Prosecutor duties

The Court (Barwick CJ, McTiernan and Mason JJ)

1. The applicants were convicted of assault occasioning actual bodily harm to a Morrison and Richardson were also convicted of maliciously injuring property (the police officer's motor vehicle) on the same occasion. Each applicant was sentenced to four years' imprisonment for the offence of assault occasioning actual bodily harm. A minimum parole period of two years was specified. Morrison and Richardson received a sentence of imprisonment for one month, to be served concurrently, for the offence relating to malicious damage to property.

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5. One ground only was argued in respect of the appeal against conviction. It was submitted that the Crown prosecutor had failed in his duty to call a material witness, Dawn Gardiner, that this failure had led to her being called as a witness for the defence, with the consequence that she had been exposed to cross-examination by the Crown and that her evidence was less likely to be persuasive with the jury because it was associated with the presentation of the defence case, thereby placing the accused Keith Dickinson at a disadvantage to which he would not have been subject had she given her evidence in the course of the Crown case.

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7. It seems that the Crown prosecutor decided not to call her as a witness at the trial because he considered her not to be a credible or truthful witness. The evidence of Constable Baillie indicated that she had encouraged the accused to "get" him for the reason that he had the registration number of Ryan's car. Miss Gardiner attended the trial pursuant to a subpoena served upon her by the Crown. The accused's legal representatives were informed that she would not be called as a Crown witness, although she would be available to be called for the defence. She was called as a witness on behalf of Colin Dickinson and was cross-examined by the Crown prosecutor.

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11. Any discussion of the role of the Crown prosecutor in presenting the Crown case must begin with the fundamental proposition that it is for him to determine what witnesses will be called for the prosecution. He has the responsibility of ensuing that the Crown case is properly presented and in the course of discharging that responsibility it is for him to decide what evidence, in particular what oral testimony, will be adduced. He also has the responsibility of ensuring that the Crown case is presented with fairness to the accused. In making his decision as to the witnesses who will be called he may be required in a particular case to take into account many factors, for example, whether the evidence of a particular witness is essential to the unfolding of the Crown case, whether the evidence is credible and truthful, whether in the interests of justice it should be subject to cross-examination by the Crown, to mention but a few.

12. What is important is that it is for the prosecutor to decide in the particular case what are the relevant factors and, in the light of those factors, to determine the course which will ensure a proper presentation of the Crown case conformably with the dictates of fairness to the accused. It is this sense that it has been said that the prosecutor has a discretion as to what witnesses will be called for the prosecution. But to say this is not to give the prosecutor's decision the same character as the exercise of a judicial discretion or the exercise of a discretionary power or to make his decision reviewable in the same manner as those discretions are reviewable. In the context the word "discretion" signifies no more than that the prosecutor is called upon to make a personal judgment, bearing in mind the responsibilities which we have already mentioned.

13. It is, therefore, a misconception to speak of the prosecutor as owing a duty to the accused to call all witnesses who will testify as to the events giving rise to the offence charged. The misconception has arisen, we venture to think, from treating some observations in the decided cases, which have been made with the intention of offering guidance to prosecutors in how they are to approach their task, as the prescription of an inflexible duty to call all material witnesses, subject to certain exceptions or to special circumstances. Although the pursuit of certainty may have its advantages, the rigid circumscription of a practical decision to be made by the Crown prosecutor in the conduct of the Crown case is not to be numbered among them

The Court (Green CJ, Neasey and Everett JJ)

At 44

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:

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"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 56

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.

At 58

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

Gibbs CJ and Brennan J (allowing the appeal on the ground that the verdict was unreasonable)

1. We have had the advantage of reading the reasons which he has reached. However, we do not consider it necessary to discuss the question whether a judge presiding over a criminal trial has the power to call a witness of his own motion and without the consent of either the Crown or the accused. In the present case we are content to assume that the facts that neither the prosecutor nor the judge called the complainant as a witness did not in themselves provide a ground for setting aside the conviction, that the confessional evidence was rightly received and that the learned trial judge was correct in refusing to take the case from the jury. Notwithstanding that, on those assumptions, no error occurred at the trial, the case is one in which the Court of Criminal Appeal should have held that the verdict of the jury should be set aside on the ground that it was unreasonable, and should accordingly have quashed the conviction.

