R v Livermore

NEW SOUTH WALES COURT OF CRIMINAL APPEAL

CITATION: Livermore v R [2006] NSWCCA 334

FILE NUMBER(S):
2006/391

HEARING DATE(S): 5 June 2006

DECISION DATE: 20/10/2006

PARTIES:
Dean John Livermore (Appellant)
Regina (Respondent)

JUDGMENT OF: McClellan CJ at CL Johnson J Latham J

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S): 04/31/0010

LOWER COURT JUDICIAL OFFICER: Freeman DCJ

COUNSEL:
Mr P Strickland SC; Ms PA Horvath (Appellant)
Ms J Dwyer (Respondent)

SOLICITORS:
Legal Aid Commission of New South Wales (Appellant)
Solicitor for Public Prosecutions (Respondent)

CATCHWORDS:
CRIMINAL LAW - jury trial - extravagant and improper submissions in closing address of Crown Prosecutor - role and duties of prosecutor - need for compliance with professional ethical rules and statutory guidelines concerning duties of prosecutor - miscarriage of justice - conviction quashed and new trial ordered

LEGISLATION CITED:
Crown Prosecutors Act 1986
Director of Public Prosecutions Act 1986

DECISION:
1. Appeal allowed
2. Convictions and sentences imposed on the Appellant on 5 August 2005 are quashed
3. Order a new trial.

JUDGMENT:

IN THE COURT OF
CRIMINAL APPEAL

2006/391
McCLELLAN CJ at CL
JOHNSON J
LATHAM J
20 OCTOBER 2006

DEAN JOHN LIVERMORE v REGINA

Judgment

THE COURT: The appellant, Dean John Livermore, appeals against his conviction at Tamworth District Court on 3 June 2005, after a trial lasting four days, on three counts of Sexual Intercourse Without Consent and one count of Assault with an Act of Indecency.
The three grounds of appeal all arise out of the Crown Prosecutor’s closing address. In particular, those grounds turn upon the Crown Prosecutor’s treatment in that address of a Crown witness, the complainant’s boyfriend, in a manner that is alleged to have caused a miscarriage of justice. There are no issues relating to the admissibility of the evidence at trial, nor the directions of the trial judge, other than those touching directly upon that portion of the Crown’s address that is impugned. It is not necessary therefore, for the purposes of this appeal, to canvass the evidence in the trial in great detail. The summary of the evidence that follows concentrates on the events immediately surrounding the commission of the alleged offences.

