Rees v Bailey Aluminium Products Pty Ltd

SUPREME COURT OF VICTORIA

COURT OF APPEAL

No 7149 of 2002

GARY REES

Appellant

v
Respondent BAILEY

ALUMINIUM

PRODUCTS

PTY

LIMITED

and

BARRY PHILLIPS

Third Party

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JUDGES:	ASHLEY and REDLICH JJA and COGHLAN AJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	13 and 14 March 2008
DATE OF JUDGMENT:	5 December 2008
MEDIUM NEUTRAL CITATION:	[2008] VSCA 244

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Legal practitioners – Duties of counsel – Repeated misconduct of counsel for defendant in course of civil trial for damages for personal injuries – Unjustified allegation of fraudulent collusion between plaintiff and third party – Improper cross-examination – Breach of the rule in Browne v Dunn (1893) 6R 67 – Failure to follow the procedure in R v Orton [1922] VLR 469 - Introduction of extraneous matters in closing address – Failure of counsel for plaintiff to sufficiently object or seek directions – No application for discharge of jury – Refusal of trial judge to vacate jury verdict – Whether judgment for defendant should be set aside –Assessment of prejudicial effect of counsel’s misconduct upon jury – Appeal allowed.

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APPEARANCES:	Counsel	Solicitors
For the Appellant	Mr J Kennan SC with	Clark & Toop
Mr A D B Ingram
For the Respondent	Mr R J Stanley QC with	Hall & Wilcox
Mr S A O’Meara
For the Third Party	Mr S Reid	Rigby Cooke Lawyers
ASHLEY JA: REDLICH JA: COGHLAN AJA

The appellant seeks to set aside a judgment of the Supreme Court following the verdict of a jury which rejected his claim for damages for personal injuries brought against the respondent, as the manufacturer and distributor of an extension ladder. The appeal primarily raises the question whether the appellant received a fair trial as a consequence of the conduct of senior counsel for the respondent;[1] and, relatedly, whether there was any failing by the learned trial judge to deal adequately with such conduct.
[1] It is convenient to note immediately that neither senior nor junior counsel who appeared for the respondent in this Court was trial counsel. So also, senior counsel who appeared for the appellant in this Court was not trial counsel.
The appellant, a plumber, attended the premises of his friend, Barry Phillips, to help him with the installation of some down pipes. Phillips, an inspector employed by WorkCover, had placed an extension ladder manufactured by the respondent in an over extended position against the side of the house for the use of the appellant. As the appellant was standing on the ladder, it collapsed and he sustained injuries. It was not in dispute that the ladder collapsed because it was in an over-extended position. The appellant claimed that the ladder could be easily over-extended because it was defectively designed.
The respondent commenced third party proceedings seeking contribution from Phillips for any sum which the appellant might recover against it on the basis that Phillips had been negligent - by providing the extension ladder to the appellant when it was not in a safe condition and by over-extending it when setting it up for use by the appellant.
Following a 12-day trial the jury returned a verdict finding that there was no negligence on the part of the respondent that was a cause of the appellant’s injuries. After the discharge of the jury, the respondent moved for judgment in accordance with the jury’s verdict. As questions arose as to the form of order which should be made in relation to the costs of the trial, the proceedings were further adjourned without judgment being entered. On the resumption of the hearing, six days’ later, counsel for the appellant made an application that judgment not be entered and that the trial judge pursuant to Rule 47.02(3) of the Supreme Court (Civil) Rules should direct a trial without jury and determine the case on the basis of all of the evidence that had been led in the trial. The application was founded upon the alleged misconduct of senior counsel for the respondent at the trial, which it was said had ‘so poisoned the well of justice’ that the appellant ‘did not receive a fair trial’.
The trial judge ruled that she was not empowered to disregard the verdict which the jury had returned and substitute a verdict of her own. Her Honour accordingly entered judgment for the respondent, directed that the third party claim be struck out and made orders as to costs. Notwithstanding that conclusion, her Honour stated, as a matter of fairness to counsel involved in the proceedings, that she did not consider that counsel for the respondent had breached the standards of behaviour expected of counsel during the trial to such a degree as to have made the trial an unfair one; and that she would not have set the verdict of the jury aside on such basis even if it were open to her to do so. It will be necessary to make further reference to her Honour’s reasons.
On appeal, the appellant initially relied upon the further ground that the learned trial judge had erred in ruling that she had no power pursuant to r 47.02(3) to order that the proceedings be heard by her alone after the jury had delivered its verdict but before such verdict had been entered as the judgment of the Court. This ground raised the question whether, leave to move non obstante veredicto not having been applied for or reserved prior to verdict, the rule permitted a trial judge to dispense with the jury after verdict. The appellant relied upon Herald & Weekly Times v Popovic[2] and Altmann v Dunning[3] in support of the contention that the power may be exercised after a jury verdict has been given but before judgment has been entered. In its outline of submission the respondent contended that the power was not available as the matter had been ‘tried before a jury’ within the terms of the rule, a regular verdict obtained and the jury discharged, relying upon Pezzimenti v Seamer[4] and Prestinenzi v Steel Tank and Pipe Consolidated Pty Ltd.[5] As it was agreed by the parties in the course of oral argument that the jury’s verdict would only be set aside if it be found that the conduct of the respondent’s counsel was such that the appellant did not have a fair trial, it became unnecessary to further consider this ground. Consequently we express no view as to its merit.
[2] (2003] 9 VR 1, [470]–[482], [486]–[487] (Warren AJA).
[3] [1995] 2 VR 1, 16–17 (Hedigan J).
[4] [1995] 2 VR 32.
[5] [1981] VR 421.
It was the respondent’s case that, probably as a result of Phillips’ over- extending it on numerous occasions, the ladder was damaged so that ‘stops’ which were intended to prevent its being over-extended did not work effectively. The respondent attacked Phillips by alleging that he had deliberately over-extended the ladder and that he falsely claimed that he did not know the ladder had stops to prevent its being over-extended.
It was not in issue at the trial that it was who Phillips had set up the ladder in its over-extended position. Phillips claimed that he had done so unwittingly. It was not in issue, either, that it was in that position at the time of the accident. The appellant testified that he climbed the ladder as it had been set up by Phillips. He did not know that the ladder had been over-extended and believed that the ladder had an inbuilt safety factor which prevented it from being over-extended.
The appellant alleged that the ladder was negligently designed as it could be easily over-extended beyond the safety stops; and that in an over-extended position the support brackets were not strong enough. He also alleged that there were no instructions or warnings as to the maximum distance to which the ladder ought to be extended.
The respondent denied that there was any defect in design or any need to warn users. In the alternative, it alleged that the appellant was guilty of contributory negligence and pleaded that the appellant knew or ought to have known at the time that he ascended the ladder that it had been over-extended. But the general tenor of the cross-examination of the appellant was confined to alleging the appellant ought to have known - not that he knew - that the ladder was in an over-extended position when he ascended it.
Ultimately the outcome of the trial, as between plaintiff and defendant turned on the allegation that the design permitted the ladder to be over-extended. The evidence was to the effect that the brackets were strong enough except if the ladder was over-extended. There was no occasion to warn or inform users if the critical design defect did not exist.
Proof that there was a design defect rested upon evidence of an expert, Mr Herzog, called by the appellant; and upon the evidence of Phillips who claimed that, from the time that he had acquired the ladder in 1986, he had often unwittingly extended the ladder to an over-extended position without any obvious resistance; and that this is what he had done again on the day of the accident. Mr Herzog’s evidence was called into question, at least because, on the account of witnesses called by the respondent, ladders were checked before despatch to see that no defect as alleged was present.
The evidence of Phillips was critical to the appellant’s case and was also relevant to the third party proceeding. If the ladder could be readily over-extended because of a design flaw, the appellant would have won and Phillips would have been held blameless. Conversely, if - as the respondent claimed - the ladder could only have been over-extended by being forced beyond the safety stops, or if the stops ceased to become effective because of misuse of the ladder by Phillips, or by other damage to it after its acquisition, the appellant would have failed - or, if the appellant had somehow succeeded, Phillips would very likely have been held wholly to blame in the third party proceeding. Thus, Phillips’ account that the ladder, from the time of its purchase, had been (as it turned out) easily over- extended without hindrance was the subject of challenge by the respondent. The appeal focussed upon the manner in which counsel for the respondent at trial had sought to undermine that account.
All of the grounds which were pursued rested upon the appellant’s assertion that the trial had miscarried as a result of the misconduct of senior counsel for the respondent. Under cover of these grounds the appellant provided particulars of counsel’s conduct which it was submitted had deprived him of a fair trial. Discrete complaint was made about the style and content of numerous aspects of counsel’s cross examination, that he made serious allegations of impropriety against the appellant without foundation, and that he introduced extraneous and prejudicial matters in the course of his closing address. In the light of these submissions and the concessions made by the respondent on the appeal, the court extended an opportunity to senior counsel who had appeared at the trial to make such submissions as he wished in answer to the appellant’s contentions that his conduct had been improper. He advised the court in writing that he did not wish to take up the opportunity that had been afforded him.
We turn to an examination of the each of the matters the subject of complaint.
Civil Jury - Personal Injury Jurisdiction - Latitude extended to counsel
Whether the conduct of counsel exceeds what is permissible will usually be a question of degree, as it must be recognised that accidental errors will occur in the conduct of a vigorously contested trial where searching cross examination and forceful advocacy can be expected.[6] The respondent relied upon the adage that the common law jurisdiction is a robust one in which counsel are given considerable latitude.[7] But the principles of a fair trial are not to be diluted or compromised because the jurisdiction may encourage robust advocacy. Although a civil trial is adversarial in nature, each party is entitled to a fair trial in which they are afforded a reasonable opportunity to present their case; determination of the proceeding resting upon consideration of admissible evidence placed before the tribunal of fact. The litigant is entitled to have his or her case fairly tried free from intrusion of any extraneous matter calculated to influence the jury,[8] counsel observing the rules of evidence, adhering to well recognised ethical standards and remaining within the bounds of permissible advocacy.[9]
Allegation that the third party’s evidence was a concoction and was the subject of fraudulent collusion between the appellant and the third party
[6]              Libke v R (2007) 230 CLR 559, [37] (Kirby and Callinan JJ)
[7]              Whisprun Pty Ltd v Dixon (2003) 77 ALJR 1598, 1620, [121]. Kirby J referred to the old days of civil jury trials, where parties would fight such cases with as much bluster and prejudice as they could respectively get away with.
[8]              Croll v McRae (1930) 30 SR (NSW) 137, 143 (Street CJ); Chatzipantelis v Grimwade Castings Pty Ltd [1966] VR 242; Smout v Smout [1989] VR 845, 854 (Beach J).
[9]              Strange v Hybinett (1988) VR 418, 422-3 (Murphy J), 423 (Gray J).
In cross-examination, Phillips acknowledged that he realised the importance to both himself and the appellant of his assertion that he never knew about the stops on the ladder. He explicitly rejected a suggestion by counsel for the respondent that he had had a discussion with the appellant about what he would say in his evidence about the stops. He testified that three days before the court hearing the appellant and his solicitor came to his home to take some photographs of the ladder. The following cross-examination then occurred:

DEFENCE COUNSEL: You were also a party to a conversation about
the stop, is that right, on this day?---No.
Well was the stop and the guide, was that ever discussed?---No.
You’re on your oath, you understand that?---Yes, that’s right - - -
Yes?---That’s why I’m telling the truth.
And that’s why you say, do you, that you know that the way out for you and
Mr Rees is to say, ‘Well I don’t know anything about the stop.’

PLAINTIFF’S COUNSEL: Your Honour - - -
DEFENCE COUNSEL: He’s already answered the question.

HER HONOUR: [Defence counsel], I’m a bit concerned, you’re
suggesting that – you seem to be suggesting that the solicitor for the plaintiff
has been involved in something that would be improper.

DEFENCE COUNSEL: No, I’m talking about discussions between
Mr Rees and Mr Phillips - - -

HER HONOUR: He told you the only discussions that took place were
in the presence of Mr Rees, and Mr Rees’ solicitor - - -

DEFENCE COUNSEL: No, no - - -

HER HONOUR: - - - so you would have to be making the implication.

