Openings

Hunt CJ with whom McInerny and Sully JJ agreed

At 546

The appellant (Victor James Tangye) was found guilty by a District Court jury of two charges, one of maliciously inflicting grievous bodily harm and another of assault. Judge Robison imposed a sentence of penal servitude for two years upon the first (consisting of a minimum term of eighteen months and an additional term of six months) and a fixed term of imprisonment for six months upon the second, both sentences to be served concurrently.

The Crown case was that each of the two victims had, with three other friends (one man and two women), left a nightclub at Campbelltown at about 3.30 on a Saturday morning, in order to pick up a taxi at the Campbelltown Railway Station. On their way to the station they encountered a group of four to six men on the same side of the road who were acting offensively and aggressively towards them. The group of five to which the two victims belonged responded in kind but, on the advice of bouncers employed at a tavern at this particular location, they crossed the street in order to avoid a confrontation. The other group also crossed the road where they joined another group of men, so that there were about twenty men in all in the other group. This larger group then ran towards the smaller group and a fight developed.

At 555 and 556

The Crown case in relation to the first count, as it was eventually identified by the Crown prosecutor towards the end of the summing up, was that the appellant had been part of a joint enterprise by the larger group to strike (or to assault) the members of the smaller group which included the two victims. The addresses have not been transcribed, but the discussions during the course of the summing up, and the way in which that case was progressively refined by the Crown prosecutor, appear to suggest that its true nature had not been clearly stated in the Crown's opening address, as it should have been.

The obligation of the Crown prosecutor in opening the Crown case is not merely to outline the facts which the Crown proposes to establish in evidence. It is also to indicate, in conceptual terms, the nature of the Crown case. This is to assist both the trial judge and counsel for the accused, more so than the jury. It is essential that any doubt about the nature of the Crown case, conceptually, be removed at that early stage. If it is not done at that stage, or if there had been some change in its nature since the case was opened, it is vital that it be identified with some precision, in the absence of the jury, before counsel commence their final addresses. It becomes very difficult for the judge sensibly to make alterations to directions already given once it is learnt that the issues are different to those which had been assumed to exist.

The Court (Black CJ, Weinberg and Kenny JJ)

1. In March of this year the appellant, Viet Dung Tran, was convicted in the Supreme Court of the Australian Capital Territory of having, on 6 April 1999, murdered Thien Thanh Phan (“Thien”) and of having intentionally wounded Rong Feng Su (“Eddie”). He was subsequently sentenced to be imprisoned for fourteen years on the count of murder, and for three years on the count of intentional wounding. It was ordered that both sentences be served concurrently. A non-parole period of eight years was fixed.

2. The appellant has appealed against these convictions on two grounds:

• the verdicts of the jury were unsafe and unsatisfactory; and
• the trial miscarried by reason of the conduct of counsel for the Crown during his opening address asserting as facts matters which were not the subject of evidence adduced by the Crown and not corrected in the Crown’s final address.

…

87. Mr Harris contended that:

• the prosecutor had opened to the jury a body of evidence which was not thereafter led;
• the prosecutor’s opening had been inflammatory and prejudicial;
• in both his opening address and closing address, the prosecutor had invited the jury to draw inferences which were not properly available on the evidence; and
• in his closing address the prosecutor had failed to correct his earlier misstatements, and had failed to resile from a theory of the case which had been opened but which ought not, ultimately, to have been pressed.

88. Mr Harris identified some twenty-seven separate assertions which, he claimed, the prosecutor had made in his opening address, none of which were supported by the evidence led in the trial. He identified some eleven further assertions in the prosecutor’s closing address which, he submitted, were at variance with the evidence which had been led.

89. A number of the matters which are the subject of complaint are plainly inconsequential. This was acknowledged during the course of argument. However, Mr Harris emphasised four broad areas in which he claimed the prosecutor’s comments had brought about a miscarriage of justice. These were…

…

130. In the conduct of a trial, the prosecutor’s duty of fairness typically arises first when the prosecutor opens the Crown case to the jury. The opening is intended to inform them briefly of the elements of the offence or offences charged, the facts which constitute each offence, and the witnesses the prosecution intends to call to prove those facts. The prosecutor will ordinarily make clear, in outlining the elements of the offences to be proven, that directions regarding the applicable law are the province of the judge. A prosecutor must not make any reference to proposed evidence where its admissibility is in dispute. A prosecutor should not advance any theory, or make any submission, which does not carry conviction in the prosecutor’s own mind. Importantly, although a prosecutor may legitimately invite the jury to draw inferences from such facts as are proved, the prosecutor must not encourage the jury to engage in mere speculation or conjecture.