Murphy J (allowing the appeal on the ground that the failure to call the complainant “deprived the applicant of the right to test the reliability of the complaint”)

1. There was no direct evidence that the applicant indecently assaulted the child. The only evidence against him was a disputed confession, the circumstances of which were calculated to raise a reasonable doubt about its reliability, together with evidence of a complaint by the child some three to four months after the alleged offence. The prosecution did not call the child at the committal proceedings or at the trial and failed to give any satisfactory explanation for failing to call her at the trial.

Deane J (allowing the appeal on the ground that the failure to call the complainant was “unfair to the accused”)

2. There was no direct evidence before the jury that the applicant had committed the alleged assault. Although the child's name was included among the "witnesses" listed on the back of the indictment, she was not called to give evidence. The only proffered explanation of the Crown's failure to call her was that given by prosecuting counsel to the trial judge, in the absence of the jury, in response to a submission by the applicant's counsel that it was unfair to his client to have "the case conducted in that way". That explanation - if it can properly be so described - was that "having proofed the child witness I am not satisfied she would be any use as a witness" and that "the decision was made that she would not have been capable of giving evidence". The Solicitor-General for South Australia, who appeared for the Crown on the appeal, was unable to indicate whether that proffered explanation was intended to convey that the child would be incoherent as a witness or that she no longer claimed to have any memory of the alleged incident or that she would, if pressed, disown any allegation against the applicant. In the absence of the child's evidence, the case against the applicant was based on admissions which he was said to have made while being questioned by a Detective Jenkins at the Police Station in Elizabeth. The evidence of those admissions consisted of Detective Jenkins' oral evidence and a written record of interview which had been signed by the applicant on each of its six pages.

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5. Under the adversary system which operates in a criminal trial in this country, it is for the Crown and not the judge to determine what witnesses are called by the Crown. That is not to say that the Crown is entitled to adopt the approach that it will call only those witnesses whose evidence will assist in obtaining a conviction. Prosecuting counsel in a criminal trial represents the State. The accused, the court and the community are entitled to expect that, in performing his function of presenting the case against an accused, he will act with fairness and detachment and always with the objectives of establishing the whole truth in accordance with the procedures and standards which the law requires to be observed and of helping to ensure that the accused's trial is a fair one. The consequence of a failure to observe the standards of fairness to be expected of the Crown may be insignificant in the context of an overall trial. Where that is so, departure from those standards, however regrettable, will not warrant the interference of an appellate court with a conviction. On occasion however, the consequences of such a failure may so affect or permeate a trial as to warrant the conclusion that the accused has actually been denied his fundamental right to a fair trial. As a general proposition, that will, of itself, mean that there has been a serious miscarriage of justice with the consequence that any conviction of the accused should be quashed and, where appropriate, a new trial ordered (Criminal Law Consolidation Act, s. 353; Reg. v. Clewer (1953) 37 Cr App R 37, at pp 39-40 ). If there be exceptions to that general proposition, they do not presently occur to me.

6. Whether or not their names appear on the back of the indictment or information, all witnesses whose testimony is necessary for the presentation of the whole picture, to the extent that it can be presented by admissible and available evidence, should be called by the Crown unless valid reason exists for refraining from calling a particular witness or witnesses, such as that the interests of justice would be prejudiced rather than served by the calling of an unduly large number of witnesses to establish a particular point. All available witnesses whose names appear on the back of the indictment or information or who were called by the Crown to give evidence on any committal proceedings which preceded the trial should be called to give evidence, or, where the circumstances justify the Crown in refraining from leading evidence from such a witness, either be sworn by the Crown to enable cross-examination by the accused or, at the least, be made available to be called by the accused. Among the considerations which may justify the Crown in refraining from leading evidence from a particular witness is that the evidence which he or she would give is plainly untruthful or unreliable. If the Crown proposes to refrain from calling as a witness a person whose name appears on the back of the indictment or information or whom it would otherwise be expected to call as a matter of course, it should communicate that fact to the accused or his lawyer a reasonable time before the commencement of the trial. If the accused seeks to be told why the Crown is refraining from calling such a witness, fairness to the accused would ordinarily require that the Crown communicate the reason or reasons.