DEFENCE COUNSEL: No I’m not, Your Honour. I’m not accepting for
a moment that that’s the position.
HER HONOUR: Well [defence counsel], then you need to make it very clear that you’re not alleging that these discussions occurred in the presence of Mr Rees’ solicitors.
DEFENCE COUNSEL : I’ll make it perfectly clear. I’m not suggesting that for a moment. (To witness) Now did you have further discussions with Mr Rees on - - -

HER HONOUR: Other discussions.
DEFENCE COUNSEL: I’m sorry?
HER HONOUR: Other discussions.
DEFENCE COUNSEL: Yes, other discussions with Mr Rees on last Tuesday outside this court, but in this very building?---Is that the first day of the court?
Yes?---Yes I did – I think we did have a - - -
Yes?---We – we spoke to one another.
And in those discussions that you had which were between yourself, and Mr Rees, they were had, were they not, in the foyer, or the yard out there, the courtyard?---I can’t recall.

Sorry?---I can’t recall, no.
HER HONOUR: Do you know where the courtyard is?---Yes, I
know where the court – but I can’t recall that – you know, discussion there.
DEFENCE COUNSEL: In the foyer area outside the court, and inside this building, you had a discussion during what one might call the lunch hour before the court started, and in that conversation you had a discussion in relation to the angle of ladder, and the stops, is that correct?
PLAINTIFF’S COUNSEL: Your Honour, if this matter was to be raised, there was no suggestion of this in the cross-examination of my client at or nothing.

HER HONOUR: Not that I can recall - - -

DEFENCE COUNSEL: It’s not a matter that needs to be put to the
plaintiff, he’s been in court.
PLAINTIFF’S COUNSEL: If this is an attack to be made on credit - - -
DEFENCE COUNSEL: It’s not an attack on your client’s credit.
PLAINTIFF’S COUNSEL: Well whose credit’s being attacked?
DEFENCE COUNSEL: His. (To witness) Now was there a discussion about the ladder and the stop on Tuesday of last week?---I can’t recall that conversation.
Well it’s not very long ago?---There’s a lot happened in two weeks - - -
Yes?---In this court.
It’s not very long ago, and it’s the first thing, it’s before the court case started. I just want you to answer this question, was there a discussion about stops on the ladder last Tuesday week?---I cannot recall. I repeat, I cannot recall that discussion.
But what you can recall - - -
HER HONOUR: When you say, ‘I cannot recall that discussion’, does that mean you can’t (sic) recall that you had a discussion, but you can’t recall what it was, or that you did not have that discussion - - -?---I can recall a discussion but I can’t recall what the discussion was about now - - -

DEFENCE COUNSEL: But you recall a discussion that occurred in 2001
with Mr Rees, but not one ten days ago?---Exactly right. Different
circumstances.

As we have said, the cross-examination of Phillips was to the effect that his account that the ladder could be over-extended without hindrance from the stops was false. On appeal, counsel for the respondent accepted that it was the inescapable conclusion that the impugned cross-examination had been intended to raise the suggestion that there had been improper discussion between the appellant and Phillips - both some days before trial and outside Court during the trial; and that Phillips’ false evidence that the stops were ineffective was a consequence of this collaboration with the appellant.
The trial judge recognised that an allegation of impropriety was being made. Her Honour said so in front of the jury. But what she said was confined to an inquiry as to whether it was being suggested that the appellant’s solicitor had been involved in any impropriety on the earlier of the two occasions. Counsel for the respondent disavowed any suggestion that his cross examination had been intended to suggest impropriety on the part of the solicitor. The exchange left open the unmistakable suggestion that an allegation of impropriety was being pursued against the appellant and Phillips.
Breach of the rule in Browne v Dunn
The appellant had not been cross examined about any discussion with Phillips outside court; nor had it been suggested that he had spoken to Phillips about what evidence Phillips should give about the stops. Yet this cross-examination of Phillips sought to convey in substance that the appellant and Phillips had conspired to pervert the course of justice by fraudulently implicating the respondent in responsibility for the appellant’s accident and exonerating Phillips. If there had been evidence of this fraud, it went not only to the credit of the appellant and Phillips but was relevant to the issue whether the critical design defect existed. Counsel for the appellant rightly contended that, had there been evidence to warrant the allegation, counsel for the respondent had been obliged, pursuant to the rule in Browne v Dunn,[10] to put such an allegation to the appellant.
[10] (1893) 6R 67.
The rule arises from an obligation of fairness to both the witness and the party calling the witness. The cross-examiner must confront the witness whose evidence is to be contradicted by other evidence or to be otherwise challenged.[11] 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. The rule rests upon notions of fairness and is designed to give the witness and the party calling that witness an opportunity to meet that challenge. The rule facilitates the tribunal’s assessment of the reliability and accuracy of the witness.[12] Consequently if matters in controversy are not ‘put’ to the witness in cross examination the tribunal’s capacity to assess the merit of the allegation subsequently to be made and the credit of the witness is likely to be impeded.[13]
[11]             Morgan v John Fairfax & Sons Ltd (1988) NSWLR 208, 230-231, (Clarke JA).
[12]             R v Demiri [2006] VSCA 64, [36] (Redlich AJA); R v Thompson [2008] VSCA 144, [122] (Redlich JA).
[13]             R v Thompson, [111]; Johnson Matthey (Aust)Pty Ltd v Dascorp Pty Ltd [2003] 9 VR 171, 200 (Redlich J).

