Thomas Hofer v The Queen

[2021] HCATrans 125

[2021] HCATrans 125

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Sydney  No S37 of 2021

B e t w e e n -

THOMAS HOFER

Appellant

and

THE QUEEN

Respondent

KIEFEL CJ
GAGELER J
KEANE J
GORDON J
GLEESON J

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA ON THURSDAY, 12 AUGUST 2021, AT 10.02 AM

Copyright in the High Court of Australia

KIEFEL CJ:   In accordance with the practice when we are sitting remotely, I would record that Justice Keane and I appear in Brisbane, Justices Gageler and Gleeson in Sydney and Justice Gordon is sitting in Melbourne, and that the matter is being hosted through Courtroom No 2 in Canberra.

MR T.A. GAME, SC appears with MR D.P. BARROW for the appellant.  (instructed by Blair Criminal Lawyers)

MR D.T.KELL, SC appears with MS K.M. JEFFREYS for the respondent.  (instructed by the Solicitor for Public Prosecutions (NSW))

KIEFEL CJ:   Yes, Mr Game.

MR GAME:   Sorry, your Honour, I will make my submissions sitting if that is acceptable.  Could I take your Honours to our outline at paragraph 4?  I am going to use the eight areas that are referred to there.  If your Honours go to the core appeal book at page 106, it is those eight things that are listed there at the bottom of 105 and the top of 106, and I will speak to them by reference to those numbers. 

If I could just explain to your Honours briefly – in the court below, Justice Macfarlan outlined them from paragraphs 32 and following, but I just wanted to draw out that which appears in paragraph 4 of the outline a little bit.

If your Honours go to the appellant’s additional book of materials, at page 283 – that is the number at the top of the pages – it is actually transcript 489.  Now, at this point in cross‑examination the cross‑examination of C1 on the incident itself, excluding the lead up, had really only just begun, and it had begun back at the top of page – back about halfway down 279. 

At the top of 283 we see at line 5 the reference to “I inserted my fingers”, that sentence there.  There was an allegation of that and there was a conviction for that, but not in this context, and that was said to be a recent invention, that piece of evidence.  We come down the page and we have what is referred to in the judgment of Justice Macfarlan as item number (1) - and that is what I will call it.

So that is the allegation, that C1 had an orgasm during oral sex.  Now, that allegation is put there and that allegation, together with the reference to the finger in the vagina, is put in the prosecutor’s address as a recent invention and it is put as a central proposition.  That is to say, if one looks at the transcript of the book at 321 towards the bottom of the page – so this is transcript 532 to 533 ‑ we see that it is in the context of recklessness and this is almost the only thing that the prosecutor has to say about the accused’s evidence, which is that the reference to the fingers and the reference to the orgasm had not been put, that they were recent inventions, and this is happening on a Friday afternoon.

Then we go over back to the transcript in the book at page 285, still on the Friday afternoon.  There is cross‑examination on 285 starting about a conversation relating to chlamydia and the appellant gives evidence about that, and then at page 287, or transcript 493, it is put to him that that is a recent invention because he has only started mentioning it now.  So at line 40 on 287 we see an explicit reference to “recent invention”.  Now, then the cross‑examination on C1 finishes at the bottom of page 288, so it finishes at line 45, page 288, or transcript 494.  So it is a prominent feature of the cross‑examination of C1.

We come to C2 – and cross‑examination commences on C2 at the bottom of transcript 494 to a date.  Then at the top of page 292 – the middle of 292 – we see a reference to the – this is what is referred to as the second item in Justice McFarlan’s taxonomy.  So, this is the reference to C2 saying that she was a lesbian.  He said that:

She told me she was bisexual.

That emerges in that piece of cross‑examination.  It is not something that evidence was given of in‑chief.  This one was also the subject of explicit address by the prosecutor in his address at our appeal book at 329, lines 15 to 20.  Again, at lines 15 to 20, it is almost all that he has to say about the accused’s account.  This is still continued on the Friday afternoon and there are references to line 35, “free kicks” and things “being thrown in” but then on the next page, it was not the term “Not once”, and this use of the words “not once” are kind of used over and over again.  Then in 293 – or transcript 499 at lines 30 to 40, we see the third item – reference to:

And kissing me and putting her tongue in my mouth.

Again, this was not something that was given in‑chief.  So, as soon as it is put…..it is put as a recent invention and not having been put.  So, then, still the Friday afternoon - so, three of the eight items have been raised as recent inventions.  At the bottom of 296 to the top of 297, the second item is put again as not having been put and at the bottom of 298 to the top of 299, the third item is put as having not been put.  That is the end of the day.  T

Then, on 3 May, which was the following Tuesday - we do not know what happened on the Monday, but the following Tuesday the cross‑examination continues and it starts at 302 or transcript 515.  There is a clarification which your Honours do not need to get into about the reference to oral sex and that does not matter for present purposes.  Then at the bottom of 303 we see a question:

Mr Hofer, you have no choice, you know you have no choice but to tell this jury that what, in the middle of consensual sex C2 takes a phone call?

So, again, the idea of motive to lie, this particular interest as a defendant is prominent.  Then, we get to page 305 or transcript 518, reference to oral sex with C2 and again references to “free kick”, nothing put to C2 about it.  It is an extensive cross‑examination.  Then, at line 10 on 306, he introduces another topic - that is to say, the defendant.  He says:

I believe we both had an orgasm.

He says we will come to that in a moment.  That actually becomes item (6), but then we go back to what I have called item (4) and we see at line 40 that defence counsel points out that it had been put.  So one might say item (4) is gone then, but the very next thing the prosecutor does is to come back to the question about an orgasm:

Q.       And you never heard any suggestion . . . that she had an orgasm –

. . . 

Q.       Were you essentially making your evidence up as you went along ‑

So he is not taking a backward step; in fact, he is raising the ante.  That is the reference to the orgasm, that is item (6).  Item (5) I have lost the reference to, I will pick that in a minute ‑ sorry, that is the item which is withdrawn.  Sorry, that is my mistake; it is item (5).  So at the top of page 307 he focuses on the orgasm.  Then we come to item – so then going in very hard on recent invention, making it up as he goes along, immediately after he has had to withdraw an assertion.  Then he volunteers that he thinks the witnesses have been coached.  And then there is extensive cross‑examination on his ability to put to his lawyers, to tell his lawyers, and how nothing had been said about that.  So, for example, we see on 521:

So, not a single question was put to either the officer, the second in charge –

et cetera.  That is called item (8), but that one, as we say in the written document, you would really need to have another basis before you put to a witness that they have been coached, it would not just be a matter for…..might give instructions, but you would not be able to put that the witness had been coached unless you had some sound basis in the evidence to put it, and it would not be proper to do so.  So that cross‑examination, we say, apart from anything else, was completely misconceived.

Then we come to item (7).  Item (7), top of 310 ‑ bottom of 310, there is a reference to a question about what was put relating to a conversation being heard by the “non official boyfriend”.  So that is item (7).  And then this one is probably the most important of all of them, because it says at the top of them:

Q.        . . . did you hear that put to [C2] at any stage?

A.       No.  It was not.

Q.       No it wasn’t it, was it.  Are you just making things up as you go along –

Now, that is not specific to one thing, that is general:

Q.       Are you simply giving evidence and doing the best you can to meet what can objectively [be] proven by the Crown case?

A.       I believe some things that I have stated . . . 

et cetera.  Then it says, further down, line 25, “not once”, and that is the end of the cross‑examination.  So it is no exaggeration to say ‑ and I have gone through them pretty quickly, and I think I skipped item (5) ‑ that it is no exaggeration to say that in this cross‑examination, from the Friday afternoon through to the Tuesday, the dominant feature, in fact almost the entire focus of the cross‑examination of the accused in relation to both complainants, was this issue about recent invention and instructions given to counsel and the solicitors.

Now, really, the point is that is the way the – and to say that counsel did not make it a focus is really to miss the point, because counsel goes straight into the address, picks up the two points from the previous day, from the Friday, but he has already got these ones locked in.  And there is no question about implication, it is drawn out, and it is explicit.  And once it is explicit, even if it is not drawn out, it is a kind of central thread in cross‑examination.  So that really is the – that is the scope of the factual issue in this case.

Now, if I go back to the outline, and speak just to the…..A cross‑examination of this kind is a cross‑examination directed to credit and credit alone.  We unfortunately did not put in section 101A of the Evidence Act, but it cuts out from things being not solely to credit if they have a hearsay relevance otherwise, which was to overcome a decision of this Court in Adam.  So this cross‑examination clearly is cross‑examination to credit only.

