R v L, GA

SUPREME COURT OF SOUTH AUSTRALIA
(Court of Criminal Appeal)
R v L, GA
[2015] SASCFC 166
Judgment of The Court of Criminal Appeal
(The Honourable Justice Sulan, The Honourable Justice Peek and The Honourable Justice Lovell)
18 November 2015
CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST THE PERSON - SEXUAL OFFENCES - RAPE AND SEXUAL ASSAULT - GENERALLY
CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST THE PERSON - SEXUAL OFFENCES - INDECENT ASSAULT AND RELATED OFFENCES - GENERALLY
CRIMINAL LAW - APPEAL AND NEW TRIAL - PARTICULAR GROUNDS OF APPEAL - CONDUCT OF TRIAL JUDGE
The appellant was convicted of two counts of indecent assault and one count of rape. He was acquitted of one count of rape, one count of unlawful sexual intercourse and one count of indecent assault. The alleged victim was the daughter of a family friend of the appellant.
During the course of the trial, the trial Judge intervened in the examination-in-chief and cross-examination of a number of witnesses, including the appellant.
The appellant appealed on the ground that the interventions of the trial Judge were excessive, resulting in an unfair trial.
Held, allowing the appeal (the Court):
1. The interventions by the trial Judge were so numerous and extensive that the appellant was not afforded a fair trial.
2. The appeal is allowed. The convictions are set aside, and a re-trial is ordered.
Michel v The Queen [2009] UKPC 41; Ratten v The Queen (1974) 131 CLR 510; R v MacBeth [2008] SASC 71; Randall v The Queen [2002] Cr App R 17, discussed.
Dietrich v The Queen (1992) 177 CLR 292; Jago v District Court (NSW) (1989) 168 CLR 23; Galea v Galea (1990) 19 NSWLR 263; Doggett v The Queen (2001) 208 CLR 343; Whitehorn v The Queen (1983) 152 CLR 657; Jones v National Coal Board [1957] 2 QB 55; R v Mawson (1967) VR 205; R v Esposito (1998) 45 NSWLR 442, considered.

R v L, GA
[2015] SASCFC 166
Court of Criminal Appeal: Sulan, Peek and Lovell JJ
THE COURT
Overview

It is fundamental to our system of criminal justice that persons who plead not guilty receive a fair trial. The trial of this matter was listed to last three to four days. The allegations were that the appellant sexually molested AS, the daughter of a family friend. AS was aged between 13 and 16 when the alleged abuse occurred. The prosecution allegations, whilst serious, were straightforward. As often occurs in cases such as this, the prosecution case depended almost entirely on the reliability and credibility of the complainant.
Both the prosecution and defendant were represented by experienced and competent counsel. On its face the case looked relatively straightforward, particularly so in the hands of competent counsel. A trial judge could have expected to have little role to play other than summing up the case to the jury. Unfortunately that did not occur. During the course of the trial, the Judge intervened on 180 occasions and asked 438 questions. Although the sheer number of questions asked by a judge may not of itself be determinative of the judge’s attitude about the case, it can provide some insight into whether the judge may have conveyed an opinion about the merits of the case.
The appellant was convicted of two counts of indecent assault and one count of rape. He was acquitted of one count of rape, one count of unlawful sexual intercourse and one count of indecent assault. The appellant complains that the persistent interventions of the trial Judge deprived him of a fair trial.
It is not possible to attempt to list exhaustively the attributes of a fair trial as the issue can arise in an infinite variety of situations.[1] What does and what does not remove the quality of fairness from a trial must proceed on a case-by-case basis and involves essentially an intuitive judgment.[2] It is well recognised, however, that it is the principle of a fair trial which determines whether or not a judge has passed the limits of permissible questioning or comment.[3] It is, of course, necessary to avoid being too precious about judicial intervention.[4] However, no matter how strong the evidence, if there is a failure to afford an accused a fair trial, the appeal court is duty bound to set aside the conviction and order a re-trial.
[1]    Dietrich v The Queen (1992) 177 CLR 292 and 300.
[2]    Jago v District Court (NSW) (1989) 168 CLR 23 at 57.
[3]    Galea v Galea (1990) 19 NSWLR 263 at 281-282.
[4]    James Spigelman, ‘The Truth Can Cost Too Much: The Principle of a Fair Trial’ (2004) 78 Australian Law Journal 29.
The adversarial system is said to “reflect values that respect both the autonomy of parties to the trial process and the impartiality of the judge and jury”.[5] The judge’s role is to hold the balance between contestants, without entering the arena so as to show partisanship for either side.[6] As a criminal trial is an adversarial process between the prosecution and defence, and not an investigation by the trial judge, examination and cross-examination for the most part are the responsibility of counsel.
[5] Doggett v The Queen (2001) 208 CLR 343 at 346.
[6] Whitehorn v The Queen (1983) 152 CLR 657 at 682; Jones v National Coal Board [1957] 2 QB 55 at 63-65. See Russell Boyd and Anthony Hopkins, ‘Cross-examination of Child Sexual Assault Complainants: Concerns about the Application of s 41 of the Evidence Act‘ (2010) 34 Criminal Law Journal 149.
The judge’s role is to be impartial and to ensure that the trial is conducted fairly and in accordance with the rules of evidence. The judge is not merely a silent observer only deciding questions of law and the admissibility of evidence. A judge is entitled and, in some circumstances, obliged to clear up ambiguities in the evidence, to pursue matters which the evidence of the witness has left vague and, on occasions, to put questions which should have been posed to clarify relevant matters. However, given the trial judge’s ability to influence the jury, the judge must be careful if questioning a witness to avoid indicating through those questions, tone or demeanour that the judge has a view of the merits of the case or the credibility of a witness.
The trial judge must also be careful not to intervene and make it difficult, if not impossible, for counsel to perform his or her role in putting forward the defence case either through cross-examination or, if leading evidence-in-chief, from the defendant. A trial judge must bear in mind that participation in questioning an accused that may damage the accused’s credibility could have the effect of enhancing the credibility of the prosecution witness or witnesses.
We now turn to assess the evidence in the case.
Background
The appellant was aged in his 40s when the offending occurred. At the time AS gave evidence, she was 18 years of age. At the relevant times, AS lived with her mother, KS. Her mother was in a relationship with GF, who did not live at their home, but was a frequent visitor and often stayed overnight. The appellant and KS had been friends for over 20 years. The appellant was also a regular visitor at KS’s home, and he was treated as a trusted friend. From time to time, the appellant stayed overnight at KS’s home. He often ate meals with KS and AS. On occasions, he stayed on to watch movies. On other occasions, AS would stay at the appellant’s home in the Adelaide Hills where he lived with his parents. On occasions, a friend of AS, JE, would accompany AS and stay the night at the appellant’s home.
The prosecution case was that the appellant was such a close friend of the family that it was not unusual for him to hug and cuddle AS. The prosecution alleged that this affectionate touching developed beyond innocent conduct to inappropriate conduct. It commenced with the appellant touching AS on her breasts and then, on two occasions while AS was asleep, she awoke to the appellant having inserted his fingers into her vagina. The alleged inappropriate sexual conduct took place at both AS’s home and at the appellant’s home.
JE gave evidence that on an occasion when she stayed with AS at the appellant’s home, he gave each of them a small, personal massager as a gift. The appellant gave AS other gifts, including underwear, corsets and a G-string. On the occasion when he gave AS a corset, he also gave one to her mother, KS. These items were later returned to the appellant by GF. The gifts, in particular the corsets, were discussed in detail during KS and AS’s examination-in-chief and cross-examination. They were also the subject of extensive evidence of the appellant.
Turning to the counts which the jury found proved. The first count occurred at AS’s home at Woodville Park between 1 January 2011 and 1 August 2011. AS was aged about 13 years. The appellant had slept the night and was lying on a mattress in the dining room. AS was walking to the kitchen to get some breakfast when the appellant asked her for a hug. She leaned over him to give him a hug. The appellant grabbed her by the wrist and was tickling her. He then placed his hand inside the front of her shorts, outside her underwear, and rubbed her vagina in a circular motion. AS gave evidence that she was frightened and confused and was attempting to get away. She eventually released herself and crawled into the lounge room. AS gave evidence that GF was looking at her through the kitchen door.
