Piccolotto v The Queen
[2015] VSCA 143
•11 June 2015
SUPREME COURT OF VICTORIA
COURT OF APPEAL
| S APCR 2014 0217 | |
| JASON PICCOLOTTO | Applicant |
| v | |
| THE QUEEN | Respondent |
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JUDGES: | REDLICH, SANTAMARIA and BEACH JJA | |
WHERE HELD: | MELBOURNE | |
DATE OF HEARING: | 26 May 2015 | |
DATE OF JUDGMENT: | 11 June 2015 | |
MEDIUM NEUTRAL CITATION: | [2015] VSCA 143 | |
JUDGMENT APPEALED FROM: | R v Piccolotto (Unreported, County Court of Victoria, Judge Chettle, 17 September 2014 (date of sentence)) | |
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CRIMINAL LAW – Conviction – Appeal – Trial – Fair trial – Judge's intervention in trial – Judge's intervention in cross-examination – Conduct of counsel – Procedure where judge obliged to intervene – Disparaging comments by judge – Whether exchanges between judge and counsel tainted the atmosphere of the trial so that it could not be asserted there had been a fair trial – Risk that jury form impression judge did not view counsel’s case with favour – Risk that credibility of counsel undermined – Application for leave to appeal granted – Appeal allowed.
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| APPEARANCES: | Counsel | Solicitors |
| For the Applicant | Mr G J Traczyk | C Marshall & Associates |
| For the Respondent | Ms S M K Borg | Ms V Anscombe, Acting Solicitor for Public Prosecutions |
REDLICH JA
SANTAMARIA JA
BEACH JA:
Introduction
On 8 September 2014, following a six-day trial, the applicant was convicted of one charge of false imprisonment (charge 1) and one charge of making a threat to kill (charge 2). The charges related to an incident alleged to have occurred on 16 November 2012 involving the applicant’s then partner. At the commencement of the trial, and in the absence of the jury, the applicant pleaded guilty to a charge of possessing a drug of dependence (charge 4).[1]
[1]Charge 3 (a charge of threatening to inflict serious injury) was an alternative charge to charge 2 but, having regard to the guilty verdict on charge 2, no verdict was taken in relation to charge 3.
On 17 September 2014, a plea was conducted. On that day, the applicant also pleaded guilty to two summary charges namely, possessing a prohibited weapon (summary charge 11) and possessing cartridge ammunition without a licence or permit (summary charge 13). Following the plea hearing, and on the same day, the judge sentenced the applicant as follows:
Charge Offence Maximum Sentence 1 False imprisonment [Common law] 10 years [Crimes Act 1958 s 320] 2 years + 12 months 2 Threat to kill [Crimes Act 1958 s 20] 10 years 5 years Base 4 Possession of a drug of dependence [Drugs Poisons and Controlled Substances Act 1981 s 73] 1 year 7 days SC11 Possess a prohibited weapon [Control of Weapons Act 1990 s 5AA] 2 years 7 days SC13 Possess cartridge ammunition without licence/permit [Firearms Act 1996 s 124(1)] 40 penalty units $200 fine Total Effective Sentence: 6 years Non-Parole Period: 3 years and 6 months Pre-sentence Detention Declared: 277 days 6AAA Statement: On charge 4 and SC11 - a 14 day term of imprisonment and on SC13 — $300 fine Other orders: disposal order, forensic sample order
The applicant seeks leave to appeal against his convictions on charges 1 and 2 on the following proposed grounds:
1.There was a miscarriage of justice caused by undue interference and involvement by the trial Judge such as to constitute a departure from the due and orderly process of a fair trial, as demonstrated in trial transcript pp.157–164, 180–186, 354 and 355.[2]
2.The trial Judge permitted evidence of a prejudicial nature to be led so as to deprive the applicant of a fair trial, in particular, evidence that he was a drug supplier.
[2]As originally formulated, the text of ground 1 ended with a reference to page 535 of the transcript. However, there was no page 535 of the transcript. In argument, counsel for the applicant confirmed that it was an exchange that continued from page 354 onto page 355 of the transcript about which complaint was made.
Additionally, the applicant seeks leave to appeal against the sentence imposed upon him on the following proposed ground:
The overall sentence is manifestly excessive when proper regard is had to:
(a)current sentences imposed for these types of offences, in particular threat to kill;
(b) the relative youth of the applicant;
(c) his lack of relevant prior or subsequent offending;
(d) family support;
(e)what the sentencing judge described as good prospects of rehabilitation;
(f) his attempt to get off drugs;
(g)the effect of accumulating 12 months of the sentence of charge 2 onto the sentence for charge 1.
The trial below
The Crown alleged, and the jury by their verdicts accepted, that on the morning of 16 November 2012, the applicant (who was then 23 years of age) and his then-partner (Nicole Parkes, the victim) were at the applicant’s parents’ home when he became enraged towards the victim.
The applicant threw the complainant against a wall before leaving to go to his grandparents’ home nearby. CCTV footage from a neighbouring property, a copy of which had been filmed by the informant on his mobile phone and converted into a video which was tendered as exhibit E, showed the applicant enter his grandparent’s home at 2:14pm and emerge two minutes later at 2:16pm with a bag on his back and head back towards his parent’s home.
In the intervening period, the complainant had left the applicant’s parents’ home and was walking towards a tram stop to go to work when the applicant began yelling at her on the street. The complainant walked towards the applicant, the applicant opened the bag to remove a silver pistol, loaded a bullet into the pistol and told her to ‘Get in the fucking house’.
The applicant motioned with the pistol and told her again to ‘Get in the fucking house’ and she complied. The applicant took the complainant to the rear toilet/laundry room, told her to sit on the toilet and locked the door. The applicant removed a large knife from his bag and pressed it against her before sticking it into a cupboard door. The applicant told the complainant she was ‘fucked’ and was ‘gone’.
At one point, the complainant managed to leave the bathroom, but the applicant followed her and threw her against a wall. The applicant ignored questions from his mother and brother, who were home at the time, placed the complainant over his shoulder and, at one point, demanded that she stop crying. At another point, the applicant put his hands around the victim’s neck, placed his pistol against her head and told her that he would shoot as he began counting down from ten.
As the applicant turned to speak to his brother, the complainant ran for the back door and ran from the property. The applicant followed her, demanding that she stop, and continued to threaten to shoot her. The CCTV footage from the neighbouring property showed the complainant racing down the street, on foot, at 2:28pm. The CCTV footage showed the applicant, with his brother and mother, on the street. The complainant sought assistance at a nearby property and the police were called.
The applicant was arrested just before 3:00pm. In his interview with police, he said he had injured his hand punching a wall, said he had done nothing to the victim, denied threatening her with a firearm and made no comment in relation to her presence at his parents’ home.
The Crown called evidence from a number of witnesses including the complainant, the informant (Bryan Strangman) and the owner of the neighbouring property with the CCTV system (Jana Holmer). The Crown said that charge 1 (false imprisonment) was made out by the fact that the complainant was forced to go into the house at pistol point and was kept in there for some period of time until she was able to escape. The Crown said that charge 2 (threat to kill) was made out by the applicant having pointed the pistol at the victim’s head, counting down and saying words to the effect of ‘I'm going to shoot you’ or ‘I'll shoot’.
The applicant did not give evidence at trial. However, he called his mother (Laura Piccolotto), who gave evidence that she was not at home when the alleged incident occurred. It is not necessary for the purposes of this appeal to say anything more about the applicant’s mother’s evidence.