So the way to deal with it, in a curial context, is as soon as it arises there needs to be a question about whether or not this is directed towards establishing a prior inconsistent statement.  It could be a prior inconsistent statement if you gave an account with no reference to that piece of information, so we are not questioning that.  But if it was put on a proper basis, then one would be able to see straight away that you cannot just wander into the ‑ ‑ ‑

KIEFEL CJ:   Mr Game, are you saying the prior inconsistent statement here would be in the instructions?

MR GAME:   Yes, your Honour.

KIEFEL CJ:   But the prosecutor surely cannot cross‑examine with a view to requiring an accused to divulge the instructions.

MR GAME:   Quite, your Honour, but the question is this, if the subject is directed – and I might say it does happen regularly, your Honour, but my point about putting this in context is this, that if one thinks about the thing in its kind of evidentiary sense and the court is appraised of it and understands it, then as soon as a cross‑examination like this starts, it is time to pull up stumps and work out what exactly is going on and that will flush out what the instructions – defence counsel then will have to stand up and say, “I did have instructions on this” or “I did not have instructions on this”.  But it is only relevant – sorry, it is only admissible to establish…..prior inconsistent statement.  It does not have any other quality.

So I accept entirely your Honour’s point, but the point is that the thing gets drawn out by the silence around the matter not having been put, but the implication is that what sits behind it is a prior inconsistent statement, that is to say, that instructions were not given on that subject.  I am saying there is no other way that ‑ ‑ ‑

KIEFEL CJ:   But the prosecution cannot know that there is a prior inconsistent statement when they are cross‑examining.

MR GAME:   That is right, so they should not be putting it unless they have got a basis to do so, is the critical thing.  They should not be embarking on this cross‑examination without raising the matter with the court and their opponent.

KIEFEL CJ:   Well, in your written submissions you refer to the provisions of section 104 of the Evidence Act and say that leave should be sought, but the difficulty of course is at what point it becomes clear that the cross‑examination is purely as to credit.

MR GAME:   Yes, your Honour, but my point is this, that one does not need leave if it goes to – if it is to establish a prior inconsistent statement, so that the subject of establishing a prior inconsistent statement is admissible – is permissible.  But what I am trying to say is that as soon as one starts on a cross‑examination like this, an obligation really falls on the court to actually say, well, what is actually taking place here, because you are putting as a central part of your cross‑examination that a whole series of things were not put, and I would add to that a most important obligation on defence counsel to intervene and say, “Well, I…..these things, but I chose not to put them”.

GLEESON J:   Mr Game, is it not correct to think that the obligation at the outset that we need to consider is the obligation falling on the prosecutor and that includes I think – correct me if I am wrong – rule 67 of the (Barristers) Rules that:

A barrister must not make a suggestion in cross‑examination on credit unless the barrister believes on reasonable grounds that acceptance of the suggestion would diminish –

the witness’s credibility.  So the prosecutor knows whether he is embarking on a cross‑examination about a prior inconsistent statement, is that what he is doing?

MR GAME:   He is doing it, yes, but in this case he is doing it blind because he has no idea whether or not that he said those instructions were given or not and he is doing it on the run.  As soon as something comes up that was not mentioned, we have seen it just in that little run through, he goes straight to that being a recent invention, so ‑ ‑ ‑

GLEESON J:   Do you agree with me that the first thing he needed to consider was compliance with rule 67?

MR GAME:   Absolutely.  Centrally, yes, your Honour, but I apologise, I should have referred – I actually overlooked that, your Honour, but, yes, I should have drawn that out.  That is part of the fabric within which a curial process – so there are obligations all round in terms of how one treats a situation like this and a situation like this should not – and the obligations are such in an adversarial and an accusatorial situation with obligations on the prosecutor and distinct obligations on defence counsel that between them they should not allow this to happen.

GORDON J:   Is it more complicated than that now, Mr Game, in this sense?  That if one reads the authorities, you have obligations on the prosecutor in the way Justice Gleeson has put to you?  You have the obligations of defence counsel, you have obligations of the trial judge, both in the running of the conduct of the trial and if it cannot be remedied by way of direction.  Is it not a relationship that exists across – an obligation imposed on everyone?

MR GAME:   It is an obligation for the three parties that are in the court and they all ‑ ‑ ‑

GORDON J:   Directed at fairness of a trial.

MR GAME:   Yes, your Honour, so that is exactly right.  So, the system – so it is all very well to say, look this accused would have been discredited anyway but this is the way in which the prosecutor – this is the central focal way in which the prosecutor went about doing it.

GORDON J:   Can I ask you one more question and then I will be quiet.  At your book of materials at both page 306 and 307, the trial judge, it would seem, in effect encouraged this form of cross‑examination, am I right about that?

MR GAME:   Yes, your Honour.  It is very odd but yes.  There is also a bit I forgot to mention which is at 308.  He starts this with:

A.       I have had discussions with my legal team –

and the question is:

Q.       Don’t tell us what you discussed with you[r] legal team, Mr Hofer.

So, what is he to do?  So, the accused in this situation with failings on all sides is kind of snookered by the way in which the thing is played out.  He is not allowed to explain what the situation is.  There is no attempt to re‑examine.  So, anyway, that is what this case really comes down to.  So, if I go back to the – there is one that has been brought to my attention at 303 where it says:

A.       What I will concede –

. . . 

Q.       Answer the question, Mr Hofer.
A.       Sorry.

Can you repeat ‑

So, yes, your Honour Justice Gordon, the judge seems to be part of – I mean not disrespect, but the judge seems to be part of it.  I suppose this case is a pretty good demonstration of the way in which the accusatorial system really only works if all three of the participants, judge, prosecuting counsel and defence counsel actually perform their obligations.

KIEFEL CJ:   Mr Game, one might observe that on one view the Crown Prosecutor was reactive to the evidence given by the accused.  It does not seem to have been necessarily a particularly well thought through or planned cross‑examination.  It just seems to evolve and be responsive to particular assertions that had been made by the accused in‑chief and to matters he additionally raises in cross‑examination.  With that in mind, at what point do you say that leave should have been sought to cross‑examine as to credibility?  At what point does it become clear that that should have been done?

MR GAME:   He knew at page 283, at line 32, on 29 April that there had been evidence in‑chief that he – so line 32, that there had been evidence in‑chief in which…..complainant C1 may have had an orgasm.  That is a piece of evidence which comes from evidence in‑chief.  So that he knew by the time he had commenced that cross‑examination that that is where he was heading and, if that is where he was heading, he had no idea whether there was a prior inconsistent statement or not and, if he had no idea, he could not embark on the cross‑examination.

So back at page 283 or transcript page 489, at that point the obligation was plain, and it is true, he picks up things that are said and immediately puts to them that they are recent inventions, but he also plans some of it and he has the whole weekend to think about it.  Then he comes back on 3 May and that is all that he cross‑examines about and that is almost the whole of his cross‑examination on C2.  So I would say at the latest at page 283 or transcript page 489 is where the obligation clearly arises because he does not know if there is a prior inconsistent statement.

Could I just say in defence of defence counsel in circumstances sometimes one has instructions and, if a situation is disputed at a fundamental level, it can be quite pointless to put the instructions.  I am not saying that is this case, but it is often the case that is quite pointless to go into the specificity of all of the details of instructions when one is met with the rebuff at the first hurdle.  So in the many cases which have said that there are multiple explanations, they are said with a good deal of insight into what actually does happen in difficult trials and in difficult cross‑examinations and the principals are made mindful of that difficulty that arises and not infrequently. 

So that is my answer to your Honour the Chief Justice’s question.  It is not later, but as I say – and I do not mean to over‑egg this, it becomes egregious on 3 May because he has had the whole weekend to think about this cross‑examination and that is all he does pretty much on the Tuesday.  So if I just come back to the outline and speak to it, in paragraph 2 we make a general point about the difficulties that have been exposed in these cases and there is no better authority on it than Birks.

We refer to the three premises in the majority’s judgment – or that of Justice Fagan.  I am not going to take your Honours through this.  But if you look at footnote 1 on page 1, that footnote gives you all the instances where Justice Fagan goes through the propositions one by one and then says the second premise was not put and the third premise was not put.  But those three premises which we have set out there – that the proposition was not put – that the defence counsel had a duty to put it and the duty was fulfilled, at the very most, one could put that first.  But that is clearly credibility only itself.

There was a curiosity where the Chief Justice noted that the defendant seemed to have some familiarity with his…..but that is no reason to be putting those things.  So, as we say, really, that is a kind of pointless way of looking at this thing because the inference was drawn out – that is concerned with circumstances in which it might conceivably be legitimate to make a comment with proper directions – of which there were none in this case.  But it has nothing to say about a case where you have a cross‑examination like this that is so drawn out and so explicit.

