevent counsel for the appellant from cross-examining the victim in relation to the specific matters which he had outlined. This, it was submitted, was a further basis upon which to conclude that the appellant’s trial had miscarried.

Submissions of the Crown

The Crown submitted that s 38 of the Act permitted cross-examination “about” particular matters, and that the use of the word “about” in that context made it clear that it was open to the trial judge to grant the Crown leave to cross-examine the victim, not only in relation to matters specifically directed to one or more of the subjects referred to in s 38(1), but also in respect of matters directed towards the probability of establishing those factors for which the Crown contended. Whilst the Crown accepted that a grant of leave pursuant to s 38 did not permit a party to undertake a “general” cross-examination, it was submitted that it remained permissible for the cross-examination to extend beyond those specific matters in s 38(1)(a), (b) and (c) to related issues of credibility, absent a separate grant of leave pursuant to s 38(3).
The Crown further submitted that even if this Court took the view that in cross-examining the victim on possible reasons for his change of position the Crown was cross-examining him only as to his credibility, this ground should nevertheless not be upheld because no miscarriage of justice had occurred. This, it was submitted, was because had an application for leave under s 38(3) been pursued by the Crown, the trial judge could not reasonably have refused it. In this respect, the Crown took particular issue with the proposition that the importance of the evidence sought to be elicited in cross-examination was low. The Crown emphasised that prima face, the victim had been truthful in his statements, and was being deliberately untruthful in his evidence. It was submitted that in these circumstances, the possible reasons for his change in position clearly had the potential to be of real significance to the jury when assessing his evidence.
The Crown further submitted that the decision of the trial judge not to permit that cross-examination was not unfair, and did not result in any miscarriage of justice. In this regard, the Crown focussed upon the circumstances surrounding the evidence which was the subject of the questions which were sought to be put to the victim by counsel for the appellant.

Consideration

Section 38 of the Act is in the following terms:

38 Unfavourable Witnesses
(1) A party who called a witness may, with the leave of the court, question the witness, as though the party were cross-examining the witness, about:
(a) evidence given by the witness that is unfavourable to the party, or
(b) a matter of which the witness may reasonably be supposed to have knowledge and about which it appears to the court the witness is not, in examination in chief, making a genuine attempt to give evidence, or
(c) whether the witness has, at any time, made a prior inconsistent statement.

(2) Questioning a witness under this section is taken to be cross-examination for the purposes of this Act (other than section 39).
(3) The party questioning the witness under this section may, with the leave of the court, question the witness about matters relevant only to the witness's credibility.
Note : The rules about admissibility of evidence relevant only to credibility are set out in Part 3.7.

(4) Questioning under this section is to take place before the other parties cross-examine the witness, unless the court otherwise directs.
(5) If the court so directs, the order in which the parties question the witness is to be as the court directs.
(6) Without limiting the matters that the court may take into account in determining whether to give leave or a direction under this section, it is to take into account:
(a) whether the party gave notice at the earliest opportunity of his or her intention to seek leave, and
(b) the matters on which, and the extent to which, the witness has been, or is likely to be, questioned by another party.

(7) A party is subject to the same liability to be cross-examined under this section as any other witness if:
(a) a proceeding is being conducted in the name of the party by or on behalf of an insurer or other person, and
(b) the party is a witness in the proceeding.

Section 38(3) of the Act represents a departure from the position at common law, where a witness who was declared “hostile” could be cross-examined generally as to his or her credit. [21] The underlying purpose of the section is to enable a true picture of the relevant situation to emerge. [22]
21. See for example R v Hunter [1956] VLR 31; Price v Bevan (1974) 8 SASR 81.
22. R v Parkes [2003] NSWCCA 12; (2003) 147 A Crim R 450 at [83] per Ipp JA (Bell J agreeing); Casey v R [2016] NSWCCA 77 at [62] per Johnson J (Schmidt and Wilson JJ agreeing).
Pursuant to s 38, a party may cross-examine a witness “about” matters in subss 38(1)(a), (b) or (c). It is conceivable that in the course of doing so, issues of credibility may arise which are necessarily linked to the matters “about” which leave has been given to cross-examine. In those circumstances, the cross-examination may extend to those issues of credibility, in the absence of a specific grant of leave under s 38(3). Support for that proposition is to be found in the judgment of Heydon JA (as his Honour then was and with whom Dunford and Buddin JJ agreed) in R v Le. [23] To begin with, his Honour addressed the width of the term “about” as it is used in s 38(1):

[59] The relevant Macquarie Dictionary definitions of “about” suggest that to ask a question about a subject is to ask a question concerning it, or in regard to it, or connected with it, or concerned with it. The relevant definitions in the Oxford English Dictionary, 2nd ed of “about” suggest that to ask a question about a subject is to ask a question touching it, concerning it, in the matter of it, in reference to it or in regard to it. The word “about” is the “regular proposition employed to define the subject-matter of verbal activity ….”. At times, the appellant’s submissions implied that a party questioning under s. 38 could do no more than put a version which was to the contrary of the unfavourable evidence, or put the party’s version of the matter which the witness was not genuinely attempting to testify about, or put the terms of the prior inconsistent statements. Those dictionary definitions suggest that the party conducting s. 38 questioning could range more widely than that. [24]
23. R v Le (2002) 54 NSWLR 474; [2002] NSWCCA 186 (“Le”).
24. At [59].

His Honour then proceeded to consider the purposes of questioning under s 38:

[66] One purpose of a s 38 examination must be to enable counsel calling the witness to demonstrate that the evidence in chief which led to the s 38 order is false. Another must be to enable counsel to demonstrate that any prior statement inconsistent with it is true. That latter purpose is assisted by s 60, which permits a prior inconsistent statement to be considered as evidence of what is represented, not merely as a matter affecting credibility. But s 60 by itself is not wholly effectual unless the questioner is able to interrogate with a view to demonstrating the truth of the prior inconsistent statement. There would be little point in permitting s 38 examinations otherwise and no point in the existence of s 38(3). The purposes described can be assisted by obtaining concessions from the witness about matters tending to indicate the falsity of the impugned evidence. One of these is the lateness with which the impugned story is advanced. Another is the inherent improbability of the impugned story. These purposes must also be capable of being assisted by the eliciting of evidence tending to show the truthfulness of prior statements inconsistent with the impugned evidence, such as the fact that they were made under conditions conducive to accurate recollection and expression and conducive to sincerity. [25]
25. At [66].

His Honour expressly recognised that circumstances may arise in which there is a connection or relationship between the matters in s 38(1)(a), (b) or (c) about which a witness is questioned, and matters of credibility, such that questioning as to the latter may proceed pursuant to a grant of leave under s 38(1), and without the necessity for a separate grant of leave under s 38(3). In this regard his Honour said:

[67] In my opinion, on the true construction of s 38, leave may be granted under s 38 to conduct questioning not only if the questioning is specifically directed to one of the three subjects described in s 38(1), but also if it is directed to establishing the probability of the factual state of affairs in relation to those subjects contended for by the party conducting the questioning or the improbability of the witness's evidence on those subjects. In establishing the probability or improbability of one or other state of affairs, the questioner is entitled to ask questions about matters going only to credibility with a view to shaking the witness's credibility on the s 38(1) subjects.

His Honour did not, in that passage, make specific reference to the provisions of s 38(3). However, his observations necessarily recognise the terms of that section, and what his Honour considered to be its effect. Leave is required under s 38(3) where the questions put in cross-examination go only to credibility. However, where the cross-examiner seeks to challenge the credibility of answers given by the witness in respect of the subjects about which leave has been granted under s 38(1), and in doing so seeks to establish facts in relation to those subjects, he or she may question the witness about matters going only to credibility without the necessity for a grant of leave under s 38(3).
His Honour’s observations recognise the fact that circumstances may arise in which it may be permissible to grant leave to cross-examine, as it were, at large, but in a way which does not depart from the true purpose of s 38.[26] However, it is important to recognise that such observations are not authority for the proposition that a grant of leave will, as a matter of course, permit the cross-examiner to engage in an “open slather” cross-examination. On the contrary, his Honour said:

… No doubt it will often not be right to grant leave to ask s 38 questions on the widest possible basis at the outset. But it will often not be right for the court to distribute small dollops of leave in response to repeated small-scale applications. That would produce a stop-start approach to questions which is likely to be ineffective, likely to distract the jury as they go in and out, likely to lengthen the trial, and likely to make it more complex. It is a question of judgment to be made in the circumstances of each case what the extent of a particular grant of leave should be, and how far the questioner should be forced to make more than one application. [27]
26. R v White [2003] NSWCCA 64 at [66] per Smart AJ (Giles JA and Dunford agreeing).
27. At [73].

