R v Thompson

SUPREME COURT OF VICTORIA

COURT OF APPEAL

No 51 of 2007

THE QUEEN
	v
LLOYD RONALD THOMPSON

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JUDGES:	NEAVE and REDLICH JJA and HANSEN AJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	3 March 2008
DATE OF JUDGMENT:	21 August 2008
MEDIUM NEUTRAL CITATION:	[2008] VSCA 144	1^st Revision 27 August 2008 – [150]

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CRIMINAL LAW – Appeal against Conviction – Intentionally causing serious injury – Factual dispute regarding how serious injury inflicted – Whether self defence was a ‘real issue’ – Whether necessary to direct jury that act must be voluntary and deliberate.

Evidence – Whether miscarriage of justice resulted from trial judge permitting prosecutor to address jury on applicant’s breach of rule in Browne v Dunn (1893) 6 R 67 when prosecutor himself had breached rule – Steps that should be followed to ensure fair trial where Crown seeks to rely on breach of rule – Comment to jury by prosecutor impermissible – Need for judicial warning – Consequences of unfair attack on applicant’s credit.

Jury direction – Adequacy of oral directions to jury – Jury given written material – Use of written material to supplement oral directions – Minimum requirements of oral direction discussed – Failure to give oral directions as to the issues, the evidence and the case for each party – Written material not a substitute for necessary oral directions – Jury instructed to refer to written materials only if a problem arose – Appeal allowed – New trial ordered.

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APPEARANCES:	Counsel	Solicitors
For the Crown	Mr T Gyorffy	Ms A Cannon, Solicitor for Public Prosecutions
For the Applicant	Mr D A Dann	Victoria Legal Aid

NEAVE JA:

On 15 December 2006, following a jury trial in the Supreme Court of Victoria, the applicant, Lloyd Ronald Thompson, was acquitted of one count of attempted murder (count 1) of Matthew Wilson, but found guilty of the alternative count of intentionally causing serious injury to Matthew Wilson (count 2). He was sentenced to 7 years’ imprisonment with a non-parole period of 5 years. This is an application for leave to appeal against that conviction.

Originally, the applicant also applied for leave to appeal against his sentence. That application was dismissed because a full statement of grounds was not filed and his counsel did not seek to revive it.

Background

The charges arose out of a fight between the applicant and Wilson, during which Wilson suffered various injuries, including a stab wound to the chest. The evidence as to the events which led to Wilson’s injuries can be summarised as follows.

In August 2005, the applicant, who was then aged 52, moved into a boarding house in Blackburn. Wilson had moved into the boarding house about 10 months previously and lived in the bungalow next to the applicant. Both men were chronic alcoholics.

Wilson’s evidence was that he had had some conflict with the applicant before the day of the stabbing. He said that about four weeks before the stabbing the applicant had told him he was a bad father, because he drank in front of his children. Wilson said that shortly after the applicant moved into the boarding house he had lent the applicant some cooking utensils and other items and had later found them in the rubbish bin. When he had asked the applicant about this Thompson had sworn at him and kicked or punched the door of his bungalow.

In his evidence-in-chief the applicant denied that there had been any animosity between himself and Wilson, until the events which occurred shortly before Wilson’s stabbing. However, in cross-examination, he agreed that he ‘took a particular disliking to Wilson’ on the first night he had moved into the boarding house.

On 5 September 2005, Wilson spent the day drinking cask wine with another resident of the boarding house, David Simms.[1] Early that evening, a few residents of the boarding house, including the applicant and Wilson, were talking and drinking in the room of another one of the residents, Melissa McLean. There was an altercation during which the applicant chastised Wilson for being a bad father and ‘sponging off’ the other residents. Shortly afterwards, while Wilson was sitting on the ground, the applicant gave him a backhand blow to the face.
[1]There was some confusion about whether his children visited him that day, but it does not appear to be material to the facts in issue.

Wilson’s and McLean’s evidence was that this attack was unprovoked. The applicant’s evidence was that he slapped Wilson in response to Wilson insulting him and using a wine cask he was holding to stub his toe.

Following the blow to his face, Wilson left the room without retaliating, saying he was going to call the police. He went to the room of another resident, Gay Thomson, and did in fact call the police.

A little while later, there was another argument between the applicant and Wilson. According to the applicant this argument escalated into a knife attack on him by Wilson. According to Wilson he was the one who was attacked by the applicant. Whoever the aggressor was, Wilson suffered injuries to his eye, his finger and his head, and a collapsed lung as the result of a knife wound in his chest.

The varying accounts of the fight

The key factual issues in this case related to the initiation of the fight and how Wilson’s wounds were inflicted. I now turn to the evidence on these matters.

The day after the fight, Wilson made a statement to the police from his hospital bed. He said that he had injured himself by stumbling when he was drunk. About a week later he retracted that statement and made a new statement in which he said that he had been stabbed by the applicant. Wilson gave evidence that he had lied initially because he was scared of the applicant and his ‘friends’. He said that after he had been stabbed by the applicant but before the police came, the applicant had said to him: ‘Don’t lag on me, you know what laggers get’ and ‘You’ve got a family’.

At the trial, Wilson’s evidence of the fight was as follows. He, Wilson, was sitting on the bed in his bungalow drinking some wine when the applicant abused him, firstly from outside his door and then from about two feet inside the bungalow. The applicant spoke aggressively and loudly and called him a drunk and a bad father. He asked the applicant to leave, got up off his bed and started to walk over to the doorway to put the applicant out of his room. At that point, the applicant picked up a knife that was on a computer stand and attacked him.

In his examination-in-chief, Wilson gave evidence that the applicant pushed him face down on the bed and started to stab him repeatedly in the head. He said that he was lying crossways with his feet dangling off the side of the bed and the applicant sitting on top of him. He said he tried to gouge the applicant’s eyes to stop the stabbing and, at this point, the applicant rolled him over and stabbed him in his left eye. He said that he almost lost his finger trying to either protect himself or get the knife out. After that, he managed to break free and either sit or stand up, at which time the applicant stabbed him in the chest, just beneath his left nipple. When the knife was pulled out, he could see a big hole with air and blood coming out of it. He realised that it was a punctured lung and that in order to survive, he would have to lie down on his left hand side so that his good lung would not fill with blood.

Later, in cross-examination, it was put to him, and he accepted, that he had described the sequence of events and the order of the injuries differently in his evidence at the committal hearing. He said that he had first been stabbed in the eye or somewhere in the face when he was wrestling with the applicant and then was stabbed in the back of the head. He was sitting on the bed when he was stabbed in the chest.

Counsel for the applicant put it to Wilson that it was he who first grabbed the knife and that the applicant had in fact attempted to get it away from him. Wilson denied that he had first grabbed the knife and said that he ‘disagreed very strongly’ with counsel’s proposition that the injury occurred while the applicant was trying to get the knife away from him.

Counsel for the applicant put it to Wilson that there had been a verbal exchange between the men in the yard after he had phoned the police. Wilson agreed. Counsel then suggested that Wilson had lost his temper, grabbed the knife and come out of his bungalow holding it. The applicant had grabbed the hand holding the knife and told Wilson to drop it and the men had then fallen into Wilson’s bungalow. The applicant had then got some wine for Wilson, but Wilson had grabbed the knife, the fight had started again and the applicant had been injured. Wilson denied that this is what had occurred or that the injuries had been inflicted when the applicant tried to get the knife away from him.

In his initial police interview the applicant said that he did not know Wilson’s name and that he had gone back to his room to get something when he found someone bleeding outside the door of their bungalow. He helped this person by getting a towel and rang 000. He carried the man to his bed and stayed with him until the police came. Later in his interview he was asked if he had any comment about having an argument with Wilson about ‘some trivial matter’ earlier in the evening and he said he did not remember it. He denied that he had ‘bitch-slapped’ Wilson in the face.

In his evidence-in-chief the applicant denied that he had stabbed Wilson or ‘made a stabbing action’ towards him. According to his evidence, it was Wilson who behaved aggressively towards him when they were drinking in Melissa McLean’s room. He said that after he had left the room he went to cook his dinner and saw Wilson standing in the door of his bungalow. Wilson said that at least his children came to visit him on Father’s Day and the applicant walked over towards him and shouted at him.

The applicant said that Wilson kept screaming abuse at him and then went back into his room and came out with the knife. The applicant yelled at him to drop the knife and they ended up struggling on the bed. He punched Wilson in the face, as a result of which Wilson sustained a laceration to his eye. The applicant said he had kept trying to push the knife away from him and that ‘The whole issue to me at the time was, was making him, you know, release the knife.’ He then saw the blood and called an ambulance.

The applicant denied having ever touched the knife. In cross-examination the applicant was asked whether he was terrified when Wilson came at him with the knife and he said that he was not.

Melissa McLean gave evidence for the prosecution. She said that the applicant had appeared ‘a little bit angry’ with Wilson while they were drinking in her room and that Wilson had left saying that he would telephone the police after he had been hit in the face. After the incident in her room she saw the applicant leaving the back door of the house. The applicant and Wilson were yelling at each other. She saw the applicant follow Wilson into his bungalow and Wilson yelling ‘Get out of my room, leave me alone.’ She said she went to her room, stayed there for 10-15 minutes and then walked towards Wilson’s room. She then saw the applicant from behind straddling Wilson and hitting him. Wilson was yelling ‘Get off me. Enough. Stop.’ She then ran to Gay Thomson’s bungalow. When she returned she saw Wilson sitting or lying on the bed, with the applicant standing nearby. Wilson was covered with blood.

Gay Thomson, another resident, said that around 8:30pm on the evening of the fight, Wilson had come to her bungalow and asked if he could come inside. He rang the police on his mobile phone then returned to his bungalow. Some time later Melissa McLean had knocked at her door in an hysterical state. She and McLean went to Wilson’s bungalow. She said her son came with her the first time she went to Wilson’s room but she did not know how far behind her he was. She saw Wilson on his back with the applicant on top of him. She could see the applicant’s arms going up and down but she could not see whether he was hitting Wilson. The applicant was saying ‘I’ll kill you. I’ll kill you’ and Wilson was saying ‘I’ve had enough, no more.’ She told McLean to ring the police and went back to her room.

Five to ten minutes later, McLean came back to Thomson’s room. As a result, Thomson and McLean returned to Wilson’s bungalow. When she got there she saw Wilson lying on his back covered in blood, with the applicant on top of him. A knife was lying on the bed and Wilson had a wound in his left side and on one of his eyes. The applicant yelled at her to ‘get out’ so she and McLean left and rang an ambulance.

Counsel for the applicant put it to Gay Thomson that there was no reference to the applicant saying ‘I’ll kill you’ in the statement she made to the police the morning after the incident. She said that she was sure the applicant had said it and that she was sure she had told the police as much. She could not explain why it was not in her statement.

Paul Thomson, Gay Thomson’s son, said that he was in his mother’s room when Wilson came in and called the police. The first time his mother had gone to Wilson’s room, he got up but stayed in the doorway of her room. The second time his mother went to Wilson’s bungalow he followed her. He said despite staying outside, he could see into the bungalow, that he had seen Wilson lying on the bed and the applicant sitting on the bed looking at Wilson. In re-examination he said that when he had stood in the doorway of his mother’s room he had heard screaming coming from Wilson’s room.

