Cross examination

Spigleman CJ

1. In this matter I have had the advantage of reading the judgment of Adams J in draft. I agree with his Honour's orders and his Honour's reasons. I add a few additional observations.

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8. In any event, in my opinion, his Honour was entitled to reject the line of cross-examination by applying s41 of the Evidence Act. The difficulties encountered by complainants in sexual assault cases in the criminal justice system has been a focus of concern for several decades. Judges play an important role in protecting complainants from unnecessary, inappropriate and irrelevant questioning by or on behalf of an accused. That role is perfectly consistent with the requirements of a fair trial, which requirements do not involve treating the criminal justice system as if it were a forensic game in which every accused is entitled to some kind of sporting chance.

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13. The words of s41 direct attention to the effect of questioning upon the witness. In a sexual assault matter, it is appropriate for the Court to consider the effect of cross-examination and of the trial experience upon a complainant when deciding whether cross-examination is unduly harassing, offensive or oppressive. In the present case, that standard was clearly exceeded.

Dowd J

14. I have had the advantage of reading the draft judgment of Spigelman CJ and Adams J.

15. I agree with the proposed orders of Adams J and his reasons therefor. I also agree with the reasons of Spigelman CJ.

Adams J

22. Mr Zahra then put to the complainant a number of incidents as set out in the transcript of the video recording, asking, in effect, whether they showed that she was aware of and consenting to what had occurred. Sperling J, in the absence of the jury, pointed out that asking the complainant to express an opinion about her own state of mind that depended, not on her own recollection (of which, she said, she had none) but on the transcript and her recollection of the video did not appear to him "to be an approach designed to adduce evidence of any fact or...admissible lay opinion evidence." Mr Zahra submitted that the line of questions was "only embarked upon...with a view in fairness of giving [the complainant] the opportunity to...say something different about what is represented on the tape." Mr Zahra said, in effect, that if the prosecutor did not suggest to the jury that his foreshadowed submissions that the video tape demonstrated that the complainant had indeed consensually participated in the events depicted, were not fair because the particular matters relied on had not been put to her, he would not need to persist with the questions. The prosecutor so indicated. It appeared that Mr Zahra agreed that it was unnecessary for him to press his questions. However, following the afternoon adjournment Mr Zahra revisited the matter. He indicated that he wished to take the complainant to portions of the transcript where, for instance, she requested further drugs and put it to her that this indicated that she was indeed intending to experiment with drugs. The prosecutor objected to such questions and others of the same import upon the ground, in substance, that the complainant was being asked to give an opinion about her state of mind when under the influence of the drugs, an opinion which she was not qualified to give, rather than being asked about her recollection of her state of mind. Mr Zahra did not submit that this characterisation of the proposed line of questioning was inaccurate or unfair or that he should, in fairness to his client, have been permitted to cross-examine as foreshadowed or that the defence was precluded from any forensic advantage that might otherwise have been reasonably and properly derived from it. It was no doubt implicit in his submission that the questions were proper but he advanced no process of reasoning that sought to demonstrate what might be gained from the complainant's opinion about her state of mind that was relevant to the issues in the trial.