In the present case, the Crown properly recognised when making the application for leave under s 38(1) that the proposed cross-examination of the victim would inevitably lead to questions going to his credibility. Accordingly the Crown, in my view quite properly, sought leave under s 38(3) as well as under s 38(1). The trial judge did not agree that leave under the former provision was necessary, and concluded that the foreshadowed questions were relevant to one or more issues in the case. In my view, that was an error.
The “factual state of affairs” (to use the phrase adopted by Heydon JA in Le) the Crown sought to establish by cross-examining the victim concerned the appellant’s presence in the vehicle at the time of the shooting. In the course of attempting to establish that fact, the Crown obviously questioned the victim about the fact that he had departed from his previous accounts to police, and the reasons for that departure. For example, it was put to the victim that he was lying to protect the accused and that he was lying in order to protect his own safety. [28] Such lines of questioning were obviously followed (using the phrase adopted by Heydon JA in Le) for the purposes of “shaking (the victim’s) credibility on the s 38(1) subjects”. To that extent the questioning was permissible. Had the questioning been limited to that, no error would be established.
28. Tcpt, 2 March 2016, 230(13)-(22); Tcpt, 2 March 2016, 251(46)-(50); Tcpt, 2 March 2016, 252(40)-(42); Tcpt, 2 March 2016, 253(13)-(17).
However, the questions put by the Crown to the victim extended beyond that. For example, it was put to the victim that he was angry at the police for charging him with additional offences. [29] It was also put to him that he was angry because he had been refused bail. [30] It was also put to him that he was annoyed because Witness X had received an indemnity. [31] Those aspects of the cross-examination were, in my view, impermissibly wide ranging. Even when the observations of Heydon JA in Le [32] are afforded their most liberal interpretation, it remains the case that those questions went solely to the victim’s credibility. If such wide ranging questioning was allowed to proceed on the basis that it was covered by a grant of leave under s 38(1), s 38(3) would have little or no work to do. In my view it follows that at least part of the Crown’s cross-examination of the victim was impermissible.
29. Tcpt, 2 March 2016, 250(27)-(38).
30. Tcpt, 2 March 2016, 250(40)-251(5).
31. Tcpt, 2 March 2016, 253(47)-254(15).
32. At [67].
I should make it clear that in reaching that conclusion I intend no criticism of the Crown. The Crown recognised that it was inevitable that the questioning would extend to matters of credibility, and specifically sought leave under s 38(3). Leave was not granted because the trial judge did not consider it necessary. That, in my view, was an error.

Was there a miscarriage of justice?

The conclusion that at least part of the Crown’s cross examination was impermissible does not determine this ground. The appellant’s conviction may still stand if it is established that the trial judge could not reasonably have refused to grant leave if an application had been made, and all relevant provisions had been taken into account. [33] This gives rise to the necessity to consider two further provisions of the Act. The first is s 103:

103 Exception: cross-examination as to credibility
(1) The credibility rule does not apply to evidence adduced in cross-examination of a witness if the evidence could substantially affect the assessment of the credibility of the witness.
(2) Without limiting the matters to which the court may have regard for the purposes of subsection (1), it is to have regard to:
(a) whether the evidence tends to prove that the witness knowingly or recklessly made a false representation when the witness was under an obligation to tell the truth, and
(b) the period that has elapsed since the acts or events to which the evidence relates were done or occurred.
33. Le at [49] (Heydon JA) citing Stanoevski v R (2001) 202 CLR 115; [2001] HCA 4 at [56] (McHugh J).

The second is s 192:

192 Leave, permission or direction may be given on terms
(1) If, because of this Act, a court may give any leave, permission or direction, the leave, permission or direction may be given on such terms as the court thinks fit.
(2) Without limiting the matters that the court may take into account in deciding whether to give the leave, permission or direction, it is to take into account:
(a) the extent to which to do so would be likely to add unduly to, or to shorten, the length of the hearing, and
(b) the extent to which to do so would be unfair to a party or to a witness, and
(c) the importance of the evidence in relation to which the leave, permission or direction is sought, and
(d) the nature of the proceeding, and
(e) the power (if any) of the court to adjourn the hearing or to make another order or to give a direction in relation to the evidence.

In determining an application for leave under s 38(3), a trial judge must, in addition to other relevant factors, take into account the matters in ss 38(6), 103(1), 103(2) and 192(2). In my view, had the Crown pursued an application for leave under s 38(3), and had all relevant factors been taken into account, the trial judge could not reasonably have refused such an application. This is so for a number of reasons.
Firstly, the Crown had given notice of the application before the victim’s evidence had even commenced: s 38(6)(a).
Secondly, in circumstances where the respective accounts given by the victim were diametrically opposed, the evidence was not trivial. It bore on the question whether, either in his statements or in his sworn evidence before the jury, the victim knowingly or recklessly made a false representation at a time when he was under an obligation to tell the truth. Those factors supported a conclusion that the evidence could substantially affect the assessment of the victim’s credibility: ss 103(1) and (2)(a).
Thirdly, the period which had elapsed between the alleged offending and the appellant’s trial was three years: s 103(2)(b). That factor was essentially neutral in the circumstances.
Fourthly, the cross-examination which went solely to the victim’s credibility did not encompass the entirety of the questions put to him. It was limited, and did not add unduly to the length of the appellant’s trial: s 192(2)(a).
Fifthly, there was no unfairness to the appellant in allowing the Crown’s cross-examination: s 192(2)(b).
Sixthly, and contrary to the submission advanced by senior counsel for the appellant, the evidence going to the victim’s credibility was important. Such importance derived from (inter alia) the fact that the victim was a principal witness in the Crown case who had departed materially from his account to the police which was inculpatory of the appellant: s 192(2)(c).
Seventhly, the proceedings were obviously important, involving as they did an allegation of serious criminal conduct: s 192(2)(d).
Eighthly, the trial judge had no other power which he could have exercised in order to address the situation which had arisen: s 192(2)(e).
In my view, these factors overwhelmingly supported a grant of leave under s 38(3), to the point where the trial judge could not reasonably have refused it. It follows that no miscarriage of justice arose from the trial judge’s erroneous conclusion that no grant of leave under s 38(3) was necessary, and that the entirety of the cross-examination was permissible pursuant to a grant of leave under s 38(1).
An additional issue which arises in this context is whether the decision of the trial judge to refuse the application by counsel for the appellant to cross-examine the victim on specific subjects was itself unfair, and led to a miscarriage of justice. Unfairness is, of course, a relevant factor under s 192(2)(b) of the Act. However in the present case, the application made by counsel for the appellant to cross-examine the victim as to specific issues came after the trial judge had granted leave to the Crown under s 38(1), and after the Crown had cross-examined. In those circumstances, the decision of the trial judge to preclude the proposed cross-examination by the appellant’s counsel can only be the subject of appellate review on the basis that it constitutes a miscarriage of justice. [34] For the reasons which follow I have concluded that there was no unfairness to the appellant as a result of the decision of the trial judge not to permit that cross-examination, and that no miscarriage of justice arose.
34. Taub v R [2017] NSWCCA 198 at [7] (Simpson JA; Walton and Button JJ agreeing).
I have set out the evidence given by the victim which formed the background to the application made by counsel for the appellant. [35] As to the first question which was sought to be asked, it is significant that counsel for the appellant did not seek to cross-examine the victim as to the reasons for his presence at the hotel. The question he sought to ask was limited to the period over which the victim was there. That was the only question that the trial judge did not permit. Such a question was, in my view, lacking in both a forensic purpose and probative value. The important circumstance was the fact that the victim was at the hotel, not the duration of the period over which he was there.
35. At [39]-[41] above.
The second question foreshadowed by counsel for the appellant was directed to establishing how long the victim had lived in Mount Pritchard. It may be inferred that counsel wished to ask that question with a view to eliciting an answer which supported a conclusion that the length of time the victim had lived there was at odds with the proposition that he had been threatened by the appellant. Whilst counsel was not permitted to ask that direct question, he did cross-examine the victim at some length regarding the fact that he was at large in the community for a long period of time. [36] Moreover, in the course of the summing-up the trial judge reminded the jury of the submissions made by counsel for the appellant in relation to this issue:

(Counsel for the appellant at trial) further submitted to you that the reasons the Crown offered for [the victim] supposedly lying to you in his evidence did not really add up. He submitted there was an internal inconsistency with the notion that on the one hand, [the victim] wanted to help the accused and on the other, being fearful of him. He also highlighted [the victim’s] evidence in which he denied being afraid of the accused and as (counsel for the appellant at trial) submitted, the fact that [the victim] was out and about in the community as he said in his evidence, living in Mt Pritchard and being around and frequently Bankstown up until the end of 2015 and the beginning of 2016 when he was charged with crimes was inconsistent with him being afraid of the accused. And as to the notion that [the victim] is angry with the police for opposing his bail, [the victim] gave evidence that up to the present time he had made no bail application. [37]
36. Tcpt, 2 March 2016, 275(42).
37. At SU43.

The third issue, which encompassed the final three questions which counsel for the appellant sought to put, concerned the fact that the victim was …….. …………….. There was a single, passing reference to that issue as set out above. [38] If that answer went to anything, it went to the victim allegedly being in fear of the appellant. That issue was explored by counsel in cross-examination, and dealt with by the trial judge in his summing-up. [39]
38. At [41].
39. In the passage set out at [75] above.
In all of these circumstances, I am of the view that there was no unfairness to the appellant as a consequence of counsel not being permitted to ask the foreshadowed questions, and no miscarriage of justice arose.
For all of these reasons ground 1 is not made out.

GROUND 2 – A miscarriage of justice was occasioned as a result of the summing-up to the jury failing to adequately balance the respective cases of the Crown and the defence

The summing-up of the trial judge

The general structure of the summing-up of the trial judge was helpfully set out in an annexure to the written submissions of the Crown.
Having given a number of what might be described as general directions, the trial judge directed the jury that the appellant was under no obligation to give evidence. [40] Having done so, his Honour said:

The accused relies in part upon the evidence of [the victim] who says in his oral evidence to you that the accused had nothing to do with the shooting and was not present in the car when [Witness X] shot him (emphasis added.) [41]
40. At SU10.
41. At SU10.

The trial judge then commenced to summarise the account given by the appellant in the course of his interview with police before saying: [42]

The accused is entitled to rely upon that account to the police and asks you to take that into consideration with the other evidence called by the Crown. The accused is not required to prove that his account is true. The Crown in discharging its obligation to prove the accused (sic) guilt must satisfy you that it is a version of events that could not reasonably be true. [43]
42. At SU10.
43. At SU11.

His Honour then gave the jury directions as to expert evidence and the drawing of inferences, before reaching that part of the summing-up in which he directed the jury as to the elements of a joint criminal enterprise, and the elements of the offences charged in the indictment. Having done so, his Honour said:

Now it is not disputed that the accused was not authorised by licence or permit to use a pistol. The defence case is, of course, he had nothing to do with the shooting or using a pistol (emphasis added.) [44]
44. At SU18–19.

The central basis of the defence case, namely that the appellant was not involved in the shooting of the victim in any way, was then repeated by the trial judge in the following terms:

It is not disputed, as I mentioned before, that the accused was not authorised by licence or permit to use a firearm. The defence case is that he had nothing to do with the firearm or the shooting? (emphasis added.) [45]
45. At SU21.

Immediately thereafter, and consistent with his earlier directions, the trial judge identified the central issue in the case in the following terms:

The central issue in the case is whether it was the accused who committed each of these alleged offences set out in the indictment. In other words, was the accused present and participating in an agreement with others that [the victim] should be shot, wounded and suffer really serious injury? (emphasis added.) [46]
46. At SU21.

The trial judge then summarised the Crown case. [47] In doing so, he reminded the jury that the Crown case was that the evidence given by the victim that the appellant was not involved in the shooting was false, and that what the victim had originally told the police in his statements was the truth. His Honour then commenced to summarise the submissions advanced by the Crown as to why the jury should conclude (inter alia) that the victim had initially told police the truth. [48] In the course of doing so, his Honour made reference to a total of nine matters which, the Crown had submitted, supported such conclusion. In respect of all but one of those matters, having put the Crown’s position to the jury, his Honour immediately and specifically reminded the jury of the submissions made on behalf of the appellant.
47. At SU25.
48. At SU26.
In the course of dealing with one of those matters (namely a statement made by the accused which was asserted by the Crown to be a lie) the trial judge again reminded the jury of the defence case in the following terms:

The defence case is that he had nothing to do with the shooting, he was not there, he was at home sick, but if for the sake of the argument you thought that he was not at home (counsel for the appellant at trial) submitted you would find it understandable that he would say that he was at home to avoid the alarming and unjust accusation that he had pulled the trigger and shot [the victim] (emphasis added.) [49]
49. At SU40.

Having dealt with those matters, the trial judge added:

(Counsel for the appellant at trial) further submitted that the reasons the Crown offered for [the victim] supposedly lying to you, in his evidence did not really add up…(Counsel for the appellant at trial) further submitted that there are a number of unsettling aspects about the way in which the police interviewed [the victim] and he says that these unsettling features would raise in your mind the possibility that [the victim] did, in fact, just say what the police wanted him to say. (emphasis added.) [50]
50. At SU43.

His Honour then proceeded to summarise a number of the submissions made by counsel for the appellant in respect of this issue before giving the jury a warning pursuant to s 165 of the Act regarding the evidence of Witness X. In doing so the trial judge reminded the jury of the submissions made by counsel for the appellant in relation to the evidence of Witness X. [51] That summary extended over several pages and was, on any view, comprehensive.
51. At SU46.
At the conclusion of the summing-up, his Honour gave counsel the opportunity to be heard in relation to any further directions which were sought. At that point, counsel for the appellant submitted that his Honour had not “put the defence case to the jury”. [52] In particular he said:

Your Honour, in my submission has not summarised the defence case as a discrete entity and it’s my submission to your Honour that your Honour should summarise without – your Honour has put some of my arguments and submissions to the jury, then gone back and countered it by referring to the Crown submissions. And that, in my submission is not the way, in my submission that your Honour should summarise the case for the accused. It should be summarised or left to the jury as a discrete part of your Honour’s summing-up. And in my submission to you, your Honour has not done that. [53]

52. At SU56.
53. At SU57.

In the course of a lengthy exchange which followed, counsel for the appellant submitted that the trial judge should “summarise the defence case as an entity within itself”. [54] In response, the trial judge raised whether counsel was, in effect, submitting that he should start the summing-up again. In response, counsel for the appellant said:

I’m not asking your Honour to start all over again. Your Honour has summarised the Crown case but your Honour really has not summarised the defence the case because your Honour summarised part of the defence case in terms of the submissions, then goes back to the Crown case to meet it, if you like…So in effect your Honour has, in my submission, summarised the Crown case twice for the jury and there’s an imbalance, in my submission, in your Honour’s summing-up. [55]
54. At SU60
55. At SU60–61.

Significantly, counsel for the appellant expressly accepted that the trial judge had “summarised a lot of (his) arguments”, but asserted that he had done so in a way which effectively summarised the Crown case twice. [56] Ultimately, the trial judge reminded the jury of two parts of the evidence of the victim to which he had omitted to refer and which were relied upon in the defence case [57] , following which the jury commenced deliberations.
56. At SU61.
57. At SU71.

Submissions of the appellant

The appellant’s principal submission in support of this ground was that at no point, even after a request was made by the counsel to do so, was the defence case summed-up to the jury in a “complete and credible manner”. It was submitted that the jury should have received a complete summary of the defence case at one time, addressing a number of essential factors.
It was further submitted that the summing-up involved a degree of conflation between the summary of the evidence in the trial and the summary of the Crown’s key arguments, and that the summary of the defence submissions was both lacking in detail, and expressed in limited and simplistic terms.