The applicant’s case at trial was that the alleged incident did not happen at all. In relation to the CCTV footage, the applicant’s case was that, even if it was found to be an accurate reflection of what happened, it did not prove that he was guilty of any of the charged offences.
Early in the trial and shortly after cross examination of the complainant had commenced, the Crown interposed evidence from the neighbouring property owner (Ms Holmer) to the effect that the CCTV system was motion-activated and not recording continuously. The applicant’s counsel expressed surprise when this evidence was led. In the absence of the jury (the jury having been out of court for a voir dire in relation to Ms Holmer’s evidence), the applicant’s counsel indicated an intention to suggest that, given that the complainant is seen running down the street within less than thirty seconds after the applicant is seen leaving his grandparents’ home, the CCTV footage did not support the Crown’s case as the incident, as described by the victim, could not have taken place within such a short period of time.
While the jury was still out of court, the trial judge observed that the CCTV camera was ‘motion-detected’ and that one needed to observe the recorded times shown on the various images rather than simply looking at the time it took to play the footage. In the course of making these observations, the judge expressed views that were highly critical of the approach that the defence had foreshadowed it would take. In the jury’s absence his Honour, in very strong terms, questioned counsel’s integrity in seeking to pursue such a course. These views led to an application that the judge disqualify himself for bias. That application was rejected by the judge, and the trial proceeded.
With respect to exhibit E, in his closing address, defence counsel submitted to the jury that there was a question for the jury as to whether the date and times depicted on the footage were accurate, and whether or not the informant could be believed when he said the timestamps were the times that were shown on the video at the time he captured the images with his mobile phone.
Exhibit E: the CCTV footage
Exhibit E was a film taken by the informant on his phone of the CCTV footage from a property over the road from the applicant’s grandparents’ home. The film is 3 minutes and 54 seconds in length.
At approximately 1 minute and 4 seconds into the film, the applicant can be seen walking from the left of screen to the right of screen (from his grandparents’ home towards his parents’ home). Shortly after the applicant is seen walking towards the right of screen, the timer in the bottom right-hand part of the computer screen that was being filmed by the informant shows the time at 2:17pm. A little while later, the timer is shown as 2:21pm. After the timer is observed to be 2:21pm, the complainant is seen running from right to left (from the direction of the applicant’s parents’ home past the front of the applicant’s grandparents’ home). This occurs approximately 1 minute and 43 seconds into the film.
At 2 minutes and 23 seconds into the film, the timer in the bottom right-hand corner is shown as 2:37pm. Later, still shots of the screen show the timer at 2:40pm and 2:49pm. During the course of the film, one can see, from time to time, a bird or birds suddenly appearing in the middle of the camera shot on the driveway at the front of the premises on which the camera was situated. An examination of the film and the still shots taken from it discloses beyond doubt that the camera was not continuously recording in real time on the day of the alleged incident. On its face, exhibit E is a film of approximately 3 minutes and 54 seconds in length that depicts events that occurred over a period of approximately 35 minutes. From the sudden appearances of birds from time to time, it is plain that the camera was motion-activated.
Conviction ground 1: the judge’s conduct
Under ground 1, complaint is made about the judge’s conduct of the trial which is said to have rendered the trial unfair. The conduct complained of is said to be ‘demonstrated’ by three exchanges between the judge and defence counsel. In addition to these three exchanges, an examination of the whole of the transcript reveals that there were numerous other occasions where the judge was impatient, demeaning, and ridiculed counsel for the applicant in the presence of the jury. The judge repeatedly accused counsel for the applicant of wasting time and engaging in repetitive or pointless cross-examination.
By way of illustration, very early in the cross examination of the complainant, the judge repeatedly stated in the jury’s presence that defence counsel was asking ‘impossible questions.’ He then said ‘No, no we’re not arguing. We’re starting this case the way it’s going to continue. You’re going to ask questions and start asking them now. Put proper questions.’ In response to the first question counsel then put, the judge intervened to state that the witness had already answered that question. A few questions later the judge suggested that the particular line of cross examination should not be pursued because ‘it did not matter.’ He then stated that he had made that clear to counsel ‘for the fifteenth time’ and explained that he had done so because he thought counsel ‘may not understand’. Counsel was then directed to ‘move on, keep going’. A few questions later the judge said that a question was ‘pointless,’ that it was a ‘nonsense question and I am not having it. It’s just a nonsense question’. Counsel was directed to get on with questions ‘efficiently’. A few questions later the judge interrupted again. ‘I don’t understand why you’re doing this… and having her repeat it for a second time.’ The judge said that he would not have the evidence ‘rehashed at length… let’s move on at speed’. When counsel attempted to explain why he was asking the questions, the judge told him not to argue and that he should move on and not get the witness to repeat everything she had said. We pause to note that, during this entire passage of cross examination, the prosecutor raised no objections but remained silent.
The first exchange
Shortly thereafter, another witness was interposed and then the first exchange between the judge and counsel for the applicant, about which specific complaint is made, occurred. As we have said, this exchange occurred in the absence of the jury, and led to the bias application. However, in order to put the exchange in context, it is necessary to set out some of the discussion between the judge and counsel that led to the impugned exchange. The relevant passage of the transcript commences as follows:
COUNSEL: Your Honour, there’s a very, very significant issue in this trial in terms of this particular CCTV footage. And especially in the way that the prosecutor has just — well, it may appear to Your Honour in an offhand way, elicited evidence which is highly critical. And that is that this is a motion–activated camera.
HIS HONOUR: Why can’t he lead that?
COUNSEL: Sorry, Your Honour?
HIS HONOUR: Why can’t he elicit that evidence?
COUNSEL: Well, Your Honour, it’s a critical issue and if he wants to rely on this being a motion–activated camera ‑ ‑ ‑
HIS HONOUR: Go back a moment. Why can’t he elicit from the person who runs — the camera doesn’t record all the time, it is motion–activated.
COUNSEL: Well, because it’s such an important issue ‑ ‑ ‑
HIS HONOUR: Why is it such an important issue? There’s date-stamps on the ‑ ‑ ‑
COUNSEL: No. Well, I will tell Your Honour why it’s an important issue. Because if you look at the CCTV footage, you will see that it shows Mr Piccolotto — I mean, I’m sure the prosecution are aware of this, it shows Mr Piccolotto leaving – leaving 25 Cole Crescent and heading toward 46.
HIS HONOUR: Yes.
COUNSEL: Within less than 30 seconds of that, you have the complainant running down the street.
HIS HONOUR: Well — and how does that hurt you? That it’s motion–detected? It helps you.
COUNSEL: No, no. No, no. You see, just on that — on that timeframe alone ‑ ‑ ‑
HIS HONOUR: 30 seconds in the waiting ‑ ‑ ‑
COUNSEL: 30 seconds ‑ ‑ ‑
HIS HONOUR: But that — you can check ‑ ‑ ‑
COUNSEL: He couldn’t have committed the offences alleged.
HIS HONOUR: No, but you check the timestamps on the bottom.
COUNSEL: Sorry?
HIS HONOUR: You check the timestamps. And this is no big deal ‑ ‑ ‑
COUNSEL: Well, I can’t see those particular timestamps.
HIS HONOUR: Well, they’re — have you looked at the stills? What happens is the — as I understand it, the informant — and this is — the jury are onto this already. They asked the question about it.
