R v Dennis

[1999] NSWCCA 23

CITATION:	Regina v Dennis [1999] NSWCCA 23
FILE NUMBER(S):	CCA 60273/98
HEARING DATE(S):	25/2/99
JUDGMENT DATE:	25 February 1999
PARTIES :	Regina v Stephen Charles DENNIS
JUDGMENT OF:	Spigelman CJ at 45; Wood CJatCL at 52; McInerney J at 1

LOWER COURT JURISDICTION:	District Court
LOWER COURT FILE NUMBER(S) :
LOWER COURT JUDICIAL OFFICER:	Howie DCJ

COUNSEL:	C.K. Maxwell QC (Crown) T.L. Buddin SC (Appellant)
SOLICITORS:	S.E. O'Connor (DPP) T. Murphy (Appellant)
CATCHWORDS:
DECISION:	Appeal against conviction upheld, conviction quashed, and new trial ordered

19

IN THE COURT OF
CRIMINAL APPEAL
60273/98
SPIGELMAN CJ
WOOD CJ at CL
McINERNEY J

Thursday, 25 February 1999
REGINA v Stephen Charles DENNIS

JUDGMENT

1 McINERNEY J: The appellant was indicted before his Honour Judge Howie QC at the Newcastle District Court on 20 April 1998 on the charge that on 8 August 1997 at Waratah in the State of New South Wales he did rob Matthew Colin Drummond of $20, and immediately before the robbery did use corporal violence on him. The charge was laid pursuant to s 95(1) of the Crimes Act 1900. The legislature provides a maximum sentence of twenty years penal servitude for this particular offence.
2 At the conclusion of the Crown case an additional charge was preferred against the appellant, one of assault with intent to rob with corporal violence. No point is taken on that being done. It was that charge of which he was ultimately convicted by the jury, being found not guilty of the original charge of robbery.
3 The facts of this case are in a very short compass. The victim had attended the Waratah Leagues Club and had been there for some considerable period of time. He had consumed a great amount of alcohol and had left the club but later returned. At about 10pm he visited the toilet. He conceded in evidence that he was moderately under the influence of liquor at that time. He went to the urinal. The appellant was standing at the urinal on Mr Drummond's left-hand side. When the appellant had finished at the urinal, according to Mr Drummond the appellant walked behind Mr Drummond and said something to him. Mr Drummond went to turn around and the appellant said, "Don't turn around". The appellant then punched Mr Drummond in the head, causing him to fall to the ground, whereupon the appellant began to kick and punch him.
4 Mr Drummond alleged that the appellant then said to him, "What have you got on you?" As Mr Drummond reached for his wallet the appellant pulled the wallet out of his back pocket and looked through it. At that point of time an employee of the club, Mr Cook, walked into the toilets. He gave evidence that he noticed the appellant about a yard away looking through a wallet. Mr Cook said to the appellant, "What is going on here?", and the appellant, who had the wallet in his hand looking through it, said, "This is not my wallet," and threw the wallet down at Mr Drummond who was lying on the floor. The appellant then left the club. The evidence of Mr Cook gave vital support to the Crown case.
5 The complainant alleged that on examining his wallet he noticed that $20 was missing.
6 Days later the police spoke to the appellant about the incident. He told the police that he was drunk and could not remember what had happened. He adhered to that version of events in an ERISP. He said:
"All I can remember on that night, I was in bed about, I was asleep about 10 o'clock. I just remember that I was in the house, in the back yard. That is all I can remember about Friday night."
7 The appellant's case was that he had been at the club celebrating a birthday. He went into the toilet area. The complainant came in and mumbled something to him, and he alleged that for some unexplained reason the complainant hit him on the right temple with an open hand, whereupon he over-reacted and punched the complainant with his left hand, causing the complainant to fall to the ground. He denied kicking or punching him whilst he was on the floor.
8 He said he observed a wallet on the floor and was not sure whether it was his or the complainant's wallet. He picked it up, saw that it was not his wallet, threw it back and walked out of the club. He admitted at the trial that he had not told the police the truth because he was worried that he was going to be charged with hitting a person.
9 The first ground of appeal is that there was a miscarriage of justice occasioned by reason of the Crown Prosecutor’s cross-examination of the appellant. The third ground of appeal is that the learned trial judge fell into error in invoking the rule in Browne v Dunn.
10 It will be convenient to deal with grounds 1 and 3 together as the issues thrown up in respect to these two grounds overlap.
11 The issue of the appellant's credit was one of, if not the most vital, issue in the case. It was all the more important because the complainant at least had some support for his version of events as Mr Cook, who was an employee of the club, walked into the urinal and observed certain things taking place which were unfavourable to the appellant’s case.
12 The Crown Prosecutor immediately attacked the appellant in cross-examination about his lying to the police. He persisted with this cross-examination which is recorded over some pages of the transcript. No complaint can be made about the Crown Prosecutor's attack on the appellant on this issue. More importantly, however, he proceeded in his cross-examination to put to the appellant that the complainant and the other Crown witness, Mr Cook, were, on the appellant's version of events, lying.
13 The Crown put to the appellant the version of Mr Cook that he observed the appellant with a wallet in both hands, looking through it. The appellant answered, "That's what he's saying." The Crown pressed him (AB74):
"Q. Yes. He's got it wrong, has he?
A. Yeah.
Q. Telling lies?
A. Must be.
Q. And Mr Drummond's telling lies of course?
(No verbal reply)
Q. That's what you're saying isn't it?
A. Yeah.
Q. And the witnesses--
A. Well, like I told you, I got hit once and I hit back once.
Q. So Mr Drummond's telling lies?
A. I didn't you know - I don't hit for no reason anybody.
Q. Mr Drummond's telling lies, that's what you're saying?
A. Yeah.
Q. And I suppose the witnesses who saw marks to Mr Drummond's forehead and the swelling to his lip, as well as the cut and swollen eye, are they telling lies as well?
A. Look, as I said, I hit the person once after he hit me.
Q. I see. And that you think would account for cuts to his left forehead, cut below his eye, swollen eye and a fat lip?
A. I don't know, must be, must have.
…
Q. You see Mr Cook caught you red-handed, didn't he?
A. No."

