Browne v Dunn

Lord Herschell L.C.

At 70 and 71

Now, my Lords, I cannot help saying that it seems to me to be absolutely essential to the proper conduct of a cause, where it is intended to suggest that a witness is not speaking the truth on a particular point, to direct his attention to the fact by some questions put in crossexamination showing that that imputation is intended to be made, and not to take his evidence and pass it by as a matter altogether unchallenged, and then, when it is impossible for him to explain, as perhaps he might have been able to do if such questions had been put to him, the circumstances which it is suggested indicate that the story he tells ought not to be believed, to argue that he is a witness unworthy of credit. My Lords, I have always understood that if you intend to impeach a witness you are bound, whilst he is in the box, to give him an opportunity of making any explanation which is open to him; and as it seems to me, that is not only a rule of professional practice in the conduct of a case, but is essential to fair play and fair dealing with witnesses. Sometimes reflections have been made upon excessive cross-examination of witnesses, and it has been complained of as undue; but it seems to me that a cross-examination of a witness which errs in the direction of excess may be far more fair to him than to leave him without cross-examination, and afterwards to suggest that he is not a witness of truth, I mean upon a point which it is not otherwise perfectly clear that he has had full notice beforehand that there is an intention to impeach the credibility of the story which he is telling. Of course I do not deny for a moment that there are cases in which that notice has been so distinctly and unmistakably given, and the point upon which he is impeached, and is to be impeached, is so manifest, that it is not necessary to waste time in putting questions to him upon it. All I am saying is that it will not do to impeach the credibility of a witness upon a matter on which he has not had any opportunity of giving an explanation by reason of there having been no suggestion whatever in the course of the case that his story is not accepted.

Lord Halsbury

At 76 and 77

My Lords, with regards to the manner in which the evidence was given in this case, I cannot too heartily express my concurrence with the Lord Chancellor as to the mode in which a trial should be conducted. To my mind nothing would be more absolutely unjust than not to cross-examine witnesses upon evidence which they have given, so as to give them notice, and to give them an opportunity of explanation, and an opportunity very often to defend their own character, and, not having given them such an opportunity, to ask the jury afterwards to disbelieve what they have said, although not one question has been directed either to their credit or to the accuracy of the facts they have deposed to. In this case I must say it would be an outrageous thing if I were asked to disbelieve what Mr. Hoch says, and what Mr. McCombie says, after the conduct of the learned counsel when they were examined at the trial. Mr. George McCombie is called and asked:

…

My Lords, it seems to me that it would be a perfect outrage and violation of the proper conduct of a case at Nisi Prius if, after the learned counsel had declined to cross-examine the witness upon that evidence, it is not to be taken as a fact that that witness did complain of the plaintiff’s proceedings, that he did receive advice, that he went round to Mr. Dunn as a solicitor, and that he did sign that retainer, the whole case on the other side being that the retainer was a mere counterfeit proceeding and not a genuine retainer at all.

Lord Morris

At 79

My Lords, there is another point upon which I would wish to guard myself, namely, with respect to laying down and hard-and-fast rule as regards cross-examining a witness as a necessary preliminary to impeaching his credit. In this case, I am clearly of the opinion that the witnesses, having given their testimony, and not having been cross-examined, having deposed to a state of facts which is quite reconcilable with the rest of the case, and with the fact of the retainer having been given, it was impossible for the plaintiff to ask the jury at the trial, and it is impossible for him to ask any legal tribunal, to say that these witnesses are not to be credited. But I can quite understand a case in which a story told by a witness may have been of so incredible and romancing a character that the most effective cross-examination would be to ask him to leave the box. I therefore wish it to be understood that I would not concur in ruling that it was necessary, in order to impeach a witness’s credit, that you should take him through the story which he had told, giving him notice by the questions that you impeached his credit.

Lord Bowen (did not rule on the cross examination issue)

Hunt J

At 4

Portion of this property (which was referred to at the hearing as “Yarrick No 1”) was subdivided and some of that portion so subdivided was sold by the taxpayer in 1968. No question arises in relation to this portion in these appeals. In the same year, the taxpayer changed its name to its present name, Allied Pastoral Holdings Pty Ltd. In 1970, the taxpayer acquired a further property (which was generally referred to as “Yarrick No 2”), such property being contiguous to and to the north of Yarrick No 1. In 1972, the remainder of Yarrick No 1 and the whole of Yarrick No 2 were subdivided into 25-acre lots and sold by the taxpayer during the 1973 and 1974 financial years. From these sales, the taxpayer obtained a profit of $648,363 which the Commissioner included within its assessable income for those years as well as assessing Div 7 tax upon the undistributed amount of that income. In support of his assessment, the Commissioner has relied upon the Income Tax Assessment Act 1936 (Cth), s 26(a) — both limbs — and s 25(1).

At 16

The taxpayer replies to this submission in various ways. To those arguments I will turn later. First and foremost, however, there is one answer to the Commissioner's submission which raises an important question of practice that was debated at some length during the final addresses at the hearing. It arises from the fact that at no time did counsel for the Commissioner put to any of the taxpayer's witnesses in cross-examination the so-called staged development theory upon which his client so strongly relies to contradict their evidence denying any dominant purpose in the acquisition of each of the properties to resell it at a profit, nor did he give any notice that such was the case he would be seeking to make. It certainly was not a case which should have been apparent without such express notice.

It has in my experience always been a rule of professional practice that, unless notice has already clearly been given of the cross-examiner's intention to rely upon such matters, it is necessary to put to an opponent's witness in cross-examination the nature of the case upon which it is proposed to rely in contradiction of his evidence, particularly where that case relies upon inferences to be drawn from other evidence in the proceedings. Such a rule of practice is necessary both to give the witness the opportunity to deal with that other evidence, or the inferences to be drawn from it, and to allow the other party the opportunity to call evidence either to corroborate that explanation or to contradict the inference sought to be drawn. That rule of practice follows from what I have always believed to be rules of conduct which are essential to fair play at the trial and which are generally regarded as being established by the decision of the House of Lords in Browne v Dunn (1894) 6 R 67.

At 23 to 24

An issue between X and Y is whether X was in Melbourne upon a specific date and at a specific time. X bears the onus of proving that he was not in Melbourne. He gives evidence in his case in chief that he spent the whole day in Sydney with A and B. There are then a number of different situations which may arise:

…

(5) Y does give fair warning that the evidence of X is challenged, by putting to him simply that he was in Melbourne at the time and place where C and D saw him; there is in evidence (upon some other issue), whether tendered by X or by Y, a diary kept by X in which there is an entry that X had an appointment to see Z in Melbourne on the relevant date and at about the relevant time; Y does not draw any attention to this entry during the course of the evidence, but asks the tribunal by reason of the existence of

this entry in the diary to disbelieve the evidence of X.

It is the situation postulated in (5) which is applicable in the present case.

In accordance with the decision of the Court of Appeal in Cullen v Ampol Petroleum Ltd, consistently with all the other authorities to which reference has been made, and provided that such a use of the diary had not in any way been foreshadowed, it would in my view be wholly unfair for Y to rely upon the diary in seeking to have the tribunal of fact disbelieve the evidence of X that he was not in Melbourne. If the diary had been put to X, or its significance had in some other way been made apparent, X could have explained, for example, that the entry had been made in error, or that the appointment had been cancelled, and he could have called Z to corroborate his explanation for the existence of the entry. In the absence of forewarning, X would have no chance to do any of these things. He would, to use the expression of Holmes JA, in Cullen, have been well caught in an ambush.

At 26

I remain of the opinion that, unless notice has already clearly been given of the cross-examiner's intention to rely upon such matters, it is necessary to put to an opponent's witness in cross-examination the nature of the case upon which it is proposed to rely in contradiction of his evidence, particularly where that case relies upon inferences to be drawn from other evidence in the proceedings.

King CJ

At 19

The sole point taken on the appeal is that the learned judge erred in directions which he gave to jury as to inferences which might be drawn from the failure of counsel for the defence to cross-examine the police witnesses as to certain matters.