In paragraph 6 – again, I will not go through the judgment in detail – but Justice Fagan says over again that the cross‑examination was ineffectual and it should not have affected the jury.  But this was the purpose of the cross‑examination.  One cannot just put to one side the purpose and the expressed – both implications and express propositions put. 

I hope I am not going through this case too quickly, but what it comes down to in this case is how one deals with this in the context of the Criminal Appeal Act – miscarriage of justice and ‑ ‑ ‑

KIEFEL CJ:   Mr Game, is it correct to say that every aspect of the seven or eight items referred to in the Court of Criminal Appeal would necessarily have conveyed to the jury that his credit was being impugned because there are, in some of them, discussions about – he raises discussions about blaming his barrister and, on other occasions, he actually makes an answer to the question.  So, is the approach to regard the seven or eight answers as part of a themed cross‑examination pointed to one direction or from the jury’s perspective – if they are attending to everything that is being asked and answered – do we actually have to look at what the jury might have taken from each answer?

MR GAME:   No, your Honour.  I think the way to look at it is that there is a central theme that flows through this cross‑examination and its culmination is at page 311.  So, for example, we saw one a little while ago where the prosecutor apologised for putting something that had, in fact, been put.  But the very next question was to put to the accused that he was making up his evidence about the orgasm which was another subject. 

So, one has to look at this cross‑examination as a themed cross‑examination where the central theme from the Friday afternoon through to the Tuesday was in respect of both complainants – was the proposition of recent invention based on the fact that things had not been put to witnesses or had not been mentioned previously.  We saw one of them referring to chlamydia before.  So, what sits on page 311 is the climax of the cross‑examination.  That is the heart of it. 

GAGELER J:   Mr Game, is one way of putting your case that there has been an error of law in that these questions, if relevant at all, can only be relevant to credit, and leave needed to be sought under section 104(2), and was not sought?

MR GAME:   Yes, your Honour.  As I said, 101A makes it plain that they are questions to credit and solely that and that is the only way in which even ‑ that is the only conceivable way one could get it and so, yes, if one ‑ the word process is used far too often perhaps by counsel, but it is a question of process and one has to go through the steps, and the legal step is what is the nature of this cross‑examination?  How does it – if it does within the rules relating to cross‑examination, is it permissible?  So there is an error of law by the failure of the judge to immediately address – require that section 104 be addressed, so that none of these questions were shown to be permissible.

GAGELER J:   Mr Game, just to tease out the Birks point, if leave had been sought, what issues would have been explored on the leave application?

MR GAME:   This particular case might have been more straightforward than others because in this particular case counsel would have said, “I had instructions on every single one of those things”, and that is the end of it.  Sorry, one other thing is, if there was unfairness to the complainant, which it is not suggested there was, then of course in that application the prosecutor might say – but not in this case – “I wish to recall the complainant”.  Not in this case, but that is a course that could be followed.

GLEESON J:   Mr Game, I am just looking at pages 311 and 312 and the way the cross‑examination finished and it does not seem to me that it finished on the theme of recent invention.  It seems that it finished on a theme of illustrating to the jury that they might find the accused an unattractive person who was prepared to make an outrageous claim in relation to C2.

MR GAME:   Yes, your Honour, but that is only – from the bottom of 310 to 311 certainly there were some further questions asked after that, but what sits there is pivotal, in my submission.  One cannot just put that to one side, and it would be…..Also it is language that is emotive, making things up as you go along, and it is said more than once – in fact, I have taken your Honours to three times that it is said, and then these words “not once” and then “not once”, and those words were used as a form of questioning over and over, and we have seen it just in the passages that I have taken you to.  They are words – they are demonstrative words, in my submission. 

GORDON J:   Mr Game, can I just ask one practical question.  Is it that I take your submission then to be that at the point that is recorded at application book, further materials 283, which you described as matter number (1) ‑ ‑ ‑ 

MR GAME:   Yes.

GORDON J:   That it was at that point the trial judge should have stopped and asked for the inquiries that were put to you by Justice Gageler.

MR GAME:   Yes, your Honour.

GORDON J:   It is at that point the question arises about whether or not defence counsel explains, as the way you have explained it, and/or the Crown decides whether or not, consistent with the judge also, the complainants are recalled.

MR GAME:   Yes, your Honour.

GORDON J:   Is it at that point practically the other issues are identified as well?  Is it that point which ‑ ‑ ‑ 

MR GAME:   Yes, your Honour.

GORDON J:   ‑ ‑ ‑ in effect explains what are the matters that are going to be the subject of this form of cross‑examination?

MR GAME:   Yes, your Honour.  But I also say this.  If one does it properly, then the situation which Justices Fagan and Fullerton bemoaned is sorted out in every case and is not a problem.  It is confronted, and it is dealt with, and there is a coherent way of addressing it.  Is it just a question about whether or not fairness to the Crown witnesses or complainants, is it a question about recent invention, if so, is there a foundation to put it, and should it be put?  Then there would be questions about fairness, about whether it should be put.  So the questions of fairness of the cross‑examination might be - turn on the position that is taken by defence counsel.

In Birks itself, Chief Justice Gleeson even contemplated the situation where a barrister might be forced to return their brief and become a witness in the case, but again, that is a far cry from this situation.  But if this is such a – this is an obvious case.  This is an obvious case where the problem is very oblique, and it is not on the sidelines, it is – because this is, as I said, from page 279, that is cross‑examination of the accused on his evidence about the issue of recklessness, and this sits in the middle of it.  So that is how I would put it.

So yes, I would accept what your Honour Justice Gageler has put to me about it being an error of law.  The way in which we frame it is that impermissible questions, that is to say, legally impermissible and unfair questions were asked, and applying Weiss and Justice Macfarlan’s analysis, that is a miscarriage of justice in itself.  One does not need to go further and look at some other questions about the nature or extent – was it very unfair?  At that moment, the irregularity is established, whether or not one describes it as a wrong decision of law, but we do say it is a wrong decision of law.  We also make – so that is what we say about miscarriage of justice.

What we say about proviso is very slightly different to that which is the way in which Justice Macfarlan addresses it.  He addresses it through the spectacles of Weiss, which of course is appropriate, but he asks a question about whether or not the verdict can be relied on, given that this is the reply which the accused was discredited.

We would say this, that – and we adopt that, but we would say that there is a more direct way to get to this question about applying the proviso, which is that which is described by Chief Justice Gleeson in TKWJ, adopting language from Dietrich, the question is whether or not the accused had a fair trial.  And that is a question of – I hate to use the word – that is a question of process.

KIEFEL CJ:   Mr Game, if one looks to cases like Kalbasi, and the application of Weiss, is not the question for this Court whether or not the effect of what occurred as a result of the error of law prevents this Court from itself assessing whether or not the Crown nevertheless proved its case beyond reasonable doubt?

MR GAME:   Well, yes, your Honour, that is described in Weiss and Kalbasi as a sine qua non, I accept that, and adopt it, but I am saying that – and to use the language of Weiss, that there are cases where there is what is described as significant denial of procedural fairness, which I would describe is no different from that which Chief Justice Gleeson says in TKWJ about a fair trial, that you get to it by that ‑ you get to that point regardless.

KIEFEL CJ:   I thought in Kalbasi the question in Weiss was clarified, and it was, if not explicitly, implicitly said that it is not helpful to characterise matters as a matter of process or going into the crux of the trial, or whatever.  The question is what is the statutory process of reasoning for an appellate court, what does it require, and does the effect of the error, the miscarriage which occurred below, prevent this Court from considering the strength of the Crown case and whether it reaches the requisite standard?

MR GAME:   Well, I accept that, your Honour, to a point, and the point is that that is not the entire inquiry, that is just what was described.  I just have not brought Kalbasi with me, I apologise, but that is – the idea that there are cases, and this is one, which is where a person – the outcome may be the same, but this is a – and Bond is an example, where the jury are invited to reason in a particular way, and then it is said, well, the jury could not have reasoned in that way even though they were invited to do so.

So within the confines of – within Kalbasi, we would say yes, we must succeed, but we do say, in addition, if it be in addition, that this is a case where one says that this was – and I cannot get away from using the words – this is a case where there was a significant denial of procedural fairness for this reason, that the accused, who is now the appellant, found himself in a position where he was unable to put his case.  And he was unable to put his case because the way in which he was cross‑examined and the conduct of his counsel and the failure of the judge to draw it out failed to expose the fact that there was no foundation in any of his cross‑examination.