Medical and other evidence

Dr Donald Liew, a doctor in the emergency department at the Royal Melbourne Hospital, examined Wilson on the night of the fight. He gave evidence that Wilson had superficial lacerations and bruising to the face and head and a leak of cerebrospinal fluid from the nose. Wilson had a pneumothorax associated with the stab wound to the chest and a superficial laceration above the left eye. He thought the injuries to the head and face were consistent with blunt trauma.

Dr Andrea Warwick was a doctor in the department of trauma and surgery at the Royal Melbourne Hospital who treated Wilson the day after his admission. She said the hospital medical records indicated that Wilson suffered a two centimetre stab wound near the left nipple, a stab incision to the upper skull, three stab incisions of one or two centimetres each to the back of his head, a leak of cerebrospinal fluid from his nose, a laceration to his left upper eyelid and a laceration to his right little finger. The penetrating stab wound to his chest resulted in a pneumothorax. A later CT scan showed he had a fracture within the base of his skull.

Detective Sergeant Craig Brien, the police informant, said that he requested the knife be subjected to fingerprint analysis. However, he did not follow this up and it was never done. A DNA sample taken from the handle of the knife was tested against DNA samples taken from Wilson and the applicant. The sample obtained from the handle of the knife consisted of DNA from at least two individuals. The major sample matched the DNA profile of Wilson. The evidence was that it was likely that this major component came from blood as the handle tested positive for blood and blood contains a lot of DNA. The minor sample was not suitable for comparison. Testing of the applicant’s clothing indicated blood stains from Wilson which were consistent with the applicant being in close proximity to Wilson’s wet blood when force was applied to it.

Ground 1

The first ground of appeal was that ‘the trial of the applicant miscarried in that the jury were not directed as to accident.’

At the trial, after discussion with counsel, his Honour decided that it would be appropriate to direct the jury on self-defence. According to this scenario, the injuries were inflicted by the applicant in the course of defending himself against a knife attack by Wilson.

On the hearing of this appeal, counsel for the applicant contended that although it may not have been necessary for his Honour to direct the jury on self-defence, once he had decided to do so it was necessary also to direct them on the possibility that the injuries were inflicted by the applicant by accident and not as the result of a willed act in the course of the struggle.

Counsel said that it was open to the jury to conclude that Wilson was injured while Thompson was in the process of wresting the knife from him or that the injuries were inflicted while both the applicant and the alleged victim were holding the knife. This was not a fanciful scenario which could be left to one side. His Honour should therefore have directed the jury that they must be satisfied beyond reasonable doubt that Wilson was injured by a conscious and voluntary act on the part of the applicant. Counsel relied on R v Schaeffer[2] in support of this ground of appeal.
[2](2005) 159 A Crim R 101.

Counsel for the Crown said that Schaeffer did not support the proposition that the jury should have been given a separate direction about the need to show that the applicant’s acts were conscious and voluntary in the circumstances of this case. The error in Schaeffer was the trial judge’s reference to reasonable foreseeability in his jury charge, rather than any failure to direct the jury as to the need to find the act of stabbing was conscious and voluntary.[3] Counsel submitted that it was unnecessary for the jury to be directed that they must consider the possibility that the injuries were inflicted by accident in the course of a struggle, because of the way the trial had been conducted.
[3]See, in particular, R v Schaeffer (2005) 159 A Crim R 101, [20] (Eames JA).

In my opinion the Crown submission should be accepted. Pemble’s case requires a trial judge to give the jury

an adequate direction both as to the law and the possible use of the relevant facts upon any matter upon which the jury could in the circumstances of the case upon the material before them find or base a verdict in whole or in part.[4]

[4](1971) 124 CLR 107, 117–118 (Barwick CJ).

Thus, if there was an evidentiary basis on which the jury could have regarded the victim’s chest wound as having been accidentally inflicted in the course of the applicant’s struggle with Wilson, his Honour would have had to direct the jury that the applicant could not be convicted, unless they were satisfied beyond reasonable doubt that the injury to Wilson was caused by the applicant’s conscious and voluntary act.[5] However, in the circumstances of this case, I do not consider that the evidence required his Honour to give such a direction.
[5]Cf R v Tran [2007] VSCA 19, [8] (Nettle JA); [39] (Redlich JA).

As is apparent from the description of the evidence above, the prosecution case was that the applicant had been involved in a confrontation with Wilson earlier in the evening. After a later argument with him in the yard the applicant entered Wilson’s bungalow, attacked him and then picked up a cooking knife belonging to Wilson and stabbed him.

The defence case was that Wilson had initiated the attack – the knife belonged to him – and had been injured in the course of a struggle in which the applicant attempted to force him to drop the knife.

The hypothesis that the injuries to Wilson were accidentally caused in the course of a struggle in which Thompson had got hold of the knife was not put in the defence counsel’s opening or closing address to the jury. The trial judge therefore correctly took the view that the issue in dispute was whether the applicant deliberately attacked Wilson with the knife.

His Honour’s decision to direct the jury on self-defence was unduly favourable to the applicant, because that issue did not arise on the evidence. The applicant testified that he had not been afraid of Wilson. Although his Honour gave a direction on self defence, his Honour was not required to direct the jury that they must exclude the possibility that Wilson was accidentally stabbed by the applicant, while the applicant was defending himself. As Gleeson CJ observed in Doggett v R:

The manner in which a trial is conducted, and in which the issues are shaped, especially where (as in the present case) an accused is represented by experienced and competent counsel, has a major influence upon the way in which the case is ultimately left to the jury, and upon the directions, comments and warnings, from the trial judge to the jury, that may be appropriate or necessary. Directions are not ritualistic formularies. Their purpose is to assist the jury in the practical task of resolving fairly the issues which have been presented to them by the parties.[6]

[6](2001) 208 CLR 343, 346.

As Nettle JA observed in R v Tran, a consequence of that purpose is that

when an accused person has been convicted, and appeals, and there is an attempt to present the defence case in a new way, it is necessary, when evaluating criticisms of a trial judge's directions to a jury, to relate those criticisms to the manner in which the trial was conducted. [7]

[7][2007] VSCA 19, [7].

In this case, the applicant was, in effect, seeking to run a new case on appeal. His Honour clearly directed the jury that the accused could not be convicted unless they were satisfied that he intended to injure Wilson.

In my opinion, ground 1 is not made out.

Ground 2

The second ground of appeal was that:

The trial of the applicant miscarried as a result of the learned prosecutor’s comments upon the failure of the applicant’s counsel to cross-examine witnesses as to certain matters.

In his evidence-in-chief, the applicant said that after he and Wilson began arguing in McLean’s room, Wilson ‘picked up his cask of wine and he stabbed [which presumably should read ‘stubbed’] me in the toe with his cask of wine’. This was said to have occurred before the applicant struck Wilson and could have provided some slight support to the defence case that Wilson had initiated the fight which occurred later.

At the trial, counsel for the Crown objected to that evidence on the basis that it (and some of the applicant’s previous answers about what happened in McLean’s room) had never been put to the Crown witnesses by the applicant’s counsel. He said that this was a breach of the rule in Browne v Dunn.[8]
[8](1893) 6 R 67, 70 (LJ Herschell).

During cross-examination counsel for the Crown put to the applicant that he was at all stages the ‘hunter’ and ‘the aggressor’ and that he had lost his temper with Wilson in McLean’s room. The applicant denied both these allegations. Counsel for the Crown did not ask him why Wilson and McLean had not been asked about the alleged wine cask incident.

The Browne v Dunn issue was again raised in discussion before counsels’ final addresses. Counsel for the Crown said that he would be suggesting to the jury that a great deal of the applicant’s evidence about various topics had not been put to Wilson or any of the Crown witnesses and that the incident in McLean’s room ‘was just made up’ by the accused as he went along in an attempt to deflect the blame back to Wilson. He told the judge that in these circumstances it was usual for the judge to direct the jury that there could have been a reason why the matter was not put to the witnesses and that it might have been a mistake. He asked his Honour to give the appropriate direction.

Counsel for the applicant then said that the wine cask incident had been in his instructions for months but that he had dealt with the matter on the basis that it was accepted that Thompson had assaulted Wilson in McLean’s room. He said that he had understood that the wine cask incident was simply background material and would not be relied upon by the Crown as a motive for the assault. His client should therefore not be penalised by the fact that this matter had not been put to the Crown witnesses.

This discussion with the judge focussed mainly on the failure of defence counsel to put the ‘wine cask’ incident to the Crown witnesses. After that discussion the learned trial judge said he would wait until after counsels’ addresses to decide whether it was necessary to direct the jury that there might have been a reason why defence counsel did not put some matters to Crown witnesses.

In his final address, counsel for the Crown referred to the failure of the applicant’s counsel to put matters to Crown witnesses and attacked the credit of the applicant as he had foreshadowed. He said that ‘There is in this case, though, one real consistency and that is that not one witness sees Wilson attack the applicant in any way at any time.’ He went on to say that:

The evidence of the accused man as to the version of his events in the bungalow, I suggest to you, is fanciful nonsense. He doesn’t have to prove anything. I don’t say that to suggest he does, I say it because you will have to be satisfied beyond reasonable doubt that you reject it.
Some of his evidence you heard for the first time, [sic] not been put to Crown witnesses. One might have expected Mr Brien or Mr Kelly to be asked about the fact that they had told Mr Thompson certain things about the interview which seemed to play on his mind as to why it seems he answered questions incorrectly in the record of interview. No such question was asked of the police officers.
Even the supposed non-disputed area of what happened in Melissa McLean’s room suddenly took on a slightly different tinge when we heard for the first time that the applicant said, “Well, Wilson I think jabbed me in the toe or something with his wine cask and that’s why I got up and smacked him across the face.” Well, Wilson or McLean weren’t asked about that.
That may, in your mind, if you thought they were significant, affect the weight that you might give to Mr Thompson’s evidence. They are three examples of it.
His evidence was full of inherent inconsistencies. He seemed to know enough about Wilson despite his evidence that he didn’t have much contact with anyone, that he knew about him perhaps, whether falsely or rightly, knowing about how he was ripping people off and he knew about his kids and he knew about his drinking. He had only been there a few weeks. He seemed to know a lot about him and take a specific interest in him, perhaps because he didn’t like him from day one.

It will be noted that the matters on which counsel relied as ‘affecting the weight that the jury should give to the applicant’s evidence’ went beyond the wine cask incident and extended to the defence counsel’s failure to ask Mr Brien and Mr Kelly about things the applicant said they had told him.

The reference to Mr Brien and Mr Kelly requires some explanation. During cross-examination, the accused was asked why he had said in his police interview that he had found Wilson injured outside his bungalow. The applicant conceded in cross-examination that this was a lie. When asked by prosecution counsel why he needed to lie to the police about that he said ‘because every, the police were telling me lies about it’.

Counsel for the Crown then suggested to him that that was nonsense and he responded ‘well I was getting one version, from Mr Kelly and one version, from Lamont[9] and Mr Brien give me another version’ and he then said that he had believed the police when they had told him ‘Mr, Matt Wilson was okay’. He was asked how he could possibly have believed that when he had seen how badly injured Wilson was and he said that the ambulance drivers had told him Wilson was ‘OK’ and that he had believed it.
[9]Senior Constables Kelly and Lamont attended the crime scene. Lamont did not testify. Brien interviewed the applicant after he was arrested and taken to the police station and also took statements from Wilson.

As I have said counsel for the Crown did not ask the applicant why his counsel had not put the wine cask incident to McLean or Wilson. Nor did he ask the applicant to explain why this matter was raised for the first time in his own evidence. Although counsel cross-examined the applicant about why he had lied to the police he did not ask him why his counsel had not cross-examined the police officers about whether they had told the applicant that Wilson was all right.