At 22

As to the first matter mentioned by his Honour, it is not in dispute that counsel for the defence did not put to any of the police officers in cross-examination that the notes made by Detective Davies, to which all three police officers referred, were not in fact the notes made by Davies on the day in question. Neither was that topic dealt with in the examination-in-chief of the appellant. The prosecuting counsel cross-examined the appellant as to whether he had been given the opportunity to read and sign Davies' notes. For that purpose the actual notes to which Davies referred in evidence were placed in the appellant's hands in the witness box. He then said that he thought that the notes which Davies made on the day were made in a notepad or small book and not on paper like those produced to him. After some questions and answers he committed himself to the proposition that the notes which Davies made were definitely not those produced to him and that he was positive about that. It seems to me that the failure of counsel to cross-examine the police officers on the topic left open the inference that the challenge to the notes was an afterthought on the part of the appellant and was simply a lie told in cross-examination because he thought it would serve his interests. The cogency of such an inference might be open to question. It is possible that the idea that the police were referring to notes other than those made at the time might not have occurred either to the appellant or to his legal advisers. The appellant may have realised it only when the notes were placed in his hands during cross-examination. No such explanation, however, was elicited in re-examination. I think that the point was open for the consideration of the jury; its weight was for them to determine.

At 23 and 24

I have been concerned about the prominence which the learned judge gave to these matters in the course of the summing up. It is legitimate, of course, to draw appropriate conclusions from counsel's failure to put in cross-examination some matter to which his client or his witnesses subsequently depose. It is a process of reasoning, however, which is fraught with peril and should therefore be used only with much caution and circumspection. There may be many explanations of the omission which do not reflect upon the credibility of the witnesses. Counsel may have misunderstood his instructions. The witnesses may not have been fully co-operative in providing statements. Forensic pressures may have resulted in looseness or inexactitude in the framing of questions. The matter might simply have been overlooked. I think that where the possibility of drawing an adverse inference is left to the jury, the jury should be assisted, generally speaking, by some reference to the sort of factors which I have mentioned. Jurors are not familiar with the course of trial or preparation for trial and such considerations may not enter spontaneously into their minds. Whether such matters should be brought to the attention of the jury and the manner in which that should be done are matters for decision by the trial judge in the atmosphere of the trial. I must say that the points raised with the jury based upon the failure to cross-examine do not seem to me to possess much weight. They were explained to the jury, however, quite fairly and their weight was a matter for the jury. I do not think that any error has been demonstrated.

In my opinion the point raised on the appeal cannot succeed and I would dismiss the appeal.

Legoe J

At 26

It is clear from the evidence and from a reading of the transcript combined with the summing up, that this is not a case where it could be suggested nor has it ever been suggested that the learned trial judge misstated the position in directing the jury in relation to the facts concerning the cross-examination or lack of cross-examination. The issue, so far as the opposed portion of the summing up was concerned, was confirmed to the question as to whether the learned trial judge should say anything on these matters at all. The Crown prosecutor, having addressed on these points as part of his summing up, left the issues before the jury without any real mention or certainly without any detailed submissions from the defence. What was the judge to do in these circumstances? Say nothing? No, that would be a misdirection by omission and leaving the jury with the impression that the submissions of the Crown prosecutor were the only guidance for them to follow. Was the learned trial judge merely to refer to the remarks made by counsel for the Crown in his final address and say nothing about the defence? No, that would be worse, as it would leave an even greater emphasis on the submissions made by the Crown prosecutor. What the learned trial judge did was to give a full and detailed explanation as to the rule of practice and the issues that arose in the case out of the three particular matters which he had isolated by topic. In my judgment, the learned trial judge did not misstate any fact. He accurately put the matters upon which there had been cross-examination of the police officers, and those upon which there had been no cross-examination. In that he emphasised certain aspects and indicated the importance of those matters so far as the jury's deliberations were concerned, was to do no more than assist the jury in their essential task of assessing the evidence and how to fit those matters into the jury's fact-finding function.

At 26 to 28

In the present case the so-called rule in Browne v Dunn first articulated by Lord Herschell LC in 1894 and only reported in the sixth volume of a limited series of reports known as "The Reports", has been the subject of much discussion by academics and judges, particularly in recent times. The points which have emerged from these discussions and comments include the following:

1. It is a rule of practice which is of importance to the fair and orderly conduct of trials, both civil and criminal: see R v Costi (1987) 48 SASR 269 at 270, per King CT.

2. It applies to the conduct of the case and is particularly relevant to the manner in which issues emerge at the hearing.

3. …

4. There are two limbs or aspects to the rule:

(a) When cross-examining, counsel are required to put to a witness so much of the case for that particular party as concerns that particular witness.

(b) Where an allegation is to be made against a witness or where a point is to be made which reflects on the conduct of that witness, then the party, through counsel, is required to bring to the witness's attention the allegation or particular point, fairly and distinctly so that the witness may have an opportunity of admitting or denying or otherwise qualifying the allegation or point in evidence. See R v Costi (supra).

5. In considering the application of the rule, it often becomes crucial for the court to determine whether a witness or a number of witnesses has or have been cross-examined at all in relation to allegations or particular points or, in the alternative, whether some cross-examination has been directed to the allegation or issue and it cannot therefore be said that there has been no challenge at all to the evidence given by the other party: see Thomas v Van Den Yssel (1976) 14 SASR 205 at 207, per Bray CT.

6. The two matters referred to in 5 (above) frequently overlap when considering the rule. The court must often determine first whether a challenge has been mounted to the truth of the evidence given by a witness or is the challenge made by contradicting some particular fact or qualifying some particular fact from which an inference may be drawn: see Thomas v Van Den Yssel (supra); and Reid v Kerr (1974) 9 SASR 367.

7. The rationale of the rule was explained by Lord Herschell LC when, at 71 of Browne v Dunn, his Lordship said that there was no obligation to raise such a matter in cross-examination in circumstances where it is "perfectly clear that (the witness) has had full notice beforehand that there is an intention to impeach the credibility of the story which he is telling" and concluded by saying, "All I am saying is that it will not do to impeach the credibility of a witness upon a matter in which he has not had an opportunity of giving an explanation by reason of there having been no suggestion whatever in the course of the case that his story is not accepted". Lord Halsbury and Lord Morris expressed concurring 

8. …

9. …

At 28

Although this may have seemed a minor point to counsel for the defence, it is clear that counsel for the Crown regarded the matter as being of considerable importance. The learned trial judge clearly gave considerable thought to the matter before delivering the summing up and expressly raised the application of the rule with both counsel when the three matters discussed above were formulated by his Honour. In the end it appears to me that it was simply a matter of disagreement between the learned trial judge and counsel for the defence as to whether anything should be put to the jury at all. A perusal of the transcript justifies, in my opinion, the course taken by the learned trial judge. I cannot detect any error in the text of the summing up which has been the subject of complaint on this ground of appeal.

Bollen J

At 29

I agree that appeal against conviction and appeal against sentence should be dismissed. I respectfully agree with the reasons of the Chief Justice. I enthusiastically agree with the warnings offered by the Chief Justice about the peril involved in drawing conclusions from counsel's failure to cross-examine on matters later deposed to by his client or witness.

Gleeson J

At 679

The appellant was tried before Flannery DCJ and a jury in the District Court on a number of charges including maliciously inflicting bodily harm with intent to have sexual intercourse, and having sexual intercourse with a woman without her consent, knowing that she was not consenting. He was convicted of the charges and sentenced to a total term of imprisonment of fifteen years with a non-parole period of ten years. At the time of the alleged offences the appellant, who has a substantial criminal record, was on parole.

At 680 and 681

When the appellant came to give evidence two significant facts emerged. First, although the appellant admitted having oral and vaginal intercourse with the complainant, he denied having anal intercourse. Secondly, and more importantly, the appellant, in his evidence in chief, after a deal of prompting by his barrister, gave an exculpatory account of how the complainant came to suffer her facial injuries. It was as follows. He agreed that when he entered the complainant's house he surprised and alarmed her, although he said that he had no intention to do so. He accepted that she swung a torch at his head. He said that he threw up his arms to ward off the blow and in so doing knocked the torch out of her hand. The torch flew up and hit her on the face. That was how she came to suffer the cuts and bruises. He went on to say that she invited him to have a cup of tea and later made sexual advances to him. This account of how the complainant's injuries had been sustained had two difficulties about it. First, it is not easy to explain how a torch could have caused the actual injuries to the complainant's face, bearing in mind their nature and location. However, the appellant, when cross-examined about that matter, made a fair attempt at standing his ground. The other problem was that this account had never been put to the complainant in cross-examination.