So I do put it that way, your Honour, but the reasoning of Justice Macfarlan is reasoning along the lines that your Honour the Chief Justice has just put to me, and we are content, if that be sufficient, to rely on that reasoning.  Now, I have done this very quickly, but those are my submissions, if the Court pleases.  Unless, there is anything else I have finished.

KIEFEL CJ:   Yes, thank you, Mr Game.  Yes, Mr Kell.

MR KELL:   Thank you, your Honour.  Can you hear me, your Honour?

KIEFEL CJ:   Yes, we can.

MR KELL:   Thank you.  In our outline and our written submissions we have made reference to Birks and Nudd v The Queen which both talk about, in this context, looking for what is referred to as a combination of circumstances which together resulted in a miscarriage of justice.  In Nudd Chief Justice Gleeson explained that the combination of circumstances in Birks that amounted to errors was set to reflect the failure of the trial process.  The complaint that was made in this case was of…..advanced and this is before the Court of Criminal Appeal and that by reason of that there was an impermissible inference that was being made available to the jury. 

Just dealing with that aspect, what we say is that - and your Honours have seen in our written submissions – but what we say is that Birks – that Browne v Dunn is not intuitive as Justice Fagan reasoned and that here, when one looks at the cross‑examination and the pages that your Honours have been taken to, what there is in terms of the three premises of Browne v Dunn and Birks‑type reasoning is just simply the very first step which is having been put to a witness who suddenly gives evidence in a form to sort of say, well, that was not – “Hang on a sec; that was not put to the complainant”. 

At no stage in this case - and I will come to the summing‑up and so on shortly, but at no stage in this case was the second or third premises, if one likes, explained or put to the jury in any fashion and there was no – either by, as it has happened in a couple of cases, cross‑examination about the nature of duty and so on or understanding of duty but at no stage in the summing‑up or the closing address was the premises of the Birks‑type, Browne v Dunn reasoning sufficiently explained or explained to the jury at all. 

That is important in that the allegation of recent fabrication - going back a step.  In this area of discourse, we say, looking at the cases, there are two streams of analysis which are complementary and not rigid – and I will explain both of them – and they are, as it were, tools that can be analysed to determine whether in a particular case there has been a miscarriage, and that is again looking at whether there is a particular combination of circumstances.

This first mode of analysis, by reference to Browne v Dunn and Birks, is that where there is an allegation of recent fabrication by an accused that is squarely put with sufficient clarity to the jury, based on asserted compliance with the rule in Browne v Dunn ‑ that is to say that there is an available inference of recent fabrication based on assumed instructions having been given to counsel on material matters and then a matter not put to a Crown witness about which the accused gives evidence – and where the rule in Browne v Dunn is sufficiently explained to the jury that can permit an inference to be made.

Pausing there, there can be nonetheless a miscarriage of justice arising in particular circumstances at an appellate level becoming apparent where, for example, the factual underpinning of the inference of recent fabrication based on Browne v Dunn was erroneous because, as it turns out, counsel did in fact have instructions about the matter.  So that is the first mode of analysis and I will come to the second in a moment.

But to get to that state of affairs where the impermissible available inference is sufficiently communicated or made available to the jury, we say that there has to be an explanation of Browne v Dunn expressly or implicitly to the jury and in the cases that has come through either the combination of cross-examination or the parties’ addresses and also the directions given by the trial judge.  In this case there was none of that.  There was simply at most on occasions an allegation or it is said to the accused that that was not put to the complainant or to witness X.

We say in the present case that the relevant inference based on the rule in Browne v Dunn, which is what this case is about and what the case was about before the Court of Criminal Appeal, does not arise because the matter was not put with sufficient clarity to the jury to permit the suggested inference, based on that reasoning, to arise, and that that reasoning is not intuitive, as the cases indicate.  It is not intuitive to a…..person.  It is an area of technical procedure that a jury should not be assumed to understand instruction.

KIEFEL CJ:   Mr Kell, much of what a jury might understand may depend upon how one views the whole of the cross‑examination, whether in the way in which Mr Game puts where it is imbued with this running theme of recent invention and attacks on credit, or whether one views it, perhaps as Justice Macfarlan did, in a way where, in the middle of general cross‑examination, discrete topics are put by the prosecution.

MR KELL:   Yes.  Can I say something about that, your Honour?

KIEFEL CJ:   Yes.

MR KELL:   Undoubtedly, in this case, there is – for this Court and for anyone approaching the matter – a question, ultimately, of characterisation of how one looks at the transcript, read as a whole, and the transcript in combination with the summing‑up and the parties’ addresses.  Ultimately, your Honours will each have a view about that having read the material and considered it. 

We cannot obviously take your Honours page by page.  But, I just say this in response to the question that your Honour raised – or the observation that your Honour raised – that in the transcript, in a number of places, there is – separate from the Birks, Browne v Dunne issue, if one likes – it is put to the witness that his account is untruthful.

Your Honours can see that, for example, at the appellant’s book of further materials at page 287, trial transcript 493.  At about line 40 of that page, there is a discussion that there was some evidence given about references to chlamydia and the accused having mentioned that he had chlamydia at one stage – in connection with C1. 

Then, for example, at page 287, trial transcript 492, at lines 40 to 44, it is put to the witness that his account is untruthful.  That is nothing to do with a Birks first‑step premise.  Then, similarly, it is again put to the witness – again, quite separate from the Birks, Browne v Dunn line of territory that raised this appeal – but at appellant’s book page 302, trial transcript 515, at lines 41 to 44, again it is put in general terms in the cross‑examination that:

I want to suggest this to you, sir, the reason you make errors or you made that error is because you are lying to this jury.  You are not giving a truthful account from your own memory –

So, your Honours can see that again.  I will not read it out but at page 309, at trial transcript 522.  Part of the cross‑examination is being put squarely that aspects of the accused’s account which are inconsistent with the evidence given by complainants is untruthful and should not be believed by the jury and it is being put squarely to the accused in cross‑examination in an appropriate fashion that makes no doubt about the Crown case. 

GORDON J:   Mr Kell, can I just ask you something about that.  There is no doubt that in those three places – and to which you might add a fourth which is at the top of 311:

Are you just making things up as you go along –

the difficulty I have is that each of those incidents – or aspects of the transcript – are interspersed by the matters that Mr Game took us to.

MR KELL:   Yes.

GORDON J:   When you are looking at it in the context of a cross‑examination which goes for an afternoon on, I think it is the Friday or Friday morning, and then goes directly over to the Tuesday, followed by the address, one has these eight matters where Birks issues are directly raised.   

MR KELL:   Yes.  There are in number I think just two occasions where in the context of Birks or in close proximity to the Birks‑type questions, just for want of a better term by me, that the allegation of “you’re making things up” is made, and I would just indicate where they are.  I think my friend has referred to them, but just for transcript purposes that appears to be in connection with matter (6) which is at page 307 at the top of trial transcript page 520.  So that is the one – and I will be corrected if I am wrong, but I understand that there are only two.  That is the first occasion. 

Then the second occasion where it is linked to the Birks‑type questioning is page 311 in connection with matter (7) at trial transcript page 524 at lines 4 to 6.  They seem to be the only two occasions – when I say only, I am not downplaying it - but the only two occasions; I think that is right. 

But in part answer to your Honour’s observational question, if they are interspersed and linked – and there may be a question about how one understands a jury would take all of this - it is not a pleadings document where particulars are given and things are put into specific categories.  There would be a question of overall impression.  But also one then needs to look at the transcript with the overall – the corollary is that on the number of occasions – and I will give your Honours reference to them – where the accused attributes fault or blame to his barrister when the Birks or Browne v Dunn matter is put to him, or provides an explanation, then similarly those matters should be regarded as part of the impression that the jury comes away with, and that is significant as well and that was a matter of some significance to Justice Fagan or the CCA majority.

So there are eight matters in total that my friend has identified and could be referenced to description in Justice Macfarlan’s judgment at paragraph 34, core appeal book 105 to 106.  Just looking at those six categories – eight categories, as it were, for the second category which was that C2 told the accused that she was bisexual, not a lesbian, that was a matter on which the accused blamed his barrister, as it were, and that is at page 297 of the further materials at trial transcript 503 at the very top there at lines 1 to 2:

She did not tell me at any stage she was a lesbian, and may be my barrister should have cross‑examined her better.

