R v Brown

SUPREME COURT OF VICTORIA

COURT OF APPEAL

No. 347 of 2003

THE QUEEN
	v.
RAPHAEL BROWN

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JUDGES:	BATT, J.A. and SMITH and O'BRYAN, A.JJ.A.
WHERE HELD:	MELBOURNE
DATE OF HEARING:	23 and 24 March 2004
DATE OF JUDGMENT:	22 April 2004
MEDIUM NEUTRAL CITATION:	[2004] VSCA 59

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CRIMINAL LAW – Conviction appeal – Recent invention and right to silence – Hearsay evidence – Adequacy of directions.

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APPEARANCES:	Counsel	Solicitors
For the Applicant	Mr. P.G. Priest, Q.C. and Mr. P. D’Arcy	Galbally and O’Bryan
For the Respondent	Mr. N.T. Robinson	Ms. K. Robertson, Solicitor for Public Prosecutions

BATT, J.A.:

I have had the benefit of reading the reasons for judgment of Smith, A.J.A, and those of O’Bryan, A.J.A. I do not repeat the facts, which may be found in their Honours’ respective reasons.

I agree with Smith, A.J.A. that, for the reasons given by him, grounds 2A and 2B and 3A and 3B fail.

I agree with O’Bryan, A.J.A. that, for the reasons given by him, grounds 1A and 1B also fail. In particular, I agree that, in light of the course of proceedings, the appeal points are the three identified by his Honour and also that no miscarriage of justice occurred in the way raised by any of those points. In relation to the third point I add the following. By the time her Honour came to give the direction impugned by the third application for discharge of the jury, the jury’s request for the reading of transcript of evidence of Barclay had been refined in writing and confined essentially to the hearsay conversations with Deutschmann. It was to that request that her Honour’s direction was tailored. Moreover, and in any event, by its terms the direction was confined to the hearsay conversations. In my respectful view, her Honour, having told the jury that the hearsay evidence was inadmissible and to be disregarded, was not obliged to explain why the common law treated it as inadmissible. Nor do I consider that the directions about Rodger’s notes are germane to grounds 1A and 1B. It is unnecessary to consider whether, counsel for the applicant having in a compendious and indirect question sought, impermissibly, from hearsay evidence from Barclay, the prosecutor was entitled to have that evidence elaborated.

I turn now to grounds 5A, 5B and 5C, concerning recent intervention and the right to silence in relation to the applicant’s evidence that the object in his car was a white lever-arch folder. Although I have arrived at the same ultimate conclusion as O’Bryan, A.J.A, I have travelled by a slightly different route, as I shall explain.

It is to be noted that these grounds concern themselves only with the prosecutor’s cross-examination of the applicant and the expert, not with his final address concerning the white folder, presumably because counsel for the applicant was substantially satisfied with the judge’s direction as to that part of the prosecutor’s address, for which he had thanked her. Nevertheless, the outline of argument for the applicant does refer to the address on three or so occasions.

In order to consider the application of the principle in Petty v. The Queen; Maiden v. The Queen[1] in this case, it is necessary to determine its scope. In particular, there is a question whether the expression “previous silence” in the last sentence on the first page[2] of the judgment of Mason, C.J., Deane, Toohey and McHugh, JJ. is general and without limitation, as was submitted for the applicant. In my view, the context of their Honours’ statement of principle shows that the “silence” referred to is silence towards investigating officials or persons in authority[3] and also, as the case indicates[4], silence in earlier formal proceedings. It does not encompass silence towards persons with whom an accused speaks on equal terms[5], such as (here) parents.
[1](1991) 173 C.L.R. 95.
[2]99.
[3]Compare at 107, per Brennan, J.
[4]At 102.
[5]Parkes v. R. [1976] 1 W.L.R. 1251; (1976) 64 Cr.App.R. 25, a decision of the Privy Council.

I can now turn specifically to the several grounds. Under ground 5A it is necessary to ascertain the purport of the cross-examination in relation to the claimed white folder and to determine whether that cross-examination suggested recent invention or infringed the right to silence. In my opinion, for the reasons which follow, although no express mention was made of what the applicant told the police, the cross-examination did suggest, and indeed established, that the applicant had not informed the investigating police of the existence of the white folder, and this infringed the right to silence and probably suggested recent invention. The cross-examiner began, relevantly, by eliciting from the applicant that from the moment of his arrest, and certainly on the day of his arrest, he knew that it was alleged that the ecstasy, or substituted ecstasy, was in a box, whilst his defence was (at the time of trial the verb was in the present tense) that he never had a box and that all that was in the back of his car was a white folder, which he had produced for the first time about three weeks earlier, that is, some three years after his arrest. The applicant was next, relevantly, asked when the first time was that he told anybody about “the box”, an error, as the prosecutor explained, for “the folder”, but that question was objected to and, without an answer being given, was re-phrased as:

“Did you tell anybody before your lawyers … about the existence of this folder?”

The applicant answered that affirmatively and said that he told his parents some time before the trial was listed previously, which was about a year earlier. The applicant said later in cross-examination that it was more than a year after his arrest that he told his parents. In my view, this cross-examination established that the only persons the applicant told about the folder before he told his lawyers about it were his parents, so that he did not tell the police by whom he was arrested or indeed any other investigating police (though that may have eluded the jury). The inference was that the applicant’s defence was an invention or suspect or unacceptable.

But the difficulty for the applicant is that, although his senior counsel hinted after the first few questions that he might need to mention a matter of law in the absence of the jury and took two objections based on legal professional privilege, he did not make the foreshadowed objection to the cross-examination that I have summarised above. Indeed, when the prosecutor said to her Honour that he could hear allegations that his cross-examination was unfair, being allegations which earned a rebuke from her Honour as “mutter[ed] at the Bar table”, senior counsel said:

“If I’m going to make an objection, I will rise and make it. My friend should just continue doing his best until I do object”.

It is clear that counsel was on the qui vive as to whether to object and did not do so. No doubt, the forensic decision not to do so in respect of the several questions I have summarised had to be made almost instantaneously, but, in my view, it cannot be said that a miscarriage resulted from the cross-examination when no objection was taken. First, that shows that the judgment of counsel, very experienced in the field, was that it was better to let the cross-examination pass in the hope that the evidence would prove insignificant. Secondly, and more importantly, had an objection been taken, her Honour no doubt would have upheld the objection and disallowed the question or each of the questions objected to or, if it was too late to do that, would have directed the jury to disregard each question objected to and the answer to it. This is clear from her Honour’s subsequent ruling in relation to the related comments by the prosecutor in his address. To judge by counsel’s expression of thanks to the judge for giving that direction when she did, such a direction in relation to the cross-examination would have been acceptable.

As to ground 5B, it is of course proper and appropriate to cross-examine an expert as to the instructional foundation for his or her opinion, with a view to showing the opinion to be of little value. But, when it is remembered that Associate Professor Spring ultimately concluded, in substance, that the object depicted in the out-take was not a box, I am inclined to think that the cross-examination eliciting that the first time he had heard anything about a folder was the day before he was being cross-examined was calculated to suggest recent invention, though the right to silence was not infringed.

Again, however, there was no objection, at least not until the cross-examiner trespassed into legal professional privilege. For like reasons to those given in relation to ground 5A, it follows that no miscarriage of justice is established.

Ground 5C asserts that her Honour failed to direct the jury sufficiently or at all as to cross-examination by the prosecutor which suggested recent invention or infringed the right to silence. As I have stated, I consider that there was such cross-examination, but the short answer to this ground is that no direction was sought at the time of the cross-examination, and no relevant exception to the charge was taken, by the very experienced counsel appearing for the applicant at trial. It may well be that no exception was taken because it was considered that her Honour’s direction as

to the prosecutor’s comments about the defence of the white folder in his final address was adequate. (It is true that counsel had asked her Honour to include that direction, with some elaboration, in her charge, but the direction did not relate directly to the subject matter of ground 5C and, in any event, no exception, which the history of the applications for discharge shows counsel was well capable of taking, was taken when her Honour, as appears to be the case, did not include the direction in her charge.)

For the reasons I have given, I consider that none of grounds 5A, 5B or 5C is made out.

As to grounds 6A and 6B, it will be apparent that I do not consider that there was an aggregate of errors. Nor did the matters complained of in the preceding grounds in the notice of application, although not made out individually, in combination give rise to a miscarriage of justice. The verdict was not unsafe or unsatisfactory. Rather, if the jury accepted the evidence of Faggetter, as it was entitled to do, the Crown case was a strong one.

For the foregoing reasons, I would dismiss this application.

SMITH, A J.A.:

The application

On 10 November 2003, the applicant, Raphael Brown, was arraigned in the County Court on a presentment containing two counts. The first count alleged that between 1 October 1999 and 31 August 2000 at Melbourne he was knowingly concerned in the importation into Australia of prohibited imports to which section 233 B of the Customs Act 1901 applied[6]. The second count, an alternative count, was that on 31 August 2000 at Melbourne he attempted without reasonable excuse to

obtain possession of prohibited imports to which the above section applied.[7]

[6]Breach of section 233B (1) (d ).

[7]Breach of section 233B (1) (c).

On 27 November 2003, the jury returned a verdict of guilty on count 1. On 11th December 2003, Brown was sentenced to 3 years 6 months imprisonment and it was ordered that he be released on a recognisance release order at the expiration of 15 months imprisonment.

Brown seeks leave to appeal against the conviction on count 1.

The alleged offence - Facts and evidence

Except where otherwise indicated, the facts set out below were not in issue.

On 21 August 2000, an imported package addressed to “Mr Tarquin Black, Level 1,529 Chapel Street, South Yarra, Vic” was taken for examination by the authorities. That examination revealed that a quantity of 2007 tablets of ecstasy (587.4 g) had been hidden inside a candle contained in the package. The tablets were replaced with non-illicit tablets and the contents were re packaged. A listening device was placed in the package.

On 23 August 2000, the Australian Federal Police executed a controlled delivery of the package to the addressee at 529 Chapel Street. There were two occupants present -- Steven Donovan and Paul Wilson. Later in the day they were interviewed by a Federal Agent, Cornish. They told her they believed that the package may have been intended for a person named Tarquin Faggetter who had previously lived at the premises. They agreed to co-operate with the police in an attempt to deliver the package.

On 28 August 2000, Cornish gave an "Unsuccessful Delivery Attempt Card " to Steven Donovan to be given to Faggetter if he should turn up and enquire about the delivery. Between 23 August and 30 August 2000 several phone calls were made to Faggetter's home phone number (that of his mother with whom he was living) from a mobile and a landline service used by the applicant Brown.

Shortly prior to 30 August 2000, Faggetter met with the occupants of 529 Chapel Street. He was told that a package had arrived but had been sent back and he was given the Unsuccessful Delivery Attempt Card which advised that contact should be made with DHL Worldwide Express (DHL). On 30 August 2000, Faggetter contacted DHL and arrangements were made for the delivery of the package to the Chapel Street address at 1 PM on 31 August 2000. DHL then contacted Cornish and arrangements were made for the Australian Federal Police to deliver the package.