The appellant thereupon found himself the subject of a vigorous attack by the Crown Prosecutor based upon what is sometimes called the rule in Browne v Dunn (1893) 6 R 67 (HL). Somewhat surprisingly, he was cross-examined about his knowledge of the rule itself, and, even more surprisingly, gave some answers which appeared to acknowledge an acquaintance with it. Whilst he is a person with experience in the criminal courts, it is difficult to take those answers at face value.

At 681 and 682

The failure on the part of the defence counsel to object to the cross-examination of his client as to the information and instructions given to his legal representatives did not, as it turned out, reflect some tactical decision. By the line of questioning he adopted the Crown Prosecutor exposed himself to the possibility of an effective response on the part of the defence. However, none came. No attempt was made to lead evidence of the instructions given by the appellant, either in the form of the tender of his proof of evidence (actually, none existed) or by calling the evidence of the appellant's solicitor, to support the appellant's claim that he had instructed his lawyers in a manner consistent with his evidence. Nor was it suggested by anybody that, in so far as the problem was one of fairness in the conduct of the defence case, it could be dealt with by recalling the complainant and re-opening her cross-examination.

Both in the address to the jury of the Crown Prosecutor and in the learned judge's summing-up, considerable emphasis was placed upon the failure of the appellant's barrister to cross-examine the complainant about the matters concerning anal intercourse and the striking of her face by the torch. It was put to the jury that what had occurred in that regard had a very important bearing on the credibility of the appellant. The jury were told, correctly enough, that in the end it came down to a question of their assessment of the reliability of the complainant, on the one hand, and the appellant on the other. In that critical respect they were invited to take into account, adversely to the appellant, the way in which the cross-examination of the complainant had been conducted, and the contrast between what was put to her in cross-examination, and what the appellant said in his evidence.

At 686

It is accepted as a rule of professional practice in this State that there is a general requirement, subject to various qualifications, that a cross-examiner put to an opponent's witness the matters in respect of which, or by reason of which, it is intended to contradict the witness' evidence. (The rule is discussed, for example, by Hunt J in Allied Pastoral Holdings Pty Ltd v Commissioner of Taxation [1983] 1 NSWLR 1 at 16.) The very subject matter of the rule, however, indicates a need for a degree of caution in its formulation; caution which is to be found in the speeches in Browne v Dunn itself. Cross-examination is an art, and the means that may be legitimately employed to cut down the effect of the evidence of a witness or to put a witness or a party upon fair notice of a point are multifarious.

At 692

The failure of trial counsel to cross-examine the complainant as to how she suffered her facial injuries was plainly in contravention of the requirements of the rule of professional practice discussed above. If the complainant had been confronted with the suggestion that her injuries had been caused by a torch and given the opportunity to deal with it, she might have dealt with it very effectively. She might, for example, have given some details about the size or weight of the torch (which was apparently not available at the trial) which would have indicated that it was unlikely that such an object could have caused the particular injuries she suffered. If considerations of fairness had been all that was involved, and an appropriate application had been made, she might have been recalled for further cross-examination. That would have been a matter calling for an exercise of discretion by the trial judge. In the events that occurred, however, the issue was pursued by the Crown Prosecutor, and taken up by the learned judge, on the subject of the credibility of the appellant's evidence, in a manner which was inconsistent with the need for caution stressed by King CJ; a need which, although neither the Crown Prosecutor nor the judge realised it at the time, was very much in point in the circumstances of the case.

Beazley JA

1. I agree with Smart AJA

Bell J

2. I have had the benefit of reading in draft form the judgment of Smart AJ. I agree with the orders which his Honour proposes for the reasons which he gives.

Smart AJ

3. Eric Russell Picker appeals against his conviction, after a trial extending over three days, of two counts of sexual intercourse without consent and a third count of possession of a weapon (a rifle) with intent to commit a sexual assault. He also seeks leave to appeal against the severity of his sentences, namely imprisonment for twenty-two months with a non-parole period of sixteen months commencing on 9 February 2000 on the third count and imprisonment for seven years with a non-parole period of four years six months commencing on 9 June 2001 on each of counts 1 and 2. The judge took into account two months pre-trial custody. The total effective overall sentence was thus eight and a half years with a non-parole period of six years.

…

23. Appeal Ground 1 reads:

"A miscarriage of justice occurred as a result of impermissible questions asked by the Crown Prosecutor."

24. The appellant contended that the cross-examination contained two types of impermissible questions. First, the prosecutor asked the appellant questions which invited the appellant to comment on whether the complainant had fabricated her evidence. Secondly, the prosecutor asked the appellant questions the effect of which was that he had recently made up some of his evidence because his counsel had not asked the complainant about those matters in cross-examination.

…

40. The Crown Prosecutor asked these questions in cross-examination (T151-152):

Q. Then you said that Donna leant on your shoulder?

A. She did.

Q. That's what you say she did?

A. That's what she did.

Q. Remember when Miss Lucas was in the witness box being asked questions by your counsel?

A. I do.

Q. She was never asked, was she, or it was never suggested to her that she leant on your shoulder was it?

A. I think it was.

Q. You didn't tell the jury in your evidence that she put her arm around you because that didn't happen did it?

A. I didn't say she put her arm around me, no.

Q. Well didn't you hear your counsel --

A. She put her arm on my shoulder.

HIS HONOUR: Q. Just listen to the question.

CROWN PROSECUTOR: Q. Didn't you hear your counsel suggest to Miss Lucas that she put her arm around you?

A. No.

Q. This evidence about her leaning on your shoulder --

A. That's right.

Q.. That's something you've just made up isn't it?

A. No it's not.

Q. You've told the jury that you said to Miss Lucas when she put her head on your shoulder --

A. No, her arm on my shoulder.

Q. "You're a bit fresh, you're a bit frisky," and she said to you "The rain does it to me," or words to that effect?

A. Something like that, yes.

Q. You never heard your counsel suggest to Miss Lucas that she ever said something to the effect of `The rain does it to me.'?

A. No I didn't, ask my counsel why.

Q. And that's because she never said such a thing to you at all?

A. Yes she did.

Q. And you never suggested to her at all, never said to her at all that she was a bit fresh or a bit frisky?

A. Yes I did.

Q. This was all out of the blue, wasn't it, this conduct?

A. No it wasn't.

Q. You've been sitting there next to her?

A. That's right.

Q. Talking about Amway?

A. That's right.

Q. You weren't talking about sexual relationships?

A. No.

Q. And out of the blue you say Miss Lucas put her head on your shoulder?

A. No, she didn't put her head on my shoulder, she leant on my shoulder.

Q. I'm sorry, she leant on your shoulder?

A. That's right.

Q. Never shown you that sort of affection ever before had she?

A. No, never.

Q. When you say she said those words, `The rain does it to me,' was she seated at that time or standing?

A. She just started to rise.

Q. And then you say that she walked in the direction of her bedroom?

A. Yes.

Q. Didn't say anything to you but gave you nod of the head?

A. Beckoned me, yes.

Q. With her head. You're not suggesting to the ladies and gentlemen of the jury that she actually asked you for sex at that time?

A. At that time, no.

Q. But that's certainly what you say you took it as?

A. That's right, why would somebody beckon you that way otherwise?

Q. And you say to the jury in your evidence today that you tried to kiss her but she said the words `I don't want to kiss, I just want sex.'?

A.. That's right.