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26. … There was no basis for inferring that the complainant had ever seen people apparently affected by drugs, let alone having herself been in such a situation before. Her opinion was thus no better than any other lay witness and, certainly, could not inform the jury as to the judgment that it needed to make on the matter. Moreover, the complainant's evidence was irrelevant. In Smith v The Queen [2001] HCA 50; (2001) 206 CLR 650, the majority of the High Court (Gleeson CJ, Gaudron, Gummow and Hayne JJ) held that evidence of police officers, who had previous dealings with the Appellant, that his face was depicted in a blurred security camera photograph was irrelevant, it being clear that the circumstances of those dealings gave them no advantage over the jury in making the comparison between the Appellant and the person shown. Once it is understood that the complainant was being asked to interpret the transcript or the video depiction upon the (inevitable) assumption that she had no recollection - or no relevant recollection - of the events herself, so that she was a mere lay observer, the irrelevance of her opinion is manifest. The nature and extent of psychological effect shown on the video was a matter for medical and not lay evidence; whether the video showed free and voluntary consent or otherwise was not a matter for opinion evidence. The proposed questions would not only have deflected the jury from the true issue, namely, the effect of the drugs on the complainant, to a false issue, namely whether the complainant thought that it seemed as though she was consenting, but would have been oppressive and unfair to the complainant. It is, perhaps, worth observing that counsel never sought - for obvious reasons, I think - to play each part of the video to her and ask if her memory of the events was refreshed, although the transcript, considered alone, gives a very partial and misleading representation of the actual events. I also think it fair to observe that, having watched the video myself, I do not see how any fair-minded person could have concluded, having regard also to the medical evidence, that it was reasonably possible that the complainant's ability to give free and voluntary consent was not completely compromised by the drugs that were administered to her by the Appellant. I am sceptical that Browne v Dunn (1894) 6 R (HL) 67 required Mr Zahra to put to the complainant that it seemed from the transcript or from the video that she had consented. However, that issue was very sensibly disposed of by the prosecutor's concession…

Gleeson CJ (would dismiss the appeal)

1. I have had the advantage of reading, in draft form, the reasons for judgment of Hayne J. I agree, for the reasons given by Hayne J, that the appeal should be dismissed. I would add two brief observations.

Kirby and Callinan JJ (would allow the appeal)

5. Mr Justin Libke (the appellant) was found guilty by a jury, and convicted, after a trial in the District Court of Queensland (Griffin DCJ) on one count of rape, two counts of unlawful carnal knowledge of an intellectually impaired person, one count of unlawful exposure of an intellectually impaired person to an indecent act, and of unlawful and indecent dealing with an intellectually impaired person. The verdicts on counts 2, 3 and 4 were lesser and alternate verdicts. The indictment alleged three counts of rape, one count of indecent dealing with an intellectually impaired person, and one count of sodomy of an intellectually impaired person.

6. The complainant was 18 years old at the time of the events with which the Court is concerned. She is intellectually impaired. There was little or no contest about that at trial. Issue was joined, however, on the degree of impairment, and the extent to which impairment was apparent in her appearance, demeanour, speech and conduct generally.

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18. The appellant gave evidence at the trial. He was subjected to a scornful cross-examination punctuated by interruptions of answers and comments, but not, regrettably, objection by counsel or intervention by the trial judge.

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35. The role of prosecuting counsel is not to be passive. He or she may be robust, and be expected and required to conduct the prosecution conscientiously and firmly. Because a criminal trial is an adversarial proceeding, there is at least the same expectation of defence counsel. The obligation of counsel extends to the making of timely objections to impermissible or unacceptable questions and conduct. But it is also the duty of the trial judge to make appropriate interventions if questions of those kinds, capable of jeopardizing a fair trial, are asked. The duty of the trial judge is the highest duty of all. It is a transcendent duty to ensure a fair trial.

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37. In this case we are unable to conclude that the appellant did have a fair trial. Whether a cross-examination and commentary during it were excessive will usually be a question of degree. It would not be appropriate to require a standard of perfection or to impose undue weight on the occasional accidental slips and mistakes that can occur in the heat of a trial. Further, it is true that the appellant's credit was in issue and a rigorous cross-examination was therefore to be expected. However, it was seriously objectionable for a counsel to say, during an address to the jury, that he or she "did not buy" something said by a party in evidence, or that "we've heard about that one". It is not acceptable for counsel to make that comment, that is, to express a personal opinion about a party's, or indeed any witness', evidence during cross-examination as the prosecutor did here. It was equally inappropriate for counsel to comment after the appellant had made a responsive answer "whenever you're prepared to finish it". In the same category are these comments: "That doesn't tell us much, does it?"; "I'm just trying to analyse your version of it" and, "hopeless" in commentary upon an answer. These are but a few examples of the inappropriateness of the cross-examination. Here, the sarcastic and repeated commentary as a whole went too far. The appellant's counsel's failure generally to object, regrettable as that may have been, provided no antidote to the infection of the trial that the prosecutor's questions and comments caused. The circumstances called for the trial judge to intervene.