The Evidence at Trial

During the late afternoon of 15 April 2003, the complainant was in her flat studying. She was waiting for her boyfriend, Mick, to arrive when she heard a knock at her kitchen door. She opened the door and saw the appellant, whom she recognised as an acquaintance of her boyfriend. The appellant said that he was looking for her boyfriend so the complainant agreed to let the appellant wait inside her premises. Once inside the flat, the appellant acknowledged that he had come to see the complainant, not her boyfriend. The appellant closed the door, approached the complainant and started biting her ear and kissing her neck. She pushed him away and told him to stop. However, he took her pants off and pulled her by the hands to the bedroom, turning the lights off as he did so.
Once inside the bedroom, the appellant removed his clothes and forced the complainant onto the bed. The complainant continued to struggle, including yelling and screaming throughout the attack. The appellant pinned her down and inserted his penis into her vagina, then licked and bit her genitalia. The appellant also tried to insert his penis into her mouth. He later inserted his penis into her vagina a second time.
The complainant managed to get off the bed and attempted to retrieve her pants. The appellant grappled with her, placing her on top of the dressing table where he attempted to insert his penis into her vagina again. The complainant pushed him away and fell to the ground. He took her hands and was trying to lift her up when a knock was heard at the door. The complainant asked "who is it?” to which a voice responded "Mick". The complainant tried to put her pants on but the appellant, who was also looking for his pants, prevented her from doing so. The complainant went to the door, naked from the waist down, and opened it. As she did so, the appellant ran, naked, to the back door.
The complainant's boyfriend gave evidence that he arrived at the complainant's flat at about 7 p.m. He noticed that there were no lights on and that there was a BMX bike at the front door. He leaned his bike against the wall and walked around to the bedroom window. He listened but did not hear anything. He then walked to the backdoor which opened directly onto the complainant's bedroom. Whilst listening at that door, he heard the complainant say "no, stop". The voice was very soft and frightened. He then knocked firmly on the door and called the complainant's name. He heard the complainant say "who is it?" and he answered. He yelled her name a second time before the complainant opened the door.
When the complainant opened the door a minute or so later, she fell to the floor where she curled up and cried. He heard footsteps retreating and went around the side of the flat towards the kitchen door. He saw that the kitchen door was now open and saw the appellant in the shadows. He grabbed the appellant and asked him why he was there and to whom the BMX belonged. The appellant denied doing anything and said that the bike belonged to "Stretch". The appellant smelt of alcohol, had no shirt on and was engaged in pulling up his pants when the complainant's boyfriend first saw him. The appellant said that Stretch was still inside. The complainant's boyfriend let the appellant go and went back inside to investigate. He took the BMX pushbike into the kitchen.
The complainant's boyfriend went inside and found the complainant alone in her bedroom with a phone in her hand. He said loudly to her "What the fuck’s going on. Are you cheating on me?" The complainant threw the phone against the wall and replied "Is that what you think?" He then asked who the complainant was trying to call, to which she replied “the police”. He then asked her what had happened and the complainant said she had been raped. He asked her how the appellant got into the house and into the bedroom to which the complainant replied "What, don't you believe me?"
The complainant indicated that she wished to call her mother. Her boyfriend thought that she should ring the police, but the complainant replied that she thought the appellant might hurt her if she did so. The complainant had a shower then telephoned her mother and told her what happened. The complainant's boyfriend said that the complainant was upset and crying and appeared to argue with her mother. Shortly thereafter, the complainant's boyfriend heard footsteps outside so he grabbed a knife from the kitchen. It appears that the appellant had returned to retrieve the bike. The complainant's boyfriend told the appellant to leave or he would kill him. At that point the complainant decided that they should ring the police. Whilst the complainant was on the phone, her boyfriend went outside and confronted the appellant. The police arrived a short time later, after the appellant had left the area.
The police arrived at the premises at approximately 9:30 p.m. and took a number of photographs, including of the complainant's bedroom. The bedroom appeared quite tidy, according to police, and a photograph of the complainant's white trousers did not indicate any damage.
At approximately 10 p.m. the police went to the appellant's residence and saw the appellant lying on a lounge, covered with a blanket looking like he had just woken up.
The complainant was taken to hospital and medically examined. The examining doctor found a scratch and spotted bruising on the lips of the complainant’s vagina consistent with non-consensual sexual activity, but not inconsistent with vigorous consensual sexual activity. The police first spoke to the complainant at the hospital at about 11:55 p.m. for the purpose of obtaining an apprehended violence order against the appellant. (The complainant and her boyfriend were mistaken as to the appellant’s first name but that issue did not figure prominently in the trial) The complainant made a statement which she signed, containing a brief account of what had occurred. In addition, the complainant said that she did not want to return to her unit, that she was fearful of the appellant because he had returned to the flat to retrieve the bike, that she had told her boyfriend, the police, the examining doctor and her mother what had happened to her and that she did not wish the police to investigate the matter any further at that time.
On 17 April 2003 the complainant told police that she wanted police to investigate the sexual assaults. An interview was conducted with the complainant, following which the police attended the appellant's premises. The appellant agreed to attend the police station at a later date. He told police that he had gone to the complainant's unit to retrieve a bike. On 24 April, the appellant was taken to the police station and charged. He declined to participate in an interview or identification parade, following legal advice. He provided police with the clothing he had worn on the night in question and also provided a buccal swab.
The appellant did not give evidence at trial, nor was evidence called on his behalf. It was put to the complainant in cross examination that the sexual activity with the appellant was consensual, that she was not screaming and yelling throughout the sexual activity, that she called out “Who’s there?” when she first heard the knock on the door because she didn’t want it to be Mick and that she had falsely accused the appellant of rape because Mick was angry with her for her betrayal. Those suggestions were denied.
The Grounds of Appeal
Three grounds of appeal are pressed, namely:-

(i) The address to the jury by the Crown Prosecutor gave rise to a miscarriage of justice.
(ii) The trial judge erred in failing to discharge the jury at the close of the Crown Prosecutor’s address.
(iii) The trial judge erred in that he failed to give appropriate directions to the jury to cure inappropriate and unfair comments by the Crown Prosecutor in his address to the jury.