COUNSEL: What question did they ask? I don’t ‑ ‑ ‑
HIS HONOUR: When do the — which photos relate to the — which timestamps. That was the question they asked ‑ ‑ ‑
COUNSEL: Well ‑ ‑ ‑
HIS HONOUR: And the evidence will come from the witness — from the informant. Listen, you’re right, that it is critical that it’s motion–detected. And so you want to hide that from the jury.
COUNSEL: No, no. I — before I cross-examine on it ‑ ‑ ‑
HIS HONOUR: Well, you just heard about it.
COUNSEL: For the very first time, Your Honour.
HIS HONOUR: Well, no, you’re not. You knew about it beforehand. The witness — all right. But what are you going to do? I mean, I don’t get this … It’s either — it is what it is.
COUNSEL: Well ‑ ‑ ‑
HIS HONOUR: I mean, it strikes me ‑ ‑ ‑
The exchange between the judge and counsel for the applicant (including the application for the judge to disqualify himself and the judge’s response to that application) then continued as follows:
COUNSEL: Well ‑ ‑ ‑
HIS HONOUR: This witness says, ‘I took this video’. The informant will be able to give evidence about what he was told, what happened on the day. The witness, who is — even if it is hearsay, because she was present, she has been called.
COUNSEL: Well, Your Honour ‑ ‑ ‑
HIS HONOUR: How is it ‑ ‑ ‑
COUNSEL: I looked at that video, right, I looked at that video and I said on the timeframes that I see, he could not have committed the offences. Because it’s a 30 second period ‑ ‑ ‑
HIS HONOUR: Between the time she disappears — he disappears and the time she comes back. Correct.
COUNSEL: She’s running ‑ ‑ ‑
HIS HONOUR: But, of course, if it happens to be motion–activated, your point is nonsense, isn’t it? So we should sit on that. We shouldn’t allow that evidence to be given.
COUNSEL: No, no. No, no.
HIS HONOUR: We shouldn’t. We shouldn’t let that happen … .
COUNSEL: No. With respect, Your Honour, if I had known that this was going to be the evidence — and there’s not a suggestion ‑ ‑ ‑
HIS HONOUR: I understand that.
COUNSEL: Of it in the material.
HIS HONOUR: Well, hang on. There was a suggestion of it. I don’t ‑ ‑ ‑
COUNSEL: When?
HIS HONOUR: In his opening. In his – his cross ‑ ‑ ‑
COUNSEL: Yesterday.
HIS HONOUR: Yes. And he told — of course it’s new. The witness hasn’t — but where are you prejudiced by any of this? It is just a nonsense objection.
COUNSEL: No, no. I come to court prepared to run ‑ ‑ ‑
HIS HONOUR: No, no. I’m not interested in any of this coming to court nonsense.
COUNSEL: Well ‑ ‑ ‑
HIS HONOUR: You were told by the prosecutor it was a motion–sensored [sic] camera.
COUNSEL: Well, this morning.
HIS HONOUR: You were told that. The informant is going to give evidence about the timeframes on the camera that he took photographs.
COUNSEL: Yes. The date I don’t — the day ‑ ‑ ‑
HIS HONOUR: No, no. The time. The time … . The jury are onto it already.
COUNSEL: Look, Your Honour ‑ ‑ ‑
HIS HONOUR: They actually asked which photos, they want to know, do these timestamps relate to.
COUNSEL: Yes. Yes.
HIS HONOUR: That is — so we can work out from these timestamps what occurred.
MR COUNSEL: Yes.
HIS HONOUR: The timestamps are because the camera is on motion — you don’t even need evidence. You can come up with the conclusion that it is motion–activated by the times on the thing itself. Now, your objection about this is just amazing. Because what you’re trying to do is say, ‘Well, let’s keep it secret and then I will be able to run a defence that isn’t meritorious’. That’s exactly what you have just said.
COUNSEL: Well, with respect, Your Honour, the material that was provided to me — if you take it at face value, he could not have committed the offences.
HIS HONOUR: No. That’s just nonsense. Because you were told it was a motion–activated camera yesterday. You knew that. And you would like to keep that secret and then this sort of advocacy does no credit to you or the Bar.
COUNSEL: I’m ‑ ‑ ‑
HIS HONOUR: If it’s a motion–active camera, what you’re trying to do — and it will come out that it is. Because the informant will be able to demonstrate that it is. As well as this witness saying it is. And you kick up a stink about it.
COUNSEL: Well ‑ ‑ ‑
HIS HONOUR: I have no idea why [the prosecutor] couldn’t lead that. Now, if you’re prejudiced, you want to go out and get a time — checked, do you? Do you want to get some material in relation to whether this is motion–activated?
COUNSEL: Well, yes. I would. I would like to know what ‑ ‑ ‑
HIS HONOUR: Why?
COUNSEL: Sort of device it is.
HIS HONOUR: No. Well, you’re not getting that.
COUNSEL: What sort of motion–activation mechanism it has.
HIS HONOUR: That’s not happening. Because, quite frankly, you knew — it is no more than a grandstanding. And it’s the sort of point that just brings into disrepute the Bar.
COUNSEL: Well, Your Honour, with respect, I would submit it’s not.
HIS HONOUR: Well, it is.
COUNSEL: It’s a legitimate ‑ ‑ ‑
HIS HONOUR: The witness says it’s motion–detected. The policeman says it’s motion–detected. You want to argue it’s not?
COUNSEL: Well, how can I argue? I don’t even know what the name of the device is.
HIS HONOUR: What does it matter?
COUNSEL: Well, I might ‑ ‑ ‑
HIS HONOUR: What does it matter what the name ‑ ‑ ‑
COUNSEL: I might look it up on the internet and see that it, you know ‑ ‑ ‑
HIS HONOUR: [Counsel], have a look at the stills ‑ ‑ ‑
COUNSEL: Yes.
HIS HONOUR: And the times. Not the date.
COUNSEL: No, I’m not looking at the date.
HIS HONOUR: The date shows the 15th. Forget the 15th. The times that the offence is supposed to have occurred. Yes, if we watch the video there is a 30 second gap or whatever it might be between the time your client ends up there ‑ ‑ ‑
COUNSEL: Yes.
HIS HONOUR: And the time she comes bolting past like a gazelle.
COUNSEL: That’s right.
HIS HONOUR: But then you stop and look at the times.
COUNSEL: Well, I can see the times on there ‑ ‑ ‑
HIS HONOUR: You can?
COUNSEL: Well ‑ ‑ ‑
HIS HONOUR: You can or you can’t?
COUNSEL: Well, no, no. Not from the time that ‑ ‑ ‑
HIS HONOUR: You — no.
COUNSEL: Not from the time that he leaves Cole — 46 — 25 Cole to the time she goes bolting past. Can Your Honour work that out from the stills?
HIS HONOUR: Yes. He goes up, he comes — hang on — hang on, I’ve got the times — the times are here with stills. I haven’t done — he goes walking — she goes — sorry — the stills for all the relevant bits of — yes, he walks up there, it looks like 2.49 and 45.
COUNSEL: So what photo number are you looking at there, Your Honour?
HIS HONOUR: I think it’s 42, 46, 42, 47, 48.
COUNSEL: Yes. What — this is ‑ ‑ ‑
HIS HONOUR: But I’m not doing this. I’m not doing this.
COUNSEL: No. Look ‑ ‑ ‑
HIS HONOUR: The informant does it. And it’s there and just — you knew this was motion–detected and you want me to prohibit [the prosecutor] from leading that from this witness. It’s just not on. So what’s your application now?