On 31 August 2000, Faggetter drove to the Chapel Street address in a white Volkswagen Kombi Van. He there collected the package from a Federal agent who was posing as a DHL delivery man. Faggetter returned to his van and placed the package inside under items in a trunk in the back. His activities were observed by two Federal Police officers, Tainton and Higgins. Higgins took photographs. It should be noted that the listening device had been removed from the package at this stage.

Faggetter then drove to Bray Street South Yarra. He parked near a container in the vicinity of the rear entrance to the Bean Bar Café in Chapel Street. Using the cafe phone he telephoned Brown on his mobile phone at 1:28 PM. At 1:53 PM, Federal Police officers, Salmon and Tainton, observed the applicant Brown and Faggetter sitting together at the cafe. A video camera was used to obtain evidence. At 1:57, Tainton and Higgins observed Brown outside the cafe speaking on his mobile phone. Telephone records show that at 1:57 PM a phone call was made to Brown on his mobile telephone from 1/500 Hawthorn Road Caulfield South, the residential address of Andrew Deutschmann. Telephone records also showed that there had been contact between that number and Brown's mobile phone at 12. 36 PM, 12 49 PM and 1:26 PM.

Brown and Faggetter were observed by Tainton and Higgins at 2:02 PM leaving the cafe via the Bray Street exit, crossing the street and walking north up the Street. . They continued to Ellis Street. Brown's car was parked in Ellis Street. It was the Crown case that the white box delivered to Faggetter was removed by Faggetter from his car and that he and Brown then took it to Ellis Street and at about 2.08 PM the box in question was there placed in Brown's car, a silver Subaru wagon. Brown denied that this occurred.

Evidence of these events was given for the Crown by Faggetter and Federal Police members of the surveillance team -- Higgins Tainton, Salmon and Nomes, who were under the command of an officer named Kocalidis.

Faggetter gave evidence that he and Brown had come to an arrangement in about October 1999 for the delivery of a package to him for which he would be rewarded. The delivery did not take place at the expected time - in time for the New Year celebrations. Faggetter said that he assumed that the arrangement had been cancelled. He moved from his then address at 529 Chapel Street to his mother's address. He also gave evidence that he was contacted by Brown by telephone in late August 2000 and told by him that the package had arrived. He gave evidence also of being told about the arrival and return of a package by the occupants of 529 Chapel Street and of contacting DHL and collecting the package. As to the telephone conversations with Brown on 31 August 2000. Faggetter gave evidence that in the call at 1:28 PM, from the cafe to Brown, he told Brown that he had received the package and that Brown said that he would come and collect it. He also gave evidence of them sitting together in the cafe and him telling Brown what had taken place when he received the package. Faggetter also gave evidence that after they left the cafe they walked to his car, took the package from it and carried it to Brown's car. He could not recall who carried it. Faggetter gave evidence that Brown asked him whether he had opened the package and he told him that he had not. He also gave evidence that they discussed the payment that he would receive. No money, however, was exchanged. Faggetter said that Brown said that if he was not paid cash he might get something else. Faggetter also gave evidence that Brown said that he might consider hiding the package until a more secure arrangement could be made for payment from those involved in the delivery. Brown disputed the evidence of the conversations.

The police in the surveillance group (Nomes, Higgins, Tainton, Salmon) gave evidence of observations of Faggetter and Brown and their movements in Bray Street and Ellis Street. Of particular significance was the evidence of Nomes that he saw Brown open the driver's side door of his vehicle and place a white box in the vehicle and saw Brown hand Faggetter a small item. In addition, Salmon gave evidence in that he saw Faggetter remove a white box from the Kombi Van and saw Brown and Faggetter then continue walking up Bray Street to Ellis Street. Salmon had a video camera but did not film his observations. In cross-examination he gave as an explanation that he thought he was "a bit far away to get it actually".

Faggetter returned to the café, where he was arrested by Federal Agents Cafferkey and Robey. Meanwhile, Brown drove his vehicle to and down the Nepean Highway to Elsternwick . He drove into the car park of a McDonalds Restaurant on the corner of Nepean Highway and Glenhuntly Road. Kocalidis and Salmon observed him during that driving of the vehicle. Tainton, Salmon, Nomes and Higgins observed him park in a bay facing a 7-11 store and enter that store at approximately 2:15 PM. A telephone call was made at 2:19 PM from a pay phone at that store to Andrew Deutschmann's mobile telephone.

At approximately 2:26 PM, Salmon observed Brown return to his vehicle and open the rear driver’s side door. Salmon videotaped this event. A major issue in the trial was whether the videotape showed a white object in the right rear of the vehicle and if so whether it was a white box of the same size and appearance as that which had contained the tablets. An image was produced by the police from the videotape and tendered for Brown as exhibit 4.

At approximately 2:27 PM a blue Hyundai driven by Andrew Deutschmann entered the carpark and parked in a bay adjacent to that in which Brown’s car was parked. Brown was seen to enter Deutschmann’s vehicle. The vehicle was videotaped by Salmon reversing out of the parking bay and driving forward to the Nepean Highway exit. It was observed by Higgins to drive south and then take the first turn left and return to car park through some surrounding streets. The route taken was the most direct route around the block.

Tainton gave evidence that, in their absence, he walked past Brown's vehicle and observed a white box in the rear left floor well of the vehicle. This evidence was challenged.

On returning to the carpark, Brown left Deutschmann's vehicle and entered his own and was seen to depart in his vehicle from the carpark. Salmon videotaped Brown's vehicle backing out of its parking bay and reversing towards the Nepean Highway exit. From that position it could not exit on to that highway. Salmon gave evidence that he then stopped filming. There was an issue as to whether Brown's vehicle departed via Glenhuntly Road or the Nepean Highway. The surveillance team members gave evidence that they saw both vehicles depart at 2:31 PM and observed the two vehicles travelling in convoy along the Nepean Highway. The surveillance team also gave evidence of making observations of both vehicles travelling in Gardenvale Road, Kooyong Road, Saturn Street and Lucas Street to Raynes Street, South Caulfield where they said they briefly lost sight of them.

Nomes and Higgins, however, gave evidence that at 2:37 PM they observed the two vehicles parked in Raynes Street, Deutschmann’s vehicle parked directly behind Brown's vehicle. Salmon gave evidence that, at the same time, he observed Brown standing on the southeast corner of Lucas Street and Raynes Street. He, Tainton and Higgins gave evidence that at 2:39 PM they saw both vehicles travelling north on Hawthorn Road, Caulfield South. They gave evidence that they lost Deutschmann's vehicle . Nomes gave evidence that at 2:40 he observed Brown's vehicle parked directly in front of 500 Hawthorn Road, Deutschmann's residence. He also gave evidence that at 3:19 PM he observed Deutschmann park his vehicle in the driveway of those premises. There was no photographic or videotape record of any of these events or observations. At 3:40 PM, police entered the premises at 500 Hawthorn Road and arrested Brown and Deutschmann. They could not locate the package.

Brown gave evidence in which he accepted much of the police observations and chronology. In particular, he did not dispute the making of numerous phone calls between him, Faggetter and Deutschmann at the times alleged or his meeting with Faggetter near Chapel Street or his meeting with Deutschmann at McDonalds. He maintained in his evidence, however, that while he knew and was friendly with Faggetter and Deutschmann he had no part in any importation and had no part in any possession of any package. He maintained that Faggetter was lying in claiming that he, Brown, was involved. He acknowledged meeting and telephoning Faggetter and Deutschmann but maintained that the contact was social and innocent. As to the object observed in the rear of the vehicle he said he had a white lever arch folder from his university studies in the rear of his vehicle and not a white box. He explained the number of phone calls from the cafe with Deutschmann on the basis that his mobile phone was dropping out and that also explained why he was walking around outside the cafe as seen by the police and as videotaped. He also said that he used the public phone at the 7-11 store because his mobile phone had been dropping out. As to the events of the 31st, he said that he met Faggetter to talk with him but could not stay long because he had lunch arranged with Deutschmann. He said the phone call from the 7-11 was to confirm the time agreed for lunch. He explained that he had got into Deutschmann's car because Deutschmann had offered to provide lunch rather than eat where they were but that shortly after he got into the car he remembered that he had to work at his father's rooms in Kew at about 4 PM and so needed his car to avoid being late. As result they returned and collected his car. He denied travelling with Deutschmann and gave evidence that he in fact drove along Glenhuntly Road to Hawthorn Road and then to Deutschmann's residence, having been told by Deutschmann that he would be let into the house by another resident while Deutschmann bought some groceries.

It was the Crown case that Brown's contacts with Deutschmann concerned the imported package of drugs and its distribution in Melbourne. Deutschmann was in fact charged originally over the importation. Subsequently, however, the charges against Deutschmann did not proceed. Why that occurred was not explained although, as emerged at the hearing, the agent who arrested Deutschmann, Michael James Barclay, subsequently admitted that he had made a false statement about cautioning Deutschmann upon his arrest. He had not in fact cautioned Deutschmann. Barclay gave evidence that he had been persuaded to make the false statement by his superiors, Kocalidis and Cafferkey, allegations which they denied. Deutschmann was not called as a prosecution witness.

The cases advanced at the trial

There was no issue between the parties that there had been an importation of ecstasy tablets, a prohibited substance. The prosecution put its case to the jury on the basis that it had to establish that Brown was knowingly concerned in its importation and that to do so it must satisfy the jury beyond reasonable doubt that he had done something that implicated or involved him in the importation -- that there was a practical connection between him and the importation. The prosecution relied on the evidence of Faggetter, the surveillance evidence and telephone records to prove that Brown was so involved. It also put to the jury that Brown's knowledge or intention could be inferred from the circumstances surrounding the movement of the package - again relying on Faggetter's evidence and the telephone and surveillance evidence.

The essence of the defence case was that while no doubt someone imported a quantity of ecstasy into the country, it was not Brown and he knew nothing of the importation or any package containing any drugs. It was put that Brown did not ever receive such a package and that Faggetter in stating otherwise was a self-interested liar with very powerful motives to lie. The defence case was that he was not to be believed. Reliance was placed on the fact that he had been sentenced to two years imprisonment for his involvement in the importation and after serving eight months was to be placed on a recognisance in the sum of $1000 to be a good behaviour. Faggetter was well aware that the sentence had been reduced because of his undertaking to co-operate with law enforcement agencies and give evidence in proceedings against Brown. If, without proper excuse, he did not do so, the Commonwealth DPP had the right to appeal to have the sentence increased to a period of three years and a non-parole period of 20 months imprisonment.

As to the evidence from members of the Australian Federal Police that they saw a box either in Brown's possession or in his car, the defence case was that they were either at best inept or at worst corrupt. Counsel referred to the extract from the video relied upon as showing a box in the car, Exhibit 4, described by Counsel as "the best piece of evidence that the prosecution had" and argued that it was not a box but something flatter than a box and certainly of different dimensions to the box described.

Plainly the evidence of Faggetter was very important but it had its difficulties for the Crown. Also important was the police evidence of their observations of the white box in Brown’s car and its movements and Brown’s handling of it. The Crown had the difficulty, however, of discrepancies between the contemporaneous police notes and the running sheets occurring in the context of evidence of subornation of perjury by the senior officers and limited video evidence that tended to contradict its case in some areas that were in dispute[8] and a failure to record crucial alleged observations of Salmon and Tainton[9]. The Crown also had the difficulty that the package was not recovered. The Crown alleged that Brown received the package from Faggetter and passed it on to Deutschmann. But there was no observation of that second transfer occurring and neither of them was in possession of the package when arrested.
[8]E.g. the presence of the white box in the applicant’s car, the direction of the departure of the applicant’s car from McDonalds.
[9]E.g. Salmon’s alleged observations of Brown taking the package to his car and later standing in Raynes Street and the cars parked there; Tainton’s alleged observation of the box in the right rear of Brown’s car at McDonalds.

