R v Liristis - [2004] NSWCCA 287

No judgment structure available for this case.

Reported Decision:
146 A Crim R 547

New South Wales

Court of Criminal Appeal

CITATION: R v Liristis [2004] NSWCCA 287

HEARING DATE(S): 8/07/04

JUDGMENT DATE:
27 August 2004

JUDGMENT OF: Studdert J at 1; Kirby J at 2; Hislop J at 156

DECISION: 1. The appeal allowed; 2. The conviction quashed and the sentence set aside; 3. There be a new trial.

CATCHWORDS: CRIMINAL PRACTICE & PROCEDURE - perjury - address by Crown - misleading explanation of rule in Browne v Dunn - whether rule applies in criminal trials - improper comments by Crown in address - elements of perjury - instruction on possibility of mistake - whether new trial.

LEGISLATION CITED: Criminal Appeal Act 1912
Crimes Act 1900 (NSW)
Evidence Act 1995
Oaths Act 1936 (SA)

CASES CITED: Browne v Dunn (1894) 6 R 67
Seymour v The ABC (1977) 19 NSWLR 219
Allied Pastoral Holdings P/L v Commissioner of Taxation (1983) 1 NSWLR 1
Azzopardi v The Queen (2001) 205 CLR 50
Dyers v The Queen (2002) 210 CLR 285
Jones v Dunkel (1959) 101 CLR 298
Shaw v The Queen (1952) 85 CLR 365
Killick v The Queen (1981) 147 CLR 565
Peter Schneidas (No 2) (1981) 4 A Crim R 101
Zorad (1990) 47 A Crim R 211
R v Birks (1990) 19 NSWLR 677
Manunta (1990) 54 SASR 17
R v Abdallah (2001) 127 A Crim R 46
Whitehorn v The Queen (1983) 152 CLR 657
McCullough (1982) 6 A Crim R 274
Balenzuela v De Gail (1958) 101 CLR 226
R v Davies (1974) 7 SASR 375
R v Traino (1987) 27 A Crim R 271
MacKenzie v The Queen (1996) 190 CLR 348
R v Lowe [1917] VLR 155
Murphy v Farmer (1988) 165 CLR 19
Edwards v The Queen (1993) 178 CLR 193
Zoneff v The Queen (2000) 200 CLR 234
M v The Queen (1994) 181 CLR 487
DPP (Nauru) v Fowler (1984) 154 CLR 627
R v Pedrana (2001) 123 A Crim R 1
R v MRW (1999) 113 A Crim R 308
R v Kennedy (2000) 118 A Crim R 34
R v Teasdale [2004] NSWCCA 91

PARTIES :
Regina (Resp)
Tony Liristis (Appl)

FILE NUMBER(S): CCA 60077/04

COUNSEL: D Howard (Crown)
P Byrne SC/G Bashir (Appl)

SOLICITORS: S Kavanagh (Crown)
C Bilinsky (Appl)

LOWER COURTJURISDICTION: District Court

LOWER COURT FILE NUMBER(S): 02/11/1031

LOWER COURT
JUDICIAL OFFICER : Taylor DCJ

60077/04

STUDDERT J
KIRBY J
HISLOP J
Friday 27 August 2004

REGINA v Tony LIRISTIS

Judgment

1 STUDDERT J: I agree with Kirby J.

2 KIRBY J: Tony Liristis ("the appellant") was tried in the District Court before a jury on a single count of perjury. The indictment was in these terms:

"On 23 June 1999 at Kogarah in the State of New South Wales, the said accused, before a solicitor of the Supreme Court of New South Wales, on an occasion when the truth of the same was material, did falsely swear in substance that Mr Phillip Bushby, a solicitor whom he had engaged on 10 July 1998, did not disclose his costs structure to him until 21 July 1998, the said statement so falsely sworn being false in fact, as he the said Tony Liristis then well knew."

3 The trial commenced on 21 August 2003. On 29 August 2003 the jury returned a verdict of guilty. On 22 October 2003 the appellant was sentenced to imprisonment for a fixed term of six months. On 4 December 2003 he was released on bail, pending this appeal. He appeals against his conviction upon a number of grounds. He also seeks leave to appeal against his sentence.

4 Before dealing with these issues, I should first describe the circumstances giving rise to this prosecution.

5 Mr Liristis was a Director of Luxury Sports Cruisers Pty Limited ("Luxury Sports Cruisers"). He entered a contract with a Malaysian company to build a boat. A dispute arose under the contract in June 1998. Mr Liristis required a lawyer familiar with international commercial law. He was given the name of Mr Bushby, a solicitor practising in Sydney.

6 Mr Liristis spoke to Mr Bushby by telephone in June 1998. He was given certain advice. He then received a letter from the lawyers acting for the Malaysian boat builder, proposing that the dispute be referred to arbitration, nominating a particular arbitrator. He was required to indicate by 10 July 1998 whether he objected to the person nominated.

7 On 10 July 1998, that is the last day for an objection, Mr Liristis again telephoned Mr Bushby. He told him of the letter and sent a copy by facsimile. Mr Bushby advised Mr Liristis to object to the person nominated, which he then did on Mr Liristis' behalf. Arrangements were made for Mr Liristis to meet Mr Bushby the following week.

8 On 14 July 1998 Mr Liristis met Mr Bushby at his office. He provided documentation relating to the contract. They discussed the dispute as well as the question of costs. Mr Liristis was concerned to know the likely cost of representation. Mr Bushby said he could not provide an accurate estimate at that stage. It would depend upon the number of days the matter was litigated. It could cost anywhere between $50,000 and $100,000. Mr Bushby said his hourly rate was $360. He undertook to provide a written costs agreement.

9 The next day (15 July 1998), Mr Bushby composed a letter to Mr Liristis incorporating the costs agreement. The letter included the following:

"We are obliged by the Legal Profession Act to have a costs agreement with you which sets out the terms of our engagement. It is not possible to estimate the total amount of the costs in this matter as it cannot be predicted how long it will take or the course it will run.

This firm charges on an hourly basis. Phillip Bushby's hourly rate is $360.00. Senior associates' time is charged at the rate of $200.00 per hour and clerical staff are charged at the rate of $12.00 an hour. The time costing of this firm is on units of up to 6 minutes and you will be billed on a unit basis."

10 The letter continued:

"We will require you to deposit money to our Trust Account from time to time as against costs incurred and expected to be incurred. We will account to ourselves for the costs as rendered to you and your signing of this costs agreement authorises us to do so."

11 Mr Liristis was asked to provide $10,000 "on account of fees incurred and being incurred". According to Mr Bushby, the letter was sent by facsimile to Mr Liristis at 1.03 pm and again at 1.28 pm on 15 July 1998. The facsimile machine recorded that the facsimile had been successfully transmitted.

12 Mr Liristis gave evidence that on 15 July 1998 he was at the Eastern Creek Raceway testing a vehicle. At lunchtime he received a telephone call from his wife. She worked at his office. She told him a facsimile was coming through from Bushby International Lawyers, which she could not read because the paper had run out.

13 Mr Liristis said he then telephoned Mr Bushby. He was told that the document was the "costing agreement". Mr Bushby undertook to send another copy. According to Mr Liristis, at about 2.00 pm he received a further telephone call, this time from his bookkeeper, Ms Tammy Baker. Ms Baker said that the fax machine was jamming. She could not read the document. Mr Liristis said not to worry about it. He had already spoken to Mr Bushby about the matter.

14 Mr Liristis returned to the office the next day (16 July 1998). The illegible facsimiles had since been discarded. Accordingly, he did not see the costs agreement at that time.

15 In Local Court proceedings between Mr Bushby and Mr Liristis, which I will shortly describe, Mr Liristis gave evidence that "we never got a second copy", referring to the costs agreement. In cross examination at his trial his attention was drawn to that evidence. He said that what he meant to say was that they never received a second legible copy.

16 The bookkeeper employed by Mr Liristis, Ms Tammy Baker, gave evidence. She described the facsimile machine as a "dinosaur". It used thermal paper. She recalled 15 July 1998 because it was the occasion that she was "told off" by Mrs Liristis for having arranged a technician to repair the machine. After lunch a fax arrived from Bushby International Lawyers. She gave it to Mrs Liristis who telephoned her husband. Half an hour later a second fax arrived. She then rang Mr Liristis. She told him that it was so faint that she could not read it.

17 However, Mr Bushby, in his evidence, said that he spoke to Mr Liristis the day after he sent the fax, that is 16 July 1998. It was plain from that conversation that Mr Liristis had seen the costs agreement. Mr Liristis, according to Mr Bushby, said this:

"Look I've got no problem with your charges, no problem about paying it. However, this business about paying money in advance I don't like that. I will pay you but I've got a problem with paying in advance."