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39. We are unable to accept that the "very egregiousness of the conduct generated safeguards against the dangers inherent in it" or that the conduct of the prosecutor "was such as to attract sympathy to the accused". It is at least as likely that the jury, considering the way the prosecutor as a public official, and the judge as the controller of the trial acted, took their cue from the improper questions and comments, and apparent judicial acquiescence in them respectively, and inferred that they reflected a justified hostility to the appellant which they were bound to share. Clearly their verdict is more consistent with that reaction than with any sympathy.

Hayne J (would dismiss the appeal)

69. None of the matters raised by the appellant provides a sufficient basis for disturbing the order of the Court of Appeal dismissing the appeal against conviction. The appeal to this Court should be dismissed.

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73. Unfairness may take many forms. Often what is unfair will constitute a departure from the ordinary rules that ensure the orderly conduct of a trial. Those rules encompass not only the rules of evidence but also such diverse matters as when and how counsel may address the judge and the jury. This is not to say that every departure from those rules is to be branded as causing unfairness. But, because the rules of orderly procedure are designed to safeguard the fairness of the proceedings, what is unfair will often be a departure from those rules.

74. In the present case, the appellant's complaint of unfairness focused upon what happened when the trial prosecutor was cross-examining him. He submitted that the cross-examination "was designed unfairly to undermine the appellant's credibility and included improper questions, in the sense that many questions were confusing, harassing, oppressive and repetitive" (emphasis added). He further submitted that the trial prosecutor "expressed or implied personal opinions and made impermissible comment". The text of the relevant passages from the trial transcript appears in the reasons of Kirby and Callinan JJ and it is unnecessary to repeat it here.

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78. In the present case, if comments made by the trial prosecutor are put to one side, the complaints of unfairness that now are made directed attention to the way in which the prosecutor set out to undermine the appellant's credibility. It was said that this was done "unfairly". The appellant identified a number of questions as evidencing this "unfairness". Some, the appellant said, were founded on a false or unproved assertion. Others, he submitted, made unwarranted criticism of evidence he had given. But leaving aside the prosecutor's intrusion of his comments on the evidence, the cross-examination, when read as a whole, betrays no unfairness to the appellant. Some questions might have been framed better than they were. Some carried imputations critical of the appellant's evidence. Some questions were founded on assertions that were not established or admitted. But the appellant was able to and did give the account he wished to give of the events about which he was asked. And whether the cross-examination was such as to distract the jury from a proper and dispassionate examination of the issues in the case requires consideration of not only those questions that were said to be designed unfairly to undermine the appellant's credibility, but also the various comments made by the trial prosecutor in the course of his examination of the appellant.

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80. The trial prosecutor should not have made any of the comments he did during the appellant's cross-examination. That was not the time for submission or argument about the effect of the answers that the appellant gave. The trial prosecutor's opinion about the veracity of the appellant's answers was wholly irrelevant to any issue in the case. Sometimes that opinion was conveyed directly: "I'm trying to convey to you I'm not buying it." At other times the opinion was conveyed indirectly by putting a proposition ("your evidence is just a tissue of lies") but not permitting the appellant to respond.

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82. The trial prosecutor should not have aligned himself with the prosecution case, which is what he did whenever he conveyed to the jury his own opinion of the appellant's evidence. Would these repeated expressions of alignment with the prosecution case have distracted the jury from their task of assessing whether the evidence that was led at trial established the appellant's guilt beyond reasonable doubt? Would other aspects of the cross-examination have caused or contributed to that consequence?