Grounds of appeal

The grounds are as follows:

"GROUNDS OF APPEAL: CONVICTION
1A. A miscarriage of justice resulted from the admission into evidence through the witness Michael James Barclay of a conversation with Andrew Deutschmann concerning a package.
1B. The trial judge failed to direct the jury sufficiently or at all as to the permissible use (and impermissible use) to be made of the evidence of Michael James Barclay concerning –
(a)a conversation with Andrew Deutschmann concerning a package;
(b)the inclusion of false material in his statement dated 28 February 2001 at the suggestion of Peter Kocalides and John Cafferkey.

1C. A miscarriage of justice resulted from the failure of the trial judge to warn the jury sufficiently or at all that it would be dangerous to convict on the evidence of Peter Kocalides and John Cafferkey.
2A. The trial judge erred in the accomplice directions concerning the witness Tarquin Faggetter, and in particular –
(a)items were left to the jury as being capable of corroborating the witness when they were not so capable;
(b)she informed the jury that she had found that the evidence which she later left was capable of corroborating the witness;
(c)she used the expression "corroboration" rather than "supporting evidence";
(d)she failed to direct the jury sufficiently or at all that even should they find corroboration the jury should still heed the warning given concerning the witness and the reasons for the warning.

2B. The trial judge erred in her "tainted witness" directions concerning the witness Tarquin Faggetter, and in particular –
(a)items were left to the jury as being capable of corroborating the witness when they were not so capable;
(b)she failed to direct the jury sufficiently or at all that even should they find corroboration the jury should still heed the warning given concerning the witness and the reasons for the warning;
(c)she failed to direct sufficiently or at all that it would be dangerous to convict on the evidence of the witness.

3A. A miscarriage of justice resulted from the use of evidence of –
(a)the Running Sheet prepared by Peter Kocalides in collaboration with others;

(b) the notes of the witness Cameron Luke Rodger.

3B. The trial judge failed to direct the jury sufficiently or at all as to the permissible use (and impermissible use) of –
(a)the Running Sheet prepared by Peter Kocalides in collaboration with others;

(b) the notes of the witness Cameron Luke Rodger.

4A. The trial judge erred in her directions as to the presumption of innocence; and in particular, she failed to direct sufficiently or at all that the presumption was applicable up to the time that it was displaced by the prosecution evidence.
4B. The trial judge erred in the directions concerning circumstantial evidence; and in particular –
(a)she failed to direct the jury sufficiently or at all that evidence which is indispensable to reasoning as to guilt must be proved beyond reasonable doubt;
(b)she used a jigsaw puzzle analogy which was not appropriate to the circumstances of the case.

5A.    A miscarriage of justice resulted from cross-examination of the applicant by the prosecutor concerning the alleged failure of the applicant to inform anyone of the existence of Exhibit 10; and in particular, such cross-examination –
(a)       suggested recent invention;
(b)      infringed the right to silence.

5B.     A miscarriage of justice resulted from cross-examination of the witness Gale Spring by the prosecutor concerning the alleged failure of the applicant to inform him of the existence of Exhibit 10; and in particular, such cross-examination –
(a)       suggested recent invention;
(b)      infringed the right to silence.

5C.     The trial judge failed to direct the jury sufficiently or at all as to cross-examination by the prosecutor which –
(a)       suggested recent invention;
(b)      infringed the right to silence.

6A. In all the circumstances the verdict is unsafe and unsatisfactory; and in particular, a combination of factors referred to in grounds 1A to 5C led to a miscarriage of justice.
6B. An aggregate of errors caused the trial to miscarry."

Grounds 1C and 4A and B were not pursued. Ground 2A(c) was not pressed.

The grounds relating to the evidence of Barclay[10] and the attack of recent invention[11] raise issues of substance and difficulty. On proper analysis they arguably interact and, as both are relied upon by the applicant on the ultimate question of miscarriage of justice[12], they need to be analysed together. After due consideration, however, I have come to the conclusion that the grounds of appeal relied upon in relation to corroboration issues[13] and the running sheets[14] are not made out. I propose, therefore, to consider those grounds after I have considered the grounds of appeal relating to Barclay’s evidence and the attack of recent invention.. As to those grounds, the latter and its handling appear to me to contribute to the context in which the admissibility issue needs to be considered. It is the effect of both these matters and their handling that ultimately needs to be considered in determining whether there was a miscarriage of justice. I will, therefore, first examine the issues relating to the recent invention attack on Brown.
[10]Grounds 1A and B.
[11]Grounds 5A, B and C.
[12]Grounds 6A and B.
[13]Grounds 2A and B.
[14]Grounds 3A and B.

Suggested recent invention -Grounds 5 A, 5B and 5C

These grounds concern the attack made by the prosecution on the evidence given by Brown that the white object depicted in exhibit 4 (the outtake from the video) was a white folder and not as the prosecution sought to contend, the white box that had previously been in the possession of Faggetter. The defence also called Associate Professor Spring to give opinion evidence about what was revealed in exhibit 4. Professor Spring is an expert specialising among other things in scientific and technical imaging, specifically forensic imaging, having worked in that field for some 15 years. He gave evidence that he had examined, inter alia, the original video taken by Salmon. In essence he stated that in his opinion the video tape did not show a box. In cross-examination he said that he was asked to examine the video tape to see if he could identify anything, and in particular whether there was a box shown. He was not specifically asked to consider the presence of a folder and there was no mention to him of a folder until the day before he gave evidence when he was conferring with counsel. This evidence was used to attack the credibility of Brown’s claim about the folder.

Recent invention issue - the events of the trial

The prosecution cross-examined Brown about when he had first produced the folder and when he had first told anyone about it. The cross-examination commenced with questions directed to establishing that Brown knew from "the minute" he was "arrested” that the police were alleging that the ecstasy and substituted materials were in a box. Counsel for Brown immediately interrupted stating:

"Your Honour, if my friend is going to persist with this I'm going to need to mention a matter of law in the absence of the jury."

The only matter of law that might have been relevant was the principle that it is not permissible to suggest recent invention by an accused person by relying upon the silence of that accused in circumstances where the accused was entitled to exercise the right to be silent. [15] Prosecuting counsel did not express any uncertainty at the time as to the message that counsel for Brown was conveying. He continued, however, and obtained Brown's agreement to the proposition that on the day he was arrested he knew that the Crown was alleging that the ecstasy was in a box and he agreed that his defence was that he never had a box and that all he ever had in the back of his car was a white folder. The questioning continued. He said that he did not produce a white folder until a few weeks before the trial. It was then put
[15]Petty and Maiden v R (1991) 173 CLR 95; R v Glennon [1993] 1 VR 97; 99, 100/1.
"So three years later is the first time you've produced this white folder?"

Brown replied -- "Yes " . He agreed that he had not produced a white folder when the case was listed for trial 12 months earlier and explained that he was following the instructions of his lawyers. His counsel objected raising legal professional privilege, stating that it had not been waived. Prosecuting counsel then asked:
"When was the first time you told anybody about the box?"

Counsel for the accused objected again on the grounds of privilege and complained that prosecuting counsel should not be asking about it as he well knew. After discussion about the width of the question, prosecuting counsel then asked:
"Did you tell anybody before your lawyers – Did you tell anybody else before you told your lawyers about the existence of this folder?"

Brown replied "Yes". Prosecuting counsel then asked "Who did you tell?" and Brown replied "My parents". He was then cross-examined about when he told his parents. What emerged from that was that he told them more than a year previously.

Counsel for the applicant drew our attention to the fact that the jury asked to see the white folder. The precise question was:

"Can we see Brown's folder that he produced a few weeks ago?"

Counsel for the applicant also refers to, and relies upon, the cross-examination of Associate Professor Spring about whether he had been told that the object behind the driver seat was a white folder .

Counsel submits that the real purpose behind the above cross-examination did not become clear until the prosecutor' s final address when it became plain that he was suggesting recent invention of the evidence of the presence of a white folder and was relying upon silence of Brown on the issue from the moment of arrest.

What the learned prosecutor did in his final address was refer to his cross-examination of Brown. After stating that he would just deal with some elements of the evidence and that what he had to say would probably not change the jury's view much at all, he said that he just wanted "to say this"

"in relation to the folder, the folder was produced in court and we saw that and I put it to Mr -- and it wasn't produced in evidence in chief. Why wasn't it produced in evidence in chief, that's when... I put to him it must have been a shocking incident, shocking incident, cause put yourself in Brown's shoes, put yourself in the shoes of the accused man as I put to him. You're at Uni, you're just going, you're innocent person, you're going to have lunch with your mates. You decide to go to a meeting with a person you haven't seen for some time. Catch up, and then you’re going to work at your father' s, and suddenly you're in the middle of an ecstasy import -- your arrested and charged with being involved in an importation of ecstasy. I mean, it your biggest nightmare. And he agreed that he knew almost immediately that was alleged about him that he had a box in his car, and his defence now is that this is all a big mistake. I just had a lever arch folder, I just had a white folder in the box. In the car. Wasn't a box, just had a white folder. Doesn't tell his parents for 18 months, 12 to 18 months after arrest, doesn't tell his parents. Doesn't produce the folder until three weeks ago."

Prosecuting counsel then went on to attack the credit of the folder explanation on the basis of evidence given by Professor Spring that he was not asked to considered the possibility of the folder.

The jury left the court for lunch at 12.54pm. It did not return until 3.06 PM. On its departure, counsel for Brown immediately objected to the above. The initial response of prosecuting counsel was to assert that he was entitled to make the comments and that he would not say any more.[16] Counsel for Brown then submitted that the prosecutor had abrogated the right to silence and referred to the authorities. The luncheon adjournment then intervened. Following the luncheon adjournment, counsel for Brown briefly developed his argument and submitted that there were three possibilities. One was that the prosecutor withdrew his comment, the second was a direction from the learned trial judge and the third was a discharge of the jury. In response, prosecuting counsel was a little more forthcoming. He stated, amongst other things, that counsel for Brown had mis-stated what he had said to the jury. He asserted that he had never suggested to the jury that there had been a failure by the accused to raise the defence with the police -- either in cross-examination or in his closing address. He acknowledged that if he had that would have breached the right to silence. He denied having done that and asserted that what he had done was refer to the failure to mention the existence of the folder for some 12 to 18 months after the incident, when he mentioned it to his parents. He also said that he had only recited the evidence and that he had not mentioned anything at all about the right to silence.
[16]Transcript at P1080.

Counsel for Brown responded by pressing for a strong and clear direction to the jury. The learned trial judge decided that a direction should be given. When the jury returned at 3.06 pm, and before prosecuting counsel resumed his address, her Honour gave the following direction.