The learned trial judge did not make any comment on these matters in his jury directions. Neither counsel took exception to the charge.

On the hearing of the appeal, counsel for the applicant submitted that the failure to give such a direction had resulted in a miscarriage of justice because of the attack on the applicant’s credit which the prosecutor made in his closing address. He said that because the only witnesses to the stabbing were the applicant and Wilson, the applicant’s credibility was fundamental to the case. His Honour’s failure to comment on the remarks made by the prosecutor in his closing address had resulted in an unfair and unbalanced jury direction. Defence counsel had previously told the judge, in the absence of the jury, that he had received instructions about the wine cask incident, so that his failure to cross-examine Wilson or McLean about it did not reflect on the applicant’s credit.

Counsel for the Crown submitted that the prosecutor had raised his concerns about defence counsel’s failure to put the wine cask incident to Wilson and McLean before his final address. He said that counsel for the applicant could have sought recall of the witnesses and put these questions to them. Since he had not done so the applicant could hardly complain about the prosecution counsel’s attempt to redress the balance in his final address. For that reason the applicant’s counsel’s explanation as to his failure to put the wine cask incident to the Crown witnesses was irrelevant.

In MWJ v R[10] the High Court discussed the rule in Browne v Dunn and the extent to which it applied in criminal trials. Gleeson CJ and Heydon J explained the rationale of the rule as follows:

The principle of fair conduct on the part of an advocate, stated in Browne v Dunn, is an important aspect of the adversarial system of justice. It has been held in England, New South Wales, South Australia, Queensland, and New Zealand, to apply in the administration of criminal justice, which, as well as being accusatorial, is adversarial. Murphy J, in this Court, even applied it to the conduct of an unrepresented accused. However, for reasons explained, for

example, in R v Birks[11] and R v Manunta[12], it is a principle that may need to be applied with some care when considering the conduct of the defence at criminal trial. Fairness ordinarily requires that if a challenge is to be made to the evidence of a witness, the ground of the challenge be put to the witness in cross-examination. This requirement is accepted, and applied day by day, in criminal trials. However, the consequences of a failure to cross-examine on a certain issue may need to be considered in the light of the nature and course of the proceedings. [13]

[10](2005) 222 ALR 436.

[11](1990) 19 NSWLR 677, 686-691.

[12](1989) 54 SASR 17.

[13]MWJ v R (2005) 222 ALR 436, [18] (some citations omitted).

In their joint judgment Gummow, Kirby and Callinan JJ said that:

The rule [in Browne v Dunn] is essentially that a party is obliged to give appropriate notice to the other party, and any of that person's witnesses, of any imputation that the former intends to make against either of the latter about his or her conduct relevant to the case, or a party's or a witness' credit.
One corollary of the rule is that judges should in general abstain from making adverse findings about parties and witnesses in respect of whom there has been non-compliance with it.[14] A further corollary of the rule is that not only will cross-examination of a witness who can speak to the conduct usually constitute sufficient notice, but also, that any witness whose conduct is to be impugned, should be given an opportunity in the cross-examination to deal with the imputation intended to be made against him or her. An offer to tender a witness for further cross-examination will however, in many cases suffice to meet, or blunt a complaint of surprise or prejudice resulting from a failure to put a matter in earlier cross-examination. …
Reliance on the rule in Browne v Dunn can be both misplaced and overstated. If the evidence in the case has not been completed, a party genuinely taken by surprise by reason of a failure on the part of the other to put a relevant matter in cross-examination, can almost always, especially in ordinary civil litigation, mitigate or cure any difficulties so arising by seeking or offering the recall of the witness to enable the matter to be put. In criminal cases, in many jurisdictions, the salutary practice of excusing witnesses temporarily only, and on the understanding that they must make themselves available to be recalled if necessary at any time before a verdict is given, is adopted. There may be some circumstances in which it could be unfair to permit the recalling of a witness, but in general, subject to the obligation of the prosecution not to split its case, and to present or make available all of the relevant evidence to an accused, the course that we have suggested is one that should be able to be adopted on most occasions without injustice.[15]

[14]Note that this was a trial by judge alone.

[15]MWJ v R (2005) 222 ALR 436, [38]-[40].

In the present case the issue raised by prosecution counsel during the trial related to inconsistencies between the evidence of the applicant and the evidence of Crown witnesses, on which the Crown witnesses were not cross-examined by defence counsel. A similar issue arose in MWJ.

However, the ground of appeal in this case raises a different question. It was the prosecutor’s remarks about the way that the failure to put matters to Crown witnesses reflected on the applicant’s credit and the lack of any direction on this matter by his Honour, which was said to have given rise to a miscarriage of justice. [16]
[16]Cf R v MG [2006] VSCA 264, [5] (Ashley JA).

The situation in this case is similar to that in R v Manunta.[17] In Manunta the appellant gave evidence in cross-examination that suggested that a police officer had made notes in a note pad or small book which was in a different form from the notes he relied on in his evidence. Another witness called on the applicant’s behalf gave evidence contradicting police evidence. Neither of these matters were put to the police in cross-examination.
[17](1990) 54 SASR 17.

In his jury charge the learned trial judge read passages in the evidence of the witness for the appellant and the police officers to the jury. On the appeal, King CJ said that it was ‘a matter of interpretation and impression as to whether what counsel put to the police officers sufficiently conveyed the substance of the evidence subsequently given by the appellant and [another witness who gave evidence on his behalf].’[18] He did not think the trial judge should be criticised for leaving it to the jury to decide what weight should be given to the matter.
[18]Ibid 23.

King CJ went on to express some concern about the prominence given to the issue in his Honour’s summing up. He said that:

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. Whether such matters should be brought to the attention of the jury and the manner in which that should be done are matters for decision by the trial judge in the atmosphere of the trial. I must say that the points raised with the jury based upon the failure to cross-examine do not seem to me to possess much weight. They were explained to the jury, however, quite fairly and their weight was a matter for the jury. I do not think that any error has been demonstrated.[19]

[19]Ibid 23-24.

In this case, counsel for the Crown should not have attacked the credit of the applicant in his closing address, without giving the applicant an opportunity to explain why certain matters were raised for the first time in his evidence. Counsel should have asked the applicant why these matters had not been put by his counsel to the Crown witnesses. By not doing so the prosecutor was himself in breach of the rule in Browne v Dunn.

That breach was not justified by defence counsel’s failure to cross-examine McLean and Wilson on the relevant inconsistencies. As Gummow, Kirby and Callinan JJ remarked in MWJ, the prosecutor could himself have sought to recall these witnesses for this purpose. [20]
[20](2005) 222 ALR 436, [41].

Further, even if the prosecutor’s comments were permissible, I consider that his Honour should have warned the jury to the effect that:

there may be many explanations for the omission by counsel to cross-examine which do not reflect upon the credibility of his client and other witnesses, for example, that counsel may have misunderstood his instructions, … or the matter might simply have been overlooked.[21]

[21]R v Laz [1998] 1 VR 453, 464; See also R v Manunta (1989) 54 SASR 17.

On balance, however, I do not consider that his Honour’s failure to give such a direction was productive of a miscarriage of justice. I take that view for four reasons.

First, there was no dispute about the fact that there had been a shouting match between the men in Ms McLean’s room and in the yard and that there was bad blood between Wilson and the applicant before Wilson was stabbed. Indeed, during the trial counsel for the defence said he had understood that the wine cask incident was simply background material. Having regard to the whole of the evidence, I do not consider that the issue of whether the applicant could be believed about the wine cask incident was likely to have been regarded by the jury as affecting the credibility of his evidence that he never got hold of the knife and that Wilson was stabbed in the course of a struggle in which the applicant tried to take the knife from him.

Secondly, even if counsel for the Crown had not referred to the failure to cross-examine Brien and Kelly about what they said to the applicant, in assessing the applicant’s credibility the jury were entitled to take account of the applicant’s prior inconsistent statement to the police, that he had found the applicant bleeding outside his bungalow. Even if Brien or Kelly had said in cross-examination that they had told the applicant that Wilson was all right, when he was in fact seriously injured, this would not explain why the applicant had lied to them in his first statement. The applicant did not say that he thought that the police were minimising the extent of the injury so that he would admit to stabbing Wilson. He said that he had believed that Wilson was ‘OK’.

Further, in the context of the applicant’s lies to the police, his Honour gave a warning about the use of lies as the basis for drawing inferences, which was not challenged on appeal. That warning was, of course, given for a different purpose and did not relate directly to the prosecution counsel’s attack on the applicant’s credibility based on the failure to cross-examine Kelly and Brien. However, the warning would have drawn the jury’s attention to the fact that people may lie for reasons other than because they have committed the offence. I therefore consider it would have minimised the effect on the applicant’s credibility which the prosecutor’s comments about the failure to cross-examine Brien and Kelly might otherwise have had.

Thirdly, although the credibility of the applicant’s evidence was in issue, I would reject the submission of counsel for the applicant that this was a word against word case. There was considerable other evidence supporting the Crown case that the applicant was the aggressor in the fight which occurred in the bungalow.

McLean testified that she saw the applicant bashing Wilson. Gay Thomson said that she saw the applicant on top of Wilson and heard Wilson say that he had ‘had enough’. Dr Liew, who saw Wilson in emergency, gave evidence that Wilson had lacerations and bruising around the face, including a laceration above his left eye and a leak of cerebrospinal fluid from his nose, as well as the penetrating chest wound. It was later discovered that the fluid leak was caused by a fracture at the base of Wilson’s skull. Although Dr Liew thought that the facial injuries were consistent with blunt trauma, Dr Warwick’s evidence, based on Department of Trauma Surgery records, was that Wilson had a stab incision on the top of his head, three stab incisions on the back of his head and a laceration to his right little finger, as well as a penetrating wound to his chest. The injuries suffered by Wilson were consistent with his account of what happened in the fight. In his evidence the applicant agreed that he had not suffered any injuries.[22]
[22]Dr Edward Morgan took a photograph of the applicant shortly after the incident which showed a laceration on his right cheek. The applicant said he had cut himself while shaving.

Finally, even though the prosecutor had requested a direction that there may be many explanations for the omission by counsel to cross-examine, when his Honour did not give such a direction as part of his charge defence counsel did not take exception. Although this does not relieve the trial judge of the obligation to adequately direct the jury, the lack of such an exception tends to indicate that, when viewed in the context of the trial by those who participated in it, the issue was not seen as an important one.

Having regard to the above matters I do not consider that either the prosecution counsel’s breach of the rule in Browne v Dunn or his Honour’s failure to direct the jury on how to deal with the matters raised in counsel’s closing address gave rise to a miscarriage of justice.

This makes it necessary to consider the third ground of appeal.

Ground 3

The third ground of appeal was that:

The trial of the applicant miscarried in that – as a result of the procedure adopted by the Learned Judge – in his charge to the jury:
(a)       the evidence in the case was not sufficiently summarised for the jury;
(b)       the evidence was not sufficiently related to the legal issues;
(c)       the defence case was not sufficiently summarised for the jury.

Before commencing his jury charge his Honour told the jury that he would give each of them a typed version of the charge and that:

At times if I think that it will help you, I will add words orally that are not in the typed version. At times I will amend what is in the typed version.
It is what I say to you orally that makes up my directions to you, not what is in the typed version.

His Honour also explained to the jury that he would provide them with a copy of a transcript of the evidence, a transcript of the final addresses of counsel, a summary of the evidence that he had prepared during the trial, a one page list of contents of the transcript of final addresses, and a three page guide to jury deliberations.

