Closings

The Court (Green CJ, Neasey and Everett JJ)

At 44 and 45

Frederick John McCullough was on 25th June, 1981, convicted at Burnie Criminal Sittings before Cosgrove J. of murdering Owen Adcock contrary to the Criminal Code, s. 158. He appealed against his conviction on the grounds inter alia:

"1. The trial judge erred in law in that he failed to direct the jury that if they were satisfied that the appellant acted in self-defence but they took the view that the force he used was excessive, then they should find the appellant not guilty of murder but guilty of manslaughter.

"7. The trial judge erred in law in that he failed to adequately direct the jury on the issue of intoxication.

"8. The trial judge erred in law in that he failed to adequately direct the jury that the test to be applied to the question of reasonableness of the appellant's belief in self-defence is a subjective test and not an objective test.

"10. The learned trial judge erred in law in that he permitted Counsel for the Crown to:

(a) comment that the appellant 'for his own petty reasons took another human life like swatting a fly';

(b) comment that the appellant was a 'cold blooded murderer who is prepared to lie to save himself';

(c) comment that the appellant had 'as much need to protect himself from Adcock as Peter  Sutcliffe had to protect himself from his female victims in England.'"

At 54

Counsel for the applicant, without objection, also relied upon passages in the address by counsel for the Crown other than those specified in this ground. Although we have considered them in relation to the whole address, the passages in Crown counsel's address to the jury to which we have paid particular attention are as follows…

At 57

That passage was cited with approval by W. B. Campbell J. sitting as a member of the Court of Criminal Appeal in Reg. v. Hay and Lindsay [1968] Qd. R.459. However, it should also be said that the observance of those canons of conduct is not incompatible with the adoption of an advocate's role. Counsel for the Crown is obliged to put the Crown case to the jury and, when appropriate, he is entitled to firmly and vigorously urge the Crown view about a particular issue and to test and, if necessary, to attack that advanced on behalf of the accused. But he must always do so temperately and with restraint, bearing constantly in mind that his primary function is to aid in the attainment of justice, not the securing of convictions. As the New Zealand Court of Appeal said in Reg. v. Roulston [1976]2 N.Z.L.R. 644, at p. 654…

At 58 and 59

In our view, in making the comments which we have set out above, counsel for the Crown stepped well beyond the bounds of what was reasonably necessary for the proper conduct of the case for the Crown. We accept that as the issue of self-defence was before the jury it was appropriate for counsel for the Crown to comment upon the applicant's state of mind and the circumstances surrounding the shooting to a greater extent than would otherwise have been the case. However, the comments made by counsel which we have set out above went a good deal further than was necessary for that purpose. His emphasis upon the sanctity of life and the horrible nature of the crime of murder, together with his characterisation of the applicant as a "despicable" and "disgusting" man who felt no remorse and who was prepared to kill someone as another person might "swat a fly" or "flick out a match" were calculated to prejudice the jury against the accused by arousing feelings of disgust and revulsion towards him. Those feelings were likely to have been reinforced by the feelings of sympathy towards the deceased and his widow which counsel sought to evoke. Further, in the passage marked "G" the reference "to Peter Sutcliffe (whom we were told, without objection, and we judicially notice, was a person known as "the Yorkshire ripper" whose arrest, trial and conviction for murder had received a good deal of publicity during the months immediately preceding the applicant's trial) together with the implied suggestion that the applicant was the sort of person who if he were not restrained by the law, might be responsible for having "half the community wiped out", were likely to engender feelings of fear and apprehension in the jury.

The Court (Hunt, Enderby and Sharpe JJ)

At 93

The appellant (Roy Peter Zorad) was found guilty by a jury in the District Court at Gosford of one charge of robbery with striking and one charge of supplying a prohibited drug (cannabis). Walsh DCJ imposed a sentence of twelve years penal servitude on the first charge and seven years imprisonment on the second, to be served concurrently, and he fixed a non-parole period of six and a half years.

At 94

The appellant appeared at the trial unrepresented. His case, so far as it can be ascertained, was that he had attempted to purchase only $500 worth of cannabis, and that it was for his own use, not for the purpose of supply. He was subsequently at Kelly's flat only under duress, and he had no control over what went on there. He played no part in the robbery with striking. He had made no admission to the police, and had been handcuffed by them to a chair, with his hands behind him, until he was prepared to answer their questions.

Such issues should not have been difficult to try. But the trial was made extremely difficult for the judge because of the decision by the appellant to appear unrepresented. No reason for that decision was stated to the judge. Although an invitation was extended by this Court to his counsel to explain why that decision had been taken, no explanation was given. The appellant has had a long experience of the criminal justice system. In these days of almost universal legal aid (at the trial stage), there is therefore available the clear inference (which we draw) that he elected to dispense with legally aided professional representation at the trial in the hope of obtaining tactical advantages.