"Yes, it seems a long time now that before lunch the prosecutor was addressing you for the Crown in this matter and there was some mention in his final address of the white folder and it was alleged that he had not mentioned it to his parents until 18 months later and there is some reference made to the experiment carried out by the expert.
I just want to tell you something about that. I just want to tell you that the accused has the right to silence, that is in law and you must not use the exercise by him of the right to silence adversely.
I tell you as a matter of law that the alleged failure to mention the white folder until 18 months later to his parents, should not be used adversely against him, because of this right to silence that I have just told you about and that is all I want to say on the topic and the Crown will now continue to deal with the final address."

Recent invention issue - issues raised in this application

Counsel for the applicant submits that the cross-examination, and the address based upon it, were intended to suggest recent invention as to the folder explanation and did so by relying on the fact that the applicant had not mentioned the folder to the police when arrested or shortly thereafter. Counsel submits[17] that this was impermissible, relying on Petty and Maiden v R[18] and R v Glennon[19]. Counsel for the applicant submits that the direction was too late to deal with the damage done because of the time that elapsed before the direction was given.
[17]Counsel for the applicant has also submitted that there was a particular unfairness in this course adopted by the prosecutor where alleged admissions of the applicant by words and conduct were excluded from evidence. I do not consider that this argument relevantly advances matters.
[18]Above at 99, 100 – 01.
[19]Above at 117.

Counsel for the applicant submits that the above events gave rise to a substantial miscarriage of justice and that since the cross-examination and address of counsel for prosecution went to a central issue, the proviso cannot be invoked.[20]
[20]R v Glennon, 117 -- 18, 125.

Counsel for the respondent submits that the prosecutor was entitled to test the evidence given by the applicant about the white folder in the way that he did and pointed out that that evidence was also relevant to the evidence of the expert. As to the expert, the prosecutor was entitled to cross-examine him as to the instructions he had been given. Such cross-examination was relevant to the weight to be given to the expert's evidence and also to the assessment of the accused’s evidence. Counsel for the respondent submits that there was nothing to prevent testing of the evidence of the accused on the basis that it was a version that had emerged only recently. Counsel submits that it is only where the attack of recent invention relied upon the accused's silence when dealing with investigating authorities that the attack is not permitted on the authorities.

Counsel for the respondent submits that the prosecutor’s final address did not, in arguing recent invention, seek to rely upon any failure to mention the white folder in his dealings with the police. Counsel submits that the point of the prosecutor's attack was the silence on this matter by the applicant when speaking with others such as his parents.

Finally counsel submits that the learned trial judge's ruling that the submissions made were impermissible was wrong and, therefore, advantageous to the applicant. Alternatively, counsel argues that if the cross-examination and submissions were impermissible, the direction given rectified the problem.

Recent invention issue – analysis

It is true that prosecuting counsel had relied upon an alleged failure of Brown to mention the folder to his parents for some 12 to 18 months after the arrest. But prosecuting counsel was being at best disingenuous in suggesting to the learned trial judge that he had not sought to rely upon the failure to mention the folder to the police from the time of arrest onwards including the time when he was in police custody. In my view, this clearly contravened the law.

What occurred is of particular concern. The result was to deny an accused person the protection of a fundamental right of all citizens. In addition, the attack went beyond mere issues of credibility. It was not directed to peripheral evidence. It went to a very important piece of evidence. Further, the logic of the attack was in essence that an innocent person would have mentioned the existence of the folder from the moment of arrest. Not only, therefore, did the attack go to the credibility of Brown, it directly challenged very important evidence and his claim of innocence.

The issue for determination is the impact on the trial of what occurred. This involves consideration of the steps taken by the learned trial judge to address the situation and their effectiveness.

Counsel could have sought the exclusion of the evidence when it was led. Their failure to do so might have been fatal to the applicant’s application on this ground but for the fact that, as I see it, prosecuting counsel’s address picked up and relied upon the earlier cross-examination and so revived the issue.

Accepting for the purposes of argument that prosecuting counsel could comment on the significance, if any, of a failure of Brown to mention the white folder to his parents[21], it might be said that the learned trial judge's direction conferred a benefit on Brown because that use was also forbidden. In addition, as a general rule, it is assumed by appellate courts that juries understand and follow the directions they are given by trial judges[22]. In this instance, however, there are matters that raise serious questions about the effectiveness of the direction given and whether, assuming the jury complied with it, it addressed the problem that had been created.
[21]Counsel for the respondent relied upon R v Parkes (1976) 64 Cr. App. R 25 and Brennan, J in Petty and Maiden v R, above, at 107; the limits of the majority view in the latter case are yet to be explored.
[22]Gilbert v The Queen (2000) 201 C. L. R. 414,420 paragraph 13; see also MacKenzie v The Queen (1996) 190 CLR. 348,365 (23).

First, I accept the submission of counsel for the applicant that a problem was created by the time that elapsed before the jury was told to ignore prosecuting counsel's address concerning the cross-examination. The lapse of time will not always matter. In this case, however, the comments were very powerfully put, very persuasive to lay people and the jury had time to reflect upon them before being given the direction. There was every likelihood, therefore, that in that period, reflecting upon Brown's evidence and comments made by the prosecuting counsel, members of the jury would have formed an adverse view about Brown's credibility as a witness on the basis of the attack. Whether the direction given was too late depended in large measure on its contents.

To overcome the problem created, the jury had to do more than simply not use the exercise of the right to silence adversely to the accused. The jurors had to neutralise any prejudicial effect it had had on them. They had, somehow, to find a way to return to their state of mind on the issues of credibility and the white folder (not to mention questions of guilt or innocence) as it existed before the attack was launched. But the time that had elapsed was more than enough to enable strong views to be formed on these matters.

The direction had to assist the jury to perform this task. The direction was strongly given and called the law in aid and, thereby, the directions earlier given to the jury about its duty to comply with the judge’s directions on the law. But the direction fell short of what was required in view of the time that had elapsed and the content of the address.

The direction went no further than to tell the jury that it could not use the accused's exercise of his right to silence adversely against him. It needed to go further and attempt to undo the prejudice caused. The jurors needed at least to be told to ignore the attack and to put the issue and the evidence relating to it out of their minds and to clear from their minds whatever views they might have formed as a result of the evidence and address of the prosecutor. The direction did none of these things.

I note that counsel for the accused did not take further exception and, in fact, thanked her Honour for the direction given. Counsel stated, however, that he wanted to reserve the question of her Honour again addressing the issue in her charge and referred to three unspecified components that needed to be included. The issue was not again raised. In my view, what was critical was the initial response from the trial judge and the issue, therefore, is whether the direction given addressed the problem. This is not a case, in my view, where the “general rule” should be applied when exception is not taken to a direction.

The subsequent conduct of the jury is consistent with the above analysis of the directions and arguably supports it. I refer to the issues later raised by the jury during its deliberations, matters the subject of the remaining grounds. In particular, it appears that the jury shortly before giving its verdict, was looking for evidence other than direct evidence as a basis for reaching its decision.

I will return to the question as to whether a miscarriage of justice resulted after consideration of the remaining grounds relating to the alleged wrongful admission of evidence from Barclay concerning the out of court statement by Deutschmann and the directions ultimately given about that evidence.

As to the cross-examination of Professor Spring,[23] there was nothing illegitimate in its content or scope.

Wrongful admission of evidence of Barclay of conversation with Deutschmann re a package; failure to direct as to use of Barclay's evidence re that conversation and his false statements. - Ground 1 A & B

[23]Ground 5B.

The applicant referred to the fact that Barclay, a former police officer and Crown witness , was asked during cross-examination about a conversation referred to on page 5 of a statement made on 28 February 2001 which he acknowledged in reality did not take place in which Deutschmann supposedly made the admission that he had passed the package on to a friend. Barclay acknowledged that that conversation did not take place. It was then put to him-

"That conversation that that was part of was completely false?”

He responded;--
“ Yes. We did question him -- like in-depth around -- this particular conversation didn't happen, however, --"

Counsel for Brown then cut him short saying "Yes, thank you." Prosecuting counsel then asked that the witness be allowed to answer. Counsel for the accused said that counsel for the Crown could re-examine but her Honour allowed the witness to complete his answer. The answer given was

"I was just going to say, however we did question him in-depth and I think he did say that he passed it – I'm sure he did say he gave it to a friend, so he admitted that in another conversation but this particular conversation …. did not occur, no."

Counsel for Brown continued to cross-examine, referring to another statement being false - that he had cautioned Deutschmann. Barclay also gave evidence that he had been persuaded by Kocalidis and Cafferkey, the two police officers in charge of the operation, to include the false assertion that a caution had been given to Deutschmann.

A little later, in the absence of the jury, counsel for Brown raised with the trial judge concerns about the in-admissible evidence but made no application. He expressed concern, however, about the potential cumulative effect of such evidence. At that point the concern appeared to be to make sure it did not happen again and there was no application to discharge the jury. I accept that counsel’s judgement was that it was likely that this small item of evidence would probably be forgotten or not given any significance by the end of the trial and that it was preferable not to highlight it by having her Honour rule it inadmissible. This exchange occurred on 18 November 2003.

Before this Court, counsel for the applicant submits that this was important evidence because the applicant's case was that he had neither seen nor had possession of the package. The complaint was that, as a result of the intervention of the learned trial prosecutor, inadmissible hearsay that Deutschmann had given the package to "a friend" was admitted. This was important evidence on the issue whether the Brown had received the package. Deutschmann's alleged admission, if accepted, carried with it, in light of other evidence, the strong probability that he had received the package from Brown. Counsel submits, however, that as the case unfolded , this piece of evidence irreparably damaged the fair trial of the accused.

Barclay evidence of Deutschmann statement - subsequent events at trial

It emerged that the absence of Deutschmann was of concern to the jury. On 19 November 2003, during the presentation of the defence case and subsequently to the cross-examination of Brown in which he had been questioned about Mr Deutschmann, the jury asked why Mr Deutschmann had not "been brought in as a witness." The learned trial judge instructed the jury not to speculate about why he was not being called and reminded the jury that the burden of proof rested on Crown. The jury had also been told a little earlier that what was important was what the witnesses said in the witness box and the jury's observations of them.

On 20 November 2003, just before midday, the defence evidence concluded. There was then a lengthy discussion in the absence of the jury relating to corroboration issues. At approximately 11.30 a.m. on the following day, 21 November 2003, prosecuting counsel commenced his address to the jury. It was at approximately 3.06 PM, that the learned trial judge directed the jury to ignore prosecuting counsel's above-mentioned attack of recent invention made on the accused. It appears from the transcript that by 3:41 PM the jury appeared to be tiring and was allowed to leave. The weekend intervened.

On Monday, 24 November 2003 the hearing resumed with prosecuting counsel continuing and concluding his final address. Some time before the luncheon adjournment counsel for the accused commenced his address and concluded it shortly after 3 PM. The jury was excused until the next day, 25 November 2003, when the learned trial judge commenced her charge.

It is relevant to the present grounds to note that on 25 November 2003, in the course of summarising the evidence, the learned trial judge unfortunately repeated the hearsay evidence of Barclay about what he had been told by Deutschmann. Counsel for the accused drew this to her Honour's attention but conceded that there was nothing that could be done about it saying that to try and correct it would simply highlight it. The learned trial judge said

"I think in everything else that's been put to them, I don't think it's going to be a significant matter, Mr Priest, but it's a matter that you were right to draw to my attention."