GF gave evidence that he had observed the appellant and AS play-fighting, wrestling and massaging one another. He described the conduct as “just innocent, playful”. In examination-in-chief, he was not asked about any specific occasion upon which he had observed AS crawling on all fours into the lounge room. When GF was cross-examined, the trial Judge asked the following questions:
QBefore you leave we’ve heard some evidence from [AS] that one night when [the appellant] stayed over whilst she was in the dining room she said that she moved from the dining room and was crawling from the dining room into the lounge room. Do you have any memory of seeing her crawling from the dining room on the floor into the lounge room.
AYeah, she did that on many occasion [sic] because she hung out in the dining room and that’s where she was on the computer a lot of the times and that’s when we were in with the TV in the lounge and she would go between spaces just casually.
QAre you saying that she would crawl on all-fours between the dining room and the lounge room.
AYes.
QSo that wasn’t something that was unusual.
ANo, well, she was just running amok as a kid, kind of just sliding across the floor, kind of just mucking around really. It was just something she did.
This is one example of the trial Judge introducing a topic which had not been explored in examination-in-chief or in cross-examination.
During examination-in-chief of the appellant, the trial Judge, referring to the incident, asked the following questions:
QDid she scramble away in the manner in which she described it to the jury.
ANot in the manner she described it. I was tickling her as she was trying to get away.
QShe said that she was on all fours and scrambled from the lounge room into the dining room –
AShe scrambled.
Q– dining room into the lounge room.
AShe scrambled from the lounge room into the kitchen, which is where [GF] walked past, looked down, raised an eyebrow, but this was tickling her and having her scramble away was a common thing, your Honour.
This is an example of the trial Judge raising the topic during counsel’s examination-in-chief.
The second offence of which the appellant was convicted occurred about two months after the incident earlier described. The appellant was sleeping on a mattress in the back room of the house. He had asked AS to wake him up so that they could watch movies together. She went into the room. He asked her for a hug. According to her, when she leaned down to hug him, the appellant placed his hands around her waist and then started to caress her body, hips and thighs, before touching her left breast with his hand over her clothing in a groping motion. The appellant denied that he had touched her on her breast in a sexual way. He said it was not unusual for them to hug, but there was no sexual contact between them. In cross-examination, the appellant denied groping AS’s breast.
The charge of rape of which the appellant was convicted occurred a month or two after AS had turned 16. The offence occurred in the early hours of 12 December 2012 when the appellant, AS and her mother, KS, were watching a television series titled “Lost Girl”. AS gave evidence that, at about 2.00 am, her mother had gone to bed. The appellant was giving her a foot and back massage. She felt tired and went to her bedroom to sleep. She assumed that the appellant would leave the house to go home. She said that she fell asleep in her bed. Her next memory was waking up and feeling a finger inside her vagina. She said she kicked out and rolled over. Shortly thereafter, she heard the appellant leaving the house and heard his car start up.
The appellant gave evidence that he recalled the occasion. He said that, after KS went to bed, he was massaging AS’s back while she was on the couch. She started to fall asleep, so he offered to massage her until she fell asleep whilst she lay on her bed. Whilst he was doing that, AS fell asleep. He then decided to drive home.
KS gave evidence that she observed the appellant giving AS massages on about half a dozen occasions. The trial Judge asked the following questions:
QAgain at that time, in your mind I take it, was there anything that you considered to be inappropriate about the massages he was giving your daughter.
ATo start with, no. I did walk in on one time where he was actually massaging her inner thighs and at that point in time I got [AS] to go to bed because I found that extremely inappropriate.
The prosecutor then asked a number of questions generally about the occasions upon which KS had observed the appellant massaging AS. KS said it started when AS was about 13, and the last occasion she saw it was when AS was 16.
KS spoke of the occasion when she, the appellant and AS were watching “Lost Girl”. She gave evidence that she was very tired and she fell asleep. She was asked:
QAt any stage when you were in the lounge room on this evening, did you see [the appellant] massage [AS].
AIt was later on that evening because I’d actually fallen asleep from the medication and it was when I got up that I walked out and saw that he was massaging the inside of her thighs.
QIs that the occasion that you mentioned earlier in your evidence when you talked about the inside of her thighs.
AYes.
HIS HONOUR
QSo when you woke up which room were you in.
AIn my bedroom.
QSo you previously had been in the lounge room watching the television series.
AYes.
QYou took your medication and because that has an effect that makes you feel somewhat drowsy and dizzy, you went and laid down in your bedroom.
AYes.
QWhen you left the lounge room, seated to your right was your daughter in one of the red armchairs.
AYes.
QAnd on the couch next to her was [the accused].
AYes.
QWhen you woke up from your sleep and made your way from your bedroom into the lounge room, what did you see occurring in the lounge room.
A[AS] was lying face down on the couch. [The accused] was on his knees in front of the couch and he was massaging her inner thighs.
QWhen you saw that, did you react in any way; did you say anything to [the accused] about what he was doing to your daughter.
ANo, I just went and got [AS] and put her to bed because, like, I just – it felt wrong but my head was all fuzzy and I just wanted to get her out of there.
QDid you take her to her room.
AYes.
QAnd when you did so, where was [the accused].
AIn the lounge room.
XN
QAfter you took [AS] to her room, did you see what [the accused] did.
AHe was packing his stuff up to leave.
QWhat did you do.
AI went back to bed because I was having trouble standing.
QHad [the accused] gone by the time you went back to bed.
ANo, he was still there.
HIS HONOUR
QDo you know when [the accused] left that night.
AI woke up with a really strange feeling and I heard the front door go and [the accused’s] car start. I’m not sure what time this was. I know it was late and when I went and checked on [AS], she wouldn’t – I knocked on her door but she wouldn’t let me in the room, but she said she was okay.
This is an example of the trial Judge taking over the examination of a witness. It demonstrates that the Judge, having obtained an answer, then asked further questions about that answer. It is clear that KS’s evidence about the incident was inconsistent with the evidence given by AS and by the appellant.
The prosecutor attempted to identify the occasion. She asked the following questions:
QOn that occasion when you got up and checked on [AS] did you see [the appellant].
ANo.
QCan I just take you back again to something you mentioned a moment ago, if I’ve got the chronology wrong, please correct me, but the occasion that you took your medication and went to bed.
AYep.
QWhen you first left that room and went to bed, what was [the appellant] doing when you left the room.
AHe was lying on the couch watching the TV.
QWhat was [AS] doing.
AShe was sitting in the red chair watching the TV.
The Judge then asked:
QJust so we are all clear about the day that your [sic] giving evidence about, this is the very day, is it, that [the appellant] came around to your house with the corset sets for you and your daughter.
ANo, we gave evidence, we went to the police, it was after that.
QI thought your evidence earlier – I could be mistaken about this – was that [the accused] said he had to go to the post office to pick something up.
MS DUNLOP: [The accused].
HIS HONOUR
Q[The accused] had to go to the post office to pick something up.
AYeah, he did that on the way from the hospital to the house.
QI thought your evidence was – and I could be mistaken about this – that you checked and the day that you and [the accused] each went to the Royal Adelaide Hospital was 11 December 2012.
AYes.
QSo that is the day that he came around with the corset sets.
AYes.
QAnd then stayed the afternoon and you watched the TV series Lost Girl.
AYes.
QAnd then you took your pain medication and because you can feel dizzy when you take the medication, you were feeling tired, anyway you went to bed.
AYes.
QAnd everything else you told us about.
AYes.
QSo we are talking then about 11 December 2012.
AYes, I’m pretty sure it all happened on the same day. I may have it confused, I’m not 100% sure.
The Judge’s intervention on that occasion went beyond merely attempting to clear up an ambiguity. Having obtained an answer, he then asked questions on that answer. It is an example of the Judge taking over examination‑in‑chief of a witness.
The appeal