The difficulties which arose in the conduct of the trial by an unrepresented accused unfortunately led to a number of errors being made by the judge. Many of those errors (taken individually) led to no miscarriage of justice, but the question which arises in the end is whether the cumulative effect of all the errors made has been such as to have denied the appellant a fair trial.

The first ground of appeal complains that the judge wrongly permitted the Crown Prosecutor to make a closing address to the jury. Appeal has been made to the decisions of the Victorian Full Court in R v Ginies [1972] VR 394 at 401-402, and of Bray CJ in R v Turner (1977) 16 SASR 444 at 446, that the Crown is not permitted to address where the accused is unrepresented, and that the trial judge has no discretion to relax that absolute rule. This Court, in R v E J Smith [1982] 2 NSWLR 608 at 615-616, has declined to follow those decisions. There is a practice in New South Wales whereby the Crown does not address in such circumstances, but it is not a rule of practice, still less is it a rule of law (ibid at 616).

We see no reason to depart from this Court's decision in Smith's Case. The practice that the Crown Prosecutor does not make a closing address where the accused is unrepresented appears originally to have arisen because it was thought to be unfair to an accused who could not afford representation that he should be pitted against a trained advocate in the final stages of the trial. With the ready availability of legal aid at the trial stage, however, there must be at least some question whether such an approach continues to be appropriate. There is an increasing tendency of accused persons with a long experience of the criminal justice system electing to dispense with legally aided professional representation in order to obtain certain tactical advantages, but in our view the practice needs to be reconsidered whatever the purpose may have been of the election to appear unrepresented.

At 95

In every case, the decision whether the Crown Prosecutor should exercise his right to make a closing address is for the trial judge to make in the exercise of his discretion. The fact that the transcript may be silent upon the subject does not mean that the judge did not turn his mind to it: cf R v Cartwright (Court of Criminal Appeal, 22 July 1983, unreported at 2). There has been nothing shown by the appellant in the present case to suggest that the judge failed to exercise that discretion or that he did so wrongly. This ground of appeal is rejected.

Carruthers AJ

1. Mario Anthony Rugari appeals from his conviction on 4 June 1999 on one count of maliciously wounding Susan Trevor on 31 October 1997 at Miranda in this State contrary to s 35(a) of the Crimes Act 1900, as amended.

2. His Honour, Acting Judge Ford QC, who presided over the trial, sentenced the appellant on 4 June 1999 to imprisonment for 4 years from 25 March 1999 and expiring on 24 March 2003. His Honour fixed a non-parole period of 3 years commencing on 25 March 1999 and expiring on 24 March 2002. In the event that the appeal against his conviction is dismissed, the appellant seeks leave to appeal against sentence. The Notice of Appeal was filed on 24 June 1999. Amended Grounds of Appeal were filed on 27 February 2001.

3. The two original grounds for appeal were firstly, his Honour erred in failing to discharge the jury following the address of the Crown Prosecutor. Secondly, his Honour erred in that he failed to give appropriate directions to the jury to cure inappropriate and unfair comments made by the Crown Prosecutor in his address to the jury. The Amended Grounds of Appeal merely express these Grounds in a different form.

…

19. The Crown Prosecutor addressed the jury immediately after the close of the evidence. At the conclusion of that address, Ms Cox, the appellant's counsel, applied to his Honour to discharge the jury because of the prejudice which she claimed flowed from the Crown's address. His Honour refused the application without giving reasons therefor and, in fact, did not direct the jury in his summing up in relation to any of the remarks made by the Crown Prosecutor during the course of his address. No redirection was sought in this regard by Ms Cox.

…

32. It was also submitted on behalf of the appellant that the whole tenor of the Crown's address was intemperate, inflammatory, and designed to prejudice the appellant.

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40. As I have indicated, immediately the Prosecutor concluded his address appellant's counsel sought a discharge of the jury, detailing essentially the matters which are now the subject of the grounds of appeal. Ms Cox made a careful summary of the matters to which she objected in the Crown address and set those matters out for the consideration of the trial judge. His Honour responded, "Yes, I have no intention of discharging the jury". Ms Cox then addressed the jury, and his Honour summed-up.

41. Bearing in mind that the legal issues in this case were lacking in complexity, his Honour's charge to the jury was predominantly concerned with an overview of the evidence. His Honour, as I read the summing-up, made no reference to the submissions which were made by counsel for the Crown or the submissions which were made by counsel for the appellant. The “competing versions” to which reference has been made were to be found by reference to the summary of the evidence.

42. Counsel for the appellant at the trial did not seek any directions from his Honour, at the conclusion of the summing-up, directed to rectifying, if possible, by the exercise of his Honour's authority, the aspects of the Prosecutor's address to which she had earlier made strenuous objection. Before this Court, Mr Grogan of counsel for the Crown submitted that in all the circumstances this was an omission on the part of counsel for the appellant, albeit he fairly conceded that there was an alternative explanation available for her declining to seek any redirection. In my view, Ms Cox was placed in a very difficult situation. She had made a detailed application for a discharge of the jury which, it is apparent, she was entitled to. His Honour elected to make no reference to the complaints which she had raised during the course of his summing-up and it is understandable that she formed the view that in all the circumstances the better course would be to leave the matter as it rested. This was clearly a tactical decision which was fairly and reasonably open to her, and I do not think, with respect, that this Court should take that into consideration as, in any respect, undermining the basis of the present appeal.