No attempt was made on the respondent’s behalf on appeal to justify the failure of trial counsel to pursue the allegation with the appellant.
No application was made to discharge the jury as a consequence of this cross- examination. Instead, counsel for the appellant sought to make much in his closing address of the ‘fanciful conspiracy theory’ which - the jury was reminded - was never put to the appellant. Counsel described as ludicrous and unwarranted the ‘absolutely horrendous suggestion’ that Phillips’ evidence had been ‘cooked up’. Counsel invited the jury to conclude that the cross examination must have been based upon instructions given by the respondent; and that the responsibility for the outrageous suggestion lay with the respondent. He submitted that it must have been on instructions from the respondent that its counsel had alleged a conspiracy to commit perjury reached at the pre-trial meeting between Phillips, the appellant and his solicitor; or reached as a result of a further improper conversation between Phillips and the appellant outside the court when they allegedly discussed the ‘crooked evidence that one or both of them was going to give’. He told the jury on no less than six occasions that the allegation must have been made by counsel upon instructions from the respondent. He reminded the jury that they had heard no evidence from any witness that there had been any conversation between the appellant and Phillips that would support the allegation that there was some agreement that Phillips should give ‘crooked evidence’.
Counsel for the respondent objected to some of these remarks. In the absence of the jury, he denied making any suggestion that Phillips or the appellant had been involved in some dishonest scam or conspiracy to commit perjury. The trial judge expressed the view in response that the clear implication of what counsel put to Phillips was that he had colluded with the appellant. The allegation, which her Honour described as very serious, was one upon which counsel for the appellant was entitled to comment as no evidence had been called at all to support it. The trial judge subsequently summarised the argument of counsel for the appellant in her charge.
Counsel for the appellant, in support of the application that judgment should not be entered against the appellant, submitted to the trial judge that defence counsel had poisoned the well of justice by making this improper and highly prejudicial allegation In rejecting this application, the trial judge concluded that the verdict of the jury was clearly open on the evidence before them and did not accept that the behaviour of defence counsel ‘in conducting a strongly fought and robust trial’ extended ‘over the line such as to make this an unfair trial’.
On appeal, it was submitted for the appellant that the allegation of collaboration between the appellant and Phillips introduced an extraneous issue which may have affected the jury’s view of the appellant; and that the trial judge should not have permitted counsel for the respondent to pursue the allegation as it went to the appellant’s credit.
Counsel for the respondent at trial denied that the questions bore upon the appellant’s credit. In fact the cross-examination had such an impact. Cross- examination of Phillips to attack the appellant’s credit was impermissible.
Counsel for the respondent at trial also indignantly rejected the notion that he had made any suggestion of collaboration between the appellant and Phillips. But it was properly conceded for the respondent on the appeal that such was the meaning conveyed by the cross examination.
On the appeal, however, the respondent sought to show that the suggestion of collaboration was not ‘wholly without justification’.[14] It was submitted that the questions were designed to establish why Phillips was cooperative when cross- examined by counsel for the appellant but was seemingly uncooperative when cross- examined by counsel for the respondent. The suggestion of collaboration was said to be justified on the basis that Phillips had given an unsatisfactory account of his conversation with the appellant outside court and that his reluctance to answer questions on that subject, when viewed in combination with his evidence that he realised ‘he had to say’ that he never knew about the stops, entitled the respondent’s counsel to suggest that the discussion between the appellant and Phillips outside court was for an improper purpose.
[14] Smout v Smout [1989] VR 845, 854.
That submission must be rejected. It emerged, after the close of all of the evidence, that this cross-examination as to the conversation outside court was based upon the personal observation of the appellant and Phillips in discussion by senior counsel for the respondent It was rightly conceded for the respondent on appeal that it was reasonable to infer that if counsel for the respondent at trial had heard anything pass between the appellant and Phillips which advanced the hypothesis that they were collaborating for an improper purpose, such matters would have been put to Phillips in the course of that cross examination. That is to say, it was accepted on appeal that counsel at trial had heard nothing which could support the contention that the appellant was a party to Phillips giving false evidence. Furthermore, as counsel for the respondent was relying upon his own observations of the appellant’s conversation with Phillips outside court, made before the appellant gave evidence, he was in a position to cross-examine the appellant as to the content of that conversation but chose not do so.
No foundation for making serious allegation
During oral argument on the appeal, it was acknowledged for the respondent that there was no evidence to support the allegation of fraudulent collusion and that it should not have been made. Counsel for the respondent conceded that the conversation between the appellant and Phillips outside court could not support such an allegation. It was further accepted that, following this cross examination, it had never been made clear to the jury that there was no intrinsic impropriety in any discussion which the appellant had with Phillips outside the court.
Possible consequences of a serious allegation made without foundation
An allegation of fraud, when there is no factual basis for it, constitutes a serious dereliction of duty and misconduct by counsel.[15] Whilst counsel has a duty to his client and to his opponent, his paramount duty is to the Court and to truth and justice.[16] The obligation not to mislead the Court or cast unjustifiable aspersions on any party or witness arises as part of this duty. In the discharge of that duty, counsel must exercise an independent discretion or judgment to ensure that the conduct of their client’s case is in accordance with the dictates of the administration of justice.[17] Where counsel alleges criminal conduct or some lesser but serious discreditable misconduct against a witness or party without a proper foundation to do so, counsel is in breach of that paramount duty, such conduct being viewed as an abuse of process for which counsel can be sanctioned.[18] The Victorian Bar Practice Rules prescribe that counsel may not make such a serious allegation unless it is ‘reasonably justified by the material then available to the barrister’[19] and that such an allegation is appropriate ‘for the robust advancement of the client’s case on its merits’.[20] Counsel is prohibited from cross-examination which suggests criminality, fraud or other serious misconduct on the part of any person unless counsel ‘believes on reasonable grounds that the material already available to the barrister provides a proper basis for the suggestion‘.[21] Similar restrictions apply to counsel in drafting pleadings and affidavits.[22] Thus, counsel must form an independent judgment as to whether the evidence or the information within his position can justify a serious attack on the character of a witness or party.
[15]             White Industries (Qld) Pty Ltd v Flower & Hart (A Firm) (1998) 156 ALR 169; Minister Administering the Crown Lands (Consolidation) Act v Tweed Byron Aboriginal Land Counsel (1990) 71 LGRA 201, 203–4.
[16]             Chatzipantelis v Grimwade Castings [1996] VR 242; Vozza v Tooth and Co Ltd (1963) NSWR 1675.
[17]             Giannarelli v Wraith (1988) 165 CLR 543, 556 (Mason CJ);
[18]             White Industries (Qld) Pty Ltd v Flower & Hart (A Firm) (1998) 156 ALR 169.
[19]             Rule 31; Advocacy in Practice (JL Glissan, 4th ed), [10.6].
[20]             Rule 31(a).
[21]             Rule 38(a).
[22]             Rule 34.
The joint judgment of Winneke CJ, Barry and Gowans JJ in Chatzipantelis emphasises that a failure by counsel to observe his (or her) duty to ‘his client but also his duty to his opponent, to the Court and to himself, as well as his paramount duty to truth and justice … will not infrequently result in the trial aborting, with consequent delay, expense and frustration’.[23]
[23] [1966] VR 242, 246.
In Strange v Hybinett the court found that counsel, carried away by his own rhetoric, had overstepped the mark of legitimate advocacy so as to require the jury’s verdict to be set aside.[24] Counsel for the plaintiff had alleged corruption on the part of the solicitor for the defendant when there was no evidence to support the claim. The allegation was made the more damaging because it was represented as counsel’s personal opinion. Gray J referred to counsel’s right of audience which carries with it a complete immunity from liability for defamation and which is accompanied by a corresponding duty to ensure that the privilege is not abused.[25] His Honour cited the following passage from Lord McMillan’s book, Law and Other Things:
It is no small responsibility which the State throws upon a lawyer in thus confiding to this discretion the reputation of the citizen. No enthusiasm for his client’s case, no specious assurance from his client that the insertion of some strong allegations will coerce a favourable settlement, no desire to fortify the relevance of his client’s case, entitles the advocate to trespass, in matters involving reputation, a hair’s breadth beyond what the facts as laid
before him and duly vouched and tested will justify.[26]
[24] [1988] VR 418, 422 (Murphy J).
[25] Ibid 423-4.
[26] p.191-2.
In Croll v McRae, cross-examining counsel improperly alleged that the witness had made an offer of settlement, which if true had plainly been made without prejudice. Street CJ, in a forceful reminder to members of the Bar of the necessity for observing high standards of professional conduct, referred to the judgment of Rowlatt J in Wright v Hearson[27] in which it was said -
It is the duty of counsel to know and observe the rules governing what they may and what they may not do in the conduct of cases; they may not disregard those rules and trust to not being checked in time. In proportion as counsel voluntarily observe those rules so will their standing and reputation
grow.[28]
[27] (1916) WN 216.
[28] Ibid 246.
Cross-examination as to the content of a conversation or some other event which occurred in the course of the trial may result in evidence which provides a basis for an allegation that there has been a joint concoction of a fraudulent account. But there is a plain distinction between asking questions for the purpose of exploring the content of a conversation and the making of a positive suggestion of a jointly concocted fraud. There must either be an established evidentiary foundation, anticipated evidence or soundly based instructions which are sufficient to justify an allegation of fraud or joint impropriety. In the present case, no grounds existed which could justify pursuit of such an allegation. The allegation should not have been made.
The suggestion of fraudulent conduct therefore involved a departure from the principle that every litigant is entitled to have their case fairly tried free from the intrusion of extraneous prejudicial matters.[29] The appellant’s complaint is that his trial was unfair because there was no evidence justifying the serious allegation that he had collaborated with Phillips to pervert the course of justice by placing false evidence before the jury. He submits that he was denied the opportunity to have his case properly considered by the tribunal of fact because he was unable to effectively deal with the allegation.[30]
[29] Croll v McRae (1930) 30 SR(NSW) 137, 143, (Street CJ); Vozza v Tooth and Co Ltd (1963) NSWR 1675; Chatzipantelis v Grimwade Castings Pty Ltd [1966] VR 242; R v M [1991] 2 QLR 68; Paterson v R [2004] WASCA 63, 96 (Malcolm CJ).
[30] Ucar v Nylex Industrial Products Pty Ltd [2007] VSCA 181, [97]; Government Insurance Office v Bailey (1992) 27 NSWLR 304.
An assertion which creates a false issue,[31] because it is unsupported by any evidence,[32] may create a degree of prejudice if it bears upon an issue in the case or upon the jury’s assessment of the credibility of an important witness. Imputations of grossly discreditable conduct unsupported by evidence are calculated to distract the tribunal of fact from their real task.[33] So, in Smout v Smout[34] counsel made unfounded assertions and unsupported allegations and imputations which were found likely to have distracted the jury from the proper performance of their duties and were likely to have affected adversely the jury’s assessment of the plaintiff’s credibility without justification.[35]
[31]             Connell v Sund [2004] VSCA 228.
[32]             Smout v Smout [1989] VR 845, 851 (Kaye J).
[33]             Strange v Hybinett, [1980] VR 418, 422-3; Smout v Smout [1989] VR 845, 850 (Kaye J).
[34]             Smout v Smout [1989] VR 845, 851.
[35] Ibid 850 (Kaye J), 854 (Beach J).
The allegation which we have been discussing had the potential to prejudice the appellant’s case in a number of ways. First, the jury might have concluded, only because conversations were admitted to have taken place, that there was some substance in the allegation of a fraudulently concocted story. Second, this allegation of impropriety bore upon Phillips’ credit when acceptance of his evidence was essential if the appellant was to succeed. Third, the allegation of impropriety carried the risk of a pall being cast over the appellant’s claim, in part because it was an indirect attack on the appellant’s credit.
Had appellant’s counsel understood the true import of the cross-examination, he might have sought an immediate direction from the judge that there was no evidence which could support the allegation, that it could not reflect on his client’s credit, and that it had not been raised with the appellant. But it seems that counsel did not apprehend the substantive aspect of the allegation.
Counsel might have sought, alternatively, the discharge of the jury and that the trial be aborted – or that the trial proceed before judge alone - at least when it became certain that the respondent was not going to adduce evidence to support the allegation of fraudulent conduct. An application to discharge would not have been without any merit. The appellant had been placed at a considerable disadvantage by what had occurred. It was very improbable that the jury would have thought that the suggestions of wrongdoing, made at nearly the end of the trial so far as the evidence was concerned, were confined to Phillips.
Alternatively again, counsel might have sought to recall his client so that the allegation could be put. But there was no certainty, in light of what the respondent’s counsel had said, that the judge would have permitted it; and it is speculative what respondent’s counsel would have done had the appellant been recalled. Moreover, Phillips was the last witness in the case. He gave evidence long after the appellant. To seek to recall the appellant would have tended to underline an issue which had been raised but which, atmospherics apart, had not got far save for the fact that Phillips’ evidence had been somewhat evasive.
The various alternatives - excepting a successful application for the discharge of the jury and that the trial be aborted, or that, the jury having been discharged, the judge continue the trial sitting alone - all had potentially negative aspects. The choice of which alternative to take was only necessary because of respondent’s counsel’s conduct. But counsel for the appellant followed none of these courses. Instead he launched an attack on the respondent, in final address, in respect of the serious allegation which had been raised – an attack which rightly treated the allegation as going to a matter of fact in issue between the parties.
We shall return to the question whether the trial miscarried after we have considered other aspects of counsel for the respondent’s conduct which was the subject of discrete complaint.
Other conduct referable to the allegation of collusion and which was said to improperly undermine the credit of either the appellant or Phillips or both.
There was other conduct by counsel for the respondent that was referable to the allegation of ‘collusion’ between the appellant and Phillips - although this was only recognised as such with the benefit of hindsight.
The ‘restless nights’ cross examination
(a) A discrete complaint was made that the following cross-examination of the appellant by counsel for the respondent improperly undermined the credit of both the appellant and Phillips.
DEFENCE COUNSEL: I just want to ask you one other thing. What I am going to put to you now is something that will be put later on but is the position this, that Mr Phillips first gave an account of what had happened – I just want you to listen to this carefully. Mr Phillips first gave an account of what happened because he felt that he needed to support his mate and then that he said, and did he tell you that after some restless nights he had made another statement because he hadn’t been completely frank about this first statement? --- Never had that conversation.

PLAINTIFF’S COUNSEL: Your Honour, this witness is being asked about
statements being made by Mr Phillips.

DEFENCE COUNSEL: I am asking if he has had that conversation.
HER HONOUR: He was actually asked whether he told him - - -
PLAINTIFF’S COUNSEL: If it is a question about a conversation with
Mr Phillips as my friend says - - -

HER HONOUR: It is about a conversation.

PLAINTIFF’S COUNSEL: In that case it is not objectionable, Your Honour.

HER HONOUR: Thank you.
DEFENCE COUNSEL: And did Mr Phillips tell you that after some restless nights he felt the need to make a statement to the effect that it collapsed when you were shaking it and bouncing on it to test it and that you knew that that is why the ladder collapsed. Did he tell you that?---No, no, I mean I have never had that conversation with Mr Phillips.

The questions were in an objectionable form.[36] But the appellant makes a more serious complaint. The ‘restless nights’ allegation was not put to Phillips by counsel for the respondent when Phillips went into evidence. The suggestion made to the appellant that Phillips told him that he had changed his statement to one less favourable to the appellant (in which Phillips said that the ladder collapsed because the appellant had bounced on it to test it) could only be justified if counsel for the respondent was seeking to support an allegation of collusion between the appellant and Phillips. The further suggestion - that Phillips claimed the appellant knew that was why the ladder had collapsed - also depended for its justification on such an allegation. Counsel for the appellant on appeal rightly contended that the questions would otherwise only go to the credit of Phillips and were therefore improper.
[36] The objectionable form of the questions is later discussed.

In this Court, counsel for the respondent accepted that this impugned cross- examination was directed to the broad allegation of collusion. In its written outline the respondent had suggested that the absence of cross-examination of Phillips on this matter could have been explained on the basis that the appellant had so emphatically rejected these suggestions that counsel may have thus chosen not to further pursue the matter.[37] But, as has already been observed, counsel did choose to expressly raise the allegation of collaboration with Phillips, albeit by relying upon a matter that had not been raised with the appellant. The suggestion that Phillips had disclosed to the appellant that he had changed his story was capable of giving some currency to the suggestion, later made to Phillips, that he and the appellant were collaborating in a fraud to their benefit and to the detriment of the respondent. The fact, conceded by the respondent on appeal, that this allegation could only be justified if it was an attempt to support the ‘collusion’ allegation, makes quite inexplicable counsel’s failure at trial to cross-examine the appellant as to the ‘out of court’ discussions between the appellant and Phillips, if it was thought that such discussions supported the allegation of collusion.
[37] A quite different reason emerged on appeal for why counsel may have desisted in pursuing this subject. See the discussion as to its without prejudice character.
As the appeal unfolded, the court was informed that the ‘restless nights’ allegation put to the appellant was based upon a without prejudice discussion between the solicitors for the respondent and the third party shortly after Phillips had been joined as a third party. On the appeal, counsel for the respondent was permitted to read from a file note which was said to be an instruction contained in the brief of senior counsel at the trial. The note was to the effect that the solicitor for Phillips had rung the solicitor for the respondent saying that he had received a phone call from Phillips telling him that he had spent a restless night as he had not been completely frank with his solicitor because of the desire to protect the appellant. The file note recorded an assertion that Phillips’ solicitor had said to the respondent’s solicitor that Phillips had told him that the ladder had collapsed when the appellant was shaking and bouncing on it to test it to see if it was secure and that Phillips also said that the appellant knew he was doing that when the ladder collapsed. The file note apparently also recorded that Phillips’ solicitor said that his client would be prepared to cooperate and give evidence if he was released from the proceedings.
It seems likely that the file note was in the hands of counsel at trial prior to the cross-examination of the appellant; and that its contents motivated the cross examination. If the file note provided the basis for this cross examination, as the respondent appeared to suggest on appeal, it should have been self-evident to counsel at the trial that the conversation between the solicitors had been on a without prejudice basis. Moreover, the conversation recorded in the file note did not support the allegations in the terms in which they were put in the impugned cross- examination. The file note contained no instruction that there was any conversation between the appellant and Phillips of the sort which was put by counsel to the appellant.
There may be circumstances in which an offer to settle may be admissible. But the circumstances in which they are made must be given the most careful consideration. Confidential proposals to resolve issues between litigating parties which are stated to be without prejudice, or are impliedly so, will normally be excluded on grounds of public policy.[38] The questions pursued by counsel involved the assumptions that Phillips had in fact given such instructions to his solicitor and that there had been a conversation between the appellant and Phillips before such instructions were given. There was no evidence which permitted either assumption to be made.
[38] Croll v McRae [1930] 30, SR (NSW) 137, 139 (Street CJ).
No explanation was forthcoming from the respondent on appeal as to a basis upon which counsel could have put such allegations to the appellant at trial or reasonably concluded that evidence of those instructions would be admissible. Not only was the conversation inadmissible, but more significantly, it did not substantiate the allegations that were made. Thus the jury was left with an unwarranted allegation which provided further support for the hypothesis that the appellant and Phillips had colluded to produce a false account when in truth there was nothing to support that hypothesis. The questions were without justification.
Use of third party’s answers to interrogatories in cross examination of appellant
(b) The appellant also relied upon questions asked by counsel for the respondent at the commencement of his cross-examination of Phillips as constituting a further attempt to pursue the improper suggestion of collaboration between the appellant and Phillips. To understand this point it is necessary to first refer to some earlier cross examination of the appellant concerning an answer given by Phillips to an interrogatory (which is also the subject of a discrete complaint on appeal).