The grounds of appeal are that the trial Judge’s questioning of the appellant undermined the proper presentation of the appellant’s case and gave an appearance that the Judge was biased against the appellant. It is contended that the fairness of the appellant’s trial was, therefore, compromised.
In argument, counsel also submitted that the trial Judge’s questioning of the complainant and other witnesses was excessive, resulting in the trial being unfair.
Counsel relied on a schedule which identified that, during AS’s examination-in-chief, the trial Judge intervened on 66 occasions and asked 105 questions. In her cross-examination he intervened on 20 occasions and asked 39 questions. In re-examination there was one intervention with one question.
During the appellant’s examination-in-chief, the trial Judge intervened on 23 occasions and asked 48 questions. During the appellant’s cross-examination he intervened on 41 occasions and asked 145 questions. The Judge also intervened on a number of occasions when other witnesses were giving evidence.
Counsel conceded that merely identifying interventions and the number of questions the trial Judge had asked did not, in itself, support the contention that the trial was unfair. However, it did give some indication that the Judge had gone beyond acting in his role as a Judge and that he had entered the arena of counsel. Counsel for the appellant submitted that the Judge had dropped the mantle of a judge and assumed the role of an advocate. A number of the examples of the Judge’s intrusion into counsel’s role were the subject of counsel’s submissions.
We propose to deal with some of the topics of which the complaint is made.
Gifts
In opening the case for the prosecution, counsel told the jury that they would hear evidence from KS and GF. She said:
Both of them will give you some background information about when it was and how often [the accused] came to [KS’s] house, what kind of things he did whilst he was there and about some gifts that he gave to [AS] over that period of time, one being the personal massager that they saw when she brought it home and one being some underwear, some corsets and G-strings that the accused gave, one to [KS], the mother, and one to [AS]. You will hear from [GF] that he returned those items to the accused in early January of 2013 and from [GF][7] and [KS] and [AS] you’ll hear that [AS] didn’t see the accused again after that period of time.
[7] Note: In the transcript of proceedings, the prosecutor made reference to the accused giving evidence. However, in the context, it is clear that the reference should have been to [GF] and not the accused.
The circumstances under which the appellant gave the various presents to AS were the subject of much evidence in the case. The prosecution relied upon the evidence to demonstrate that an inappropriate relationship existed between the appellant and AS, and that the gifts were given to make AS more comfortable with her sexuality, therefore supporting the prosecution case that the appellant had a sexual interest in and an attraction towards AS. The appellant also gave AS and her friend, JE, instruments described as “mini massagers”. The appellant denied giving the mini massagers to the young women. The appellant’s view was that they could not be used as a sex toy.
In summing up, the trial Judge told the jury that if they were satisfied that the appellant had given these items to AS because he was sexually attracted to or interested in AS and, because of that he was willing to act on that attraction or interest, then the jury could use that finding in determining whether it makes it more likely that the appellant committed any of the offences charged.
The giving of the gifts was an important part of the prosecution case against the appellant.
In examination-in-chief, AS gave evidence of an occasion when she and JE stayed at the appellant’s home. It was a weekend. On the Sunday morning before the appellant left to go to work, he told AS that he had left a gift on the table for her and for JE. She said that the appellant had left two boxes on the table. When the appellant left for work, JE was still asleep. The prosecutor then asked the following questions:
QAfter she woke up what did you do about that gift he’d told you about.
A[JE] went in and had a look and I followed her.
QWhat did you find.
AA small yellow and pink box.
QCan you describe the size of the box.
AAbout 16 cm.
QWhat about the other direction, so 16 cm one way, how big the other way.
AA couple of inches.
The trial Judge asked the following:
QHow many boxes were there.
ATwo.
QOne for you and one for [JE].
AOne for [JE].
XN
QWere the boxes the same.
AYes.
QAnd you said I think that they were coloured, I think you said yellow and pink, is that right.
AYes.
QWas there anything else on the boxes.
AA Chinese woman in the corner smiling.
HIS HONOUR
QWas one box yellow and one box pink or were they both a combination of yellow and pink.
AThey were both yellow and pink. They also had Chinese writing on them.
XN
QFrom just looking at the box were you able to tell what was inside.
ANo.
QAt some stage did you or [JE] open the box.
A[JE] opened hers.
QDid you see what was inside.
AIt was about a 15 cm long cylinder with like sharp triangular pronged like teeth at the end.
QWhat colour was it.
APink.
HIS HONOUR
QDid you know what it was when you saw it.
ANo.
XN
QYou said it was a cylinder, perhaps with reference to coins, for example, can you say whether it’s most similar in size to a 5, a 10, a 20, a 50 cent coin.
ABetween a 20 and a 50.
QWas it the same width all the way up and down.
AYes.
QAnd you described some sharp teeth, is that right.
AYes.
QWhereabouts on the item you’ve described were the teeth that you were talking about.
AAt the end. It was like a cap.
HIS HONOUR
QWhat did it look like to you.
AI thought it was some type of massager, but I wasn’t sure.
XN
QCan I ask you to have a look, I think there is a diagram that you should have over there of the item that you’re describing. Have you got that in front of you.
AYes.
QIs that a drawing that you’ve done of the item that you’ve been describing.
AYes.
EXHIBIT #P6 DRAWING OF ITEM IN BOX GIFTED BY [THE ACCUSED] TENDERED BY MS DUNLOP. ADMITTED.
The prosecutor asked whether either AS or JE twisted the knob. AS replied that they did and the implement vibrated. The trial Judge asked the following questions:
QDid you take hold of this vibrating object.
AI did have a look at it.
QDid you hold it whilst the yellow twisted top was turned so that it vibrated.
ANo.
QHow did you know that it vibrated.
A[JE] turned it on.
QCould you hear it vibrate or could you see it vibrate.
ABoth.
QHow long was the object.
AAbout 15 cm.
QAnd its diameter was between a 20 cent and a 50 cent coin.
AYes.
The prosecutor asked a series of questions about the massager. She asked AS whether the appellant had ever given her a massager before the occasion of which she had been speaking. She said he had and described it as “arched and purple and it had two balls either end”. The Judge asked:
QDid it look anything like the vibrating object that was in the box that [JE] opened.
ANo.
AS said that that item had been given to her on an earlier occasion and it did vibrate. The trial Judge asked:
QDid your mum know about the other personal massager, the purple one that was curved. Is that a ‘yes’.
AYes.
QHad you ever used that purple massager yourself.
ANo.
QHad [the accused] ever used that purple massager on you.
ANo.
QAre you able to say whether he gave you that massager before the occasion you talked about where he’d touched you inside your pants in the dining room of your house.
AI’m not sure.
QIt’s something that your mother was aware of and saw for herself.
ASorry, I am pretty sure I showed it to her when I received it.
The prosecutor asked whether the witness was able to say how big the purple massager was. She indicated. The following evidence was given:
HIS HONOUR
QAbout 15 cm.
AAbout 15 cm long.
QYou said it was curved and had two balls at either end.
A– curved like an arch and had two vibrating balls at either end.
XN
QWhen [the accused] gave you that purple curved vibrating massager, did he tell you what it was or why he was giving it to you.
ANo, he just said it was a massager.
XN
QDid [the accused] ever give you massages.
AThe purple one and the pink one are the only ones I received.
HIS HONOUR
QI think what Ms Dunlop is asking, did he ever give you a physical massage. Did he himself ever massage your body.
AYes.
XN
QOnce or more than once.
AMore than once.
QAre you able to say how many times.
ANo.
QYou’ve given evidence about how much [the accused] would come to your house.
HIS HONOUR
QSorry, before you complete your question, Mr Dunlop, whereabouts would he massage your body.
AMy back and shoulders, or my feet.
XN
QYou’ve given evidence about how much [the accused] would come to your house. Are you able to say what percentage of the time he would come to your house he would give you massages.
AAbout 60%.
QSo it’s fair to say it wasn’t unusual for him to do that.
ANo.
QYou said he massaged you on our back, shoulders and sometimes your feet; is that right.
AYes.
QWhen he was giving you those massages did that take place at your house or – at your house.
AYes.
QDid he ever give you a massage on your back, your shoulders, or your feet at any other location.
ANo.
QWhen he would massage you at your house, who was present while he would be doing that.
AAnyone who was in the room. It wasn’t something that I thought was unusual.
HIS HONOUR
QWhereabouts in your house would these massages take place.
AA lot in the lounge room.
XN
QWere there ever occasions when [the accused] would massage you where it was just you and him in the room.
AYes.
QDid you ever massage [the accused].
AYes.
QAbout how often would he visit that you would massage him.
ARarely.
QAnd how did it come to be that you would give him massages.
AHe would complain that his back was sore from driving all day.
QAnd after his complaint what would you do.
AI would rub his back.
QWas that something that you instigated or he instigated or someone else.
ASometimes he would ask me for a back rub and sometimes I would offer.
QIf we can go back to the occasions when he would massage your back and your shoulders, what were you wearing on occasions when he would do that.
AI was fully clothed.
QI know we’ve gone off on a bit of a tangent, but I want to come back to the evidence you given [sic] at the time you stayed at [the accused’s] house with [JE].
AYep.
QWhen you left [the accused’s] house, what did you do with the massager that he had given you on that occasion.
AI showed my mum.
HIS HONOUR
QBefore you arrived home, when [the accused] returned home from work, this is after you and [JE] had opened one of the boxes in which this vibrator was, did he say anything to either of you when he returned home from work about the gift that he had left for you and [JE].
ANo
QDid either you or [JE] say anything to him about the vibrating gift that he had left for each of you.
ANo.
The witness gave evidence that she showed the massager to her mother who took it away. The passages to which we have referred demonstrate not only the number of questions asked by the Judge, but also how he took over counsel’s role and introduced topics which had not been introduced by counsel.
Corsets
AS was asked about any other gifts. She said:
AHe’d give me stuffed animals, but after the last incident, it was around Boxing Day, he had a party to go to a house on my street and he’d bought corsets online, they were apparently really cheap and he wanted to give them to me and my mum.
The Judge asked:
QSorry, what did he give you.
AA corset.
XN
QCan you describe what you mean by ‘corset’.
AThose pieces of material that go around your waist with the built-in boning and bra with straps that lace up at the back.
QWas there anything that came with the corset.
AA G-string.
QCan I ask you where you were when you received that item.
AMum and I were in the lounge room together.
QWas anyone else at home apart from you, your mum and [the accused].
ANo.
HIS HONOUR
QJust tell us how it came about that he was at your house and he gave you the corset with the G-string; just tell us what happened.
AHe said that he bought us a gift and we wouldn’t believe how cheap he got it. Mum got the bag off him and took it out and was kind of excited because that’s her style of clothing when she goes out.
QWas there one set for you and one set for your mother.
AYes.
In answer to the prosecutor’s questions, AS said that she and her mother had tried on the corsets. The Judge asked:
QWhat did you do when you and your mother put the corsets on.
AShe said to go show [the accused] and thank him and so I did.
QWhereabouts in your house did you show [the accused].
AHe was still in the lounge room and mum and I got changed in her room.
QDid you walk into the lounge room wearing a corset.
AYes.
QWhat about your mother.
AShe came in wearing her corset and I quickly left and got changed because I didn’t feel comfortable.
AS gave evidence that eventually GF returned the corsets.
During cross-examination of AS, the trial Judge asked a number of questions. The topic of the corsets was the subject of cross-examination. We set out below the questions asked by counsel and those asked by the Judge during counsel’s cross-examination:
QAll right. Can I just finish off by asking you about the corsets. [The accused] sent some emails about the corsets in advance, didn’t he, he showed you some corset dresses that he was thinking of buying.
AYes.
QAnd then he bought your mother and you corsets which were like dresses.
ANo, he did buy us corsets but they were not like dresses.
QPerhaps that’s not very accurate the way I’ve put it, but did he buy a red corset and a blue corset.
AYes.
QAnd it was meant that one was for you and one was for your mother.
AThat’s correct.
QWas there a third costume, a pirate outfit.
AYes, for my mum, it was silver.
QAnd your mum accepted the pirate outfit.
AThat’s correct.
QAnd your mum likes dressing up sometimes.
AYes.
QAnd a few years ago your mum’s style of dress might have been described as Goth or Gothic.
AYes.
QShe sometimes wore Goth clothing.
AYes, that was the style of what she liked to dress in.
QAnd again I’m not an expert in this area but we are talking about fairly dark or black clothing sometimes with a lining or some colour.
AYes, corsets are also considered part of the Gothic trend which was why mum was interested in them.
QAnd there are music groups and rock groups like The cure that attract an audience that wear Goth outfit.
AYes, I guess.
HIS HONOUR:     The Cure Mr Crowe?
XXN
QAnd your mum was into that style of dress.
AYes.
HIS HONOUR:     Mr Crowe, the Cure were around in the ‘80s. Are they still around?
MR CROWE:      Yes, they are.
HIS HONOUR:     Still doing Goth music?
MR CROWE:      Goth is older, your Honour.
XXN
QSo what I’m suggesting to you is that it wasn’t certainly unusual dress or attire for your mother to receive, was it.
AYes.
QYou agree with that.
AYes.
HIS HONOUR
QIn any event, you agree that [the accused] sent you Facebook images of the corsets that he was thinking about buying for you and your mother.
AI am not sure if he sent me pictures of the corsets he was thinking of buying but he did mention them in a Facebook Chat.
QSo really they didn’t come as a surprise when –
ANo.
Q– he turned up with them.
ANo.
XXN
QI think I suggest this to you earlier, that what [the accused] did was he sent through some links via Facebook so you could click on and see the dresses on your Facebook page.
AYes.
QAnd that’s when you responded that it was a lovely dress.
AYes.
QIn other words, it wasn’t that he’d given you a dress at that stage.
AIt was on link that he had sent me.
QI see.
HIS HONOUR
QWhen you open that link did that show a corset-style dress.
AIt was a love-heart-cut dress, no sleeves, almost like a tutu-styled dress part that puffed out to my memory.
XXN
QThat’s a, with respect, good description. Could I ask you to look at the exhibit. Can I ask the sheriff’s officer to show you a picture of a corset. Just looking at that page –
AThat’s one of the ones that he gave to me and mum. There was one red and one blue.
HIS HONOUR
QSo the picture you’re looking at now is an image of –
AA corset with a strap made of rose flowers.
QAnd that’s similar to what he gave you and your mother.
AYes.
XXN
QAnd one of those red and the other was blue.
AYes, like a bluey purple.
EXHIBIT #D2 PICTURE OF CORSET TENDERED BY MR CROWE.
ADMITTED.
COPIES OF EXHIBIT D2 HANDED TO JURY
QYou’ve told us that you and your mother tried on the corsets.
AThat’s correct.
QThere may have been a G-string attached but you didn’t try on the G-string in front of [the accused].
ANo.
QYou were happy to try the corset on at that stage.
AMum was very excited and it kind of caught on if that makes sense.
QYou got excited because your mum was excited.
AYes.
QAnd although it wasn’t an expensive present, it was certainly a nice present to be getting, wasn’t it.
AYes.
HIS HONOUR
QWhen you put the corset on where did it come down to.
ACould you change the way you asked the question, please?
QYou’ve got the image of the corset there in front of you.
AYes.
QWhen you put that on how far down your body did it cover, or how much of your body did it cover.
AThe whole of my stomach and it sat like here (INDICATES).
QSo that’s the top part of it just above your breast line.
AYes.
QAnd where did the bottom end.
AJust over my waist.
QIf you were wearing underwear and nothing else would the corset have covered your underpants.
ANo.
QWhat would one generally wear below the corset.
AA skirt. You could also wear jeans, depending on your style.