Submissions of the Crown

The Crown accepted that it was incumbent upon the trial judge to put the defence case fairly, but emphasised that there is no fixed structure to a summing-up. It was submitted that whether or not a case has been adequately put to a jury is measured not by the number of words spoken, but by the substance of what is said. It was submitted that when the summing-up in the present case was read as a whole, it was apparent that the trial judge had put the crucial aspects of the appellant’s case to the jury.
The Crown also emphasised that the appellant’s case at trial was, as expressly acknowledged by trial counsel, a simple one, namely that the appellant was not present in the car when the shooting occurred, and that he had taken no part in it. The Crown submitted that the summing-up necessarily had to be viewed against that background. The Crown also pointed to the fact that on several occasions the trial judge had expressly reminded the jury of the defence case.

Consideration

It is appropriate to commence consideration of this ground by summarising the principles which govern the obligations of a trial judge when summing-up to a jury.
Firstly, and fundamentally, a trial judge is required to put the defence case fairly. [58] Failure to do so will constitute a miscarriage of justice. [59]
58. RPS v R (2000) 199 CLR 620; [2000] HCA 3 at [41].
59. R v Schmahl [1965] VR 745 at 748.
Secondly, the weaker the defence, the more essential it is for that defence to be put to the jury so that it can be considered it in light of the Crown case, and evaluated as part of the overall determination of whether or not the Crown has discharged its onus of proof. [60]
60. R v Tomazos (Court of Criminal Appeal (NSW), 6 August 1971, unreported).
Thirdly, how a trial judge structures a summing-up, and the extent to which he or she reminds the jury of the evidence, are matters for individual judgment. That judgment is to be exercised according to a number of factors, including the complexity of the issues, the length of the trial and the conduct of the respective cases by the parties. [61]
61. Castle v R; Bucca v R (2016) 259 CLR 449; [2016] HCA 46 at [51].
Fourthly, whilst it is the function of an appellate court to review and safeguard the fairness, balance and impartiality of a summing-up, that exercise is not conducted by reference to the length of time which was devoted to the Crown case on the one hand, or the defence case on the other. [62]
62. Golossian v R [2013] NSWCCA 311 at [91]; R v Inamata [2003] NSWCCA 19; (2003) 137 A Crim R 510 at [29]; R v Courtney-Smith (No 2) (1990) 48 A Crim R 49 at 56.
Fifthly, just as the question of whether a party’s position has been adequately put to the jury is not measured by the length of time devoted to that position or the number of words spoken, it is similarly not measured by direct comparison with the attention given by the trial judge to the case brought by the opposing party. This is particularly the case in criminal proceedings because the Crown case will, generally speaking, constitute the vast majority (and sometimes the whole) of the evidence, such that more often than not, more time will need to be spent on summarising it. [63]
63. Aravena v R (2015) 91 NSWLR 258; [2015] NSWCCA 288 (“Aravena”) at [105]–[106]; R v Meher [2004] NSWCCA 355 at [86].
Sixthly, when one case is strong and the other case is weak, it does not follow that a balanced summing will be achieved by under-weighting in the strong case, and over-weighting in the weak case. A balanced account will inevitably reflect the strength of the one, and the weakness of the other. [64]
64. R v Ali (1981) 6 A Crim R 161 at 165.
Seventhly, the law does not mandate that a trial judge “compartmentalise” the summing-up by separately identifying and summarising the defence case. On occasions, the most effective way for the trial judge to fairly put the defence case to the jury is in the course of summarising the issues for their determination. [65]
65. AP v R [2013] NSWCCA 189 at [24].
Finally, the ultimate question is whether the trial judge has put the case for the accused in such a way as to allow the jury to properly consider the issues raised on the accused’s behalf. [66] It follows that in determining whether a complaint that a summing-up was unbalanced is made out, it is necessary to view the summing-up as a whole, and not in a piecemeal way. The ultimate question is whether the trial judge put the case for the appellant in such a way as to allow the jury to properly consider the issues raised on his behalf.
66. Aravena at [109].
In my view, the summing-up of the trial judge in the present case was in accordance with the principles I have summarised. Put simply, the case for the appellant at trial was that he was not present at the shooting, and was not in any way involved in it. As I have set out, the trial judge reminded the jury of that on a number of separate occasions.
The proposition that the trial judge ought to have given the jury a complete summary of the defence case at the one time overlooks the fact that there is no obligation upon a trial judge to structure his summing-up in that (or, indeed, in any other) particular way. How a summing-up might be structured will necessarily depend upon the circumstances of the case. In the present case, the trial judge repeatedly reminded the jury of the appellant’s case. When summarising specific aspects of the Crown case, he put the defence case in respect of those aspects at the same time. That, in my view, was a fair and effective way of approaching his task, bearing in mind that there was a single issue in the trial. There was nothing about the present case which required the trial judge to approach the summing-up in the manner suggested by senior counsel for the appellant.
Further, the submission that the summing-up was simplistic and lacking in detail must be assessed in light of the appellant’s case at trial, and the manner in which his case was conducted by counsel then appearing on his behalf. Counsel acknowledged in the course of the trial that the appellant’s case was a simple one, namely that he was not involved in the shooting because he was not there at the time. The trial judge repeatedly reminded the jury accordingly. It is hardly open to criticise the trial judge for being simplistic in those circumstances. His approach, apart from being completely in accordance with principle, was also completely in accordance with the manner in which the trial had been conducted on the appellant’s behalf.
For these reasons, this ground is not made out.

GROUND 3 – The verdict in relation to count 1 was unreasonable and cannot be supported having regard to the evidence

The evidence at the trial

Count 1 in the indictment alleged that the appellant wounded the victim with intent to cause him grievous bodily harm. [67] There was no issue that the victim:
67. At [17] above.

was shot at least twice with a 0.25 calibre pistol which was fired from within a motor vehicle;

suffered grievous bodily harm; and

sustained three gunshot wounds, namely:

an entry and exit wound below the right knee;

an entry and exit wound on his right buttock; and

an entry wound on his inner upper left thigh.

The victim was examined by Dr Ujma at Bankstown Hospital, who described him as being “in pain” and “frightened”. The victim told Dr Ujma that he was shot from a short distance. Dr Ujma’s recorded notes included the following:

(He) was standing when he got short (sic) times three in lower limbs in close distance…no boney tenderness, normal pulses, no bleeding, and normal distal sensation…All his nerves, his bones everything was working, basically, normally.

X-rays taken at the hospital demonstrated that a bullet had been lodged in the soft tissues adjacent to the victim’s right femur, between the hip and the knee. The victim was admitted to surgery for debridement and cleaning of the wound. The bullet was surgically removed in July 2013. In the opinion of Dr Ujma, the injury to the left thigh was the most concerning, because it was capable of injuring the femoral artery and causing severe, and potentially fatal, bleeding. He said that the bullet wound to the knee missed the joint, but could have caused destruction to the knee joint, potentially resulting in long term disability. He said that the wound to the buttock was the least significant. He confirmed that from what he had observed, the victim was shot three times.
Witness X gave evidence that the agreement which was reached with the appellant was that the victim was to be shot at least twice as punishment for his conduct. He said:

Yep, so I told them, I go, “[the victim] is my mate and I don’t wish to do something like that to him” and they said - I’ve pretty much got told that I’ll have to shoot him at least twice or - and if I don’t, I’m going to get shot and that I said that ‘Okay’, that I will deal with it myself and they disagreed and I asked if they don’t trust me in doing so and they said “No, because we know he’s your mate and we believe that you won’t do it”. So they - so Fadi told me that Mikey’s going to come with me to make sure that I do it. [68]
68. Tcpt, 11 March 2016, 583(22)-(28).