Subsequent events proved that this assumption was mistaken.

At 11:50 AM on 26 November 2003 the jury retired to consider its verdict. During the afternoon, shortly prior to 3:19 PM, the jury made the following written request:

"Transcripts, Rodger's re notes at 1353 all his notes. Salmon transcript Rodger's transcript regarding box being taken out of van by UI as per cross-examination. Barclay re everything is true except for caution and conversation following that. Barclay regarding his cross-examination".

The jury returned to the courtroom at 3:30 PM. The foreman of the jury explained in open court what was wanted in the following words

"Yes, just where he was being asked about what he'd been asked to supposedly lie about or not lie about or whatever, just where he clarifies what he said was true or not true."

There was then an exchange between the learned trial judge and the prosecutor to the effect that what was required was a repeating of the cross-examination and re-examination to which the foreman responded

"Yes, that's right and the very end as well"

The foreman also confirmed that the jury wanted the evidence of Rodger about his note repeated.

At 3:33 PM , the jury left the courtroom. There was further discussion in its absence between the learned trial judge and counsel in the course of which counsel for the accused raised the problem of the evidence which he submitted was inadmissible. In the ensuing discussion agreement was reached to exclude the inadmissible evidence from the reading of the transcript. There was further debate about the jury's request for the repetition of Rodger's evidence about his notes. At 4:19 PM the jury was brought back into the courtroom and was allowed to go home without its questions being answered.

On the following morning, prior to the hearing resuming the jury clarified its requests in writing. The first request related to Rodger's notes and his evidence about them. The learned trial judge told counsel that they wanted to hear the cross-examination where he was confirming the entries in his notebook specifically around 1402 where he recorded the suspect and an unidentified male return to vehicle and a box carried by an unidentified male. Her Honour said that that appeared to be consistent with their requests made the previous day that they wanted it confirmed in Rodger's notes that the box was seen being taken from the van. There was then some discussion with counsel about what parts of the transcript should be read to the jury. During that discussion, counsel for Brown strongly argued that the learned trial judge should direct the jury that evidence of Rodger's notes could not be used as evidence of the truth of the facts asserted in them but only on issues of credibility. It is true that counsel in discussion in the previous day used language which the learned trial judge subsequently used when addressing the jury. In particular counsel said that the jury needed to be told that

"what Mr Rodger has recorded in these notes is not evidence of the fact, unless it has been adopted by Mr Rodger as the truth, and he hasn't done that".[24]

But, whatever language was used by counsel for Brown, he had stressed to the learned trial judge that it had to be made clear to the jury that it could not use evidence of the entries in the notes as evidence of the facts asserted in them. The learned trial judge herself said that it was
"self evident that the entry itself is not evidence of the fact. I think we'd all be agreeing on that."

[24]Counsel appeared to be blending the law on refreshing of memory with the law on hearsay. The witness whose memory is not refreshed by reference to his or her contemporaneous note but is prepared to swear on oath that the note was accurate can adopt its contents as part of his or her oral evidence. But counsel was also taking the position that Mr Rodger had not adopted the statements of fact "as the truth" in the sense that he had not adopted the truth of the facts asserted, but only the accuracy of his notes as a true record of what he heard.

Her Honour then referred counsel to the written refinement of the question relating to Barclay. The note from the jury was as follows:

"Re Barclay’s cross-examination, we would specifically like to hear when Barclay said, “ The caution, and the conversation following, written in my first statement is untrue, but in other conversations, Deutschmann did say he already handed the box on”.[25]

[25]This request related to at least the cross-examination at T 850-2 set out in detail in O’Bryan AJA’s reasons.

I take this request to refer to cross-examination about the falsity of the assertion in the first statement of Barclay that a caution had been given to Deutschmann, the cross-examination which was to the effect that the conversation set out in the statement did not take place and that a supposed admission about what Mr Deutschmann had done with the package was untrue.

Counsel for Brown immediately asked that the jury be discharged. In the ensuing discussion, prosecuting counsel stated that any problems could be dealt with by a firm direction from the trial judge and the trial judge appeared to agree. At this stage another hour had elapsed since the jury question. Counsel for the accused applied again for a discharge of the jury on the basis of the further time that had elapsed during which, he argued, the jury would be wondering what the problem was and why it was taking so long and that it was reasonable to assume that they had been thinking about that very matter. The application was refused.

The jury returned at 12.17. The first matter dealt with was the re-formulated question relating to the evidence of Barclay. Her Honour directed the jury as follows:

"Now you will remember at the outset of this trial I made it very clear to you -- I informed you -- that the law was a matter for me; the facts are a matter for you, and you must accept my directions with regard to the law. I do not propose to read to you the part of the transcript of Mr Barclay that you have requested. I am not going to read it to you as it does not constitute evidence against the accused. It does not constitute evidence against the accused, as a matter of law, and you should completely disregard it. It is inadmissible hearsay, and the law does not permit its use because it is inherently unreliable. You must decide the case on the evidence and not on matters which I direct you as a matter of law are not evidence. With respect to the portion of the transcript you inquired about , I direct you as a matter of law that this is not evidence and you should totally disregard it".

Her Honour then dealt with the other matter that had been raised concerning the cross-examination of Rodger about the notes he had made about the observations of others . Of particular significance was a note of an unidentified individual going to the driver’s side of the Subaru and there being an entry recording an observation of that person, who was identified as Brown, placing the box in the Subaru, his confirmation that his notes do not record what he saw and his acceptance that what he wrote down included what he was told to write down by Kocalidis. The learned trial judge also referred to the re-examination of Rodger which referred in particular to an entry at 1402 of an observation of Faggetter and Brown going to Faggetter's vehicle and an observation of them walking north along Bray Street into Ellis Street with Brown carrying a box and a reference to a possible exchange of cash outside the vehicle. Reference was also made to re-examination where he said that what he was recording was his interpretation of what he was hearing over the radio and it was impossible to record everything that was said by five different people. The learned trial judge then said :

"Now I just want to remind you that what Mr Rodger has recorded in his notes is not evidence of the fact, unless its been adopted by Mr Rodger as the truth. If not adopted as the truth, it can only be used as going to credit. So I just want to remind you of my earlier directions[26] in relation to statements of witnesses and notes that I gave you in this case."

[26]In my view, the earlier directions would not have alerted the jury to the proposition that the notes could not be used as evidence of the truth of the facts asserted; transcript 1122 - 5; 1151;1193-99.

In light of the discussion preceding the direction and the conduct of counsel and the learned trial judge subsequent to it, I proceed on the basis that they assumed that that direction was intended to prevent the jury from using the evidence of Rodger as to his notes as evidence of the truth of the facts recorded in them.

To put that material in context, it needs to be borne in mind that counsel for Brown had taken exception to the tender of the running sheets and notes and that objection was maintained. Later the prosecuting counsel informed Her Honour that he did not persist in the application to tender the running sheets or the notes of Mr Rodger. In addition, on 19 November 2003 the jury asked - "why is the running sheets unable to be tendered as evidence?" As to that, the learned trial judge instructed the jury that

"as a matter of law,...the rules of evidence prevent the running sheets from being tendered as evidence in this case. So you won't be getting the running sheets."

The re-direction on 27 November 2003 concluded at 12:27 PM and the jury again retired to consider its verdict. Counsel for the accused raised no issue as to the handling of the evidence of Rodger. He objected, however, that the direction as to Barclay’s evidence had made matters worse because what had been said was open to the interpretation that the jury could not use the evidence of Mr Barclay for any purpose. Counsel submitted that the whole purpose of the cross-examination of Barclay was that he was directed to put false entries in the running sheet by Kocalidis as part of the investigation and that it pointed to Kocalidis being prepared to manufacture false evidence, Kocalidis being the one who prepared the running sheet and directed Rodger to write down various entries in the notes. Counsel for the Crown submitted that the judge had made it clear that she was referring only to the impugned evidence relating to the package conversation . Later, counsel for Brown submitted that the question revealed that the jury had focused on this very piece of evidence about what Mr Barclay had said about Deutschmann saying he had passed the package on. Counsel submitted that the "whole atmosphere now is poisoned...and beyond repair from the defence point of view".

In my view, the criticism voiced by counsel for Brown at trial was substantially correct but was overstated. It was correct to the extent that it appears that her Honour told the jury in the re-direction to disregard totally the evidence of Barclay a repeat of which it had sought. That related to the false statement about the caution, the false conversation with Deutschmann, evidence on which the accused placed considerable reliance and the other conversation in which the hearsay appeared. Counsel, however, was incorrect in suggesting that her Honour had referred to all of Barclay' s evidence.

Following this exchange, and the learned trial judge declining to discharge the jury, counsel and her Honour then viewed a videotape which was to replace what was then Exhibit 3, the “Salmon” video. After viewing the videotape it was agreed that it should replace the earlier version and go into the jury room. That decision having been made, at 12:45 PM, her Honour left the bench having advised counsel that she would not take a verdict before 2.30 PM. When the hearing resumed at 2:30 PM her Honour announced that the jury had reached a verdict. Counsel for the applicant asserted to this Court that it was known at 1 PM that the jury had reached a verdict. Counsel for the respondent neither agree or disagreed with this assertion. I will proceed on the basis that a verdict was arrived at by the jury sometime prior to 2.30 and that between 12.27 and 2 30 the jury had a break for lunch.

Barclay evidence of Deutschmann statement - issues raised in this application

Counsel for the applicant, Brown, submits that the cross-examination of Barclay about the Deutschmann statement was legitimate. Counsel submits that it was relevant to the issue of an alleged propensity on the part of Kocalidis and Cafferkey to manufacture evidence. Counsel also submits, however, that evidence of the content of the conversation was inadmissible

Counsel for the applicant has emphasised the fact that the jury question revealed that this particular piece of evidence was important to its thinking and argues that the delay in responding and rectifying the problem meant that it was too little too late. Because the Crown wanted to portray Deutschmann as being complicit with the Applicant the evidence was very significant. Counsel submits that it had tainted the verdict and caused a substantial miscarriage of justice.

Counsel for the respondent submits that the evidence complained of was in fact led from Barclay by counsel for Brown. Counsel submits that the answer complained of was a responsive answer - as the learned trial judge initially ruled. Counsel also submits that the later ruling that the evidence was inadmissible was erroneous but that it was an error favourable to the applicant. Alternatively, counsel submits that the direction given dealt with any problems. If there was error, counsel submits that no substantial miscarriage of justice resulted.

Barclay evidence of Deutschmann statement - analysis

If counsel for the applicant is suggesting that the only purpose of the cross-examination was to establish that the police involved had engaged in fabrication of evidence, counsel is being disingenuous. At the trial, counsel was also trying to place before the jury the fact that there was a false statement attributed to Deutschmann that he had passed the package on. While there was a legitimate purpose to the questions to show the police fabricating evidence, there was also a potential forensic benefit that the jury might assume that the police had not obtained an admission from Deutschmann that he had passed the package on - or received it.. It would not be surprising, therefore, if counsel for the prosecution felt justified in himself seeking to address a perceived forensic disadvantage by pressing for the witness to be allowed to continue with his intended qualification which he could reasonably expect to be that the same statement was made in another conversation that did occur.