On the issue of the massagers, counsel put to AS that the appellant did not give her the massagers. There was an ambiguity in counsel’s question. The trial Judge put the following:
QDo you agree or not with Mr Crowe’s suggestion that [the accused] did not give you, as a gift, the personal massager that is in front of you.
ANo.
QAnd you can’t say whether or not [GF] gave that item back to [the accused] when he returned to him the corsets.
AI knew the corsets were going to be given back to him. I did not know what my mother did with the massager after she took it from me.
The questions asked by the Judge were numerous. At times, he took over the cross-examination of counsel. His questions went beyond clearing up ambiguities.
In examination-in-chief, GF was asked about observing the appellant and AS massaging one another. He responded that they would massage each other. He said, “... just innocent at the time, kind of just – kind of she’d massage him and he’d massage her and it just seemed it was very playful, weird, but playful ...”. He was asked by the prosecutor:
QOn the occasions that you saw these massages taking place was it hands that were being used to massage.
AMost of the time, sometimes there was those novelty plastic inert things that you get at $2 shops with kind of the dolphins or the spider or the octopussy-shaped contraptions.
QHow would that be used as far as you observed.
AKind of across the head, shoulders, back, legs, just general massaging and –
HIS HONOUR
QOne of those ones that just roll, roll along all the muscles.
AMost of the time it was just the physical plastic just solid forms, I’m not sure about the wheelie ones you’re meaning?
QYes, it wasn’t one of those.
ANot that I saw.
The prosecutor asked if GF had ever seen another massager. He said he had seen one in a box near the microwave. It had sat there for quite awhile and, eventually, he took it and placed it in a drawer in KS’s room. He also became aware of the corsets. He returned them to the appellant. He said he did not speak to the appellant about the massager.
The cross-examination of KS by counsel related to a description of the corsets. At the conclusion of that cross-examination, no questions had been asked of GF about observing any activity in the dining room.
KS gave evidence. She said that on one occasion when AS and JE stayed over at the appellant’s house, the appellant had told her that his parents would be present. KS was asked a series of questions about the box in which the present had been contained. She gave evidence that it was a different box to that which was produced in evidence.
The subject of the corsets was raised in examination-in-chief. KS said that she and AS had been given corsets. She described the occasion on which the corsets were given. The trial Judge asked:
QCan you just describe the circumstances in which [the accused] came to give you and your daughter the corsets.
AHe’d – we both had appointments at the Royal Adelaide Hospital and he’d arranged to come over afterwards and stopped in at the post office to pick these up.
QDid he tell you what he was going to pick up from the post office.
AI had no idea at the time until they had – that he was actually at the house and they had been unwrapped.
QCan you tell us the circumstances of how he gave you and your daughter the corset sets.
AHe said he bought us presents and unwrapped the package and put them on the table and then he asked us to go and try them on.
The prosecutor asked:
QYou said that he put then on the table. Can you describe the items that were put on the table.
AThere was a blue corset and – was it a red corset – they both had matching G‑strings. The pirate costume had a silver corset, jacket and pants.
QYou said that he asked you and [AS] to try them on. Did you do that.
A[AS] did first, she was very excited, I didn’t feel very comfortable about the whole thing and tried to talk her out of it but she was determined to try it on.
The trial Judge intervened with the following questions:
QWe’ve heard some evidence in this case from your daughter and others that you’re very much into the gothic style of clothing.
AYes.
QIs a corset an item of clothing that would fall within that category, that is, gothic style clothing.
ANot those ones, no.
QWhat sort of corsets would be worn by someone who was into that style of clothing, that is, gothic style clothing.
AWell, usually they’re dark, very dark colours, have lots of buckles, chains and things on them. Usually they’re under bust corsets, so you have a shirt that you can wear over the top.
AHow do those gothic style corsets compare to the corset sets that [the accused] gave you and your daughter.
AThey were more – the ones that you would wear on their own, they had the breast coverings and they seemed more like underwear than sort of going out clothing.
AThey have the appearance, are you saying of lingerie rather than a garment you would wear out.
AYes.
KS identified 11 December 2012 as the day upon which she and AS had been provided with the corsets. She said that she then went to the hospital for an appointment. The appellant stayed at KS’s home with AS watching movies. The Judge asked:
QWere you still up of a night when he left.
AI’m sorry, I couldn’t hear that properly.
QI’ll perhaps rephrase what I just asked you; you said he stayed and watched some movies.
AYes.
QWhat time did he leave your home.
AI’m not quite sure.
QAre we talking early evening, or late at night.
AIt was early evening because [AS] hadn’t cooked dinner for him, she just cooked it for myself and herself.
QDoes that mean you were still up when [the accused] left your home on 11 December.
AI’m not 100% sure at this point.
That night and in the early hours of the following morning the incident occurred upon which it is alleged the appellant entered AS’s bedroom and inserted his finger into her vagina. KS gave evidence that she observed the appellant massaging AS on the inside of her thighs. The trial Judge interrupted the examination and asked the following questions:
QSo when you woke up which room were you in.
AIn my bedroom.
QSo you previously had been in the lounge room watching the television series.
AYes.
QYou took your medication and because that has an effect that makes you feel somewhat drowsy and dizzy, you went and laid down in your bedroom.
AYes.
QWhen you left the lounge room, seated to your right was your daughter in one of the red armchairs.
AYes.
QAnd on the couch next to her was [the accused].
AYes.
QWhen you woke up from your sleep and made your way from your bedroom into the lounge room, what did you see occurring in the lounge room.
A[AS] was lying face down on the couch. [The accused] was on his knees in front of the couch and he was massaging her inner thighs.
QWhen you saw that, did you react in any way; did you say anything to [the accused] about what he was doing to your daughter.
ANo, I just went and got [AS] and put her to bed because, like, I just – it felt wrong but my head was all fuzzy and I just wanted to get her out of there.
QDid you take her to her room.
AYes.
QAnd when you did so, where was [the accused].
AIn the lounge room.
The prosecutor continued questioning the witness:
QAfter you took [AS] to her room, did you see what [the accused] did.
AHe was packing his stuff up to leave.
QWhat did you do.
AI went back to bed because I was having trouble standing.
QHad [the accused] gone by the time you went back to bed.
ANo, he was still there.
HIS HONOUR
QDo you know when [the accused] left that night.
AI woke up with a really strange feeling and I heard the front door go and [the accused’s] car start. I’m not sure what time this was. I know it was late and when I went and check on [AS], she wouldn’t – I knocked on her door but she wouldn’t let me in the room, but she said she was okay.
XN
QOn that occasion when you got up and checked on [AS], did you see [the accused].
ANo.
QCan I just take you back again to something you mentioned a moment ago, if I’ve got the chronology wrong, please correct me, but the occasion that you took your medication and went to bed.
AYep.
QWhen you first left that room and went to bed, what was [the accused] doing when you left the room.
AHe was lying on the couch watching the TV.
QWhat was [AS] doing.
AShe was sitting in the red chair watching the TV.
HIS HONOUR
QJust so we are all clear about the day that your [sic] giving evidence about, this is the very day, is it, that [the accused] came around to your house with the corset sets for you and your daughter.
ANo, we gave evidence, we went to the police, it was after that.
QI thought your evidence earlier – I could be mistaken about this – was that [the accused] said he had to go to the post office to pick something up.
MS DUNLOP: [The accused].
HIS HONOUR
Q[The accused] had to go to the post office to pick something up.
AYeah, he did that on the way from the hospital to the house.
QI thought your evidence was – and I could be mistaken about this – that you checked and the day that you and [the accused] each went to the Royal Adelaide Hospital was 11 December 2012.
AYes.
QSo that is the day that he came around with the corset sets.
AYes.
QAnd then stayed the afternoon and you watched the TV series Lost Girl.
AYes.
QAnd then you took your pain medication and because you can feel dizzy when you take the medication, you were feeling tired, anyway you went to bed.
AYes.
QAnd everything else you told us about.
AYes.
QSo we are talking then about 11 December 2012.
AYes, I’m pretty sure it all happened on the same day. I may have it confused, I’m not 100% sure.
The prosecutor asked KS when was the next time she saw him. She said it was New Year’s Eve. She said that was the occasion upon which GF gave the corsets back to the appellant.
The trial Judge asked:
QOn New Year’s Eve.
AYes.
QAt the occasion that he came to your home to borrow the chairs.
AYeah.