That notion of blaming the – just using quotation marks – but blaming the barrister appears also for, for example, the fourth matter which is at page 306 at trial transcript 519 at lines 20 to 21.  Then, also, for the fourth matter, which was that C2 performed oral sex on the accused, and that can be seen at page 306 in the further materials at trial transcript 519 at lines 41 to 43 – sorry, for number (4) at 305 at lines 24 to 28:

my barrister . . . I won’t say neglectful –

et cetera, et cetera, that the barrister has not had time, and then there is an apology and retraction which is given on the next page at 306 at page 519 of the trial transcript at lines 41 to 43, and the blaming of the barrister for matter number (5) is then at lines 20 to 21, and in respect of matter number (7), which is the unofficial boyfriend matter, there is an explanation provided by the accused himself, which is that there is a misapprehension by the Crown Prosecutor, and that is at page 311 of the further materials at trial transcript 524 at lines 20 to 22, where the accused says that came:

From her own words –

Then similarly, the final matter, which is matter number (8), which is the notion about the coaching of witnesses, the accused provides an explanation of that matter at 308, at trial transcript 521 at lines 33 to 35.  The combined force of those matters is both impressionistic, that for the jury as a whole, the accused is saying, “Well, hang on a sec, these are reasons why, including that it was my barrister’s fault”.  The reason why that is important for present purposes is that that is – that provides an answer that neutralises the impermissible inference arising.

None of that was challenged by the Crown Prosecutor, so the answer given about, “You know, that that was the fault of my barrister”, which, in effect, is saying, “No, no, I did give instructions about that matter”, that is not challenged by the Crown Prosecutor, and the result of that is that the premises of any Birks‑type reasoning does not get past the first stage, so there is no prejudicial inference arising, we say, relevantly, when one has regard to the whole of the answers and the…..

I accept that it is a matter of overall impression.  There are those two matters of fabrication that are put but again that is simply at the very first stage of the premises of a Birks comment, i.e. that that matter was not put to a witness.  Then when one looks at the Crown closing, which is in the further book of materials starting at page 314, the two references are “fleeting” at page 322, which is trial transcript 533 at the top, there is a note – there is a one sentence comment that was:

and he also told us she might have had an orgasm, and that also is another detail that was never put to [her] for her comment.

Full stop, goes on to other matters.  So, there is no explanation about ‑ ‑ ‑

GORDON J:   Mr Kell, that is not quite accurate, is it?  If you read from 321 to 322, he puts two matters were not put to the complainant:  performing oral sex and the orgasm.

MR KELL:   Yes, sorry, just going back to the page. 

GORDON J:   It may be minor but there are two matters that are the subject of that in that passage that were not put.

MR KELL:   Yes, and there is no – that is right, that is said was not put.  There is then no instruction or explanation given by anyone about why that might be – to the jury, as to why that might be significant.  The other reference is on appeal book – sorry, further material book at 329 which is trial transcript 540 which is about the second matter – what is referred to as matter number (2) that C2 told the accused that she was bisexual and not a lesbian and from about lines – from about lines 15 onwards to 25 but it is correctly regarded by Justice Fagan that these matters as a “fleeting reference”.  So, here what happens is that the Crown says:

In that regard the accused gave evidence that what [C2] told him was that she was bisexual.  That was not a proposition, you might think, that was ever put to [C2] for her comment –

He makes that observation but then says:

I want to submit to you that you would accept [C2] –

apologies, the references here should all be to C2 including in the transcript:

I want to submit to you that you would accept [C2’s] evidence that she said to him that she was a lesbian, that she had a girlfriend, didn’t say to him that she was bisexual –

So, the submission that is being made to the jury is you should accept C2’s evidence because of the evidence that she gave and then combined with - and he continues:

and when you combine it with the text messages that are in evidence, was the text message that [C2] sent to [a friend] about [C2] telling the accused that she was her girlfriend and there was three letter acronyms involved, WTF, and that was all explained to us.  In any event the Crown says that is powerful corroborative evidence that what [C2] told the accused was that she was a lesbian, not that she was bisexual.

So the submission that is being put to the jury is not based on the Birks – there is a “fleeting” comment, to pick up the language used by Justice Fagan - the submission that is put the jury is based upon “The jury should accept the evidence of C2”, who the jury see in the witness box, combined with the force of the contemporaneous evidence, including text messages and the like. 

So, again, it is in strong contrast to some of the cases that are referred to in the party submissions where the focus of the appeal and the decision has turned upon the directions that were given by the trial judge about the rule in Browne v Dunn, and the failure to give acknowledgment of other reasons as to why matters might not have been put and the like.  Nothing of that sort here.  There is no focus at all upon that. 

Then, when one goes to the summing‑up at all, there is just simply no reference in the summing‑up and the directions to the jury about matters not put to the – matters not put, or about the ruling of Browne v Dunn and Birks, and any explanation given to the jury at all.  We say that that is all important, that the jury would not - that in this case the jury was not left with an impression or what might be regarded as an inference available, a particular form of reasoning because of the matter not being put to a witness in conjunction with the rule in Browne v Dunn.  It just simply is not a case where it gets beyond the first step being put to Browne v Dunn. 

KIEFEL CJ:   Mr Kell, I am not sure that your written submissions deal with the question of the requirement for leave to cross‑examine in relation to credit.

MR KELL:   Yes.

KIEFEL CJ:   What do you say to Mr Game’s argument that that should have been undertaken at quite an early point, I think, page 283 of the ‑ ‑ ‑ 

MR KELL:   Yes.  No, it is not a matter that was raised in the – as I can see, it does not seem to be a matter that was the subject of consideration in the CCA’s judgment.  We say that - and put as a way of, in which this case should be analysed, it was not sort of analysed that way by the CCA.  The question of whether – we do not accept that leave is required, or necessarily required, and that in some respects this may be a bit of a distraction, and I will indicate why, that leave is required because - and that therefore because of an argument that, well, maybe leave was required, that there is somehow an error of law for section 6 purposes, and that is the end of the matter.

This is a question where if there were - and it was not sort of put this way in the CCA, but if there were, in that sense, an impermissible – what is said to be an impermissible question or a requirement for leave, in one sense there are - and this is all happening very quickly, where the matter is becoming apparent in most instances where the witness gives the answer, the Crown Prosecutor is on its feet and sort of says well, that matter was not put, and then in some respects he is given an answer that makes it clear what the position is, no it was, or there is an explanation for it, et cetera.

On the one hand, the question of whether a particular question might be objectionable in certain circumstances – which can happen all the time in a trial in very many different ways – is not necessarily an answer, it does not necessarily mean that there is, for relevant purposes, an error of law, et cetera, et cetera. 

We say that consistent with the way that the CCA looked at the matter, that what is important here was a miscarriage of justice arising having regard to all the particular circumstances rather than looking at a particular question and whether leave was required.  So, we do not necessarily accept that leave was required. 

If your Honours want us to – and we have not addressed that in the way that – sorry, I withdraw that – I will come back to that.  But I think at the outset I had said that there were two modes of analysis as to the tools – the way of looking at miscarriage of justice in these circumstances and these cases.  I dealt with the first which was by focusing quite closely on Browne v Dunn and Birks and the like.  If it convenient, I might just mention the other mode of analysis because it also goes to the question of miscarriage of justice. 

KIEFEL CJ:   Actually, Mr Kell, that might be a convenient time for the Court to take its morning adjournment.

MR KELL:   All right, thank you.

AT 11:15 AM SHORT ADJOURNMENT

UPON RESUMING AT 11.30:

KIEFEL CJ:   Yes, Mr Kell.

MR KELL:   Thank you, your Honours.  I mentioned before the break that I was going to talk about, briefly, the second mode of analysis, the way of looking at the Birks and Browne v Dunn cases, which feeds into the question of whether in particular circumstances there may have been a miscarriage of justice and – can I check that your Honours can hear me.

KIEFEL CJ:   Yes, we can.

MR KELL:   Thank you.  The second mode of analysis, which I indicated is complementary with the first mode rather than an alternative, is that one can recognise that in what is regarded as a Birks-type context, where there is an allegation of recent fabrication following a failure to put a matter to a Crown witness about which an accused gives evidence, that in a particular case an allegation of recent fabrication can produce a miscarriage of justice, even it seems if the inference is one that, as was said in Manunta at page 23 by Chief Justice King, can arise even if it is a case where the inference is legitimately available to the jury, in circumstances where it is given a prominence that is unwarranted because it takes on an outsized significance compared to the actual issues in the trial.

So it is a recognition of the potential availability of a broader concern which is an undue prominence given to a Birks‑type analysis or a Birks‑type comment because of this taking on an outsized significance compared to the actual issues in the trial and, in effect, in the context of a particular trial it becomes what might be regarded as a substantial distraction with a real risk of diverting a jury from its fundamental task. 