83. Both those questions should be answered "no". To discharge their function properly, the jury had to focus upon whether they were persuaded, beyond reasonable doubt, that the evidence established the appellant's guilt of any of the several offences they had to consider. The jury's verdicts, acquitting the appellant of some offences but not others, are consistent with their having paid close attention to their proper task…

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84. Although it is for these reasons that the complaint of miscarriage on account of the prosecutor's conduct should be rejected, it is as well to say something further about the role of the trial judge. It would have been both possible and desirable for the trial judge, at an early stage of the prosecutor's cross-examination, to have said something requiring him to desist from making comments on the evidence that was being given. There should have been no need to make the point at any length or to draw undue attention to it. If, for some reason, it had become necessary to engage in some sustained reproof or extended criticism of counsel, that should have been done in the absence of the jury[40]. But an early intervention from the judge would have prevented any suggestion of unfairness of the kind now said to have arisen from the conduct of the prosecutor.

Heydon J (would dismiss the appeal)

119. They are rules which necessarily developed over time once it came to be established that oral evidence should be elicited, not by means of witnesses delivering statements, and not through questioning by the court, but by means of answers given to a succession of particular questions put, usually by an advocate, and often in leading form. A cross-examiner is entitled to ask quite confined questions, and to insist, at the peril of matters being taken further in a re-examination which is outside the cross-examiner's control, not only that there be an answer fully responding to each question, but also that there be no more than an answer. By these means a cross-examiner is entitled to seek to cut down the effect of answers given in chief, to elicit additional evidence favourable to the cross-examiner's client, and to attack the credit of the witness, while ensuring that the hand of the party calling the witness is not mended by the witness thrusting on the cross-examiner in non-responsive answers evidence which that witness may have failed to give in chief. To this end a cross-examiner is given considerable power to limit the witness's answers and to control the witness in many other ways.

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123. In this case the questioning was conducted "without restraint and without the courtesy and consideration which a witness is entitled to expect in a Court of law", and, as a result, it was "indefensible". The cross-examination was improper because it was "calculated to humiliate, belittle and break the witness". Its tone "was often sarcastic, personally abusive and derisive". It resorted to remarks "in the nature of a taunt". It amounted to "bullying, intimidation, personal vilification or insult", none of which is permissible.
124. The cross-examination not only offended these common law rules. Many of the questions were annoying, harassing, intimidating, offensive or oppressive, contrary to s 21 of the Evidence Act 1977 (Q).

125. The cross-examination also contravened the rules of evidence in that many things said by the cross-examiner were not questions at all. To adopt the language of the Ontario Court of Appeal, counsel for the prosecution infringed the rules of evidence when he "regularly injected his personal views and editorial comments into the questions he was asking". One vice of comments made in the course of questioning is that although they may be potentially damaging in the jury's eyes, they are not questions, and thus the witness has no opportunity of dealing with the sting in the comments. Another vice is that the jury may regard counsel as a person of special knowledge and status and therefore pay particular regard to the comments - particularly where it is counsel for the prosecution who chooses "to throw the weight of his office" into the case. The time for comments, at least legitimate ones - for disparaging comments based on evidence or the lack of it can be legitimate - is the time of final address. "Statements of counsel's personal opinion have no place in a cross-examination." The role of prosecution counsel in the administration of justice should not be "personalized". Their own beliefs should not be "injected" into the case.

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135. The disapproval of the conduct of this trial to be found in all the judgments of this Court may discourage and prevent its repetition. But it is not the function of the Court to seek to discourage and prevent repetition by allowing an appeal unless there has been a miscarriage of justice. Despite that fact, dismissal of the appeal is not to be taken as complaisance in the conduct examined.

The Court (McClellan CJ at CL, Grove and Howie JJ)

1. On 20 August 2007 the appellant was arraigned before a jury on an indictment containing four counts. The first count alleged that on 2 August 2006 the appellant maliciously wounded [the complainant] with intent to do grievous bodily harm. This was an offence contrary to s 33 of the Crimes Act 1900. The appellant pleaded not guilty to that charge. The complainant was the appellant’s wife. The three other counts on the indictment each alleged that on 2 April 2006 the appellant took a child with intent to remove the child from the lawful control of [the complainant], she being the person having parental responsibility for the child, without her consent.