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14. In the above circumstances, the failure of the Crown to call the child as a witness or to provide some acceptable explanation for not calling her was unfair to the accused. No doubt, prosecuting counsel acted for what appeared to him to be worthy motives: there is no suggestion at all of professional misconduct on his part. The failure to observe the requirements of fairness was not, however, insignificant in the context of the overall trial. To the contrary, it affected the whole course and conduct of the trial and created a situation in which the applicant was denied, without any satisfactory explanation, the opportunity of testing, by cross-examination of a person whom the Crown was prima facie required to call as a witness, the genuineness and reliability of a damning statement by that person of which the Crown had led hearsay evidence. The unfairness of the position in which the applicant was placed was, no doubt inadvertently, highlighted by the learned trial judge when, in summing up to the jury, he mentioned that the applicant had been denied the opportunity of cross-examining the child "about the events, and if she is mistaken as to the identity, and indeed it was not the accused who committed the act against her but some other person . . ." (underlining added). The reference to the possibility that the child was "mistaken as to the identity" of the person "who committed the act against her" would obviously convey to the jury the trial judge's acceptance of the allegation in the prosecution evidence that the child had stated that she had been assaulted by the applicant in the manner alleged by the Crown.

Dawson J (allowing the appeal on the ground that the verdict was unsafe)

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14. It is convenient to put the first ground to one side and to turn immediately to the third and fourth grounds. It should be observed at the outset that no application was made by counsel for the applicant that the trial judge should direct the Crown to call the complainant or should call her himself. That may of itself be sufficient to dispose of these grounds, but it is desirable to say something further about them lest it be thought that they otherwise have merit.

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16. Nevertheless, there is good guidance in the cases for what constitutes a material witness. All available witnesses should be called whose evidence is necessary to unfold the narrative and give a complete account of the events upon which the prosecution is based. In general, these witnesses will include the eye-witnesses of any events which go to prove the elements of the crime charged and will include witnesses notwithstanding that they give accounts inconsistent with the Crown case. However, a prosecutor is not bound to call a witness, even an eye-witness, whose evidence he judges to be unreliable, untrustworthy or otherwise incapable of belief. And if the number of witnesses available for the proof of some matter is such that in the circumstances it would be unnecessarily repetitious to call them all, then a selection may be made. All witnesses whose names are on the indictment, presentment or information should nevertheless be made available by the prosecution in order that they may be called by the defence and should, if practicable, be present at court. See R. v. Dora Harris (1927) 2 KB 587, at p 590 ; Ziems v. Prothonotary of the Supreme Court of N.S.W. [1957] HCA 46; (1957) 97 CLR 279, at p 294 ; Seneviratne v. The King (1936) 3 All ER 36, at p 49 ; Adel Muhammed El Dabbah v. Attorney-General (Palestine) (1944) AC 156, at pp 167-169 ; Reg. v. Oliva (1965) 1 WLR 1028; (1965) 3 All ER 116 ; Reg. v. Lawson [1960] VicRp 7; (1960) VR 37 ; Reg. v. Lucas [1973] VicRp 68; (1973) VR 693, at pp 705-708 .

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.

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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.

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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.

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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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35. Then the appellant complains that the Crown Prosecutor posited various matters which the appellant was required to explain. I will only for present purposes mention only two examples, although there are many. The Prosecutor stated:

"Well he's got to explain why he left the nightclub without speaking to her and put the clothes on the verandah"

and further:

"How am I [referring to the appellant] going to explain the fact that this woman has a hole in her stomach, that she's been stabbed through the abdomen, and even her liver, how am I going to explain that?".

These statements, I immediately observe, reverse the onus of proof. The burden which the Crown carried from beginning to end in this trial was to establish beyond reasonable doubt that the accused stabbed the complainant. The accused bore no onus at all.

36. It was then contended by the appellant that the Prosecutor purported to summarise “in a mocking and ridiculing way”, the appellant's answers to the Crown's rhetorical questions. Such, it is contended, is apparent from the passage which I have quoted. Further, it is contended, the Prosecutor attempted to satirise the appellant's explanation of how the victim injured herself by comparing it to scenes from The Fugitive or The X-Files.

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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.

The Court (Gleeson CJ, McHugh, Kirby, Hayne and Callinan JJ)

9. Determination of unfitness: On 27 March 2001 the District Court (Stewart ADCJ) directed that there be a hearing with respect to the appellant's fitness to stand trial. On 25 September 2001 the Mental Health Review Tribunal, acting pursuant to s 16[1] of the Act formed this view:

"that, because of [the appellant's] moderate intellectual disability, [the appellant] would not meet the criteria as described by Smith J in R v Presser, for fitness to be tried for an offence, and that on the balance of probabilities, this situation will continue, and [the appellant] will not become fit during the period of twelve months after the finding of unfitness."

10. Direction for special hearing: On 28 November 2001 the Attorney-General for New South Wales, in accordance with s 19 of the Act, directed that a special hearing be conducted of the charges against the appellant.