COUNSEL: My application was ‑ ‑ ‑
HIS HONOUR: No. What’s your application now?
COUNSEL: Well, can I make it, Your Honour?
HIS HONOUR: No, no. You said ‘was’. I’m asking what it is.
COUNSEL: Well, it is that the prosecution provide, in written form, a statement as to the description of this device and the way that it is said to be motion–activated.
HIS HONOUR: No.
COUNSEL: So I can check it.
HIS HONOUR: Well, a cross–examiner you aren’t. I am not ordering the prosecution to do anything. The woman who says, ‘I have got seven cameras, they’re motion–activated and this is video that I gave the policeman’.
COUNSEL: And can I just ‑ ‑ ‑
HIS HONOUR: And are you seriously suggesting any of that’s not true?
COUNSEL: Well, can I just add, Your Honour, I would have raised this even before the witness was interposed. In the middle of the complainant’s evidence ‑ ‑ ‑
HIS HONOUR: You had no objection to it. I asked.
COUNSEL: No, no. No. And we went — we never, ever, in the absence of the jury, said anything about this thing being motion activated.
HIS HONOUR: Do you really — it was said yesterday and Mister ‑ ‑ ‑
COUNSEL: The witness was not asked about it when she’s in the witness box.
HIS HONOUR: Very well. All right. Neither did you ask her about it.
COUNSEL: Of course not.
HIS HONOUR: You had — gee-whiz, we should have — I love this. You should have let it slip by.
COUNSEL: No, no, ultimately ‑ ‑ ‑
HIS HONOUR: It’s a disgraceful submission.
COUNSEL: I would have said to the jury, ‘Look, there’s the video. You can see there’s a 30-second time delay from the time that he leaves ‑ ‑ ‑ ‘
HIS HONOUR: And you would have cheated, wouldn’t you?
COUNSEL: That’s not cheating, Your Honour.
HIS HONOUR: Of course it is. You ‑ ‑ ‑
COUNSEL: No, it’s not.
HIS HONOUR: No, no, no. Let’s not have any evidence that tells the truth to this jury. It’s an appalling submission … .
COUNSEL: It’s for the Crown to prove its case.
HIS HONOUR: Yes, and it just did. And the informant is going to come and do it as well.
COUNSEL: Your Honour ‑ ‑ ‑
HIS HONOUR: I mean, seriously, [counsel], you bring — this sort of submission is a disgrace.
COUNSEL: Your Honour ‑ ‑ ‑
HIS HONOUR: What you’re saying to me is the Crown should not have been allowed to lead evidence from this witness that the system was motion activated. The informant was — it has already been opened and the informant is going to give the same evidence. Now, it’s just — and why? So that you could slip some dodgy defence through, and that’s all you wanted to do.
COUNSEL: Your Honour, I ‑ ‑ ‑
HIS HONOUR: Now, if you think that’s good advocacy in the best traditions of the bar, I feel sorry for where it’s going.
COUNSEL: Your Honour, I object to the comments that you made about my integrity and the way that I was proposing ‑ ‑ ‑
HIS HONOUR: No. You’ve just said it yourself. I don’t care whether you object.
COUNSEL: Well ‑ ‑ ‑
HIS HONOUR: Your approach and that’s what you wanted to do is a disgrace.
COUNSEL: Well, in light of those ‑ ‑ ‑
HIS HONOUR: I don’t care whether you — [counsel], I don’t care whether you object or not.
COUNSEL: Well ‑ ‑ ‑
HIS HONOUR: This conversation is over. I’m not ‑ ‑ ‑
COUNSEL: Can I make a submission, Your Honour?
HIS HONOUR: No. You’ve made an application that I ‑ ‑ ‑
COUNSEL: Can I make a submission?
HIS HONOUR: No. Wait till I rule on your application. You have made an application that the Crown provides you with written details of the equipment that was used. Answer is I am not forcing the Crown to do that and I refuse that application. What’s your next submission?
COUNSEL: Can I make another application?
HIS HONOUR: Yes.
COUNSEL: I would ask Your Honour to disqualify yourself from presiding as the trial judge.
HIS HONOUR: Why?
COUNSEL: Because you’ve obviously, in my submission, shown an attitude that’s biased to the defence.
HIS HONOUR: Why? I’m just biased against your deplorable attitude, not the defence.
COUNSEL: Your Honour, you’ve called me a cheat.
HIS HONOUR: No. No, I haven’t.
COUNSEL: Yes, you have.
HIS HONOUR: I’ve said you’ve tried to. That’s what you’re trying to do.
COUNSEL: Well, no, that’s what — Your Honour called me a cheat.
HIS HONOUR: That’s what you’re trying to do … .
COUNSEL: Well ‑ ‑ ‑
HIS HONOUR: I’m not disqualifying myself. That’s it.
COUNSEL: Very well.
HIS HONOUR: All right.
COUNSEL: Very well.
HIS HONOUR: Let’s get the jury back and the witness back, please.
The second exchange
The second exchange about which the applicant makes specific complaint, occurred during the cross-examination of the complainant (Ms Parkes) as follows:
Well, let me suggest to you, without making any bones about it, Ms Parkes, you are lying about the whole incident. What do you say to that?‑‑‑That’s so not true.
So not true?‑‑‑So not true.
All right. In any event, can I ask you this: from the time that you say that you were forced back into 46 Cole Street to the time you ran off, how long would that have been?‑‑‑Can you repeat the question, please?
From the time that you say you were forced back into 46 Cole Street, that’s the — when you say he has now got a gun — from that time to the time you actually ran off, how long would that have been?‑‑‑So from the time that I have been pushed into the house and then to me running away? How long?
Yes. That’s the question. Yes?‑‑‑I have no idea.
If what you say is true, it has got to be a fairly significant amount of time, doesn’t it?‑‑‑Well, I was scared. I couldn’t think. It — I wasn’t timing what was going on. I would be lying if I gave an answer to the time. Because I don’t know for sure exact time.
Can I suggest to you that you are just fudging on this issue because you know that there’s a problem with the times on the CCTV footage, don’t you?‑‑‑No. That’s not true at all.
You don’t know what I’m talking about at all?‑‑‑What do you mean?
A problem with the times on the CCTV footage?‑‑‑I didn’t know there was a problem. I’m confused.
You’re confused?‑‑‑I don’t understand what ‑ ‑ ‑
HIS HONOUR: Neither do I, [counsel]. You might enlighten us as to what the problem is with the ‑ ‑ ‑
COUNSEL: Well, I will.
HIS HONOUR: If you think there – I mean, I don’t know either. What is it?
COUNSEL: I will. But can I just lead up to it?
HIS HONOUR: Well, you put the proposition ‑ ‑ ‑
COUNSEL: Yes. And I will ‑ ‑ ‑
HIS HONOUR: Stop arguing with me. Put the proposition. If you say there’s something wrong with it, put it. It’s not a mystery.
COUNSEL: No.
HIS HONOUR: Or a game.
COUNSEL: But can I lay the foundation for it, Your Honour?
HIS HONOUR: You just asked her and she says she has no idea what you’re talking about. Unless we’re wasting time, get on with it.
COUNSEL: Well, can ‑ ‑ ‑
HIS HONOUR: Just ask her questions.
COUNSEL: Well, can I ask her ‑ ‑ ‑
HIS HONOUR: Just ask her. Don’t ask me. Ask her.