18 Mr Liristis agreed that he spoke to Mr Bushby by telephone on 16 July 1998. However, his account of that conversation was quite different. Mr Bushby said that the matter should settle easily. He again asked Mr Bushby how much the matter would cost. Mr Bushby said: "About $100,000". Mr Liristis responded by saying: "There's no way in the world that I'll continue on. I don't accept those fees." He said the amount in dispute was $130,000. He did not want to litigate for almost the same amount. Arrangements were made to meet on 21 July 1998. He also said to Mr Bushby that he "didn't get the fax that you sent, but I will see you on the 21st and we will go through it". Mr Bushby said: "Fine".

19 It was common ground that Mr Bushby and Mr Liristis met again on 21 July 1998 at Mr Bushby's office. Mr Bushby asked his bookkeeper to print out a record of time already spent to enable Mr Liristis to see how quickly costs can build up. Mr Bushby said he made the suggestion that, if Mr Liristis had cash flow problems, he could cap his fees at $5,000, at which point he would stop work until funds were lodged. In that way he would limit his exposure in respect of non-payment. According to Mr Bushby, Mr Liristis responded by saying, "That sounds alright to me". He would regard the print-out as a bill and would forward a cheque within 48 hours. Mr Bushby reminded him that he must sign the costs agreement. According to Mr Bushby, Mr Liristis promised he would do so and return the document. However, the cheque was not sent and the costs agreement was never returned.

20 In cross examination Mr Bushby denied having provided Mr Liristis with a copy of the costs agreement letter of 15 July 1998 during the course of their meeting on 21 July.

21 Again, Mr Liristis' account of the same meeting was quite different. They discussed the case and the likely costs. According to Mr Liristis, Mr Bushby told him he would require a first class airfare to Malaysia and accommodation in five star hotels during his stay. His travel expenses for two days would be $20,000. During the meeting, Mr Bushby gave him a copy of the letter of 15 July 1998, that is, the costs agreement. Mr Liristis read it. He said that it was unacceptable. They parted on the basis that Mr Bushby would furnish a revised agreement.

22 On 27 July 1998 Mr Bushby spoke to the solicitor for the Malaysian company. He learned to his surprise that Mr Liristis had been in direct communication with that company. Mr Bushby thereafter telephoned Mr Liristis. He rebuked him for having directly spoken to his opponent. He also said that he had not received the cheque which had been promised.

23 The following day (28 July 1998), Mr Liristis rang Mr Bushby and told him to cease working on the matter.

24 Having not received payment, Mr Bushby commenced proceedings in the Local Court against both Mr Liristis and his company, Luxury Sports Cruisers, seeking payment of $4,967.40 for work performed. No defence having been filed, default judgment was entered.

25 On 7 October 1998 a statutory demand was made against Sports Luxury Cruisers under s459 of the Corporations Law. On 29 October 1998 a summons was filed in the Supreme Court, seeking to set aside the statutory demand. Mr Liristis swore an affidavit in support of the summons. The affidavit included the following paragraphs: (Ex E)

"4. On 15 July 1998 I received a letter from the defendant. Annexed hereto and marked with the letter "B" is a copy of that letter [being the costs agreement].

'I don't accept those fees. If that is what this is going to cost me I am not going to proceed with this matter.'

26 The affidavit then dealt with the meeting of 21 July 1998. It said this:

"6. I had a conference with the defendant on 21 July 1998. The defendant asked me to sign a costs agreement and I said:-
'I will not sign because I do not accept those fees.'

'I will prepare a new costs agreement and I will send it to you.'"

27 The Supreme Court proceedings were settled upon the basis that the dispute would be dealt with in the Local Court. Mr Liristis swore a further affidavit of 23 June 1999 in connection with those proceedings. In that affidavit he said that on 10 July 1998, and again on 14 July 1998, he asked Mr Bushby to provide "an overall quote for the work" and a costs agreement. He then said this:

"12. I was not given a cost agreement by Mr Bushby until a conference with him that I had on 21 July 1998. At that conference the Plaintiff handed to me a letter dated 15 July 1998 setting out the cost agreement and Plaintiff's hourly rate of $360.00 per hour."

28 Mr Liristis added:

"16. Following on from my conference with the Plaintiff on 21 July 1998 which was the first time that the Plaintiff disclosed his costs structure to me, I instructed the Plaintiff by way of letter dated 22 July 1998 that I was not happy with his charges and that I would not accept his fees. I further instructed him not to represent me until the cost agreement was sorted out."

29 Mr Liristis complained that, despite the fact that the costs agreement had not been sorted out, Mr Bushby had continued to do work. He therefore refused to pay. The Local Court Magistrate determined the proceedings against him and referred the papers to the Attorney General.

30 The Crown case substantially depended upon a contrast between the affidavit sworn by Mr Liristis in the Supreme Court proceedings and the affidavit in the Local Court proceedings. The Crown, as one of the elements of the offence, was obliged to prove a false statement made on oath. Accordingly, each solicitor involved in the preparation and execution of the affidavits was called.

31 Mr John Xenos was a partner in the firm, Xenos Jordan solicitors, who acted for Mr Liristis. He prepared the affidavit of 29 October 1998 filed in the Supreme Court proceedings. The affidavit was sworn in his presence, signed by Mr Liristis and by himself as witness. Whilst he had no specific recollection of the document having been executed, he described his usual practice in these words: (T144/5)

32 Mr Xenos agreed that he knew Mr Liristis. Although he had no specific recollection, he acknowledged that he must have conferred with him for the purposes of preparing the affidavit. He believed it was sworn at a meeting early one morning, between 7.00 am and 7.30 am. He denied having left the affidavit at the reception for Mr Liristis to sign. He said that in twenty years of practice he had never witnessed an affidavit without the person being in front of him.

33 Mr Liristis gave evidence that Mr Xenos told him that he would retrieve the file from Mr Jordan and prepare an affidavit. He later telephoned to say the affidavit was ready to sign. Mr Liristis then attended Xenos Jordan early one morning. He signed the affidavit in the front reception area, in the presence of a secretary. Mr Xenos was not present. He did not read the affidavit before he signed it. He identified his signature on page 4 of the affidavit, although he did not believe that the signatures on the other pages looked like his signature.

34 Mr Robert Djundja was an employed solicitor with Xenos Jordan in June 1999. He witnessed the affidavit sworn by Mr Liristis for the Local Court proceedings (dated 23 June 1999), although he had no specific recollection of having done so. It was his practice to ask the deponent to read the affidavit to themselves before they signed. Once they had done so, he would then ask whether the contents were true and correct. He believed he had followed that practice on this occasion. In cross examination he denied having witnessed the affidavit at a time that Mr Liristis was not present.

35 Mr Jordan, solicitor, also gave evidence. He had acted for Mr Liristis for a number of years. In June 1999 he appeared for him in the Local Court proceedings. He believed he prepared the affidavit used in those proceedings, although he had no specific recollection of having done so. In cross examination, it was suggested that Mr Liristis drew his attention to the discrepancy between the Supreme Court affidavit and the affidavit in the Local Court, and had told him that the facsimile sent on 15 July 1998 was illegible. Mr Jordan agreed that Mr Liristis gave that explanation to him before the hearing. However, he had no specific recollection of the conversation. He therefore could not say when it took place. The affidavit was sworn on 23 June 1999. The hearing in the Local Court commenced on 25 June 1999. At the hearing Mr Jordan led evidence from Mr Liristis explaining the discrepancy.

36 Mr Jordan also agreed that Mr Liristis gave the following answers in cross examination in the Local Court proceedings: (27/9/98 T5)

"Q. Mr Bushby had sent that to you on 15th July on two separate occasions, didn't he?

A. I can't remember. I rang Mr Bushby when our fax paper ran out and I said to him to refax it again. And because I wasn't in the office could he just contact the office and just to make sure that the fax had gone through. If you recall on the last occasion my solicitor asked me if we received this and I said exactly what I am saying. And it said, Mr Bushby even said, that he got a phone call saying that we never received the fax, only got the first few lines. And then my staff rang his office and they said if he can refax it again. And Mr Bushby said last time that he can't recall if he rang me to confirm it."

37 When Mr Liristis gave evidence he described Mr Jordan as a close personal friend. He had known him for twenty five years. They shared an interest in jet skiing. Mr Jordan prepared the Local Court affidavit. He dropped it off at Mr Liristis's office (although he later suggested that it had been dropped off at his home). He "skimmed through it". He then took it to the office of Xenos Jordan and signed it in the reception area. Mr Djundja had not been present to witness his signature.