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21. The next ground of appeal was as follows:

"The trial/special hearing miscarried by reason of the Crown's failure to place evidence before the jury of the nature and extent of the appellant's mental illness and unfitness to give evidence in the light of:

(a)         The Crown's refusal to consent to the trial/special hearing proceeding before a Judge alone as permitted by the relevant legislation, so requiring it to be a trial by Jury;

(b)         The Crown's requirement and the trial Judge's order that the appellant be present throughout the trial/special hearing;

(c)          The fact that the appellant had previously given sworn evidence on these issues of which the jury had not rejected."

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52. The prosecutor's suggested duty: The appellant argued that the prosecution should have adduced detailed evidence of the appellant's mental unfitness so that the jury could understand, or understand better, the respects in which she was disabled, and might therefore be denied full participation in her trial. To some extent the trial judge in referring to Dr Menzies' evidence in relation to the second application, did do this.

53. It is true, however, that at no stage did the jury have the benefit of expert testimony concerning the appellant's mental health. All that they had was the trial judge's economical opening remarks about the appellant's mental health. The appellant's submission, in substance, was that it was unfair to her for the respondent to fail to tender in the special hearing itself detailed evidence of the kind to which we have referred.

54. There is no doubt that the prosecution is under a duty to present the case fairly and completely. Long ago, in R v Puddick Crompton J made the following observation of prosecutors:

"[they] are to regard themselves as ministers of justice, and not to struggle for a conviction"

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55. No error is established: There are however several reasons why the respondent should not be regarded as failing in any obligation to present medical evidence of mental unfitness in this case.

56. First, the Act, which is very explicit as to what should take place at a special hearing, does not require it.

57. Secondly, a special hearing is to be conducted as nearly as may be, as a normal criminal trial. In the latter, although the prosecution is bound to present all arguably credible and relevant evidence, it is not obliged to prove, as may sometimes be the case, that an accused has a very limited intelligence or capacity to comprehend readily what might be obvious to a person of a higher intellect.

58. Thirdly, evidence tendered by the prosecution as to the nature and extent of an accused's mental unfitness might be prejudicial to the accused. It might establish a limited or highly specific form of mental infirmity thereby raising questions in jurors' minds about courses taken or not taken by, or on behalf of, an accused during the trial.

59. And, last, in any event, it has not been shown that there was any actual unfairness to the appellant here, that is apart from any possible unfairness that may exist in undertaking the exercise of conducting the special hearing which the Act mandates. It must be accepted that the New South Wales Parliament, acting within its powers, has so provided. A complaint of unfairness against the statutory procedure cannot avail the appellant.

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."

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

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

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

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

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65. The appellant next drew attention to the final address of the Crown prosecutor, where he said this: (T448)

"Another matter I want to emphasise to you is that any first year law student knows, and I am sure my learned friend is intimately aware of it and even though you're not lawyers, I am sure it will make sense to you: if as part of your case which you present you want to put against a witness for the other side, that you want to say well look, you delivered this affidavit to my client at his home at Sylvania Waters when you went there, something to do with a jet ski. If you knew that, you wouldn't let the witness give his evidence, go away and then when the other side closed their case bring it up. It would be most unfair. Does it make sense to you? That is the law. You must put to that person that that is your case. You don't wait until they go and then raise it so they cannot answer it. I wouldn't for one in a nano second suggest that (counsel for Mr Liristis) deliberately did that. She would not be so stupid.

In fact if you recall the questions she was asking, they were specific questions. You might think she was just as surprised as I was at some of the answers. I had to stand up and say, your Honour, this was not put to Mr Jordan. This was not put to Mr Xenos. It should have been. (Counsel for Mr Liristis) knows that. I think she was just as surprised because questions in a case advanced on instructions from our clients, of course that material came, it should have come earlier. It should have been put to those witnesses, all this business about being friends for 25 years, this special relationship, other than a professional relationship and why it was that affidavits are being drawn up and signed and taken back. Ladies and gentlemen, I would ask you to, when you come to assess the evidence to bear all those things in mind."

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).

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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."

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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.

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101. One would have assumed that no further reference would have been made to these exhibits. Regrettably, however, the Crown returned to the issue. In his closing address he said this: (T443)

"For a case that is all about lies and telling lies - you know something, he relied on the letter, which was relied on, it was exhibit 8. And you will recall that I put to him quite fairly and squarely that is a forgery. That is not a fair dinkum letter. That's a made up letter. That's a fabricated letter. And now he doesn't rely on it any more. And that's a matter for you.