At the conclusion of his Honour’s jury charge he made the following remarks:

I have earlier provided each of you with a typed copy of these directions as to the law, as to the issues and as to relating the law to the evidence. I would stress that care has to be taken with all these six typed documents.
The documents are not provided upon the basis that you are expected to work through them. A criminal trial is an oral trial, not a trial on the paperwork. It’s highly desirable that it should remain so, rather than it be a trial on the papers.
Until recently juries were never given transcripts. Juries were never given a typed out version of the directions as to the law. They were only given oral directions and oral summaries of evidence and oral summaries of the final submissions of counsel by me and by the other judges. The jury had to come back into court to ask for details of the directions as to the law and of aspects of the evidence wherever there was uncertainty in the jury.
Recent studies of juries have revealed that juries would prefer not to have to keep on coming back into court. They would prefer to have the transcript so that they can check out details in their own time. I therefore tell you to put all these documents to one side unless and until you have a problem. Use them only to the extent that you have to. That specifically applies to my summary of the evidence which carries its own warning.
I prepared it intending to read it to you, but now see that that would take up time unnecessarily. Treat it as no more than a guide to the transcript of the evidence. Remember, too, the transcripts are not necessarily accurate and that you should not assume that they are accurate.

Counsel for the applicant contended that these comments, in combination with the relatively brief oral jury charge, created an unacceptable risk that the jury would be unable to adequately consider the evidence or relate the evidence to the legal issues. Counsel said that he did not and could not contend that it was inappropriate for a jury to be assisted by being given written material[23] but that it was essential for them to be given appropriate oral directions as well.
[23]This is legislatively authorised by the Crimes (Criminal Trials) Act 1999, s 19.

Counsel said that there were a number of conflicts as to matters of fact which were central to the Crown case. First, the victim had said that the applicant had stabbed him in the back of the head while some of the medical evidence suggested that his head and facial injuries were consistent with blunt trauma rather than being stabbed. Secondly, the position of the knife wound in Wilson’s chest was apparently inconsistent with the applicant’s evidence. Thirdly, there were inconsistencies in the evidence of Crown witnesses to which his Honour did not draw the jury’s attention. Fourthly, Wilson had admitted that he had lied in saying that he had been injured when he had fallen on the knife.

Counsel for the applicant contended that it was necessary for his Honour to draw attention to these conflicts in evidence and their relevance to the Crown and defence cases. The failure of his Honour to give an oral summary of the evidence and to relate that evidence to the facts in issue had resulted in a fundamental irregularity in the trial process.

Counsel for the Crown submitted that the issues in this case were simple and straightforward and that the trial was a short one which did not involve a complex factual matrix. The part of the charge which his Honour delivered orally identified the facts necessary to deal with the key issues. His Honour had identified the elements of the offence of intentionally causing serious injury and had referred in his charge to the circumstances that it was necessary for the jury to take into account in determining whether those elements were proven beyond a reasonable doubt.

In considering ground 3 it is necessary to examine the trial judge’s jury charge in some detail.

The charge commenced with comments about the respective roles of judge, jury and counsel and a reference to the burden of proof. His Honour then said that he would provide a context for the jury directions which followed. He said that:

There is one primary issue in this trial. The issue is … who held the knife that caused the injuries to Matthew Wilson. …
Has the prosecution satisfied you beyond reasonable doubt that the injuries sustained by Matthew Wilson were inflicted by act or acts of Lloyd Thompson? Let me frame the issue in other ways. Was Lloyd Thompson the perpetrator of the knife caused injuries? Were the guilty acts performed by Lloyd Thompson? That is not the only issue, but if the prosecution has not satisfied you beyond reasonable doubt that Lloyd Thompson inflicted the injuries sustained by Matthew Wilson, you must find Lloyd Thompson not guilty on all charges.

He then referred to the issue of whether Thompson was acting in self defence and said that there ‘were several issues as to matters of evidence which bear on the primary issue of who held the knife. They also bear on the other issues of self defence and of intention.’

His Honour then listed ‘evidence issues’. These were:

1. The credibility/reliability of Wilson’s evidence.[24]
[24]He referred to the fact that Wilson had made a prior inconsistent statement and correctly directed the jury on the law on this matter later in his charge.
2. The credibility/reliability of Thompson.[25]
[25]In that context he pointed out that the issue was not simply whether Thompson or Wilson was more credible and referred again to the burden of proof.

3. The reliability of the evidence of McLean and Gay Thomson.
4. The use which the jury could make of statements which the accused had admitted were lies.

5. The treatment of forensic evidence.
6. Motive and its relevance to the inferences that could be drawn.

His Honour then told the jury of the need to be satisfied beyond reasonable doubt as to Thompson’s mens rea, if they were also satisfied to the requisite standard that he had injured Wilson.

His Honour then gave further general directions on the burden and standard of proof, the use of expert evidence, the drawing of inferences, the use of prior inconsistent statements and the use they could make of the applicant’s evidence that he had lied to McLean[26] and that he had lied to the police.[27]
[26]By saying that Wilson had injured himself by falling on his knife.
[27]By saying that he had helped Wilson by taking him into the bungalow and carried him to his bed after he found him lying outside.

His Honour then described the elements of the offence of attempted murder and referred to the fact that the applicant had given evidence that he was not holding the knife at any time. He said that ‘You must be satisfied by the prosecution on all the evidence that the knife was held by Lloyd Thompson when the injuries were sustained.’ His Honour made reference to the intention required for attempted murder and explained the principles relating to the drawing of an inference of intention from the existence of evidence as to motive. After discussing the principles relating to self-defence he then reminded the jury that they must:

look at all the circumstances. They include the location; it was in the room of Matthew Wilson. The time of day; it was in the evening around nine o’clock. The age of the accused and the [deceased]; Lloyd Thompson was 52, Matthew Wilson was aged 39. As to what happened on the night, there is the evidence of Melissa McLean and Gay Thomson, as well as that of the two men. Each has given to you his or her account of what happened. The account of Lloyd Thompson is an attack or threat of attack warranting action in self-defence. You can take account of the evidence of the doctors as to the nature of the injuries sustained by Matthew Wilson. You can take account of the evidence as to the location of the bloodstains and how that supports or fails to support the evidence of the various witnesses. You can take account, too, of such matters as the physical size and capacity to handle trouble of both Matthew Wilson and Lloyd Thompson. You can take account of the likelihood of Matthew Wilson being the sort of person to make an attack. You also take account of the time that appears to you to have been available to assess both the level of threat and the options available to deal with that threat.

His Honour then described the elements of the alternative charges of intentionally and recklessly causing serious injury.

The written summary of the evidence referred to each witness’s evidence and included references to inconsistencies within the evidence of particular witnesses. For example, in the case of Wilson, his Honour summarised his evidence as follows.

The first witness was Matthew Wilson. This summary of his evidence has more than the usual deficiencies. In part that is because of changes to his account that Matthew Wilson made. I have tried to summarise what I took to include the changes. I remind you that you must not substitute, what I am now giving you as a summary, for what you recall the evidence to have been.
He had lived in the boarding house at 61-63 Whitehorse Road for about 10 months as at 5 September 2005. He lived in bungalow 10. Lloyd Thompson lived in bungalow 9. Lloyd Thompson had been there for about 4 weeks as at 5 September 2005. Matthew Wilson accepted that he was an alcoholic. He detailed the considerable amount of dry white wine that he consumed daily as at 5 September 2005. He said that he was then suffering from clinical depression. He was taking anti-depressant medication. He also engaged in certain techniques to avoid or reduce stress.
On 5 September, he had been out drinking during the day. He had been visited by his wife and 2 children aged about 5 and 6. In the evening he went to the room of Melissa Maclean. After this, I will refer to her as “Mel”, and to Gay Thomson as “Gay”. I will also often refer to Matthew Wilson as “Matt” and to Lloyd Thompson as “Lloyd”. Matthew Wilson said that, in Mel’s room, he had his white wine. He was sitting on the floor. Lloyd Thomson came into the room. He was drinking beer – VB from a can. Twice before that night he had had trouble with Lloyd. Once there had been the non-return of items borrowed. The other time, Lloyd had told him off as being a bad father. On 5 September, Lloyd started to tell him off aggressively for sponging and being a bad father. Matt did not reply. Lloyd struck Matt to the nose and face. The blow was with the back of Lloyd’s right fist. Matt said he got up and left the room. He said he went to his bungalow. There he rang 000. He sat on his bed. He had a glass of wine.
Lloyd entered Matt’s bungalow. Matt told Lloyd to leave. Lloyd spoke aggressively to Matt about being a bad father. Matt responded by saying words to the effect: “At least my children visit me on Father’s Day.” Matt again asked Lloyd to leave. Lloyd took up the knife that was on the computer stand. There was then a scuffle. Lloyd had Matt in a headlock. That was when Lloyd had caused the injury to Matthew Wilson’s eye. Lloyd then pushed Matt onto the bed. Matt said he was face down on the bed. Lloyd was over him. He was hit to the back of his head. He tried to use a hand in an attempt to eye gouge Lloyd behind him to get Lloyd to stop. As his faced [sic] was turned, Lloyd hit him in the eye with the knife. Matt said that he got to turn around and face Lloyd. Then Lloyd stabbed him with the knife in the left chest. Lloyd held the knife in his right hand. Matt saw blood and bubbles coming from his chest. Lloyd then asked Matt to stab him to make the situation look more like self defence. Matt refused to do so. Lloyd then threatened Matt as to what he would do to Matt and his family. Lloyd left the room, taking the knife with him. Matt said he was not sure of the order of some things that occurred after that. He believed that he left the room to speak with Mel and Gay, who were near the veranda to the house. He might have told them that he had been stabbed. He spoke to 000. Lloyd re-entered his room. He applied a towel to the wound to his chest. The police came. The ambulance came. He smoked a cigarette. He went off in the ambulance. He was treated at the hospital for his injuries.
He accepted that he had told several people that he had got his chest wound by accident. The first was to 000 over the telephone. The second was to Sergeant Langmaid at the bungalow. The third was to the policeman Thomas at the Hospital. The fourth was to Detective Petch who took his first statement. He was in hospital for about a month overall. He used the photos of his face, chest and hand to identify his injuries. He used the photos of the damage to the north wall to bungalow 10 to identify the damage which had not been there prior to 5 September. He made a first statement to the police to Mr Petch on 6 September. In that first statement he had said that he had fallen on his knife. He made a second statement to the police to Mr Brien on 13 September. In that second statement he had said that he had been stabbed by Lloyd. He spoke of how he had come to change his story. His change of heart came after speaking to his father-in-law. It was after that that Detective Brien rang him and asked him how he was and whether he wanted to change his story. He indicated that the reasons that he had said to 000 and to the police that it was an accident was because he wanted to protect his children from Lloyd.
In the course of cross-examination, Matthew Wilson altered his account as to some matters. As to some other matters, he said that he could not recall what was put to him as being so, but that it was possible. He denied a number of other matters that were put to him by Mr Higham.
Amongst the alterations were the following: The order of his receiving injuries was *eye first *head second *chest third – and not as he first claimed *head first *eye second *chest third. After hearing the 000 recording, Matthew Wilson accepted that Lloyd Thompson had spoken with 000 and then had handed the phone to him.
Amongst the possibilities was that there could have been an exchange of insults between him and Lloyd Thompson, before Lloyd Thompson entered room 10, while Matthew Wilson was on his bed.
Amongst the matters put to him that he denied were the following: He denied that on the day in question, he had left the knife in a locked drawer – or in a position where it could be taken up by his children. He denied that he had seen Lloyd Thompson when moving from Mel’s room to go to room 10 after being hit to the nose. He denied that there had been an exchange of insults between him and Lloyd Thompson before he re-entered room 10. He denied that he had lost his temper as a result of the exchanges of insults. He denied that it was he, and not Lloyd Thompson, who first took up the knife. He denied that he had hold of the knife at any stage. He denied that there had then been a struggle as Lloyd Thompson tried to get the knife off him. He denied that he had been pressured by Detective Brien to change his story.