The submission in support of the first and second grounds is that an examination of the whole of the Crown address reveals a degree of unfairness and prejudice that could not be cured by directions to the jury. Specifically, the appellant took the Court to a number of passages in the transcript of the Crown’s address that were said to improperly disparage a Crown witness, improperly disparage and dismiss the appellant’s case at trial and undermine the role of the appellant’s counsel. Ground three was argued in the alternative to ground two.
The Closing Addresses
The salient features of the Crown Prosecutor's closing address are set out below. The bulk of the Crown's address summarised the evidence given by the various Crown witnesses, about which no complaint is made. The appellant's principal complaint, both at trial and on appeal, concerns the injection of the Crown Prosecutor's personal opinion into the submissions which arose from the evidence and the denigration of the defence case by those submissions. In that context, it is relevant to the appeal to refer to the preliminary remarks in the address, namely:-
I ask you to keep in mind that no matter how strongly arguments or opinions are put before you, and whether or not you think counsel believe the arguments they’re putting before you, it's your job to decide the case, not ours. I ask you to keep in mind that no matter how strongly those arguments are put, they're just that, arguments advanced for your consideration. You're asked to decide this case in accordance with the promise you gave at the beginning of the trial, on the basis of the evidence, on the basis of your combined wisdom, and your experience of the world and your combined reasoning power [of] which there are 12 of you, is very considerable, probably three or four hundred years of experience between you. …….. What I may or may [not] think, or what my opinion may or may not be is completely irrelevant. (Italics not in original)
This passage, and in particular the words appearing in italics above and below, assume particular significance in the context of the issues at trial and on this appeal, given the flavour of the following aspects of the Crown's address:-
[The complainant] told you that she asked who it was when [Mick] arrived because she was fearful that it may have been some of the accused’s friends. I suggest to you that is perfectly fair. And in fact, they turned up later. The suggestion was put to [the complainant] that she asked "who’s there" because she knew Mick would be angry. Well, the truth is I am pretty slow. I don't understand that. You say “who's there" because you knew Mick would be angry. I don't understand that. How does that help or hinder, or do anything -- it is bizarre.
………………………………………………………………………..
[Referring to the complainant’s initial reluctance to press the complaint] Well if all this is to stop Mick being angry, it still did not stop her saying no to the police on that night did it. I will remind you of the whole of what she said to detective Donovan a bit later when I come to detective Donovan's evidence. On the one hand she has got to do something cause she’s worried about Mick. On the other hand, worrying about Mick did not stop her doing what the accused claims according to the defence. It is all silly. This is a real person we are talking about. I have not seen a plot this bad even on that "Desperate Housewives".
…………………………………………………………………………..
It was suggested to her in cross examination that she showered and that that had something to do with her having consented. Once again, I don't understand. She told she showered because she felt dirty. Well it seems to me it would be within your knowledge that in almost every movie I've ever seen, where a woman is raped, she has a shower or if there is no shower available, bathes somehow.
……………………………………………………………………………
It was suggested to [the complainant] that her uncertainty when she did the photo ID was not genuine. I don't understand that either. …… But it was suggested to her that her uncertainty when she did that, wasn't genuine -- I just don't understand.
……………………………………………………………………………..
But these things that were raised in cross examination that I have just been talking about, they are crumbs. They are crumbs that the Crown expects Mr Parker is going to try to pile up and suggest to you that that is the basis of a reasonable doubt. And the Crown says no way. As far as I can tell, the ones I told you I didn't understand, just don't even make sense.
……………………………………………………………………………..