COUNSEL: So you wouldn’t assert for one moment that you had
tried to reposition the ladder? --- No I didn’t.

COUNSEL: In documents sworn by Mr Phillips he says amongst
other things that you positioned the ladder? ---That’s not true.

COUNSEL: That’s what he’s sworn on his oath --- Yes well that’s
not true.
COUNSEL: And he says further that when you get up to – close to the top of the first section of the ladder, that you turned and jumped and bounced on the ladder ---That’s not accurate.

COUNSEL: Sorry? ---That is not true.
COUNSEL: So one of you is wrong?--- Obviously.

COUNSEL: And the person who is not there of course is
Bailey Aluminium.
HER HONOUR: Is that a question?
DEFENCE COUNSEL: For obvious reasons.
HER HONOUR: Is that a question?
DEFENCE COUNSEL: Yes it is Your Honour.
HER HONOUR: What’s the question? It’s a comment.
DEFENCE COUNSEL: The only two people that are there at the time
are you is that right and Mr Phillips. Is that right?--- That’s correct.[39]
[39] The objectionable form of these questions is later discussed.

We are here concerned with the use in cross examination of a document which is not of the witness’s making. If at the time of this cross-examination, counsel intended to tender the answer to interrogatories, he should have first shown the answer to the witness and subsequently tendered it.[40] Had he tendered the answer, he would have been entitled to reveal its contents in subsequent questions. But as counsel did not seek to tender the document at that time[41] it was not permissible to ask questions which identified the nature of the document or its content. He was obliged to comply with the rule in Queen’s case[42] as followed in R v Orton.[43] But no objection was taken by appellant’s counsel to the form or substance of these questions - a matter which led on to repeated argument about the accuracy of counsel’s assertions as to the substance of Phillips’ answer.
[40]             R v Banks [1916] 2 KB 621; Paterson v Paterson (1953) 89 CLR 212; R v Bedington [1970] Qd R 353, 359; Alister & Ors v The Queen (1984) 154 CLR 404, 442-3.
[41]             The fact that counsel may have had an intention to later tender the document as part of his case would not entitle him to reveal its content during this cross examination.
[42]             (1820) 2 Brod & B 284; Darby v Ousley (1856) 1 H&N 12.
[43] [1922] VLR 469, 470-471.
The rule in Orton’s case
One of the reasons for the rule which requires that a document, not of the witness’s making, be admissible and be tendered, if there is to be cross-examination about its contents, is the avoidance of misstatements as to the content of the document. As it was not counsel’s intention to then tender the document, counsel was not permitted to identify the document or to ask any question about its contents. Counsel was obliged to follow the rule in Orton’s case[44] and to ask the appellant to look at the answer (without identifying it) and then to ask the appellant whether he adhered to his previous evidence.[45]
[44] Cross on Evidence, Australian ed, Vol 1, para 17550.
[45] R v Orton [1922] VLR 469; Birchall v Bullough [1896] 1 QB 325, 326; R v Yousry [1914] 11 Cr App Rep 13, 18; R v Gillespie (1967) 51 Cr App Rep 172, 177; R v Bedington [1970] Qd R 353, 359-360; Alister v The Queen (1984) 154 CLR 404, 442-3.
The rule in Orton’s case has been deprecated in New South Wales and Queensland because the practice of asking a witness to look at an unidentified document before enquiring whether the witness still adheres to his previous testimony carries with it the clearest implication in the question that the document contains assertions to the contrary of the witness’s testimony.[46] But the rule is well- settled in Victoria.
[46] R v Hawes (1994) 35 NSWLR 294, 303-3; R v Foley [2000] 1 Qd R 290, 297; Southern Cross Mine Management Pty Ltd v Ensham Resources Pty Ltd [2006] 2 Qd R 145.
Asking a witness to comment upon the truthfulness of another person’s account on oath
Another criticism is sometimes made of the use of an answer to interrogatory. Where a witness is confronted with the testimony of other persons and it is suggested that the witness’s evidence is incorrect, the witness can only reject that suggestion by condemning the other testimony. The technique has elsewhere been described as ‘a form of bullying - using unfair means to persuade a person to retract his or her evidence.’[47] But counsel is entitled to ask the witness whether he would agree with other evidence if it were given. Here counsel went further. He not only identified the document and disclosed its content, but resorted to questions which invited the appellant to answer by commenting upon the truthfulness of Phillips’ answer to that interrogatory. Questions which invite a witness to comment upon whether another person is truthful or lying on oath should not be pursued. But again, no objection was taken by the appellant to the form or substance of the cross- examination.
[47] R v Foley [2000] 1 Qd R 290, 297; Southern Cross Mine Management Pty Ltd v Ensham Resources Pty Ltd [2006] 2 Qd R 145, [13] (Chesterman J).
Complaint was made, both at trial and on appeal, that counsel for the respondent had misrepresented Phillips’ answer to the interrogatory. The problem was a consequence of the failure to follow the procedure in Orton’s case, and to have the witness comment upon Phillips’ alleged answer. In fact, Phillips did not say in his answers that the appellant had positioned the ladder or that the appellant had jumped on the ladder. At trial, following a complaint that the answer had been misrepresented, respondent’s counsel acknowledged that Phillips’ answer was to the effect that the appellant had only repositioned the ladder. Subsequently, in the absence of the jury, counsel for the appellant also complained that Phillips’ answer did not state that the appellant had jumped at the top of the first section of the ladder. Counsel for the respondent then undertook to correct this error upon resuming cross-examination as well as to correct another error to which we should refer.
During the course of cross-examination, the appellant rejected the suggestion made by counsel for the respondent that he would instruct plumbing students whom he trained to make absolutely certain that an extension ladder had not been over-extended. Shortly thereafter, counsel for the respondent suggested that the appellant had earlier said that he would instruct his students to look to see whether the ladder was over-extended before they climbed it. This misstatement of the appellant’s evidence was also the subject of complaint in the absence of the jury and counsel for the respondent agreed that he would correct it. He did not do so. Complaint was made on appeal that counsel for the respondent did not correct this error or the error concerning the allegation that the appellant had jumped at a particular point on the ladder.
Later in cross examination of the appellant, counsel again suggested that Phillips’ answer was to the effect that the appellant had jumped on the ladder. Counsel for the appellant objected on the basis that this continued to misrepresent Phillips’ answer to the interrogatory. Phillips’ entire answer to that interrogatory was then read in the jury’s presence.
We are now able to return to the complaint arising from questions asked at the commencement of Phillips’ cross examination by respondent’s counsel. It followed cross examination of Phillips by the appellant’s counsel in which the latter sought, in part, to diminish the impact of Phillips’ answer to the interrogatory to which we have referred;[48] and other cross-examination designed to show that Phillips had previously set up the ladder in the particular way that he did that day, and that Phillips had not investigated ladder accidents in his employment as a WorkCover investigator. The last-mentioned matter was relevant to Phillips’ claim, in effect, that he did not know that he had done anything wrong in setting up the ladder as he did.
[48] Phillips had there stated that the accident may have been caused by the appellant ‘bouncing’ on the ladder. In fact, his answer lacked substance; for according to the evidence the ladder would have withstood a great weight if it had been properly set up.
The impugned cross-examination of Phillips by counsel for the respondent
began as follows:

COUNSEL: Mr Phillips, is Mr Rees a good mate of yours is he? --- Has been
for over 40 years.
COUNSEL: In your role as a WorkCover investigator have you had situations where you’ve had to give advice, refer it to the prosecution section and then the company charged under the relevant legislation? --- Well that’s the process if you’re going an investigation if you identify any breaches of act, or regulations you identify it in your report. The report goes to a senior lawyer - - -

COUNSEL: Hey, hey?---Sorry.
COUNSEL: Have you had a situation where you’ve had to investigate something, it’d go to the investigation branch and the company would prosecute it?---Plenty of times.
Sorry?---Plenty of times.

COUNSEL: And as a result of that have you had to give evidence in the
prosecution? -- I’m the informant in those cases, if they’re my cases.

COUNSEL: You’ve just been cross-examination by plaintiff’s counsel,
would you call that cross-examination - - -

HER HONOUR: That’s – I’m not going to let that - - -
COUNSEL: No, I’m going right on with this, Your Honour, with respect. (To witness) What’s happening here is these Dorothy Dix questions have been put to you about the behaviour of Mr Rees on this day with which you just lamely agree, is that correct?---Yes.
So you agree with all of that?
THIRD PARTY’S COUNSEL: With respect Your Honour - - -

DEFENCE COUNSEL: Well he’s agreed to it - - -
THIRD PARTY’S COUNSEL: With respect that does not correctly state the questions were put. The questions were put specifically as to this witness’s actions on the day and concentrated on this witness’s actions, not on my client’s actions.
DEFENCE COUNSEL: That is a complete and utter misstatement of it. He said, ‘In your observations as a WorkCover investigator, is there anything Mr Rees did that was’ – and no, no, no - - -

HER HONOUR: No, no, he asked him a variety of questions.
DEFENCE COUNSEL: Yes, and I’m asking him, and in fact the witness
has already agreed with me.

The appellant’s counsel did not object to this conduct[49] although the only purpose of the questions and comments, disguised as questions, could have been to suggest that the appellant and Phillips were in alliance and that Phillips would agree with whatever was put to him by the appellant’s counsel. Although the allegation was not there made that the appellant and Phillips had fraudulently concocted an account of the accident which implicated the respondent and exonerated Phillips, it was not disputed for the respondent on appeal that these questions also advanced the allegation of collaboration between Phillips and the appellant. But counsel contended that it was pure speculation to suggest that these comments would have advantaged the respondent rather than the appellant in the minds of the jury.
[49] This style of cross examination was the subject of discrete complaint on appeal.
A note is passed
(c) Late in the respondent’s cross-examination of Phillips, the appellant’s solicitor passed a note from the appellant’s counsel to Phillips’ counsel at the Bar table. This was seen by counsel for the respondent who then created ‘a scene’ by asking the witness if he knew what had happened. The trial judge intervened and asked what that had to do with the witness. Counsel for the respondent then said he was going to ask the witness a question and was warned by the trial judge to be careful. He then asked whether Phillips had had any discussions with the solicitors or barristers for the appellant. Phillips’ answer was in the negative. The cross-examination then concluded. In the absence of the jury the trial judge asked defence counsel whether he had been implying by his question that appellant’s counsel had spoken to the witness in recent times whilst under cross-examination. Counsel for the respondent eschewed any such suggestion.
The trial judge instructed the jury immediately upon their return to court that there was nothing improper about the note having been passed between counsel. On appeal, counsel for the respondent conceded that the comment by trial counsel should not have been made. But he submitted that it was of no consequence in the trial. The respondent relied on the fact that no further complaint was made by counsel for the appellant prior to receipt of the unfavourable verdict.
The incident was the subject of a forceful comment by counsel for the appellant during his closing address. Before us, counsel for the respondent submitted there was no reason to believe that this incident could have improperly influenced the deliberations of the jury. Nevertheless, the passing of the note was evidently used at trial to support the respondent’s broad allegation that the appellant and Phillips were collaborating.
Cross-examination as to credit based upon on alleged misstatement of evidence given

The appellant also relied on other cross-examination of Phillips in which counsel for the respondent allegedly misstated the evidence given by the appellant and which it was said served to undermine the credibility of both the appellant and Phillips. This cross examination was also said to indirectly bear upon the respondent’s allegation that the appellant was complicit in a false account given by Phillips. The appellant relied upon the following cross-examination:

(d)

DEFENCE COUNSEL: You see what I suggest to you is this. There is no way known, even by looking at its stability by touching it, by feeling its movement, that anyone in their right mind would climb a ladder when it was extended to the point where you had it extended.