Q. You never heard your counsel suggest to Miss Lucas once that she said those words did you?

A. No.

Q. Because you've just made them up haven't you?

A. Sir I don't know how to tell you this, but I made a statement--

Q. Well you can just answer the questions sir that I'm putting to you?

A. I never just made it up, it's been written down a long time before today."

41. That cross-examination was impermissible and highly and unfairly prejudicial to the appellant's case.

42. The gist of the cross-examination was unmistakable, namely because the appellant's counsel had not questioned the complainant about the specified matters, the appellant was telling lies. He had made up his evidence on these points.

…

46. In the present case the Crown Prosecutor in his final address described what the appellant told the jury as "the best fantasy novel ever written" and his description of what happened when he sat down on the lounge with her as a flight of fantasy. The Crown Prosecutor caustically remarked that the appellant's version of the subsequent events "gets better". The prosecution described the appellant's version as absurd and a flight of fantasy and urged the jury not to give the slightest shred of credibility to the appellant's story. He suggested, "...you would find that the accused was telling you a total fabrication in relation to that." The address thus emphasised the fact of fabrication by the appellant and it covered the matters about which the appellant gave evidence and the complainant was not cross-examined.

Studdert J

1. I agree with Kirby J.

Kirby J

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

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

…

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

Ground Two: The comments on Browne v Dunn by the learned Crown Prosecutor in his address were improper and caused the trial proceedings to miscarry.

Ground Three: The Browne v Dunn direction given to the jury by the learned trial judge was inadequate and erroneous.

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

…

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

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

…

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

…

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

"Browne v Dunn was a civil case. There are some obvious difficulties concerning the operation of the rule in criminal trials. The notion of fairness, whilst it has relevance to criminal as well as to civil proceedings, may have a somewhat different practical content in a criminal trial."

78. The Chief Justice added: (at 689)

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

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

Hislop J

156. I agree with Kirby J.

Gleeson CJ and Heydon J (would dismiss the appeal)

1. Following a trial before a judge, sitting without a jury, in the District Court of South Australia, the appellant was convicted of three sexual offences against the complainant, who was a child at the time. The three offences allegedly occurred at 10 Jeffries Street, Whyalla Playford, in 1990 or 1991, where the appellant was living with the complainant's mother. There was an alleged earlier offence of a similar nature, said to have occurred at 5 Sutcliffe Street, Whyalla Stuart, between 1986 and 1987. The appellant was acquitted of this charge. The three offences of which the appellant was convicted arose out of a single incident at Jeffries Street. However, evidence was given of other uncharged offences committed earlier at Jeffries Street. The alleged incident at Sutcliffe Street, and the incident at Jeffries Street, which were the subject of the charges, were, according to the complainant, the first and last occasions of sexual abuse to which she was subjected. Where there is alleged to be a history of sexual abuse, it may be that a complainant will find it easiest to remember, and give detailed evidence about, the first and the last occasions on which it occurred.

2. Only three people gave evidence at the trial: the complainant, the complainant's mother and the appellant. The mother gave evidence of complaints made to her. The admissibility of that evidence is not in question in this appeal. The argument in the appeal relates to certain supposed inconsistencies between that evidence and the evidence of the complainant, and to the way those inconsistencies were dealt with at trial.

…

5. In brief, the complainant gave no evidence about whether the charged incident at Sutcliffe Street was the only one of its kind at that address. The complainant's mother, who was unclear about the details of the 2002 complaint, described it as a general complaint relating to conduct at Sutcliffe Street, rather than an account of a single and specific incident. There was no direct inconsistency between the complainant's evidence at trial and what, according to her mother, she said in 2002.

6. Counsel for the appellant knew that the mother was going to give evidence of a complaint about a course of conduct at Sutcliffe Street. The fact that she did not cross-examine the complainant about whether there was other abusive conduct at Sutcliffe Street apart from the occasion that was the subject of the charge is hardly surprising. The advantage to be gained from a negative answer was small, and the disadvantage resulting from a positive answer could have been significant.

…

12. That should be sufficient to dispose of the present appeal, were it not for an argument prompted by some observations made in the South Australian Court of Criminal Appeal in dealing with the appellant's appeal to that Court against his conviction.

13. In the Court of Criminal Appeal, counsel for the appellant again relied upon the supposed inconsistency concerning what happened at Sutcliffe Street, and upon certain other suggested inconsistencies between the complainant's evidence about what happened at Jeffries Street and the mother's evidence of the complaints concerning conduct at Jeffries Street. Upon analysis of the evidence, and the reasoning of the trial judge, Doyle CJ (with whom Besanko J and White J agreed) concluded that the suggested inconsistencies "were explicable in a manner that did not provide a basis for them to reflect on [the complainant's] credit". There is no error in the reasoning upon which the Court of Criminal Appeal based its decision.

14. However, before expressing that conclusion, Doyle CJ attributed to the trial judge a certain view of the law, which he then corrected. It was what was said in that regard that gave rise to much of the argument in this appeal. In fact, as has already been noted, the trial judge found it unnecessary to resolve what he described as a legal difficulty resulting from the fact that the complainant had not been cross-examined about the suggested inconsistencies, including whether she maintained that there had been only a single incident at Sutcliffe Street. The judge had said that if there had been such an inconsistency, it would have been unfair to use it to impugn the credit of the complainant. She had never been given an opportunity to explain any inconsistency between her evidence and her complaints. The judge said:

"I think if the Defence wish to impugn [the complainant] in this way then what is put to the tribunal of fact as achieving this should also have been put to her. I say this conscious that the accused bears no overall onus. However, serious unfairness to the complainant arises if the technical view of the rules of evidence [is] applied as I have suggested."

…

17. The comments of Doyle CJ did not go either to the actual basis upon which the trial judge decided the case, or to the ultimate ground of decision of the Court of Criminal Appeal. Neither the trial judge nor Doyle CJ made specific reference in their reasons to the "rule of professional practice" discussed by the House of Lords in Browne v Dunn. Nevertheless, the comments of Doyle CJ, made as they were in passing, became the foundation of an argument directed to the scope of that rule in criminal cases generally.

18. The principle of fair conduct on the part of an advocate, stated in Browne v Dunn, is an important aspect of the adversarial system of justice. It has been held in England, New South Wales, South Australia, Queensland, and New Zealand, to apply in the administration of criminal justice, which, as well as being accusatorial, is adversarial. Murphy J, in this Court, even applied it to the conduct of an unrepresented accused. However, for reasons explained, for example, in R v Birks, and R v Manunta, it is a principle that may need to be applied with some care when considering the conduct of the defence at criminal trial. Fairness ordinarily requires that if a challenge is to be made to the evidence of a witness, the ground of the challenge be put to the witness in cross-examination. This requirement is accepted, and applied day by day, in criminal trials. However, the consequences of a failure to cross-examine on a certain issue may need to be considered in the light of the nature and course of the proceedings.

19. In the present case, there was no obligation on trial counsel for the appellant to question the complainant about whether there had been more than one incident of sexual abuse at Sutcliffe Street, and there was no obligation to seek to have the complainant recalled for that purpose. Why would counsel for the appellant want to run the risk of eliciting further evidence of uncharged criminal acts by her client? That, no doubt, left the trial judge in a difficult position when he came to evaluate a criticism (in final address) of the complainant's credibility based on the supposed (although, in truth, non-existent) inconsistencies. It did not mean that counsel could not put her argument to the judge. As Doyle CJ said, it was a matter to be taken into account in assessing the weight to be given to the supposed inconsistencies. In the event, it was the fact that counsel chose (with reason) to leave the evidence in a state of uncertainty that undermined her submission about inconsistency. That was a forensic choice for counsel to make.

Gummow, Kirby and Callinan JJ (would dismiss the appeal)

31. The appellant unsuccessfully appealed to the Court of Criminal Appeal of South Australia (Doyle CJ, Besanko and White JJ). Their Honours' reasons for dismissing the appeal were given by Doyle CJ (Besanko and White JJ agreeing).

…

36. The appellant's grounds of appeal to this Court are variants of two propositions: that the Court of Criminal Appeal erred in the application of the principle established in Browne v Dunn, and that the inconsistency to which reference has been made, invalidated the convictions. The former proposition is correct, the latter is not.