38 Mr Liristis said that, at the time of completing these affidavits, he had not understood the consequences of not following the correct procedure. An informal procedure had been followed because of his close personal relationship with Mr Jordan.

39 The appellant relies upon the following grounds of appeal:

Ground One: The jury was not properly instructed as to the meaning or possible meaning of the phrase 'costs structure' in paragraph 16 of Local Court Affidavit.

Browne v Dunn

Ground Four: The trial miscarried because of comments made by the Crown Prosecutor in his closing address.

Ground Five: The directions given by the learned trial judge on the elements of the offence were erroneous and inadequate in that they failed to emphasise the need for proof that the appellant knew that the statement was materially and deliberately false.

Ground Six: The learned trial judge erred in failing to direct the jury as to the use they could make of 'lies', if they found that 'lies' had been told by the accused.

Ground Seven: The verdict was unreasonable having regard to the whole of the evidence in the case: s6(1) Criminal Appeal Act 1912.

40 The appellant also seeks leave to appeal against sentence upon the basis that the sentence was manifestly excessive, and a lesser sentence was warranted in law.

41 I will deal with each ground in turn.

42 The indictment identified the false statement as, "Mr Phillip Bushby ... did not disclose his costs structure to (the appellant) until 21 July 1998" (supra para 1). The indictment, therefore, picked up the following phrase from Mr Liristis' affidavit of 23 June 1999 in the Local Court proceedings:

"16. Following on from my conference with the Plaintiff on 21 July 1998 which was the first time that the Plaintiff disclosed his costs structure to me, I instructed the Plaintiff ... that I was not happy ..." (emphasis added)

43 What does the phrase "costs structure" mean, such that it was false to suggest that it was first disclosed on 21 July 1998? Was it a reference to the costs agreement letter of 15 July 1998 (Ex A), or did it refer to discussions concerning costs between Mr Bushby and Mr Liristis at their meeting on 14 July 1998, or during the telephone conversation on 16 July 1998? Did it include both the letter and the discussions? No doubt the appellant would have been entitled to particulars, so that he knew the case that he was required to meet. However, none were requested.

44 The Crown was obliged to prove a false statement on oath by the appellant. The statement had to be made in connection with judicial proceedings with knowledge that it was false or not believing it to be true (s327 Crimes Act 1900). Resolving the ambiguity as to the meaning of the phrase "costs structure" was relevant to both falsity and Mr Liristis' knowledge of falsity.

45 If the phrase "costs structure" meant or included discussions concerning costs between Mr Bushby and Mr Liristis, then there was no issue. Mr Bushby and Mr Liristis both gave evidence that they had discussed costs prior to 21 July 1998. Mr Bushby said that he told Mr Liristis his hourly rate at their meeting on 14 July 1998. He also provided an estimate of the likely cost of litigation (between $50,000 and $100,000). Mr Liristis agreed that he had been told Mr Bushby's hourly rate. He suggested, however, that the estimate of $100,000 was provided in the telephone conversation on 16 July 1998.

46 If, on the other hand, "costs structure" referred to the costs agreement letter sent on 15 July 1998, then there was a real issue, namely, had Mr Liristis received by facsimile a legible copy of that letter? The Crown asserted that for a number of reasons it was plain that he had. First, there was evidence that the machine in Mr Bushby's office recorded that both faxes had gone through. Secondly, Mr Bushby said that he spoke to Mr Liristis the next day (16 July 1998). According to Mr Bushby, it was obvious from their conversation that Mr Liristis had read the costs agreement letter. Thirdly, Mr Liristis acknowledged in the Supreme Court affidavit that he had received the costs agreement letter on 15 July 1998. It was only in the Local Court affidavit, which the Crown asserted was false, that Mr Liristis disowned that suggestion and attempted to say that he was first given the document at the meeting on 21 July 1998.

47 Mr Liristis, on the other hand, acknowledged that Mr Bushby had attempted to send faxes to him on 15 July 1998, at a time when he was not in the office. The first document was incomplete, creating the need for a second. The second was illegible, as verified by Mr Liristis' bookkeeper, Ms Tammy Baker. The documents were discarded. Accordingly, Mr Liristis did not see the costs agreement until he was given a copy at the meeting on 21 July 1998.

48 However, it appears that neither the parties nor, indeed, his Honour recognised the ambiguity in the phrase "costs structure". The case was fought on an assumption that the costs structure in the indictment was the costs agreement letter of 15 July 1998. The Crown opening at the trial gave prominence to that letter and the issue of whether Mr Liristis had received it. However, the prosecutor concluded his opening remarks with the following words, which were capable of referring to the costs agreement of 15 July, as well as the discussions concerning costs before 21 July: (T15)

49 The summing up included the following instructions on the first element of the offence: (SU 7)

"The Crown must establish the first essential ingredient, that is, the accused in or in connection with a judicial proceedings made a false statement. In the context of this case, see the note there, judicial proceedings means the proceeding before the Local Court commencing 15 July 1998. 'False' simply mans not true or not correct. In the context of this case 'statement' means the affidavit of 23 June."

50 Nothing was said concerning the meaning of "costs structure". For the statement in the Local Court affidavit to be false, the Crown would need to prove beyond reasonable doubt that, not only was the letter of 15 July 1998 received, but that it could be read, and was read by Mr Liristis. However, that instruction was not given to the jury in the summing up. Nor was the jury told that if there were a reasonable possibility that the copy received was too faint to be read and that Mr Liristis had not read it, then they must acquit.

51 Having retired at 1.13 pm, the jury returned at 3.35 pm with an astute question. It was in these terms:

"In the light of the fact that both Bushby and Liristis in evidence agree that attempts were made to transmit the costs structure, is the fact that discussions wherever it were held at various places prior to 21/07/98, does this constitute disclosure in terms of the indictment 'did not disclose his costs structure', is verbal discussion acceptable legally?"

52 The issue was then discussed with counsel. The discussion included the following exchange:

53 His Honour then provided the following answer to the jury's question: (SU 33/34)

"In relation to the question that you have asked concerning the disclosure of the costs structure, the Crown case is that the cost structure was disclosed by forwarding by facsimile transmission a letter of 21 July 1998 - sorry, 15 July 1998..

COUNSEL FOR MR LIRISTIS: 15 July.

HIS HONOUR Now that's the Crown case. That's the way the Crown opened the case and that is the relevant disclosure of the costs structure."

54 The appellant complains that the answer did not go far enough. The use of the words "disclosed by forwarding by facsimile" in the redirection obscured the real issue. The facsimile not only had to be sent, it had to be received in a form that could be read. The issue was: had the Crown proved beyond reasonable doubt that the copy received by Mr Liristis was legible and that he had read it? Only then could it be said that the statement in the Local Court affidavit of 23 June 1999 was false.

55 The jury should have been told, according to the appellant, that the discussions concerning costs between Mr Bushby and Mr Liristis at their meeting of 14 July 1998 and over the telephone on 16 July 1998 were not a relevant disclosure for the purposes of the indictment. They were simply the context within which there was, according to the Crown, a disclosure of the costs structure by fax on 15 July 1998.

56 The Crown responded by saying that the direction was adequate. It focussed the jury's attention upon the meaning to be attached to the phrase "costs structure", namely the costs agreement. It resolved the ambiguity. There was no request for a redirection.

57 In my view the direction did not go far enough. Whilst it directed the jury's attention to the costs agreement, it gave no guidance as to the relevance of the discussions before 21 July 1998 where matters, some repeated in the costs agreement, were canvassed, such as Mr Bushby's hourly rate. The jury was also not told that sending the fax on 15 July 1998 was not enough. Instructions should have been given that it had to have been received at the office of Mr Liristis in legible form and seen by him. It would have been useful to have juxtaposed the competing cases on that factual issue (supra paras 45-46). The jury should have been told that if there was a reasonable possibility that Mr Liristis did not receive a legible copy of the costs agreement by one or other facsimile on 15 July 1998, they must acquit.

58 In my view the first ground has been made out.

Browne v Dunn

59 It is convenient to deal with grounds 2 and 3 together. They both concern the application of the rule in Browne v Dunn (1894) 6 R 67, in the context of a criminal trial. It will be remembered that the grounds were stated in these terms:

Browne v Dunn

60 When the appellant gave evidence, many of his answers were long and unresponsive. He was asked by the trial Judge a number of times to address the specific question, and only that question. His answers included material which had not been put (in its detail) to various witnesses called by the Crown. The Crown objected on six occasions, saying, in the presence of the jury, that the evidence had not been put to the particular witness. On each occasion the jury was sent out. The issue was debated in their absence. The Crown acknowledged, at least in respect of some evidence, that the broad proposition had been put, but not the detail (T252). When the jury was brought back, Mr Liristis was allowed to give the evidence.