131. There are special obligations imposed on those who prosecute. These include, inter alia, a duty to make full and proper disclosure of “unused material”, or material which may be exculpatory: Clarkson v DPP [1990] VicRp 65; [1990] VR 745; and R v Maguire (1992) 94 Cr App R 133. They also include a duty to call all witnesses who may give relevant evidence whether that evidence assists the Crown case or not: Richardson v The Queen [1974] HCA 19; (1974) 131 CLR 116; Whitehorn v The Queen [1983] HCA 42; (1983) 152 CLR 657; Apostilides v The Queen [1984] HCA 38; (1984) 154 CLR 563; R v Komornick [1986] VicRp 81; [1986] VR 845; and R v Armstrong [1998] 4 VR 533.

132. It is no part of the duty of a prosecutor to address a jury in language which is intemperate, inflammatory, or over-zealous in nature. In opening for the Crown it is highly undesirable to use unnecessarily emotive language which on any view can only excite sympathy for the victim or prejudice against the accused in the minds of the jury. In R v R (1997) 99 A Crim R 327 Tadgell JA observed that it was “no part of the duty of counsel for the Crown to excite passion”. In R v M [1991] 2 Qd R 69 a conviction was quashed on the ground that the prosecutor in his address to the jury had so far exceeded the bounds of proper comment and submission that the effect could not be, and was not, repaired by the judge’s summing up. This conduct on the part of the prosecutor constituted a serious irregularity in the trial. See also R v McCullough [1982] TASRp 7; (1982) 6 A Crim R 274; R v Bazley (1986) 21 A Crim R 19 at 31; R v Pernich & Maxwell (1991) 55 A Crim R 464; and R v R (supra).

133. Although there are no formal pleadings, as such, in criminal trials, the Crown is required to formulate the basis upon which it puts its case against the accused, and essentially to adhere to that case. For example, where the Crown throughout most of a trial presents its case on the basis that a particular accused was an accessory before the fact to a killing by another accused, it is not appropriate to permit the Crown to put a quite different case to the jury after all the evidence has been led: King v The Queen (supra) at 435-6. See also R v Carr [2000] 2 Cr App R 149.

…

147. The reasoning in Anderson demonstrates a well-established principle. Inappropriate and unfair conduct on the part of the Crown may result in a miscarriage of justice leading to the quashing of the conviction and the substitution of a verdict of acquittal. In that case the fact that the jury were told by both the prosecutor and the trial judge, that nothing said by counsel in their opening or closing remarks was to be regarded as evidence did not mean that what had been said by the prosecutor had not caused the trial to miscarry.

148. The same principles must apply to any theory advanced by the prosecutor for the jury’s consideration. Where the prosecutor has nailed the Crown’s colours to one version of events in opening, and has been permitted to depart from that position during the course of the case, the prejudice may, depending on the particular circumstances of the case, be so great as to warrant the conviction being quashed: R v Carr (supra).

149. It is with these general observations in mind that we address each of the four areas of complaint advanced on behalf of the appellant.

…

Has there been a miscarriage of justice?

168. For the reasons already given the attempt on the part of the prosecutor to persuade the jury to conclude that the appellant was the man who purchased the knife from Kessey, and also to persuade them that he had done so as part of an elaborate plan to lure Thien into attacking him leads, in our view, to the conclusion that there has been a miscarriage of justice. It is impossible to know whether the jury arrived at the verdicts in this case upon the basis of the unsustainable theory improperly and unfairly pressed by the prosecutor, or whether they did so by a route which was permissible. There is no scope in these circumstances for the application of the proviso. The present verdicts cannot be permitted to stand.

Levine J (would dismiss the appeal)

2. The appellant, who was tried by jury before his Honour Judge Black QC in the District Court from 21 August 2002 to 3 September 2002, appeals against conviction and seeks leave to appeal against sentence.