COUNSEL: OK. Do you know that there’s CCTV footage of the incident? When I say the ‘incident’, CCTV footage taken on that day?‑‑‑Yes. I think we saw it before.
Yes. OK. You saw it before?‑‑‑If that’s footage, then yes.
Well, I want to show it to you again and ask you to explain what I’m about to show you. So can we just play that CCTV again, please. See, what I want you to look at before this played — before it starts, I just want you to concentrate on this. CCTV footage will show us the person that you say is Mr Piccolotto leaving — sorry, coming to 25 Cole Street — Cole Crescent, and then leaving Cole Crescent shortly after, and I suggest to you that just looking at the CCTV footage, it will show that about 40 seconds later — 40 seconds after ‑ ‑ ‑
HIS HONOUR: You’re not going to do this.
COUNSEL: Well, I just wanted to ‑ ‑ ‑
HIS HONOUR: No, you cannot do this, and you know you can’t.
COUNSEL: Well, can I show her the video.
HIS HONOUR: Very well, but you can’t do what you’ve just done. Are you identifying the — what’s the problem with the CCTV footage that you are putting to this witness?
COUNSEL: I’m asking her to look at this ‑ ‑ ‑
HIS HONOUR: No, no, no. I want you to answer my question just for once. What’s the problem with the CCTV footage that you’re alleging displays this witness is fudging?
COUNSEL: Well, it’s a matter ‑ ‑ ‑
HIS HONOUR: No. Just answer ‑ ‑ ‑
COUNSEL: Well, I will tell you what I think.
HIS HONOUR: My question.
COUNSEL: Yes. Well, I think that the video shows Mr Piccolotto leaving 25 Cole Street and within 40 seconds — within 40 seconds, she’s running down the street.
HIS HONOUR: And that’s why it’s misleading. How can she answer this? You know full well that it’s motion — you’ve had evidence that you didn’t challenge about ‑ ‑ ‑
COUNSEL: Well ‑ ‑ ‑
HIS HONOUR: Hang on. Stop it. You know it’s motion-detected activity. It means nothing on watching the screen. You can’t do this. It’s nothing. You can’t.
COUNSEL: I’m sorry, Your Honour, why can’t I show her the video?
HIS HONOUR: Because what you’re doing is no more than a three-card trick. You suggest to her that there is a problem with the CCTV footage because there’s a 30-second or 40-second gap between Piccolotto walking up the street and her running. But that’s misleading and deceptive it’s motion-detected video.
COUNSEL: Well, let’s assume that it’s a ‑ ‑ ‑
HIS HONOUR: She doesn’t.
COUNSEL: Well, let’s assume it’s a motion-detected ‑ ‑ ‑
HIS HONOUR: You cannot do that to her. It is completely improper and I’m telling you you cannot do that. It proceeds on a false basis designed to mislead and trick this witness. If you tell her that at some stage Piccolotto goes up the street and some stage she runs down and you can ascertain the time by looking at the dates — the time stamps on the bottom.
COUNSEL: Well, let’s have a look at the video; see if you can.
HIS HONOUR: Well, you’re getting some evidence about that, but you cannot do what you’re doing, [counsel], and you know it. And you know it. So I’m not allowing it.
COUNSEL: I’m not sure that I understand your Honour’s reasoning.
HIS HONOUR: Well, let me tell you what my ruling is. You are trying to deceive the witness. The video is not purporting to be real time. The video is, as you well know, motion-detected activated. So you’re trying to infer that because it took 30 seconds or 40 seconds from the time he left to walk up there to the time she’s seen to be running down that therefore she can’t be telling the truth. That’s your proposition, isn’t it? And you know that it’s just wrong.
COUNSEL: Well ‑ ‑ ‑
HIS HONOUR: Because you know it’s motion-detected film.
COUNSEL: I say it’s a matter for the jury, Your Honour.
HIS HONOUR: No, no. But you can’t — it’s not a matter for the jury. It’s just nothing more than misleading and deceptive. You cannot do it. She does not know and you cannot expect her to comment on something that is, without putting — which is motion-detected, not real time.
COUNSEL: Well, Your Honour, all that ‑ ‑ ‑
HIS HONOUR: That’s it.
COUNSEL: All that assumes, with respect, that there has been a period of — a lapse of time where the camera was not working.
HIS HONOUR: [Counsel], you know that’s the evidence, and you know that the informant ‑ ‑ ‑
COUNSEL: No, no, no.
HIS HONOUR: No, stop it. Not happening. Move on. Not happening.
COUNSEL: I just want to show her the video in any event, Your Honour, because there’s some questions I want to ask her about it.
HIS HONOUR: That’s fine. But you can’t — the suggestion that she’s fudging needs to be withdrawn, because you can’t do what you were trying to do.
COUNSEL: Well, Your Honour ‑ ‑ ‑
HIS HONOUR: Don’t argue with me. You can’t do it. It is completely improper and I don’t know why you persist in the face of me telling you that it is. You did not challenge one word of Mrs Holmer’s evidence about it being a motion-detected, motion-activated system.
COUNSEL: Your Honour, but ‑ ‑ ‑
HIS HONOUR: You didn’t challenge one word, yet you were prepared to hide that from this witness. I will not have it done, [counsel].
COUNSEL: But can I put something in response to what Your Honour is saying to me?
HIS HONOUR: What do you want to put?
COUNSEL: The evidence is that that is a motion-activated camera, OK. Now, unless you assume that the camera in fact stopped working for a period of time ‑ ‑ ‑
HIS HONOUR: It does if there’s no motion. You can’t — you see, it’s not logical to draw the inference that there is a continuous stream, that she can’t — what you were trying to do — and you know it — and you invite this. I told you to move on. What you were trying to do is have her discredited because there was only 30 seconds or 40 seconds between the time that your client left the premises and walked up to no.46 and she came running back. ‘Aha,’ says [counsel for the accused], ‘you can’t be telling the truth. You’re fudging’. That is what I say is deceptive and misleading.
COUNSEL: Well, I could be wrong, Your Honour, but my recollection of that video was that you see leaves waving all the way through, and certainly up until this point in time, which would suggest to me that it hasn’t stopped.
HIS HONOUR: You cannot do that. You can put to her that she’s wrong and lying and making it up, and you’ve done that and she has rebutted it, but you will not do — you will not put to her as a fact that the video only shows a 30, 40 second gap between the time he leaves and the time she comes out, because that’s not her evidence and it’s not the evidence of Mrs Holmer, and it’s not going to be the evidence of the informant.
COUNSEL: Well, I haven’t heard anything from the informant about this.
HIS HONOUR: Look, why do you do this? You know exactly what the informant is going to say. It doesn’t come as any surprise to you that the informant sat down and took stills of each of the pieces of action which had the date stamp on it. The jury know that. Yet you’re continuing to try to run this point. Back off. Move on to another one.
COUNSEL: Well can I show her the video and ask her some questions about it?
HIS HONOUR: That’s fine but the proposition about her fudging it needs to be withdrawn. Because that was — I thought that — that’s why I ask you, what’s the basis of why you put it. And you know full well you can’t do that. And it’s not something new. Let’s go.