PLAINTIFF’S COUNSEL: Your Honour, that question is objectionable.
The comparison is being made - - -

HER HONOUR: And that would be fine if he was your witness.
PLAINTIFF’S COUNSEL: Pardon?
HER HONOUR: He is not your witness.
PLAINTIFF’S COUNSEL: No.
WITNESS: In answer to your question, I disagree.

DEFENCE COUNSEL: You disagree. And Mr Rees says that had he understood that it was on the last rung, there is no way known that that was a complete recipe for disaster and would never have got up? - - - I can’t recall him saying that.
Well, he did, don’t worry about that.

PLAINTIFF’S COUNSEL: Your Honour, that wasn’t the evidence. The
evidence was had he known it was - - -

DEFENCE COUNSEL : You can’t object to this.
PLAINTIFF’S COUNSEL: I can object to - - -
DEFENCE COUNSEL: You can’t object.
PLAINTIFF’S COUNSEL: - - - I can object - - -
DEFENCE COUNSEL: Plaintiff’s counsel can object.
PLAINTIFF’S COUNSEL: Well, plaintiff’s counsel can stand up – stand up and say that that was not the evidence because the jury is being misled, Your Honour.

HER HONOUR: I am not going to get the question answered because
you are going to go home. I will see you tomorrow morning.

The appellant complains that the objection to the question was never dealt with and no retraction was made of the assertion in front of the jury that the appellant had agreed that a ladder on the last rung was a complete recipe for disaster. In cross-examination the appellant had agreed with the suggestion that he knew that if the ladder was in an over-extended position it was a recipe for disaster to climb on it. There was no difference of any moment between what was put by counsel for the respondent and the answer in fact given by the appellant. In any event, when the trial resumed on the following Monday morning, no request was made that the trial judge rule upon the objection that had been taken nor was it dealt with in appellant counsel’s closing address. We put this complaint aside.
In-Court demonstrations
(e) On appeal, respondent’s counsel placed reliance upon the fact that the ladder was over-extended in court a number of times during cross examination of witnesses. It was submitted that these demonstrations focussed the jury’s attention on the fact that the ladder could not be over-extended without manipulating it past the stops. In the respondent’s closing address at trial, reference was made to the fact that during the various attempts in court to over-extend the ladder, it always hit the stops. It was submitted for the respondent in this Court that the jury had not been deflected or improperly influenced by its counsel’s conduct.
Respondent’s counsel used the ladder in court to undermine the credit of both the appellant and Phillips and in a manner which indirectly bore upon the suggestion of collaboration between them. There was an extensive discussion in the absence of the jury as to how counsel for the respondent might use the extension ladder in the course of cross-examining the appellant. The trial judge ruled that counsel was not to attempt to over-extend the ladder during cross-examination of the appellant, but could commence by having the ladder in an over-extended position and then drop it down to a properly extended position so as to establish the difference in appearance of the ladder in both positions. This ruling rested upon the fact that the respondent was not alleging that it was the appellant who had over- extended the ladder, it being in substance contended that the appellant was negligent in not recognising that it was in an over-extended position when he climbed it.
In cross-examination, respondent’s counsel sought to establish, through the appellant, that the person who had over-extended the ladder must have known that he had done so; and would have had to manipulate the ladder to get past the stops. Although the precise manner in which the ladder was used during the course of this questioning is not made clear on the transcript, it appears that without objection, and contrary to the ruling of the trial judge, the ladder was then used in an attempt to demonstrate that it could not be over-extended without manipulating it to pass the stops. The appellant was questioned about his knowledge of such ladders and the existence of the stops to prevent over-extending. Little or no objection was taken to the extensive cross-examination which appeared to be directed to the credibility of Phillips’ claim that he was not aware of the stops - an issue about which the appellant could give no relevant evidence.
Counsel for the respondent, in closing address also referred to specifically to the fact that Phillips had made four attempts in court to over-extend the ladder; and had hit the stop four times in front of the jury ‘after practice, practice, practice, no doubt’. During a break, the learned trial judge drew counsel’s attention to the fact that he had not suggested to Phillips in cross-examination that Phillips had been practising on the ladder to try and over-extend it smoothly; and stated that his comment was therefore unfair. Counsel acknowledged that he had not cross- examined Phillips to that effect and said he would redress the matter when he resumed. He did not do so. No complaint was subsequently made about this oversight.
The opening of the respondent’s case
(f) In the course of an examination of the trial transcript we noted that, in opening the case, counsel for the respondent went beyond an outline of his case by advancing various arguments which should only be made in closing address. In particular he took the opportunity to make a number of criticisms of the appellant and the expert witness, Mr Herzog. Counsel may, in explaining the evidence that it is intended to adduce in support of the client’s case, identify those parts of the other party’s case which are in issue. But an opening is not the occasion for attacking the evidence called by the other party or denigrating their witnesses.
Further, at the conclusion of counsel’s opening of the respondent’s case, after referring to Phillips’ duty to the appellant to take care for the appellant’s safety, counsel said ‘to put the ladder up in the manner in which he did clearly was in breach of that duty but the plaintiff knew about it anyway and we say that the plaintiff and the third party are the ones responsible for this accident.’ This was said despite the fact that the cross-examination of the appellant had not sought to establish that he, knowing the ladder was over-extended, climbed it in disregard of its dangerous state. But neither the form nor substance of counsel’s opening drew any complaint from counsel for the appellant.
Summary
Each of the above matters (a)-(c) and (e)-(f) addressed, in a non-specific way, the allegation of fraudulent collusion which had been raised in cross-examination of Phillips. The appellant’s senior counsel did not pursue any relevant objection to the ‘restless nights’ allegation. He raised no objection to the manner in which Phillips’ answer to interrogatories had been used. He took no objection to the asserted ‘Dorothy Dix’ cross-examination. He did not seek any further direction in respect to the note-passing incident. He raised no complaint about the manner in which the ladder was used in court in cross-examination of the appellant. The use of cross examination to attack the credit of some other witness drew no objection. No application to discharge the jury was made as a consequence of these events.
Other alleged misconduct which impermissibly undermined the credibility of the appellant or Phillips
There are other discrete complaints to which we must now refer.
In Libke v The Queen[50] Heydon J referred to the following passage from the speech of Viscount Sankey LC in Mechanical and General Inventions Co Ltd v Austin Motor Co Ltd:[51]
Cross-examination is a powerful and valuable weapon for the purpose of testing the veracity of a witness and the accuracy and completeness of his story. It is entrusted to the hands of counsel in the confidence that it would be used with discretion and with due regard to the assistance to be rendered by it to the Court, not forgetting at the same time the burden that is imposed upon the witness.
[50] (2007) 230 CLR 559, 598 [119]–[120].
[51] (1935) AC 346, 359.
The cross-examiner is invested with considerable powers to limit a witness’s answers and to control the witness. But those powers are, as Heydon J observed in Libke, given on conditions. A number of those conditions underpinned the rules of evidence contravened by counsel in the present case.
In the course of dealing with the allegation of collaboration, we have dealt with some aspects of a further complaint raised by the appellant: that senior counsel for the respondent misstated the evidence during his cross-examination of witnesses and used cross examination of one witness to undermine the credit of other witnesses. It was also submitted that respondent’s counsel repeatedly cut off the answers which witnesses were attempting to give , misinterpreted answers given by witnesses, expressed personal opinions or made comments in the course of questions, and treated his own questions as the answers of the witness. A great deal of this complaint had substance, as can be seen from the passages of counsel’s cross examination that are referred to throughout our judgment. In particular, counsel did not comply with the following rules of evidence.

(1) Personal opinion and comment

A cross-examiner is not permitted to express personal opinions or make comments in the course of posing questions to be answered by the witness. To precede a question with some comment or to invite the witness to respond to a comment from counsel has no place in cross-examination.[52] The personal views of counsel, whether expressed as such or conveyed by way of comment, are irrelevant at any stage of the trial process. To introduce them is potentially prejudicial. It may be unfair to the witness or to the party calling the witness.

[52] Ibid 577-8 [37] (Kirby and Callinan JJ), 600-601 [125] (Heydon J, who explains the vices).

(2) Cutting off the witness

Counsel is not entitled to cut off a witness’s answer. It is not fair that a disparaging question should be asked of a witness who is then prevented from completing their answer.[53]

[53] Ibid 601-2 [128] (Heydon J).

(3) Assuming matters in controversy

This rule prohibits questions which wrongly assume the witness’s assent to a fact in controversy. The problem occurs when a question contains an assertion of disputed fact and the assertion is not admitted by the witness. It is elementary that counsel is not permitted to treat a witness as having assented to a proposition when the witness has not done so. One illustration of the breach is if counsel treats a previous question as the answer of the witness despite the witness not having agreed with the suggestion contained in that question. Heydon J referred to the following passage from Wigmore in which the objectionable consequences of such a technique are described:
[1t] may by implication put into the mouth of an unwilling witness a statement which he never intended to make and thus incorrectly attribute to
him testimony which is not his.[54]
[54] Ibid 602-3 [130], citing Wigmore (1970) Vol 3, 171 [780].
As the next passage of counsel’s cross-examination which we set out illustrates, questions which contain an assumption about a fact in issue have a tendency to confuse and mislead the witness, the parties, the jury and the presiding

judge. It may produce a misconception as to what evidence the witness has actually
given.

(4) Argumentative questions

Some of the questions asked by counsel were not for the purpose of eliciting an answer but involved an argumentative assertion.[55] The objection to such questions rests on the need not to confuse or mislead the witness. It may also be objectionable because it will convey counsel’s personal opinion.[56]

[55] Libke v The Queen (2007) 230 CLR 559, 603-4 [131] (Heydon J); R v. Baldwin (1925) 18 Cr App Rep 175, 178–9.
[56] See (1) as to the objection to questions which contain comment or personal opinion.

(5) Attacking other witnesses’ credit through the witness

A cross-examiner is confined to questions which are relevant to an issue in the case or which bear upon the credit of the witness. The witness may not be asked questions which are solely directed to the credit of a different witness. Such questions should be disallowed. For example, in Connell v Sund[57] the cross examiner did not regard himself as bound by the plaintiff’s answers to questions on a topic which could only go to his credit, subsequently adducing evidence from other witnesses on that subject. Winneke P found that the jury had been encumbered by a false issue calculated to divert it from the real issues as a consequence of counsel taking liberties to which he was not entitled.[58]
[57] [2004] VSCA 228.
[58] Ibid 17-18 (Winneke P).
Cross-examination which infringes these rules may result in prejudice to the party calling the witness. Responsibility for deciding whether objection should be taken to questions put to a witness or to the conduct of opposing counsel rests primarily with counsel and not with the judge.[59] The absence of objection to the form or content of the questions may be indicative of the degree to which the questions were in fact productive of any prejudice. But the failure of appellant’s counsel’s generally to object to the manner or content of counsel’s cross-examination does not deny the appellant the right to complain on appeal that counsel’s conduct was of such an order that he did not receive a fair trial.
[59] Libke v The Queen (2007) 230 CLR 559, 587-8 [76] (Hayne J).
The trial judge also has a responsibility, independently of objections, to prevent such questioning and to exercise their judicial authority to ensure that counsel observe accepted standards of conduct.[60] The oversight of the manner in which evidence is elicited is a primary function of the trial judge.[61] Where evidentiary rules are infringed, the trial judge should intervene to stop counsel and to make clear why the question was impermissible. This obligation arises as part of the judge’s overriding responsibility to ensure that the trial is fair.
[60] Ibid 604-5 [133] (Heydon J).
[61] Ibid 590 [84]–[85] (Hayne J), 604-5 [133] (Heydon J).
The appellant further contended that the conduct of counsel for the respondent was so overbearing that the trial judge was unable to exercise the level of control necessary to ensure that the appellant obtained a fair trial. Instances were cited where the learned trial judge was cut off or was ignored when attempting to intervene during counsel for the respondent’s cross-examination of witnesses.
Appellant’s counsel identified the following cross-examination of Phillips as illustrative of many of the above complaints:

DEFENCE COUNSEL: Now go to your new house. Did you paint that
house yourself?---Yes.
And the section yourself?---At that stage before the incident, no, because all the weatherboards are painted on the ground before they went up, the first coat.
Did you do any painting up on the – when the timber was up?---All the windows and weatherboards were pre-painted before the went in, and then I took time off from work, and it took me two weeks to paint that house with an extra two coats.