QCould I ask you this question about the box in which the personal massager was: what did you do with that box when it was presented to you by your daughter.
AShe put it on the table. I didn’t touch it. [GF] actually took it away. I’m not sure where he put it because I didn’t want to touch it. I thought t [sic] was disgusting.
QDo you have a microwave at your home.
AYes.
QI take it that that’s in the kitchen.
AYes.
QDid you ever see the box in which the personal massage was on the microwave.
AI’m not 100% sure but it may have been put on the microwave instead of the table because, yeah, it was like the big table with the microwave sitting on top of it.
QI don’t know whether you can answer this: is that where it stayed, that is, on the microwave until it was given back to [the accused].
ANo.
QWhere do you say it was kept.
AI don’t know. [GF] took it because the sight of it just disgusts me and I’m not sure where he put it.
During the cross-examination of KS, the trial Judge asked further questions. We do not propose to set out in detail those questions.
Again, it can be seen that the Judge asked numerous questions of the witness. The majority of the questions did not relate to simply clearing up an ambiguity to the answer given by the witness. As he had done on other occasions during the trial, the Judge asked a question and then followed up the answer with many other questions.
We turn to the evidence of the appellant. In examination-in-chief, the appellant was asked about his various occupations. He said he was unsure about when he stopped working as a chauffeur. The trial Judge asked:
QWell, let’s take it like this: you’ve heard evidence in this trial from [JE] and [AS] of at least two occasions when they both stayed with you at the family home in Ironbank. Were you at that time working as a chauffeur driver.
AYes.
Counsel asked the appellant about visiting KS’s house in 2011 and 2012. The trial Judge asked the following questions:
QWell, let’s again, try and break it down; do you have a memory of when he had his stroke.
AYes.
QDo you have a memory of when he was hospitalised as a result of that stroke and then went into a home.
AYes.
QBefore he had a stroke, how often would you visit [KS] and [AS] whilst he was living at the house at Woodville Park.
AAt least every month if not more.
QAnd after his stroke, how often would you visit them at their home at Woodville Park.
AMuch less regularly because, obviously, the strain of looking after her father means she wasn’t in the mood for company.
Counsel asked the appellant whether, on occasions, he slept in the dining room. The Judge interrupted the examination and asked the following:
QDo you agree what wherever you slept, be it in the dining room before [KS’s] father had his stroke, or after he had the stroke, that you slept on the futon.
AIt was a foam mattress that I actually bought.
QWas that foam mattress, was that kept at the [S] house at Woodville Park.
AI bought it for that purpose; I was there that often.
QYou bought it for the specific purpose to sleep on on the occasion that you stayed overnight.
AYes.
The topic of presents was the subject of examination. The appellant said that he had purchased corsets. The trial Judge interrupted and said, “Well, tell us about that. Mr Crowe, I’m sure, will ask you some questions about the corsets”.
Counsel was placed in a position where he was almost compelled to ask about the topic of corsets. Counsel may well have wished to raise that topic at a different stage of the examination. However, the trial Judge’s intervention deprived counsel of that course of action.
The appellant was asked to describe the corsets. He referred to a picture of the corsets. The trial Judge interjected:
Q[Accused], I may have missed it but can you just tell the jury again why you bought the corsets for [KS] and [AS].
ASo that they could make Goth dresses to go out with, wearing.
The examination continued. Counsel asked when the appellant gave the corsets to KS and AS. The trial Judge interjected:
QDid you hear the evidence of [KS] that each of you had attended an appointment at the Royal Adelaide Hospital.
AYes, your Honour.
QAnd her evidence was that later that day, after you had both attended at your appointments, was when you handed over to them or gifted them the presents, is that correct.
AYes, your Honour.
QWas it on that day.
AYes, your Honour.
QAnd I think the evidence was that that was 11 December, 2012 so you agree that that’s the date.
AI have to, your Honour. Like I said, I’m not sure, but that day, if [KS] says that was the day we met, were supposed to meet in the hospital appointment and it’s confirmed, yeah, I’ll go with that, your Honour.
Counsel turned to the topic of the massagers. He asked about the different types of massagers. The appellant said that they were in the house and that the girls liked them. The trial Judge asked the following questions:
QAre you there talking about what was described in evidence as the dolphin-shaped massager and the turtle-shaped massager.
AI don’t know what they’re talking about. There was one that had lots of wheels on it that was good for, you know, rough wheels, grrrh, and there was one, I thought it was called an octopus, it had like four or five balls on the end, hard plastic, you could just – (DEMONSTRATES) someone’s back.
QWas there a purple one that was arched.
AThat one would be, not arched, but that one would be purplish, your Honour.
The appellant gave evidence that the mini massager was returned to him and that he gave it to the Legal Aid Services Department. The Judge asked the following questions:
QWell, that would have been some time later but when you discovered it in the bag you obviously had a look at it.
AYes, your Honour.
QYou say you had never seen that before.
AI didn’t, your Honour.
QWhat did you do with it when you realised what it was.
AI was at a party, we looked at it, said ‘What the hell is this doing here?’, we joked about it as – you know, we tried it, hands (DEMONSTRATES) and it was pretty gutless and that was it, it got put in the bag with the corsets. That night I gave the corsets to another friend whose fiancee, now married, was the dressmaker, so she got them
QWhat happened to the personal massager.
AThat ended up in the boot of my car, your Honour.
QHow long did it stay in there for.
AUntil it became apparent that it was mentioned in (INDICATES) statements, your Honour.
QIs that when you handed it over to Legal Services Commission lawyers.
AYes, your Honour.
The evidence-in-chief then moved to the appellant’s evidence about the occasion upon which he was tickling AS and she crawled off into the dining room. The appellant denied that he touched her vagina on that occasion.
The Judge asked:
QDid she scramble away in the manner in which she described it to the jury.
ANot in the manner she described it. I was tickling her as she was trying to get away.
QShe said that she was on all fours and scrambled from the lounge room into the dining room –
AShe scrambled.
Q– dining room into the lounge rom.
AShe scrambled from the lounge room into the kitchen, which is where [GF] walked past, looked down, raised an eyebrow, but this was tickling her and having her scramble away was a common thing, your Honour.
The examination of the appellant then moved to the occasion upon which there was evidence that the appellant massaged AS’s inner thigh area. He denied that that occurred. He said that, on that occasion, he massaged her feet, her upper arms and back. The Judge asked the following questions:
QWhat time of the day did you give her this massage.
AI couldn’t be entirely sure. It would be very late. I didn’t realise how late I stayed there until I got in my car and the clock in my car told me 3 a.m.
QWell, how long before you saw the time on the clock in your car did you massage her feet.
AI would be guessing between 1 and 2, your Honour.
XN
QAre you able to say whether [KS] was present at any stage during the massage.
ADuring the massage?
QYes.
ANo, Mr Crowe, no she wasn’t present.
QWhat about prior to the massage.
AYes, she was present right up until the washing of the feet.
HIS HONOUR
QSo you are saying she was present during the conversation that you and AS had over the foot massage.
AYes, your Honour.
QThen she went off, as she told the jury, to her bedroom after she had taken the medication.
AThat’s it, that’s the last I saw of her that night.
XN
QDid you touch [AS] sexually that night.
ANo, Mr Crowe.
QAt about what time do you think you left the house.
AI’m pretty sure it was almost spot on 3 a.m.
QWhere was [AS] when you left the house.
ALaying in her bed.
QWhere was [KS].
ALaying in her bed, I presume, because her door was closed.
QWas [GF] present that night.
ANo, Mr Crowe.
QI need to ask whether [JE] was present at all that afternoon or that night.
ANo, Mr Crowe.
HIS HONOUR
QAfter you gave [AS] the foot massage, what happened.
AWell, I started to give her a foot massage, lower legs. I said ‘Do you want your back done as well?’ ‘Yeah’. Rolled over, massaged her back and she started to get sleepy. So do you want me to –
QWhat did she do then.
AOkay, I suggested to her that if she wants I can massage her feet while she goes to sleep in her room.
QDid she respond to that suggestion.
AYeah, she thought it was a great idea.
QWhat then happened.
AI got my gear ready to go because as soon as that was done I was going. I had to stand there for her to make her bed before I could massage her and basically she had a bedside light on, that was all. I massaged her, kept asking her if she wanted more, eventually the response I got was that noise, the sleepy no response noise. I left.
QSo you are telling the jury that you’re suggesting you and she went into her bedroom, and you massaged her feet until she fell asleep.
AYes, your Honour.
QAfter she fell asleep is that when you left the house to go home.
AYes, your Honour.
The tone of a number of questions asked by the Judge suggested a degree of scepticism of the answers given by the appellant.