3. The indictment contained nine counts. Counts 1, 2, 3, 5 and 6 were each offences of indecent assault upon a male person committed between 1 January 1982 and 31 December 1982 (s81 Crimes Act 1900; maximum sentence: imprisonment for 5 years). Count 4 was an offence of buggery committed between 1 January 1982 and 31 December 1982 (s79 Crimes Act 1900; maximum sentence: imprisonment for 14 years). Counts 7 and 9 were each offences of indecent assault upon a male committed between 1 January 1983 and 1 January 1984 (s81). Count 8 was an offence of buggery committed between 1 January 1983 and 1 January 1984 (s79).

4. On 3 September 2002 the jury found the appellant guilty on counts 1, 2, 3, 4, 5, 7, 8 and 9. The appellant was acquitted on count 6.

The conviction appeal

5. Six grounds of appeal have been notified.

6. Ground 1 is that the learned trial judge erred by failing to adequately warn the jury about the difficulties occasioned to the appellant by the lengthy delay in complaint.

Ground 2: His Honour erred by failing to adequately warn the jury about the use the jury could make of the lengthy delay in complaint in assessing the complainant’s credibility.

Ground 3: The trial miscarried because the Crown Prosecutor addressed the jury in a manner that undermined the effect of the directions his Honour gave concerning the need to scrutinise the complainant’s evidence with great care and the problems caused by the very lengthy delay in complaint.

Ground 4: The trial miscarried because the Crown failed to call DD, CM and SM1. This ground of appeal was abandoned.

Ground 5: His Honour failed to warn the jury that the prosecution witnesses HH and SP may have been unreliable because their recollections of events may have been adversely affected by the passage of time.

Ground 6: The verdicts of the jury should be set aside on the ground that they are unreasonable, or cannot be supported, having regard to the evidence.

Outline of facts

7. The appellant was a teacher at the school from 1 June 1981 until the end of the school year in 1982. From early in 1983 until 1986 the appellant lived and worked in Victoria. The complainant was a pupil at the school from Year 6 until he left at the end of Year 10 at the end of 1983. He was born on 7 April 1967 and thus was aged between 14 and 16 years at the time of the offences. The appellant was the complainant’s tutor master for one period in 1982 and was also in charge of the school naval cadets.

8 The complainant first spoke to the police about the allegations in January 1999. From 3 February to 20 April 1999 a “comprehensive statement” was taken from the complainant by the police. The appellant was charged on 16 September 1999.

…

Ground 3: The trial miscarried because the Crown Prosecutor addressed the jury in a manner that undermined the effect of the directions his Honour gave concerning the need to scrutinise the complainant’s evidence with great care and the problems caused by the very lengthy delay in complaint

43. Regrettably, in my view, the written submissions for the appellant, of which appeal counsel was not the author, are rhetorical and tendentious. It is of no assistance to this Court to refer to “the Prosecutor having made an emotional pitch to irrelevant and generalised policy considerations”.

44. What the learned Crown Prosecutor said in his closing address to the jury was:

“Perhaps over the past 20 years we’ve come to understand amongst other things how important an uncorrupted youth is to our ability to live as healthy adults. But this trial is an example of how enlightened a community we have become. As a community we have confronted the reality of the exploitation of children by those in positions of trust, and we no longer hide from that reality. It is no longer acceptable to take the view that because the abuse took place many years ago that it’s not worth pursuing, or that it didn’t happen at all. We’ve come to recognise that the sexual exploitation of children occurs in cities and towns. It occurs in the most respectable quarters of our community. It occurs in places we would expect a child would be safe. Our churches, family homes and our schools. Sometimes the offending continues for quite some time. People around the place don’t see what they don’t expect to see. But more often than not in cases such as this there are no witnesses, because sexual offences, by their very nature, invariably occur in private, away from prying eyes.

Mr Hanley said it himself, in his opening, when he said this. “And these are the sorts of cases whether they be committed last week or 20 years ago usually there are no other witnesses”. And that’s true”.

45. In the overall context of this trial it can be understood, in my view, that what the learned Crown Prosecutor was doing was referring to remarks made by defence counsel in his opening to the jury. It is desirable to add some context. What the Crown Prosecutor said was part of a series of remarks (T 29/8/02 552.5 and following) that referred back to the observation by defence counsel in his opening address to the jury. What had been said was:

“Reference has been made by the learned Crown to the fact that these matters are very old, 19 or 20 years ago. In many respects we are stepping back in time, not only in relation to the events that occurred, but to the law that existed then. You have heard the term buggery used. They referred to them as an abominable crime of buggery you might think that represented the sort of morality that existed then even in relation to this offence. It is not referred to in that term any more. So looking back the time [sic] as events that occurred, but looking back in time in relation at the law that was applied then and that has a number of effects and I would ask you to keep that in the forefront of your mind when you are considering the evidence, because you have to asses this evidence to that degree of your being satisfied beyond reasonable doubt”.