14 The final proposition that was put to the appellant in cross-examination was:
"Q. Well, I suggest that you are a liar, Mr Dennis. You have lied to this jury when you have suggested you didn't assault and rob Mr Drummond?
A. I didn't assault and rob. I assaulted after I got hit first, but."
15 It is submitted by Mr Buddin of Senior Counsel, who appears on behalf of the appellant in this appeal, that it was wholly improper to seek to force the appellant to state that other witnesses were lying.
16 This type of cross-examination has been the subject of recent judicial consideration. In R v Rich (unreported, CCA, 17 June 1998) where similar types questions were put to the accused, it was acknowledged by the learned Crown Prosecutor, who appeared before the Court of Criminal Appeal but not at the trial, that a line of cross-examination whereby one witness is invited to express an opinion about the truthfulness of another ought not to have been pursued. Authority given for that proposition was R v Leak (1969) SASR 172 at 173-4 and R v Praturlon (unreported, CCA, 29 November 1985).
17 In Rich it was emphasised that such questioning is an impermissible line of cross-examination, particularly where the witness is the accused in a criminal trial who is being pressed in cross-examination about aspects of the case brought against him. The Court concluded that the situation was analogous to cross-examination of an accused in a case of alleged sexual misconduct about whether he could attribute any motive to a complainant to fabricate the evidence against him, a practice condemned in a number of decisions of this Court, and more recently in the High Court in Palmer v The Queen (1998) 151 ACR 116.
18 Very relevant to the jury's consideration in this case was its assessment of the appellant's credibility. That assessment involved not only what was said in answer to each question but how the appellant said it, together with the total impact of the cross-examination. In Rich it was pointed out that one of the objects of this type of cross-examination is to rattle a witness so as to have a jury disbelieve him or her, no matter what the answers are.
19 It was pointed out by Hidden J (who wrote the leading Judgment) that there were clear benefits to the cross-examiner in the impermissible questions that were asked, quite apart from the terms of the answer, and the Court is quite unable, from the printed page, to distil the consequences of those impermissible questions; and the questions in such a cross-examination, allied to the Crown address, had a tendency to deflect the jury from a proper assessment of the Crown witnesses.
20 In R v Davies (unreported, CCA, 8 December 1994) the principle enunciated was:
"No attempt should be made by the cross-examiner to drive any witness, least of all the accused, into saying that another witness"
- in that case a detective -
"is a liar."
21 This line of cross-examination, in my opinion, was clearly impermissible. In my view it placed the appellant in the very difficult situation of attempting to fend off the allegation that other witnesses must be lying.
22 Learned Crown Prosecutors of experience should realise that such cross-examination is improper, particularly in a case such as this where the credibility of the witnesses is extremely important.
23 Tied up with this problem is ground 3, which seems, for some reason that I find difficult to appreciate, to have assumed considerable importance in the trial. Considerable time was devoted to this issue by the trial judge in his summing-up, which, in my view, was prejudicial to the chances of the appellant receiving a fair trial.
24 At the time the independent witness, Mr Cook, was giving evidence, the charge preferred against the appellant was a charge of robbery, as I have indicated earlier. It was alleged that he had stolen some $20 from the complainant. Not unnaturally, the cross-examination of Mr Cook by counsel for the appellant, on a fair reading of it, was concerned to establish that the appellant did not take any money out of the wallet whilst Mr Cook was observing the appellant.
25 Questions such as, "Did you see any money on the floor?" were put to Mr Cook. It is quite clear from reading the evidence of Mr Cook that he was not in a position to give evidence that he saw any money being extracted from the wallet. That would have been sufficient for counsel’s purposes at that point of time. I should point out that as far as I am aware there is no evidence as to how much money the complainant is alleged to have had in his wallet and/or whether he only had $20 in it.
26 The Crown seized on the Browne v Dunn point to suggest to the jury that counsel for the appellant had failed to cross-examine Mr Cook and suggest to him that he was in error in stating that he saw the appellant looking through the wallet.
27 It is submitted that this gave the Crown material from which the jury could be asked to draw an inference that the appellant’s denial in evidence that he looked through the wallet was recent invention. Thus it was submitted that he lied to the jury and to his counsel.
28 This cross-examination was very prejudicial to the appellant. It is only necessary to refer to some of the evidence (AB76):
"Q. Mr Cook's telling lies about that?
A. I don't know, you'd have to ask him about that, wouldn't you?
Q. Well, you heard him ask it here didn't you?
A. Mmm.
Q. You heard what he said, on oath?
A. Well, I can't yell out to him and he's lying when I'm in the dock, can I?
Q. You've got a barrister appearing for you haven't you?
A. Yes, yeah.
Q. You give him instructions don't you?