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53. Regrettably, in the instant case, however, the Crown Prosecutor exceeded in his address the reasonable restraints which were imposed upon him.

54. Each of the complaints made in the appellant's submissions, which were effectively a replication of the points made by counsel for the appellant at the trial have, in my opinion, been made out.

55. It is convenient briefly to summarise the salient points which lead inevitably, in my opinion, to the conclusion this Court should quash the appellant’s conviction on the grounds that the Crown Prosecutor's address could have led to a possible miscarriage of justice.

56. Firstly, it was completely inappropriate for the Crown to rely upon the absence of any cross-examination of the complainant or the absence of relevant cross-examination of Ms Shirley Mullane, to ask the jury to infer that they have always given consistent versions. The Crown Prosecutor was asking the jury effectively to conclude that the statements which these Crown witnesses made to the police contained material which was consistent with the evidence which they had given in respect of crucial aspects of the Crown case. Of itself, that was a clear breach of the appropriate conduct expected of a Prosecutor and of the principles enunciated by Gleeson CJ in Birks' case. However, it was exacerbated by the fact that, having made the submission, the Crown Prosecutor unfavourably compared the evidence of the appellant's son Tony, which he contended contained an element of inconsistency absent from the consistency of the evidence of the two crucial witnesses for the Crown.

57. Further, the reliance by the Crown Prosecutor on the absence of any cross-examination directed to the complainant to establish that she had some type of psychiatric or psychological condition, which included self-mutilation, was again completely inappropriate. There was absolutely no evidence of a psychiatric nature before the Court or any other nature to the effect that the complainant may have suffered from a tendency towards self-mutilation. Thus to seek to gain support for the Crown case by referring to the fact that no cross-examination along these lines was directed to the complainant was inappropriate. Indeed, it involved a complete reversal of the onus of proof. As I indicated. It was not the responsibility of the accused to raise a reasonable doubt, it was the responsibility of the Crown to establish beyond reasonable doubt in the totality of the evidence that the accused was guilty. There was unfortunately more than one occasion on which the Crown Prosecutor sought to invert the onus of proof, as has been made clear by the emphasised passages which I have already quoted, and there is no need for me to repeat them.

58. Further, it was quite inappropriate for the Prosecutor to condemn the manner in which counsel for the appellant conducted her cross-examination of the complainant. Anyone experienced with litigation would have an appreciation that the cross-examination of the complainant would necessarily be charged with difficulty. If trial practice permitted one counsel criticising the manner in which the other counsel conducted his or her cross-examination, then the possibility of the jury's attention being diverted from the critical issues in the case would be significant indeed.

59. Similarly, it was inappropriate for the Crown Prosecutor to categorise the defence raised by the accused as a “cynical defence”.

60. There is one further matter which, although it was not raised in submissions, warrants some comment. At an early stage of his address the Crown Prosecutor said referring to matters that were part of the case raised by the appellant: -

"I know we went to clubs: I know I went to the grave side of my daughter with her; I know I went to look at houses, but, you know, we weren't boyfriend and girlfriend. Sounds like a girlfriend to me...". [My emphasis].

That phrase "sounds like a girlfriend to me" involved an expression by the Prosecutor to the jury of his own view of the quality of the evidence given by the appellant. It is not appropriate for counsel, whether they be for the defence or for the Crown, to express their own views about the evidence, that is a matter for the tribunal of fact, particularly so where that tribunal is a jury.

Spigleman CJ

67. I agree with the orders proposed by Acting Justice Carruthers, and his reasons.

Sperling J

68. I also agree.

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."

…

Grounds 2 and 3: Browne v Dunn Issues.

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.

…

66. The appellant makes a number of complaints about these comments.

• First, the Crown, in describing his surprise at the accused's evidence, and that of his counsel, was giving evidence. He should not have done so.

• Secondly, in purporting to state the "law" in respect of the rule in Browne v Dunn the Crown prosecutor in fact misstated it. His explanation, according to the appellant, was "dangerously incomplete and misleading".

67 In my view both complaints were warranted. It was inappropriate for the Crown prosecutor to have intruded his own reaction to the accused's evidence. It was certainly inappropriate and highly prejudicial that he should have attributed a reaction to counsel for Mr Liristis ("she was just as surprised as I was at some of his answers"). No objection was made by Mr Liristis' counsel. Nothing was said by the trial Judge. In my view, with respect, the trial Judge should have asked the Crown to withdraw these remarks (unless the accused preferred that nothing further be said, lest the matter be made worse).