2. The trial proceeded on the first count. On 27 August 2007 the jury found the appellant not guilty of the offence under s 33 but convicted him of an alternative offence of malicious wounding contrary to s 35 of the Crimes Act.

3. The appellant appeals against his conviction and seeks leave to appeal against sentence. The grounds of appeal in respect of the conviction are as follows:

Ground 1: The trial miscarried due to the admission of evidence:

(a) concerning the conduct of the appellant toward the complainant on 16 July 2006;

(b) of the making of an Apprehended Domestic Violence Order at Kogarah Local Court on 20 July 2006.

Ground 2: The learned trial Judge erred in failing to adequately direct the jury as to the use of the evidence concerning the events on 6 July 2006 and the making of ADVO on 20 July 2006.

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14. It is contended that the evidence of the events on 16 July 2006 and the making of the ADVO order that have been outlined above should not have been admitted. Counsel for the appellant conceded that there was no objection and, therefore, r 4 of the Criminal Appeal Rules applies.

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17. In Steve this Court held that s 137 was mandatory so that a trial judge has an obligation to reject evidence where its probative value is outweighed by the danger of unfair prejudice notwithstanding that no objection had been taken to it during the course of the trial, see per Beazley JA at [60], quoting from Heydon JA in R v Le [2002] NSWCCA 186; (2002) 130 A Crim R 44, at 47, and at [82].

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27. This is a clear indication, if any be needed, that Parliament understood that courts would not generally be under an obligation to reject a question to which no objection was taken and did not intend generally that other obligations imposed upon a trial judge in relation to the admission or reception of evidence would apply except where an objection is taken to the evidence. Section 275A can be compared with s 41 of the Evidence Act, which does not apply to criminal proceedings, that permits a court to disallow an improper question but does not purport to impose a duty on a court to do so irrespective of whether objection is taken to the question.

28. With respect, we find the argument contained in paragraph 20 in the judgment of Dhanhoa set out above compelling in rejecting the notion that, generally speaking, a trial judge should take upon himself or herself the role of determining the admissibility or reception of evidence to which no objection is taken by a lawyer representing an accused person. There may be provisions that unambiguously impose such an obligation on a court by the wording of the section, for example s 275A, or by reason of its subject matter; for example provisions concerned with the exclusion of evidence in the public interest such as s 130. But we do not believe that s 137 falls into either of those categories and therefore, imposes an obligation on a trial judge to reject evidence of his or her own motion where no objection is taken and the accused is legally represented. There may be exceptional situations where a trial judge is compelled to intervene in order to prevent a miscarriage of justice, but there is in our opinion no provision of the Evidence Act that requires such intervention.

29. So far as s 137 is concerned, we do not understand how a trial judge could reliably undertake the balancing exercise that the section requires between the probative value of the evidence and the danger of unfair prejudice without a complete understanding of both the Crown and defence cases and the arguments to be addressed to the jury by the parties. Yet the section is engaged when the Crown first introduces the evidence that is later impugned in this Court. This difficulty is alone sufficient to lead us to the conclusion that s 137 cannot operate to oblige a judge to reject evidence that may later be seen in the context of the whole of the trial to have resulted in a miscarriage of justice.

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48. For evidence to be rendered inadmissible under s 137, there must be a real risk of the evidence operating unfairly against the accused: R v GK [2001] NSWCCA 413; 53 NSWLR 317. We are unable to see any risk of the jury misusing the evidence of the events of 16 July or the making of the ADVO.

Hoeben CJ at CL

1. I agree with the judgment of N Adams J and the orders which her Honour proposes. In particular I note that in relation to Ground 3, I have listened to the audio of the cross-examination of the applicant and I agree completely with the conclusions of N Adams J in regard to the conduct of the Crown Prosecutor.

Button J

2. I agree with N Adams J, subject to the following. With regard to ground 2 the evidence adduced from the complainant in her "evidence- in -chief" about why she did not complain about the previous five incidents was not the subject of objection. I would apply rule 4 to that ground.