In the CCA judgment below, recognition of this way of looking at a number of the cases can be seen in Justice Fullerton’s judgment at paragraphs 110 to 112 in the core appeal book.  At paragraph 110, for example, her Honour referred to:

The significance of the Crown’s cross‑examination of an accused with a view to making a Birks comment will likely depend on the relative importance of the matter that was not put to a Crown witness, including its significance in the context of the issues that were litigated at trial, and the way in which those issues were dealt with by the Crown and the defence in final addresses.

As I indicated, Manunta suggests that that broader mode of analysis is potentially available even when the Browne v Dunn submission, the Birks submission, based on the three premises, is legitimately available, although the cases that one looks at, such as Picker and Llewellyn and so on, are cases where the inference, at least when looked at at an appellate level, was not properly available.

So Picker, which is referred to in the submissions and in the joint bundle of authorities at tab 15, is a case where, for example, the prosecutor’s florid address – described as a florid address – capitalised on the impermissible cross‑examination and unfairly became a major distraction for the jury, at the centre of the jury’s attention, to the exclusion of other issues, and that can be seen at paragraphs 47 and 62, for example, in Picker, and Llewellyn similarly is - is a similar case that can be looked at in that way.

That second mode of analysis, though, is again very – accepting that those two modes of analysis are the tools by which one can look to whether, in a particular case, there has been a miscarriage of justice, but they are, we submit, far removed, including the second mode of analysis, from this case, in that they – and I will say it very quickly, so I do not repeat things that I have already said, but it is not a matter where an undue prominence was given to the Birks comment and the like at all, because of the limited attention given to it in the questioning, the answers and the rebuttals that were given by the accused, and the limited attention given in the Crown addresses, and no attention given in the summing‑up.

So we say that when one has regard to the context of the questioning, when one has regard to the notion that Birks reasoning is not intuitive, we respectfully submit – and what can be regarded as the peripheral nature of the questions, the subject matter, and we have dealt with that in careful terms in writing, which your Honours have seen, that, having regard to the totality of those matters that it is not a case where there is any risk that the jury were averted from the issues or that anything material was made of these matters.

Ultimately, we accept that it is a matter of overall impression, but the overall impression that the court would form would be similar to that formed by the majority of the CCA here, which was that these matters were - the impugned questioning, so not the cross‑examination as a whole but the impugned questioning about these eight matters of which the complaint is made, was both ineffectual in the sense of getting only - starting to raise the first premise in Browne v Dunn and getting no further, and was peripheral in that the matters raised were, on the whole, by and large, peripheral to the matters at issue for the jury and that the court would find, would probably find, that there was no – or would not accept that there was a miscarriage of justice arising, or it is shown that there has been. 

GAGELER J:   Mr Kell, is another word for “peripheral” “irrelevant”?

MR KELL:   It is.  “Irrelevant” means - perhaps I should say “peripheral and/or irrelevant”, so to the extent if they are irrelevant then completely but there might be a marginal relevance arguably perhaps raised in respect of one or two, but it is of such marginal – so, your Honour is right.  Can I say something briefly?

GLEESON J:   Mr Kell, can I just clarify, do you accept that the relevant questions went to credit only?

MR KELL:   There is a question about whether it even got to that stage, I suppose, your Honour, without wanting to deflect.  So, the questions went – the issue if one gets into the proper Browne v Dunn, Birks‑type analysis, then that itself will be advanced as a matter affecting the veracity of the accused, with all the need for caution and the like that travels with that and the potential for appellate concern in particular cases, et cetera.  But all that happened here was a question relevantly of – at the very starting point, the anterior question of that matter put - that is the relevant question that was put to a witness. 

Now, and I said before and we accept – we appreciate that the Evidence Act provisions are not in the joint bundle of materials and so on and so consideration has not been given to this aspect in those terms and was not by the Court of Criminal Appeal.  But if the question is simply put to a witness, “Did you hear” – so it comes up suddenly, witness says “Well, she told me she was a bisexual, not a lesbian”, the prosecutor hearing that then says, “Well, did you hear that put to C2”, for example, there is at least a question arising as to whether that question of itself goes to credibility rather than being neutral or, depending on the circumstances, arguably in a particular case - not saying here but in a particular case - potentially irrelevant.  The answer without more – at least thinking about it, may be categorised as, well, that cannot clearly of itself have an impact on the witness’ credibility. 

Now, accepting that the Birks analysis that if further things happen and that there is closing address, there are submissions made, there may be questions about duty sometimes to witnesses and so on, that may have a credibility and a credit flavour but whether that initial simple isolated question which is what happens here, whether the answer to that either way goes to credibility or credit as opposed to being neutral is at least unclear and we would not accept that it does or necessarily does.

GAGELER J:   Mr Kell, is another term for “neutral” “lacking probative value”?

MR KELL:   It may be, your Honour – it depends on the circumstances.  In one sense, we have – looking with the benefit of hindsight, as Justice Fagan does here – where his Honour says because of what has happened and that nothing further was – the building blocks were not utilised.  There was no Birks and Browne v Dunn…..made that the question and the answer, I think his Honour uses from time to time, went nowhere or goes nowhere.  What your Honour has indicated by observation, in one sense, can be viewed as consistent with that.  Could I just ‑ ‑ ‑

GORDON J:   Before you leave that, Mr Kell, if the questions go beyond credit, in response to your answer to Justice Gleeson I did not quite understand whether he accepted they went beyond credit, but if they do, then the same sort of considerations apply, do they not, consistent with the Birks analysis – that these sort of questions should not have been put or should be put with extreme caution?

MR KELL:   I am sorry, your Honour, I missed the start of your Honour’s question.

GORDON J:   If these questions go beyond credit - so this is the second aspect to the question put to you by Justice Gleeson - then you accept, do you not, that the Birks and Brown v Dunn analysis says, in the criminal context, these sort of questions should not be put or only be put in the rarest of cases?

MR KELL:   The question about whether – let me put it this way – the cases contain continual reminders of the need for caution in this field and they usually come up in appellate decisions where there has been something that is – a miscarriage of justice has become apparent because of, for example, evidence given that the counsel had given instructions or that the client had given instructions, or the like.  That sort of need for caution is evident and is referred to by both Justice Fullerton in her Honour’s judgment and also by Justice Fagan.

The reference to – I think in exceptional rare cases – was a comment in the dissenting – sorry, a comment in a judgment of Justice Garling in Llewellyn but itself was not the majority decision in that judgment and we make reference to that in our written submissions.  But, it may be that the scope for a Birks comment and the like is not to be limited to the rarest of cases and the like, and that there is authority for the proposition that there is scope in a criminal context for this submission to be made which is not the matter squarely before your Honours today.  But the notion of caution is endorsed by the CCA majority in this case and we accept that that is appropriately referred to and evidenced in the cases. 

GAGELER J:   Mr Kell, can you give an example of the rare case where the Birks comment would be appropriate, or a Birks line of cross‑examination would be appropriate?

MR KELL:   It is all contextual of course but – if in a particular case the matter had been raised with defence counsel and if defence counsel indicates that he or she was not given instructions about the matter and nothing – does not really have anything else to say, which is not this case, but if that hypothetical situation arose then, consistent with authority, the Birks reasoning or the Birks‑type analysis could be – conceptually could be advanced, and the acceptance of that is recognised by the cases such as Llewellyn and Birks itself, et cetera.  So although there is reference to the need for caution, there is an acceptance that there is still some scope for the advancing of this Browne v Dunn/Birks analysis in a criminal context.

KIEFEL CJ:   Mr Kell, it is perhaps one thing for defence counsel to answer the question whether they have instructions in the affirmative.  Are you saying that it would be appropriate for defence counsel to say that they do not have instructions?

MR KELL:   No, your Honour, I was just asked about – sorry, I was trying to do the best I could to come up with an example, a hypothetical example where the – one such example where the Browne v Dunn sort of reasoning could be advanced, not that there was any obligation, but in those circumstances that could happen. 

It is also recognised in – just looking at the core appeal book at page 141 in the judgment of Justice Fagan at paragraph 205, his Honour there talks about or recognises really what might be regarded as a beneficial or prophylactic effect, if one were to put it that way, about having the existence of the availability even though utilised with caution and not seldom, where his Honour talks about – well, looks at this broader policy question, if one likes, about:

Whilst appeals on this basis would be averted if the Crown should resolve never to cross‑examine or to address juries towards a Birks comment, that would remove the discipline upon defence counsel to put their clients’ cases fully to Crown witnesses -

et cetera, so that there is - at least on his Honour’s observations there, there is a benefit in having the potential for the Birks comment to be deployed appropriately in a criminal case where it can be.  But again one goes back to the authorities that indicate that that should be done with caution, et cetera, but nonetheless make clear in a number of the cases that there is the availability for it, and that can be seen in Lysle, for example, which we have in the joint book of authorities which is referred to, for example, at paragraph 44 where the Court of Criminal Appeal in New South Wales by Justice Hulme referred to:

in an appropriate case the Crown is entitled to the benefit of the rule –

In Manunta itself where Chief Justice King referred to it, and in Birks itself as well referring to the potential availability of the rule.  So no court has indicated or gone close to stating that the Birks comment analysis and the Browne v Dunn submissions by reference to Birks in an appropriate case should have no place in a criminal context.