37. Something should first be said of the trial judge's criticism of the appellant's failure, in effect, to give the complainant an opportunity of explaining away the inconsistency arising out of her mother's evidence. The criticism is ill-founded for these reasons. The complainant had already given her evidence when the mother gave her evidence. It was not for the appellant to know and anticipate, by cross-examining the complainant, what the mother would say about the complainant's assertions of complaints of multiple offences at Sutcliffe Street. It was not for the appellant to iron out inconsistencies in the case for the prosecution. Secondly, his Honour erred in holding that if there were competition between the avoidance of unfairness to the complainant and a "technical view of the rules of evidence" (whatever that in the circumstances means), the former must prevail. It is not for a judge to depart from the rules of evidence on such a basis. The rules are designed to ensure fairness to all, certainly not least, to an accused in a criminal trial.

…

40. Reliance on the rule in Browne v Dunn can be both misplaced and overstated. If the evidence in the case has not been completed, a party genuinely taken by surprise by reason of a failure on the part of the other to put a relevant matter in cross-examination, can almost always, especially in ordinary civil litigation, mitigate or cure any difficulties so arising by seeking or offering the recall of the witness to enable the matter to be put. In criminal cases, in many jurisdictions, the salutary practice of excusing witnesses temporarily only, and on the understanding that they must make themselves available to be recalled if necessary at any time before a verdict is given, is adopted. There may be some circumstances in which it could be unfair to permit the recalling of a witness, but in general, subject to the obligation of the prosecution not to split its case, and to present or make available all of the relevant evidence to an accused, the course that we have suggested is one that should be able to be adopted on most occasions without injustice.

41. The obligation of the prosecution to present its whole case in chief and the existence of the unavoidable burden of proof carried by the prosecution are of particular relevance here. Doyle CJ was critical of the appellant for not putting the inconsistency between the complainant and her mother, in turn giving rise to an internal inconsistency in the complainant's account, to the complainant. The criticism does not give due weight to the obligations of the prosecution to which we have referred. It is not for the defence to clear up, or resolve inconsistencies in the case for the prosecution. As soon as the inconsistency emerged, and the trial judge rejected the appellant's objection to the evidence intended to be adduced from the complainant's mother, it was open for the prosecution to offer to tender the complainant for further cross-examination. Had that happened it would then, and only then have been for the appellant, to decide whether to embrace the offer or not. If he had not, then and only then would the criticism that the Court of Criminal Appeal made of his conduct have been valid. The position of an accused who bears no burden of proof in a criminal trial cannot be equated with the position of a defendant in civil proceedings. The rule in Browne v Dunn can no more be applied, or applied without serious qualification, to an accused in a criminal trial than can the not dissimilar rule in Jones v Dunkel. In each case it is necessary to consider the applicability of the rule (if any) having regard to the essential accusatory character of the criminal trial in this country.

Simpson J

1. The appellant appeals against his conviction, on 4 December 2009, following a jury trial in the District Court, of 12 out of 14 counts on an indictment. All counts involved allegations of sexual offences against the same victim. Ten of the counts on the indictment (including two on which he was acquitted) were of sexual intercourse with a child under the age of 10 years (Crimes Act 1900, s 66A); one was of inciting an act of indecency by a person under the age of 16 years (Crimes Act s 61E(2) and s 61N), and three were of assault with an act of indecency on a person under the age of 10 years (Crimes Act s 61E(1) and s 61M(2)). All offences were alleged to have been committed between January 1990 and April 1991. The statutory provisions to which I have referred are those that were in operation at the time the offences were alleged to have been committed.

…

11. Two grounds of appeal against conviction are pleaded. They are:

“1. The trial judge misdirected the jury by defining the phrase ‘beyond reasonable doubt’.

2. The combined effect of the submissions of the Crown prosecutor and the directions of the trial judge about Browne v Dunn [(1893) 6 R 67] constitute a miscarriage of justice.”

…

65. The trial judge took this up towards the end of the summing up. He said, referring to the Crown address:

“He [the Crown prosecutor] said the story about [the complainant’s] father is really just an unreliable suggestion to deflect blame from himself. He said that [the complainant] was cross-examined by [counsel for the appellant] with some ability for some time but she never asks [the complainant] whether her father had done such a thing to her. Members of the jury, the significance of that is this, counsel are not just allowed to ask things at large in cross-examining. You hear, both the Crown and [defence counsel] say, ‘did you put that to so and so?’ The significance of that is, counsel are supposed to put adverse suggestions to witnesses so they have a chance to deal with them and you would assume that both counsel behaved ethically in this matter. I have no criticism of their ethics. The significance of [defence counsel] not suggesting to [the complainant] that it was the father who had done something amiss with his own daughter and her bottom, is that she was under a duty, if the accused had told her about this incident to put that. You could conclude that [defence counsel] had not been told that by the accused and there was no explanation sought from the accused in re-examination as to any matter of that kind.

66. Again, the Crown concedes that the direction exceeded proper bounds. Whether it was so excessive as to call for the quashing of the convictions remains to be considered. Although all of what was said by his Honour was said in the context of reviewing the Crown’s address, the judge did not distance himself from the submission, and he deflected from the course of the review of the Crown submissions to add his own endorsement, giving it the weight of judicial authority.

…

75. The complainant had said, more than once, that when the appellant committed the offences, he smelt of cigarettes and alcohol. Counsel therefore sought to establish that her father also consumed alcohol and smoked cigarettes. The complainant agreed that he consumed alcohol occasionally, and that he smoked cigarettes. This was designed to lay a foundation for suspicion that the perpetrator of the offences was the complainant’s father. Notably, that was never directly put to her. One might speculate that this was because counsel was well aware that her instructions did not permit her to make such an accusation. It may also have been because, to make such a suggestion, in terms, would have been likely to have resulted in the complainant’s father being called to give evidence.

…

101. These authorities make it very plain that a trial judge should exercise great caution in directions to the jury concerning the failure of an accused’s counsel to comply with the rule in Browne v Dunn. Browne v Dunn is an ancient and useful rule of practice and casts a considerable burden of care on counsel. But counsel are fallible and more than one inference may be drawn from non-compliance with the rule. Opposing counsel will always suggest that the only, or the proper, inference is that the client (or witness) failed to include the contentious matter in his/her instructions or statement. But the reality is that that is far from the only available inference, and it may be, and often is, quite unfair to suggest to a jury that that is the only inference, or the inference that they should draw.

102. Accordingly, it is quite clear in my mind that the comment made by his Honour ought not to have been made.

…

116. Counsel for the Crown on the appeal has conceded that the submissions of the Crown prosecutor ought not to have been endorsed by the directions of the trial judge, at least without the identification of alternative potential explanations for the omission of counsel to cross-examine on that subject matter.

117. Counsel for the Crown argued that, notwithstanding the misdirection, there has been no miscarriage of justice arising either from the address of the Crown prosecutor or the directions given by his Honour (or a combination of the two).

118. I accept this submission. As I have said, the evidence in question did not have, in the trial, anything like the significance it has assumed in the appeal. I am satisfied that the comment occasioned no miscarriage of justice.

Johnson J

213. I have had the advantage of reading the judgment of Simpson J in these appeals. I agree with the orders proposed by Simpson J and with her Honour’s reasons.

McCallum J

215. I agree with the orders proposed by Simpson J and with her Honour's reasons in respect of both appeals.

Campbell JA

1. I agree with the reasons of Whealy J and with the orders his Honour proposes.

2. I add the following remarks. Browne v Dunn, a case far more often talked about than actually read, was a civil case (an action for defamation tried with a jury). However the principle of professional practice, of fair play and fair dealing that it laid down has been repeatedly applied in the criminal law. Though the rule in Browne v Dunn was developed as a rule of the common law, it remains applicable notwithstanding the introduction of the Evidence Act 1995 (NSW): Heaton v Luczka (NSWCA, 3 March 1998, unreported) at 3 per Beazley JA (with whom Cole and Stein JJA agreed).