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6. Finally, I completely reject the proposition that a Minister of Justice (or indeed defence counsel) can use a term such as "not give a rat’s arse” in a criminal trial, unless quoting directly from evidence. Such language as part of an address to a jury or question of a witness has an obvious tendency to detract from the solemnity and gravity of the proceedings, and to lead the jury not to respect their own role within them. If used to describe the evidence of an opposing witness, it also has an obvious tendency to belittle. Its use in this trial is a very good example of all that has gone wrong here.

N Adams J

7. On 21 August 2017, the applicant was found guilty by a jury of two offences arising out of the sexual assault of his former partner. The Crown case was that he unlawfully entered the complainant’s home at 5am on 2 April 2015 whereupon he attempted to sexually assault her and then ultimately did so. The two counts upon which he was convicted were:

(1) Aggravated break and enter of a dwelling house and commit serious indictable offence (attempted sexual intercourse), contrary to s 112(2) of the Crimes Act 1900 (NSW). This offence carries a maximum penalty of 20 years and a standard non-parole period (“SNPP”) of 5 years.

(2) Sexual intercourse without consent, contrary to s 61I of the Crimes Act. This offence carries a maximum penalty of 14 years and a SNPP of 7 years.

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93. The cross-examination of the applicant is the subject of ground 3. It is necessary to extract parts of it in order to understand the complaints made about it. I propose to summarise it under the same relevant headings as they were addressed in the applicant’s written submissions. Under ground 3 the applicant relied not only on the transcript of the cross-examination but also the “tone and manner'' of it and audible "laughter'' and "sighs" at various points in the cross-examination.

94 It was the joint position of both the Crown and Mr Carroll that this was one of those appeals where it was appropriate for the court to listen to the audio recording of the Crown Prosecutor’s cross-examination. The Crown noted the following passage in Pell v The Queen [2020] HCA 12 at [36], (footnotes omitted):

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95 In accordance with the joint application to do so, I have listened to the full cross-examination of the applicant by the Crown Prosecutor. I propose to insert additional sounds on it that I could detect where relevant.

96. I note at the outset that the cross-examination only went for one hour and 10 minutes, including two breaks, and no objection was made to any of it by the second counsel for the accused.

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116. The audio records that the Crown Prosecutor sounding incredulous at some of the answers given by the applicant during that time and on a few occasions he interrupted the answer. He also ended many questions by addressing the applicant as “Sir” or “Mr Glenn” in a faux polite manner. The following extracts give an idea of the nature of this aspect of the cross-examination:

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Ground 3: There was a miscarriage of justice occasioned by the cross-examination of the applicant and the Crown Prosecutor's closing address

The applicant’s submissions

177. In addition to relying upon the relevant authorities, which were not in dispute, the focus of the applicant’s submissions was to take the Court to the impugned passage of the transcript in some detail. The complaints fall into six categories:

(1) The cross-examination about the 1998 kidnapping offence and interim events;

(2) Questioning in a manner which exposed a period of time from 2008 until 2013 when he was imprisoned and this could not be revealed to the jury;

(3) Cross-examining in a tone and manner which was offensive, humiliating and insulting;

(4) Cross-examination that invited tendency reasoning;

(5) Improperly raising recent invention in breach of the applicant’s right to silence; and

(6) Inviting the applicant to comment on the complainant’s evidence.

178. I propose to consider these complaints in detail in my consideration below.

Consideration

220 I am satisfied that the determination of this ground requires the Court to: analyse exactly what was said or done, consider the impugned conduct in the context of the entirety of the trial and also consider whether the prejudice was cured by steps taken by the presiding judge: Hughes v R at [62].