GAGELER J:   Justice Lusher in Birks goes pretty close to that, does he not - page 702?  I mean, the basic point I think he is making is that the problem with this line of cross‑examination, or the inference that a jury would be asked to draw is that to meet it counsel need to disclose their instructions, or part of their instructions.

MR KELL:  Yes, and that observation, just sort of picking up page 702, so firstly I suppose in Birks, the decision in Birks Justice Lusher is not part of the majority judgment.  So what I indicated about the position of courts I suppose applies.  But his Honour’s remarks are consistent with the remarks about the need for caution and the like, which are consistently indicated in the appellate decisions.

GORDON J:   I mean, do you accept – I know that Justice Garling’s summary in Llewellyn is not, as you say, in the majority, but in the sense that his Honour sets out the full sort of problems that arise from this sort of conduct - one is recent invention, the second is where it is persistent but seemed to suggest that the accused has something to prove rather than the Crown, third is the matter just raised by Justice Gageler that requires trial counsel to disclose their instructions, and the fourth is that the accused is somehow responsible for the conduct of the defence when we all know counsel is neither the mouthpiece for the client nor is the accused in a position to control him.  So you have these four considerations going to the fairness of trial, which are the consequence of undertaking this kind of question.

MR KELL:   Yes.  Sorry, but your Honour’s question was ‑ ‑ ‑

GORDON J:   Her Honour’s question is this – they are the four things.  There is not just one aspect of the matter which brings about the caution.  As you say, it is a process - one has to look at the trial process as a whole and work out what is happening.

MR KELL:   Yes.

GORDON J:   But there are a number of fundamental things which underpin why it is not a good idea to do it. 

MR KELL:   Yes, and your Honour, with respect, is correct.  That in part reflects why there are continual references to caution.  I should indicate that the Lusher AJ reference to counsel needing to, in particular cases needing to reveal instructions and the like, is a possibility that can be – is one way in which, in a particular case, when an appellate court is looking at – or what steps should have happened here, when in fact it becomes apparent at an appellate level that there has been a miscarriage of justice by reason of alleged incompetence of counsel – whatever it might be, where something has gone astray so it is not a case which is – the circumstances in which these cases become apparent, but the revealing of instructions, is just one – on a particular question which is just simply whether a material matter about a witness was the subject of instructions or not, is just one of different types of corrective measures that are referred to in the cases including – and it may not necessarily, often would not be trial counsel – but it would be in an affidavit from the solicitor, or whatever, limited to the particular matter, the subject of the instructions. 

But others in the appellate decisions, where there have been deficiencies in the summing‑up and directions given to the jury just simply include, for example, where there has been an overlooking to give to the jury that there are other explanations as to why matters were not put including – other than the Birks and Browne v Dunne inference, which is forgetfulness, the various possibilities, so those things also arise.

Can I say something briefly about the proviso and also ground 2?  I can do this in succinct fashion.  In terms of the proviso we maintain – and this obviously only arises in the alternative, as it did in the Court of Criminal Appeal, that we respectfully endorse or adopt the approach taken by the CCA majority that if the impugned cross‑examination was impermissible and to some degree prejudicial, that it would or at least should have had no significance for the jury having regard to – and I will not repeat all the matters and the matters we have got in the written submissions - the peripheral or irrelevant nature of most of the matters in connection with the subject matter and the ineffectuality of the questioning.

We recognise that if the court of – there is clearly a link between the view that one takes about ground 1 and the proviso.  If the Court is of the view that in effect ground 1 is not made out unless in all the circumstances the jury must have been relevantly misled by the impugned questioning in a  material matter and the like, and the related comment in the Crown closing, et cetera, then there may be little scope for the proviso to operate.  So, clearly there is that significant relationship between the two, but we do respectfully endorse the position taken in the alternative by the CCA majority below. 

In terms of ground 2, we do say – and I can deal with this in succinct fashion, and we have referred to it in writing - that ground 2 is properly viewed as an extension of ground 1 that stands or falls on ground 1 being made good and in his reply submissions the appellant claims that the failure by trial counsel to remedy the issue, and I think the language is used of “added potency” to the miscarriage of justice that he says arose in the situation. 

We do not understand that submission to contradict our submissions on the point which is that if there is – if one characterises this, having regard to the whole impression, as being no real prejudicial effect arising from the impugned questioning, or the suggested prejudicial effect was of no meaningful significance to the jury’s verdict, whichever way one wants to put that, then what counsel did or did not choose to do, we say, does not affect that outcome.

In Nudd, in the joint book of authorities 384, which is referred to in the appellant’s submissions and the like, the incompetence alleged in that case was said to go to the root of the accused’s representation at his trial in the sense that the failure by his counsel was to correctly apprehend the elements of the offence which the appellant was charged with, and that that affected – that there was improper representation, and that one could conclude that the appellant in Nudd had not had a fair trial according to law.

We say that that is very different from the kind of incompetence that is alleged here, and here the omissions that are complained of go to a failure by counsel to – or a suggested failure by counsel to correct the asserted prejudicial effect of the impugned cross‑examination.  It follows, we say, that to make ground 2 good, the appellant must succeed on ground 1. 

Relevant to ground 2 is that the question of instructions given to counsel was not raised by anyone other than the appellant in his answers to the prosecutor’s questions, where, on those occasions which I have identified previously, the accused – sorry, the appellant in this case, either blamed his barrister or provided the explanation in terms of the coaching matter of the decision of the legal team and the like, and that the Crown Prosecutor did not seek to contradict the appellant’s answers.  The appellant’s discussions of his instructions were raised without any discussion by anyone of counsel’s duties to put matters about which instructions were given.

I think, in combination perhaps also with the proviso and ground 2, I just wanted to say something quickly about the notion of procedural fairness which was just referred to very briefly, or fleetingly by my friend, and is also referred to in short terms in his written submissions, that this is not a

case where the defendant – sorry, I will go back a step.  The accused was not prevented here from sufficiently explaining himself to offset any perception that he had not given instructions and say that the evidence was a recent fabrication.

So if one is looking at the context of – which one should, or must do here, about leading up to an inference of recent invention based on Birks and Browne v Dunn, at times certainly the witness was cut off, using that analysis by the judge, and not allowed to answered a question fully, and seemingly was not taken back to that matter in re‑examination.

But, relevantly, in this context here, Birks and Browne v Dunn, the accused was not prevented from saying that, as the answers he gave, that he blamed his barrister, i.e., that what he has repeatedly done in the matters that I had referred to, matter (2), matter (4), matter (5) and matter (8) has the explanation given about the legal…..explain he gave instructions.

That is the point of the submission made and accepted by Justice Fagan that the answer, that answer - and that is sufficient, that answer is sufficient to, as it were, neutralise or nullify or blunt, whatever the term used, the force of the impugned questioning, because if the fact is that the fault lay with the barrister and that is the unchallenged answer that he was able to give and did give for those instances, then the possible inference arising on Birks and Browne v Dunn reasoning just cannot arise so there is no impermissible inference arising at all. 

Your Honours, those are the matters that I wish to address beyond the written submissions that we have provided.

KIEFEL CJ:   Do you have anything in reply, Mr Game?

MR GAME:   Yes, your Honour.  I know Kalbasi is not on the list of authorities, but in answer to the question your Honour asked me earlier today about qualification of Weiss in Kalbasi, our position is that Weiss is not relevantly qualified, and I will just give your Honours two passages – paragraph 13 and paragraph 16, in particular, and footnote (62) and that picks up the relevant passage from Weiss. 

I should add there is also a footnote to Cesan at a certain page in which your Honour was one of the parties to the joint judgment which says something more along the lines than which your Honour the Chief Justice put to me, but what appears in paragraph 16 is a clear preservation of that which appears in paragraph 45 in Weiss.

KIEFEL CJ:   I do not think I was suggesting that that advice was qualified so much as further explicated, particularly at paragraph 15 of Kalbasi, Mr Game, where it said that reliance upon factors such as – characterisations such as process and outcome really depart from the – are a departure from the correct approach.