A. No I haven't been, he's been doing a good job by myself.
Q. He acts on your behalf?
A. Mmm.
Q. In accordance with your instructions doesn't he, you tell him the story?
A. Mmm.
Q. That's how it works isn't it?
A. Mmm.
Q. See on your version you walked out of the toilet - you rushed out of the toilet didn't you?
A. Yeah.
Q. In a bit of a hurry?
A. Yeah.
Q. But you tell us you hadn't done anything wrong? You just defended yourself when you were for no reason at all attacked by Mr Drummond, that's what you tell us happened is it?
A. Yeah, I was hit by - I was hit once”.
29 It is obvious that the alleged failure of counsel to put to the witness Cook that he was either deliberately telling an untruth about seeing the appellant looking through the wallet or that he could be mistaken resulted in a direction by the judge to the jury covering some two or three pages of his Honour's summing-up. His Honour said (SU-12):
"The Crown says that the accused should not be believed. He has relied upon the fact that the accused told lies to police and therefore the Crown submits to you that he is prepared to lie whenever it suits him. The Crown says basically that you would not find the accused a man of credit or credibility and particularly you would not accept the version that he has given you from the witness box for the reasons he has given to you during his address.
In particular, he says the accused's version is not consistent with the injuries observed on Mr Drummond by a number of people. Nor he says is it consistent with the evidence of Mr Cook as to seeing the accused look through the wallet.
Let me talk to you briefly about the evidence of Mr Cook. The Crown relied upon the fact that Mr Cook or it was never suggested to Mr Cook that he was lying about seeing the accused look through the wallet and he suggested to you that this was because the accused was changing his version, even as he was giving evidence in the witness box it seems. The submission is based upon the fact that any barrister, and a defence counsel is an example, is to ask questions of witnesses based upon what they are told by their clients, that is their instructions that are given to the barrister by a client usually through a solicitor.
Counsel are under an obligation as a matter of fairness to put to a witness that the witness is not telling the truth about a matter, if later counsel wishes to call evidence or to make a submission to a jury, to the effect that the witness was not telling the truth. In other words, the witness has to be given the opportunity to have that matter put to him by counsel if it is going to be asserted later that the witness was lying.
What the Crown says to you is that it was never put to Mr Cook that he was lying and therefore you can infer that counsel never had those instructions and that the accused therefore, when he gave evidence denying the evidence of Mr Cook that he had looked through the wallet, was changing the version that he must have given his counsel.
Mr Fitzgerald said to you in his address that he never put that Mr Cook was lying because he would not assert that Mr Cook was lying, rather that Mr Cook may have been mistaken. Well, with respect to Mr Fitzgerald, counsel is also obliged to put to a witness that the witness may be mistaken about the matter. He was obliged to put to Mr Cook if he was going to assert that Mr Cook was mistaken, that Mr Cook was mistaken in his evidence about looking through the wallet and that that never happened, to give Mr Cook the opportunity to say whether or not he might have been mistaken. Well, Mr Cook was not given that opportunity and therefore we do not know what Mr Cook would have said if it had been suggested to him that he may have been mistaken about the fact of whether or not the accused was seen looking through the wallet.
Probably Crown counsel's argument does not change very much. The Crown is simply saying, look, you can infer that this was a matter which came, if you like, out of the blue when the accused said that Mr Cook was not correct when he said that the accused was looking through the wallet because he never looked through the wallet, that that was something which was new, made up and would affect your assessment of the accused's credibility."
30 Thus it was put to the jury by the learned trial judge, adopting the Crown’s submission, “Basically you would not find the accused a man of credit or credibility and particularly you would not accept the version that he has given you”.
31 He then went on to discuss the evidence of Mr Cook and said, “It was never suggested to Mr Cook that he was lying about seeing the accused look through the wallet and he suggested to you that this was because the accused was changing his version, even as he was giving evidence in the witness box it seems".
32 His Honour went on to describe to the members of the jury what happens between a barrister and his client. He said that the barrister asks questions based on what the client tells him is the situation, usually through a solicitor, and that counsel is then under an obligation to put those questions or those matters to witnesses. His Honour said (SU-14):
"What the Crown says to you is that it was never put to Mr Cook that he was lying and therefore you can infer that counsel never had those instructions and that the accused therefore, when he gave evidence denying the evidence of Mr Cook, that he had looked through his wallet, was changing the version that he must have given his counsel."
33 In my view, that was impermissible in the circumstances of this case and very highly prejudicial to the appellant’s case. His Honour then said (SU-14):