46. The Crown Prosecutor told the jury that he was not seeking to inflame their emotions but rather he reminded them that they are duty bound to act impartially upon the evidence (T 29/8/02 553.4 and following). The Crown submitted that the remarks of the Crown Prosecutor were not inappropriate.

47. I disagree. As the learned Crown who appeared on the appeal (not being the Prosecutor at trial) remarked, he had not seen a transcription of any such observations by a Crown Prosecutor before. They are unfortunate, unnecessary and uncalled for. Whilst the jury is, amongst other things, there to reflect current community standards, it also brings to bear its collective commonsense. I do not agree with the proposition that anything the Crown said was inflammatory, but merely repeat my observation that it was unnecessary.

48. This is not a case of seeking a direction from the judge by reason of something the judge had done or failed to do, but by reason of seeking to have his Honour correct what is asserted to have been the impropriety of the conduct of the Crown Prosecutor.

49. It may well be, of course, but we are not in a position to know, that an experienced trial judge such as the present trial judge, if concerned about this aspect, might have taken the view that a forensic stance by one counsel had successfully been dealt with and appropriately dealt with by the forensic stance of opposing counsel, and there the matter should be allowed to rest.

50. Otherwise, whilst reiterating my view that the remarks of the Crown Prosecutor were unfortunate, even if there may be some basis for saying they were provoked by an opening remark some days before by defence counsel, it is apparent that sight was lost of the limitations upon defence counsel’s opening address: see s159 Criminal Procedure Act. Further, as Howie J remarks in his separate judgment with which I agree, the Crown Prosecutor’s closing address where he purports to deal with anticipated directions of law, constituted a serious transgression and one which could have derogated from the authority of the learned trial judge in charging the jury on those very matters of law. None of these regrettable incidents in my view constitute a miscarriage. The ground, in my view, is without merit and leave should be refused.

Howie J (would dismiss the appeal)

110. In this matter I have received the very substantial benefit of having read in draft the judgment of Levine J. I agree with the orders proposed by the Presiding Judge and substantially with his reasons. I wish to add some remarks about two of the grounds of appeal.

…

135. It is apposite in relation to this ground to draw attention to the fact that defence counsel is not at liberty to open to the jury in any way he or she thinks fit. The right of defence counsel to open immediately after the Crown opening is found in s 159 of the Criminal Procedure Act. The section provides

159 Opening address to jury by accused person

(1) An accused person or his or her counsel may address the jury immediately after the opening address of the prosecutor.

(2) Any such opening address is to be limited generally to an address on:

(a) the matters disclosed in the prosecutor’s opening address, including those that are in dispute and those that are not in dispute, and

(b) the matters to be raised by the accused person.

(3) If the accused person intends to give evidence or to call any witness in support of the defence, the accused person or his or her counsel is entitled to open the case for the defence before calling evidence, whether or not an address has been made to the jury.

…

139. The purpose of the defence opening address under s 159(2), therefore, is to define, for the jury’s benefit, the real issues in the trial and what the accused might say in answer to the Crown’s allegation. It is not an opportunity for defence counsel to embark upon a dissertation on the onus and standard of proof, or the functions of judge and jury, or to anticipate the directions or warnings to be given by the trial judge, or to urge upon the jury the way that they should assess the evidence of a witness to be called in the Crown case. It behoves trial judges to ensure that the addresses of counsel are not open to abuse, particularly in a case where the contents of the address is circumscribed by a provision of an Act. To permit counsel to ignore such a limitation is not in the interests of justice, either generally or in the particular case. It may be appropriate for a trial judge to ensure, before the defence opens and in the absence of the jury, that defence counsel is aware of the limited basis of an opening under s 159 and that the address will comply with it.

140. The present is a good example of how defence counsel’s address far exceeded the legitimate bounds of an opening under s 159 and almost caused the trial to miscarry. There was little of the address that complied with the section and a significant part of it was completely inappropriate, even if it had been contained in a closing address to the jury.

141. Defence counsel seemed to believe that, because the Crown, in a moderate and appropriate opening to which no criticism could attach, referred to the extensive delay in the complaint and the fact that one offence was referred to as “buggery”, he was justified in making an opening address which included that part which is set out in the judgment of Levine J.