The next witness … after [the complainant] was [Mick]. Now it is not part of my job to judge people. It is my job to present the evidence fairly and to the best of my ability. However, I have got to say after careful consideration I have come to the realisation that one of the witnesses in this trial is an idiot. [Mick] was in a relationship with [the complainant]. He had only recently rung [her]. He asked about, and was invited to come around and see [her]. He told her what he was going to do, which obviously was not going to take long. He arrived within about 45 minutes, time to have a shower, get petrol and have a short visit with a friend. And [Mick] knew that [the complainant] was expecting him. [Mick] told you the words he heard from inside, before he announced his presence, were in a frightened voice, "no, stop". That is what he heard, "no, stop". I will just turn aside from that for a moment. If you suppose for a moment, that there was any truth at all in this defence case, and I'd agree that you might find that hard to imagine, but if you suppose that for a moment, if it were true, what would that mean.
………………………………………………………………………….
[Mick] told you he heard with his own ears someone run from the premises. [Mick] told you he saw with his own eyes the accused trying to hide and getting dressed. Obviously [Mick] put one and one together, and came up with some number between one and 100. Goodness knows what. [Mick] has this conversation with the accused, "who is it, what the fuck are you up to", gets the answer "it's me". [Mick] says "what are you doing, you just come out of [the complainant's] flat" and the accused very honest, very forthright, says "no that's bull shit". [Mick] says "who owns the bike" the accused says "it’s Stretch’s bike". [Mick] says "well where's he then?". The accused once again very honest, very helpful, says "he is still inside".
[Mick] has heard the accused run out. [Mick] has seen the accused hiding, getting dressed. And the conversation I have just recited is all it took to trick [Mick] into letting the accused escape and going back inside. To make it worse, he goes back inside and says to his girlfriend who's so recently been lying on the ground at his feet half naked crying, "what's going on …., are you cheating on me". …….
Like I said, after thinking about it long and hard, it does seem that one of the Crown witnesses is an idiot. The Crown says that you can't hold [Mick's] way of looking at things against [the complainant]. You can't hold [Mick’s] thinking or apparent lack of it, his thinking or apparent lack of thought and compassion, against [the complainant]. It is not her fault that he says the things he does.
Immediately after the Crown's address, the appellant's counsel at trial sought a discharge of the jury on the basis that the Crown Prosecutor's expressions of personal opinion, and in particular what was said to be an "improper attack" on the Crown witness Mick, could not be corrected by directions from the trial judge. The appellant's counsel's submissions referred to “the Crown, clothed in the authority of the office of the Crown, presenting himself as representing the community and presenting his case fairly, repeatedly [expressing] disparaging personal views of a prosecution witness”. In the alternative, counsel sought directions in the clearest and strongest terms in the hope that the jury might disregard those views. The discharge application was refused, but the trial judge indicated he would give appropriate directions in the summing up.
Not surprisingly, the appellant's counsel at trial used the opportunity afforded by his closing address to attempt to redress the most damaging of the Crown Prosecutor’s “submissions". The centrality of Mick’s evidence to the defence case was highlighted in the following terms:-
In this case, ladies and gentlemen, we have important evidence, you might think it was very important evidence, from Mick …, the witness who the Crown wants to characterise as an idiot, but whose evidence when you think about it in a fair way, as you're obliged to as [the accused’s] judges, detracts from the idea that you can accept [the complainant's] evidence without any criticism, or confidently, and gives some support to the idea that with the sexual activity that was happening there between the accused and [the complainant] was activity at which she was a willing participant, to which she consented.
[Counsel then referred to the detail of Mick’s evidence, including the fact that Mick was listening at the complainant's bedroom window at about the same time as the accused was allegedly assaulting her on the dressing table and whilst, according to the complainant, she was yelling and screaming. Mick’s failure to hear anything other than a soft frightened voice and the complainant's response to the knock on the door was contrasted with the circumstances surrounding a violent sexual assault.]
It's okay for the Crown to call [Mick] an idiot, but you're the judges of the facts. You might think that … the observations that he made …. [are] likely to be an accurate reflection. It doesn't matter if the Crown doesn't like [Mick]. We are here to evaluate his evidence and you're here to work out whether at the end of the day, I suggest to you, to work out whether you think aren't there big problems in accepting the complainant's evidence…… as being a sufficient basis for you all to be able to say, "the Crown’s convinced us beyond reasonable doubt".