"Mr Fitzgerald said to you in his address that he never put to Mr Cook he was lying, because he would not assert that Mr Cook was lying, rather that Mr Cook may have been mistaken. Well with respect to Mr Fitzgerald, counsel is also obliged to put to a witness that the witness may be mistaken about the matter. He was obliged to put to Mr Cook if he was going to assert that Mr Cook was mistaken that Mr Cook was mistaken and that that never happened, to give Mr Cook the opportunity to say whether or not he might have been mistaken. Well Mr Cook was not given that opportunity and therefore we do not know what Mr Cook would have said if it had been suggested to him that he may have been mistaken about the fact of whether or not the accused was seen looking through the wallet.
Probably Crown Counsel’s argument does not change very much. The Crown is simply saying, look, you can infer that this was a matter which came, if you like, out of the blue, when the accused said that Mr Cook was not correct when he said the accused was looking through the wallet because he never looked through the wallet, that that was something which was new, made up and would affect your assessment of the accused’s credibility”.
34 One wonders, of course, what the effect of the cross-examination would have been and what questions could really have been put to Mr Cook. Mr Cook was quite adamant in his evidence that he saw this man looking through the wallet. If counsel had asked, "I suggest to you that you are wrong"? I suppose the answer would have been, "No, I am not wrong." Then I suppose it could have been put, "Well, you are mistaken." It is hardly likely that the witness would go along with that.
35 This material was extremely prejudicial to the appellant’s case. The Browne v Dunn issue has been discussed in a number of cases, in particular in The Queen v Birks (1990) 19 NSWLR 677 per Gleeson CJ. Whilst accepting that the principle of Browne v Dunn did apply to criminal cases, his Honour made it very clear that it is a matter that has to be approached with considerable caution and care in criminal cases. His Honour referred to the judgment of the Chief Justice of South Australia, King CJ in R v Manulunta (unreported, CCA, 28 July 1998) where the Chief Justice said:
"I have been concerned about the prominence which the learned judge gave to these matters in the course of the summing-up. It is legitimate of course to draw appropriate conclusions from counsel's failure to put in cross-examination some matter to which his client or witnesses subsequently deposed. It is a process of reasoning, however, which is fraught with peril and should be used only with much caution and circumspection. There may be many explanations of the omission which do not reflect upon the credibility of the witness. Counsel may have misunderstood his instructions; the witnesses may not have been fully co-operative in providing statements; forensic pressures may have resulted in looseness or in inexactitude in the framing of questions. The matter might simply have been overlooked. I think that where the possibility of drawing an adverse inference is left to the jury, the jury should be assisted, generally speaking, by some reference to the sort of factors I have mentioned. Jurors are not familiar with the course of trial or preparation for trial, and such considerations may not enter spontaneously into their minds."
Gleeson CJ stated that he would respectfully adopt those views, and said:
"I would add that one particular matter which makes it difficult for jurors to use the conduct of counsel as a basis for drawing inferences of fact is that most jurors are unaware of the principles, some of which have been set out earlier in this judgment, relating to the wide discretion available to counsel as to the manner in which a trial may be conducted. It may be easy for a jury, unless given an appropriate warning, to assume that the barrister is merely some kind of mouthpiece for the client conducting the case, in close conformity with the client's directions. For reasons that I have already explained, this is far from the truth."
36 His Honour concluded that in those circumstances the appellant did not have a fair trial.
37 An examination of the material in this case has led me to the conclusion that this was an impermissible matter to be raised in the circumstances of this trial. Furthermore, as was pointed out by Mr Buddin, an examination of the cross-examination of the complainant suggests there is material which could lead to the conclusion that in fact counsel appearing for the appellant at that time did have the appropriate instructions.
38 Grounds 1 and 3 are made out.
39 A further ground has been argued concerning directions on the question of lies. I do not think it is necessary to refer to that ground in the light of the conclusion I have come to in respect to the above two grounds.
40 The question then is whether this is an appropriate case in which to apply the proviso. This was a very strong Crown case. As Mr Buddin has pointed out, however, one of the matters that must be borne in mind is that the grounds have been made out because of the attitude of the learned Crown Prosecutor.
41 In Rich, Hidden J said (at 8):
"In my view this is a very different situation from Praturlon. In that case a defence witness was being pressed with the contrary accounts of Crown witnesses. Here, as I have observed, it was the accused himself being confronted with the aspects of the evidence against him. If he were innocent, how could the appellant have responded to questions about the truthfulness of Crown witnesses, let alone to the suggestion of a conspiracy between them?"