MR GAME:   Thank you, I apologise.  I understand.  In my next sentence it says:

It is not possible to describe the metes and bounds of those wrong decisions of law or failures of trial process that will occasion a substantial miscarriage of justice notwithstanding the cogency of proof –

That is a footnote.  That is all I wanted to say about that.  Secondly, and I will try and do this reasonably quickly, the three times in which you are “making it up as you go along” type of questions, 287, 302 and 307, two are recently related to recent invention and instructions.  The 287 one similarly – the 287 one is connected to the chlamydia conversation which is also put as a recent invention.  So, it is pretty difficult to say that the proposition of lying and recent invention is not tied to the instructions to lawyers.

There is another aspect of this that I should have drawn out and your Honour Justice Gordon raised it in a question put a short time ago.  There are other related parts of the question in, like, “You threw that in, you’re trying to mould your account, you’re forced to say”.  Those things are all about motive to lie, the peculiar position  of the accused, and they all go very much against the grain of the accusatorial system and the onus and standard of proof and they are part and parcel of that form of question.

The next one I wanted to make is this, and we have made it before.  The three premises really become irrelevant if you put the question and then you shoot straight to recent invention, you have made it up, because that is the conclusion that you are coming to.

The next point I wanted to make is this, that the “blaming of the barrister” argument does not really work because he admitted in one instance that he did have instructions, the implication being that he did not from the others, but not only that, at pages 306 and 308 the accused was stopped from saying what he did or did not say to his lawyers, on one of those occasions by the judge and on one of those occasions by defence, by prosecuting counsel.

The next point I wanted to make is about section 104 and I am sorry, we did refer to it in our written submissions, but we did not refer to 101A, which is an important provision because 101A says that you cannot look behind the hearsay to get to it not being relevant regarding facts in issue.  So, you cannot say just because somebody said something, and it was on the subject of the events therefore it is not to credibility only because section 101A(b) cuts that out.  So, this is all hearsay.  It is all otherwise prohibited by Part 3.2.  It can only go to credibility. 

Now, this thing about it not being raised before, I have to confess I, myself, have been involved in numerous cases in this Court where provisions have not been referred to before here.  But the point is this – everybody is saying this should not happen.  The place to start is the statute and the statute is quite clear about this.  Section 104 is an extra prohibition on cross‑examination.  The various approaches suggested by Justice Fullerton and Justice Fagan and Justice Macfarlan, saying it is inappropriate, the way to deal with it is by applying the statute.  The other indicator that this is ‑ ‑ ‑

KIEFEL CJ:   Mr Game, could I just clarify that?

MR GAME:   Yes, your Honour.

KIEFEL CJ:   Are you saying that you rely upon section 104 as the miscarriage of justice or is it a strand of the errors that occurred here?

MR GAME:   Yes, your Honour, a strand.  You would arrive at the same point, but I am trying to identify what is the actual – the hard, legal point where one gets to that point.  I just wanted to say this, that in his submissions Mr Kell said that the questions were peripheral, and we say that that is just a complete misreading of what happened. 

But, your Honour Justice Gageler said there is another term for that – “or lacking in probative value”.  The first, “peripheral”, downplays it.  The second, “irrelevant and lacking in probative value” leaves for assessment the prejudice that comes with it.  That is the critical thing.  They are quite…..  I understand the way in which your Honour put that question, but they are actually quite different things in terms of their potential significance. 

The only other thing is that – sorry, in respect of ground 2, ground 2 is a significant part of the story because we can see from it that the true situation was that the lawyer sat on his hands.  Just one comment about the comment about ‑ ‑ ‑ ‑

KIEFEL CJ:   Mr Game, could I Just ask you something about that?

MR GAME:    Yes.

KIEFEL CJ:   I appreciate that defence counsel when giving evidence in the CCA said that, I think, he could not recall why he did not act, but if one looks at the matter objectively there may be many reasons why counsel in this position would not have asked the very questions, not the least because in a case such as this they may have inflamed the jury. 

MR GAME:   That is what he said, at one point.  If you look at page 511 of that book, lines 20 to 30, you get a flavour of it.  We are not criticising him for not asking the questions.  We are criticising him for not dealing with the problem as it arose. 

KIEFEL CJ:   I see.  I misunderstood you there.  He should have asked –either objected or asked for directions. 

MR GAME:   He said he thought some of the things were offensive, and so forth, and some of his decisions might have been questionable, some of them not, in terms of cross‑examination and a couple of them seemed to be fairly central, but we are not striking at that.

KIEFEL CJ:   I am sorry, as I understand you, you are not suggesting that counsel was incompetent in the position he took in relation to examination in‑chief of ‑ ‑ ‑ 

MR GAME:   No - cross-examination of ‑ ‑ ‑

KIEFEL CJ:   Cross‑examination of the Crown witnesses. 

MR GAME:   No, your Honour, and to just take the example of the coaching of witnesses, you would want a pretty strong forensic basis before you actually started that cross‑examination because it could go wildly wrong.  That is just an example.  But anyway, so we are not criticising – as I said, different views might be…..he made that decision.  It is the unfolding situation with which he was confronted that he was obliged to deal with.

Lastly – and I think Mr Kell may have considered this – but the way in which the majority dealt with the proviso at 196 talking about “some degree prejudicial”, that is not really – that is minimising the error or the miscarriage in order to engage with the proviso.  So that is not really an adequate treatment of it.  But it says “would, or at least should, have had no significance”.  How can one say it should have had no significance when that was the very proposition that the Crown Prosecutor was putting in his questioning and on three of the topics in his address to the jury.  Those are our submissions in reply, if the Court pleases.

KEANE J:   Mr Game, in relation to paragraph 205 in the reasons of Justice Fagan, the suggestion that:

appeals on this basis would be averted if the Crown should resolve never to cross‑examine . . . that would remove the discipline upon defence counsel –

do you accept that if the only comment that was made and the only point that was being made was that the circumstance that the Crown witnesses had not given the evidence and had not referred to the evidence that the accused later gave is something that should not be held against them because they were not given the opportunity to comment on it – would you accept that that would be a fair response to the failure to put the evidence?

MR GAME:  Yes, your Honour, or the facility to have the witness recalled if necessary – yes, your Honour. 

KEANE J:   Yes.  But just looking at the comment that you should not hold it against the complainants, a question directed to eliciting an acknowledgment that the matter had not been put and a subsequent comment, that would not breach section 104 of the Evidence Act because it is only concerned with the credit of the accused.  Here we are concerned with the credit of the complainants.

MR GAME:   Conceivably, your Honour, but that would not really be a matter that you would have to elicit in cross‑examination of the accused.  That is a proposition that can be put without any questions being put to the ‑ ‑ ‑

KEANE J:   That is true.  It probably does need to be something that everybody is alive to earlier rather than later, so that no one can say that when the Crown Prosecutor makes that comment in address and invites the judge to direct the jury accordingly, the accused is being taken by surprise.  Raising it by a question is perhaps one way of doing that. 

MR GAME:   It could be, but one would have to, as it were, stop right away there and at the point of an opportunity was not given ‑ ‑ ‑

KEANE J:   Yes, but we do, I think, need to recognise that the first breach of Browne v Dunn in this case was on the part of the defence.  I mean, I am not saying that that justifies a Pavlovian response of the kind that occurred here, but the trial does have to be fair to everybody.

MR GAME:   Yes, your Honour, I accept that.  Defence counsel did object to it, it was not carried through, so – yes, but what happened in this case, and obviously it goes far further than the proposition your Honour put to me, but yes, fairness to the witnesses and credibility of the witness is a

different matter, but normally one witness, including the accused, cannot be cross‑examined without the credibility of another, obviously. 

I was going to say one thing, and it is not really necessarily in reply, but a question has been asked by more than one of your Honours about circumstances in which it might be appropriate to go down this track.  An example would be, say accused, in a record of interview, gave account (a) I was not there, and then the whole case is conducted on the basis that the accused was not there, cross‑examination on the basis that the accused was not there, witness gets into the witness box and says - accused gets in the box and says yes, I was there, but I was doing something else, and the evidence has been more incriminating as it has gone along, and made the first position untenable.  Well, then, I think there is a fair assumption that could be brought to it that the case has been conducted on the basis of instructions in accordance with the record of interview, and that is an obvious case, but you could go down this path.

Apart from that, it is difficult to actually posit examples where one is…..infringing…..privilege.  If the Court pleases.

KIEFEL CJ:   Yes, thank you.  The Court reserves its decision in this matter and adjourns to 9.30 am tomorrow.

AT 12.18 PM THE MATTER WAS ADJOURNED