Following defence counsel's address, the trial judge said "I have to say, Mr Crown, I thought it was an address rather more enthusiastic and laced with personal observation than I have usually encountered in trials of this nature". In response to this criticism, the Crown Prosecutor said that he was attempting to submit that Mick’s opinions, or rather the conclusions that he had reached, were not the proper conclusions and that those conclusions were in any event irrelevant.
The Directions
When dealing with the obligation upon the jury to disregard any opinions about the evidence that he might express in the course of the summing up, the trial judge said:-
The same observations are true about the speeches of counsel. You are not limited by the arguments they raised. You are not limited by their references to the evidence and you treat any expression of personal opinion you may think you have picked up from either of them in just the way I have told you to treat mine, that is ignore them.
Indeed, in this case I have to say that the Crown Prosecutor in his final address sought to categorise [Mick] as -- and I quote -- "an idiot". Now that may be the view you have yourselves formed about [Mick], it may not. It is a matter entirely for you. I did not understand the Crown to be saying that [Mick] was not to be accepted in terms of what he says he saw and heard. The attack being made by the Crown, as I understood it, was on the conclusions which it appeared [Mick] may have drawn from what he saw and heard.
The Crown was suggesting those conclusions were not well founded and to the extent that he described [Mick] as an idiot in his considered -- that is the Crown’s considered view -- I think that was probably not appropriate. The Crown should not convey his personal opinion of witnesses and their intellectual capacities to juries in quite such florid terms. So I have said, in any event, that is a personal opinion, you ignore personal opinions expressed by the barristers or by myself. (Italics not in original)
This direction represents the entirety of what the trial judge had to say about the identified excesses of the Crown's address. We turn to a consideration of the extent to which these features of the Crown's address transgressed the principles underpinning the role of the Crown Prosecutor in a criminal trial.
The Role of the Crown Prosecutor and the Limits of Trial Advocacy
This Court recently had occasion to repeat those aspects of the decision in R v McCullough (1982) 6 A Crim R 274 (at 285), touching upon the duties of a Crown Prosecutor, in KNP v Regina [2006] NSWCCA 213 at [32]. McCullough has also been referred to, with approval, in the course of this Court's decisions in R v Joseph Attallah [2005] NSWCCA 277, R v Liristis (2004) 146 A Crim R 547 at 563ff and R v Rugari (2001) 122 A Crim R 1 at 10. For present purposes, it is necessary to set out the following aspects of the dicta in McCullough:-
It cannot be too often made plain that the business of counsel for the Crown is fairly and impartially to exhibit all the facts to the jury. …… However, it should also be said that the observance of those canons of conduct is not incompatible with the adoption of an advocate's role. 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. As the New Zealand Court of Appeal said in Roulston … ‘it has always been recognised that prosecuting counsel must never strain for a conviction, still less adopt tactics that involve an appeal to prejudice or amount to an intemperate or emotional attack upon the accused.’
…………………………………………………………………….
The feel and atmosphere of one trial may make it reasonable and even necessary for tactics to be employed that would seem out of place and disproportionate to the circumstances of another. Nevertheless, it is wrong for Crown counsel to become so much the advocate that he is fighting for a conviction and quite impermissible to embark upon a course of conduct calculated to persuade a jury to a point of view by the introduction of factors of prejudice or emotion. If such a situation should develop and there is a real risk that the conduct complained of may have tipped the balance against the accused then an appellate court will not hesitate to follow the safe course and order a new trial. (Italics not in original)
A seminal statement of the responsibilities of a Crown Prosecutor in a criminal trial appears in Whitehorn v The Queen (1983) 152 CLR 657 at 663-664 per Deane J:-
Prosecuting counsel in a criminal trial represents the State. The accused, the court and the community are entitled to expect that, in performing his function of presenting the case against an accused, he will act with fairness and detachment and always with the objectives of establishing the whole truth in accordance with the procedures and standards which the law requires to be observed and of helping to ensure that the accused trial is a fair one. The consequence of a failure to observe the standards of fairness to be expected of the Crown may be insignificant in the context of an overall trial. Where that is so, departure from those standards, however regrettable, will not warrant the interference of an appellate court with a conviction. On occasion however, the consequences of such a failure may so affect or permeate a trial as to warrant the conclusion that the accused has actually been denied his fundamental right to a fair trial. As a general proposition, that will, of itself, mean that there has been a serious miscarriage of justice with a consequence that any conviction of the accused should be quashed and, where appropriate, a new trial ordered. (Italics not in original)
In R v Callaghan (1993) 70 A Crim R 350 at 356, the Queensland Court of Appeal held that it was not appropriate that Crown Prosecutors use the dignity of their office to tell a jury something that is not in evidence and that counsel’s role is to make submissions, not express personal opinions or enter the fray as a contestant.
In R v Kennedy (2000) 118 A Crim R 34 at 41; [2000] NSWCCA 487, Studdert J, with whom Heydon JA and James J agreed, found submissions by the Crown Prosecutor, which were critical of a Crown witness who was not sought to be declared unfavourable, improper. It was held that the submissions may well have influenced the jury to reject evidence that the witness gave which was favourable to the accused’s case and which impacted on the credibility of the complainant. This was said to be a “serious irregularity” resulting in a miscarriage of justice.
In Rugari, Carruthers AJ, with whom Spigelman CJ and Sperling J agreed, explored a number of breaches by the Crown Prosecutor of the "reasonable restraints" imposed upon him. In particular, an expression by the Crown Prosecutor of his own view of the quality of the evidence was said to be inappropriate. There were other inappropriate comments, which when taken together, gave rise to the prospect that in convicting the accused, the jury was "actuated, partly at least, by the inappropriate and prejudicial remarks made by the Crown Prosecutor" (at 12).
In Liristis, the description by the Crown Prosecutor of the accused’s evidence as "pathetic" and comments in the course of the Crown's address which included his own reaction to the evidence given by the accused were said not to exhibit the fairness and detachment which a Crown Prosecutor is expected to have, in accordance with Deane J's statement in Whitehorn.
Similarly, in KNP, the introduction in the closing address of the Crown Prosecutor's personal thoughts was said to be "a gross breach of his duty to present the Crown case in an impartial and fair manner. By imposing his own view on the jury there was a risk that they might believe that they were required to decide whether the prosecutor was correct in his personal views rather than assessing for themselves whether the evidence proved the Crown case." (per McClellan CJ at CL at [53])
This brief review of the authorities relevant to the disposition of this appeal disclose a number of features of a Crown address that have, either alone or in combination, consistently been held to justify the censure of this Court. They are:-