It will be noted that his Honour referred to the ways in which Wilson had altered his account in cross-examination (for example as to the order in which he suffered the injuries). He took a similar approach in summarising the evidence of the other witnesses. In the case of McLean and Gay Thomson, for example, his Honour referred to differences between their oral evidence and the statements they had made to the police about what they had heard the applicant saying to Wilson. I note, however, that the written summary did not identify conflicts between the evidence of different witnesses or explain the relevance of these conflicts to the issues arising in the case.

The question then is whether, having regard to the oral charge and the written document given to the jury, his Honour discharged the duty imposed upon him by the common law to:

(a) to decide what are the real issues in the case;
(b) to direct the jury on only so much of the law as is necessary to enable the jury to resolve those issues;

(c) to tell the jury, in the light of the law, what those issues are;
(d) to explain to the jury how the law applies to the facts of the case; and
(e) to summarise only so much of the evidence as is relevant to the facts in issue, and to do so by reference to the issues in the case.[28]

[28]R v AJS (2005) 12 VR 563, 567 [55] (Maxwell P, Nettle JA and Redlich AJA).

It is true that the ultimate issue in this case was a relatively simple one. It was whether the jury could be satisfied beyond reasonable doubt that Wilson’s chest wound was caused by the applicant intentionally striking him with a knife. However, it was necessary for his Honour to summarise the evidence to the extent that it bore upon that issue. As Eames JA said in R v Zilm:

The extent to which evidence will need to be summarised will depend on a range of factors, including the duration of the trial, the importance of the evidence of a witness to the issues in the case, the complexity of the evidence, the lapse of time between the giving of the evidence and the jury’s deliberations, and the comprehensiveness of the addresses of counsel. In some instances the jury will need to be reminded of substantial portions of the transcript of evidence of a witness, but other witnesses may merit only a brief summary, if any reference at all. It is the task of the judge to make that assessment and I acknowledge that it can be burdensome. When done carefully, however, the evidence summary will highlight the evidence which may be of importance to the resolution of the issues in the trial, and will not burden the jury by burying that evidence amidst an unnecessary recitation of unimportant evidence.[29]

[29](2006) 14 VR 11, 29–30 [79] (citations omitted).

In my opinion his Honour’s oral charge did not satisfy these requirements. While the oral charge referred to the elements of the relevant offences, including the offence of which the applicant was convicted, it did not adequately explain the Crown or defence cases,[30] or refer in any detail to the applicant’s evidence as to how Wilson came to suffer serious injury. Nor did his Honour summarise Wilson’s account as to the events of the evening or relate his evidence to the medical and forensic evidence. The only guidance on factual matters given to the jury was in the passage set out in paragraph [92] above where they were told to look at all the circumstances.
[30]For this requirement, see Fingleton v R (2005) 227 CLR 166.

Redlich JA considers that the written material provided to the jury could not have overcome these deficiencies in the oral charge, even if the learned trial judge had not said that the jury should not read the written materials unless they had ‘a problem.’ As I understand it, he takes that view for two reasons.

First, Redlich JA considers that neither the oral charge nor the written summary of evidence, sufficiently identified the issues, or related the evidence to those issues. In my opinion this case is close to the line. On balance, however, I would have considered that the requirements described in Zilm were met by the combined effect of his Honour’s oral jury charge and written summary, had it not been for the fact that the learned trial judge told the jury to:

put all these documents to one side unless and until you have a problem. Use them only to the extent that you have to. That specifically applies to my summary of the evidence which carries its own warning.

Secondly, although Redlich JA accepts that the provision of written material to a jury may be helpful in some situations, he considers that the inclusion of material in written directions ‘cannot take the place of the oral directions which the law requires’ (see paragraph [146] below).

It is unnecessary for me to express a conclusion on that issue in this case. However I have some reservations, about the view that Redlich JA expresses. As he says, a comprehensive oral charge ensures that justice is seen to be done. The extent to which oral directions in a particular case satisfy the common law requirements will depend on the circumstances. However I have doubts about the capacity of jurors to absorb lengthy and complex oral charges containing detailed summaries of evidence. It seems to me that the delivery of a short oral charge which directs the jury accurately on the law and provides a ‘road map’ of the relevant issues, combined with the provision of written material which summarises the evidence and relates it to those issues, might in some circumstances assist jury comprehension and lead to a fairer trial than a very lengthy oral charge.

In New Zealand, jury members who were surveyed as part of a Law Commission project on Juries in Criminal Trials[31] said that they would have found a written summary useful because:

it was difficult to absorb all of the judge’s instructions at the time they were given, and a written summary could have been digested at a more leisurely pace back in the jury room;
some jurors differed in their interpretation of what the judge said, even when jurors themselves made notes; and
some jurors found that written instructions would have reduced deliberation time.[32]

[31]Research for the Law Commission was conducted as a joint project with the Victorian University of Wellington Faculty of Law. The researchers took a sample of 48 jury trials occurring in urban and provincial courts throughout New Zealand. The researchers observed trials, obtained a copy of the notes of evidence, observed closing addresses of counsel, and observed and tape-recorded the judges charge. The judge was interviewed as were juries in each trial. Of a sample of 575 jurors 312 were interviewed. See Law Commission, Juries In Criminal Trials: A Summary of the Research Findings, Preliminary Paper 37 - Volume 2, (November 1999), 2.

[32]Law Commission, Juries In Criminal Trials, Report 69 (February 2001), 118 [313].

I note that the New Zealand research found that the jury charge lasted for 20 minutes or less in 4% of trials and over one hour in over 20% of trials. It was longer than 90 minutes in about half of that 20% of cases.[33] In a 2003 paper delivered to a State and Federal Court Judges’ Conference[34] Eames JA, as he then was, pointed out that in the New Zealand research about half the jurors who sat on a trial where the charge took less than 40 minutes thought it was too long, although in one trial where the charge took two hours 35 minutes none of the interviewed jurors thought that was too long. He observed that in Victoria he had never heard of a jury charge lasting less than an hour.[35] The Victorian Law Reform Commission is currently investigating ways of simplifying or otherwise improving jury charges. As part of that project it has been asked to consider the extent to which judges should be required to summarise evidence for the jury.
[33]Law Commission, Juries In Criminal Trials: A Summary of the Research Findings, Preliminary Paper 37 - Volume 2, (November 1999), 52 [7.6].
[34]G Eames, ‘Towards A Better Direction-Better Communication with Jurors’ (Paper presented at the State and Federal Judges Conference, Adelaide, 22 January 2003).
[35]Ibid 9.

As I have said it is unnecessary to consider the extent to which the combination of oral and written directions would have been sufficient in this case. His Honour’s instruction to look at the relevant documents only if the jury had ‘a problem’ created the risk that the only guidance provided to jurors was the inadequate oral charge. In the circumstances, there was a considerable danger that the jury verdict was based on general impressions rather than on a consideration of

whether there was sufficient evidence to permit a finding beyond reasonable doubt that the applicant intentionally stabbed Wilson. I therefore consider that ground 3 is made out and that the appeal should be allowed.

REDLICH JA:

Ground 1 Whether self-defence was a real issue

I agree for the reasons given by Neave JA that ground 1 has not been made out. I would make the following additional observations. It is for the trial judge to determine from the evidence and the manner in which the trial is conducted, what the issues are in the case.[36] The trial judge’s obligation to direct the jury as to the possible use of relevant facts which it would be open to the jury to find and which bear upon those issues[37] extends only to any ‘”real issue” arising from the evidence as distinct from a remote or artificial possibility’.[38]
[36]Doggett v The Queen (2001) 208 CLR 343; The King v Hopper [1915] 2 KB 431, 435 (Lord Reading CJ).
[37]Pemble v The Queen (1971) 124 CLR 107, 117–8 (Barwick CJ with whom Windeyer J agreed).
[38]R v Hiep Tan Tran [2007] VSCA 19, [42] (Redlich JA).

Self-defence was not raised as an issue by the defence during the course of the trial. Counsel for the applicant conceded during the course of oral argument that the trial judge, out of an abundance of caution, had left self-defence as an alternative defence. When pressed during oral argument, counsel for the applicant was unable to point to any evidence which obliged the trial judge to address such a defence. The decision by the learned trial judge to leave self-defence was unduly favourable to the applicant as there was no evidence which made it a ‘real issue’.

It was said that as the trial judge had left the issue of self-defence, he was obliged to also direct the jury that the prosecution must prove that the applicant’s act was voluntary and deliberate so as to exclude any act of the applicant that may have been accidental.[39] The trial judge gave an unexceptional direction as to the element

of intention.[40] In the circumstances of this case the jury could not have been satisfied beyond reasonable doubt that the applicant had the necessary intent unless they were satisfied that the act done was a deliberate one. There was no evidence from any source that raised the possibility that any act of the applicant whilst holding the knife was unwilled. No necessity arose in the present case for such a further direction.
Ground 2 Prosecutor’s reliance upon the rule in Browne v Dunn and the failure of the trial judge to give any direction

[39]R v AJS (2005) 12 VR 563, 568.

[40]Note the competing views amongst jurists, writers and academics as to whether the voluntariness of the applicant’s conduct should be regarded as part of the actus reus or the mens rea. See R v AJS (2005) 12 VR 563, 569 fn 13.

The applicant in his examination in chief gave evidence about matters that his counsel had not put to Crown witnesses. In the course of the prosecutor’s closing address he described the applicant’s evidence as ‘fanciful nonsense’ and ‘full of inherent inconsistencies’. He said that the jury had heard certain things ‘for the first time’ when the applicant had given evidence. The prosecutor specifically referred to the applicant’s explanation for why he told the police lies which were relied upon by the Crown as constituting consciousness of guilt. These matters had not been put to the police officers by the applicant’s counsel. The prosecutor also referred to the applicant’s evidence that Wilson had jabbed him on the toe with his wine cask in Melissa’s room, and that was why he had smacked Wilson across the face. He also referred to the fact that there were variations in the applicant’s account as to what occurred in Wilson’s bungalow. The prosecutor submitted that if the jury thought any of these matters significant, they could affect the weight that the jury might attach to the applicant’s evidence.

In the absence of the jury and prior to making his comment to the jury, the prosecutor raised with the trial judge that the applicant’s counsel had failed to cross examine the relevant Crown witnesses, in accordance with the rule in Browne v Dunn,[41] about matters deposed to in the applicant’s evidence. He submitted that he was entitled to invite the jury to draw the inference that the applicant’s evidence had been recently fabricated.
[41]The obligation is derived from the rule in Browne v Dunn (1893) 6 R 67, 72 (Lord Herschell LC).