…

155. Although leave is not required for defence counsel to give an opening address to the jury under s 159, defence counsel should similarly not abuse the right given under the section by embarking upon arguments and submissions that are only appropriately made in closing address. As an opening address by the Crown should not contain any argument or submission to the jury as to the validity of its case, so the “matters disclosed in the prosecutor’s address” referred to in the section, cannot be arguments or submissions arising from the nature of the evidence to be called by the Crown. Nor should “matters to be raised by the accused person” be taken to include defence arguments and submissions based upon the Crown evidence or evidence which may be called in the defence case.

Smart AJ (would allow the appeal)

186. In his opening speech the prosecutor pointed out that the first six charges alleged offences occurring between 1 January 1982 and 31 December 1982 (later amended to 31 January 1983) and that the remaining charges alleged offences between 1 January 1983 and 31 December 1983. It was stated that this was not uncommon. The prosecutor continued:

"Now the reason why offences of that nature [sexual assaults] are charged in this fashion is really just common sense Given the passage of time, it would be unrealistic to expect [the complainant] to nominate a precise date on which it occurred. It's just commonsense."

187. It is not common sense that such lengthy periods should be specified. They flow from the alleged lack of memory of when the alleged incidents occurred.

188. Counsel for the appellant made an opening speech following that of the prosecutor and before any evidence was led. I agree with Howie J that the speech of counsel for the appellant exceeded the bounds permitted by s 159 of the Criminal Procedure Act and that it is important that those bounds be observed.

Spigleman J

1. In this matter I have had the advantage of reading the judgment of Johnson J in draft. I agree with his Honour’s reasons and orders. I wish to add a few observations with respect to Ground 4.

Simpson J

20. I agree with the orders proposed by Johnson J and with his Honour's reasons therefor. I also agree with the additional observations of the Chief Justice.

Johnson J

21. On 17 September 1998, John Thomas Kennett was a sentenced prisoner detained at the Junee Correctional Centre (“the Centre”). He had been sentenced to a term of imprisonment for child sexual assault offences. On the evening of 17 September 1998, Mr Kennett was beaten severely in his cell. He died within minutes as a consequence of injuries sustained in the beating.

22. The Appellant, Harry Robinson, was a prisoner detained in the Centre. He was charged with the murder of Mr Kennett. Following a trial before Barr J and a jury, he was convicted of murder on 20 April 2000 and sentenced to imprisonment for a term of 22 years with a non-parole period of 15 years: R v Robinson [2000] NSWSC 541. This trial followed an earlier trial in the preceding March which culminated in the discharge of the jury.

23. Following an appeal against conviction to this Court, the appeal was allowed, the conviction quashed and a new trial was ordered: R v Robinson [2003] NSWCCA 188. Following a trial before Greg James J and a jury, the Appellant was convicted of murder on 12 March 2004 and sentenced to a term of imprisonment of 22 years with a non-parole period of 14 years: R v Robinson [2004] NSWSC 465. That sentence commenced on 12 December 1999 and will expire on 11 December 2021. The Appellant will be eligible for release on parole on 11 December 2013.

24. The Appellant appeals to this Court against his conviction for murder. No challenge is made to the sentence imposed by Greg James J.

Grounds of Appeal

25. Six grounds of appeal were contained in a document filed on the Appellant’s behalf. They were:

(1) The learned trial judge erred in leaving to the jury, as a possible basis of conviction, a case not relied on by the Crown at trial and not supported by the evidence.

(2) The learned trial judge erred in his directions to the jury on the meaning of grievous bodily harm.

(3) The learned trial judge erred in that his directions on manslaughter were not in accordance with Wilson v The Queen [1992] HCA 31; (1991-1992) 174 CLR 313.

(4) The directions to the jury as to the manner in which the evidence of the various prisoners should be treated were inadequate.

(5) The learned trial judge erred in declining to direct that a view be held.

(6) The verdict of the jury is unreasonable.

26. At the hearing of the appeal, Mr Game SC, for the Appellant (who did not appear at trial), informed the Court that Grounds 2 and 5 were abandoned. The Appellant placed particular reliance upon Grounds 1 and 4 and, to a lesser extent, Ground 3.