3. Additional authority for the rule in Browne v Dunn being based in procedural fairness is collected in Adamson v Ede [2009] NSWCA 379 at [56], [62]. However the precise steps that must be taken to achieve procedural fairness in a trial can be affected by matters such as (without trying to be exhaustive) whether the trial is a civil or a criminal trial, whether there is a jury or a judge alone deciding the matter, and the nature and extent of pre-trial identification of matters in issue or evidence proposed to be called: West v Mead [2003] NSWSC 161; (2003) 13 BPR 24,431 at [94]- [99]. In the context of a civil case, authority for a judge needing to consider how best to remedy the consequences of a breach of the rule in Browne v Dunn by a reference to the circumstances of the individual case is found in Archer v Richard Crookes Construction Pty Ltd (1997) 15 NSWCCR 297 at 302-304 per Mason P and Beazley JA.”

Simpson J

4. I agree.

Whealy J

6. During his trial the appellant Omer Khamis attempted to give evidence about a matter that was important to his defence. The trial advocate objected on the basis that the evidence related to a conversation which had not been put in cross-examination to the complainant or to members of her family. The trial judge, in reliance on the rule in Browne v Dunn (1893) 6 R 67, excluded the evidence. In so doing, her Honour, in my opinion, erred in law and the exclusion of the evidence, in the circumstances, has led to a miscarriage of justice. There were other satisfactory mechanisms available, short of exclusion of the evidence, to deal with the situation, but these were neither considered nor applied. The result is that there should be a new trial.

The trial

7. The appellant was arraigned on one count of sexual intercourse without consent (s 61 of the Crimes Act (NSW)). The appellant pleaded not guilty to the charge and a jury was empanelled. The trial commenced on 29 September 2008 and concluded on 9 October 2008 when the jury returned a verdict of guilty. On 13 March 2009, the appellant was sentenced to an overall term of imprisonment of four years and six months with a non-parole period of two years and three months.

…

23. It was at that point that the trial advocate objected to the evidence on the basis that it had not been put to the complainant or to Kamal. The jury were sent out and a voir dire was held to determine the admissibility of the evidence and otherwise to deal with the problem that had arisen.

…

28. The jury were then called in and her Honour gave them the following direction: -

“Members of the jury, just before you went out the witness started saying Kamal had said something and then the Crown took objection to that on the basis that that proposition of the witness giving evidence about had not been put to the complainant.

Now we have a rule, I suppose a rule of evidence, if you like, or procedure that if a witness is going to say something that may be important then that proposition has to be put to the other side, if you like, so that they can give their version of whether that did or didn’t happen.

So because that aspect of the accused’s evidence was not put to the complainant I have rejected it. So that answer he started giving has been, if you like, struck out and if you remember what it was, I won’t repeat it. If you remember what it was, forget it because it is not part of the evidence”.

…

36. In my opinion, the rule in Browne v Dunn applied to the situation that arose in the present trial. It was not submitted, nor could it have been, that the rule does not apply in criminal cases. Mr Corish had faintly argued, however, that, because the complainant denied that Kamal had said anything to her at the time she was slapped by him, this relieved counsel for the appellant from putting to her the precise statement allegedly made by Kamal. It was, however, a matter of such importance that the rule of professional practice required, in my opinion, that it be put precisely. In the same way, it needed to be put to Kamal, the complainant’s mother and Angelina. They were each asked whether Kamal had “slapped” the complainant and it was a matter of procedural unfairness not to put the precise statement in the questions asked of those witnesses. The conversation between trial counsel and trial judge clearly showed that the failure of counsel to put the alleged statement to each of the witnesses did not occur as some kind of tactical consideration. Rather, counsel candidly admitted that she had taken the view that the answers she had received in her questions to the complainant did not require that the precise matter be put to the witnesses. In that regard, as I have said, counsel was, in my opinion, mistaken.

…

42. It may be said, however, there are a number of sanctions generally available for a court’s consideration where, in a criminal trial, there has been a breach of the rule in Browne v Dunn. The more recent authority to which I have referred, makes it clear, however, that a trial court must always endeavour to demonstrate flexibility in its response to the particular problem before it. This will be largely determined by the particular circumstances involved in the case and the course of the proceedings. I will mention, without attempting to be exhaustive, a number of the available responses.

First, if a witness is not cross-examined on a point, cross-examining counsel may be taken to accept it and may not be permitted to address in a fashion which asks the court not to accept it. That was one of the options suggested by Mahoney JA in Seymour, although that was a civil case.

Secondly, if the witness has not been cross-examined on a particular matter, that may be, depending on the circumstances, a good reason for accepting that witness’s evidence, particularly if it is uncontradicted by other evidence. Where however, a witness’s evidence upon a particular matter appeared to be incredible or unconvincing, or if it were contradicted by other evidence which appeared worthy of belief, the fact that the witness had not been cross-examined might be of little importance in deciding whether to accept his evidence (Bulstrode v Trimble [1970] VicRp 104; [1970] VR 840 at 848-9); Precision Plastics v Demir (1975) 132 CLR at 371). Thirdly, the trial judge may, on application by counsel for the party who called the witness in respect of whom the rule was broken, accede to the application so that matters not put to the witness earlier may be put (s 46 Evidence Act 1995). Quite apart from the ability to grant leave under this section, a trial judge may require the relevant witness to be called for further cross-examination or grant an application for the recall of the witness (Payless Superbarn (NSW) Pty Limited v O’Gara at 556; R v Burns [1999] QCA 189; (1999) 107 A Crim R 330; MWJ v R at [40].

Fourthly, as indicated by cases such as Schneidas there is, at least in this State, a power in criminal trials to exclude evidence sought to be relied upon by an accused to support a point not put in cross-examination of a witness called by the Crown. This option, in my opinion, should, (in this situation) generally speaking, be a last option and not one of first resort.

Finally, if an accused’s evidence is allowed, and there has been a breach of the rule, there may be a need for appropriately fashioned directions to be given to the jury. This option, and the care and caution needed to be taken in respect of it, was the subject of this court’s decision in RWB v R [2010] NSWCCA 147 to which I made reference at the commencement of these reasons. There is no need for me to say anything further on that subject.

…

51. In fairness to the trial judge, it must be stated that nobody appears to have flagged the possibility that the witnesses could have been recalled. There was a general power to do so, and in addition, there was a specific power under s 46 of the Evidence Act. The latter section appears to be designed to bring about a consequence that non-compliance with the rule in Browne v Dunn will not result in the exclusion of the evidence (Australian Law Reform Commission, Evidence, Report No 38 (1986) Ch 7, item 115 (h)). It has been noted that one “curious” aspect of s 46 is that it places the burden of rectifying a breach of the Browne v Dunn duty on the innocent party, not upon the party in breach. (Cross on Evidence (8th ed, 2010 [17460] fn 647). Be that as it may, when the problem arose in the present trial, as I have said, neither the Crown nor defence counsel made any application for the recall of witnesses. They should have done so. It appears to have been accepted, however, by all concerned that there was no option beyond that of exclusion of the evidence.

Kiefel CJ, Keane and Gleeson JJ (the cross examination on the breach of Browne v Dunn was impermissible, but applied the proviso to dismiss the appeal)

1. After a trial in the District Court of New South Wales, the appellant was convicted of eight counts of having sexual intercourse with another person knowing that the other person does not consent, contrary to s 61I of the Crimes Act 1900 (NSW).

2. The offences charged arose from two sets of allegations made by two young women. They concerned events which took place on consecutive days. The charges were heard together and the Crown case in each had certain common features, although the prosecution did not rely upon them as tendency or coincidence evidence. The two complainants (C1 and C2) each responded to an online advertisement placed by the appellant offering to rent a bedroom in a "one bedroom house", preferably to a female aged between 21 and 35. Arrangements were made for each complainant to meet with the appellant. By the time the appellant took each of them to view the room, C1 and C2 were intoxicated, having drunk alcohol to excess at the insistence of the appellant. There was no dispute that sexual intercourse of some kind took place. The issue at trial was whether the appellant believed that each complainant consented to having sex with him or whether he was reckless as to whether she was consenting. The appellant gave evidence that he believed that each complainant consented. Accordingly, the credibility of the appellant was important.