Witness X explained that his references to “they” were references to Helou, Mikey and Khalil. [69] He said that when he was told that he had “to get him” he had understood that this meant that the victim would have to be shot. [70] He was then asked:

Q: And you said they said, “I’ll have to shoot at least twice and if I don’t, I’m going to get shot”. Who is “they” that said that?
A: I’m not 100% sure if it was from Mikey’s mouth or from Fadi Helou’s mouth. [71]
69. Tcpt, 11 March 2016, 583(30)-(34).
70. Tcpt, 11 March 2016, 583(38)-(43).
71. Tcpt, 11 March 2016, 583(45)-(47).

Witness X then gave the following evidence:

Q:   All right. What happened then?
A:   [The victim] was pretty quiet and that Mikey was talking to [the victim], saying that, I believe it’s along the lines of that he fucked up and that - that he fucked up and that’s all I can remember at the time, at this time and while he was saying that, he was loading the pistol with bullets.
Q:   Who was loading the pistol with bullets?
A:   Michael Odisho.
Q:   Is that the same pistol that you’d seen earlier?
A:   Yes, that’s correct.
Q:   Where was he when he was doing that?
A:   Where was who, sorry?
Q:   Where was Michael Odisho when he was doing that?
A:   Oh, we haven’t - we had not got out of the car, so he was still in his passenger side seat while I was--
Q:   Where were you?
A:   In the driver’s seat and [the victim] was in the back seat.
Q:   All right. So he’s loading the gun. Then what happened.
A:   Then he--
Q:   Can I just stop you there? How was he doing that?
A:   How was who doing that?
Q:   How was Michael Odisho loading the gun? Can you describe it?
A:   Yes. He had the gun pretty much near his - on or near his lap and he was loading the magazine of the pistol while he was sitting down on his passenger side seat.
Q:   All right. Then what happened?
A:   Then Mikey handed the pistol over to me and [the victim] looked a bit worried and was looking at me and I told him - I’m not sure exactly what I told him, but I was hesitating a bit. Then I looked at Mikey and Mikey told me like, “Hurry up”. Then I aimed the pistol at his lower leg and shot him twice.
Q:   Now, how was your body position when you aimed the pistol at him?
A:   I was sitting side on, on the driver’s seat and had the pistol I believe in my right hand and I was half twisting towards the back.
Q:   Where did you shoot him?
A:   In the leg.
Q:   When you say you shot him twice, what did you do? What did you actually do with your right hand?
A:   What do you mean?
Q:    Well, you shot him. What did you actually do? What did your hand do, can you describe it?
A:   Pulled the trigger.
Q:   How many times?
A:   Twice.
Q:   When you pulled the trigger, did you hear anything?
A:   Yeah, of course.
Q:   What?
A:   The noise of the pistol.
Q:   All right. What happened then?
A:   I then handed the pistol to Mikey and then Mikey - and then I drove off in the car and Mikey then was wiping down - took the rest, the remaining bullets out of the cartridge, I believe, and wiped them down and chucked them out the window while we were on our way from the park to Ahmed Ali’s house at Birrong, which is not far. [72]
72. Tcpt, 11 March 2016, 587(38)-589(6).

Counsel for the appellant at trial did not put to Witness X in cross-examination that he did not intend to inflict really serious injury on the victim when he shot him. Consistent with that, no submission to that effect was put to the jury in counsel’s closing address.

Submissions of the appellant

It was submitted on behalf of the appellant that the verdict in respect of count 1 was unreasonable because the Crown could not prove beyond reasonable doubt that the appellant intended to cause grievous bodily harm to the victim. In advancing that submission, senior counsel for the appellant conceded that trial counsel did not expressly address the appellant’s intention during his closing address. However, he submitted that intention nevertheless remained an essential element of the offence alleged in count 1 which the Crown was required to prove beyond reasonable doubt in order for the appellant to be found guilty.
Senior counsel for the appellant accepted, as I understood it, that the evidence established that there was a risk, and a likely foreseeability, of serious harm being occasioned to the victim, such that the parties to the joint criminal enterprise may well have been reckless as to whether really serious injury would be occasioned. However, he submitted that the evidence did not establish, to the requisite standard, that the appellant and Witness X intended that really serious injury be occasioned to the victim.
Senior counsel further submitted that there was no direct evidence at trial as to the appellant’s intention. Whilst he accepted that there was evidence of Witness X’s intention, he submitted that Witness X was not specifically questioned about whether he intended to cause the victim really serious injury. It was submitted that on the evidence, there was a reasonable doubt as to whether or not he intended to cause grievous bodily harm, as opposed to some lesser harm.
Senior counsel also pointed out that on the evidence, the agreement which had been reached between the appellant and Witness X was that the victim be shot twice. In doing so, he emphasised that there was no evidence of an agreement that the victim be shot in any particular area of his body, or in any particular way, so as to bring about any particular type of injury. It was submitted that when regard was had to the circumstances of the shooting, including the number of shots fired, the motive, and the fact that there was least a question as to whether really serious injury was occasioned, this Court would have a doubt as to whether the Crown had proved the necessary intention beyond reasonable doubt. It was submitted that such a doubt was not one which was capable of resolution by any advantage held by the jury at the trial.

Submissions of the Crown

The Crown submitted that it was clearly open to the jury to infer that an agreement that a person be shot at least twice carried with it an intention, formed by the parties to the agreement, to cause grievous bodily harm. This, it was submitted, was an available inference, irrespective of the exact location of the body that was to be shot, or the calibre of the gun that was to be used.
The Crown emphasised the evidence of Witness X that the appellant and the victim were present in the car when the appellant loaded the magazine of the pistol with bullets and handed it to Witness X in order to carry out the shooting. The Crown also pointed to the fact that this occurred at a time when the victim was in a confined space in the back of his car, in close proximity to Witness X. The Crown submitted that the appellant’s act of handing over the loaded pistol to Witness X for the purposes of shooting the victim, in circumstances where the victim was unable to escape, and where the shooting was to be executed at close range, was consistent with the appellant having a shared intention to inflict grievous bodily harm upon the victim. The Crown pointed out that Witness X then proceeded to shoot the victim at least twice, and possibly three times, as a consequence of which the victim sustained the injuries established by the evidence. It was submitted that this was again consistent with the appellant and Witness X having a common intention to inflict serious bodily harm on the victim at the time of the shooting.
The Crown also emphasised the fact that counsel for the appellant at trial did not, at any stage in cross-examination, even begin to explore with Witness X the proposition that he had no intention to inflict grievous bodily harm at the time of the shooting.
The Crown further submitted that whilst the question of whether or not grievous bodily harm had in fact been sustained was not determinative of this ground, it was relevant to observe that there were two separate entry and exit wounds, one below the knee and one on the buttock, and a further entry wound in the thigh. The Crown also pointed out that there was evidence that the victim was admitted for surgery for cleaning and debridement of the wounds and was restricted for a period thereafter.

Consideration

The question for this Court in respect of this ground is whether, on the whole of the evidence, it was open to the jury to be satisfied beyond reasonable doubt that the accused was guilty of the offending in count 1. In determining that question, this Court must make an independent assessment of the evidence, both as to its sufficiency and quality. [73] The starting point for that determination is that the jury is the body who is entrusted with the primary responsibility of determining guilt or innocence. Moreover, the jury had the benefit of seeing and hearing the witnesses.
73. SKA v R (2011) 243 CLR 400; [2011] HCA 13; M v R (1994) 181 CLR 487; [1994] HCA 63.

The nature of the proceedings, being allegations of extremely serious criminal conduct, militated in favour of the grant of leave. [112]
112. Evidence Act, s 192(2)(d).
I do not accept the appellant’s submission that the cross-examination was, in the overall scheme of the trial, of little importance. I accept the respondent’s submission that the credibility of the witness was important and that, therefor, parts or most of the proposed cross-examination on credit were important. [113] However, proper application of ss 38(3) and 192 required distinctions to be drawn. Not every part of the proposed cross-examination was as important as other parts. In the absence of discernment between the topics upon which the prosecutor sought to examine the witness there was a risk of the kind of “open slather” cross-examination referred to by Smart AJ in R v White. [114] As his Honour said in that case, with the concurrence of Giles JA and Dunford J:

“Examinations pursuant to leave under s.38 are not the occasions for ‘open slather’ type cross examinations.”
113. Evidence Act, s 192(2)(c).
114. R v White [2003] NSWCCA 64 at [68], Smart AJ (Giles JA and Dunford J agreeing).