61 Much of the evidence to which objection was taken was peripheral (the exchange rate in Singapore and its effect upon the cost of the litigation; the time Mr Liristis had attended Mr Jordan's office). Some matters, however, were important. Mr Liristis, for instance, said that he drew to Mr Jordan's attention three months before the Local Court hearing, a paragraph in the Supreme Court affidavit, which he said was inaccurate, being the paragraph suggesting that he had received the costs agreement by fax on 15 July 1998.

62 Mr Jordan was certainly cross examined to suggest that Mr Liristis disclosed that error. Questions were asked as to when that disclosure had been made in relation to the drafting of the Local Court affidavit (T172/173). It was not put, however, that the disclosure had been made three months before the Local Court hearing (providing an opportunity for correction of the Local Court affidavit). The failure to put that question prompted the trial Judge to address the following remarks to counsel then appearing for the accused: (T278)

"The question you are putting ... could be easily regarded as unfair because you were not suggesting to him in order to remind him this was a period of three months before but, rather, suggesting it could have been the last few days or the few days prior to the hearing."

63 The appellant complains that the repeated objections by counsel for the Crown would have left the jury with the impression that counsel for Mr Liristis had been unfair. Further, the impression of unfairness would have been compounded by the following question asked by the prosecutor: (T385)

64 However, no unfairness attended the repeated objections by the Crown. Each was overruled. The evidence was given. The question by the Crown prosecutor set out above was inappropriate. The appellant's opinion on that issue was irrelevant. The question should not have been asked. However, there was no objection. Having regard to the appellant's answer, no harm was done.

65 The appellant next drew attention to the final address of the Crown prosecutor, where he said this: (T448)

"Another matter I want to emphasise to you is that any first year law student knows, and I am sure my learned friend is intimately aware of it and even though you're not lawyers, I am sure it will make sense to you: if as part of your case which you present you want to put against a witness for the other side, that you want to say well look, you delivered this affidavit to my client at his home at Sylvania Waters when you went there, something to do with a jet ski. If you knew that, you wouldn't let the witness give his evidence, go away and then when the other side closed their case bring it up. It would be most unfair. Does it make sense to you? That is the law. You must put to that person that that is your case. You don't wait until they go and then raise it so they cannot answer it. I wouldn't for one in a nano second suggest that (counsel for Mr Liristis) deliberately did that. She would not be so stupid.

In fact if you recall the questions she was asking, they were specific questions. You might think she was just as surprised as I was at some of the answers. I had to stand up and say, your Honour, this was not put to Mr Jordan. This was not put to Mr Xenos. It should have been. (Counsel for Mr Liristis) knows that. I think she was just as surprised because questions in a case advanced on instructions from our clients, of course that material came, it should have come earlier. It should have been put to those witnesses, all this business about being friends for 25 years, this special relationship, other than a professional relationship and why it was that affidavits are being drawn up and signed and taken back. Ladies and gentlemen, I would ask you to, when you come to assess the evidence to bear all those things in mind."

66 The appellant makes a number of complaints about these comments.

· First, the Crown, in describing his surprise at the accused's evidence, and that of his counsel, was giving evidence. He should not have done so.

· Secondly, in purporting to state the "law" in respect of the rule in Browne v Dunn the Crown prosecutor in fact misstated it. His explanation, according to the appellant, was "dangerously incomplete and misleading".

67 In my view both complaints were warranted. It was inappropriate for the Crown prosecutor to have intruded his own reaction to the accused's evidence. It was certainly inappropriate and highly prejudicial that he should have attributed a reaction to counsel for Mr Liristis ("she was just as surprised as I was at some of his answers"). No objection was made by Mr Liristis' counsel. Nothing was said by the trial Judge. In my view, with respect, the trial Judge should have asked the Crown to withdraw these remarks (unless the accused preferred that nothing further be said, lest the matter be made worse).

68 Dealing with the second complaint, the supposed misstatement of the "law" in Browne v Dunn, the submissions by the appellant were made upon alternative bases. On the one hand, it was submitted that if the rule in Browne v Dunn applied in the context of a criminal trial, it had been misstated. Alternatively, and more radically, it was submitted that recent decisions of the High Court threw into doubt the "obligation" of an accused to "put a case". It was said to be no longer appropriate in a criminal trial to speak of the rule in Browne v Dunn as obliging the accused, through his counsel, to put a version to Crown witnesses. If that be right, the Crown's address, in which he spoke of an obligation on the part of counsel for the accused, was quite wrong.

69 The appellant complains that the statement by the prosecutor, and the illustration he gave, misstated the rule. Mr Liristis said that Mr Jordan had delivered the draft affidavit in the Local Court to his home at the same time as he dropped off a jet ski. Such an illustration, according to the appellant, suggested that counsel for Mr Liristis was obliged, as a matter of fairness, to put to Mr Jordan every detail of Mr Liristis' account. That was not the rule (Seymour v The ABC (1977) 19 NSWLR 219; Allied Pastoral Holdings Pty Ltd v Commissioner of Taxation (1983) 1 NSWLR 1, per Hunt J at 24 [para 3]). Mr Jordan was, relevantly, challenged and the opposing view put. Nothing was said about the jet ski, that being a peripheral detail. The failure to put that aspect was not, according to the appellant, a breach of the rule.

70 Further, the appellant asserted that the prosecutor's statement was incomplete and misleading. He referred to the issue of fairness. Fairness certainly underpins the rule in Browne v Dunn. However, his explanation failed to include any reference to the remedy provided under the Evidence Act 1995, available to an opposing party, where there is a breach, namely, s46 of the Act, which is in these terms:

" 46 Leave to recall witnesses

(1) The court may give leave to a party to recall a witness to give evidence about a matter raised by evidence adduced by another party, being a matter on which the witness was not cross-examined, if the evidence concerned has been admitted and:

(a) it contradicts evidence about the matter given by the witness in examination in chief; or ..."

71 Here the Crown made an application under that section to recall certain witnesses (T425). The application was then abandoned (T426). No reference was made to that application or its abandonment.

72 Dealing with these submissions, the reference to the jet ski may or may not have been a peripheral detail. There certainly were better illustrations available to the Crown, which he might have used, where there was unmistakably a breach of the rule in Browne v Dunn, assuming it applied. The failure to advert to s46 arguably did render the statement of the "law" incomplete and apt to mislead.

73 Passing from that to what I have termed the more radical submission, the appellant drew attention to the decision in Azzopardi v The Queen (2001) 205 CLR 50. In that case the majority (Gaudron, Gummow, Kirby and Hayne JJ) said this: (at 74, para 64)

"In an accusatorial trial, an accused is not required to explain or contradict matters which are already the subject of evidence at trial. These matters must be assessed by the jury against the requisite standard of proof, without regard to the fact that the accused did not give evidence."

74 In Dyers v The Queen (2002) 210 CLR 285, Gaudron and Hayne JJ, in the context of the companion rule of Jones v Dunkel (1959) 101 CLR 298, said this (omitting references): (at 292)

RPS

R v Burdett

Jones v Dunkel

could

expected

could

expected

RPS

Azzopardi

,

RPS

Azzopardi

75 The principles stated in Browne v Dunn presuppose that the accused puts his case. It was said by the appellant that, as a natural extension of these authorities, there is no obligation for an accused to "put his case" to Crown witnesses. Such an obligation, it was said, would be incompatible with the presumption of innocence and the right of the accused not to give or call evidence at trial. Where ultimately there is a case called by the accused, and it has not been put, then, according to the appellant, there may be consequences. An accused may, in that circumstance, be met with an application by the Crown under s46 of the Evidence Act to recall witnesses, or a comment by the Crown in closing address or the Judge in his or her summing up.

76 Ordinarily the Crown is not, of course, permitted a case in reply, except in very limited circumstances (Shaw v The Queen (1952) 85 CLR 365; Killick v The Queen (1981) 147 CLR 565). The assumption is that a reply may significantly disadvantage an accused. Where the Crown is permitted a reply, the last evidence the jury hears is that of Crown witnesses rebutting the account given by the accused. Were leave given to the Crown to recall witnesses (under s46), that may operate to the disadvantage of the accused in the same way. A comment by the Crown or the trial Judge, calling attention to the failure of the accused, through counsel, to put matters to Crown witnesses, who were able to deal with the issue, may be a further consequence.