3. During the course of the appellant's evidence, more particularly his cross examination, it became apparent that certain of his evidence which was inconsistent with or contradicted that of C1 and C2 had not been put to them by defence counsel for comment. On each occasion when this arose the Crown prosecutor required the appellant to acknowledge the omission, which, for the most part, he did. He unsuccessfully attempted on some occasions to say that his counsel should have done so and on one tried to identify notes that he had provided to counsel. Towards the end of these areas of cross examination the prosecutor put to the appellant that two aspects of his evidence which had not been put to C1 or C2 were, in effect, of recent invention. Defence counsel did not pursue objections to these suggestions of recent invention and the trial judge did not give the jury directions as to the use which could be made of this evidence.

4. The first question raised on this appeal is whether the questions asked by the Crown prosecutor in cross examination of the appellant were impermissible and prejudicial such that they resulted in a miscarriage of justice within the common form appeal provision in New South Wales, s 6(1) of the Criminal Appeal Act 1912 (NSW). The second is whether the trial miscarried on account of the incompetence of the appellant's counsel. If the answer to either question is in the affirmative, consideration must be given to the proviso to s 6(1) and whether, despite those errors, no substantial miscarriage of justice has actually occurred. It is only if that conclusion is reached that the appeal may be dismissed.

…

22. At some points in the course of his cross examination, the appellant was required by the Crown prosecutor to acknowledge that certain matters, of which he had given evidence in chief or which he had raised in answer to questions under cross examination, had not been put to C1 or C2 during their cross-examination by defence counsel. In the Court of Criminal Appeal eight such occasions were identified. On two of the latter occasions it was put to the appellant that he was making up his evidence in the course of cross examination.

23. The relevant exchanges may be summarised as follows:

(1)          The first matter concerned his evidence, given in chief, that C1 had an orgasm during oral sex which he performed on her. The appellant was asked by the Crown prosecutor if he had heard that fact being put by his counsel to C1 in cross examination. He said that he could not recall. Defence counsel objected at this point, but the trial judge dismissed it, observing that an answer had already been given.

(2)          It was put to the appellant that C2 had told him that she was a lesbian. He denied that was said and added that she had said she was bisexual. He was then asked whether he had heard that matter put to C2 at any stage. He agreed that it had not been put to her but pointed out that not only had she not said that she was a lesbian, she had also implied that she had been together sexually with an African man. Pressed further, the appellant agreed that C2 had not been asked in cross examination whether she was bisexual and agreed that she had not been challenged as to her statement to him that she was a lesbian. He added that "may be [sic] my barrister should have cross examined her better".

(3)          The Crown prosecutor put to the appellant that C2 showed no sexual interest in him. He responded by saying that he considered her kissing him and putting her tongue in his mouth to be quite sexual. He agreed that this matter had not been put to C2.

(4)          The Crown prosecutor put to the appellant that C2 had not been cross examined as to her having performed oral sex upon the appellant. In this respect the prosecutor was mistaken, as he subsequently realised. He apologised to the jury for having suggested this. But by this time, the prosecutor had put the question to the appellant four times and made the point that C2 had not had the opportunity to comment. The appellant incorrectly accepted that this was the case and further responded by implying that his barrister may have been negligent or that the appellant had had a limited opportunity to speak with him before the trial.

(5)          The appellant made similar comments when it was pointed out to him, and he agreed, that it had not been put to C2 that he had asked if he could ejaculate inside her and she had agreed. He said that "again" it should have been put by his barrister. He attempted to refer to notes that he had given to his barrister on the topic, but was confined by the trial judge to a "yes" or "no" answer to the question.

(6)          In the course of questioning as to the matter in (5) the appellant said that he believed that both he and C2 had an orgasm. He agreed that it had never been suggested to C2 that she had had an orgasm:

"Q. And you never heard any suggestion put to her that she had an orgasm, correct?

1. Correct
2. Were you essentially making your evidence up as you went along, Mr Hofer?"

(7)          This point was made again by the prosecutor in connection with the appellant's response to questions about the CCTV footage which showed C2 clearly in distress after the bus pulled away from the bus stop:

"Q. … you saw, didn't you and we all saw, [C2's] demeanour, a very, very short time after the bus pulled away didn't you?"

The appellant then suggested that C2's distress was connected with her "non official" boyfriend having heard her breathing heavily whilst the appellant and C2 were having consensual sex, the boyfriend having phoned her at that time. The prosecutor then asked:

"Q. I see. Mr Hofer, did you hear that put to [C2] at any stage?

1. No. It was not.
2. No it wasn't, was it. Are you just making things up as you go along Mr Hofer?
3. No I am not.
4. Are you simply giving evidence and doing the best you can to meet what can be objectively proven by the Crown case?"

(8)          The appellant denied that he had said to C2, when they first entered the bedroom, "Let's do it". In cross examination he sought to make the point that this was not the kind of language he would normally use. He said that he believed the police must have coached C2 and also C1 to say these words. It was some time before the appellant finally agreed that this allegation had not been put to C1 or C2 or any witness for the Crown.

The Crown's closing address

24. The closing address of the Crown followed the cross examination of the appellant. In discussing the appellant's evidence, the prosecutor drew to the attention of the jury two of the matters referred to above: the appellant's evidence that C1 may have had an orgasm and his evidence that C2 told him that she was bisexual. He pointed out to the jury that these matters had not been put to C1 or C2 for their comment. In the case of the latter evidence, he suggested that the jury would accept C2's evidence that she told him that she was a lesbian.

25. The trial judge made no mention of those parts of the appellant's cross examination referred to above. No directions were given as to what the jury was to make of the evidence or what, if any, inferences were to be drawn. No directions of this kind were sought by the Crown or defence counsel.

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30. The need for consideration to be given to the course to be taken when the rule is not observed is likely to arise more often in criminal proceedings. In modern civil proceedings witness statements for each party are exchanged before trial. As a consequence, there is less likelihood that matters which are to be relied upon will not be addressed in some way. Contrast criminal proceedings, where it is not uncommon for matters which have not been put to the appropriate Crown witness to emerge from the evidence of an accused person[9], including during the course of cross examination.

31. An obvious course which may be taken is to recall the witness so that the omission can be corrected. This may be preferable and may be undertaken without injustice, depending on the course the trial has taken. But a review of cases decided by the courts in New South Wales shows that the course sometimes taken by the prosecution is to cross examine the accused as to the omission. The cross examination undertaken is not limited to drawing the attention of the accused to the fact of the omission, so as to highlight the matter for the jury. It extends to the reason for the omission. The evident purpose of the cross examination is to impugn the credit of the accused by suggesting that the matter is of recent invention. As Gleeson CJ observed in R v Birks, it is one thing for the cross examiner to point to the unfairness to a witness who has not had the opportunity to comment, it is quite another to suggest that the result of a failure to observe the rule of practice is that a person should not be believed.

32. The reasoning behind a decision to cross examine the accused in pursuit of this purpose may readily be inferred. It commences with the fact that a matter is not put by defence counsel; it assumes that the reason for the omission is that counsel was unaware of the matter and that counsel was unaware because the accused had not given an account of it in his or her instructions. The conclusion reached is that the accused must now be making the evidence up.

33. In R v Manunta, King CJ observed that an examination of an accused person which proceeds by reference to there being but one reason why a matter has not been put to a witness is "fraught with peril". As his Honour there observed, there may be many explanations for the omission which do not reflect upon the credibility of the accused. His Honour gave as examples defence counsel misunderstanding the accused's instructions or where forensic pressures may have resulted in looseness in the framing of questions. To these may be added the possibility that defence counsel has chosen not to advance certain matters upon which he or she had instructions because they were unlikely to assist the defence.

34. Where there remains a number of possible explanations as to why a matter was not put to a witness, there is no proper basis for a line of questioning directed to impugning the credit of an accused. Except in the clearest of cases, where there are clear indications of recent invention, an accused person should not be subjected to this kind of questioning. The potential for prejudice to an accused is obvious.