(i) A submission to the jury based upon material which is not in evidence.
(ii) Intemperate or inflammatory comments, tending to arouse prejudice or emotion in the jury.
(iii) Comments which belittle or ridicule any part of an accused’s case.
(iv) Impugning the credit of a Crown witness, where the witness was not afforded the opportunity of responding to an attack upon credit.
(v) Conveying to the jury the Crown Prosecutor's personal opinions.

In distilling these features, it is not suggested that a formulaic approach may be taken in assessing whether or not a Crown address exceeds the proper boundaries. On occasions, it may be that the overall tenor or impression made upon a jury by a Crown address which exhibits few, if any, of these features nonetheless gives rise to the prospect that an accused has not received a fair trial. However, where a number of these features are present in a Crown address, there is a very real risk that a ground of appeal based upon the unfairness occasioned to an accused by such an address will succeed.
The Crown address in the instant case displayed all of the above features with the exception of (iv). The Crown made a submission to the effect that women who are raped will invariably have a shower or bathe because they feel “dirty" in the aftermath of the assault. This submission was without any foundation in the evidence at trial. No doubt the Crown Prosecutor anticipated that the appellant's counsel at trial would place some reliance on this aspect of the complainant's behaviour, it being consistent with consensual sexual intercourse. The complainant was not asked why she had showered. Rather, the Crown Prosecutor professed some personal knowledge of this characteristic of rape victims as depicted in movies. The jury was then invited to rely upon their own experience of such films, which may or may not have accorded with the Crown Prosecutor’s opinions.
The interpretation of the behaviour of a victim of rape in popular films is hardly a reliable basis upon which to found such a submission. Apart from asking the complainant directly, it would have been permissible for the Crown Prosecutor to ask the examining doctor (who was no doubt appropriately qualified) whether it was within her experience that victims of rape complained of feeling sullied and "dirty" and often showered after the assault, despite the likelihood that valuable forensic material would thereby be destroyed. However, no such course was taken.
The repeated characterisation of the complainant's boyfriend as an "idiot" was highly improper. The trial judge was correct in suggesting to the jury that the Crown Prosecutor was not asking the jury to disregard what the witness had heard and seen on the night in question. In that sense, the Crown Prosecutor’s submissions were not strictly speaking an attack upon the credit of the complainant's boyfriend.
However, the vice in the submission was much more insidious. It was an intemperate attack that was inclined to arouse the jury’s prejudice towards a Crown witness who was integral to the defence case theory. It was also a submission that was designed to ridicule and belittle that case theory. By conveying to the jury in no uncertain terms that counsel representing the interests of the community and of the State regarded a witness as a fool to entertain for one moment the thought that the complainant may have had consensual sexual intercourse with the accused, the jury were in effect being told that they were also fools if they were to reach the same conclusion. Such a submission represents a significant departure from the responsibilities and obligations of a Crown Prosecutor to persuade a jury of an accused’s guilt by way of balanced and rational argument based upon the evidence in the trial.
It was always open to the Crown Prosecutor to simply make the submission that the conclusions initially reached by Mick were perhaps founded upon an instinctive jealous reaction, rather than a calm, rational appraisal of what the complainant had said and done. It was also true that those conclusions were entirely irrelevant for the purposes of the trial. However, it is noteworthy that the Crown Prosecutor did not object at any stage to a long series of questions in cross-examination of the complainant's boyfriend, that elicited his thoughts and feelings at the relevant time.
The Crown Prosecutor made a number of comments that could have had no effect other than to ridicule the defence case. References to the defence case as "bizarre", "silly" and reminiscent of a plot worse than “Desperate Housewives” disparaged and dismissed the accused’s case. The objective features surrounding the alleged assaults upon the complainant provided the appellant with ample material capable of raising a reasonable doubt in the minds of the jury as to the alleged non-consensual nature of the sexual activity. It was the critical issue in the trial and was worthy of serious consideration. The Crown Prosecutor's comments may well have deflected the jury from that task.
On a significant number of occasions the Crown Prosecutor conveyed his personal opinions in relation to the evidence and the arguments he anticipated from the appellant's counsel at trial. In telling the jury a number of times that he did not understand some aspect of the defence case, or that he must be "slow", these submissions potentially dissuaded the jury from devoting proper care and attention to a consideration of defence counsel's arguments. The jury was implicitly told that the defence case was beyond comprehension.
The Crown Prosecutor’s pre-emptive attempt at neutralising the submissions, of which legitimate complaint has been made, did nothing to reduce or remove the prejudice to the appellant’s case at trial. Declaring to the jury that his opinions were “completely irrelevant” simply highlights the error in conveying them to the jury at all. Once conveyed, they were designed to have an effect, that is, influencing the jury to peremptorily reject the appellant’s defence. The authority of the Crown Prosecutor’s office was abused in that respect.
The combination of these features of the Crown address represents a serious departure from the standards of fairness required of a Crown Prosecutor. Moreover, we would be inclined to that view solely on the basis of the Crown Prosecutor’s disparagement of a Crown witness whose evidence was partly favourable to the appellant (see Kennedy). That aspect of the Crown address was particularly damaging, and the trial judge’s somewhat qualified reproof (“probably not appropriate”) was insufficient in the circumstances.
We acknowledge that the trial judge was placed in an invidious position when the application for discharge was made. No doubt, his Honour expected a measure of redress by way of defence counsel’s address. Yet defence counsel’s address could not counter the abuse of the Crown Prosecutor’s role. His Honour was required to lend his authority to an unambiguous denunciation of the Crown Prosecutor’s conduct. That was not done.
In any event, it would be difficult, if not impossible, to formulate directions which one could confidently assert were capable of restoring the appropriate balance to the trial. Having regard to the fact that the only issue for the jury was whether the Crown had proved beyond reasonable doubt that the complainant did not consent to sexual intercourse with the appellant, and having regard to the extent to which the Crown address deflected the jury from that issue, the trial judge should have acceded to the discharge application.
This Court might be forgiven for thinking that repeated condemnation of similar Crown addresses appears to have fallen on deaf ears. This is the latest in a series of appeals before this Court where a ground of appeal has alleged extravagant and improper submissions being advanced by a Crown Prosecutor during the closing address to a jury. In the present case, the Crown Prosecutor addressed the jury on 2 June 2005. By that time, a number of emphatic statements had been made by this Court in R v MRW (1999) 113 A Crim R 308 (10 December 1999); Kennedy (23 November 2000); Rugari (9 March 2001) and Liristis (27 August 2004). Since then, the Court has been required, once again, in Attallah (25 August 2005) and KNP (20 July 2006) to emphasise the obligations of a Crown Prosecutor in addressing a jury.