You painted the - - -
HER HONOUR: Was that before or after the accident?---After the
accident.
DEFENCE COUNSEL: Why is it so that you didn’t use this ladder to do any painting at your new house, is that right?---Yes I did do some painting at that house.
And you used that ladder fully extended to do some painting at your new house?---No.
Why is it that the ladder is covered in paint similar to the colour of your house?---Well the simple reason, it’s very windy at Darraweit Guim. I don’t know whether you’ve been there or not - - -
But weren’t - - - ?---Just - just let me finish the question (sic). I always put a lot of paint on my brush, and there’s always a little bit of spillage.
But weren’t the boards painted on the ground?---Yes, but that - - -
No, hold on, but you say the boards were painted on the ground and the wind blew the paint off your brush – when it’s on the ground – over onto the ladder, is that what you’re saying?---Yes, because I – I - - -
Is that what you’re saying?---Yes.
So the reason why you got a lot of paint on your ladder is because you’re painting away at the boards on the ground and whoosh, comes the wind, picks up the paint and drops it on your ladder, is that right?---No.
Well you just told us that that’s how the paint go on your ladder?---No I didn’t, I – not on the weatherboards.
Well what were you painting?---My shed.
The shed?---The shed was painted in that – that colour before the house was even thought about.
Did you extend the ladder to paint the shed?---Not the full extension.
Because a moment ago – and the transcript will show – that you said when painting the boards on the ground, the paint – because of all of the wind out there – was blown onto the ladder?---You said that, I didn’t say that - - -
No, no, you agree?---Well I don’t – I don’t agree with that, because - - -
Well what I suggest is this, is you’re just making it up as you go along?---
(No audible response.)
Because you realise the stupidity of the answer, and then said no, I’ll go back to the shed and if what you say is true - - -
HER HONOUR: Let him - - -
DEFENCE COUNSEL: I haven’t put the question yet Your Honour, with respect. (To witness) If what you say is true, that you didn’t paint this house until after this accident, that is go up and put on two coats, then you can’t have used this ladder?---Not for the house painting, for the shed.
Yes?---You assumed I used it for the house - - -
No, no - - -?---With yellow paint.
No I haven’t assumed anything. Tell me this, that ladder has that carried that paint that it has from the first house you painted?---I can’t recall that.

On appeal it was submitted for the respondent that in this passage, Phillips had given confusing and seemingly improbable evidence about how paint came to be on the ladder; and that counsel for the respondent was entitled to explore this improbability. But we see much force in the appellant’s contention that any confusion arising from this part of Phillips’ account was the immediate consequence of senior counsel repeatedly cutting off the witness and his treatment of his questions as the witness’s answers. It is not without significance, however, that counsel for the appellant again raised no objection to the form or substance of this cross-examination (although Phillips was not his witness); and that no complaint was made that counsel for the respondent had disregarded the trial judge’s attempt to intervene.
It may be said of this particular portion of the cross examination, and of other misconduct the subject of complaint, that counsel was permitted too much latitude by the trial judge. But a review of the trial transcript shows that the trial judge intervened on numerous occasions to direct counsel for the respondent to allow the witness to answers the question and disallowed lines of inquiry which he wished to pursue. Moreover, the judge’s intervention sometimes occurred without objection from the appellant’s counsel. We do not accept the extreme contention that the trial judge abdicated her responsibilities in the face of counsel for the respondent’s overbearing and boorish manner. But the endeavours of the trial judge, and her view of counsel’s conduct, does not relieve this court of the obligation to determine whether the appellant received a fair trial.
An examination of the transcript indicates that counsel for the respondent also cross-examined the appellant’s expert in an attempt to improperly undermine the appellant’s credibility:
DEFENCE COUNSEL: If one does achieve maximum length by putting the hooks in that position, that is, deliberately so, then that significantly reduces the viability and the safety and the welfare of the ladder and its user?---Yes. Well I know that, I’m the engineer.
Mr Rees also knows that - - -