What's important - and then he was accused of producing something that was a forgery, that was made up, a lie and he has withdrawn it. He no longer relies on that letter. That's for the 11 of you and you can consider what conclusion you come to about that."

102. Later the Crown added the following: (T445)

"That's put on instructions the same as when I put to the accused that very serious accusation of what used to be Exhibit 8, and has now been withdrawn: 'that was a forgery'. That's a very serious thing. I don't just make that up in the air. There are rules about that. That's a very serious thing to accuse someone of ...

So these things are put on instructions ..."

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

150. I agree with Kirby J.

McClellan CJ at CL

1. The appellant appeals against his conviction on four counts of indecent assault, three counts of homosexual intercourse and two counts of an act of gross indecency committed on his brother’s stepson DP. He was sentenced on each count, the sentencing providing a total non-parole period of four years and six months with a balance of the total sentence of two years and six months.

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Ground Two – The trial miscarried as a result of comments made by the Crown Prosecutor in his final address to the jury.

32. In accordance with the statute the Crown Prosecutor’s address preceded that of defence counsel and the final summation by the trial judge (see s 159 Criminal Procedure Act 1986). When making his address prosecuting counsel was confined by the duties and obligations which the law imposes on a prosecutor, which are different to the duties and obligations of defence counsel. In R v Joseph Attallah [2005] NSWCCA 277 James J quoted from the decision of the Tasmanian Court of Appeal in R v McCullough (1982) 6 A Crim R 274 at 285 where the obligations of prosecuting counsel were described in the following terms:

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33. As was emphasised in Rugari provision is made in the Director of Public Prosecutions NSW Prosecution Policy Guidelines, which incorporate the Bar Rules, for the obligations required of the prosecutor when conducting the Crown case, which extend to the submissions made to the jury in final address.

34. In the present case the appellant complained that the prosecutor’s address transgressed the boundaries within which it should have been confined. Regrettably, many of the criticisms are justified. The question is whether they have caused a miscarriage of justice requiring a new trial.

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37. These observations were entirely inappropriate. It was not for the Crown Prosecutor to second-guess the trial judge or, as he was plainly seeking to do, confine the impact of any warning which the trial judge would give to the jury in relation to the approach to the complainant’s evidence. The remarks had the tendency to derogate from the judge’s authority and should never have been made: see R v MM [2004] NSWCCA 81; (2004) 145 A Crim R 148.

38. The prosecutor was correct in anticipating that this was a case where clear warnings as to the care with which the jury would consider the evidence were required. However, his duty was to listen to his Honour’s directions and, if he believed it to be necessary, seek any further direction or redirection which he believed to be required. It was entirely impermissible to seek to confine the impact of those directions and the warnings which the trial judge was obliged to give.

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42. Complaint was also made about the Crown Prosecutor’s discussion of the credibility of the complainant. Two vices were suggested. Firstly, it was submitted that the prosecutor invited the jury to speculate about the thought processes of the complainant in the absence of any evidence to support his argument. The particular parts of the prosecutor’s address about which complaint is made began with the following:

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45. It was submitted that there was no evidence to support the comments made by the Crown Prosecutor. There was no evidence as to whether the complainant could be categorised as a “good kid.” There was no evidence that he had a particularly high regard for his uncle. It was submitted that the prosecutor made further assertions, unfounded in the evidence, regarding why the complainant may not have informed other family members as to what he said was going on between him and his uncle. He said:

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50. It was submitted that the prosecutor then, effectively, invited the jury to speculate as to the motivation of the complainant in making his allegations. The prosecutor said:

“Look at just how complicated [the complainant's] allegations are. [The complainant] was alone with the accused, on many, many occasions. If he’s not telling you the truth, once again he’s been fantastically, mind-bogglingly clever, hasn’t he? ... If all he wanted to do was get [the appellant] into trouble, it’s just not necessary to be that complicated. Have you ever met a liar who will deliberately sit down and tell you a fantastically complex lie? ... Have you ever met a liar who tells lies to make themselves look bad? Because much of what [the complainant] says is extremely demeaning to [the complainant] and you can see how much it upsets him talking about this stuff. When was the last time you told somebody a lie to demean yourself?”

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The Crown suggests that if [the complainant] is not telling you the truth there must be a very specific amount of trouble that he wants to get [the appellant] in... .”