Following that exchange, the cross examination of the complainant continued for a short time before the judge instructed counsel that he had had half an hour to finish the witness and requested counsel to ‘get to the point’. Following the next question, the judge again interrupted to say that the witness had already answered that question. The judge complained that counsel ‘beat around the bush, you get her to tell the story, hoping to pick up — just keep going’. A few questions later the judge told counsel to get to the point ‘if you’ve got something’. Shortly thereafter, the judge said of a further question that it was ‘so unfair’. The judge continued to be critical in the same vein of counsel’s questions. He told counsel he had three minutes, that counsel was ‘beating — this is not meant to be an exercise of torture’. When counsel sought to explain, the judge said ‘get on with it. Don’t want to hear any more’. The judge said that counsel had notice that he had half an hour and that he had ‘just wasted an hour — a minute’. Counsel then said he had no further questions.
Following re-examination of the complainant, counsel for the applicant made an unsuccessful application that the trial judge disqualify himself because of the comments made by the judge in front of the jury.
The third exchange
The third exchange between the judge and counsel for the applicant, about which specific complaint is made in ground 1, occurred during the applicant’s counsel’s cross-examination of the informant (Mr Strangman), and was as follows:
Do you know that I was originally putting the proposition in this trial that if you look at the CCTV footage, you have that person running to the left about 30 seconds or so — just on the CCTV footage — 30 seconds after it’s said Mr Piccolotto leaves 25 Cole Street?
HIS HONOUR: You really want to start that again? I mean, I thought we went through — I’ve been through this twice with you now, and the proposition didn’t have merit then; it doesn’t have merit now.
COUNSEL: Well, it doesn’t have merit, Your Honour, if the jury accept that these stills — that the sequence of these stills and times has not been altered, as the ‑ ‑ ‑
HIS HONOUR: Well, wait on. Let’s go back a bit. The lady gave evidence — you — this whole — it’s got nothing to do with — you’re confusing apples and pears. Your earlier proposition that this whole thing only took two minutes, and that the time Piccolotto leaves and the time that the girl runs down the street was only 30 or 40 seconds ‑ ‑ ‑
COUNSEL: Yes.
HIS HONOUR: Has nothing to do with switching the stills. That’s a misunderstanding of how motion-activated cameras work. We went through that before.
COUNSEL: No.
HIS HONOUR: If you really want this officer to produce his computer, or his phone, or whatever it might be, with the photos in order that he took them, it will probably still be there.
COUNSEL: Your Honour, as I understand it ‑ ‑ ‑
HIS HONOUR: I don’t — no. Listen, let’s move on. I don’t want to have an argument with you, because it just doesn’t seem to matter. But the proposition about the motion-activated camera had no merit then; it’s got none now.
COUNSEL: No. The times — I mean, if these — I mean, if you — look, I will make the argument when I ‑ ‑ ‑
HIS HONOUR: You make whatever arguments you like to the jury. Ask this witness some questions. You suggested to him that he has doctored it up, and he says he didn’t.
COUNSEL: See, you would never agree, would you, Mr Strangman, to any suggestion by me that you are the sort of police officer who would be prepared to manufacture evidence?‑‑‑Yes, I wouldn’t. That’s correct.
Because you would say, no doubt, that you had never done any such thing?‑‑‑That’s correct.
We have set out only some of the judge’s conduct in the presence of the jury. It continued throughout the trial in a similar vein. The applicant submitted that the judge’s conduct ‘demonstrate[d] an excessive interference or involvement by the trial judge’ and that this ‘constitute[d] a departure from the due and orderly process of a fair trial as to amount to a miscarriage of justice’.
Analysis of ground 1
In R v Mawson[3] the Full Court[4] said:
It is clearly established by a long line of authority that excessive interference or involvement by a trial judge in the conduct of a trial may constitute such a departure from the due and orderly processes of fair trial as to amount to a miscarriage of justice. In those circumstances, such a miscarriage may result for any of a number of reasons. It may, for instance, involve an impairment of a party's opportunity of putting his defence fully and fairly to the jury. An illustration of that kind of miscarriage is shown by the case of R v Clewer (1953) 37 Cr App R 37. The miscarriage may result from preventing witnesses at the trial from telling the full account of the facts as they understand them to be. An illustration of that kind of miscarriage is provided by the case of R v Bateman (1946) 31 Cr App R 106. Such a miscarriage may result from an apparent identification by the trial judge with one or other party to the litigation. A miscarriage of that kind is illustrated by the case of R v Cain (1936) Cr App R 204, or again the miscarriage may result from the jury being led to believe from the judge's intervention that he is himself convinced of the guilt of the accused person. The illustrations given are sufficient to indicate how this kind of departure from the due and orderly processes of trial may result in a miscarriage. It also becomes apparent that a departure from due and regular process in any such respect as those mentioned, may infringe another fundamental principle of criminal law, namely, that criminal justice must not only be done but must also appear to be done. That was the principle applied in a case of this kind by this Court in R v Delaney, [1955] VLR 47; [1955] ALR 45.[5]
[3][1967] VR 205 (‘Mawson’).
[4]Winneke CJ, Adam and Barber JJ.
[5]Mawson [1967] VR 205, 207.
The critical question under ground 1 is whether the exchanges between the judge and the applicant’s counsel and the other comments made by the trial judge in the presence of the jury caused the atmosphere of the trial to become tainted in a manner adverse to the applicant so that, by the time the jury retired to consider its verdict, it could not be asserted that there had been a fair trial.[6]
[6]Cf R v Lars (1994) 73 A Crim R 91, 142 (‘Lars’).
None of the first exchange between the judge and the applicant’s trial counsel took place in front of the jury. This was the exchange in which the judge referred to counsel for the applicant’s submissions as ‘disgraceful’ and ‘a disgrace’. It was also the exchange where the judge said ‘a cross-examiner you aren’t’, and where the judge made reference to cheating.
The trial judge was right to conclude that the CCTV footage could not support the particular attack on the victim’s credit foreshadowed by the applicant’s counsel. From a reading of the transcript and the oral submission, we very much doubt however that counsel did appreciate that there was any logical impediment to his use of the CCTV footage in the way he intended. That is not to say that the CCTV footage may have provided some other justifiable basis for cross examination.
Even though it is clear that defence counsel intended to use the footage in a logically unsound manner, the trial judge’s treatment of counsel in the absence of the jury was highly regrettable.
The strong criticism the trial judge advanced led counsel to conclude that the trial judge had taken a set against him. Defence counsel made an application that the trial judge disqualify himself on the ground of bias against him. But counsel did not submit that the judge had predetermined some issue. The judge’s conduct could not support a claim of bias or the appearance of bias; it could only amount to a complaint that the conduct of the trial was unfair. That would depend upon whether the applicant had a proper opportunity to advance his defence.[7]
[7]RPS v The Queen (2000) 199 CLR 620 (‘RPS’).
Turning to the second and third exchanges identified in ground 1, it must be said that the trial judge was entitled to feel exasperated. Having attempted to explain to counsel during the first exchange why the CCTV footage could not logically be used in the manner proposed, counsel nonetheless embarked upon a cross examination that appeared to be based upon that illogical use of the footage. That gave rise to the second exchange.
The applicant’s counsel applied for the trial judge to disqualify himself from further sitting in the trial following the first exchange referred to in ground 1. That application having been refused, after the cross examination of the complainant had been concluded, counsel for the applicant asked the trial judge to ‘certify under the Criminal Procedure Act that [his] refusal to disqualify [himself] in terms of the comments that [he] made in front of the jury’ was ‘a matter proper for an interlocutory appeal’. That application was also refused. The application that the judge disqualify himself arose out of the first exchange in the absence of the jury. It is not entirely clear whether counsel for the applicant made a slip when stating that the comments were made in front of the jury or whether he mistakenly thought that he had made the application that the judge disqualify himself following the second exchange.