The rule in Browne v Dunn is a rule of law and practice. In a criminal trial the rule will become relevant during the cross-examination of any prosecution or defence witness whose evidence is to be contradicted by other evidence called by cross-examining counsel or otherwise challenged. The obligation will also arise where the cross-examiner intends to adduce evidence as to the conduct of the witness which may be a matter of controversy. That conduct must be put to the witness. The rule rests upon notions of fairness. It is designed to give the witness, and the party calling that witness, an opportunity to meet that challenge and to facilitate the tribunal’s assessment of the reliability and accuracy of the witness.[42] Where matters in controversy are not ‘put’ to the witness in cross-examination, the tribunal’s capacity to assess the credit of the witness is likely to be impeded.[43] Any relaxation of the obligation to comply with this rule increases the risk of injustice to the witness and the party calling that witness.
[42]R v Demiri [2006] VSCA 64, [36] (Redlich AJA).
[43]Johnson Matthey (Aust) Pty Ltd v Dascorp Pty Ltd (2003) 9 VR 171, 200 (Redlich J).

Where in breach of the rule, a matter has not been ‘put’ to a witness by counsel and is subsequently deposed to in evidence by counsel’s client, an inference may arise that the matter has been recently invented. It is a process of reasoning fraught with peril which should therefore be employed only with much caution and circumspection, there being many explanations of such omissions which do not reflect upon the credibility of the witnesses.[44] Accordingly, in a criminal trial the application of the rule and the circumstances in which an inference should be drawn from non-compliance with the rule must be seriously qualified.[45] Where a party seeks to invite the jury to draw such an inference, a careful direction should normally be given concerning the operation of the rule and the limited circumstances in which that inference may be drawn.[46]
[44]R v Birks (1990) 19 NSWLR 677, 691–2 (Gleeson CJ).
[45]MWJ vR(2005) 222 ALR 436, 440 (Gleeson CJ and Heydon J), 449 (Gummow, Kirby and Callinan JJ); R v Demiri [2006] VSCA 64, [36] (Redlich AJA).
[46]MWJ v R (2005) 222 ALR 436, 440 (Gleeson CJ and Heydon J), 449 (Gummow, Kirby and Callinan JJ).

I agree with the observations of Giles J in Oldfield v The Queen[47] that there are three discrete stages of a criminal trial at which care must be taken to ensure that the application of the rule does not produce any unfairness:

Thus the circumstances of the particular case must be examined to see whether the Crown Prosecutor’s cross-examination was admissible, whether the cross-examination and the use made of it in address conformed with caution and circumspection, and ultimately whether the jury should have been assisted by reminder that there could be explanations for the inconsistency between what was put to the complainant and the accused’s evidence other than that the accused’s evidence was recently made up.[48]

[47](2006) 163 A Crim R 242.

[48]Ibid 254 (emphasis added).

At none of these stages of the present trial was the correct procedure followed to ensure that there was no unfairness.

Whether there had been appropriate cross-examination of the applicant

The prosecutor did not cross-examine the applicant when he gave evidence, about the fact that these matters were not put to the prosecution witnesses when his counsel had cross-examined them. The prosecutor failed to comply with the rule. In R v Scott, Hulme J, with whom Sully and James JJ agreed, said that where the Crown intends to contrast the failure of the accused’s counsel to put in cross-examination some matter to which the accused or his witnesses subsequently deposed: ‘the rule in Browne v Dunn itself makes it obligatory to put to an accused the inferences or conclusions which it will be suggested should be drawn, in order that the accused may provide such explanation as he is able.’[49]
[49][2004] NSWCCA 254, [62].

The prosecutor was obliged to give appropriate notice in the form of cross-examination of this imputation that he intended to make against the applicant concerning his evidence.[50] As he intended to later suggest that each of these matters were a form of ‘recent invention’, his failure to put each of the matters to the applicant, itself involved a breach of the rule. Consequently, the applicant was denied the opportunity to preserve his credit by providing an explanation for the failure of his counsel to put these matters to the relevant Crown witnesses or to explain how he came to give evidence of matters that had not been previously explored with witnesses.

Whether the prosecutor should have been permitted to make comments in his closing address and whether those comments were appropriate or sufficient

[50]MWJ v R (2005) 222 ALR 436, 448 (Gummow, Kirby and Callinan JJ); R v Rajakaruna[No 2] (2006) 15 VR 592, 606 (Redlich JA).

Following the conclusion of all of the evidence, the prosecutor informed the trial judge that to ensure the Crown‘s right to a fair hearing, he intended, in his closing address, to refer to the alleged breach of the rule in Browne v Dunn by counsel for the defence. It appears that he did not regard it as a matter of any significance that he had failed to comply with that rule himself. The prosecutor informed the trial judge that he intended to invite the jury to conclude that the applicant’s evidence had been made up as he went along as a great deal of the applicant’s evidence on a variety of topics had not been put to any of the relevant Crown witnesses. The Crown prosecutor then requested the trial judge to give what he described as the ‘usual direction’ by the trial judge when the Crown relies upon a breach of the rule to support an inference adverse to the accused. Apparently the prosecutor had in mind the usual warning that the absence of questions by an accused’s counsel might be explained by counsel’s mistake or for some other reason.

Counsel for the applicant then informed the trial judge that he had been given the instruction well before the trial that Wilson had stubbed the applicant’s toe in Melissa’s room and that it was his error that the matter had not been raised. He submitted that he had cross-examined the police about the matters now the subject of complaint by the prosecutor. In reply the prosecutor submitted that it is was no answer for defence counsel to inform the Court that he had made a mistake. He submitted that the Crown had been prejudiced because matters were not put to Crown witnesses. He referred again to the direction that the trial judge might give. The trial judge stated that he would determine what direction, if any, should be given by him after counsels’ addresses.

The trial judge should have resolved the question whether it was an appropriate case for the prosecutor to invite the jury to draw an inference of recent invention, before the prosecutor advanced that argument before the jury. The failure of the prosecutor to afford the applicant an opportunity to comment on those matters denied the jury the benefit of any explanation from the applicant for why such matters had not been pursued by his counsel.[51] The prosecutor not having discharged his obligation, the trial judge should not have permitted the prosecutor to make the foreshadowed comment. But as the respondent conceded on appeal, counsel and the trial judge did not recognise the significance of the fact that the prosecutor had chosen not to cross-examine the applicant about such matters.
[51]Thus the second requirement discussed on Oldfield v The Queen (2006) 163 A Crim R 242 had not been satisfied. See above [113].

Ordinarily, if the prosecutor is permitted to make such a comment, he should provide some explanation of the rule and advert to other explanations for counsel’s omission. He did not do so. The applicant’s counsel, in his closing address, did not challenge the comments made by the prosecutor in his closing address. He made only passing reference to the stubbing of the applicant’s toe and told the jury that if they thought it significant that he had not ‘put’ that matter to Wilson and Melissa, they could take that into account.[52] He also told the jury it was a matter for them what they made of the applicant’s explanation for giving the police an incorrect account.

Entitlement of defence counsel to advance contrary hypotheses in closing address

[52]Presumably defence counsel was there referring to the prosecutor’s suggestion that the jury might infer that the applicant’s evidence was recently invented.

On appeal it was suggested by the applicant’s counsel that his counsel at trial could not have given evidence from the bar table in the course of his closing address to explain why certain matters had not been put to witnesses in cross-examination. While it is correct to say that counsel could not advance a specific explanation from the bar table as being ‘the explanation’, there was nothing to prevent him challenging the prosecutor’s argument that recent invention should be inferred, by raising a number of possible explanations with the jury inconsistent with that inference. He could have submitted that the omission might be explained by oversight or error on his part or by other reasonable explanations that bore upon whether the jury should draw the inference that the applicant’s evidence was an afterthought. The strong impression that I gained from the transcript of counsel’s remarks at trial is that he accepted what the prosecutor had earlier submitted to the trial judge, that it was not open to defence counsel to advance any explanations from the bar table.

Need for a judicial warning

Following the addresses no further mention was made by counsel of a Browne v Dunn direction and none was given by the trial judge in his charge. No explanation was given to the jury by counsel for either party or the trial judge that instructions from the accused will normally provide the foundation for questions put to a Crown witness in cross-examination and that there may be many reasons why counsel did not do so. The jury had no familiarity with the adversarial forensic process. Hence the jury was given no means by which to determine whether an adverse inference should be drawn against the applicant because of the absence of such cross-examination by his counsel.[53] The jury was left with the unqualified assertion from the prosecutor that as these matters had not been raised with Crown witnesses it could be inferred that the applicant had, during the course of his evidence, made up those parts of his evidence with the unmistakeable imputation that he was telling lies.
[53]R v Burns [1999] QCA 189.

Once such an argument had been advanced by the prosecutor, the jury should have been given a warning by the trial judge. That warning should provide the jury with some explanation for the rule and adequately draw to their attention some of the possible explanations for the omissions which would not reflect adversely upon the credibility of the accused.[54] In R v Birks, Gleeson CJ identified some of those explanations:

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 the questions. The matter might simply have been overlooked.[55]

[54]R v Birks (1990) 19 NSWLR 677, 691–2; R v Laz [1998] 1 VR 453, 464 (Ormiston and Charles JJA, and Vincent AJA); R v Abdallah [2001] 127 A Crim R 46; Picker v R [2002] NSWCCA 78, [41] (Smart AJ); Oldfield v The Queen (2006) 163 A Crim R 242.

[55] R v Birks (1990) 19 NSWLR 677, 691.

Allegations of recent invention are potentially devastating to the credibility of the witness against whom they are made.[56] The submissions of the prosecutor were directed to three matters all of which bore in this way upon the applicant’s credibility. Having failed to put these matters to the applicant in cross-examination, the prosecutor should not have made the comment. The prosecutor having made a comment, defence counsel could have asked the trial judge to instruct the jury to disregard the comment and explain why the inference was not available. On any view the trial judge was obliged to give the jury a careful direction in relation to the rule and explain the difficulties associated with drawing an adverse inference against the applicant.
[56] Leeks v XY [2008] VSCA 21, [35] (Redlich JA).

The comments by the prosecutor in closing and the trial judge’s failure to give the jury a necessary direction so that the jury could undertake a proper evaluation of those comments, constituted a material irregularity. I do not stay to consider whether a direction from the trial judge that the jury could not draw any inference adverse to the applicant from these matters would have cured the prejudice arising from the prosecutor’s comments in closing address.

Impermissible reasoning as to credit consequential upon the irregularity

I am unable to agree with Neave JA that these errors did not constitute a miscarriage of justice. Neave JA relies upon the fact that there was a body of evidence that supported the conclusion that the applicant was the aggressor. But what the jury made of that evidence depended in part upon the jury’s view of the applicant ‘s credit.

The consequences of the impugned attack on the applicant’s credit cannot be assessed as though credit is divisible, issue by issue. The jury’s assessment of his credibility would not necessarily have proceeded in a linear manner, as factual issues, including questions of credit will often not be resolved in isolation from each other. Decisions as to credibility are often based upon matters of impression, and an unfavourable view taken upon an otherwise minor issue may be decisive.[57] Once the applicant’s credibility was improperly impugned it is not, in my view, possible to determine the extent to which that attack affected the jury’s assessment of his evidence on critical issues.
[57]Ucar v Nylex Industrial Products Pty Ltd [2007] VSCA 181, [86]–[87] (Redlich JA); Re Minister for Immigration and Multicultural Affairs; Ex parte Applicant S20/2002 (2003) 198 ALR 59, 63 (Gleeson CJ), 77 (Kirby J).