…

30. The Crown opened and closed the case to the jury on the basis that the Crown’s eyewitness evidence ought be accepted and that the evidence was that the Appellant and Mark Brazel had entered the deceased’s cell and attacked him. The trial judge instructed the jury that it was open to them to convict on one of several scenarios, including one where the jury was satisfied that the Appellant alone entered the deceased’s cell and attacked him. The Crown had not advanced this alternative argument in opening or closing addresses. The Appellant now submits that the course taken by the trial judge was unfair and that a miscarriage of justice has resulted.

…

The Crown Opening

85 In the course of his opening address to the jury, the Crown Prosecutor said (T30.36):

“He died on 17 September 1998 after two men went into his cell and bashed him, using their hands and their feet, causing injuries to him principally to his head and from which he later died. Indeed, he died inside the cell before any help could usefully be summoned to assist him.

It’s the Crown case that it was the accused, although he was assisted by another person, it’s the Crown case that it was the accused who caused the man’s death by kicking him and stomping on his head causing those fatal injuries.”

Later in the opening, the Crown Prosecutor touched upon the cell area video which became Exhibit B1 (T35.56):

“The next category of evidence that the Crown has available is this; technical evidence. That is, the evidence about the closed circuit television. There will shortly be played to you a tape that will show you part of the events that occurred inside that pod at about 7.15 on the night that Mr Kennett died. It will be a matter for you to determine what you will from these tapes. They will become the evidence. The Crown contends that if you look at them carefully you will see that at 19.15 and 46 seconds - that will be marked on the video film itself - at that time, that is, at 19.15 and 46 seconds - that’s 46 seconds past 7.15 in the evening - two figures appear to enter the deceased’s cell and that at about 23 seconds later, at 19.16.09, which is 9 seconds past 7.16pm, a figure - possibly two - are seen to emerge from the deceased’s cell and walk away, possibly being followed by another man.

It’s the Crown case that those two figures seen entering the cell are, in fact, the accused and the man Brazel and it will, of course, be a matter for you to view that film and to assess it and draw what you will from it. That is the primary evidence.”

Towards the end of his opening, the Crown Prosecutor said (T37.25):

“I would anticipate that the real issue for your consideration would be whether or not the accused was responsible for his death. That is, was he one of the two men that went into the cell and stomped on his head and, perhaps to a lesser extent, there may be an issue as to what his intentions were.”

…

Ground 1 - The Learned Trial Judge Erred in Leaving to the Jury, as a Possible Basis of Conviction, a Case not Relied on by the Crown at Trial and Not Supported by the Evidence

Appellant’s Submissions

122. Senior Counsel for the Appellant submitted that the Crown opened its case upon the basis that two men had entered the deceased’s cell and beaten him to death. It was submitted expressly to the jury that “the Crown case [is] that those two figures seen entering the cell are, in fact, the accused and the man Brazel” (T36.15). Defence counsel had opened, following the Crown address, and submitted that the Crown could not exclude the reasonable possibility that only one man had entered the cell and the reasonable possibility that the man who did so was Terry Johnson (T39-41).

…

141. Thirdly, the obligation of the Crown Prosecutor in opening the Crown case is not merely to outline the facts which the Crown proposes to establish in evidence, but to indicate, in conceptual terms, the nature of the Crown case to assist the trial judge, counsel for the accused and the jury: R v Tangye (1997) 92 A Crim R 545 at 556. Although there are no formal pleadings as such in criminal trials, the Crown is required to formulate the basis upon which it puts its case against the accused and essentially to adhere to that case: Tran v The Queen [2000] FCA 1888; (2000) 105 FCR 182 at 203 [133].

142. If there is to be any change in the nature of the Crown case after the case was opened, it is vital that it be identified with some precision in the absence of the jury before counsel commence their final addresses: Tangye at 556. Where the prosecutor has nailed the Crown’s colours to one version of events in opening, and has been permitted to depart from that position during the course of the case, the prejudice may, depending on the particular circumstances of the case, be so great as to warrant the conviction being quashed: Tran at 206 [148].