…

88. Here, the Crown's submission, in the same way, ruled out error on the part of counsel ("She would not be so stupid."). It was a matter "that any first year law student knows". Whilst his Honour, in his directions, did not comment upon the competence of counsel, he failed to sound the note of caution and circumspection required by Manunta and Birks.

89. The Crown on this appeal (not being the Crown who appeared at the trial) acknowledged that the direction did not conform with these authorities. However, no application had been made by counsel for a redirection. Rule 4 applies. I believe, nonetheless, that the matter was of such importance, that leave should be given. In my view ground 3 has been made out.

Ground 4: Improper comments in Crown's final address.

90. Complaint was made by the appellant concerning the language employed by the prosecutor in his closing address. The submissions identified a number of passages, including the following: (T442 11-17)

"It's really pathetic in some ways that you are - one wonders is the jury really being asked to accept what you have been asked from the accused? Look, am I really hearing this? I pinch myself to see whether my senses are telling me this is what the accused is saying whether he really thinks that you are going to accept this version of his."

…

94. However, to my mind, the prosecutor's comments were inappropriate for a number of reasons. First, the description of the accused's evidence as "pathetic" went too far in my view. One may doubt that it met the standard identified by the Crown on this appeal. That standard was expressed by the Court of Criminal Appeal in Tasmania in McCullough (1982) 6 A Crim R 274 in these words: (at 285)

"Counsel for the Crown is obliged to put the Crown case to the jury and, when appropriate, he is entitled to firmly and vigorously urge the Crown view about a particular issue and to test and, if necessary, to attack that advanced on behalf of the accused. But he must always do so temperately and with restraint, bearing constantly in mind that his primary function is to aid in the attainment of justice, not the securing of convictions."

95. Secondly, counsel for the Crown in these comments, again inappropriately, provided his own reaction to the evidence given by the accused. His reaction was irrelevant. He was appearing as an advocate, not as a witness.

…

103. It is difficult to describe these remarks as other than extraordinary. First, they dealt with an exhibit which had, with the Crown's consent, been withdrawn. It was no longer in evidence. It ought not to have been the subject of comment. Secondly, the Crown reasserted that the document was a forgery. The jury was invited to draw that inference, in part, from the fact that the accused no longer relied upon it. Thirdly, the Crown prosecutor provided the jury with yet another reason why they should be satisfied that it was a forgery. He had not "made up" the suggestion. It was a serious allegation which he had put, having first obtained instructions.

Hislop J

156. I agree with Kirby J.

McClellan CJ

1. The appellant was convicted of maliciously wounding Jim Murray with intent to inflict grievous bodily harm contrary to s 33 of the Crimes Act 1900. He appeals against that conviction. He raises one ground of appeal being that the Crown Prosecutor’s final address to the jury gave rise to a miscarriage of justice.

…

4. The principles relevant to this appeal may be summarised as follows:

• A prosecutor is required to act in fairness and detachment and with the objective of establishing the whole truth (Whitehorn at 663).
• Although the Crown is entitled to put the Crown case firmly and vigorously this must always be done fairly, temperately and with detachment and restraint, bearing in mind that the prosecutor’s function is to aid the attainment of justice, not the securing of convictions (see Liristis at [94]).
• Whether or not the prosecutor has acted with the relevant degree of fairness and detachment may depend upon the atmosphere of a particular trial (see McCullough at 286).
• In considering the question of fairness it is necessary to keep in mind that a criminal trial is of an adversarial nature (see Rugari at [52]; Libke [71] and [72]).
• When complaint is made it is necessary to consider whether the prosecutor’s conduct was such as to distract the jury from rational consideration of the case of the Crown and the defence (see Gonzales at [100]). It is wrong for a Crown prosecutor to become so much the advocate that he or she is fighting for a conviction and to quite impermissibly embark upon a course of conduct calculated to persuade a jury of a point of view by inspiring prejudice or emotion (see R v Roulston (1976) 2 NZLR 644 at 354).

5. In Livermore the court identified a number of matters in a Crown prosecutor’s address which could lead to a miscarriage of justice (at [31]):

(i) A submission to the jury based upon material which is not in evidence.

(ii) Intemperate or inflammatory comments, tending to arouse prejudice or emotion in the jury.

(iii) Comments which belittle or ridicule any part of an accused’s case.

(iv) Impugning the credit of a Crown witness, where the witness was not afforded the opportunity of responding to an attack upon their credit.

(v) Conveying to the jury the Crown Prosecutor’s personal opinions.

…

Did the Crown Prosecutor convey personal opinions or views about the evidence?

24. On a number of occasions the Crown Prosecutor used expressions such as “I suggest”, “I actually think”, “That suggested to me” and “It occurred to me.” Although on occasions this manner of speaking was of little, if any, consequence that was not always the case.

25. On one occasion the prosecutor said “It occurred to me that most of the blood in that whole place was immediately outside the door of number 64.” The prosecutor should not have advanced his personal view in these terms. However, because the objective evidence was plain and the matter not in dispute this choice of language was not of significance.