Neave JA relies upon the warning which the trial judge gave about the use of lies as the basis for drawing an inference of a consciousness of guilt as having minimised the risk that the jury may have misused the prosecutor’s impugned comment. That warning was of course directed to a different issue and drew the jury’s attention to the fact that people lie for reasons other than because they have committed the offence. The warning would not, in my opinion, have minimised the effect of the prosecutor’s impugned comments. On the contrary, if the jury saw a connection between this warning, and the prosecutor’s comments about recent invention, it would have emphasised the prosecutor’s suggestion that the applicant had lied in his evidence. The warning about the inferences that could be drawn from lies would have deflected the jury’s attention from the real question which was whether that evidence was a ‘recent invention.’ It would have raised the question of consciousness of guilt when the prosecutor was not inviting the jury to draw such an inference from those pieces of evidence.

In my opinion, this is not a case in which the proviso can be applied as the verdict may have been the result of impermissible reasoning consequential upon the irregularity.[58] It cannot be said that the prosecutor’s comments ‘could not reasonably be supposed to have influenced the result’.[59]

Ground 3 The giving to the jury of written material resulted in a failure to instruct the jury as to the evidence and relate it to the issues

[58]R v Rajakaruna [No 2] (2006) 15 VR 592, 612–13 (Redlich JA).

[59]R v KDY [2008] VSCA 104, [39] citing Stokes v The Queen (1960) 105 CLR 279, 284–5 (Dixon CJ, Fullagar and Kitto JJ); R v Ciantar; DPP v Ciantar (2006) 16 VR 26, 60 (Warren CJ, Chernov, Nettle, Neave and Redlich JJA).

I gratefully adopt Neave JA’s summary of the facts relevant to this ground. I agree that the oral directions given by the learned trial judge resulted in a fundamental irregularity in the trial process and that this ground has been made out. The oral directions failed to provide the jury with the minimum assistance which the law requires. Whatever the content of the written material, it could not cure the serious deficiencies in the oral directions.

At the commencement of the charge, the trial judge gave the jury six documents, a transcript of the evidence, his own summary of the evidence, a transcript of the final addresses of counsel, a one page schedule of the points made by counsel in final address, a three page general guide as to jury deliberations and a typed version of what he was about to say to the jury as to the law.

During the course of the charge the trial judge instructed the jury as follows:

I have earlier provided you with a typed copy of these directions as to the law, as to the issues and as to relating the law to the evidence. I would stress that care has been taken with all these typed six documents. The documents are not provided upon the basis that you are expected to work through them. A criminal trial is an oral trial, not a trial on the paperwork. ……. I therefore tell you to put all these documents to one side unless and until you have a problem. Use them only to the extent that you have to. That specifically applies to my summary of the evidence which caries its own warning. I prepared it intending to read it to you but now see that that would take up time unnecessarily. Treat it as no more than a guide to the transcript of evidence. Remember, too, the transcripts are not necessarily accurate and that you should not assume that they are accurate.[60]

[60]Transcript of Proceedings, DPP v Thompson (Supreme Court of Victoria, Teague J, 27 January 2007) 622-3.

In the oral direction and the written instructions the trial judge listed nine principal issues in the trial which he either described as an ‘element issue’ or an ‘evidence issue’. For example, the jury were told that ‘element issue number one’ was ‘who held the knife that caused the injuries’ to Wilson. ‘Evidence issue number one’ was ‘the credibility of Mathew Wilson’. Beyond such a bare description of the issue, no exploration of the issues was undertaken. Neither in the written or oral instruction did the trial judge relate the evidence to any of the issues which he had identified.

Common law obligations of the trial judge

The common law obligations of a judge in every jury trial were summarised in R v AJS.[61] They include an explanation to the jury as to how the law applies to the facts of the case, identification of the issues in the trial, relating the issues to the facts of the case[62] and summarising so much of the evidence as is relevant to the facts in issue by reference to the issues in the case. These obligations subsume the judge’s obligation to ensure that the prosecution and defence case is clearly placed before the jury, usually by summarising the addresses of counsel, on both sides.[63]
[61][2005] 12 VR 563.
[62]RPS v The Queen (2000) 199 CLR 620, 637 (Gaudron ACJ, Gummow, Kirby, Hayne JJ); R v Defrutos [1998] 2 VR 589, 597–8 (Callaway JA); R v Anderson (1996) 2 VR 663, 666–7 (Winneke P).
[63] R v Yusuf (2005) 11 VR 492; R v Crockett (2001) 124 A Crim R 312, 315 (Ormiston JA); R v Dao (2005) 156 A Crim R 459, 465 (Buchanan, Vincent JJA and Byrne AJA).

The applicant submits there was a failure to comply with the common law obligations as a consequence of the direction to put aside the documents given to the jury and further submitted that the trial judge had failed to give any oral summary of the evidence in the case and in particular the defence case and had not given an adequate direction as to how the evidence related to the issues.

The principle stated in Alford v Magee[64] that the law must be given to the jury with an explanation of how it applies to the facts,[65] together with the well-established concomitant obligation to identify the issues and the evidence relevant to those issues, has been the subject of extensive attention in this court.[66] Alford v Magee was again discussed in Fingleton v The Queen[67] by McHugh J who referred to the obligations of the trial judge to ‘identify the real issues in the case, the facts that are relevant to those issues and [provide] an explanation as to how the law applies to those facts’.

Oral directions must satisfy the common law obligations

[64](1952) 85 CLR 437.

[65] Alford v Magee (1952) 85 CLR 437, 466 (Dixon, Williams, Webb, Fullagar and Kitto JJ); R v Zilm (2006) 14 VR 11, 22 (Eames JA).

[66]R vAnderson [1996] 2 VR 663, 667 (Winneke P, Brooking JA and Southwell AJA concurring); R vFrank [1999] 1 VR 518, 524 (Winneke P, Tadgell and Batt JJA concurring); R v Dao (2005) 156 A Crim R 459, 465 (Buchanan, Vincent JJA and Byrne AJA); R v De’Zilwa (2002) 5 VR 408 (Ormiston JA) 416–17, (Charles JA).

[67](2005) 216 ALR 474, 495.

In the oral charge, the jury’s attention must ordinarily be drawn to the relevant evidence which bears upon the issues of fact in dispute. The duty to expose the facts relevant to the issues is not confined to the ultimate facts in issue comprising one or more of the elements of the offence but relates also to the substratum of facts which are in dispute and which bear upon the resolution of the ultimate issues.[68] The evidence which is relevant to those subsidiary issues must also be identified. Ormiston JA in De’Zilwa spoke of the fallacy in assuming that jurors will recollect the same things that a trained and experienced lawyer would recollect.[69] Moreover, the real significance of pieces of evidence may not be apparent when the evidence is given. A common experience of trial judges has been that the jury may not have recognised the significance of individual pieces of evidence or how that evidence relates to other evidence and supports an argument of a party during the course of the evidence.
[68]See, for example, R v Yusuf (2005) 11 VR 492, 501–2 (Winneke P).
[69]R v De’Zilwa (2002) 5 VR 408, 410.

Though the common law obligations prescribe the minimum assistance which a jury must be given, there is no particular means by which the oral directions must satisfy them. The level of particularity at which the evidence and arguments need to be summarised will vary, depending upon the nature of the issues and the circumstances of the trial.[70] The summary should highlight the evidence which bears upon the resolution of the issues in the trial without an unnecessary recitation of unimportant evidence.[71] But enough must be said to ensure that the jurors have sufficient knowledge and understanding of the relevant evidence and the issues to which they relate, to discharge their duty to determine the case according to the evidence.[72]
[70]Compare R v Bartle (2003) 181 FLR 1.
[71] R v Zilm (2006) 14 VR 11, 29–30 (Eames JA); R v Andrakakos [2003] VSCA 170, [10]–[18] (Ormiston JA).
[72] Domican v R (1992) 173 CLR 555.

Directions given in a very short trial involving a simple factual issue may differ considerably in their content from those required in a lengthy or more complex trial. It is for the trial judge to craft the oral directions in such a way that ensures that the oral exposition is sufficient. In R v VN[73] it was recognised that in some circumstances, summarising the respective case for each party might satisfy the obligation of identifying the factual issues in the case by focusing the jury’s attention on the real issues. And if in doing so, reference is also made to the evidence which each party relies upon in relation to those issues, that may be sufficient to satisfy the requirement that the evidence relating to the issues be summarised.
[73](2006) 15 VR 113, 144–5 (Redlich JA).

If the accused has given an account by way of sworn evidence or interview, there ought to be either a summary of that evidence, or alternatively the relevant parts of that evidence could be referred to in answer to each part of the Crown case as it is separately summarised.[74] A failure to advert by some method during the charge to the substance of the applicant’s account, will ordinarily mean that the case for the accused has not been adequately placed before the jury.[75]
[74]R v De’Zilwa (2002) 5 VR 408, 411 (Ormiston JA); R v Andrakakos [2003] VSCA 170, [11] (Ormiston JA); R v Zilm (2006) 14 VR 11, 24 (Eames JA).
[75]R v Zilm (2006) 14 VR 11, 30 (Eames JA); R v Solodo [2005] VSCA 136, [75] (Eames JA with whom Callaway and Nettle JJA agreed); R v Andrakakos [2003] VSCA 170, [11]–[12] (Ormiston JA); R v Crockett (2001) 124 A Crim R 312, 314 (Ormiston JA); R v Yusuf (2005) 11 VR 429, 500–1 (Winneke P); R v Defrutos [1998] 2 VR 589, 597–8 (Callaway JA); R v Anderson [1996] 2 VR 663, 666–7 (Winneke P); Alford v Magee (1952) 85 CLR 437, 466 (Dixon, Williams, Webb, Fullagar and Kitto JJA).

The likelihood of an unfair trial if these minimum obligations are not observed has been the subject of repeated warning by this Court. In this regard I gratefully adopt the comprehensive observations of Eames JA in R v Zilm.[76] The importance of a summary of the relevant evidence and counsel’s arguments was also emphasised by this court in R v Dao in these terms:

It has been accepted, in this jurisdiction at least, that the proper performance of these tasks requires the judge, in any but the most straight-forward of cases, to remind the jury of the evidence which has been placed before them, which is, after all, the material with which they must undertake their task, and to relate the facts and issues raised by counsel to the charges upon which they are required to return a verdict.In Yusuf (a case concerning the obligation on the charging judge imposed by the Crimes Act 1958 s 37) the failure was described as an irregularity. It will be recalled that, of all persons involved in a criminal trial, it is only the jury who do not have a transcript of this evidence. In these circumstances, such an even-handed summary, relating the evidence to the issues, will be of invaluable assistance to them. The importance of this judicial function has led Ormiston JA to deplore the practice of failing to provide a summary of evidence in these terms:
‘It seems to be becoming increasingly frequent for judges in the County Court not to summarise the evidence, usually on the ground that the trial has been short and that the jury would therefore remember all that had been given in evidence. The present trial in fact took some six sitting days so that some of the evidence was given a week before the judge concluded his address to the jury. One should not assume that what a trained and experienced lawyer can recollect will be invariably the same as each member of the jury, without the same or any similar training, can recollect at the end of a trial.’
We, too, would therefore add our voice to those who have lamented the practice adopted by some judges of failing in their charges to juries to provide a summary of the relevant evidence or of the arguments which counsel have offered to the jury in their final addresses. How a particular judge approaches this task in a particular case is essentially a matter for their own judgement, brought to bear with the benefit of long forensic experience in the light of the manner in which the case has been conducted by the prosecution and the defence. Nevertheless, however it be done, it must be done.[77]

[76](2006) 14 VR 11, 29–31.