35. Proceeding on the basis of a mere assumption as to lack of instructions is likely to be productive of further unfairness in the course of the cross examination. The assumption will inevitably lead to impermissible questions of the accused, put expressly or arising implicitly, as to the actual instructions he or she gave. An accused person faced with questioning of this kind is likely to feel obliged to attempt to explain by reference to the instructions he or she in fact gave when in reality the accused carries no such onus. Questioning of this kind may result in the need for counsel or the solicitor for the defence having to disclose those instructions. This is a circumstance which should not arise.

36. In most cases, the cross examination will have a dual purpose. It will be concerned with identifying unfairness to a Crown witness as well as seeking to have the accused's evidence disbelieved. Where it has the sole purpose of impugning the credit of the accused it will be necessary for leave to be sought from the trial judge[=. The discussion which will inevitably take place on such an application will point up the risks associated with the course proposed.

37. A trial judge should be alert to the problems associated with cross examination. They should be raised with counsel at an early point. Where the cross examination has occurred, it will be necessary for the trial judge to warn the jury about any assumption made by the cross examiner, to draw attention to the possible reasons why the matter has not been put and to direct the jury as to whether any inferences are available.

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45. It cannot be inferred that the jury would not attach any importance to what arose from the cross examination. There were a number of matters which were identified as not having been put to C1 or C2. The persistent requirement that the appellant acknowledge that fact was likely to have suggested to the jury that questions were being asked about more than what defence counsel should have done by way of fairness to the complainants. The questions clearly required the appellant to provide some sort of explanation, a view which would have been confirmed when he attempted to do so. The purpose of the line of questioning, that the appellant should not be believed as to these accounts, was put beyond doubt when, in relation to the sixth and seventh matters, the prosecutor alleged that the appellant had made up his evidence in the course of the cross examination. It was not necessary for the prosecution to go further than it did in address in pointing out the process of reasoning in which the jury might engage to cause unfair prejudice to the appellant. The prosecutor had effectively invited the jury to reject the appellant's evidence as not credible.

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65. To these undisputed aspects of the evidence noted by Fagan J may be added the truly extraordinary circumstance that the appellant's assaults on the complainants occurred on consecutive nights upon young women who had responded to the appellant's offer of accommodation. The extraordinary circumstance that the incidents in question occurred on consecutive nights is significant, not because of coincidence or tendency, but because of what it reveals of the appellant's modus operandi and the intention which informed his plans. On two nights in a row, with different young women, the appellant pursued a course of conduct that was plainly focused upon having sex with them. The evident purpose of the appellant's plan was to reduce each complainant's agency by isolating her in his house, where, affected by alcohol, she would be at his mercy by reason of his height and weight. Plying each complainant with alcohol before bringing her back to his house was also part of that plan, which had nothing to do with the search for a possible housemate.
66. It is an affront to common sense to suggest that the appellant, in fabricating the pretext of offering to share his house, was acting otherwise than with the intention to lure young women back to his house and, having plied them with alcohol before doing so, to have sex with them irrespective of their wishes. There is no room here for reasonable doubt that in the case of each complainant the sexual assaults which the appellant perpetrated were planned in advance and were to be executed without regard to the wishes of the complainants.
67. It should be noted that there is an obvious reason why defence counsel refrained from putting to C1 and C2 those aspects of the appellant's evidence that were said by the Crown to be matters of recent invention. As noted above, defence counsel identified that reason in his evidence before the Court of Criminal Appeal. He refrained from putting these matters to the complainants because he thought that these matters "held a high risk of actually setting the jury against Mr Hofer".

68. Counsel's appreciation, both of the irrelevance of the evidence in question to the issues in the case, and the likely adverse effect that the appellant's evidence would have upon the jury as the tribunal of fact, was plainly correct. The appellant's attempt to present his evening with each complainant as "a date" can be seen as a fabrication that is of a piece with the fabrication of his advertisement for a housemate. Any reasonable tribunal would have regarded this evidence as bordering on fantasy.

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77. The Crown's submissions in relation to the application of the proviso should be accepted. The appellant's conviction did not involve a substantial miscarriage of justice within the meaning of the proviso. The Court of Criminal Appeal was right to dismiss the appeal.

78. The appeal to this Court should be dismissed.

Gageler J (the cross examination on the breach of Browne v Dunn was impermissible, but applied the proviso to dismiss the appeal)

80. Kiefel CJ, Keane and Gleeson JJ find in the present case that "there was a miscarriage of justice" on a ground that was not "the wrong decision of any question of law". Their Honours nevertheless conclude that the appeal against conviction was properly dismissed in the application of the proviso because "no substantial miscarriage of justice has actually occurred". I agree with that finding and that conclusion, and broadly with the reasons expressed by their Honours.

81. My purpose in adding these reasons is squarely to address the content of, and relationship between, the "miscarriage of justice" ground and the "no substantial miscarriage of justice has actually occurred" proviso in a manner that lays to rest reservations I have repeatedly expressed in the past about aspects of the reasoning in Weiss v The Queen.

Gordon J (would allow the appeal)

125. I agree that there was a "miscarriage of justice" at the trial of the appellant. I do not agree that this Court can conclude "no substantial miscarriage of justice has actually occurred". That is, I do not agree that the proviso to s 6(1) of the Criminal Appeal Act 1912 (NSW) applies.

A miscarriage of justice

126. I agree with Kiefel CJ, Keane and Gleeson JJ that questions asked of the appellant in cross examination by the prosecutor departed from the standards of a trial to which the appellant was entitled. The unfairness to the appellant in being asked these questions was emphasised when he was not permitted to explain why he thought matters had not been put to the complainants and other Crown witnesses. The unfairness was compounded by defence counsel saying as little as he did about those matters and by the trial judge not intervening to prevent the questioning, not seeking to remedy the error when it first arose and not telling the jury that there may be many reasons why a matter was not raised in cross examination of a witness.

127. That events of the kind that happened at the appellant's trial can constitute a miscarriage of justice is well established. The analysis of Garling J in Llewellyn v The Queen[170] is right. It follows that the appeal should be allowed unless the Court "considers that no substantial miscarriage of justice has actually occurred".

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134. There were two issues in this case. First, what acts of sexual intercourse[182] did the appellant commit? The appellant denied the acts alleged in counts 1, 6, 7 and 8, against the first complainant. Second, did the Crown establish beyond reasonable doubt that the appellant knew that the complainants were not consenting or that, realising the possibility that each complainant was not, he went ahead regardless? The appellant swore he believed they were consenting. The jury acquitted the appellant on counts 1 and 8.

135. I do not accept that the Court can conclude from the written record made available to it that the evidence properly admitted at trial proved, beyond reasonable doubt, the appellant's guilt of the offences on which the jury returned its verdicts of guilt[183]. That is, not having seen and heard the evidence given at trial by the complainants and the appellant, the Court cannot say that the evidence established beyond reasonable doubt that the appellant engaged in the acts which he denied or that, despite his evidence that he believed the complainants consented, he either knew that the complainants did not consent or, realising that it was possible that the complainants were not consenting, went ahead regardless.

136. And, where, as here, it was for the prosecution to establish the accused's state of mind and the accused chose to give evidence about his state of mind, it is not a matter of choosing which witness to believe. As this Court made clear in De Silva v The Queen[184], "the issue is always whether the prosecution has proved the elements of the offence beyond reasonable doubt".

137. Put in different terms, the conclusion from the written record that the appellant was guilty beyond reasonable doubt of the offences on which the jury returned its verdicts of guilt is not open in this case because it could be reached only by assessing the whole of the admissible evidence at trial[185] – in particular, the evidence the complainants gave and the evidence the appellant gave. The credibility of those witnesses (the complainants and the appellant) was and had to be an important part of that assessment[186]. The evidence of the appellant, particularly his evidence about his state of mind, cannot be dismissed from consideration as contrary to some objective fact.

138. Thus, as the Crown properly accepted in argument in this Court, if the Court concluded that "the jury must have been relevantly misled by the impugned questioning in a material matter ... then there may be little scope for the proviso to operate". If there was an error of that kind, the Crown did not seek to discharge the onus of establishing, or satisfying the Court of, the appellant's guilt beyond reasonable doubt; in addressing the proviso, the Crown did not seek to show that an error of that kind would have had no significance.