77 The difficulty with the radical submission is that the place of the rule in Browne v Dunn in criminal trials has been affirmed and reaffirmed (Peter Schneidas (No 2) (1981) 4 A Crim R 101; Zorad (1990) 47 A Crim R 211; and R v Birks (1990) 19 NSWLR 677, per Gleeson CJ at 686-692). In Birks, Gleeson CJ said this: (at 688)

Browne v Dunn

78 The Chief Justice added: (at 689)

"However, whilst the rule does apply in this State in criminal as well as civil proceedings, its practical content needs to be related to the circumstances of the particular case, and one important circumstance may be that what is involved is a criminal trial. The precise significance of that may vary from case to case."

79 The success of the appellant on this ground does not ultimately depend upon an adoption of "the radical view", even though there is much to commend it. I accept that, for the reasons put by the appellant, the statements by the Crown prosecutor were in some cases inappropriate and highly prejudicial. I also accept that he incompletely stated the rule in Browne v Dunn. Both aspects were matters of some importance. They went to an acceptance of the accused's account. They carried with them the risk of a miscarriage of justice.

80 In my opinion ground 2 has been made out.

81 Ground 3 is concerned with the direction on this issue given by the learned trial Judge. His Honour said this: (SU 20/21)

"[The Crown] outlined to you the procedure of lawyers speaking or writing only on the basis of instructions that are given. He said there were a number of instances during the course of the proceedings that you will bring back to mind in which the accused said things that were not put to Crown witnesses, that is, Crown witnesses did not have an opportunity to make any comment about those. His submission, and it is no more than that, is that that was because in terms of the accused had not told his lawyers about those matters and he was, to use the phrase he used during the course of the hearing, 'making it up as he went along'."

82 The directions, according to the appellant, suffered from two defects. First, they endorsed the Crown prosecutor's erroneous statement of the "law" in relation to barristers and their obligations. Secondly, they failed to incorporate directions necessary where an adverse inference against an accused is invited, based upon the conduct of counsel.

83 His Honour's direction did nothing to correct the Crown prosecutor's statement of "the law". However, it was put as the Crown's "submission", that is a comment by the Crown on the failure to cross examine.

84 It was open to the Crown to comment on the failure to cross examine. However, where the Crown seeks to have the jury drawn an adverse inference against the accused, based upon the conduct of his counsel, the trial Judge is obliged to instruct the jury as to the way in which they should approach such a submission.

85 In Birks (supra), Gleeson CJ, adopted the following views expressed by King CJ in Manunta (1990) 54 SASR 17: (at 23)

"It is legitimate, of course, to draw appropriate conclusions from counsel's failure to put in cross-examination some matter to which his client or his witnesses subsequently depose. It is a process of reasoning, however, which is fraught with peril and should therefore be used only with much caution and circumspection. There may be many explanations of the omission which do not reflect upon the credibility of the witnesses. Counsel may have misunderstood his instructions. The witnesses may not have been fully co-operative in providing statements. Forensic pressures may have resulted in looseness or inexactitude in the framing of questions. The matter might simply have been overlooked. I think that where the possibility of drawing an adverse inference is left to the jury, the jury should be assisted, generally speaking, by some reference to the sort of factors which I have mentioned. Jurors are not familiar with the course of trial or preparation for trial and such considerations may not enter spontaneously into their minds."

86 Gleeson CJ added his own caution: (at 691/692)

"I would add that one particular matter which makes it difficult to use the conduct of counsel as a basis for drawing inferences of fact is that most jurors are unaware of the principles ... relating to the wide discretion available to counsel as to the manner in which a trial may be conducted. It may be easy for a jury, unless given an appropriate warning, to assume that a barrister is merely some kind of 'mouthpiece' for the client, conducting the case in close conformity with the client's directions. For reasons that have already been explained, this is far from the truth."

87 In R v Abdallah (2001) 127 A Crim R 46, counsel for the accused opened the case asserting a particular fact. The evidence then given by the accused was inconsistent with the opening. Sheller JA (with whom other members of the Court agreed) said this: (at 53)

Birks

Manunta.

only

88 Here, the Crown's submission, in the same way, ruled out error on the part of counsel ("She would not be so stupid."). It was a matter "that any first year law student knows". Whilst his Honour, in his directions, did not comment upon the competence of counsel, he failed to sound the note of caution and circumspection required by Manunta and Birks.

89 The Crown on this appeal (not being the Crown who appeared at the trial) acknowledged that the direction did not conform with these authorities. However, no application had been made by counsel for a redirection. Rule 4 applies. I believe, nonetheless, that the matter was of such importance, that leave should be given. In my view ground 3 has been made out.

90 Complaint was made by the appellant concerning the language employed by the prosecutor in his closing address. The submissions identified a number of passages, including the following: (T442 11-17)

"It's really pathetic in some ways that you are - one wonders is the jury really being asked to accept what you have been asked from the accused? Look, am I really hearing this? I pinch myself to see whether my senses are telling me this is what the accused is saying whether he really thinks that you are going to accept this version of his."

91 The appellant criticised that statement as not exhibiting the fairness and detachment which a prosecutor is expected to have (Whitehorn v The Queen (1983) 152 CLR 657, per Deane J at 663-4). The language, according to the appellant, denigrated the accused, employing emotion which was designed to inflame prejudice.

92 The Crown responded by suggesting that the language stopped well short of inflaming prejudice. Counsel for the Crown, in written submissions, added the following:

"Minds may differ as to the wording that should be employed; there may be occasions when counsel might properly include scepticism, sarcasm and even (with great care) a spare degree of ridicule when addressing on a witness's evidence."

93 The case was one, according to the Crown, calling for a robust approach on the part of the prosecutor.

94 However, to my mind, the prosecutor's comments were inappropriate for a number of reasons. First, the description of the accused's evidence as "pathetic" went too far in my view. One may doubt that it met the standard identified by the Crown on this appeal. That standard was expressed by the Court of Criminal Appeal in Tasmania in McCullough (1982) 6 A Crim R 274 in these words: (at 285)

"Counsel for the Crown is obliged to put the Crown case to the jury and, when appropriate, he is entitled to firmly and vigorously urge the Crown view about a particular issue and to test and, if necessary, to attack that advanced on behalf of the accused. But he must always do so temperately and with restraint, bearing constantly in mind that his primary function is to aid in the attainment of justice, not the securing of convictions."

95 Secondly, counsel for the Crown in these comments, again inappropriately, provided his own reaction to the evidence given by the accused. His reaction was irrelevant. He was appearing as an advocate, not as a witness.

96 There were other complaints concerning the Crown's address, which I need not deal with, given the view which I have formed that there must be a new trial (subject to ground 7).

97 There is, however, one aspect which is deserving of comment. When Mr Liristis gave evidence, his counsel tendered two letters which were marked as Exhibits 7 and 8. Exhibit 8 was a photocopy of a letter of 24 July 1999 on the letterhead of the ship building company with which Mr Liristis had contracted. Mr Liristis was cross examined upon that letter. It was suggested that it was a forgery (T360). It was put to him that he had fabricated the letter (T361). Each allegation was denied. As the cross examination proceeded, Mr Liristis asked to see the original document (T394). His Honour asked the Crown to defer cross examination whilst a search was made for the original. The matter was discussed in the absence of the jury. The Crown said that the issue of whether the document was a forgery went simply to Mr Liristis' credit (T410). Counsel for Mr Liristis expressed concern that the jury may be sidetracked by that issue (T413). Ultimately the following exchange occurred: (T419)

"COUNSEL FOR MR LIRISTIS: Your Honour, I have instructions from Mr Liristis: Most unusual in my experience, nevertheless I will make them on his behalf. In regard to exhibit eight, it certainly has been tendered and it is in evidence. Mr Liristis now wants that exhibit withdrawn. It is a most unusual request in my experience but he wishes me to make that application.

HIS HONOUR: Mr Crown?

CROWN PROSECUTOR: Withdraw exhibit eight?

HIS HONOUR: Yes.

CROWN POSECUTOR: Well, it would have to be done in the presence of the jury. I have no objection to that. Your Honour would have to direct the jury to disregard the contents of it which I read out."

98 In accordance with this arrangement, counsel for Mr Liristis made the following statement in the presence of the jury: (T422)

"Both of those exhibits are now withdrawn ladies and gentlemen of the jury and so you will not be actually viewing those exhibits when you later retire."