The appellant was cross-examined. During the cross-examination there were 41 interventions by the trial Judge who asked 145 questions.
Examples of the trial Judge’s interventions include when counsel was cross‑examining about the corsets. Counsel asked the appellant about his reaction to the corsets being returned to him. He said he was angry that the presents had been returned. He gave the corsets to friends, but the personal massager remained in the box in the boot of his car. Counsel asked the following question, which was followed by a series of questions from the trial Judge:
QAnd you gave the corsets away but you thought to take that box with you and put it in the boot of your car.
ANo-one else wanted it, Ms Dunlop, otherwise it would have been gone that night.
HIS HONOUR
QYou said you were quite annoyed or angry at the fact that it was considered that the corsets that you had given [KS] and [AS] were thought to be inappropriate.
AYes.
QAnd you made your way to the party in that mood and then you stayed there for, you said, two days. Then you went on home, I take it, after that.
AYes.
QBy that time you had calmed down somewhat I take it.
APretty much but I was in no mood to talk, so there were some SMSs between the two of us. I was like fine, be like that, but there was not an option for talking at that point in time.
QSo you didn’t have an opportunity to inquire or ask [GF] why he had put in the bag which contained the corsets, the personal massager.
AThere was always the opportunity to do so but I didn’t feel like talking to them.
QWhy didn’t you want to follow that up.
AI kind of did, but like I said, I started out at that party grumpy. I’d got into a good mood partying with my friends. The last thing I wanted was to kill it and confront them. It could wait until next weekend and, you know, let it calm down.
QWas there only a few days after you returned from the party that you were contacted by the police.
AWhen I arrived home on 4 January, there as a note in my door, so they had called past.
QAnd eventually the police spoke with you and you were no doubt arrested over this mater and is that when you contacted legal aid and provided them –
AThe second that I received a notification on my door that CIB wanted to talk to me, I made inquiries about what I should do about that.
QThat’s all right, but so it was fairly soon into the New Year that you handed over the personal massager to the lawyers at the Legal Services Commission.
AI couldn’t tell you exactly when. It wasn’t until I received statements that were – until then, I didn’t know what. I’d been accused of something, it was seen as heinous.
QWhen you read what was in the statement, you spoke to your lawyers about it and you then handed them the personal massager that had been placed into the bag.
AWhich luckily I still had.
This is an example of the trial Judge cross-examining the appellant. The jury may well have been left with the impression that the Judge doubted the truth of the number of answers given by the appellant.
The following day, the cross-examination continued. Counsel was asking the appellant about the occasion when AS alleged that she was touched on the breast. There appears to have been some confusion about the date. The following exchange occurred:
HIS HONOUR
QAre you telling the jury that this was the occasion when you gave [AS] and her mother the corsets.
AYes, your Honour.
Q11 December 2012.
AI believe that was the understanding, your Honour. Your Honour, the confused details that I received from the statements, I’m relying on the witnesses for the chronological order.
QDon’t worry about that at the moment. Ms Dunlop is asking you questions about the incident [AS] described to the jury when she said she went into the back room to wake you up.
AYes.
QThat you asked for a hug, you pulled her down and –
AThat wasn’t the back room.
QWell, this is what Ms Dunlop is asking you about; and in the course of tickling her you are rubbing her body, rubbing her side and you touched her left breast.
AIs that correct?
XXN
QThat’s the incident I’m referring to.
AThat sounds like different incidents than the tickling in the dining and lounge –
HIS HONOUR
QNo, Ms Dunlop moved away from the incident in the dining/lounge area and she is asking questions about another incident that [AS] gave evidence about and that is the allegation that whilst you were in the back room lying on the mattress you touched her on the breast. You heard her evidence about that.
AYes.
QAnd what Ms Dunlop has done is referred you to your evidence on this topic.
AYes, okay, I think I understand now, your Honour. Sorry, Ms Dunlop.
XXN
QSo the incident that you’ve just described, the incident yesterday, I take that back, the incident you described to Mr Crowe yesterday which you said reminded you of the circumstances of the allegation of touching of the breast in the back room. You said that she didn’t knock and she walked in, she came in and she talked about school; is that right.
AYes.
QIs that the same incident that you’ve just been talking about in your evidence, giving more details about it, it was in the afternoon, for example.
AYes, ma’am.
QYou heard [AS] giving evidence that that occasion when she came and woke you up was about 11 o’clock in the morning. Do you remember her saying that.
AYes.
QWhy is it you think that the incident that you’re describing which occurred you say at 4 o’clock in the afternoon is the same incident that she is referring to.
AI thought that was understood, that she was talking about that incident. There was no other incident she could be talking about.
QYou said that you stayed in that room regularly, on multiple occasions.
AYes.
QYou said there were lots of times that [AS] would wake you up in the morning with hugs.
AYes.
QIs that right.
AYes.
HIS HONOUR
QWhat you are being asked by Ms Dunlop is why is it you can remember the specific incident or why you are relating [AS’s] specific allegation to the occasion that you attended at their house after work.
AWell, I believe that’s the incident that they were referring to in their statements, your Honour, that was the way I understood.
QYou know the incident that Ms Dunlop is putting to you, this is the allegation that you admit to have touched her left breast in what has been described as the back room.
AYes, your Honour.
QDo you have any recollection of an incident like that happening.
AThere was no breast touching, your Honour. This is probably why I’m so confused because yeah. Go on, I’m sorry.
Counsel asked about a specific occasion when the appellant was in the back room and he was tickling AS. He stated that, on that occasion, KS came into the room and was joking with AS and told AS that she could not help her.
The trial Judge intervened and said:
QSo you can specifically remember that incident.
AYes, your Honour.
QYou say that happened as detailed by [AS] minus your touching her on the breast.
AYes, your Honour.
The trial Judge constantly intervened during the cross-examination. On occasion his questions were designed to clear up a misunderstanding. On other occasions the questioning went further. Another example relates to an occasion which occurred at the appellant’s home. The following exchange took place:
XXN
QYou will recall that [AS] gave evidence of another occasion of an incident that she said occurred at your house. Again, you were watching movies with her on your bed; is that right.
AOne time on the bed, one time I sat at my computer desk while she watched on my bed.
QDo you remember which was this occasion, the second occasion that she came to your house.
AHonestly, no. They kind of blur. I think the Ponyo one was on the desk – on my desk chair and the other one I was probably laying next to her.
HIS HONOUR
QDo you know when you went over to the [S] house to watch movies and to watch the TV series Lost Girl, where would you all gather about to watch the movie or movie series.
AOn those three seats I mentioned, the two red and the two seater.
QWas there a television set in that room.
AYes.
QWere you able to watch the movies through that television set.
AYes, your Honour.
QYou couldn’t do that in your home.
AYou could and sometimes we did.
QBut you chose to watch the movies with [AS] in your bedroom.
AI didn’t choose.
QWho chose.
AShe did.
QThis is your house.
AI said ‘Do you want to watch the movie in the lounge or in my room?’. Sometimes it would be in the lounge room, sometimes in my room.
QSo it was her suggestion to watch the movie in your bedroom.
AYes, your Honour.
XXN
QBecause it’s the case, isn’t it, that you would take movies down to [AS] and [KS’s] house on some sort of hard drive or portable –
AThat was a late acquisition. That wasn’t a long – like that was late in the story line.
QAre you saying that that was closer to 2012, the year 2012.
AYes, Ms Dunlop.
QBut when you would watch movies before that at their house, would bring the movies with you.
A99% at the time I rented the movies at Woodstock – whatever it’s called.
QRadstock.
AYeah.
QOn the occasion, one of the occasions that [AS] stayed at your house, you said that she slept on the couch; is that right.
AYes, Ms Dunlop.
QIn those circumstances wouldn’t it have been easier for you to be watching movies in the lounge room rather than in the bedroom.
AYou may need a plan of my house. There’s a lounge room, and then there’s a lounge room (INDICATES). We have two lounge rooms. I think my parents would call it more a living room. It’s almost never used.
HIS HONOUR
QThe evidence in this case reveals a lot of movie-watching for long periods of time.
AYes.
QThat wasn’t unusual, was it.
ANot at all, your Honour.
QWhen you were at your home and you were watching movies in the bedroom was there ever an occasion when [AS] fell asleep on your bed.
AYes, your Honour.
QThere was.
AYes, your Honour.
QHow often would she do that.
AOccasionally. I think she came up five or six times. I’d say several times she would watch movies until she fell asleep. If that happened then I slept on the couch.
QYou wouldn’t lie down on the bed next to her.
ANot while she was asleep, your Honour. If we were laying on the bed watching the movies and she fell asleep on me I wouldn’t move, your Honour.
QSorry, run that past me again; if you and she were laying on your bed.
ALaid on the bed, watching movies, she is laying on my arm and she falls asleep, I don’t move.
QYou would stay there.
AI wouldn’t wake her up.
QYou would stay there.
AYeah.
QUntil morning.
AUntil she woke up, yes, your Honour.
The appellant was cross-examined about an evening when he, KS and AS were watching a television series called “Lost Girl”. The trial Judge intervened and asked:
QI mean you told the jury a moment ago that you were a bit concerned about the content of Lost Girl and that is why you had to run it past [KS] to see whether or not she would consent to [AS] watching it as well.
AYes.
QWell, does that not mean that, in your mind at least, that there was something inappropriate about the TV series that you required permission from [KS].
AI guess so. I’m not a parent, so I don’t know what is acceptable and what’s not which is why I asked.
QWhat did you think was unacceptable about it.
AWell, it was a bit racy.
QSo you turned your mind to its content and being concerned about its content, you raised that and explained it all to [KS].
AYes.
The regular interruption of prosecuting counsel’s cross-examination may well have left the jury with the impression that the Judge was taking over the questioning because he considered that the appellant’s evidence should not be accepted.
The appellant was asked by counsel whether it occurred to him that giving massages to a teenage girl might not have been appropriate, and that going into her bedroom to give her a massage might not be appropriate. The appellant gave the following answer:
ANo. Can I just add that that wasn’t like the first time, either alone or otherwise, that I’d been in her bedroom. It wasn’t like a private sanctuary or anything, it was just another room.
The trial Judge asked:
QCan I ask you why you considered it to be inappropriate to engage in play fighting and tickling with [AS] as she got older.
A‘Inappropriate’ wouldn’t be the word I would use myself. It’s just the case I started to realise she’s growing up and, you know, she’s got other friends and I don’t know how to explain it.
QSo are you trying to convey that the sort of behaviour that you would engage in with a young child altered as she got older.
AIt started to, yeah. Around me, she still acted like a little girl.
The topic of the corsets was the subject of further questions. Counsel asked about JE’s evidence that AS was trying on a green velvet corset. The appellant responded that it would not have been a green velvet corset. It would have been a corset that he gave her.
The trial Judge asked:
QThe year that she remembered that occasion when [AS] tried on the corset, do you say that [JE] was there.
AYes, that’s why I remember it because we were all there.
QI think the evidence is that you gave the corsets to [KS] and [AS] –
ASorry, are we talking about the first time I gave the corsets or the time that [JE] made a comment out the back?
QJust let me complete my question.
AYes.
QI understood the evidence to be that the corsets were given to [KS] and [AS] on 11 December 2012.
AThat’s my understanding.
QAnd when you gave them their corsets, the only people in the house at that time was yourself, and [KS] and [AS].
AYes.
QAre you suggesting that there was another occasion after that when you were at the [S] house in [address] when [AS] tried on the corset that you had given her while [JE] was also there.
AYes. I don’t remember her trying it on but I do remember [JE] being there. [JE] is the one that said she tried it on. I didn’t see it.
QSo this must have been, on your evidence, some time after 11 December 2012.
AYes, which would have to be the next weekend –
QYes.
A– because there’s not much time before the shit hit the fan.
QThat’s right, but you have a distinct memory of being at the [S] house with [JE] and the topic of [AS] trying on a corset was mentioned.
ANot by me.
QBy [JE].
AYes, and [KS] – I don’t recall this but according to –
QDon’t worry about what other people may have said.
ASorry.
QWhat’s your memory of that topic.
A[KS], [AS] and [JE]. [AS] had been over her boyfriend’s place. We waited for her to come home, both myself and [JE], because we wanted to catch up with her – especially [JE], seeing she had just come over from Perth – and, yeah, they were in the kitchen talking. I was out the back smoking.
QSo we are all clear now of the occasion that Ms Dunlop is asking you questions about. You accept that there was an occasion when [JE] was present and the topic of [AS] trying on a corset was raised by [JE] or, indeed, by [KS].
AYes.
Counsel put to the appellant that, at one point in time, he had said to JE the following:
QAnd I suggest to you during that period when you were outside with [JE] you made the comment to her ‘Try and resist touching her breasts. I know I have to’, about [AS].
AThat’s what she said.
QThat’s what she said. What do you say.
AI’d say that I said ‘Try to resist touching her breasts. I know you want to’.
The Judge took over by asking the following questions:
QAre you agreeing that [JE] recalls a conversation that she had with you about [AS’s] breasts being touched.
AYes, but I didn’t say I had any desire to touch them.
QCan you tell the jury what your memory of that conversation is.
AWell, my memory of the conversation is that knowing the pre-history of [JE] and [AS], and her mum, for that matter, always used to pick on [AS] about how – what’s the word – well-endowed she was –
QBy that you mean she had good sized breasts.
ALarge breasts. I gather that’s a female thing, but anyway, and quite often [JE] used to jokingly use [AS’s] breasts as pillows and poke them, which is why that comment was pointed out.
QSo by the time of this conversation you would have well known that [AS] was well‑developed.
AThis is 16, yes.
QTell the jury about the conversation you had with [JE] in the backyard of the [S] house at Woodville Park.
AI thought I just did. What is it you specifically want to know?
QI want to know, and the jury no doubt would like to know, what you said.
AI said – and I can’t remember the exact words – that she should resist touching [AS’s] breasts. I certainly didn’t make any reference to myself in those breasts, and it was more of a joke/dig at her and the way she always used to act around [AS].
XXN
QI suggest to you that what you actually said was ‘Try and resist touching her breasts. I know I have to’, and you say that’s not the case.
AI’d say that’s utter bullshit.
QWhat was said before you made that comment to [JE].
ASpecifically, no idea.
HIS HONOUR
QLet’s break down your evidence here please. Why did you say what you did to [JE].
ABecause it was a joke.
QA joke.
AYes.
QWere you joking if you went on to say ‘I know I have to’. Did you say something like that. You said it in a joking way.
ANot even close.
QNot even close.
AThat would be something I would not say.
QSo you can remember now that’s what you said to [JE] and that was [JE’s] evidence but you deny that you went on to say ‘I know I have to’.
AI only remember it because [JE] mentioned that and reminded me; otherwise, I wouldn’t have remembered it at all.
QBut having heard the evidence that [JE] gave, that brought back the memory.
AYes.
Later in the cross-examination, the trial Judge put the following propositions to the appellant:
QDidn’t you tell the jury a moment ago that [JE] used [AS’s] breasts as pillows.
AYes.
QThen you must have noticed that she had large breasts then.
ANot in particular. I didn’t really pay attention. It wasn’t like – I don’t know how to describe it but it wasn’t something that I would look at. In fact, I probably was in denial that the little girl that I’d known for so long was growing up.
Later, the trial Judge put the following:
QUp until you heard the evidence given by [JE], is it your evidence that you forgot about making that comment to her about trying to resist touching [AS’s] breasts.
AThat entire conversation, although I recall it differently, was not a memory that I would recall without being reminded of it.