The statements made by this Court in those decisions are not novel. They emphasise the traditional role and duties of a prosecutor. In this State, Crown Prosecutors are appointed under the Crown Prosecutors Act 1986. A Crown Prosecutor is responsible to the Director of Public Prosecutions for the due exercise of the Crown Prosecutor’s functions: s.4(4) Crown Prosecutors Act 1986. The functions of Crown Prosecutors include appearing as counsel in proceedings on behalf of the Director: s.5(1)(a) Crown Prosecutors Act 1986. Crown Prosecutors perform their functions on behalf, and under the control, of the Director: R v Janceski (2005) 64 NSWLR 10 at 50 [253].

The Director may furnish written guidelines to Crown Prosecutors with respect to the prosecution of offences: s.13(1) Director of Public Prosecutions Act 1986. Pursuant to this power, the Director has issued Prosecution Guidelines. Chapter 2 of those Guidelines relates to the role and duties of the prosecutor.

Recent statements of the High Court of Australia emphasise the contemporary and continuing obligation of a prosecutor to present a case fairly and completely: Subramaniam v The Queen (2004) 79 ALJR 116 at 127-128; [2004] HCA 51 at [54]. In that case, the High Court referred to the well-known propositions that prosecutors “are to regard themselves as ministers of justice and not struggle for a conviction” and that although “the duty of a prosecutor is to prosecute and not to defend, nevertheless it has long been established that a prosecution must be conducted with fairness towards the accused and with the single view to determining and establishing the truth”.
We would add, with emphasis, that the role of the prosecutor must be performed without any concern as to whether the case is won or lost. As the High Court makes plain, the purpose of the prosecutor is to expose the truth which may or may not result in a conviction.