26. The use of the expressions “I actually think” and “that suggested to me” were used in relation to a discussion about the position of Mr Murray on the landing when he was attacked. Again, as I have indicated the objective evidence resolved this issue. The blood stains made plain that Mr Murray had been stabbed in the vicinity of the appellant’s door.

27. Although the prosecutor introduced his personal views into the matter he did so in the manner which was different from the prosecutor’s conduct in Livermore. In that case the prosecutor effectively invited the jury to conclude that they were “slow” if they did not agree with him. In the present case, although the prosecutor injected his personal view, with which, although this was unlikely, the jury may not have agreed, any disagreement would not carry with it an inference as to the jury’s attitude to the prosecutor himself.

28. Although the prosecutor made the offending remarks he also reminded the jury that the case turned upon their view of the evidence of Mr Murray. He told them that they were to judge the facts for themselves and that all he was doing was placing arguments before them. The judge reinforced the position when she reminded the jury that counsel’s arguments were not evidence and that they were entitled to take a different approach to that which counsel had submitted.

29. In all the circumstances, although the prosecutor should not have spoken as he did, I do not believe it has led to a miscarriage of justice.

…

Did the Crown Prosecutor’s address belittle and disparage the appellant’s case?

43. The appellant complained that the prosecutor used the word “nonsense” on two occasions in his address to the jury. On the first occasion he said:

“You heard about the alleged ferocity of the attack that Mr Murray launched upon the accused when he opened the door? Do you really think that such a big man, all 6 foot 1 of him do you really think he wouldn’t have been able to get in at least one stab with the knife that he was carrying in pants [sic], in his paper scabbard? Another reason I would suggest to you to conclude that this whole allegation Mr Murray was carrying a knife was nonsense …..”

44. Later the prosecutor said:

“… I say that it’s just nonsense that any of this had anything to do with self-defence and I’ll say nothing more about it.”

45. Although the prosecutor expressed himself in strong language I am not persuaded that in the circumstances of this case it was unacceptable. The authorities make plain that the prosecutor was entitled to firmly and vigorously agitate the Crown case. The defence position was not belittled by expressions such as a “cynical defence” (Rugari). Witnesses were not described as idiots or the defence case as being “silly” or “bizarre” or akin to a plot from “Desperate Housewives” (Livermore). In Gonzales this Court accepted, that in the circumstances of that case, it was not inappropriate for the prosecutor to describe the appellant as being “pathetic” and “absolutely pathetic”.

46. Whether or not the language used by a Crown Prosecutor breaches the obligation of temperateness and restraint will depend upon the circumstances of each case. The issues in this case were vigorously debated and Mr Murray cross-examined with some force. Although the prosecutor expressed himself in strong language I do not believe it was unacceptable in the circumstances. It did not occasion a miscarriage of justice.

47. The trial judge was careful to direct the jury that the Crown case rested principally on the evidence of Mr Murray. The jury were told to consider that evidence carefully and determine “whether it is reliable, that is, whether it is an honest and accurate account … it is for you to determine, whether you are satisfied beyond reasonable doubt that Mr Murray is a reliable witness.” They were further reminded that “it is not a matter of choosing between the versions of the accused and Mr Murray” and that their task was to “determine whether the Crown has proved its case beyond reasonable doubt.”

48 In my opinion the ground of appeal agitated fails and the appeal should be dismissed.

Barr J

50. I agree with McClellan CJ at CL.

Price J

51. I agree with McClellan CJ at CL.

Johnson J

1. The Crown has foreshadowed provision to the jury, during the Crown closing address, of a list of references by topic to the record of interview of each Accused (MFI57). Objection is taken by Mr Molomby SC, for Manju Sam, to the provision of this list to the jury. No objection is made by Ms Davenport SC, for Thomas Sam, in this respect.

2. Following submissions on this issue on 28 May 2009 (T877-880), I ruled that the Crown would be permitted to provide such a list to the jury concerning each Accused. These are my reasons for that ruling.

…

9. It has been said that a criminal trial in Australia is essentially an oral process: Gately v The Queen [2007] HCA 55; [2007] 232 CLR 208 at 235 [88]. Nevertheless, the Courts have recognised the assistance which a jury may derive from the provision of appropriate summary documents, including charts and chronologies: Smith v The Queen [1970] HCA 48; (1970) 121 CLR 572 at 577; Butera v Director of Public Prosecutions (Vic) [1987] HCA 58; [1987] 164 CLR 180 at 190; R (Cth) v Petroulias (No. 34) [2007] NSWSC 1462 at [64]. Where objection has been taken to the provision of a chronology to a jury upon the basis that it is likely to be selective and thus prejudicial, it has been observed that it is important not to underestimate the intelligence and commonsense of juries in assessing whether such material is likely to have an undue or inappropriate impact upon the jury’s thought processes: R v Collins (1986) 44 SASR 214 at 249; R (Cth) v Petroulias (No. 34) at [65], [73].