What the trial judge said about the remarks of Beach J was given in the form of a direction. It was strongly put. It can be criticised because it assumed that his Honour had said what was attributed to him; and because the possible subject- matter of the comments was at least very improbable. The former criticism bears on the point that evidence had been given from the bar table.
Those criticisms apart, the appellant complains that the direction, given five days after these comments were made by counsel, was too late to repair the damage. But the appellant did not request the trial judge to give some directions about the other objectionable features of the closing address which the trial judge, it appears, did not perceive to be so.
Before counsel for the respondent concluded his closing address he said:
I woke up this morning humming to myself, ‘Won’t you come home Bill Bailey, won’t you come home,’ because if only we had him. If only we had Bill Bailey to come along now, and I think the next line of the song is, ‘[plaintiff’s counsel’s] been moaning all weekend long.’ And that’s exactly what will happen as soon as I sit down and address, and I will tell you why he will be complaining is this. We can’t get Bill Bailey to come home, and it’s a pity. But Mr Bill Bailey would be turning in his grave listening to the criticisms of [plaintiff’s counsel], and what happens, it’s a bit like footy, if you can’t win by getting the ball, then you just attack your opponent. And what you are going to hear in a moment is just an attack on me, they’ll forget about the evidence, they’ll just go straight – they’ll go for the man. But you look at the evidence, don’t you worry about that, we can’t get Bill Bailey home, and it’s a pity.
This was no more than a crude attempt to excite sympathy for the respondent and its founder who was deceased. And it was inappropriately personalised. Counsel for the respondent, perhaps conscious of the extent to which he had exceeded the permitted boundaries of legitimate advocacy, anticipated the attack that was to be made on his conduct of the respondent’s case. But there was no complaint by counsel for the appellant as to these aspects of counsel’s closing address, no complaint about his part-correction, and no complaint about the relevant parts of the judge’s direction in her charge.
Just as he done with respect to the allegation of fraudulent collusion, senior counsel for the appellant made a forensic decision to deal with the counsel for the respondent’s closing address anecdotes in his closing address. He commenced by suggesting that counsel for the respondent ‘has shown himself to have an uncanny knack of trying to create chaos and confusion whenever he thinks it’s going to be to his client’s advantage’, citing counsel’s reference to the American cases concerning the Winnebago and the microwave. Later in the address, after he had dealt with the allegation that the appellant and Phillips had conspired to have Phillips give false evidence, he said:
Hearing [defence counsel] forcefully advance that proposition at the eleventh hour of this case took me back something close to 40 years in the late 1960s when [defence counsel] was a football player and he played in the ruck for a team called the Beaumaris Sharks. The Beaumaris Sharks like their name suggests, had a ‘take no prisoners’ approach on the football field and that was an approach that was certainly a popular one back in the late 1960s when we had ruckmen of the ilk of Carl Ditterich being rubbed out more often than he was on the field, and we had Mr Phillips – I beg your pardon, [defence counsel], going around in the ruck for the Beaumaris Sharks. And there was a coach of the Beaumaris Sharks whose face I can picture, he had a head like a bulldog, he had sort of a military crew-cut which was popular back in the ‘60s and he was the coach of the team, and at the three-quarter time huddle of the Beaumaris Sharks football team, if things were going particularly bad for the team at that time, the coach would give an instruction which went along these lines: ‘Well, look, fellas we’ve done all we can, we’re 10 goals down, we’re going to the last quarter, I’ve made every coaching move I can think of, but you might as well in the last quarter, you’re not going to win the game, go out and start a fight. At least you can give an opposition a player or two, a bloody nose, and they’ll come away knowing they’ve been playing the Beaumaris Sharks, even if you don’t win the game.’
What reminded me about the tactics that you saw last Thursday and Friday when we had this desperate attempt to whip up a conspiracy theory, a perjury allegation in relation to Mr Phillips’ evidence, was very much like the, ‘Look, if everything’s failed, you might as well go out and start a fight.’ And we saw a few examples of it on that day.
It wasn’t only the allegations against Mr Phillips. Remember at one stage we had Notegate, where I wrote a note which I handed to (indistinct) and asked him to pass it and [defence counsel] stopped stream and makes a dramatic show about, ‘Did you see that? Did you see the note being passed?’ as if the note was somehow some evidence in support of this wild conspiracy theory which he was putting on his coach’s instructions. So you needn’t have any regard to the colour and the movement, you needn’t have any regard to the creation of chaos and confusion which [defence counsel] has been seeking to engender throughout this case in his client’s interests.
This long and personal story about ‘playing the man, not the ball’ - which involved the participation of the respondent’s senior counsel - was also highly objectionable. It involved assertions of fact from the bar table designed to improperly influence the jury. It is no answer that it was in response to a similar assertion made by counsel for the respondent.
We earlier referred to the manner in which the appellant’s counsel dealt with the allegation of fraudulent collusion in the closing address. It was a dangerous course, because, although respondent’s counsel had raised the matter, he had not pursued it – for whatever reason - in his final address. Reference to the allegation in the appellant’s address tended to suggest that there was a serious issue to be resolved – notwithstanding that it should be resolved favourably to the appellant. The lengthy rebuttal in address ran the risk of the jury concluding that there must be something to the allegation for so much time to be taken to rebut it.
It may be that the true import of the fraudulent collusion allegation only dawned on the appellant’s counsel late in the piece. He referred to the respondent not having adduced evidence to support the allegation of fraudulent collusion. It may be that he also did not appreciate the real prejudice in the anecdotes recounted in the respondent’s closing address. But his final address suggested that he understood that the allegation of collusion went beyond an attack on the credit of Phillips or his client; and that he recognised that he needed to respond to the anecdotes. He must be treated as having been cognisant of the true import of the fraudulent collusion allegation and the prejudice that could flow from the improper anecdotes used in the respondent’s final address. He did not seek a discharge of the jury, or even a direction, but rather made the address which he did in which he sought to diminish the impact of each of these matters. He told his own stories about claims for personal injuries, one of which concerned an alleged article in a Sunday paper concerning a woman who had gone to a Japanese restaurant where a waiter had spilt hot sukiyaki on her leg. He pursued the objectionable personal attack on counsel for the respondent.
The respondent, in this court, contended that the conduct of both counsel in their closing addresses was unusual and inappropriate. There is particular force in its contention that counsel for the appellant made a forensic choice as to how to deal with these matters by making a rhetorical response to the respondent’s anecdotes.
Failure to object or seek a direction or discharge of the jury
The passages of cross examination which we have set out are illustrative of the fact that much of the cross-examination by counsel for the respondent was objectionable in one or more of the ways we have identified. The pursuit of the impermissible allegation of fraudulent collusion was objectionable and prejudicial. So were the highlighted parts of his final address. Most of this conduct can properly be characterised as improper. Nor was it heat of the moment excess. The questions therefore arise whether these matters, considered alone or in combination, created a substantial risk that the jury was distracted from its task, so that there is a real possibility that a miscarriage of justice occurred.
It is also necessary to resolve the question whether the appellant’s failure to object, seek a discharge, or seek suitable directions on occasions of misconduct, forecloses the prospect that the appeal could succeed. Here, on analysis, there were multiple occasions on which the appellant’s counsel might justifiably have raised serious objection, sought a direction or applied for a discharge. Counsel had the primary duty in these regards, albeit that the trial judge has a function of ensuring a fair trial.
Whether directions could have addressed prejudice arising from misconduct
In our view, the errors of counsel, the subject of complaint, could have been adequately addressed by some objection and immediate direction. Objections should have been taken. Clear authoritative directions were required.
As we have said, if counsel cross-examines in an impermissible manner on matters of importance, the obligation to object, whilst residing in the first instance with opposing counsel does not relieve the trial judge of the duty to intervene if it is likely to produce unfairness if the error is not rectified. For the trial judge has as an overriding concern to ensure that every litigant has his case fairly tried, free from bias and prejudice, in accordance with the rules of evidence and free from the intrusion of any extraneous matters calculated to influence the jury improperly in arriving at a determination.[65] Similar considerations apply to improper comments made in a closing address. In Steele v Mirror Newspapers Ltd[66] Moffatt P was of the opinion that remarks made by counsel in closing were so obviously improper that the trial judge should have overcome any disinclination to interrupt counsel, even if opposing counsel remained silent. His Honour observed:
[the] adversary system does not mean that counsel is free to conduct a case in any fashion he chooses provided his opponent does not object or agrees. The Court remains the Master of its processes, and, of its own accord, can and should insist upon proceedings being conducted in accordance with procedures and standards which it regards as proper and within the proper ambit of the issues. A judicial attitude of being a benevolent referee, commendable though it may at times be, must always give way to the Court’s
insistence on the standards referred to.[67]
[65] Croll v McRae (1930) 30 SR(NSW) 137, 143 (Street CJ).
[66] [1975] 2 NSWLR 48.
[67] Ibid 52.
Approach if application for discharge is made
Where an application for discharge of the jury is made for such things as the introduction of irrelevant facts, misstatement of the evidence or the law, or the expression of prejudicial personal opinions,[68] the trial judge must assess the seriousness and likely affect of such misconduct and whether it can be cured by appropriately expressed directions.[69] Where it is concluded that a direction would do so, the trial judge must give ‘a clear full and authoritative direction to the jury instanter’.[70]
[68]             Halsburys Law of England (4th ed) Vol 3, 622.
[69]             Strange v Hybinett [1988] VR 418; Morgan v John Fairfax & Sons Ltd (1988) 13 NSWLR 208, 211- 2.
[70]             Smout v Smout, [1989] VR 845, 851 (Kaye J).
In Strange v Hybinett, allegations of corruption and grossly discreditable criminal conduct were raised by counsel for the plaintiff in his closing address against the defendant’s solicitor and witnesses called by the defendant. The trial judge was not asked to discharge the jury but to give the jury a direction that they should ignore those comments. Gray J doubted that any direction even if it was ‘a prompt and strongly worded criticisms of counsel’s conduct, coupled with an emphatic injunction to the jury to ignore counsel’s comments’ would have been sufficient.[71]
[71] Strange v Hybinett [1988] VR 418, 425.
Significance of failure to object or to seek a direction or the discharge of the jury
What significance is to be attached to appellant’s counsel’s failure to object , to seek a direction or seek a discharge of the jury? The granting of a new trial on the ground of such misconduct is discretionary. In Chatzipantelis v Grimwade Castings Pty Ltd[72] it was held that the trial judge had misdirected the jury in a common law claim for damages for negligence by contrasting that claim with the plaintiff’s entitlements and the employer’s statutory liability to pay compensation under the Workers Compensation legislation. The Court comprising Winneke CJ, Barry and Gowns JJ considered that had the defendant mentioned these matters it would have been in the language of Dixon J (as he then was) in Fitzpatrick v Walter Cooper,[73] ‘a gratuitous irrelevancy’ and would have been indefensible. Unless, in the circumstances of a particular case, it was made apparent that the result would have been the same had the error not occurred, the verdict must be set aside.[74] The Court concluded that the case was one in which ‘the opportunity of the jury considering and deciding fairly upon the facts was likely to be prejudiced by the course taken by the learned judge’.[75] The failure of plaintiff’s counsel to object to the charge did not disentitle the plaintiff from relief in the appellate court from what was considered to be a substantial wrong or miscarriage where any re-direction would not have corrected the matter.[76]
[72] [1966] VR 242.
[73] (1935) 54 CLR 200.
[74]             Chatzipantelis v Grimwade Castings Pty Ltd [1966] VR 242, 247.
[75]             Citing Manning v Bernard Manning (1960) 101 CLR 345, 351.
[76]             Chatzipantelis v Grimwade Castings Pty Ltd [1966] VR 242, 247.
In Steele v Mirror Newspapers Ltd[77] the significance of counsel’s election not to ask for the discharge of the jury following plainly improper comments made by opposing counsel during his address to the jury was the subject of consideration. Samuels JA referred to a passage from the judgment of Brereton J in Wishart v Mirror Newspapers Ltd[78] in which it was observed that a failure to ask for the discharge of the jury would not necessarily be a bar to relief upon the same ground on appeal. Brereton J could see no reason why counsel for the aggrieved party was obliged to apply with promptitude or at all to have the jury discharged rather than hold his hand as long as hope of a verdict in his favour was entertained. Samuels JA, with whom Hutley JA agreed, stated that ‘an appellant who seeks a new trial, having failed to object below, undertakes a heavy burden where there was a defect in the trial that was capable of being cured by appropriate directions.’[79] In Fitzpatrick v Walter E Cooper Pty Ltd[80] the failure of the appellant to make application for the discharge of the jury, where the trial judge had dealt clearly and definitely with the improper remarks made by counsel in closing address, was considered by Latham CJ to be conclusive that no injustice would be done if the verdict were not set aside. Dixon J (as he then was) considered that where the misconduct is not so prejudicial as to lead the trial judge to the opinion that it is unsafe to proceed with the trial and the party whose interests may be adversely affected fails to obtain a verdict in its favour, it remains open to that party to complain that notwithstanding the measures taken by the trial judge to remove the prejudice there has been a miscarriage. Dixon J further observed that the appellate court must then give great weight to the opinion of the trial judge and would only be justified in setting aside the verdict if upon a consideration of the whole case the Court was satisfied that the trial had miscarried.[81] McTiernan J considered that the prejudice sown in the minds of the jury was ineradicable, so that notwithstanding the failure of the appellant’s counsel to seek a discharge of the jury and his contentment with the warning which the trial judge gave the jury to disregard the offending remarks, the verdict should be set aside.
[77] [1975] 2 NSWLR 48.
[78] [1964] NSWR 231.
[79] Steele v Mirror Newspapers Ltd [1975] 2 NSWLR 48, 60.
[80] (1935) 54 CLR 200.
[81] Ibid 217.
Accordingly, a Court may set aside the verdict notwithstanding the failure of counsel to take objection or seek a direction or to apply for a discharge of the jury if satisfied that there has been a miscarriage of justice. Griffith CJ in David Syme & Co v Swinburne[82] thought a judgment should in such circumstances only be set aside where there is ‘reason to believe that the course of justice has been substantially affected’. O’Connor J described the test as whether there was ‘reasonable ground for belief that the fair administration of justice has been or is likely to be interfered with’.[83] In Croll v McRae, Street CJ, in defining the jurisdiction of the appellate court to interfere with the verdict of a jury in the case of counsel’s misconduct, used the language of Griffith CJ in David Syme and observed:
the poison, once instilled into their minds, must inevitably work and who could possibly feel any confidence in a verdict in the plaintiff’s favour arrived at after so prejudicial a statement had been made. In such a case a warning and summing up to disregard it is only to revive their recollection of it, and to
renew its damaging potency.[84]
[82] (1909) 10 CLR 43, 52-3.
[83] Ibid 62.
[84] Croll v McRae (1930) 30 SR(NSW) 137, 144.
In Manning v Bernard Manning & Co Pty Ltd,[85] the High Court refused to grant a new trial on the ground that the arguments of fact which were employed might have misled the jury as the case was not one in which the opportunity of the jury to consider and fairly decide the facts was likely to be prejudiced by the course taken by the learned judge.[86] The Court said that the granting of a new trial, where there is no error of law but which rests upon treatment of the facts by counsel or the judge, is a course only to be taken where ‘there is a grave risk of the jury being misled’ and ‘where the error is plain and the probability of injustice is high’. The Court further said:
that the remedy of granting a new trial was not being withheld -when the fair trial of the issues has been prejudiced by a presentation in the summing up of a misguided view of the facts of the case … where it is evident that it is necessary to repair or avoid an injustice which the court sees the conduct of the former trial is calculated to produce … but, speaking generally, the court will not interfere where the whole question is one of the treatment by the judge, still less by counsel, of matter of fact. Of course if the judge's charge to the jury introduces matter of prejudice, or plainly is likely to distract the jury's attention from the real issue or issues on which liability depends, … the court
may interfere.[87]
[85] (1960) 101 CLR 345.
[86] Ibid 351-2, (Dixon CJ, McTiernan, Fullagar, Kitto and Menzies JJ).
[87] Ibid 351-2.
The weight to be given to the trial judge’s view