99 His Honour then instructed the jury in these terms: (T422)

"Ladies and gentlemen of the jury, you are asked to make a decision in the case based on the evidence as I said at the outset. The evidence comprises what you hear in the witness box and documents that are produced and tendered as exhibits. Those two documents were tendered by the accused and they are now withdrawn so you ignore the contents of those documents insofar as they've been communicated to you. Now with respect to exhibit 8 that was read so the documents and their contents insofar as they have been introduced into evidence indirectly are to be ignored by you."

100 It was desirable that the jury should also have been told that they should disregard the evidence given in the context of those exhibits. However, the message to the jury was clear enough.

101 One would have assumed that no further reference would have been made to these exhibits. Regrettably, however, the Crown returned to the issue. In his closing address he said this: (T443)

"For a case that is all about lies and telling lies - you know something, he relied on the letter, which was relied on, it was exhibit 8. And you will recall that I put to him quite fairly and squarely that is a forgery. That is not a fair dinkum letter. That's a made up letter. That's a fabricated letter. And now he doesn't rely on it any more. And that's a matter for you.

What's important - and then he was accused of producing something that was a forgery, that was made up, a lie and he has withdrawn it. He no longer relies on that letter. That's for the 11 of you and you can consider what conclusion you come to about that."

102 Later the Crown added the following: (T445)

"That's put on instructions the same as when I put to the accused that very serious accusation of what used to be Exhibit 8, and has now been withdrawn: 'that was a forgery'. That's a very serious thing. I don't just make that up in the air. There are rules about that. That's a very serious thing to accuse someone of ...

So these things are put on instructions ..."

103 It is difficult to describe these remarks as other than extraordinary. First, they dealt with an exhibit which had, with the Crown's consent, been withdrawn. It was no longer in evidence. It ought not to have been the subject of comment. Secondly, the Crown reasserted that the document was a forgery. The jury was invited to draw that inference, in part, from the fact that the accused no longer relied upon it. Thirdly, the Crown prosecutor provided the jury with yet another reason why they should be satisfied that it was a forgery. He had not "made up" the suggestion. It was a serious allegation which he had put, having first obtained instructions.

104 Yet, I repeat, the document was not in evidence. There was no evidence that it was a forgery. The questions put to Mr Liristis by the Crown were not evidence. Mr Liristis had denied that the document had been forged or fabricated. On this appeal, the Crown very fairly made the following concession in written submissions:

"... the submission of the Crown Prosecutor ... may well have had the effect of elevating the withdrawn Exhibits to evidence of proven forgery by the appellant, a fact which was not established by or open on the evidence before the jury."

105 The comments from the Crown prosecutor had the effect of wrongly enlarging the evidentiary material. In Balenzuela v De Gail (1958) 101 CLR 226, Dixon CJ said this, when identifying the circumstances which would justify a new trial: (at 236)

"... it is enough if it appears to the Court deciding an application for a new trial that an error of law has been made which may operate to do any of the following ... things:

(a) improperly to limit or enlarge the evidentiary material by which it is not an unreasonable hypothesis to suppose the judgment of the jury may have been affected, even if illogically."

106 Surprisingly, no objection was taken to these comments. Nor was anything said by the trial Judge to correct the impression they made. Indeed, the summing up, with respect, compounded the error. His Honour said this, referring to the Crown's address: (SU 20)

"He frankly said the accused was a liar. He made a comment to you about exhibit 8 and said that was a forgery and a fabricated letter and that the accused does not rely on it any more. He then went on to explain to you what a lie is. I have told you what a false statement is and that is sufficient."

107 Later his Honour added: (SU 24)

"So far as the exhibit 8 is concerned, the prosecutor came back to that and said that Mr Bushby gave evidence that he could vouch for its inaccuracy and it was then withdrawn. They were the matters that the Crown Prosecutor raised yesterday afternoon."

108 Ground 4 has been made out.

109 Ground 5 was formulated in these words:

Ground Five: The directions given by the learned trial judge on the elements of the offence were erroneous and inadequate in that they failed to emphasise the need for proof that the appellant knew that the statement was materially and deliberately false.

110 The trial Judge helpfully provided the jury with written directions. The directions, amongst other things, identified the elements of the offence. Unfortunately they were not to be found in the court file, which is often the case. Attempts to obtain a copy from those involved in the trial were unsuccessful. Although strictly not an exhibit, it would be helpful if written directions were marked as an exhibit, so that they would be retained and reproduced in the appeal papers.

111 The complaint in respect of ground 5 is concerned with the third element of the offence ("the statement must concern a matter material to the proceedings") and the fourth element ("the statement must be made knowing it to be false, or not believing it to be true"). In his summing up, his Honour gave the following instructions in respect of these elements: (SU 9/10)

"I will now turn to the third element. The hearing in the Local Court it is not contested that it was a judicial proceeding to decide a dispute between Mr Bushby and the accused concerning unpaid legal costs. The affidavit said by the Crown to be a false statement was relevant or material to those proceedings.

There is an issue of course about the receipt of the bill and other matters so, the affidavit was relevant or material to those proceedings. I am going to use the word 'direct' now. When I use the words 'direct' that is a direction by me that you are bound by because it is a matter of law and I direct you as a matter of law if the first two elements are made out and then the third element is proved because as a matter of law the statement concerned a matter which was material to the proceedings. So, you find (1) you move on to (2). If you find (2) you look at (3) and you say: 'Well the judge said that that element is satisfied because that is a matter of law'.

In relation to the fourth element knowing the statement to be false or not believing it to be true. False as I say simply means not true or correct and knowing means that the person - to the personal knowledge of the accused. That's not the knowledge of some hypothetical person. Personal knowledge of the accused. ..."

112 The appellant made two complaints about these directions:

· First, the trial Judge failed to identify the jury's role in respect of the issue of materiality. He should have instructed the jury that the accused must know that the declaration was false in a material particular.

· Secondly, the trial Judge failed to give appropriate instructions on the possibility of mistake.

113 In respect of the first issue, the appellant relied upon R v Davies (1974) 7 SASR 375. That case concerned a charge under s27 of the Oaths Act 1936 (SA). In the context of that section, Wells J said this: (at 395)

"But it is important to bear steadily in mind that the trial judge's determination of this issue will not foreclose all aspects of materiality because, as will shortly appear, the jury must resolve the important issue of the defendant's knowledge or recognition of materiality."

114 Bray CJ, although differing from Wells J in some respects, agreed with that statement. He added the following: (at 381)

"I should also add that I agree, with respect, with Wells J that it is an essential element of the crime that the accused should know of the materiality of his falsehood ..."

115 Jacobs J agreed.

116 The Crown, however, pointed to the wording of the section which was being construed. It was, as the Court emphasised, a statutory offence, although one where the Court may find assistance, by analogy, with the law of perjury (Wells J at 388) (cf R v Traino (1987) 27 A Crim R 271, per Jacobs J at 276). Section 27 of the Oaths Act (SA) was in these terms:

117 Wells J identified the "second ingredient" of that offence in these terms: (at 387)

"The second principal ingredient is that which appears as the conclusion to the information: 'knowing that declaration to be untrue in a material particular, namely ... ', and then follows the particulars of the part of the declaration complained of.

The allegation that the defendant knew the declaration to be untrue in a material particular, in my view, embodies two separate and distinct assertions: (a) that the declaration was in fact untrue in the required sense; and (b) that the defendant knew that it was untrue in that sense."

118 Here, s327 of the Crimes Act 1900 (NSW) is much closer to the common law (cf "Russell on Crime", 12th Ed, p291). The section includes the following:

"s327(4) The question of whether any matter is material to a proceedings is a question of law."

119 There are, in my view, material differences between the South Australian section and the section in the New South Wales Crimes Act. In my view his Honour was not obliged to give the direction suggested.

120 Moving to the second complaint under this ground, the appellant asserted that instructions ought to have been given to the jury concerning the possibility of mistake. Mr Liristis said in evidence that he had not finished school (T369). He was not aware of the importance of following correct procedures (T286). He did not read the Supreme Court affidavit before he signed it (T378). The document had been drawn by his solicitor. He had not selected the wording. When he later re-read the affidavit, he saw the mistake, and drew it to Mr Jordan's attention.

121 That evidence, according to the appellant, clearly raised the issue of inadvertence or carelessness. Yet no instructions were given to the jury. The jury, according to the appellant, should have been told of the difference between honesty and accuracy (MacKenzie v The Queen (1996) 190 CLR 348 at 374). The Crown was obliged to demonstrate the false statement was made dishonestly and with criminal intent. That, according to the appellant, was never made clear.