The trial Judge again intervened in the cross-examination and asked the following series of questions:
QJust on the topic of massages, your evidence is clear that you did not give the mini‑personal massages to either [AS] or [JE].
AThat’s correct.
QAnd you have produced that particular item into evidence.
AYes.
QYou, no doubt, would have had a good look at it.
AYes.
QAs you told the jury yesterday, when it was given to you it was in the bag with the corsets on 2 January.
AYes.
QAnd you went off and you partied for a couple of days down the road somewhere.
AYes.
QAnd whilst at that party you and the others had a look at what was in that box.
AIn the first hours of the party on the 2^nd. It didn’t get looked at again.
QAnd you tried it.
AYes.
QIt worked at that time.
AYes.
QWould that have been something you considered would have been appropriate to give to [AS].
AI can’t say I would have thought about it.
QBut when you were looking at it in the first hour or so whilst at the party, what did you think it was.
AIt was just a personal massager. Are you asking did I think it was a sex toy?
QWas that your impression.
AThat’s the impression I thought your Honour implied.
QWas that your impression when you produced it out of the box at the party.
ANo, not at all, and I did not know at that stage that it had been returned because it had allegedly been given to [AS]. It was in the bag and I have been told that the whole package was inappropriate.
QBut having looked at it, operated it at the party, in your mind would you have given something like that to [AS].
AI don’t think so your Honour.
QWhy not, why wouldn’t you have given her something like that.
ABecause it was crap, your Honour. It was – I went searching when it was given to me, given back to me from Legal Services, I went looking for where one person could buy one of these exact identical items and they are online for $2-4. It is cheap rubbish, I wouldn’t give that to, a gift to anyone because it would break, it would probably leak battery acid. It would be an unreliable massager.
QSo is that the reason you wouldn’t gift something like that to [AS], not because it could be used as a sex toy or might look like a sex toy, that wasn’t the reason that you wouldn’t give it to her, but because it’s cheap.
AWell, I wouldn’t give anything that looked or was like a sex toy to, well, anyone for that matter your Honour.
QDid you think it looked like a sex toy when you had a look at it.
ANo.
QNot at all.
ANot at all. The thought did not cross my mind that it could even be used as a sex toy. Then again I wasn’t thinking like that your Honour.
The series of questions and interventions by the Judge amounts to cross‑examination which went beyond the role of the Judge. Competent counsel for the prosecution was prevented by the Judge’s constant interventions from developing a line of questioning of the appellant. The way the Judge framed some of the questions suggests an attack on the credibility of the appellant.
The topic of corsets was again the subject of further questions. The trial Judge asked:
QJust on the corset sets that you gave [KS] and [AS]. Is it your evidence that when you gave the corsets to them it did not include the matching G-string.
AI have no recollection of the G-string. I think that originally, with the thing that I purchased off of Facebook, which I cannot produce, said ‘G-strings not included’ so far as I recall. In hindsight, if the G-strings were with the items as they said, because I didn’t open them, then it was news to me and I was surprised, so, I had no idea there were G-strings involved.
Towards the end of the cross-examination, the trial Judge again returned to the topic of the corsets. He asked:
QNo doubt you were listening carefully to the evidence of [KS] when I asked her whether the corsets that you gave her and [AS] would fall within the category of gothic-style clothing and she replied not the ones that you had given her.
AThat’s correct. I heard her say that, your Honour. It doesn’t make it true, your Honour.
QShe also said that the corset that she would wear or the gothic-style clothing would usually be dark, very dark colours with buckles and chains.
ALace, the whole lot.
QIs that the sort of clothing that Goths would wear.
AYes, your Honour.
QBut you bought them bright-coloured corsets, a red and blue one with nice flowers across them.
AAs a matter of fact, on that topic, I actually apologised profusely to [KS] about how gaudy I thought those roses were and she might want to cut them off and when she tried them on and looked at it she said ‘No, as a matter of fact I like them’, which surprised me. In complete contradiction to what she said.
It is most unfortunate that the Judge intervened to that extent in the examination and cross-examination of the defendant. Particularly in cross‑examination a number of the questions asked by the Judge suggested disbelief in his version of events.
The accused was subject to a probing cross-examination from a competent prosecutor (as far as she was able, given the interruptions). While parts of the appellant’s version of events may have been improbable, he was entitled to give his explanation to the jury without being subjected to “sniper fire” from the bench.[8]
[8] Michel v The Queen [2009] UKPC 41.
The potential for unfairness is obvious when, at the time the appellant is giving his versions of events to the jury, it is accompanied by questions from the Judge suggesting scepticism of some of his answers.
Discussion
The passages of examination and cross-examination of the witnesses and the appellant during which the trial Judge intervened are examples of his intervention and are the subject of complaint by counsel for the appellant.
Counsel submits that the interventions and questions by the Judge gave rise to a miscarriage of justice, in particular that they unfairly undermined the proper presentation of the case and that they amounted to a departure from the role of a judge presiding over an adversarial trial. Counsel submits that the Judge’s questioning interrupted the orderly progression of the appellant’s examination‑in‑chief and gave rise to the appellant’s inability to present his case to the jury.
The trial Judge appears to have recognised that he had asked numerous questions. In summing up to the jury, he said:
So can I make this next point clear to you: should I comment or say something relating to the evidence or any witness, with which you do not agree, please disregard what I have said, because it is your view of the evidence and witnesses and your view alone that matters. Likewise, when I questioned the witnesses, I was only doing so because I thought an issue needed clarifying. Do not reason from anything I have asked or said during the evidence, especially so concerning the evidence of [the accused], that I hold any view or that any of you should follow my line. That is certainly not how a trial by jury works. The questions I asked [the accused], for example, were, in my view, legitimate questions arising from either the prosecution evidence or his own evidence, but you may not have thought so. I repeat: it is only your view that matters and you are to ignore anyone else’s view, including and especially mine, if I have unintentionally given you that impression, expressed either during the trial through my questions or during the summing up.
In attempting to justify his interventions, the Judge, in our view, exacerbated the very problem complained of by the appellant.
First, the Judge suggested that he only asked questions where he thought an issue needed clarifying. While the Judge may have held that belief, the transcript reveals that the questioning went further than that on a number of occasions. Secondly, he attempted to legitimise his own questions. Having asked questions of the appellant which suggested disbelief in relation to the answers, he then directed the jury that his questions were “legitimate” although the decision was up to them and they should ignore his view.
This highlights the difference between questions asked by a judge of an accused, which may be seen to be attacking an accused’s credit, and comments made by a judge, adverse to an accused, during the course of a summing up. A direction to ignore the view of a judge is of little effect if, at the time the accused is relating his version of events, his credit is undermined by the judge. The potential for unfairness is that, at the very time when the jury is listening to an accused and forming their view of his or her credibility, the judge is potentially influencing their assessment through questioning, which throws into doubt the credibility of the accused’s version of events.
This is a different position to a judge commenting on a witness’s evidence during the course of a summing up.
The Privy Council addressed this very issue in Michel v The Queen,[9] in which the Privy Council set aside a conviction on the ground of excessive interference by the trial Judge. Lord Brown, who delivered the judgment of the Privy Council, having concluded that the Judge’s interference resulted in an unfair trial, said:[10]
None of this, of course, is to say that judges presiding over criminal trials by jury cannot attempt to assist the jury to arrive at the truth. On the contrary, they should. That is part of their task. Judges exist to see that justice is done and justice requires that the guilty be convicted as well as that the innocent go free. But for the most part they must do so, not by questioning of the witnesses but rather by way of a carefully crafted summing up. As to that, Simon Brown LJ, giving the judgement of the Court of Appeal in R v Nelson (Garfield Alexander) [1997] Crim. LR 234 (transcript dated 25 July 1996) put it thus:
“Every defendant, we repeat, has the right to have his defence, whatever it may be, faithfully and accurately placed before the jury. But that is not to say that he is entitled to have it rehearsed blandly and uncritically in the summing up. No defendant has the right to demand that the judge shall conceal from the jury such difficulties and deficiencies as are apparent in his case. Of course, the judge must remain impartial. But if common sense and reason demonstrate that a given defence is riddled with implausibilities, inconsistencies and illogicalities . . . there is no reason for the judge to withhold from the jury the benefit of his own powers of logic and analysis. Why should pointing out those matters be thought to smack of partiality? To play a case straight down the middle requires only that a judge gives full and fair weight to the evidence and arguments of each side. The judge is not required to top up the case for one side so as to correct any substantial imbalance. He has no duty to cloud the merits either by obscuring the strengths of one side or the weaknesses of the other. Impartiality means no more and no less than that the judge shall fairly state and analyse the case for both sides. Justice moreover requires that he assist the jury to reach a logical and reasoned conclusion on the evidence. . . . Judges who go to the trouble of analysing the competing cases and who give the jury the benefit of that reasoned analysis . . . are to be congratulated and commended, not criticised and condemned.”
[Underlining is ours.]
[9] [2009] UKPC 41.
[10] [2009] UKPC 41 at [33].
Returning to the issue of the interventions by the Judge during the evidence, counsel for the respondent submitted that the facts elicited by the trial Judge were all facts which the jury would have wanted to know, and that they were elicited at an appropriate time during the evidence and arose properly out of the evidence. It is submitted by counsel that the interventions by the trial Judge assisted the jury in their task of assessing the respective accounts given by AS and the appellant. It is submitted the Judge’s questions were not productive of a miscarriage of justice.
Counsel further submitted that the jury having acquitted the appellant of three counts supported the submission that the Judge’s interventions did not influence the jury in arriving at an independent judgment.
That submission is not to the point. In Michel v The Queen, the Judge sat with two jurats. There were two defendants. The jurats acquitted one of the defendants and convicted the appellant. Lord Brown, in delivering the opinion of the Privy Council, observed that the jurats, in acquitting one defendant and convicting Mr Michel, had not been in thrall of the Commissioner who had directed them that if the co-accused was acquitted it would be very hard, although not impossible, to convict the appellant. Lord Brown observed:[11]
If, in the context of a fairness challenge, the sole touchstone of a safe conviction – or more particularly, in the terms of section 26(1) of the Court of Appeal (Jersey) Law 1961, of a “substantial miscarriage of justice” – was whether the Appeal Court could be satisfied that the jury (here the Jurats) would inevitably have come to the same conclusion even without the judge’s inappropriate interventions, it might be difficult to upset this verdict: the case against the appellant was in truth a formidable one.
[11] [2009] UKPC 41 at [26].
Having made the observation, the Privy Council overturned the convictions on the ground of the Commissioner’s intervention which, in the opinion of the Privy Council, rendered the trial unfair. The fact that there was a strong case and that a conviction after a fair trial was highly likely is not a reason to uphold a conviction if the defendant is deprived of a fair trial. In this case, we cannot conclude that a conviction on any of the counts is highly likely. The strength of the prosecution case depends significantly on the impression the jury forms of the complainant.
Consideration
There are a number of circumstances in which a judge’s intervention and interference in the conduct of the trial may constitute an unfair trial as to amount to a miscarriage of justice. A judge’s intervention may deprive an accused from fairly putting his defence. It may result in preventing a witness from giving a full account of the facts. It may result from an apparent identification by the trial judge with one or other party to the litigation. It may be that the conduct of the judge is such that the judge has dropped the mantle of a judge and assumed the role of an advocate.[12]
[12] R v Mawson [1967] VR 205, 207 and 208; R v Esposito (1998) 45 NSWLR 442 at 469.
The role of a trial judge was discussed by Barwick CJ in Ratten v The Queen, the Chief Justice observed:[13]
As Smith J rightly said in expressing the reason of the Full Court in this case: ‘Under our law a criminal trial is not, and does not purport to be, an examination and assessment of all the information and evidence that exists, bearing on the question of guilt or innocence.’ It is a trial, not an inquisition: a trial in which the protagonists are the Crown on one hand and the accused on the other. Each is free to decide the ground on which it or he will contest the issue, the evidence which it or he will call, and what questions whether in chief or in cross examination shall be asked; always, of course, subject to the rule of evidence, fairness and admissibility. The judge is to take no part in that contest, having his own role to perform in ensuring the propriety and fairness of the trial and in instructing the jury in the relevant law.”
[Emphasis added.]
[13] (1974) 131 CLR 510 at 517.
In R v Esposito, Woods CJ at CL, said: [14]
The line that a trial judge walks when asking questions of a witness is a narrow one. There is nothing wrong with questions designed to clear up answers that may be equivocal or uncertain, or, within reason, to identify matters that may be of concern to himself. However, once the judge resorts to extensive questioning, particularly of the kind that amounts to cross-examination in a criminal trial before a jury, then he is treading on thin ice. The thinness of that ice will depend upon the identity of the witness being examined (here the person on trial), and on whether the questions appear to be directed towards elucidating an area of evidence that has been overlooked or left in an uncertain or equivocal state, or directed towards establishing a point that is favourable or adverse to the interests of one or other of the parties.
[14] (1998) 45 NSWLR 442 at 472.
James and Adams JJ agreed with Wood CJ at CL. Adams J added:[15]
Where the Crown Prosecutor has overlooked some point, even a vital one, or a line of examination or cross-examination, it will frequently, though not invariably, not be inappropriate for the trial judge to remind him or her of the matter. This should usually be done in the absence of the jury. However, to ask such a question or, even more, undertake the adducing of evidence, is fraught with danger, not only because the matter might have been omitted for sensible reasons unknown to the judge, but because the jury may suppose that the judge has adopted the prosecution case. When this occurs the conventional direction about the different roles of judge and jury will rarely suffice to avoid a miscarriage ...
[15] (1998) 45 NSWLR 442 at 478.
In Galea v Galea,[16] Kirby ACJ discussed the principles applicable to complaints of excessive judicial intervention. Kirby ACJ drew a distinction between the limits of questioning or comments by a judge when sitting with a jury and when sitting alone in a civil trial. He said that, although the principle of the requirement to ensure a fair trial was relevantly applicable to both civil and criminal trials, greater latitude in questioning and comment will be accepted where a judge is sitting alone.
[16] (1990) 19 NSWLR 263 at 281-82.
In considering whether the point of unfairness has been reached, factors to which the Court will have regard are the number, length, terms and circumstances of the intervention.
The Court must look at the cumulative effect of the judge’s interventions.
In R v MacBeth,[17] Doyle CJ, with whom Bleby and Gray JJ agreed, approved the observations of Woods CJ at CL in Esposito. Doyle CJ observed:[18]
The ultimate question is whether the conduct of the judge has, in a manner that can be identified or explained in words, made the trial unfair, thus giving rise to a miscarriage of justice.
[17] [2008] SASC 71.
[18] [2008] SASC 71 at [74].
There comes a point where it is evident that an accused person has simply not been tried fairly. As Lord Bigham observed in Randall v The Queen:[19]
But the right of a criminal defendant to a fair trial is absolute. There will come a point when the departure from good practice is so gross, or so persistent, or so prejudicial, or so irredeemable, that an appellate court will have no choice but to condemn a trial as unfair and quash a conviction as unsafe however strong the grounds for believing the defendant to be guilty. The right to a fair trial is one to be enjoyed by the guilty as well as the innocent, for a defendant is presumed to be innocent until proved to be otherwise in a fairly conducted trial.
[19] [2002] Cr App R 17 at [28].
The Judge’s interventions were numerous and were such that the Judge had dropped the mantle of a Judge and assumed the role of an advocate. The questioning by the Judge went beyond clearing up ambiguities or assisting the jury to better understand the evidence. On occasions, the Judge’s questions suggested incredulity on his part. On other occasions, he took over the role of the prosecutor, both in examination-in-chief of the prosecution witnesses and in cross-examination of the appellant. On other occasions, his questioning interfered with the examination by the appellant’s counsel of the appellant, and interfered unduly when counsel was cross-examining the prosecution’s witnesses.

This is an unfortunate case where, no matter how strong one might consider the Crown case to have been, the entering by the Judge into the arena of counsel was so numerous and so extensive that it cannot be said that the trial was a fair trial.
We would allow the appeal, set aside the convictions and order a re‑trial.

[2015] SASCFC 166

18 November 2015

Key Legal Topics

Areas of Law

Criminal Law

Evidence

Legal Concepts

Charge

Procedural Fairness