Further, as the joint judgment in Stanoevski made clear, s 192 is “not exhaustive” and consideration also had to be given to the “weight to be afforded to the evidence” and other matters relevant to the exercise of the discretion, bearing in mind the overriding duty to ensure a fair trial to both parties.
Had the trial judge turned his mind to these matters, applied the criteria referred to in s 192 and exercised the caution implicitly urged in cases such as White and Stanoevski, his Honour may have taken a different approach to the prosecutor’s application. As it turned out, the cross-examination included, but was not limited to:

Putting to the witness that he initially lied to police about the location of the shooting.

Suggesting he gave a false account as to the circumstances of the shooting when first spoken to by police.

Suggesting he was scared for his safety when the police approached him in the hospital.

Putting (on a number of occasions) that he did not want to be a “dog”.

Putting that he was scared because he still owed money to Witness X.

Suggesting the witness asked the police to stop taking notes when he nominated Witness X as the shooter.

Suggesting he only told “bits of the truth” to the police at the hospital.

Examining the witness on the fact that the witness disposed of the cartridge cases and suggesting he did this to hide evidence.

Putting that the witness was a member of the Brothers for Life.

Putting that he told police his membership of that gang may have been the motive for the shooting.

Putting that he stored weapons and drugs for Witness X.

Examination regarding the prior inconsistent statement (implicating the appellant) at considerable length and asking, paragraph by paragraph, which parts were true.

Suggesting that, contrary to the witness’s repeated assertions, the police did not offer him rewards for providing information.

Putting that, contrary to the witness’s evidence, the police did not threaten him by telling him they would “breach his parole” if he did not co-operate.

Putting that the witness was “lying” when he said police encouraged him to say that the appellant was present.

Suggesting the witness was lying when he said that the police told him what to say about the appellant’s role.

Repeatedly putting to the witness that he was lying.

Asking an open question about when the witness had read his statement that elicited the response “when I was …………………….. I think”.

Positively suggesting that the version contended for by the prosecution (and contained in the earlier statement) was “exactly what happened”.

Putting to the witness the contents of telephone intercepts of conversations between the witness and Witness X.

Putting to the witness the contents of a conversation with Witness X recorded by listening device.

Putting that the police put the witness in a hotel because he was scared for his safety and that of his family.

Putting that the witness was lying to protect the accused.

Putting that the witness told police he was threatened (through unknown third parties) “by Mikey”.

Putting that the witness refused to make a statement about the threats in order to protect his brother.

Putting that the witness was angry with police because he was charged with criminal offences.

Putting that the witness was angry with police because he was refused bail.

Putting that the witness does not like the police.

Putting that the witness was lying because he would rather help the appellant than help the police.

Putting to the witness “you are lying because you feel the cops have fucked you around”.

Putting to the witness he was angry with police (and therefor lying to protect the accused) because Witness X obtained an indemnity.

That list is by no means exhaustive of the matters raised in cross-examination. Many of these propositions were put forcefully on multiple occasions. Towards the end of the cross-examination objection was taken to the repetition and the trial judge intervened more than once. The witness was called at the beginning of the second day of the trial. The cross-examination commenced later that morning and continued until the end of the third day. If this was not an “open slather” cross-examination, it came perilously close. I repeat that I am not intending to criticise the Crown Prosecutor who appeared at the trial. She raised the question of leave fairly and squarely and her cross-examination reflected the judge’s decision that leave was not required. Once objection was taken and upheld, she moved on.
I am satisfied that ground 1 must be upheld.
In reaching this conclusion, I have not found it necessary to consider the fact that the accused was subsequently denied the opportunity to cross-examine on some of the matters as a result of the claim for privilege made by the Commissioner of Police. However, that may have been a relevant consideration under s 38(6) although, given that it occurred after the trial judge’s ruling (or failure to rule) on the Crown’s application under s 38(3), it cannot be considered as part of the “error of law” alleged under ground 3. [115] It might be relevant to whether there was a “miscarriage” but in view of the conclusion I have reached, it is unnecessary to consider the matter further.

GROUND 2 – A miscarriage of justice was occasioned as a result of the summing-up to the jury failing to adequately balance the respective cases of the Crown and the defence

115. Taub v R [2017] NSWCCA 198 at [7] (Simpson JA).

Bellew J has set out the relevant authorities and described the occasions where the trial judge reminded the jury of some, or most, of the arguments made on behalf of the appellant at trial. There is no need to repeat those matters. I agree with Bellew J that the trial judge reminded the jury of the essence of the defence case on a number of occasions. That is, his Honour referred more than once to the fact that the appellant’s case was that he was not present at the time of the shooting. I agree that the trial judge referred to a number of the arguments made by counsel in relation to the credibility of the victim and which of his versions of events (if any) should be believed.
I also agree with Bellew J that the structure of the summing up was a matter for the trial judge, and that the structure settled upon did not of itself result in an unfair trial. However, one result of the structure of the summing up was that the trial judge did not summarise the defence case as a whole or unified entity at any stage. That is not fatal to the summing up but it is a significant matter and one in relation to which complaint was made by experienced counsel before the jury retired to consider its verdict. The other result was that the prosecution case was effectively summarised at least twice while the defence case was summarised in a piecemeal fashion by reference to counsel’s arguments and, on occasion, was immediately followed by the prosecution’s response to those arguments. However, the same could be said in reverse. That is, the summary of the prosecutor’s arguments was, in a number of instances, followed by the defence response. These matters alone would not have satisfied me that there was any fatal imbalance in the summing up.
This is not a case where it can fairly be argued that the trial judge entered the fray or that that the summing up may have conveyed to the jury that the trial judge held a view of the facts and evidence adverse to the appellant. This can be contrasted with cases such as Abdel-Hady v R and McKell v R. [116] However, it is not only in extreme cases such as those that a summing up may give rise to unfairness as a result of a lack of balance. In the present case, I accept the appellant’s submission that the trial judge’s treatment of the evidence of the victim resulted in unfairness and that this aspect of the summing up took on such prominence that it caused the trial to miscarry.
116. Abdel-Hady v R [2011] NSWCCA 196; McKell v R [2017] NSWCCA 291 (per Beech-Jones J in dissent).
After reminding the jury in very brief terms that the appellant relied on his account to police and the victim’s evidence that he was not present, summarising the prosecution case by reference to the evidence of Witness X, and explaining the elements of the offence (including the evidence relied on by the prosecution to establish those elements), the trial judge turned to “how the Crown sets out to prove its case”. The jury was reminded that the Crown relied on two statements made by the victim and that the prosecutor submitted that the victim lied in his evidence at the trial. The trial judge then spent a good deal of time recounting most of the arguments made by the prosecutor as to why it would accept and act on the statements of the victim in spite of his sworn evidence that the accused was not present. After dealing with the Crown’s submission in general terms his Honour said:

“As with all witnesses, it is a matter for you to decide what, if any, of [the victim’s] evidence you accept as honest and reliable. You can conclude that, in spite of the previous police statements made by him, the evidence given by him in court should be accepted either wholly or in part and be used by you in reaching your verdicts.
On the other hand you may, having regard to all the circumstances in which [the victim] made these police statements, choose to accept them either wholly or in part instead of the evidence that he gave in court. You can also choose to accept some part of what he said in court and what he said in the statements as long as you make your decision logically, rationally and applying your common sense. You can also reject everything he said about this matter. As I said earlier, it is a matter for you to decide what, if any, of [the victim’s] evidence you accept as honest and reliable.”