…

Application of Principles to this Appeal

150. It is necessary to apply these principles to the present appeal.

151. The course of relevant events at the trial are set out, in some detail, earlier in this judgment. It is apparent that the Crown Prosecutor had made a clear and conscious decision to confine the Crown approach to the trial to one where the jury were told that they ought be satisfied beyond reasonable doubt that the Appellant and Mr Brazel had entered the deceased’s cell and attacked the deceased and beaten him to death. The principal Crown eye witnesses, Mr Digby and Mr Soonius, were to give evidence to this effect. It may be inferred that the Crown Prosecutor had given careful consideration to the relevance of the video tape and the forensic use which the defence would seek to make of it at the trial. This was a retrial and the defence had relied upon the video tape to challenge the evidence of Mr Digby and Mr Soonius in the first trial. Against this background, it ought be concluded that the Crown determined to rely upon one factual scenario only at the trial, namely that two persons entered the cell and attacked the deceased and that those persons were the Appellant and Mr Brazel. Such an approach had the consequence that the Crown did not need to advance an alternative scenario based upon partial rejection of the eyewitness evidence of Mr Digby and Mr Soonius, but relying heavily upon evidence of what were alleged to be admissions by the Appellant. The tactical and forensic considerations for not presenting the Crown case in this way were understandable. However, using the words in Tran, the Crown Prosecutor had “nailed the Crown’s colours to one version of events in opening” and, indeed, in closing to the jury.

152. Although it was possible for a conviction to follow from the acceptance by the jury, beyond reasonable doubt, of both the fact and the truth of the admissions allegedly made by the Appellant to Mr Soonius and Mr Van Hofwegan, coupled with partial acceptance of the eye witness evidence of Mr Digby and Mr Soonius, the Crown had not advanced such a case in its opening or closing addresses.

…

158. The Appellant has demonstrated unfairness in the conduct of the trial and that a miscarriage of justice occurred in this case. The first ground of appeal ought be upheld.

1. In the course of the Crown opening address, which commenced this morning, Mr Turnbull SC for the Accused, has risen to object to the content and tone of the Crown address. The application that is made is that the Court should remind the Crown of his obligations and to, in effect, seek to restrain him.

…

4. The issue has now arisen in the manner which I have identified this morning. The basis of the defence argument is a passage in the judgment of Howie J in R v MM [2004] NSWCCA 81; 145 A Crim R 148 at 177-178 [155]. It is a well-known passage, in which his Honour was dealing directly with the operation of s.159 Criminal Procedure Act 1986 relating to the ability of defence counsel to open to the jury immediately after the Crown opening. In that passage, Howie J said:

"As an opening address by the Crown should not contain any argument or submission to the jury as to the validity of its case, so the 'matters disclosed in the prosecutor's address' referred to in the section, cannot be arguments or submissions arising from the nature of the evidence to be called by the Crown."

5. In the course of argument which occurred in the first trial, I observed that it was necessary to have regard to the nature of the trial. In a single issue trial where the evidence to be adduced is relatively brief, and the issue in contest and the way in which the Crown puts its case may be shortly stated, the content of a Crown opening (and for that matter a defence opening after the Crown opening) are likely to be relatively brief and focused.

6. This is a trial with a four-month estimate. It is a lengthy and complex trial involving a multi-facetted Crown case. The Crown case is said to involve circumstantial evidence, forensic evidence, the evidence of Witness A and other evidence. It is said to involve a combination of direct evidence and inferences which the Crown says ought be drawn from the evidence.

7. It seems to me that the nature of an opening by the Crown in a trial must be affected, to some extent at least, by the issues in the trial and its complexity. A bare recital of the evidence to be adduced, without some articulation of the way in which the Crown says that the evidence is said to fit together, and what it is said to point to in support of the Crown case, would not be of meaningful assistance to a jury in a trial such as this.

…

12. An opening address should not, of course, be a form of early version of the closing address. I said to the jury this morning, before the Crown opened, that the Crown opening address has the purpose of informing them about the evidence the Crown expected to be led, and the manner in which the Crown put its case by reference to that evidence.

13. The Crown, of course, from time to time says the Crown case is X or the Crown case is Y. Mr Turnbull SC complains about that formulation. He submits it is contrary to Howie J's statement in R v MM. I do not agree.

14. In my view, there needs to be some articulation of the Crown case. However, there are two important aspects to be borne in mind. Firstly, the language used should not be intemperate or excessive. Secondly, there should be a reminder (and I will remind the jury of this when they return to Court), that the opening address is based upon evidence which the Crown anticipates will be called, and that whether the evidence actually given supports the matters relied upon by the Crown, as facts or conclusions to be drawn, will be a matter for the future as the evidence is given. It will be for the jury, as the judges of the facts, to find those matters. That is an appropriate reminder to be given to the jury and I will do so.