[77] (2005) 156 A Crim R 459 (Buchanan and Vincent JJA and Byrne AJA) (citations omitted).

The need to give more than lip service to these obligations was again stressed in R v VN where it was observed that:

The failure of a trial judge to summarise the arguments of the parties, or to otherwise identify the factual issues in the case, creates a substantial risk that the accused will not have received a fair trial. The importance to a jury of asummaryof theevidencewhich relates to the issues in the case and asummaryof counsel’s arguments should not be underestimated. By some means or other, the attention of the jury must be drawn to the issues and theevidenceupon which the defence relies.[78]
Written material as an aide memoir or supplement to oral directions

[78](2006) 15 VR 113, 144 (Redlich JA) citing R v De’Zilwa (2002) 5 VR 408, 410 (Ormiston JA).

The applicant has rightly contended that the method of charge adopted by the trial judge in which he gave the jury limited oral directions and written material, did not satisfy these common law obligations. The oral directions were insufficient to meet those obligations. The written material, irrespective of its content, could not cure the deficiencies in the oral directions.

It was not long ago thought that the step of providing a jury with written material, though a matter within the discretion of the trial judge, should not be taken lightly.[79] It is now a much more frequent occurrence in jury trials. It will not be uncommon for a trial judge to conclude that the jury will be assisted by having aspects of the charge provided in writing in addition to the oral direction. The written material may relate to the law that the jury is to apply,[80] the issues, the evidence,[81] the arguments of the parties or any of the other matters specified in s 19 of the Crimes (Criminal Trials) Act1999 (Vic). But circumspection is called for in the provision to the jury of selective written material to ensure that it does not disturb the essential balance in the oral charge between prosecution and defence case. The recent decision of the High Court in Gassy v The Queen[82] although concerned with a supplementary oral direction, illustrates the inherent danger of disturbing that balance.
[79]R v Wilson (1980) 17 A Crim R 359, 361–2 (Young CJ).
[80]Phillip v The Queen [1971] Tas SR 99, 110 (Burbury CJ).
[81]R v Hughes (1980) 7 A Crim R 51, 53 (Lush J); The Queen v Henderson and Panagaris (1984) 37 SASR 82, 90 (King CJ); R v Sukkar [2005] NSWCCA 54; R v Taousanis (1999) 146 A Crim R 303.
[82](2008) ALR 613.

The more voluminous the written material given to the jury, the more onerous and time consuming the jury’s task may become as some or all of them may, in the absence of instruction to the contrary, assume an obligation to read it. Transcript may be provided to them.[83] But if it is thought necessary by a trial judge to provide a transcript to the jury of all of the evidence, some direction is called for as to the way it should be used. Usually the explanation given for providing the transcript is to enable them to check particular pieces of evidence about which they have some uncertainty. If the trial judge provides the jury with a transcript, some instruction may be required concerning the accuracy of the transcript when, as is now common place, time will not have been taken on each day of the trial to deal with inaccuracies in the transcript.[84] It should be borne in mind that jury questions, raised in open court have in the past, proved to be a most reliable means of dealing with any uncertainties that the jury have as to the evidence given.

Written materials cannot be a substitute for oral directions

[83]As to the dangers of providing a substantial document to the jury: see R v M [2000] 1 WLR 421, 433–4 (Kennedy LJ).

[84]R v JWM (1999) 107 A Crim R 267.

The trial process is essentially an oral one. The provision of transcript or written directions cannot take the place of the oral directions which the law requires. The criminal trial proceeds upon the assumption that oral directions are an appropriate and effective means by which the jury’s task is communicated to them. Oral directions are given and listened to by all of the jury in the presence of the judge and the parties in a public hearing. The parties are assured that all aspects of the jury’s task have been explained to each member of the jury. The process provides transparency that would be absent if the jury were directed to act upon written instructions which they were to consider in the privacy of the jury room. Uncertainty would arise as to whether all jurors read all written material provided to them. The concept of justice being ‘manifestly seen to be done’ has contributed to the requirement that ‘the whole direction must be by the judge in the full light of publicity.’[85]
[85]R v Willmont (1914) 10 Cr App R 173; R v Kerr [No 2] [1951] VLR 239, 243 (Gavan Duffy J).

Oral directions enable the trial judge to observe the jury and make some assessment as to whether they have followed and comprehended particular directions.[86] It not uncommon for a trial judge to appreciate during the course of giving a more difficult direction or from observing the jury’s reaction to it, that it requires further elucidation. For some jurors it may be the only means by which they can comprehend their instructions. I have in mind not only the literacy of jurors, which as Bleby J recently said, cannot be assumed,[87] but the significant differences there are in the cognitive skills of individual jurors to absorb the written word. Nor should it be assumed that all jurors will necessarily be able to understand and remember more complex oral instructions. Hence an aide memoir may prove an invaluable supplement to the oral direction. Directions which are more complex can thus be re-enforced by their repetition in written instructions if the trial judge thinks fit. But clear and comprehensive oral directions are always essential.
[86]R v Dunn (2006) 94 SASR 177, 187 (Bleby J).
[87]Ibid [41]–[42].

In this case the trial judge instructed the jury to put the written material to one side unless they had a problem. But whatever the content of that material and the use that the jury were directed to make of it, the trial judge was not relieved of the duty to give oral instructions which satisfied the common law requirements.[88] The written material could not be used as a substitute for the oral directions which should have been given.[89] The jury must be left with the clear understanding that any written material they are given is an aid to the oral directions that they have received.[90]
[88]R v DD [2007] VSCA 317; R v Amado-Taylor (2000) 2 Cr App R 189.
[89]R v Dunn (2006) 94 SASR 177; R v Radford (1986) 133 LSJS 110; R v Bourke [2003] QCA 113.
[90]R v Petroff (1980) 2 A Crim R 101, 113–6 (Nagle CJ at CL, with whom Street CJ agreed).

In any event, the written material did not satisfy those obligations that had not been addressed in the oral directions. The provision of the transcript of the evidence was not a summary of so much of the evidence as was relevant to the issues in the case.[91] The provision of a transcript of counsel’s arguments and a schedule of the points made by counsel in final address did not identify the issues and summarise the evidence which related to them. The list of the issues to be decided was not expressed in terms that related the issues to the evidence.[92] The written material did not attempt to summarise the defence case.
[91]R v DD [2007] VSCA 317, [133] (Neave JA).
[92]R v Hughes (1980) 7 A Crim R 51, 53 (Lush J); R v Zikovic (1985) 17 A Crim R 396, 398, 403 (Crockett, O’Bryan and Vincent JJ).

It is essentially to the content of the oral directions that one would look to ascertain whether the common law requirements of the charge were satisfied. Unfortunately, the well-intentioned wish of the trial judge to save time resulted in a failure to give the minimum oral directions which the law requires. His charge contained no summary of the prosecution evidence. There were numerous factual issues that were not identified by the trial judge.[93] The applicant’s evidence was neither summarised nor was there a summary of the defence case. Ordinarily a failure to summarise the evidence in the course of a charge would mean that the resultant conviction could not stand.[94] His Honour did not relate the relevant

evidence to the issues in the case. He did not draw the attention of the jury to the evidence on which the defence relied. There was no summary of either party’s arguments.

[93]Some of the substratum of factual issues relied upon by the defence were the events in Melissa’s room and whether they triggered subsequent events, the inferences to be drawn from the injuries sustained by Wilson, the lies told by Wilson and his explanation for them, the inconsistencies in the accounts given by various witnesses, the significance of the observations made by witnesses who looked into Wilson’s room and did not observe the applicant holding a knife, the significance of the marks on the wall in Wilson’s room, the intent of the applicant and his conduct in dealing with the police on their arrival and in his interview and the adequacy of the police investigation which was the subject of extensive defence argument.

[94]R v Dao (2005) 156 A Crim R 459, 363–4 (Buchanan and Vincent JJA, and Byrne AJA).

As grounds two and three have been made out I would allow the appeal, quash the conviction and order a new trial.

HANSEN AJA:

I have had the advantage of reading in draft the reasons for judgment of Neave and Redlich JJA. I agree with them that ground 1 is not made out. Nothing more need be said about that ground.

However, although I agree with their Honours that ground 3 is made out with the result that there must be a new trial, it is necessary to say something about ground 3, and also ground 2, in view of differences in their reasons on those grounds.

Ground 2 concerns the rule in Browne v Dunn.[95] The prosecutor’s error in relation to Browne v Dunn was so manifest that repetition in the retrial is hardly to be contemplated. However ground 2 concerned not merely the prosecutor’s error but the failure of the judge to deal with the matter. I agree with Redlich JA that in the circumstances the trial miscarried.
[95](1893) 6 R 67.

Ground 3 raises the question whether the judge’s charge satisfied the requirements of the common law as stated, for instance, in R v AJS[96] to which both Neave and Redlich JJA refer. As Redlich JA points out, a judge meets these requirements by means of the oral directions and explanations he or she gives to the jury. Nevertheless, it is well accepted that a judge may give the jury written
[96](2005) 12 VR 563, 567 [55]. See also R v Hughes (1980) 7 A Crim R 51, 53 and the instructive example of R v Dao (2005) 156 A Crim R 459.

directions or materials as an aid or supplement to the oral charge.[97] Indeed, in R v Dunn,[98] Bleby J described the use of written directions as an aid to a judge’s oral summing up as commonplace. But, Bleby J further observed of the use of written directions that:[99]
Courts have been at pains to point out the need for such written directions to be supplementary to and not in substitution for oral directions.

He later added:[100]
I would not wish to discourage the wise and sensitive use of such aids. It may be that for a particular direction of some complexity a trial judge will wish to rely solely on the words written in an aide memoire without further elaboration. However, it would be an error merely to hand the written direction to the jury without more, without reading and perhaps repeating the words written down.

[97]See R v Petroff (1980) A Crim R 101, 115-116; R v Radford (1986) 133 LSJS 110, 117 (referring to Victorian practice); R v Bourke [2003] QCA 113, [21]; and, now, s 19 of the Crimes (Criminal Trials ) Act 1999.

[98](2006) 94 SASR 177, 185 [36].

[99]At 186, [38].

[100]At 187, [41].

In my view, Redlich JA is correct to emphasise the obligation of a trial judge to give clear and comprehensive oral directions to the jury. At the same time, it should not be overlooked that, subject to the common law requirements referred to above, the manner in which a judge directs a jury is a matter for the judge to determine in his or her discretion in light of the evidence and issues and the relevant circumstances of the trial. If, in the circumstances of a particular case, a judge considers that written materials may assist the jury, there is no reason why the judge should not use such materials, bearing in mind that the oral directions must explain (as stated above) and make clear to the jury how they are to use the written materials.

Unfortunately, and it would seem simply for reasons of saving time, in the present case the judge cut some corners when he charged the jury. First, in his oral charge he did not identify and relate the relevant evidence to the issues, as Redlich JA has pointed out. Secondly, even if in the circumstances the written materials were regarded as appropriately provided as an aid or supplement to the oral charge, or even as filling a gap in a way that was acceptable in the circumstances, two further difficulties remained. First, the materials did not relate the evidence to the issues. Secondly, even if the written materials had sufficiently related the evidence to the issues, the judge told the jury not to read the materials unless they had a problem. As Neave JA points out, the latter is an insuperable difficulty. But so too is the former in my view.

For these reasons, I agree that ground 3 is made out.

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[2008] VSCA 144

21 August 2008