I accept the appellant’s submission that this part of the summing up appeared to present the jury with a choice between “accepting” or “rejecting” the victim’s evidence (in whole or in part). I also accept his submission that summing up ought to have included a clear direction to the effect that “it was incumbent upon the Crown to eliminate any reasonable possibility that the evidence given by [the victim] at trial was true.”[117]
117. Appellant’s written submissions at [110].
After the direction referred to at [193] above, his Honour returned to presenting the prosecution’s arguments as to why the jury would reject the victim’s evidence that the appellant was not present. These were enumerated in the summing up and included extensive reference to the evidence contained in the statements upon which the prosecution relied and the matters put to the victim in the Crown’s cross-examination. In some (but not all) instances, the trial judge included defence counsel’s countervailing submission on a particular issue.
At no stage did the trial judge summarise the evidence given by the victim at the trial as to what he claimed actually occurred before and at the time of the shooting. His Honour did not remind the jury in any detail of the witness’s responses to the propositions put to him by the Crown or the fact that he did not waiver from his sworn account in the face of the prosecutor’s extensive and skilful cross-examination. Nor did his Honour instruct the jury in any meaningful way as to the victim’s explanation for the contents of those statements upon which the Crown relied. In the course of the cross-examination, the victim asserted repeatedly that the investigating police had told him what to say, that the police were “corrupt” and had offered inducements and threats to persuade him to provide an account that implicated the appellant. There was no more than a very brief reference to counsel’s arguments in relation to these important matters.
It may not have been necessary to refer to those aspects of the evidence had the summing up not dwelt at such length on the Crown arguments and the evidence contained in the statements upon which the Crown relied. However, in view of the way the summing up dealt with the prosecution’s approach to the victim’s evidence, the prominence that the evidence took in the trial and summing up, and the fact that the sworn account exculpated the appellant, fairness and balance required that more be said about witness’s testimony. In particular, the jury should have been reminded of the substance of the witness’s account at the trial, his explanations for the contents of the earlier statements and his denial of the various motives to lie that were put to him by the prosecutor. The jury should have been directed that the onus and standard of proof required the prosecution to disprove the victim’s account beyond reasonable doubt and the accused was entitled to an acquittal if there was a reasonable possibility that his account was true. [118] Even in the (surprising) absence of an application for a warning under s 165(1)(a) of the Evidence Act, it would also have been prudent to emphasise that the account relied on by the prosecution was hearsay with the attendant forensic difficulties confronting the appellant who could not know the circumstances in which the written statements were made and the precise terms of any conversations attested to by the police officers. I am not suggesting that any particular form of words was necessary but I am satisfied that more needed to be said to balance the detailed directions concerning the prosecution’s submissions as to the evidence of this critical witness.
118. R v Ayoub [2004] NSWCCA 209 at [30]-[32] (Newman AJ, Grove and Howie JJ agreeing).
There are three observations of a general nature that I would make in this regard. The first is that there is no requirement for a trial judge to summarise the evidence in the course of a summing up. Section 161 of the Criminal Procedure Act 1986 says:

(1) At the end of a criminal trial before a jury, a Judge need not summarise the evidence given in the trial if of the opinion that, in all the circumstances of the trial, a summary is not necessary.
(2) This section applies despite any rule of law or practice to the contrary.
(3) Nothing in this section affects any aspect of a Judge's summing up function other than the summary of evidence in a trial.

The second general observation arises as a result of the first. While the circumstances of a particular case may make it desirable (or, in some cases, necessary) that the jury be reminded of parts of the evidence in order to place legal directions and the live issues in an appropriate factual context, a review of appellate cases where there have been assertions of imbalance in the summing up almost all arise as a result of a trial judge embarking on an analysis of the evidence. In many cases, the perception of imbalance arises from the trial judge attempting to provide a summary of the evidence in cases where such a summary is not necessary.
The third general observation concerns a direction that is frequently given in cases in New South Wales and was given in the present case. That direction, as given at the appellant’s trial, is as follows:

“Any opinion that you consider that I hold about the facts is irrelevant and you put that to one side unless it happens to coincide with the opinion that you have independently arrived at.” [119] [My emphasis].
119. Transcript of summing up 1/4/16 p 4.

In my view, the italicised part of that direction should not be given. It adds nothing to the general (and correct) direction that any opinion held by the trial judge, or that the jury thinks is held by the judge, is irrelevant. It also has the capacity to undermine the clear delineation between the functions of the judge and jury. The jury should not be engaged in determining what, if any, opinion is held by the trial judge as to the factual disputes at trial. The jury should simply be told that the trial judge will not provide any opinion as to the facts of the case unless it appears to be a matter about which there is no dispute. “The jury is required to determine factual issues without regard to the views of the trial judge.”[120]
120. Tarrant v R [2018] NSWCCA 21 at [18].
There is clear authority that a judge in Australia may comment on the facts and evidence, but the caution urged by the High Court in RPS v The Queen must be remembered:[121]

“But none of this must be permitted to obscure the division of functions between judge and jury. It is for the jury, and the jury alone, to decide the facts. As we have said, in some cases a judge must give the jury warnings about how they go about that task. And, of course, it has long been held that a trial judge may comment (and comment strongly) on factual issues. But although a trial judge may comment on the facts, the judge is not bound to do so except to the extent that the judge's other functions require it. Often, perhaps much more often than not, the safer course for a trial judge will be to make no comment on the facts beyond reminding the jury, in the course of identifying the issues before them, of the arguments of counsel.
121. RPS v The Queen (2000) 199 CLR 620; [2000] HCA 3 at [42], reference to Tsigos v The Queen (1965) 39 ALJR 76 omitted.

Practices as to judicial comment and summaries of the evidence vary throughout common law jurisdictions around the world, and in the United States trial judges generally refrain from dealing with the evidence at all. [122] Jury studies suggest:

“[T]he majority of jurors appreciate and rely upon a presiding judge’s guidance. So, whilst judges’ instructions may not be definitive in forming jurors’ views, they are typically treated with respect.” [123]
122. Marcus, Paul “Judges Talking To Jurors in Criminal Cases: Why U.S. Judges Do It So Differently From Just About Everyone Else” (2013) 30 Arizona Journal of International and Comparative Law p 1.
123. Hunter, Jill, “Jurors Notions of Justice, An Empirical Study of Motivations to Investigate & Obedience to Judicial Directions.” (2013) University of New South Wales and Law and Justice Foundation

It must be accepted that the state of the law in Australia is clear – a trial Judge may comment on the evidence. However, as the divided opinions in McKell demonstrate, the line between acceptable and impermissible comment is not always clear. Given the deference with which juries treat the judge’s instructions, it may be that the practice of judicial comment should be reconsidered or more clearly defined and curtailed. However, this case is not an occasion for reconsideration of well established authorities binding on, and applied repeatedly by, this Court. The appeal is to be determined by reference to established authority and the facts and circumstances of the present case.

The victim was the victim of the shooting. His evidence exculpating the appellant and his earlier, inconsistent, statements implicating him were central to the outcome of the case. Otherwise, the prosecution case turned on the evidence of the shooter Witness X, who received an indemnity from prosecution and whose evidence was subject to a strong warning concerning its potential unreliability. Witness X’s evidence received support in the form of telephone records establishing, amongst other things, the movements of the participants at relevant times. Those records also established (or at least tended to establish) the falsity of the appellant’s assertion to police that he was at home at the time of the shooting. The prosecution’s forceful and, in a number of cases, compelling arguments as to the approach to be taken to the evidence of the victim received significant attention in the summing up. My assessment is that the failure of the summing up to balance this attention by reminding the jury of the substance of the narrative version adhered to by the victim in evidence – which was generally consistent with one of the versions he provided at the hospital – along with his explanations for the content of his statements implicating the appellant, resulted in an imbalance in the summing up. This amounted to a miscarriage of justice for the purpose of s 6(1) Criminal Appeal Act 1912. For those reasons I would uphold ground 2.

GROUNDS 3 AND 4

I agree with Bellew J that grounds 3 and 4 cannot be sustained.
In relation to ground 3, having reviewed the evidence on the issue (which is set out in the judgment of Bellew J), I have concluded that it was open to the jury to be satisfied beyond reasonable doubt that the appellant formed the specific intention to inflict grievous bodily harm. The prosecution case was that he was a party to an agreement to shoot the victim in the leg. The evidence suggested the victim was shot at least twice. It was open to the jury to accept that a party to such an agreement who was (on the Crown’s case and on the jury’s finding) present at the time of such a shooting held an intention to inflict grievous bodily harm.
In relation to ground 4, I agree with Bellew J that leave should be refused to argue this ground. No issue was taken at the trial with the directions provided on the issue of intention and, not surprisingly, intention was not a live issue at the trial. In any event, the directions to the jury made it clear that there was a distinction between intending that the victim be shot and an intention that grievous bodily harm be inflicted upon him.