The judge apparently treated the application to certify as one arising out of what he had said in the jury’s presence. His Honour repeated his view that what counsel had tried to do was ‘disgraceful’, that it had been discussed in the absence of the jury, that counsel did not ‘back off’ and had to be stopped. The judge stated that his comments did not indicate any bias against his client and was a different issue to what his client ‘thinks I think of you.’ The judge said he would make clear to the jury in his charge that ‘they should not hold anything that he had said to counsel against his client’.
In the third exchange counsel sought to continue to pursue the allegation that the CCTV footage should not be viewed as supporting the victims’ account because the sequence of the still pictures on the CCTV footage had been ‘doctored.’ The trial judge regarded this as revivification of the unsound reasoning that had been the subject of the first and second exchanges.
We turn to whether as a consequence of the impugned conduct the applicant did not receive a fair trial. The applicant contends that, when regard is had to those exchanges and the other comments made by the trial judge in the presence of the jury, two distinct vices emerged: first, that the jury would have been left with an impression that his Honour had little regard for counsel’s competency or integrity; and, secondly, that the judge had formed an unfavourable view of the merits of the defence case.
The power and duty of a trial judge to control and regulate the proceeding before him or her, by requiring worthless methods of examination to be abandoned or by restraining unnecessary prolonged cross-examination, are undoubted.[8] Trial judges on busy courts are expected to ensure that trials are conducted as efficiently as possible. A trial judge who does not intervene to prevent undue delay or to ensure that the parties focus upon the critical issues may otherwise be the subject of criticism by an appellate court.[9] That said, it is to be expected that such objections to improper or irrelevant cross examination, at least in the first instance, should be raised by the prosecutor. If the trial judge felt that the prosecutor was not discharging his duty, he should have raised those concerns with the prosecutor in the jury’s absence so that it would not be necessary for the judge to intervene in the jury’s presence and be seen to be stepping into the arena of dispute.
[8]See Mooney v James [1949] VLR 22, 28; Kalia v The Queen (1974) 60 Cr App R 200; Kranz v The Queen (1991) 53 A Crim R 331, 340; Love v The Queen(1983) 9 A Crim R 1, 26; Lars (1994) 73 A Crim R 91, 125.
[9]R v Thompson (2002) 130 A Crim R 24, [39]; R v Wilson [1995] 1 VR 163.
Secondly, as the conduct of counsel affected the proper course of the proceedings, the judge was entitled to reprove counsel to ensure that witnesses were treated fairly and that the court’s time was not wasted. In doing so, judges, being human, can be expected to react with impatience or irritation from time to time. They may sometimes have to be strong and forceful but they should, no matter the provocation, comport themselves with dignity.[10]
[10]Lars (1994) 73 A Crim R 91, 133.
If the trial judge frequently intervenes by correcting and rebuking defence counsel, even where the interference is justified and the mode of intervention is restrained, the risks may arise that the jury will infer that the judge has formed an unfavourable view of the merits of the defence case or, at least, of counsel whose conduct is in issue.[11] A judge’s comments must not convey the impression, whether by intervention or otherwise, that the defence is ‘hollow.’[12] Further, and quite distinct from the risk that the jury might conclude that the judge did not view the defence case with favour, trenchant criticism of counsel carries with it the danger that the jury, acting upon the impression created by the judge, may have concluded that counsel’s conduct reflected a lack of judgment, or incompetency, so that valid arguments or points taken by counsel would then not receive the consideration due to them. For such reasons any sustained reproof or detailed criticism should be advanced as far as possible in the absence of the jury.[13]
[11]Tousek v Bernat [1961] SR (NSW) 203, 209; Galea v Galea (1990) 19 NSWLR 263, 280.
[12]Cunningham (1992) 61 A Crim R 412, 429 (Crockett, Southwell and O’Bryan JJ).
[13]RPS v R (2000) 199 CLR 620.
In relation to the CCTV footage, there was considerable force in the judge’s criticisms of counsel for the applicant’s failure to engage with the evidence concerning the way in which the CCTV camera was motion-activated. The trial judge was thus faced with a difficult task — namely to prevent unfair cross-examination but minimise criticism of counsel. It would have been preferable that the trial judge, in the jury’s absence, raised his concerns as to the manner in which the applicant’s counsel was conducting himself. Notwithstanding his earlier debate with counsel, the judge should have told counsel, again in the absence of the jury, that, if counsel persisted with such a line of cross examination, he (the judge) would have to correct counsel in the jury’s presence and explain why the examination was unfair and could not be permitted.
Thirdly, no matter how clear it is to the trial judge that the cross examination of counsel is time wasting or pointless, there can be no justification for persistent rudeness or demeaning remarks directed at counsel. Discourteous or impatient conduct must not be of such an order as to generate a real risk that presentation of the defence has been hampered.[14] The trial judge must be astute to temper any criticism of counsel in the jury’s presence. Strident or repeated criticism may undermine counsel’s credibility in the eyes of the jury and affect the way the jury thereafter views counsel’s conduct and arguments.
[14]R v Hircock [1970] 1 QB 67, 72 (Widgery LJ); Cunningham (1992) 61 A Crim R 412, 429 (Crockett, Southwell and O’Bryan JJ).
Fourthly, the power to stop counsel from pursuing a line of questioning which is either misleading or has no basis in fact must always be exercised having regard to considerations of fairness and balance — particularly in any exchange that might occur in front of the jury. It is so very significant a matter for a judge to accuse counsel in front of a jury of deliberate and misleading conduct, deliberate time-wasting or other deliberately improper conduct. If the judge finds it necessary to express a view about counsel’s integrity, it should not, save in rare circumstances, occur in the jury’s presence. Such criticism, if advanced before the jury may irrevocably diminish the standing of counsel in the eyes of the jury and also create the risk that the jury will infer that their case is without merit.
As he said he would, the trial judge directed the jury concerning the conflict that occurred between the judge and counsel as might have been apparent to the jury. As to the second and third exchanges between the judge and counsel for the applicant, which occurred in the jury’s presence, the judge, in his charge said:
During the course of this trial there have been, from time to time, you might think, some heated conversations and debate between [counsel for the accused] and myself, and you will — a couple of occasions where you might have thought I was being critical of [counsel for the accused], and if you thought that you were probably right, but having said that, I want you to understand just because I express some concerns or criticism of [counsel for the accused] does not in any way reflect upon whether or not the Crown approve the case against his client, it is a separate issue.
As I said at the start of this trial I am a bit like an umpire at a football game, I had to blow the whistle and award a few 50 metre penalties, I suppose is the analogy, because of the way [counsel for the accused] was behaving. That was not anything to do with whether or not his client had or had not been — committed the offences, I am not expressing any view about that, I want you to understand. Do not draw any inference adverse to the accused man because I may have, on occasions, had cause to have words with [counsel for the accused], they are two different issues, as you will understand.
We doubt that such a direction would have overcome the vices to which we have referred and which flowed from the various impugned remarks. Allowing that the jury may well have understood the reasons for the judge’s frustration, if the judge’s comments during the course of the trial had given rise to a perception that counsel lacked judgment or was inclined to be misleading (as we think that they did), then such directions would have had little effect.[15]
[15]Lars (1994) 73 A Crim R 91, 142.