42 In another recent case of R v Gilbert (unreported, CCA, 10 December 1998) Grove J referred to the remarks of the then Chief Justice in R v Praturlon, (unreported, 29 November 1985) where it was held that there had been no miscarriage of justice. Grove J said (at 11):
"It should be observed, however, that Street CJ observed that if he felt there was the slightest basis for concern that the appellant may have suffered any prejudice as a result of the impermissible line of cross-examination he would unhesitatingly have proposed the appeal succeed. If I may borrow the Chief Justice's expression, in this case, in the circumstances particularly as the impermissible cross-examination was directed at the appellant where the central issue involved oath against oath, I would have more than slight concern."
43 The feelings expressed by the judge in that case are similar to the feelings that I have about the manner in which this trial was conducted. I am concerned that the appellant may have suffered considerable prejudice as a result of the two matters I have referred to and deprived of the right to a fair trial. In my view, in those circumstances, it is not a proper case for the exercise of the proviso.
44 I would propose therefore that the appeal against conviction be upheld, that the conviction recorded against the appellant be quashed, and that a new trial be ordered.
45 SPIGELMAN CJ: I agree. I only wish to add two additional matters. First, with respect to the cross-examination of an accused on the subject of putting to an accused that other witnesses have lied, there is now a significant body of authority on this subject. Justice McInerney has made reference to the judgment of Rich NSW CCA 17 June 1998. The matter is reinforced in the case of Gilbert NSW CCA 10 December 1998. Both Rich and Gilbert were strong Crown cases, in each of which the trial miscarried by reason of the conduct of the Crown Prosecutor in following such cross-examination. Such a line of cross-examination should now be understood by Crown Prosecutors to be extremely dangerous, as the Court has previously indicated. In my opinion it is also usually puerile. However, it is the danger which is of concern - the danger the accused did not get a fair trial by reason of such conduct.
46 With respect to the second matter to which Justice McInerney has directed attention, namely the Browne v Dunn point, the same situation often applies. It is a submission often put with strength by Crown Prosecutors and on occasions adopted by trial judges in the summing-up. In this case, as in other cases, including the cases to which Justice McInerney has referred, the degree of prominence given to this issue is such as to undermine the requirements of a fair trial.
47 In the present case, some three pages out of an eighteen page summing-up were devoted to this question. This was based on the shaky assumption of perfection in the conduct of counsel appearing on behalf of the accused below. This is a dubious assumption, as shown in the extracts from King CJ in the case of Manulunta, as adopted by Gleeson CJ in Birks, to both of which Justice McInerney has referred.
48 In the present case the dangers involved in this kind of cross-examination were highlighted by the questions and answers of Mr Cook, the witness who came in to observe the event:
"Q. Did you see Mr Dennis taking anything from the wallet?
A. No.
Q. When you saw Mr Dennis did he have his hands in his pocket, in his shirt pocket, if he had one?
A. No, he was--"
and then the cross-examiner was interrupted, and after intervention by his Honour Mr Cook answered as follows:
"A. He just had the wallet in his hands looking through it so both hands were occupied with that.
Q. And you didn't see him remove anything?
A. No, no."
49 At the time that this cross-examination occurred, the only charge with which the accused was then confronted, and with which his counsel was dealing, was a charge involving the removal of $20 from the wallet. At this time, accordingly, it was to the advantage of the accused for Mr Cook to have given the evidence that he did: observing Mr Dennis with the wallet in his hands and looking through the wallet, but that whilst so observing him he did not see him remove anything. This, one would have thought, would have been powerful evidence that he did not in fact take $20 from the wallet.
50 In those circumstances it is understandable that the cross-examiner did not pursue the question of whether or not Mr Cook may have been mistaken about the fact that the appellant was in fact looking through the wallet. It was only later when the alternative charge was introduced that the issue of whether or not the accused was looking through the wallet became of considerable significance.
51 It does not appear that any objection was taken at the trial to the course of conduct of putting the alternative charge to the jury, notwithstanding the evidence to which I have referred. Be that as it may, the circumstances were such that it was even more than usually inappropriate for a trial judge to sum up at length on a dubious inference from the conduct of counsel. In my view, this reinforces the conclusion that Justice McInerney has come to on both the substantive question in the appeal and also on the inapplicability of the proviso.
52 WOOD CJ at CL: I agree with the reasons and the orders proposed by Justice McInerney. I also agree with the reasons and the additional observations of the Chief Justice.
53 SPIGELMAN CJ: The orders of the Court will be as proposed by Justice McInerney.

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