122 Extensive reference was made during argument to MacKenzie v The Queen, which authoritatively dealt with the offence of perjury. In that case the Court held that directions ought to have been given, making clear the difference between holding an honest but mistaken belief that something was true, and giving evidence that was deliberately false.

123 The Crown said in response that MacKenzie was a very different case. Here, there was no issue of mistake. The directions were adequate. The jury was told that the statement must be false to the personal knowledge of the accused. That was enough to exclude the possibility of mistake.

124 MacKenzie v The Queen concerned evidence given by a solicitor, Mr Simon MacKenzie. The evidence was given in a criminal trial in which he was acting for the accused. The Crown case against his client included evidence of a fingerprint of the accused on a lease which he claimed not to have seen. The accused explained the fingerprint by the fact that he had handled the document when he was interviewed by the police. The prosecution answered that suggestion by saying that the document had already been tested for fingerprints before the interview. It was discoloured pink by the ninhydrin chemical used in that process. There was also an issue as to whether the document shown to the accused was complete or whether certain pages were missing. Mr MacKenzie gave evidence that, as the solicitor for the accused, he was present during the interview. He was dogmatic that the paper was not discoloured and that all pages were included. Gaudron, Gummow and Kirby JJ described his evidence in these terms: (at 371)

"The appellant was cross-examined during the Barbaro trial with the suggestion that he was mistaken. He rejected that suggestion, including by reference to his experience as a solicitor in examining documents and, in the case of the missing pages, by reference to the plan of his own farm. It is puzzling that a person experienced in court trials, aware of the vagaries of human memory over intervals much shorter than those in question here, would not have been more cautious and willing to allow the possibility of mistake. It is doubly puzzling given the objective circumstances which tended to undermine the acceptability of the evidence he had given."

125 The trial Judge, in his directions to the jury, did refer to "mistake". When dealing with one of the elements of perjury he said this: (at 352)

deliberately and intentionally and not through inadvertence or mistake

126 Dawson and Toohey JJ drew attention to the concession made by Mr MacKenzie at the end of his cross examination, where he said this: (at 353/354)

"I can only reiterate what I have said; that I don't believe that [I] was mistaken. The evidence which I gave was the honest, one hundred per cent clear of what I saw on that date and that's where I stand. Now, if my memory has not served me well, that would be an innocent mistake but I don't believe that I have made a mistake."

127 Commenting upon that evidence, Dawson and Toohey JJ said this: (at 354)

"Even if the appellant had not given that evidence, the possibility of mistake was still a relevant consideration for the jury."

128 However, the trial Judge had provided no elaboration or instruction concerning the possibility of mistake, such that the issue "virtually disappeared by the time (the jury) retired" (at 356). Their Honours referred to the suggested direction by Cussen J in R v Lowe [1917] VLR 155, where the following was said: (at 162)

"In order that you should convict the defendant on this indictment you ought to be satisfied beyond reasonable doubt that the statement was not only untrue, but was wilfully false; for if you should think he made it mistakenly, it would not be within the Statute."

129 Dawson and Toohey JJ concluded that the directions of the trial Judge did not meet the requirements of R v Lowe. They added: (at 356/357)

"This is not because of a failure to address the question of a reasonable or unreasonable mistake, but because of a failure to remind the jury of the need to take into account the possibility of honest mistake."

130 The remaining members of the Court (Gaudron, Gummow and Kirby JJ) said this: (at 373/374)

"But honest mistake, inadvertence, carelessness or misunderstanding leading to evidence shown to be false will not constitute perjury for which a criminal intention must always be proved."

131 Their Honours added: (at 374)

Van Den Hoek v The Queen

132 Applying these principles, the direction by his Honour was, in my view, not adequate, although it was, as the Crown asserted, a rather different case from MacKenzie. In MacKenzie there was clearly the possibility of mis-recollection, even if Mr MacKenzie did not see it. Here the possibility of mistake concerning the receipt of the costs agreement was not so obvious. Mr Liristis gave an account of the second fax having been illegible and discarded. According to his testimony, the costs agreement was first provided at the meeting on 21 July when he was handed a copy by Mr Bushby. It was not a case of one recollection, as to which he may have been mistaken, but a series of interlocking episodes which he claimed to recall.

133 However the directions should, in my view, have made reference to the possibility of honest mistake for a number of reasons. First, the Crown was required to prove a deliberate falsehood, that is, the statement was false to the knowledge of the person who made it, at the time it was made. That message is the more easily understood if the contrast is made between a deliberate falsehood and an honest but mistaken belief. The jury should be told that the statement must be "purposely, deliberately or intentionally untrue" (Murphy v Farmer (1988) 165 CLR 19 at 29, per Deane, Dawson and Gaudron JJ). An honest mistake, inadvertence, carelessness or a misunderstanding leading to a statement which is objectively untrue is not enough.

134 Secondly, the issue of honest mistake did arise on these facts, although in an unusual way. The statement in the Supreme Court affidavit (where Mr Liristis said that he had received the costs agreement from Mr Bushby on 15 July 1998) contradicted the Local Court affidavit (where Mr Liristis said that the first time the costs agreement was disclosed to him was at the meeting on 21 July 1988). The Crown case relied heavily upon that contradiction to prove that the latter was a deliberately false statement. Mr Liristis agreed that the first statement was false, although not deliberately false. He said it was an honest mistake. It came about because, through ignorance, he did not read the affidavit before he signed it.

135 There was the danger, in the absence of instruction, that the jury may condemn Mr Liristis for what may be termed constructive knowledge. They may reason that both affidavits were sworn documents. They plainly could not stand together. One was clearly false. Swearing an affidavit is a solemn process. It ought to be taken seriously. The jury may therefore have taken the view that Mr Liristis had, in circumstances they regarded as reprehensible, sworn a false document. Having taken that view, it would be a short step to conclude that he was guilty of perjury.

136 No guidance was given on that issue. The jury was not told that they should not reason in that way. Their focus must be on the Local Court affidavit and whether it included a deliberately false statement. In determining that issue, the jury could have regard to the contradictory statement in the Supreme Court affidavit. However, when considering that statement, it was important they consider the possibility of honest mistake. They should take account of the evidence of Mr Liristis that the statement in that affidavit was false, but not deliberately false.

137 No application was made for a redirection. Rule 4 applies. Nonetheless, the issue was obviously important. It concerned an element of the offence. I believe leave should be given. Ground 5, in my view, succeeds on what I have termed the second aspect.

138 Ground 6 was expressed as follows:

Ground Six: The learned trial judge erred in failing to direct the jury as to the use they could make of 'lies', if they found that 'lies' had been told by the accused.

139 The Crown prosecutor, in cross examination, repeatedly accused Mr Liristis of lying. In his address, he gave some prominence to the lies he asserted had been told. I have dealt with part of that address in the context of ground 4 (supra para 101 ff).

140 In these circumstances, the appellant argues that some guidance should have been given by the trial Judge on the question of lies. Were they lies told through a consciousness of guilt? Were they relevant only to an assessment of the credibility of the accused? (Edwards v The Queen (1993) 178 CLR 193; Zoneff v The Queen (2000) 200 CLR 234)

141 The Crown agreed that it would have been desirable for the jury to have been given guidance on the way in which they should approach the issue of lies. However, no request was made by counsel for such a direction. Rule 4 applies.

142 No Edwards direction was sought or given. The lies (if they were lies) presumably went to the credibility of Mr Liristis. I agree it would have been helpful for the trial Judge to have said something to the jury about the way in which they should approach that issue. However, no point was taken. Rule 4 applies. I do not believe that there was the possibility of a miscarriage of justice, except in respect of the specific passage, the subject of ground 4 (where leave was given). I would refuse leave on ground 6.

143 It was said by the appellant that, having regard to the whole of the evidence, the verdict was unreasonable (s6(1) Criminal Appeal Act 1912). Two arguments were put in support of that submission. The first was that not one of the solicitors who had been involved in the preparation or swearing of the Supreme Court and Local Court affidavits had a recollection of what had occurred. Each had spoken of his "usual practice", denying in the case of Mr Xenos and Mr Djundja that they had witnessed Mr Liristis' signature without him being there. The essence of the submission was put by counsel at the trial in these words:

"There is no evidence that Mr Liristis made a false statement on oath before those three solicitors because the solicitors have no recollection of what in fact took place."

144 The second argument concerned the issue of falsity and the need for the Crown to prove a deliberately false statement. It was not a case of someone giving evidence which could be demonstrated to be false, or a document in Mr Liristis' handwriting. It was an allegedly false statement in a document drawn by someone else. Mr Liristis' knowledge of the falsity and materiality of the content of the Local Court affidavit was never, according to the appellant, satisfactorily proved.