Chapter 2 of the Prosecution Guidelines of the Director of Public Prosecutions echoes these principles. Chapter 2 states with respect to the role and duties of a prosecutor:
It is a specialised and demanding role, the features of which need to be clearly recognised and understood. It is a role that is not easily assimilated by all legal practitioners schooled in an adversarial environment. It is essential that it be carried out with the confidence of the community in whose name it is performed.
‘It cannot be over-emphasised that the purpose of a criminal prosecution is not to obtain a conviction; it is to lay before a jury what the Crown considers to be credible evidence relevant to what is alleged to be a crime. Counsel have a duty to see that all available legal proof of the facts is presented: it should be done firmly and pressed to its legitimate strength, but it must also be done fairly. The role of the prosecutor excludes any notion of winning or losing; his function is a matter of public duty than which in civil life there can be none charged with greater personal responsibility. It is to be efficiently performed with an ingrained sense of the dignity, the seriousness and the justness of judicial proceedings.’
(per Rand J in the Supreme Court of Canada in Boucher v The Queen (1954) 110 CCC 263 at p 270.)
In this State that role must be discharged in the environment of an adversarial approach to litigation. The observance of those canons of conduct is not incompatible with the adoption of an advocate's role. The advocacy must be conducted, however, temperately and with restraint.
The prosecutor represents the community generally at the trial of an accused person.
[The passage from the judgment of Deane J in Whitehorn, set out at paragraph 25 of this judgment, is reproduced at this point in the Guidelines]
Nevertheless, there will be occasions when the prosecutor will be entitled firmly and vigorously to urge the prosecution's view about a particular issue and to test, and if necessary to attack, that advanced on behalf of an accused person or evidence adduced by the defence. Adversarial tactics may need to be employed in one trial that may be out of place in another. A criminal trial is an accusatorial, adversarial procedure and the prosecutor will seek by all proper means provided by that process to secure the conviction of the perpetrator of the crime charged.

Rules 62 to 65 of the New South Wales Barristers Rules are incorporated as Appendix B to the Prosecution Guidelines. These apply equally to solicitor advocates by operation of Rules A.62-A.65 of the Solicitors’ Rules of the Law Society of New South Wales. Those Rules provide as follows:
62.A prosecutor must fairly assist the court to arrive at the truth, must seek impartially to have the whole of the relevant evidence placed intelligibly before the court, and must seek to assist the court with adequate submissions of law to enable the law properly to be applied to the facts.
63.A prosecutor must not press the prosecution's case for a conviction beyond a full and firm presentation of that case.
64.A prosecutor must not, by language or other conduct, seek to inflame or bias the court against the accused.
65.A prosecutor must not argue any proposition of fact or law which the prosecutor does not believe on reasonable grounds to be capable of contributing to a finding of guilt and also to carry weight.
In MRW at 317 [40-41] and Rugari at 9 [45], reference was made to Bar Rules 63 and 64 and the Prosecution Guidelines of the Director of Public Prosecutions. In Rugari at 9 [46], Carruthers AJ (Spigelman CJ and Sperling J agreeing) observed that these rules were not intended to inhibit a prosecutor presenting the Crown case in a firm and positive manner.

A Code of Conduct was issued by the Director of Public Prosecutions in May 2005. The Code applies to, amongst others, Crown Prosecutors (clause 9). The Code of Conduct requires compliance with the Director’s Prosecution Guidelines and the professional conduct and practice rules of applicable professional associations.

A consequence of the Crown Prosecutor’s conduct in the present appeal (as in MRW, Kennedy, Rugari and Liristis) is that the appeal must be allowed. There has been a significant denial of procedural fairness that does not allow for the application of the proviso: Weiss v The Queen (2005) 80 ALJR 444 at 455; [2005] HCA 81 at [45]. The conviction should be quashed and there should be a new trial.

The adverse impact upon the administration of justice, in these circumstances, is clear. It is expected that Crown Prosecutors will comply with professional ethical rules and statutory guidelines issued by the Director of Public Prosecutions which are consistent with judicial statements emphasising the duties of a prosecutor in a criminal trial.

We would uphold the first and second grounds of appeal.
Accordingly, the orders are: -
1. The appeal is allowed.
2. The convictions and the sentences imposed on the appellant on 5 August 2005 are quashed.
3. Order a new trial.

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LAST UPDATED: 16/11/2006

[2006] NSWCCA 334

20 October 2006