10. The question whether the Crown is permitted to provide the list of topics to the jury is a discretionary matter for the trial Judge. I do not think s.48(1)(e)(ii) Evidence Act 1995 bears upon the question as the issue is not one of admissibility of a summary document in place of the primary document. Rather, the question is whether the Crown ought be permitted to provide the list to the jury as an aide memoire for the purpose of closing submissions.

…

14. I am satisfied that the Crown document will assist the jury in its deliberations, and that the jury would utilise it in an intelligent and commonsense way. I am conscious of the responsibility of the trial Judge to exercise discretion to ensure that such a document does not give rise to unfairness to the Accused: R (Cth) v Petroulias (No. 34) at [73]. I am satisfied that the provision of this document to the jury will not operate in a manner which is unfair to the Accused.

Grove J

1. The appellants GDD (a male) and NJC (a female) were jointly tried and convicted before King DCJ and a jury at Sydney District Court on a count of aggravated sexual assault in company contrary to s 61J (1) of the Crimes Act 1900. They were acquitted by the jury on a count charging the same conduct with an additional ingredient of deprivation of liberty, charged contrary to 61JA (1) of that Act. They were each sentenced to a term of imprisonment.

…

21. Grounds 1, 2 and 3 in GDD’s Notice of Appeal and ground 1 in NJC’s Notice of Appeal raise complaints which can be dealt with together. The grounds relate to the conduct of the case by the prosecutor. A convenient summary of the applicable law appeared in the judgment of McClellan CJ at CL (Barr and Price JJ agreeing) in Causevic v R [2008] NSWCCA 238…

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29. I turn to matters which were the subject of complaint.

30. The Crown Prosecutor said:

“We know from the evidence from the other young ladies who came to give evidence that people regularly went to this unit and hung out on these two mattresses. This idea they never had visitors – or sorry, rarely, time to time had visitors doesn’t fit in with the bits and pieces of evidence you’ve heard from these other witnesses.”

31. There was, as conceded in the appeal, no evidential basis for the Crown’s submission.

32. His Honour responded to the complaint and the transcript of his summing up reads:

“(Now for counsel’s benefit, p411). The Crown Prosecutor said this to you, at line 6, ‘We know from the evidence from the other young ladies who came to give evidence that people readily went to this unit and hung out on these two mattresses.’ Well the only evidence in this trial of other persons or young ladies hanging out at those premises was from those witnesses called during the trial. At the most you heard some evidence of I think two, it may have been three, but perhaps only two occasions when other persons went to those premises. There was no evidence that people regularly went to the unit and hung out on the two mattresses.”

33. What the Crown Prosecutor said was effectively designed to contradict testimony by GDD that not many people came to the flat and that for most of the time he and NJC were alone there. An adequate cure of the mis-statement by the prosecutor should have referred to its inability to make that contradiction.

34. There was no evidence of any injury to GDD which may have occurred as a result of resistance by LAC to his having intercourse with her. The Crown Prosecutor was apparently seeking to counter what she anticipated might be made of the circumstance that the medical examiner found no significant bruises on LAC. An invitation to the jury to speculate about injury to GDD should not have been made. It should be examined in the context where the prosecutor said:

“There is no suggestion that (GDD) was hitting her about the face, or that (GDD) was punching her. He was pinning her down. And I particular ask the females on the jury to – from your life experience appreciate how much stronger men are than women, let alone a 28 year old man and an 18 year old girl. If I guy wants to pin you down he can pin you down. He doesn’t have to give you a black eye or bruises all over you to be pinned down. So, as the doctor said, there can be occasions where people are raped and there are no marks on them. There may be some marks on (GDD) from being kicked. We don’t know about that. Kicked in the struggle. He might’ve got a few bruises from her efforts but he doesn’t have to put much force to pin her down. She’s already sitting on it, he’s pushing her down. And once a guy’s on top of you he’s on top of you. You’ve got Buckley’s of getting away. And I ask you from your own life experience – I’m not suggesting anyone’s been raped or anything, but just mucking around when you’re a kid with boys. They’re impossibly strong and let alone when an 18 year old versus a 28 year old.”

35. This mis-statement was the subject of express complaint but his Honour’s response was to observe, “I frankly can’t see the jury making anything of it.”

36. It is true, as was submitted in the appeal, that there was no specific request for a direction. It was submitted that it should be concluded that counsel accepted that there was nothing to be gained from drawing further attention to the matter. That suggestion ignores that a dilemma had been created by the prosecutor by suggesting fact finding by the jury which was not based upon evidence. A correction was required.

37. I would add a further comment, although it was not the subject of complaint, but I would have some reservation about the propriety of an invitation to a limited group of the jurors, designated by gender, to draw particular inferences in matters pertaining to their fact finding function. Of course, jurors bring their individual characteristics and experiences for use in their task but it is not the role of counsel to urge selective deliberation.