The proviso

The respondent submitted that, in the event that one or more of the grounds of appeal was upheld, the Court would apply the proviso to s 6(1) Criminal Appeal Act. In other words, it was submitted that, notwithstanding the errors identified under grounds 1 and 2, the appeal should be dismissed because “no substantial miscarriage of justice has actually occurred.” I am unable to accept this submission.
In dealing with ground 1, I have indicated the reasons it was not inevitable that leave would have been granted under s 38 to cross-examine the witness on all of the matters pursued had the trial judge applied the provisions of the Evidence Act properly or at all. I need not repeat that analysis.
As to the more general submission – that the evidence established guilt beyond reasonable doubt and that the appellant was not deprived of a chance of acquittal that was reasonably open to him – I have reviewed the evidence in the light of the errors identified.
It is true that the prosecution presented a very strong case. It comprised the direct evidence of Witness X, the earlier statements of the victim and a body of circumstantial evidence suggesting that the appellant was present with those two men at the time of the shooting. The circumstantial evidence included the telephone records from which an inference could be drawn that the appellant was present and that he lied out of a consciousness of guilt when he told the police that he was at home at the time of the shooting. It also included forensic evidence suggesting that he was in the car. The latter included evidence of the washing of the car shortly before the shooting and the presence of the appellant’s DNA on an item within the car and his fingerprints on one of the windows of the car. This is not an exhaustive analysis of the prosecution case but it demonstrates that it was, unquestionably, very strong.
On the other hand, the two pieces of direct evidence inculpating the appellant had serious flaws. Witness X was criminally involved in the shooting and received an immunity from prosecution as a result of his agreement to give evidence against the appellant. There was a substantial attack on his credibility and strong warnings were required and given as to the potential for his evidence to be unreliable. The direct evidence of the victim came in the form of out of court statements from which he resiled at trial. His evidence was that those statements were false and that he had been persuaded by police to give evidence implicating the accused by threats and inducements. He provided a sworn narrative of the events that exonerated the appellant and which was generally consistent with one of his earlier versions to the police – that is, that Witness X acted alone in the shooting.
In all of the circumstances I am not persuaded that the appellant did not lose a chance of acquittal reasonably open or, to use the terms of the statute, I do not consider that no substantial miscarriage actually occurred.
Accordingly, the orders I favour are as follows:

Leave to appeal in respect of ground 4 refused.

Otherwise, and where necessary, leave to appeal granted.

Appeal allowed.

Conviction quashed.

Order that there be a new trial.

**********

Endnotes

Amendments

27 March 2018 - Suppression orders required for witnesses

17 April 2018 - Correction to cover sheet regarding representation for the Appellant

Decision last updated: 17 April 2018

Medium Neutral Citation:	Odisho v R [2018] NSWCCA 19
Hearing dates:	23 August 2017
Date of orders:	28 February 2018
Decision date:	28 February 2018
Before:	Price J at [1] Bellew J at [17] Hamill J at [155]
Decision:	1. Leave in respect of ground 4 is refused. 2. Appeal dismissed.
Catchwords:	CRIMINAL LAW – Appeal – Evidence – Unfavourable witness – Cross-examination – Cross-examination of unfavourable witness in respect of matters relevant only to credibility – Whether such questioning went beyond such matters – Whether further grant of leave was required – Whether miscarriage of justice arose CRIMINAL LAW – Practice and procedure – Summing-up of trial judge – Whether summing-up failed to adequately balance the respective cases of the Crown and the accused – Where trial judge repeatedly reminded the jury of the defence case – Structure of the summing-up a matter for individual judgment – No requirement on the part of the trial judge to “compartmentalise” the summing-up by separately identifying and summarising the defence case – Ultimate question whether the trial judge has put the defence case in such a way as to allow the jury to properly consider the issues raised on the accused’s behalf CRIMINAL LAW – Appeal – Offences – Where jury found the appellant guilty of wounding with intent to cause grievous bodily harm – Whether verdict unreasonable and could not be supported by the evidence – Whether the evidence was sufficient to establish beyond reasonable doubt that the appellant held the requisite intention – Where a combination of circumstances relied upon by the Crown provided a sound basis upon which it was open to the jury to infer such intention on the part of the appellant – Where issue not explored in evidence by trial counsel CRIMINAL LAW – Appeal – Practice and procedure – Directions to the jury as to the question of intention – No basis upon which to conclude that issues were conflated by the trial judge – No issue raised by trial counsel as to the directions given – Position taken by trial counsel entirely unsurprising – Leave to appeal refused
Legislation Cited:	Crimes Act 1990 (NSW) Criminal Appeal Rules (NSW) Evidence Act 1995 (NSW)
Cases Cited:	Abdel-Hady (‘SA’) v R [2011] NSWCCA 196 Adam v R (2001) 207 CLR 96; [2001] HCA 57 Aravena v R (2015) 91 NSWLR 258; [2015] NSWCCA 288 AP v R [2013] NSWCCA 189 ARS v R [2011] NSWCCA 266 Casey v R [2016] NSWCCA 77 Castle v R; Bucca v R (2016) 259 CLR 449; [2016] HCA 46 Filippou v R (2015) 256 CLR 47; [2015] HCA 29 Golossian v R [2013] NSWCCA 311 Greenhalgh v R [2017] NSWCCA 94 Haoui v R [2008] NSWCCA 209 M v R (1994) 181 CLR 487; [1994] HCA 63 McKell v R [2017] NSWCCA 291 Palmer v R (1998) 193 CLR 1; [1998] HCA 2 Peacock v R [2008] NSWCCA 264; (2008) 190 A Crim R 454 Piddington v Bennett & Wood Pty Ltd (1940) 63 CLR 533; [1940] HCA 2 Price v Bevan (1974) 8 SASR 81 R v Abusafiah (1991) 24 NSWLR 531 R v Ali (1981) 6 A Crim R 161 R v Ayoub [2004] NSWCCA 209 R v Courtney-Smith (No 2) (1990) 48 A Crim R 49 R v Hunter [1956] VLR 31 R v Inamata [2003] NSWCCA 19; (2003) 137 A Crim R 510 R v Le (2002) 54 NSWLR 474; [2002] NSWCCA 186 R v Meher [2004] NSWCCA 355 R v Parkes [2003] NSWCCA 12; (2003) 147 A Crim R 450 R v Roberts (2001) 53 NSWLR 138; [2001] NSWCCA 163 R v Sanderson (Court of Criminal Appeal (NSW), 18 July 1994 unreported) R v Schmahl [1965] VR 745 R v Tomazos (Court of Criminal Appeal (NSW) 6 August 1971 unreported) R v Tripodina (1988) 35 A Crim R 183 R v White [2003] NSWCCA 64 RPS v R (2000) 199 CLR 620; [2000] HCA 3 SKA v R (2011) 243 CLR 400; [2011] HCA 13 Stanoevski v R (2001) 202 CLR 115; [2001] HCA 4 Tarrant v R [2018] NSWCCA 21 Taub v R [2017] NSWCCA 198
Texts Cited:	Hunter, Professor Jill, “Jurors Notions of Justice, An Empirical Study of Motivations to Investigate & Obedience to Judicial Directions” (2013) University of New South Wales and Law and Justice Foundation Marcus, Paul, “Judges Talking To Jurors in Criminal Cases: Why U.S. Judges Do It So Differently From Just About Everyone Else” (2013) 30 Arizona Journal of International and Comparative Law, 1
Category:	Principal judgment
Parties:	Michael Odisho (Appellant) Regina (Respondent)
Representation:	Counsel: H Dhanji SC and G Lewer (Appellant) T Smith (Respondent) Solicitors: Lenz Legal (Appellant) Solicitor for the Director of Public Prosecutions (NSW) (Respondent)
File Number(s):	2013/00050776
Publication restriction:	Nil
Decision under appeal	Court or tribunal: District Court Jurisdiction: Criminal Date of Decision: 12 October 2016 Before: His Honour Judge Arnott SC