221 Before turning to consider these issues, it is important to note at the outset that the Crown made a number of concessions in relation to the cross-examination of the applicant at his trial as follows:

(1) It was conceded that the Crown Prosecutor erroneously put to the applicant that the complainant had visited the applicant in custody a couple" of times when her evidence was that it had been "numerous times";

(2) It was conceded that the Crown Prosecutor framed questions suggesting that the applicant did not express remorse or concerns for the 1998 incident despite the complainant never giving evidence to that effect;

(3) It was conceded that, contrary to what was put to the applicant in cross-examination, the complainant did not give evidence that the applicant had threatened to shoot the complainant's friend during the 1998 incident (despite this, in answer to the question, the applicant agreed that "I probably did, yes");

(4) It was conceded that the Crown Prosecutor was wrong to suggest to the applicant that the complainant had given six examples of "bad treatment' (the interim events) when in fact she had given evidence of five;

(5) It was conceded that the Crown Prosecutor should not have described the complainant’s injuries from the 1998 incident as that she "broke her back” when she had in fact suffered cracked vertebrae" (although the error was corrected in the next sentence);

(6) It was conceded that it was not appropriate to use language such as “you didn't give a rat's ass about how the complainant felt” or “pack of lies,” “litany of lies” or “fairy tale”.

(7) It was accepted that the exchange between the Crown Prosecutor and the applicant became “heated" but at no time did the Crown Prosecutor raise his voice or question the applicant in an aggressive manner.

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224. It was common ground that despite the fact that the jury left the courtroom twice during the cross-examination, defence counsel raised no issues about any aspect of it. In fact, it was embraced by defence counsel in his closing address, when it was noted that the applicant "gave extensive explanations under what I put to you was a rigorous and extensive cross-examination" and that "you had the benefit of seeing the directness of his answers to the Crown.”

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238. I am not only satisfied that rule 4 does not apply to this ground, I am also satisfied that in the unusual atmosphere of this trial, the failure by defence counsel to object does not inevitably lead to the conclusion that the trial was not unfair.

239. I turn then to consider whether the conduct of the Crown Prosecutor led the trial to miscarry under the third limb of s 6(3) of the Criminal Appeal Act.

240. It is to be accepted that the Crown Prosecutor’s questioning and remarks fall to be assessed in the context of the issues raised in the trial. Given that the applicant’s account of what occurred painted the complainant in a very unfavourable light, it was clearly appropriate for the Crown Prosecutor to forcefully and firmly put the prosecution case to the jury. The applicant attributed words and behaviour to the complainant that were highly offensive and provocative. The Crown suggested on appeal that it could be inferred that the applicant sought to arouse hostility on the part of the jury towards her in this way. That may well be the case; he certainly sought to cast himself in a more sympathetic light.

241. I am satisfied that the particular circumstances of this case were such that a robust approach to cross-examination was justified, noting that "the feel and atmosphere of one trial may make it reasonable and even necessary for tactics to be employed that would seem out of place and disproportionate to the circumstances of another' (see Rugari at [47]). The Crown Prosecutor was entitled to firmly call upon the jury to reject the defence case as inherently unbelievable. But the complaint made under this ground goes much further than a claim that the prosecution was merely “robust”: six separate heads of complaint are relied upon in support of this ground.

242. In resolving the central question of whether the applicant’s interests were prejudiced to a significant extent by the Crown’s questioning of him, I have had regard to the six discrete complaints made about the cross-examination in turn.

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Cross-examination invited tendency reasoning

247. I am satisfied that the applicant was cross-examined about the complainant’s state of mind in a manner that invited tendency or coincidence reasoning. It was repeatedly put to the applicant that in the same way that the complainant was nice to him when he kidnapped her 17 years earlier, she was also nice to him at the time of the alleged offences. That is, it was put to the applicant that because he had scared her in the 1998 incident so too had he scared her at the time of the alleged offences.

248. To rely upon the 1998 incident in this way (at the same time as disavowing any reliance upon the evidence for tendency or coincidence reasoning), would have made it difficult for a lay jury to understand how it was not tendency evidence. It was imperative that the cross-examination did not invoke the impermissible lines of reasoning which a jury would be susceptible to falling into when confronted with prior extremely serious offending.

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Inviting the applicant to comment on the complainant’s evidence.