38. Objection was taken to the Crown Prosecutor’s description of the defence case as portraying LAC as “a sexual aggressor”. The first time the expression was used it was defined as referring to LAC being the one who asked for sex. To the extent that a somewhat strong word was used to mean an initiator, it would not raise a matter for concern. However, references to the defence seeking to paint LAC as an aggressor were repeated. The Crown Prosecutor continued:

“.....and we are meant to accept that she’s somehow sexually attracted to (GDD) and needs to learn all – she’s a sexual aggressor.”

39. Those remarks do not accurately summarize the evidence. GDD’s evidence was that on the occasion LAC simply asked for sex after “flashing” herself. Insofar as the matter was explored, it was n

Further, the appellants contended that the remarks above quoted amounted to a belittling or ridiculing of the defence case. This is precisely a matter recognized in Livermore as capable of leading to miscarriage. Following descriptions of the defence seeking to point to LAC as an “aggressor” the Crown Prosecutor turned to the issue of consent. She said:

“And whether you think she’s the world’s greatest actress or that she really, really was raped and she did not consent.

Not consenting is enough, but she honestly believes that there are going to be photos of her and her little sister distributed on the Net if she doesn’t agree. It’s enough that she believes if she doesn’t consent that James is going to be bashed. If it’s through threats and intimidation that she agreed to sex that would be enough for there being no consent. But in this case we say not only that, on top of those two matters, which we already know about from the two Megans and also the guy from Roselands Shopping Centre, on top of that we have physical force being used and a demand that sex occur.”

40. The evidence about the threat to the boyfriend in detention and the distribution of embarrassing photographs was not admitted to provide evidence of lack of consent to the act of intercourse and related to demonstrating pressure by NJC for LAC to accompany her to the flat. To suggest that this evidence could be used by the jury in their determination of whether or not there was a lack of consent was impermissible.

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44. The conveyance of personal opinions by a prosecutor was another specific factor identified in Livermore as a potential trigger for miscarriage.

45. The transcript records this content of the Crown Prosecutor’s address. I set it out as it appears recorded (subject to inserting initials for the name of NJC):

“You’ve got to remember mum is also mum of (NJC). You know this isn’t a reason to lie over one daughter over the other. She’s told the truth. Her daughter came home in tears. She went to bed. Seemed to make a huge deal of the fact she didn’t have a shower till the morning. I don’t know how you react after you get raped. I probably wouldn’t (?) want to have a shower straight away but she said it was 11 o’clock, got home, she said to her mother ‘they want to bash up James Kear.’ That was said to her mother when she got home and she said she had something to eat. Well I’m sorry, teenagers get home late. What comes out of the mouth is excuses.”

46. In fact, LAC’s evidence was that she simply said to her mother when she came home, as has already been mentioned, that “they gave me something to eat.” The gravamen of complaint is directed to the prosecutor’s observation about showering. It would seem probable that the transcript is in error and it is likely that she said “I probably would want to have a shower.”

47. Later, the Crown Prosecutor made another comment conveying her personal views when she said:

“Now it might just be me but I thought he came over as very smug, slightly arrogant and at times he smiled and laughed. Now he is saying this was consensual, we had sex all the time. If you’ve been accused of raping someone and it’s a complete lie do you think he would be smug about it, a bit of a laugh, isn’t this all a bit of – imagine being put in this situation.”

48. There was no justification for the introduction by the Crown Prosecutor of her personal views about showering. Coincidentally it was an observation by a prosecutor about showering after an alleged rape which arose amongst other things in Livermore, see p 667. I do not accept the Crown submission that the statement about showering did not assist the Crown case. It was plainly an observation of a personal opinion of the prosecutor which, if accepted, would bolster the credibility of the complainant. It was an explanation for a fact in LAC’s evidence which might have been the subject of criticism.

49. In relation to the second statement concerning the appearance of GDD, his Honour observed in an exchange with counsel that if the prosecutor’s remarks had been couched in terms such as “you might think” there would not be a problem. I agree. However, nothing was said to the jury and the consequence of the injection of personal opinion rather than the making of submissions to the jury was that they were left with statements by counsel, one of which was supportive of the credibility of the complainant and the other which was disparaging of GDD. There was no authoritative warning by the judge that the jury should ignore what was said.

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55. The intrusion into address of the Crown Prosecutor’s personal views, was, to say the least, particularly unfortunate. It is true that in his introductory remarks his Honour told the jury that it was a tradition more than anything else which led to the prosecutor being referred to as Madam Crown in obvious distinction from the named defence counsel. Even though the jury were so informed, there must remain a risk that a jury would consider a Crown Prosecutor a figure of public authority and whose expressed personal opinions were therefore of particular weight and reliable. It is to avoid that risk that the law requires counsel to make submissions based upon the evidence and proscribes expressions of personal opinion.

56. The disparagement of the testimony of GDD by reference to the Crown Prosecutor’s assessment of his demeanour was fraught with the risk of diverting the jury from its task when it is recognized that the version of events being advanced on behalf of the accused involved sexual turpitude which the jury may well have found repugnant and it was important that they be cautioned that, even if they so felt, if the version being advanced by the defence was possibly correct, the crime was not proved to have been committed. The Crown Prosecutor’s personal assessment of the appearance of GDD as “smug” etc needed to be balanced by a firm caution that the prosecution case was not proved by rejection of GDD as a witness.