But it cannot be said that the answer given was responsive. Counsel for the prosecution must have known that it would not be and that what he was seeking to achieve was improper. The responsibility for what occurred lay with counsel for the prosecution and not counsel for the accused.

Confronted with that situation it was understandable that counsel for the accused took the approach they did, judging that it was likely to be forgotten in the plethora of other evidence provided it was not highlighted. Unfortunately, her Honour reminded the jury of the evidence in her charge. In the subsequent discussion, her Honour indicated that she shared counsel’s view about the likelihood of the jury forgetting the evidence. As fate would have it, however, counsel and the learned trial judge misread the jury and by the time it came to consider its verdict this particular piece of evidence had assumed great significance.

In determining the impact of the evidence and the effectiveness of the subsequent direction , the first point to note is that the inadmissible evidence from Barclay concerned important issues.[27] It was to the effect that Deutschmann said that he had passed the package on to a friend. In other words, he had received the package, and, on the evidence, this could only be from Brown, and passed it on - implicitly as part of the importation transaction. It should also be borne in mind that the evidence requested concerning Rodger related to his notes about the movement of the package and Brown's involvement in it.
[27]So too did the admissible evidence concerning the false aspects of Barclay's statement.

As to the thinking of the jury at the time of the request and the direction, the jury obviously regarded both the Rodger evidence and the Barclay inadmissible evidence as important for its deliberations and for reaching a decision. It is reasonable to infer that the jury was considering that evidence in deliberating on a central question - whether the package had passed into the hands of Brown and from him to Deutschmann. It is also reasonable to infer that at that stage of its deliberations, there were jurors who had not been able to reach a finding beyond reasonable doubt that Brown was knowingly involved in any importation on the basis of the uncontested facts and the direct evidence of the surveillance officers and the evidence of Faggetter. As to the evidence of Faggetter, there were obvious reasons to approach is evidence with great caution. As to the surveillance officers there was substance to the attack made on the credibility of their evidence, as noted above, because of :

·    Barclay's evidence of fabrication of evidence at the suggestion of the two officers in charge;
·    the discrepancies between the notes taken and the running sheets prepared by one of those two officers in charge;
·    the absence of photographic or video evidence of the box in the possession of Brown and the explanations for its absence being questionable; and
·    the highly questionable position of police witnesses that exhibit 4 showed the box in question.
It is also reasonable to infer that there were jurors who thought that the evidence requested had the potential to remove their doubts and justify a guilty verdict.

The next issue for consideration is the effectiveness of the directions given in relation to the Barclay evidence (and the Rodger evidence). A number of points should be made.

First, in turning to the inadmissible evidence of Barclay and the evidence of Rodger, the jury was looking for assistance from evidence that was unreliable and inadmissible. Their request suggests that they were inclined to believe it to be reliable and were not alive to the weaknesses of the evidence.

Secondly, it is also reasonable to infer that the jury had had the evidence in question under consideration for some time and saw its repetition and confirmation as something that would assist it to reach its decision. If the inadmissible evidence was accepted, it would justify conviction. Having been told that it had to disregard that evidence, it might have been expected that it would have taken some time for the jury to reach a verdict without the assistance of that evidence. What happened, however, was that the verdict of guilty was reached within a relatively short period.

The question to be resolved is whether in all the circumstances the direction was adequate to deal with the problem and whether it did not further disadvantage in Brown.

(a)Failure to identify weaknesses. The attempt to address the hearsay evidence that Deutschmann had on another occasion said that he passed the package on to a friend, was, from a lawyer’s point of view, strong and authoritative but heavily emphasised, as its basis, that the law said the evidence was not admissible. Ordinarily, it would have been sufficient. But in view of the apparent importance to the jury of the inadmissible evidence and the jury’s lack of appreciation of its dangers more should have been said. The jury could have been, and in my view, needed to be, told the other reasons, in addition to unreliability, why the law excludes hearsay evidence. For example, its attention was not drawn to the fact that there had been no opportunity to cross-examine Deutschmann and so test his assertion and no opportunity to observe him make the alleged statement. It could also have been told that the statement was not on oath and possibly reminded that the source of the information was Barclay who had admitted to making false statements.
(b)Directed to disregard admissible evidence. The other two pieces of Barclay evidence to which the jury had referred were relevant to the accused's attack on the credibility of the whole Crown case and admissible for that purpose. They related to the issue of the alleged suborning of Barclay by his superior officers who were also in charge of the operation. There was no hearsay issue in relation to that evidence. The three pieces of evidence appeared in the one “part of the transcript”. The learned trial judge, however, having told the jurors that the evidence they had requested could not be used against Brown, also told them that they had to “disregard it”. No doubt, she had in mind the hearsay issue in saying that but unfortunately did not so confine the direction. Her explanation that the evidence in question was hearsay evidence would not, in my view, have assisted the jury to confine the direction to the evidence about Deutschmann’s statement about passing the package on.

In my view, the direction failed to deal adequately, in all the circumstances, with the hearsay problem and unfortunately misdirected the jury to disregard the other evidence on which the accused relied. [28]
[28]There is a question whether the Rodger's direction was inadequate because it allowed the jury to act on Rodger's evidence if it found that he had accepted the notes as the truth. In addition, it did not explain to the jury that the notes, and Rodger's evidence about them, were not evidence of the truth of the facts stated in them and could only be used in assessing the credibility of the oral evidence given by the various police witnesses. This issue, however, was not raised at the trial – presumably because counsel did not consider the direction disadvantaged their client.

The remaining grounds

I turn then to the remaining grounds which concern issues that arose in relation to

· the corroboration of the evidence of Faggetter, and
· the using of notes prepared by Rodger.

I will then conclude with an examination of the question whether the grounds that have been made out gave rise to a miscarriage justice.

The accomplice, tainted witness and corroboration directions - Grounds 1C, 2 A and 2B

It was common ground at trial that Faggetter was an accomplice of Brown and accordingly an accomplice warning was required. The learned trial judge also came to the conclusion that he was a tainted witness because of the terms of his sentence and a Faure warning was required.

The first issue raised is the selection made by the learned trial judge of evidence capable of amounting to corroboration.

Further cross-examination was directed to what Barclay had seen Faggetter and the applicant do in the Bean Bar Café. In re-examination Barclay admitted that the untrue part of his first statement was that Deutschmann was given a caution at 500 Hawthorn Road. The transcript then includes the words: “And the conversation that didn’t occur.” [41] These appear to be words spoken by the prosecutor, to which the witness replied: “Yes”. If that is so, there were two untrue parts of his statement.
[41]Transcript of trial at p.862 lines 12-15.

When the witness withdrew and in the absence of the jury, Mr Priest drew her Honour’s attention to what he described as the “inadmissible conversation” and expressed his concern about it. However, he did not ask her Honour “to do anything about it now or, indeed, to do anything about it at all - - -“.

The Crown called three more witnesses, and then the prosecutor informed the Court that he did not propose to tender the “running sheet” or the notes of Mr Rodger. Kocalidis was the designated note-taker but had delegated the task to Rodger.

During the judge’s charge to the jury, her Honour made reference to the “running sheet” which had been made by Kocalidis from the note-book of Mr Rodger and other sources. Mr Priest contended during the trial that the “running sheet” differed in important respects from Rodger’s note-book. When Rodger was cross-examined, he was asked by Mr Priest a number of questions about his note-book entries, but the document was not tendered in evidence. When Kocalidis was cross-examined he was asked about entries in Rodger’s note-book which were inconsistent with the running sheet, but the note-book was not tendered.

Her Honour reminded the jury of the conflict in the evidence between Barclay and Kocalidis, and that it was the defence case that Kocalidis was a liar who was prepared to commit perjury. The jury was reminded that Barclay admitted that Kocalidis had directed him to falsely include in his statement that he, Barclay, had cautioned Deutschmann and that he, Kocalidis, had told Barclay to include in his statement a conversation that was false. Kocalidis had denied in evidence that he told Barclay to falsely include in his statement that he had cautioned Deutschmann.

The jury was next reminded of Barclay’s evidence of making two statements, and of him saying that he retracted the first statement because it contained material that was untrue. Her Honour said to the jury:

“He had set out in the statement a conversation with Mr Deutschmann which in reality did not take place. In that alleged conversation with Mr Deutschmann there were, among other things, questions relating to the package. It contained a supposed admission which was untrue. The conversation was false, it didn’t happen.”[42]

Then her Honour added:
“He says, ‘I was just going to say, however, we did question him in depth. I think he did say that he passed it. I’m sure he did say he gave it to a friend.’ ‘So he admitted that in other conversations, but this particular conversation, and especially the part where it says, “OK, you’re under arrest”, that did not occur?’ ‘No.’ ‘You also suggested in the first statement that you made that you cautioned him?’ ‘Yes, that’s right.’ ‘That was completely untrue, wasn’t it?’ ‘That was true.’”[43]

[42]Transcript at pp.1200-1201.

[43]Transcript of Barclay’s cross-examination at pp. 851-852.

When the court adjourned for the afternoon, Mr Priest drew the judge’s attention to her repetition of Barclay’s hearsay about what he had been told by Deutschmann and said “But there’s nothing that can be done about it, Your Honour.” He added: “To try and correct it would just highlight it.”, to which her Honour replied: “I think in everything else that’s been put to them, I don’t think it’s going to be a significant matter, Mr Priest, but it’s a matter that you were right to draw my attention to.”

Consequently, the judge did not say anything further to the jury about Barclay’s hearsay. At 11.12 a.m. on 26 November 2003 the jury retired to consider its verdict. At 11.22 a.m. the jury was given further directions in the form of reminding them of the cross-examination of Faggetter. The jury retired again at 11.50 a.m. At 12.38 p.m. the jury requested to view two videos in evidence. This was done by playing the videos in court. At 12.55 p.m. the jury retired again. The jury requested to view “the Salmon” video in the jury room. This was agreed to at about 3.30 p.m. Next, the jury provided the judge with a list of questions.

The jury questions were difficult to understand, but they concerned: transcripts, Rodger’s re notes at 1353 p.m., all his notes. Salmon transcript. Rodger’s transcript regarding box being taken out of van by UI as per cross-examination. Barclay re everything is true except for caution and conversation following that. Barclay regarding his cross-examination.

At 3.30 p.m. the jury came into court and the judge sought to clarify the meaning of the questions. The jury foreman said that the jury wanted the passages from the transcript where Rodger was cross-examined about his notes at 1353 p.m. and also “Barclay re everything that’s true except for caution and conversation following that.” The foreman then said:

“Just where he was being asked about what he’d been asked to supposedly lie about or not lie about or whatever, just where he clarifies what he said was true or not true.”

Her Honour then clarified what the jury wanted to re-visit:
“One is Mr Rodger’s cross-examination, and the second one is Mr Barclay’s cross-examination and re-examination.”

At 3.33 p.m. the jury left the court while counsel made their submissions to the judge.

Mr Priest’s immediate concern was the jury’s interest in the Barclay hearsay evidence. Discussion followed until 4.20 p.m. when the jury was sworn pursuant to s.50 of the Juries Act 2000 and allowed to go home. On the following morning Mr Priest asked the judge to discharge the jury after her Honour said:

“Now the next matter will be controversial Mr Priest, because the next matter is, ‘Re Barclay’s cross-examination, we would specifically like to hear when Barclay said, “the caution, and the conversation following, written in my first statement is untrue, but in other conversations Deutschmann did say he already handed the box on’.”