251. I am satisfied that it was improper for the Crown to keep referring to the evidence of the complainant and her voice and demeanour and inviting the applicant to comment on it. This occurred on a number of occasions. The applicant was asked to comment on the tone of the complainant’s voice on the triple-0 call and agree that she sounded scared. He was also asked by the Crown to comment on how the complainant gave her evidence in court when she recounted the details of the 1998 incident. The effect of this questioning was to require the applicant to explain why the complainant’s claims should not be accepted. This had the effect of reversing the onus of proof on this issue.

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254 In the context of there already being evidence that the applicant had been to gaol, I am satisfied that the cross-examination of the applicant where it was repeatedly put to him that he didn’t “live” at the house from 2008 until 2013 was unfair. From the applicant’s perspective he did live there, he was just prevented from physically being there because he was in custody. The unfairness is not that the Crown was trying to elicit an answer that suggested that he was in custody. Rather, the unfairness is that the questioning led the applicant to answer that he wasn’t there during that time because he worked “on the railways”. The jury would have realised that was an improbable answer, it is difficult to think of a railway job which would have precluded him from coming home for one single night during that five year period if he did in fact still live there.

255 The applicant was clearly agitated by this questioning but when he raised it in the absence of the jury he was told by the trial judge that the Crown Prosecutor was trying to be fair. But concealing from the jury that the applicant had been in custody did not mean that it was possible for the applicant to answer the questions in the form asked by the Crown Prosecutor.

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260. The jury were told that the applicant had maintained his right to silence when offered an interview following his arrest on 29 April 2015. Despite this, the Crown submitted to the jury that the applicant had invented the version he gave in court after being served with the prosecution brief. On this appeal the Crown conceded that it was not appropriate for the Crown Prosecutor to suggest that the applicant’s evidence was "pre-rehearsed”. I accept this concession.

Cross-examining in a tone and manner which was offensive, humiliating and insulting

261. As stated above at [218], the Crown has conceded on this appeal that many of the words used by the Crown Prosecutor at trial were inappropriate.

262. The concession was properly made. I am satisfied that the language at times was intemperate and inappropriate and went beyond what is appropriate language for a Crown Prosecutor to use. He injected his personal opinion into the questioning. The result was that the cross-examination and closing submissions amounted to a personal attack on the applicant and barracking for the complainant. The Crown Prosecutor engaged in questioning which was argumentative and then closed to the jury that the applicant was belligerent and arrogant.

263. I have had regard to the Crown submission that the language used by the Crown Prosecutor was coarse because he had adopted the same style of language as the applicant did in his evidence in chief. I am not satisfied that this is a satisfactory explanation.

264. As for the tone of the cross-examination, I have carefully listened to the audio of the cross-examination twice. The tone changes throughout the cross-examination. At times it is uncontroversial. At other times it is sarcastic and condescending. At other times the Prosecutor expresses mock surprise at some answers. He laughs at others.

265. Although the Crown Prosecutor and the trial judge both reminded the jury of the burden and standard of proof on a number of occasions, this was a trial in which the jury was invited to consider two versions of events. As was submitted on behalf of the applicant on this appeal, this meant that there had to be consistency in the treatment of the complainant and the applicant as a witness. The complainant had been cross-examined with respect by defence counsel. But the applicant, regrettably, was not.

…

276. I am not satisfied that the conduct of the Crown Prosecutor in this matter could be adequately explained by insufficient time to collect his thoughts.

277. I am satisfied that there was a “miscarriage of justice” within the meaning of s 6(1) of the Criminal Appeal Act 1912 (NSW). As the High Court observed in Weiss v The Queen (2005) 224 CLR 300; [2005] HCA 81 at [18] “any departure from trial according to law, regardless of the nature or importance of that departure” is a “miscarriage of justice” for the purpose of provisions like s 6(1) of the Criminal Appeal Act.

278. The Crown did not suggest that if error was found under this ground it would be applicable to apply the proviso in this matter and I do not find otherwise.

279. The resolution of this ground means I would propose that a new trial be ordered. Despite this, I propose to go on to consider ground 4 for completeness.