57. The consequence of my conclusion is that a new trial should be ordered.

Simpson J

67. I have read in draft the judgments of Grove J and R A Hulme J. Like Grove J I (reluctantly) have come to the view that the accumulation of transgressions in the address of the Crown prosecutor was such as to cause a miscarriage of justice, and that the directions given were inadequate to undo the damage that had been done.

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105. The Crown prosecutor’s observations of GDD’s demeanour in the witness box, and her expression of personal opinion, were an unorthodox way of suggesting a view that might be taken by the jury. There are good reasons for the language conventionally used to make suggestions of that kind: it emphasises that the evaluation is that of the jury, that what is being put is no more than a suggestion which it is open to the jury to accept or reject. It maintains the proper distance between the jury and the advocate, and ensures that the advocate is properly left out of the fact finding, decision making role.

106. As Grove J has pointed out ([34]), the Crown prosecutor also appealed to the females on the jury to use their own personal experience in their evaluation of the evidence concerning the use of force by GDD. I share his Honour’s reservations about the propriety of such an appeal. It was echoed by counsel for GDD, in a passage extracted by R A Hulme J ([143]).

107. To introduce notions of how members of the jury would feel in a particular situation, or to invite them to decide issues of contested fact on the basis of their own life experience – in to which was injected how the Crown prosecutor would feel – was to introduce false and misleading elements in the determination. There is a difference between inviting a jury to bring to bear its (collective) “experience in life” in the assessment of witnesses, and evaluation of evidence, and inviting the jury to introduce its own factual experience. The former is traditional and acceptable, the latter is not.  

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117. I am satisfied that the trial miscarried, by reason of the manner in which the Crown case was put. It is unfortunate, in my view, that it has been necessary to isolate individual passages from the address, and consider them separately. None, in my opinion, (except perhaps that which raised threats and coercion in relation to consent) would be sufficient to vitiate the verdicts of guilty. It is the overall effect of what were, individually, relatively minor transgressions, that had a cumulative effect. The impression I gain from reading the address is of confusion, misleading factual statements, and, most importantly, an erroneous submission about the absence of consent.

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121. Counsel inviting juries to examine evidence from a particular point of view will need to exercise caution in expression. That is, in my opinion, a dangerously wrong approach. The question the jury has to decide is whether the participants behaved as they, or other witnesses, said they did. It is wrong to invite juries to determine contested factual issues on the basis of their assessment of how they would feel, how they would react, or what they would do. The task of the jury is to consider and determine the factual issues put before them. It is for the jury to decide whether the conduct did occur (if it is part of the Crown case) or may have occurred (if it is part of the defence case). In doing so the jury must put aside personal prejudices and opinions, and decide rationally, objectively, impartially and dispassionately whether the person in question did or did not behave as alleged. Not infrequently they are asked to consider alleged conduct that is entirely foreign, even alien, to their own experience, and conduct that many would regard as anathema, bizarre, unacceptable.

122. The present case is, in fact, a good example of the last of these, if not also the first and second.

RA Hulme J

125. Grove J has concluded that the combination of six features of the Crown Prosecutor’s address led to a miscarriage of justice. He is of the view that other matters in the address that are the subject of complaint are of no significance. I agree with his conclusion about the latter but, regrettably, not in relation to the former.

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152. An assessment of the significance of these matters in the prosecutor’s address to the jury should, in my view, incorporate an acknowledgment that the judge and counsel at the trial were in the best position to assess the impact they may have had upon the fairness of the trial. Significant weight should be given to the fact that complaint was raised by counsel for both appellants immediately after the prosecutor’s address was concluded. Equally, significant weight should be given to the lack of complaint by either counsel about the corrective action that the judge took concerning some of the matters and the absence of any action taken in respect of other matters. This consideration is not determinative but it is a matter that adds weight to the conclusions I have otherwise reached, although bearing in mind the following in the judgment of Gleeson CJ in Libke v The Queen:

[2] ... It is difficult for an appellate court, relying only on the written record, to assess the impact of undisciplined conduct by counsel. It is also difficult, away from the atmosphere of the trial, to measure the significance of the absence of intervention by the trial judge or by opposing counsel. Those difficulties are to be taken into account by way of caution in approaching any attempt to minimise the complaints made on behalf of the appellant.

Conclusion

153. I have now had the considerable benefit of reading in draft the judgment of Simpson J. I remain of the view that upon an overall view of the complaints raised about the conduct of the Crown Prosecutor there was no miscarriage of justice. I would not uphold grounds 1, 2 and 3 in the appeal by GDD or ground 1 in the appeal of NJC.

154. I agree with what Grove J has said about ground 4 in the appeal of GDD and ground 2 in the appeal of NJC.

155. I would dismiss the appeal against conviction.