Apparently, that morning the jury had formulated their questions in writing and they were communicated to the judge via her tipstaff. Mr. Priest immediately applied for the discharge of the jury. The prosecutor said the problem was curable by a firm direction.

After further discussion, the judge left the Bench to read R. v. Boland[44] and other authorities. When the judge returned, she ruled that it was not appropriate to discharge the jury because she considered that a clear warning to the jury would be sufficient to avoid or dispel any prejudice against the accused. She indicated that she would not read any transcript of Barclay and would give a direction of law. Mr Priest responded to the ruling by requesting a discharge of the jury based upon the delay in the judge providing the jury with answers to their questions.
[44]R. v. Boland [1974] V.L.R. 849.

The application was refused and the jury returned into court at 12.17 p.m. Her Honour the said to the jury:

“I do not propose to read to you the part of the transcript of Mr Barclay that you have requested. I am not going to read this to you as it does not constitute evidence against the accused. It does not constitute evidence against the accused, as a matter of law, and you should completely disregard it. It is inadmissible hearsay, and the law does not permit its use because it is inherently unreliable. You must decide the case on the evidence and not on matters which I direct you as a matter of law are not evidence. With respect to the portion of the transcript you inquired about, I direct you as a matter of law that this is not evidence and you should totally disregard it.”

After the judge dealt with the matter of Rodger’s evidence, the jury retired. Mr Priest then informed the judge that her direction to the jury “didn’t cure the prejudice. Indeed, on one view of it, made it worse because they can’t use Mr Barclay’s evidence for any purpose.” Her Honour replied: “So you say, Mr Priest, it doesn’t make it clear that I was referring to the part of the conversation where Deutschmann said he’d already handed the box on?.” Mr. Priest replied: “That’s it your Honour. And our fear about it is, however, that if you bring them back to give them a further direction about it, it’s just going to further highlight it. So - - - we’re constrained to ask for a discharge again.”

Following further discussion her Honour ruled: “I’m not going to highlight or fix it because it seems to me that I put it in a way that will make it clear to the jury because of the form that their question took. The form that their question took was not that they wanted read back by Mr. Barclay the parts of – or, read back by me the transcript with Mr. Barclay concerning the conversation and caution. The question was: “We would specifically like to hear when Barclay said, ‘the caution and the conversation following written in my first statement is untrue, but in other conversations Deutschmann did not say he had already handed the box on, but in other conversations’.” So it seems to me that they have to disregard that.” Her Honour’s direction, para.[25], must be considered in the context of the foreman’s question which included “in other conversations Deutschmann did say he already handed the box on”. The final sentence of her direction was limited to the portion of Barclay’s evidence where he said ‘Deutschmann did say he already handed the box on’ – with the authority of her office, the judge told the jury that that portion of Deutschmann’s evidence was inadmissible hearsay and should be totally disregarded. That is how I understand the direction.

I have found it necessary to set out at considerable length the facts concerning Barclay’s hearsay evidence. I shall not repeat the submissions of counsel for they are dealt with in the judgment of Smith, A.J.A. which I have read in draft.

Mr Priest was on dangerous ground when he cross-examined Barclay about his second statement. The second statement was given to Barclay and he was taken to “the alleged conversation that in reality didn’t take place”. Mr. Priest said to the witness:

“There’s no need to read it to us, but it is plain that it included, didn’t it, at the bottom of page 5 going into page 6 a supposed admission about what Deutschmann had done with the package.”

Barclay answered:
“Yes, it does, yes”.

This question invited Barclay to tell the jury that Deutschmann admitted to him what he did with the package. Barclay then agreed in answer to Mr. Priest’s next question that that part of the conversation was completely false. There was a risk that during cross-examination, or in re-examination, the hearsay part of the second statement might be disclosed to the jury. It so happened that the prejudicial part of the evidence came out when the witness was allowed to complete his answer to a question. The line of cross-examination encouraged the disclosure of hearsay evidence.

Mr Priest made a forensic decision not to seek an immediate direction from the judge to the jury to disregard the hearsay portion of Barclay’s evidence which was prejudicial to the applicant. That he so elected is not to be criticized. With hindsight, probably Mr Priest should have sought a direction immediately after the impugned evidence was given and the matter would have ended.

The appeal points are, first, whether the trial miscarried when the jury asked a question about Barclay’s hearsay evidence and the judge refused to discharge the jury. Second, whether the trial miscarried on account of the delay which occurred after the jury asked the question about Barclay’s hearsay evidence and until the question was answered by the direction given. Mr Priest argued that the delay was inordinate and the jury should have been discharged. Third, whether the trial miscarried because the direction given to the jury was insufficient to overcome the prejudice and/or did not make clear to the jury that Barclay’s evidence could be used by the jury after excision of the inadmissible hearsay.

The Full Court in Boland[45] considered matters relevant to the exercise of the discretion to discharge a jury without verdict. A relevant consideration for the judge to take into account was the stage the Boland trial had reached. The judgment of the Court (Adam, Little and McInerney, JJ.) was delivered by Adam, J. Adam, J. observed that:

“… much depends in every case on the nature and degree of the alleged prejudice … and whether in all the circumstances a clear warning to the jury will be sufficient to avoid or dispel any prejudice and enable a fair trial to be held. Great weight must always be given to the views on such matters of the trial judge, for he is acquainted at first hand with the conduct and atmosphere of the trial and he has had during its progress the opportunity of assessing the jury – advantages which are necessarily denied to an appellate court.”[46]

[45]R. v. Boland (supra).

[46]R. v. Boland (supra) at page 866.

Adam, J. proceeded to rely upon the principle stated in Windsor v. R.[47]. There must be evident “a high degree of need for such discharge such as in the wider sense of the word might be denoted by necessity.”
[47]Windsor v. R. (1866) L.R. 1 Q.B. 390 at 394.

In Crofts v. R.[48] the High Court considered the duty of an appellate court where the exercise of discretion to refuse a discharge is challenged upon the basis that a miscarriage of justice resulted from the refusal to discharge the jury. The question is whether the judge was bound to discharge the jury. In a joint statement Toohey, Gaudron, Gummow and Kirby, JJ. said:

“The appellate court must also decide for itself whether, in these circumstances the result of the refusal to discharge the jury occasioned the risk of a substantial miscarriage of justice. In other words, can the appellate court say with assurance that, but for the admission of the inadmissible evidence, the conviction was inevitable?”[49]

Dawson, J., in a separate judgment observed[50]:
“When a trial judge’s refusal to discharge a jury is called in question, it must be borne in mind that he or she is ordinarily in a better position than an appeal court to assess whether, having regard to the course which the trial has taken and the atmosphere in which it has been conducted, any prejudice may be dispelled by a clear warning to the jury.”

[48]Crofts v. The Queen (1996) 186 C.L.R. 427 at 441.

[49]Crofts at 441. See also Glennon v. The Queen (1994) 179 C.L.R. 1 at 8-9; Maric v. The Queen (1978) 52 A.L.J.R. 631 at 635.

[50]Crofts at 432. His Honour dissented on the question of discharge, but that does not affect the passage quoted.

When a judge has exercised his or her discretion judicially, it is unusual for an appellate court to interfere, unless something later occurred during the trial which caused a miscarriage of justice.[51]
[51]R. v. McKittrick [1982] V.R. 637 at 643.

I am of the opinion that nothing has been shown in the judge’s reasons for refusing to discharge the jury that her Honour wrongly exercised her discretion before she gave the jury a direction to disregard the Barclay hearsay. The hearsay evidence was prejudicial, if the untrue words attributed to Deutschmann: “I just gave it to a friend” implied that Brown had passed the package to Deutschmann who gave it to a friend who was never identified, but the prejudice was removed, in my opinion by the direction of the judge. The question asked by the jury did not indicate that it had reached a conclusion about the applicant’s guilt at that stage in their deliberations.

The direction was clear and appropriate, in my opinion. This Court should not assume that the jury did not act upon an instruction or direction clearly given by a trial judge with the authority of her office.[52] There was no high degree of need for the discharge of the jury and the refusal did not occasion the risk of a substantial miscarriage of justice.
[52]R. v. Teitler [1959] V.R. 321 at 325.

The delay issue is not a worthy point to raise as a further reason to discharge the jury. Very considerable discussion took place after the jury formulated its question more felicitously on the last morning of the trial and the judge retired to read the relevant authorities and prepare the direction she proposed to give to the jury. In my view there was no high degree of need to discharge the jury on account of delay.

The third application for a discharge also was unwarranted, in my opinion. I disagree entirely with Mr Priest’s observation “that didn’t cure the prejudice. Indeed, on one view it made it worse”. The direction was clear and unambiguous. It could be construed by the jury only as applying to the hearsay portion of Barclay’s evidence. A discharge of the jury was not required and no miscarriage of justice flowed from her Honour’s refusal to do so.

In my opinion, grounds 1A and 1B fail.

Grounds 5A, 5B and 5C – Recent Invention

The defence case presented in court by the evidence of the applicant was a denial on oath that he was ever involved in the importation into Australia of any ecstasy. He denied ever having in his possession a white box or package like the one referred to during the prosecution case. He admitted being quite friendly with Faggetter and Deutschmann, but said in evidence his association with them was an innocent one. He denied being given a box by Faggetter or putting a box into his car. He identified the object shown in the video Exhibit Q in the back of his car as one of his folders from university – a white-covered lever-arch type folder – and denied he had a box in the car.

The prosecutor’s cross-examination of the applicant focused upon the applicant’s knowledge on the day he was arrested that it was alleged the ecstasy was in a box in his Subaru. The applicant told the Court he never had a box in the Subaru, he had a white folder which he said he produced a few weeks before the trial, being three years since he was arrested, following the instructions of his lawyers. He told the Court in answer to further questions from the prosecutor that he told his parents about the existence of the folder some time before the trial was listed for hearing. He was unsure of the time, but agreed it could have been a year ago. Cross-examination then moved to other matters.

Associate Professor Spring was called for the defence as an expert witness in photogrammetry. His opinion was that experiments he made on the video picture, exhibit 4, did not show a box in the rear seat of the car, rather the object depicted in the video was a more two-dimensional shape.

Before the expert evidence was given, the jury had asked four questions. The fourth concerned the white folder referred to in the applicant’s evidence. As a result, by agreement, the folder was marked as an exhibit and given to the jury.

The prosecutor’s cross-examination of Professor Spring first focused on the instructions he had been given and in particular as to whether he could see a box located somewhere behind the driver’s area of the Subaru car as allegedly shown in the video-tape. He said that he was not told to see whether a white folder was in the car. The first time he had heard about a folder was the day before he commenced giving evidence. Cross-examination and re-examination-in-chief of the expert on other matters was extensive.