Although the judge was, in our view, excessively critical, in front of the jury, about the applicant’s counsel’s approach to the CCTV footage, the Crown draws attention to the fact that the judge did not prevent the applicant’s counsel from advancing all of the arguments he wished to advance. Further, the judge fairly summarised all of the applicant’s arguments in his charge to the jury.
In his charge, the judge described exhibit E (the CCTV footage) in some detail. The judge also set out the arguments made by both sides concerning the footage. The judge finally summarised the competing positions as follows:
The effect of the prosecution evidence is that the two minutes or so of tape that was played to you represents the totality of what occurred over a period of 40 minutes. [Counsel for the accused] said you should not accept that, you should accept that Mr Strangman has somehow doctored this in order to manufacture a case against his client. You should not be satisfied that it is that day or that time, and if it is that day and that time, for example, it must be earlier in the day because that was when grandad came to get the rubbish bins, and you remember the arguments addressed.
But that is all a matter for you, if you accept Mr Strangman’s evidence that that is the date and time, and the evidence of Ms Holmer as to the fact that it was a day out, together with all the evidence. You are entitled to use that in the case if you do, if you do not, put it aside.
The judge thus charged the jury fairly concerning the applicant’s case and defences, although he again reminded the jury that he had prohibited the cross examination of the complainant based upon the CCTV footage because it was misleading. No relevant exception was taken to any of this by the applicant’s counsel. Further, no request was made by the applicant for any additional direction in relation to these issues.
Beyond the application that the judge disqualify himself, defence counsel, a very experienced practitioner, made no application that the jury be discharged as a consequence of anything the trial judge said in the jury’s presence. It must be recognised that, even in circumstances where a trial judge deals unfairly or harshly with counsel in the jury’s presence, forensic decisions are sometimes made not to seek a discharge of the jury because the judge’s manner may be viewed as likely to attract the jury’s sympathy and so enure to the benefit of the party they represent.[16]
[16]See, for example, Lars (1994) 73 A Crim R 91, 130.
While allowing for the possibility that such a forensic decision may have been made, we are driven to the conclusion that the exchanges between the judge and the applicant’s counsel, together with the other frequent remarks directed at defence counsel’s conduct were likely to have had the adverse effects about which the applicant complains. First, the judge’s conduct must have seriously undermined the credibility and competency of counsel in the eyes of the jury. Secondly, there was a real risk that the jury formed the impression that the judge thought the defence case to be without merit. It was inevitable that the atmosphere of the trial was tainted in a manner so adverse to the applicant that, by the time the jury retired to consider its verdict, it could not be asserted that there had been a fair trial.[17]
[17]Lars (1994) 73 A Crim R 91, 142.
In the circumstances, ground 1 must be upheld.
Conviction ground 2: evidence that the applicant was a drug supplier
Having regard to our conclusion with respect to ground 1, we can express our conclusions with respect to ground 2 in short compass.
In ground 2, the applicant complains that the judge permitted evidence of a prejudicial nature to be led against him, so as to deprive him of a fair trial. Specifically, the applicant contends that he was deprived of a fair trial because the prosecutor elicited from the complainant that the applicant was a supplier of drugs. This complaint is without substance.
The issue of drugs arose in the applicant’s counsel’s cross-examination of the complainant, where the following questions and answers were given:
Let me ask you, Ms Parkes, have you ever had a drug problem?‑‑‑No. But I have — have taken drugs before and taken it too far.
When was that?‑‑‑When I was with Jason.
At this time — did you have any drugs in this time, November 2012?‑‑‑No. No. I wasn’t under anything.
Not under the influence of any drugs?‑‑‑No.
In re-examination, the issue of drugs arose, and was dealt with, in the following way:
PROSECUTOR: All right. You mentioned running down the street. We see the video that you identified running down the street, yes?‑‑‑Yes.
All right. Now, in terms of athletics training, have you had any athletics training?‑‑‑Have I had any what, sorry?
Training in athletics. Are you ‑ ‑ ‑?‑‑‑Yes.
All right. Just very briefly — well, I — in terms of your tennis career, you were an aspiring elite athlete; is that right?‑‑‑Yes.
So you can run?‑‑‑Yeah.
OK. In fact you were number 90 in the world; is that right?‑‑‑Yeah.
OK. Now, just in relation to — you said ‑ ‑ ‑
COUNSEL FOR THE ACCUSED: Was this before or after her drug taking?
HIS HONOUR: Well done, [counsel for the accused]. That — you should — you know that was — are you going to withdraw that?
COUNSEL FOR THE ACCUSED: Well, I will withdraw it.
HIS HONOUR: Well, stop it. Gee whiz.
PROSECUTOR: You mentioned taking drugs with Mr Piccolotto?‑‑‑Yes.
All right. Who was supplying you drugs?‑‑‑Jason could get them.
OK. What sort of drugs? You told us ice?‑‑‑Ice.
You told us liquid G. Is that what he got for you?
COUNSEL FOR THE ACCUSED: Well, I will object to that.
HIS HONOUR: It doesn’t matter. She has given her answer. Let’s move — that’s fine, [prosecutor]. You’ve told us what the drugs were and she has given her answer.
PROSECUTOR: All right. Are you aware that he uses other drugs?
COUNSEL FOR THE ACCUSED: Well, Your Honour, how does that arise from cross-examination?
HIS HONOUR: No, it doesn’t. Look, again, I agree with that. The fact that she got her drugs from him does but that’s about as far as you can take it.
PROSECUTOR: Yes, Your Honour. Those are the matters.
HIS HONOUR: Yes, thank you.
The following day, counsel for the applicant made an application to discharge the jury. The application was made on the basis of the complainant’s assertion in re-examination that the applicant was ‘the supplier’ of the drugs about which the complainant had given evidence in cross-examination.
The judge rejected the application for a discharge of the jury. The judge held that the re-examination arose out of cross-examination. In rejecting the application to discharge the jury, the judge concluded that the requisite ‘high degree of necessity’ was not present.
We see no error in the judge’s approach. The matter was opened up by counsel for the applicant in his cross-examination of the complainant. The prosecutor was entitled to re-examine on the topic. The relevance of whether it was the applicant or the complainant who obtained the drugs is a matter that might be debated. Nevertheless, the applicant’s counsel did not object to that question in re-examination. The objection he took was to a question as to the particular type of drug. It was at that point that the judge stopped the re-examination.
In rejecting the application for a discharge, the judge offered to give a ‘bad character’ direction. At that point, the applicant’s counsel said that he would prefer to reserve his position on whether such a direction should be given. Plainly, the applicant’s counsel did not regard the matter of such significance at that time as to conclude that a bad character direction would be necessary. Later, counsel for the applicant submitted that a bad character direction should be given. This was in part because of the evidence elicited in re-examination, and in part because of other evidence elicited in the trial. In any event, the judge gave the bad character direction requested by the applicant’s counsel that the jury should not infer from the fact that the applicant was of bad character that he was therefore more likely to have committed the offence. The direction was given in conventional terms. In our view, the direction was sufficient to cure any prejudice that might have been occasioned by the re-examination of the complainant on a topic opened up by the applicant’s counsel’s cross-examination of the complainant.
Sentence
Having regard to the conclusions that we have reached in respect of the applicant’s appeal against conviction, it is not necessary for us to deal with his application for leave to appeal against sentence.
Conclusion
The application for leave to appeal against conviction will be granted. His appeal will be treated as having been heard instanter and allowed. His convictions on charges 1 and 2 will be quashed, and the sentences imposed on those charges set aside. A new trial will be ordered.
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