Where an application to discharge the jury has been refused, appellate courts will act with great caution and will interfere only in cases where it has been plainly demonstrated that the trial judge’s discretion miscarried and that ’to allow the decision to stand would be inimical to the interest of justice.’[88] The respondent submitted that the appellant’s unsuccessful application made after the jury’s verdict was tantamount to such an application. It relied upon the trial judge’s statement that she would not have set aside the verdict on the ground that the conduct of defendant’s counsel ‘prejudiced the well of justice so as to make the trial unfair’. Based upon authority such as Fitzpatrick v Walter E Cooper Pty Ltd, Croll v McRae and Morgan v John Fairfax & Sons, its counsel contended that this Court should be slow to overturn the conclusion of the trial judge that the conduct of counsel did not breach the standards expected of him to such a degree as to make the trial unfair.
[88] Fitzpatrick v Walter E Cooper Pty Ltd (1935) 54 CLR 200, 210-211, 216-217; Croll v McRae (1930) 30 SR(NSW) 137; Morgan v John Fairfax & Sons (1988) NSWLR 208, 237 (Clarke JA).
In dealing with the complaints that were raised before her, the trial judge had the advantage of observing the conduct within the context of the entire trial.[89] Hence the respondent submitted that the trial judge had a fine appreciation of the lack of significance of all of the theatrics of counsel in the ultimate result; and that there was no reason to consider that the verdict of the jury miscarried. Though such a conclusion carries some weight, it could be no more conclusive than any ruling not to discharge a jury, or a refusal to give a direction.
[89] Morgan v John Fairfax & Sons Ltd (1988) NSWLR 208, 214 (Kirby P).
The application under rule 47.02 was not made immediately after verdict, but only some days later. Nothing was said, immediately after verdict, to suggest that the appellant’s side perceived the verdict to have been affected – actually or potentially - by the conduct of senior counsel for the respondent. That might be treated as an indication that the appellant did not perceive such conduct to have been of such an order as could justify a refusal to give effect to the jury’s verdict. Many of the complaints now made were not raised with the trial judge, and those that were raised were not necessarily relied upon in the same way as they have been on this appeal. Consequently the trial judge’s reasoning did not address the gravamen of the appellant’s complaints on appeal. The trial judge reasoned from the standpoint that counsel’s corrections and the directions given remedied any prejudice. Even so, an appellate court is not bound to defer to the trial judge’s conclusion where it is affirmatively satisfied that the trial judge was in error.[90]
[90] Ibid 215 (Kirby P), 226 (Samuels JA), 237 (Clarke JA); Fitzpatrick v Walter E Cooper Pty Ltd (1935) 54 CLR 200, 217 (Dixon J).
Must the verdict be inexplicable but for the misconduct?
The respondent submitted that there was no sound reason to suppose that any of the events now complained of improperly influenced the deliberations of the jury. The respondent likened the present case to Fitzpatrick[91] where the verdict was not only open on the evidence but was entirely explicable and Latham CJ concluded that the appellant had taken ‘the chance of obtaining a favourable verdict from the jury’.[92] But showing that even in such a case minds may differ, McTiernan J dissented, considering that the jury’s verdict was explicable only on the hypothesis that the offending remarks had influenced the jury’s thinking.[93] Rich J also dissented.
[91] (1935) 54 CLR 200.
[92] Ibid 211 (Latham CJ).
[93] (1935) 54 CLR 200, 223.
Smout, to which we have referred a number of times, yielded a different result to Fitzpatrick. Kaye J concluded that the award of damages was so far less than the amount which might reasonably have been fixed thereby indicating that the jury were influenced by the unfair prejudice created by counsel’s comments and that the trial judge’s directions were inadequate and given too late.[94] Kaye J was satisfied from the jury’s verdict that the inflammatory comments of counsel had prejudiced the fair trial so that the course of justice was thereby subverted. Beach J was of a similar view.[95]
[94] Smout v Smout [1989] VR 845, 852.
[95] Ibid 854.
In Connell v Sund the respondents advanced a similar argument to that which was advanced before us - that even if the Court was of the view that irrelevant and unnecessarily prejudicial material had been introduced on behalf of the respondents, the verdict was entirely explicable having regard to the evidence. Thus, no substantial wrong had been occasioned to the appellant. That submission was rejected as the appellate court was satisfied that there was evidence upon which the appellant could have succeeded.[96]
[96] [2004] VSCA 228, [34].
In the present case, it was not contended that there was no evidence upon which the appellant could have succeeded. Rather, the respondent contended that an evaluation of the entirety of the evidence demonstrated that the appellant was likely to have failed - so that the appellant was unable to show that the jury was improperly influenced by any matter the subject of complaint. But this adopts too narrow a view of the circumstances in which an appellate court may intervene. A perverse verdict or one which appears incompatible with the weight of the evidence is not the only basis upon which an appellate court may conclude that the course of justice has been substantially affected by the conduct the subject of complaint. It has been said that a miscarriage of justice may be found whenever something occurs in the course of a trial before a jury which is inconsistent with a fair trial and which displaces any reasonable confidence in the verdict.[97]
[97] Croll v Mc Rae (1930) 30 SR (NSW) 137, 143, 144;
The verdict here was explicable. It was not obviously aberrant. It may well have represented a conclusion that the ladder was only able to be over-extended because of long misuse or damage; or perhaps a conclusion that Phillips had not recognised impedance to over-extension, created by the presence of the stops, as a warning sign. But whilst it may be said that an aberrant result in association with counsel’s misconduct may tend to suggest that the former is the product of the latter, it may be doubted that it can be safely concluded that an explicable verdict in the presence of such misconduct tells against the misconduct having been, actually or potentially, operative in the verdict. It may be said that in a finely balanced, or difficult, plaintiff’s case, such misconduct might provide the tipping-point. The conclusion that a trial was unfair is not dependent upon an assessment that the disadvantaged party was likely to have succeeded were it not for the improper conduct.
Conclusion
Each particular of the misconduct we have examined was capable of working prejudice against the appellant. In assessing whether the degree of prejudice resulting from such misconduct was of such an order as to justify allowing the appeal, it is necessary to have regard to all of the circumstances of the trial. We should not recapitulate everything which we have said in our examination of the complaints which were agitated on the appeal, or with respect to the problems with counsel’s opening or the demonstrated operation of the ladder which became apparent on our reading of the transcript. But it is well to remember a number - not all - of the matters which disclose the scope of counsel’s misconduct. Thus -

•

An allegation was raised, in cross-examination of Phillips, that he and the appellant had colluded for Phillips to give false evidence. The allegation bore upon a fact in issue, and upon the credit of both the appellant and Phillips. The allegation, in essence of fraudulent conduct, had no evidentiary foundation and should not have been put. It had not been put to the appellant. It was late-made and, for reasons which we have explained, it placed appellant’s counsel in a very difficult forensic position.
• The ‘restless nights’ allegation, which bore upon the allegation of
collusion, was put to the plaintiff but not to Phillips. It was based upon a without prejudice communication. The cross-examination in any event misstated the content of the communication, and the questions were objectionable in form.

•

The appellant was cross-examined about an answer to interrogatory given by Phillips. The cross-examiner sought the witness’s comment upon the truthfulness of what Phillips had allegedly said on his oath. The cross- examination was in breach of the rule in Queen’s case. The answer itself was misrepresented.

•

Counsel misstated an answer given by the appellant as to what he would tell his students about the use of ladders. He undertook to correct the error, but did not do so.

•

In apparent disobedience of the judge’s ruling, ‘in court’ demonstrations were used by counsel, in cross-examination of the appellant, in an attempt to show that the ladder could not easily be extended beyond the stops.

•

Counsel offered personal opinion and comment in cross-examination, cut off witnesses, asked questions which assumed facts in issue, asked argumentative questions, and misstated the import of answers which had been given.
• Counsel cross-examined the appellant’s expert witness in an attempt to
undermine the appellant’s credit.

•

Counsel, in opening the respondent’s case, criticised the appellant and the expert witness called for the appellant; and misstated evidence given by the appellant.

•

Counsel adduced evidence from a non-expert, in defiance of the judge’s ruling, as to the state of the ladder. When the judge pulled him up, his response was at least extremely discourteous.

•

Counsel’s closing address was in part inappropriately personalised, and consisted of highly prejudicial anecdotes. Insofar as the judge’s charge provided any antidote, it was inadequate.

The scope of the misconduct, and the fact that it occurred at a number of different points during the trial - rather than being a single incident on a confined occasion – in our opinion heightened its potential for prejudice. That is so although the trial was a lengthy one. On the other hand -

• the jury verdict was unsurprising – although it was not mandated.
• The trial judge refused the belated application by appellant’s counsel to
vacate the jury verdict.

•

As we have observed many times, appellant’s counsel did not object or seek directions or the jury’s discharge when he might have done. Still further, he apparently made a forensic decision to fight fire with fire. Hence his sometimes personalised attack upon respondent’s counsel in the course of his final address.
• All of the misconduct, we think, might have been cured by objection being
taken and by appropriately firm directions being given.

The consequence of the last two matters just mentioned, in our opinion, is that the appellant bore a heavy burden in seeking to establish that the trial miscarried.
The first and second of those matters have a different significance. As to the first of them, it may be said that the appellant’s case was far from being a strong one. But it does not follow because the verdict was not aberrant that prejudice was not operative. Indeed, its potential to be decisive might be said to be the greater in a case in which the evidence did not stand plainly in favour of a verdict for the appellant;[98] and in which, as was here the situation, the appellant’s case was made vulnerable by the nature of the attack upon the third party.
[98] See [135] above.
We turn to the judge’s decision not to vacate the jury verdict. It was not founded upon the merits of the complaints then raised.[99] The learned judge did express the opinion, however, that senior counsel for the respondent had not exceeded the bounds of permissibly robust advocacy. We respectfully disagree with that opinion.
[99] See [5] above.
In all, upon a consideration of the whole of the trial, we have concluded after considerable hesitation that the appellant has demonstrated the probability that the course of justice was substantially affected. We are persuaded that there is a real likelihood that counsel’s misconduct had a prejudicial effect upon the jury, such that a miscarriage of justice should be inferred. The appeal should be allowed.

---

PLAINTIFF’S COUNSEL:	Your Honour - - -
DEFENCE COUNSEL:	He’s already answered the question.
HER HONOUR:	[Defence counsel], I’m a bit concerned, you’re

DEFENCE COUNSEL:	No, I’m talking about discussions between
Mr Rees and Mr Phillips - - -
HER HONOUR:	He told you the only discussions that took place were

DEFENCE COUNSEL:	No, no - - -
HER HONOUR:	- - - so you would have to be making the implication.
DEFENCE COUNSEL:	No I’m not, Your Honour. I’m not accepting for

HER HONOUR:	Other discussions.
DEFENCE COUNSEL:	I’m sorry?
HER HONOUR:	Other discussions.

HER HONOUR:	Not that I can recall - - -
DEFENCE COUNSEL:	It’s not a matter that needs to be put to the
plaintiff, he’s been in court.
PLAINTIFF’S COUNSEL:	If this is an attack to be made on credit - - -
DEFENCE COUNSEL:	It’s not an attack on your client’s credit.
PLAINTIFF’S COUNSEL:	Well whose credit’s being attacked?

DEFENCE COUNSEL:	I am asking if he has had that conversation.
HER HONOUR:	He was actually asked whether he told him - - -
PLAINTIFF’S COUNSEL:	If it is a question about a conversation with

HER HONOUR:	It is about a conversation.
PLAINTIFF’S COUNSEL:	In that case it is not objectionable, Your Honour.
HER HONOUR:	Thank you.

COUNSEL:	That’s what he’s sworn on his oath --- Yes well that’s
not true.

COUNSEL:	Sorry? ---That is not true.
COUNSEL:	So one of you is wrong?--- Obviously.
COUNSEL:	And the person who is not there of course is
Bailey Aluminium.
HER HONOUR:	Is that a question?
DEFENCE COUNSEL:	For obvious reasons.
HER HONOUR:	Is that a question?
DEFENCE COUNSEL:	Yes it is Your Honour.
HER HONOUR:	What’s the question? It’s a comment.
DEFENCE COUNSEL:	The only two people that are there at the time

HER HONOUR:	No, no, he asked him a variety of questions.
DEFENCE COUNSEL:	Yes, and I’m asking him, and in fact the witness
has already agreed with me.

HER HONOUR:	And that would be fine if he was your witness.
PLAINTIFF’S COUNSEL:	Pardon?
HER HONOUR:	He is not your witness.
PLAINTIFF’S COUNSEL:	No.
WITNESS:	In answer to your question, I disagree.

DEFENCE COUNSEL :	You can’t object to this.
PLAINTIFF’S COUNSEL:	I can object to - - -
DEFENCE COUNSEL:	You can’t object.
PLAINTIFF’S COUNSEL:	- - - I can object - - -
DEFENCE COUNSEL:	Plaintiff’s counsel can object.

DEFENCE COUNSEL:	Now go to your new house. Did you paint that
house yourself?---Yes.

You painted the - - - HER HONOUR:	Was that before or after the accident?---After the
accident.

•	The appellant was cross-examined about an answer to interrogatory given by Phillips. The cross-examiner sought the witness’s comment upon the truthfulness of what Phillips had allegedly said on his oath. The cross- examination was in breach of the rule in Queen’s case. The answer itself was misrepresented.
•	Counsel misstated an answer given by the appellant as to what he would tell his students about the use of ladders. He undertook to correct the error, but did not do so.
•	In apparent disobedience of the judge’s ruling, ‘in court’ demonstrations were used by counsel, in cross-examination of the appellant, in an attempt to show that the ladder could not easily be extended beyond the stops.
•	Counsel offered personal opinion and comment in cross-examination, cut off witnesses, asked questions which assumed facts in issue, asked argumentative questions, and misstated the import of answers which had been given.
•	Counsel cross-examined the appellant’s expert witness in an attempt to undermine the appellant’s credit.
•	Counsel, in opening the respondent’s case, criticised the appellant and the expert witness called for the appellant; and misstated evidence given by the appellant.
•	Counsel adduced evidence from a non-expert, in defiance of the judge’s ruling, as to the state of the ladder. When the judge pulled him up, his response was at least extremely discourteous.
•	Counsel’s closing address was in part inappropriately personalised, and consisted of highly prejudicial anecdotes. Insofar as the judge’s charge provided any antidote, it was inadequate.

•	the jury verdict was unsurprising – although it was not mandated.
•	The trial judge refused the belated application by appellant’s counsel to vacate the jury verdict.
•	As we have observed many times, appellant’s counsel did not object or seek directions or the jury’s discharge when he might have done. Still further, he apparently made a forensic decision to fight fire with fire. Hence his sometimes personalised attack upon respondent’s counsel in the course of his final address.
•	All of the misconduct, we think, might have been cured by objection being taken and by appropriately firm directions being given.

[2008] VSCA 244

5 December 2008