After the expert withdrew, extensive discussion took place about corroboration and other matters related to counsel’s addresses to the jury. The prosecutor then addressed the jury. In the course of his address, the prosecutor dealt with elements of the applicant’s evidence regarding the white folder. He said:

“in relation to the folder, the folder was produced in court and we saw that and I put it to Mr -- and it wasn't produced in evidence in chief. Why wasn't it produced in evidence in chief, that's when... I put to him it must have been a shocking incident, shocking incident, cause put yourself in Brown's shoes, put yourself in the shoes of the accused man as I put to him. You're at Uni, you're just going, you're innocent person, you're going to have lunch with your mates. You decide to go to a meeting with a person you haven't seen for some time. Catch up, and then you’re going to work at your father' s, and suddenly you're in the middle of an ecstasy import -- your arrested and charged with being involved in an importation of ecstasy. I mean, it your biggest nightmare. And he agreed that he knew almost immediately that it was alleged about him that he had a box in his car, and his defence now is that this is all a big mistake. I just had a lever-arch folder, I just had a white folder in the car. Wasn’t a box, just had a white folder. Doesn’t tell his parents for eighteen months, twelve to eighteen months after arrest, doesn’t tell his parents. Doesn’t produce the folder until three weeks ago.”

He then submitted to the jury that the applicant did not tell Professor Spring about a folder being in the car and no test was done on whether a folder, and not a box, could be seen in the Subaru. He added:
“And what’s he produced in court? An empty folder. The empty folder defence. The empty white folder.”

Mr Priest submitted to the judge that those remarks should not have been made and either he withdrew them or her Honour correct the remarks immediately or else the jury be discharged. In the discussion, I consider Mr Priest overstated what was said to the jury. He said:

“My friend has put to this jury in his final address comments about the failure to tell anyone about the folder. They are remarks that he shouldn’t make. He’s not allowed to make. Failure of anybody accused of any crime to provide that sort of detail cannot be used against them in any way that is negative to them.” (emphasis added).

I consider a fair reading of the impugned passage in the prosecutor’s final address does not mean that the prosecutor commented about the applicant’s failure to tell anyone about the folder which would include, of course, the police. The failure was in not telling his parents for 12 to 18 months about the folder and in not informing the expert witness there was a folder, not a box, in the car. The prosecutor asserted that he did not suggest to the jury expressly or impliedly that the accused had not raised the defence of the folder with the police. He was concerned to comment upon the accused’s failure to mention the folder to his parents for 12 to 18 months and to mention to Dr. Spring the possibility that the object in Exhibit 4 was a folder.

Mr Priest submitted that the prosecutor had made a submission of recent invention contrary to the principle stated in Petty and Maiden[53] and followed in Glennon[54].
[53]Petty v. R.; Maiden v. R. (1991) 173 C.L.R. 95.
[54]R. v. Glennon [1993] 1 V.R. 97 (reversed but as to the proviso, in Glennon v. The Queen, supra).

Following discussion, the judge ruled that the prosecutor had infringed the principle in Petty and Maiden. Her Honour said:

“It seems to me that it should not be suggested that previous silence about a defence raised at the trial should provide a basis for inferring that the defence is a new invention. I can’t see in the authorities that I’ve been referred to that it is restricted to a record of interview.”

When the jury returned to court at 3.06 p.m., the judge reminded the jury of the references to the white folder made by the prosecutor in his final address, and said:

“It seems a long time now that before lunch the prosecutor was addressing you for the Crown in this matter and there was some mention in his final address of the white folder and it was alleged that he had not mentioned it to his parents until 18 months later and there is some reference made to the experiment carried out by the expert. I just want to tell you something about that. I just want to tell you that the accused has a right to silence, that is the law and you must not use the exercise by him of that right to silence adversely. I tell you as a matter of law that the alleged failure to mention the white folder until 18 months later to his parents, should not be used adversely against him, because of this right to silence that I have just told you about and that is all I want to say on the topic.”

The prosecutor then continued his final address to the jury.

Before the Court adjourned for the day, Mr Priest thanked the judge for giving the direction when she did, and invited her to repeat it in the charge. He did not complain, as he now does, that the direction was given too late to deal with the prejudice caused by the prosecutor’s address.

I can find no reference in the charge to the direction, [para, 51], being repeated. When the charge was completed Mr. Priest did not draw her Honour’s attention to her omission to do so.

For convenience, I shall deal first with ground 5C. The complaint is that the trial judge failed to direct the jury sufficiently or at all as to cross-examination by the prosecutor which

(a)suggested recent invention;
(b)infringed the right to silence.

When the judge completed her charge, Mr Priest did not raise with her Honour the point raised in ground 5C and seek a direction. Mr. Priest did not seek a direction about recent invention or infringement of the right of silence during or at the conclusion of the prosecutor’s cross-examination. Having opted not to do so at the appropriate time, in my opinion, no miscarriage of justice occurred for the direction given to the jury during the prosecutor’s final address sufficiently dealt with the matters raised in ground 5A.

Ground 5B asserts that a miscarriage of justice resulted from the cross-examination of Professor Spring by the prosecutor concerning the applicant’s failure to show him the white folder (Ex 10) when he was conducting tests on the white box. In my opinion, the cross-examination was relevant to the worth of his opinion on the issue whether something resembling a box could be seen in the video picture. The suggestion being made to Dr Spring during cross-examination was that he was deprived of a critical fact, namely, information that the object in the Subaru identified by police evidence as a box was possibly a white folder. In my opinion, the cross-examination of Professor Spring did not infringe the right of silence, and was incapable of suggesting recent invention. The omission to mention to Dr. Spring that a white folder could explain the object in Exhibit 4 weakened the expert evidence.

Ground 5A asserts that a miscarriage of justice resulted from cross-examination of the applicant by the prosecutor concerning the alleged failure of the applicant to inform anyone of the existence of Exhibit 10, and in particular, such cross-examination –

(a)suggested recent invention,
(b)infringed the right to silence.

There are two main issues raised by this ground:

(1)Did the cross-examination infringe the right of silence and/or inferentially suggest to the jury recent invention?
(2)If so, did a miscarriage of justice result from the cross-examination?

As to the first issue, a careful reading of the cross-examination of the applicant reveals an infringement of the right of silence. The prosecutor asked the applicant:

“Did you tell anybody before your lawyers – did you tell anybody else before you told your lawyers about the existence of this folder?”

Answer:
“Yes.”
“Who did you tell?”

Answer:
“My parents.”
“When did you tell them?”

Answer:
“Sometime before the trial, I am not exactly sure when.”

I consider it was unlikely that the jury would understand the cross-examination to include police as persons he did not tell about the existence of the folder. I am fortified in my view because Mr. Priest, a very experienced senior counsel did not immediately object to the line of cross-examination taken by the prosecutor. The cross-examination continued for some time about other matters. The jury left the court at 10.56 am. when discussion took place about another aspect of the cross-examination. Mr. Priest did not raise the matter of infringement of the right of silence. The prosecutor had limited his cross-examination to a failure by the applicant to inform his parents about the folder for 12 to 18 months. Mr. Priest did not complain about the cross-examination until he heard the prosecutor’s address and following the judge’s clear direction to the jury, the matter rested.

Did the cross-examination of the applicant suggest “recent invention”? I consider it did suggest “invention” caused by the delay in informing his parents about the folder being in the car. But it did not, either directly or indirectly, suggest “recent invention” in not informing the police about the folder. This is a critical distinction, in my opinion. If the cross-examination had done the latter, Mr Priest would have raised an objection immediately and the matter could have been dealt with at once.

In Petty and Maiden[55] in a joint judgment delivered by Mason, C.J., Deane, Toohey and McHugh, JJ., their Honours re-stated the rule of the common law that a person who believes on reasonable grounds that he or she is suspected of having been a party to a criminal offence is entitled to remain silent. Their Honours said[56]:

”An incident of that right of silence is that no adverse inference can be drawn against an accused person by reason of his or her failure to answer such questions or to provide such information. To draw such an adverse inference would be to erode the right of silence or to render it valueless.”

[55]173 C.L.R. 95.

[56]Ibid at 99.

In a further passage in the judgment, their Honours said[57]

“That incident of the right of silence means that, in a criminal trial, it should not be suggested, either by evidence led by the Crown or by questions asked or comments made by the trial judge or the Crown Prosecutor, that an accused's exercise of the right of silence may provide a basis for inferring a consciousness of guilt. Thus, to take an example, the Crown should not lead evidence that, when charged, the accused made no reply. Nor should it be suggested that previous silence about a defence raised at the trial provides a basis for inferring that the defence is a new invention or is rendered suspect or unacceptable.”

[57]Ibid at 99.

It is trite that when an accused does not exercise the right of silence, but chooses to tell the police his version of the events and at trial gives evidence, he or she may be cross-examined about the first account and any differences between the first account and the evidence given at trial. To take an example, in an interview with the police, the accused may tell the police that he was not at the scene of the offence, or that he never had sexual intercourse with the complainant who alleged rape had occurred. If, at trial, the accused changes his story and admits being at the scene or asserts consensual intercourse took place his defence will be inconsistent with his first account and he may be cross-examined about the change and asked why he told lies to the police and whether the defence is a “recent invention”, or an “invention”. That is permissible and in no way is the right of silence infringed.[58]
[58]R. v. Glennon [1993] 1 V.R. 97 at 121 at [40]; Petty Ibid at 101 and 107.

In the present case, the applicant was interviewed by Federal police after his arrest and, save for answering formal questions as to his name, address, occupation, marital status and other inconsequential matters, he maintained his right to silence. It was never directly suggested to him by the prosecutor during cross-examination that he had raised a defence at the trial which had not been disclosed to the police when he had an opportunity to do so. What was put to him in cross-examination primarily involved not telling his parents, with whom he lived, that a white folder was in the car and not a white box the subject of the charge. There is a distinction between an “invention” and a “recent invention”.[59] What was suggested in the cross-examination of the applicant was “invention” of the white folder as an explanation for the box in the car considerably after the incident involving the box. In the passage in Petty cited above: “Nor should it be suggested that previous silence about a defence raised at the trial provided a basis for inferring that the defence is a ‘recent invention’ or is rendered suspect or unacceptable”, I consider that their Honours meant by the words “previous silence”, previous silence to the police. Such a meaning will protect the right of silence, but will not unduly restrict the Crown from testing the genuineness of a defence raised at the trial as was done in the present case. Mr Priest submitted that the words in the passage cited should be given a wide meaning. I disagree.
[59]R. v. Boland (supra) at p.875.

The question asked by the prosecutor during cross-examination of the accused [59] was innocuous. When the prosecutor went too far in his final address, his impermissible comments were dealt with firmly and adequately by the trial judge in her direction to the jury before the charge.[60]
[60]See [181] above.

In my opinion, following the direction, the trial could continue. No miscarriage of justice of the kind envisaged in Petty and Maiden occurred. I consider all the grounds of appeal fail. I am also of the opinion that the guilty verdict was not unsafe or unsatisfactory. The case for the prosecution was strong if Faggetter’s evidence was found by the jury to be reliable. The movement of the box from Faggetter to the applicant, its presence in the applicant’s car when he met Deutschmann and its absence in the applicant’s car when it arrived at Deutschmann’s house allowed the jury to be satisfied beyond reasonable doubt that the box was given to Deutschmann by Brown perhaps when the police lost sight of the cars temporarily. Both counsel informed the court the jury could have convicted if it rejected the box in the car evidence, provided the jury accepted Faggetter.

I would dismiss the application.

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[2004] VSCA 59

22 April 2004