145 The Crown responded by suggesting that it was a strong Crown case. The statements in the two affidavits could not stand together. The position taken by Mr Liristis in his defence involved the suggestion that three solicitors, for no apparent motive, had departed from their duty. Each had denied that suggestion. In the Crown's submission, the verdict could not be considered unreasonable.

146 The test for unreasonableness is not in doubt. The majority in M v The Queen (1994) 181 CLR 487 stated the test in these terms: (at 497)

"In most cases a doubt experienced by an appellate court will be a doubt which a jury ought also to have experienced. It is only where a jury's advantage in seeing and hearing the evidence is capable of resolving a doubt experienced by a court of criminal appeal that the court may conclude that no miscarriage of justice occurred. That is to say, where the evidence lacks credibility for reasons which are not explained by the manner in which it was given, a reasonable doubt experienced by the court is a doubt which a reasonable jury ought to have experienced. If the evidence, upon the record itself, contains discrepancies, displays inadequacies, is tainted or otherwise lacks probative force in such a way as to lead the court of criminal appeal to conclude that, even making full allowance for the advantages enjoyed by the jury, there is a significant possibility that an innocent person has been convicted, then the court is bound to act and to set aside a verdict based upon that evidence."

147 Unquestionably the Crown case had its difficulties. Whilst the Crown need not prove motive, it is instructive to examine what motive, if any, Mr Liristis had for making a false statement. It was common ground that he never signed the costs agreement. According to Mr Bushby, he agreed on 16 July to its terms, apart from the payment "up front". It is also clear that Mr Bushby performed work at his request before the costs agreement had even been dispatched. The liability of Mr Liristis to pay such costs was not dependent upon whether he had received the costs agreement. It is not clear what work, if any, Mr Bushby did between 15 July (when the Crown say the costs agreement was received) and 21 July (when Mr Liristis acknowledged receipt of the document), such that it may have been to his advantage (in terms of disputing liability for that work) to insist upon the earlier date.

148 It was an element of the offence that there had to be a false statement on oath. The Crown had to prove that the affidavits had been properly sworn. However, it was hardly surprising that the solicitors had no particular recollection of something which, by its nature, was a routine task. The fact that they each gave evidence by reference to their practice does not mean that there is "no evidence". Nor does it mean, to my mind, that their evidence was "weak". That one solicitor may, in breach of his duty, adopt an informal procedure is, of course, possible. It becomes less likely where, as here, it is asserted (and denied) that two solicitors were guilty of a breach of duty.

149 In my view, on the whole of the evidence, it cannot be said that the verdict was unreasonable.

150 The appellant has succeeded upon a number of grounds. The Court has a discretion to order a new trial (s8(1) Criminal Appeal Act 1912). The approach to the exercise of that discretion was described by the High Court in these terms in DPP (Nauru) v Fowler (1984) 154 CLR 627 (Gibbs CJ, Murphy, Wilson, Deane and Dawson JJ): at 630

"The power to grant a new trial is a discretionary one and in deciding whether to exercise it the court which has quashed the conviction must decide whether the interests of justice require a new trial to be had. In so deciding, the court should first consider whether the admissible evidence given at the original trial was sufficiently cogent to justify a conviction, for if it was not it would be wrong by making an order for a new trial to give the prosecution an opportunity to supplement a defective case. In the present case, the admissible evidence given at the trial satisfies this test. Then the court must take into account any circumstances that might render it unjust to the accused to make him stand trial again, remembering however that the public interest in the proper administration of justice must be considered as well as the interests of the individual accused. The alleged misuse by the respondent of his position as a senior officer of the Phosphate Corporation might have been regarded as a reason in favour of granting a new trial, whereas, on the other hand, the facts that the respondent was no longer on the island of Nauru and that the offences were thought to warrant only one month's imprisonment and a small fine might have been thought to provide arguments to the contrary. These were matters that should have been weighed by the Supreme Court in deciding how its discretion should be exercised."

151 The principles were recently restated by Ipp AJA (as he then was) (with whom Wood CJ at CL agreed) in R v Pedrana (2001) 123 A Crim R 1 as follows: (para 14)

King v The Queen

Director of Public Prosecutions (Nauru) v Fowler

Spies v The Queen

152 Here, there was admissible evidence at the original trial which was sufficiently cogent to justify a conviction. However, it was said by the appellant that, for a number of reasons, it would be unjust to order a new trial. First, the need for a new trial comes about, in part, through inappropriate comments by the Crown prosecutor which carried the risk of a miscarriage of justice (R v MRW (1999) 113 A Crim R 308; R v Kennedy (2000) 118 A Crim R 34; R v Teasdale [2004] NSWCCA 91 per Tobias JA at para 48). Secondly, after conviction and before his release on bail, Mr Liristis served seven weeks of the six months sentence which had been imposed. In the circumstances it was appropriate to enter a verdict of acquittal.

153 The Crown responded by emphasising the seriousness of the offence and the strength of the Crown case. Ordinarily, because of the solemnity of swearing an affidavit, and the seriousness of a false affidavit, a custodial sentence is imposed, as happened in this case. The proper course should be to direct a new trial.

154 On balance, and with some hesitation, I believe there should be a new trial. A false affidavit, were it proved, is a serious matter. There were a number of errors which created the need for a new trial, quite apart from the inappropriate comments of the Crown prosecutor.

155 The orders I propose are as follows:

1. That the appeal be allowed.

2. That the conviction be quashed and the sentence set aside.

156 HISLOP J: I agree with Kirby J.

**********

Last Modified: 08/27/2004

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Citations

R v Liristis [2004] NSWCCA 287

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CITATION:	R v Liristis [2004] NSWCCA 287
HEARING DATE(S):	8/07/04
JUDGMENT DATE:	27 August 2004
JUDGMENT OF:	Studdert J at 1; Kirby J at 2; Hislop J at 156
DECISION:	1. The appeal allowed; 2. The conviction quashed and the sentence set aside; 3. There be a new trial.
CATCHWORDS:	CRIMINAL PRACTICE & PROCEDURE - perjury - address by Crown - misleading explanation of rule in Browne v Dunn - whether rule applies in criminal trials - improper comments by Crown in address - elements of perjury - instruction on possibility of mistake - whether new trial.
LEGISLATION CITED:	Criminal Appeal Act 1912 Crimes Act 1900 (NSW) Evidence Act 1995 Oaths Act 1936 (SA)
CASES CITED:	Browne v Dunn (1894) 6 R 67 Seymour v The ABC (1977) 19 NSWLR 219 Allied Pastoral Holdings P/L v Commissioner of Taxation (1983) 1 NSWLR 1 Azzopardi v The Queen (2001) 205 CLR 50 Dyers v The Queen (2002) 210 CLR 285 Jones v Dunkel (1959) 101 CLR 298 Shaw v The Queen (1952) 85 CLR 365 Killick v The Queen (1981) 147 CLR 565 Peter Schneidas (No 2) (1981) 4 A Crim R 101 Zorad (1990) 47 A Crim R 211 R v Birks (1990) 19 NSWLR 677 Manunta (1990) 54 SASR 17 R v Abdallah (2001) 127 A Crim R 46 Whitehorn v The Queen (1983) 152 CLR 657 McCullough (1982) 6 A Crim R 274 Balenzuela v De Gail (1958) 101 CLR 226 R v Davies (1974) 7 SASR 375 R v Traino (1987) 27 A Crim R 271 MacKenzie v The Queen (1996) 190 CLR 348 R v Lowe [1917] VLR 155 Murphy v Farmer (1988) 165 CLR 19 Edwards v The Queen (1993) 178 CLR 193 Zoneff v The Queen (2000) 200 CLR 234 M v The Queen (1994) 181 CLR 487 DPP (Nauru) v Fowler (1984) 154 CLR 627 R v Pedrana (2001) 123 A Crim R 1 R v MRW (1999) 113 A Crim R 308 R v Kennedy (2000) 118 A Crim R 34 R v Teasdale [2004] NSWCCA 91
PARTIES :	Regina (Resp) Tony Liristis (Appl)
FILE NUMBER(S):	CCA 60077/04
COUNSEL:	D Howard (Crown) P Byrne SC/G Bashir (Appl)
SOLICITORS:	S Kavanagh (Crown) C Bilinsky (Appl)

LOWER COURTJURISDICTION:	District Court
LOWER COURT FILE NUMBER(S):	02/11/1031
LOWER COURT JUDICIAL OFFICER :	Taylor DCJ