51. Further complaint is made that the prosecutor twice gave the jury his personal opinion when he said:

“One of the ways [the complainant] will be criticised, and I think it’s strange but it’s a matter for you – I shouldn’t say ‘I think’. On behalf of the Crown I suggest that it’s strange that the accused chose the time ... But it will be said that you wouldn’t believe that happened because of the time and place ....

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53. To my mind there is no question but that the Crown Prosecutor’s address was inappropriate and breached the obligations which fell upon him. The introduction of his own personal thoughts were a gross breach of his duty to present the Crown case in an impartial and fair manner. By imposing his own view on the jury there was a risk that they might believe that they were required to decide whether the prosecutor was correct in his personal views rather than assessing for themselves whether the evidence proved the Crown case: see R v Rugari [2001] NSWCCA 64; (2001) 122 A Crim R 1 at 11.

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56. Notwithstanding the serious transgressions by the Crown Prosecutor I do not believe, either individually, or together, they caused the trial to miscarry. In this respect the summing up by the trial judge is of particular importance. His Honour, of course, gave the jury directions after defence counsel had an opportunity to address the jury and respond to the prosecutor’s address.

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60. With respect to the inference that the Crown Prosecutor’s address raised the impermissible question “why would the complainant lie” I entertain more significant reservations. However, the issue must be considered having regard to the trial judge’s remarks which directly addressed the matters raised by the prosecutor.

James J

79. I agree with McClellan CJ at CL.

Hall J

80. I agree with McClellan CJ at CL.

The Court (McClellan CJ at CL, Johnson and Latham JJ)

1. The appellant, Dean John Livermore, appeals against his conviction at Tamworth District Court on 3 June 2005, after a trial lasting four days, on three counts of Sexual Intercourse Without Consent and one count of Assault with an Act of Indecency.

2. The three grounds of appeal all arise out of the Crown Prosecutor’s closing address. In particular, those grounds turn upon the Crown Prosecutor’s treatment in that address of a Crown witness, the complainant’s boyfriend, in a manner that is alleged to have caused a miscarriage of justice. There are no issues relating to the admissibility of the evidence at trial, nor the directions of the trial judge, other than those touching directly upon that portion of the Crown’s address that is impugned. It is not necessary therefore, for the purposes of this appeal, to canvass the evidence in the trial in great detail. The summary of the evidence that follows concentrates on the events immediately surrounding the commission of the alleged offences.

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16. The submission in support of the first and second grounds is that an examination of the whole of the Crown address reveals a degree of unfairness and prejudice that could not be cured by directions to the jury. Specifically, the appellant took the Court to a number of passages in the transcript of the Crown’s address that were said to improperly disparage a Crown witness, improperly disparage and dismiss the appellant’s case at trial and undermine the role of the appellant’s counsel. Ground three was argued in the alternative to ground two.

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31. This brief review of the authorities relevant to the disposition of this appeal disclose a number of features of a Crown address that have, either alone or in combination, consistently been held to justify the censure of this Court. They are:-

(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 credit.

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

32. In distilling these features, it is not suggested that a formulaic approach may be taken in assessing whether or not a Crown address exceeds the proper boundaries. On occasions, it may be that the overall tenor or impression made upon a jury by a Crown address which exhibits few, if any, of these features nonetheless gives rise to the prospect that an accused has not received a fair trial. However, where a number of these features are present in a Crown address, there is a very real risk that a ground of appeal based upon the unfairness occasioned to an accused by such an address will succeed.

33. The Crown address in the instant case displayed all of the above features with the exception of (iv). The Crown made a submission to the effect that women who are raped will invariably have a shower or bathe because they feel “dirty" in the aftermath of the assault. This submission was without any foundation in the evidence at trial. No doubt the Crown Prosecutor anticipated that the appellant's counsel at trial would place some reliance on this aspect of the complainant's behaviour, it being consistent with consensual sexual intercourse. The complainant was not asked why she had showered. Rather, the Crown Prosecutor professed some personal knowledge of this characteristic of rape victims as depicted in movies. The jury was then invited to rely upon their own experience of such films, which may or may not have accorded with the Crown Prosecutor’s opinions.

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35. The repeated characterisation of the complainant's boyfriend as an "idiot" was highly improper. The trial judge was correct in suggesting to the jury that the Crown Prosecutor was not asking the jury to disregard what the witness had heard and seen on the night in question. In that sense, the Crown Prosecutor’s submissions were not strictly speaking an attack upon the credit of the complainant's boyfriend.

36. However, the vice in the submission was much more insidious. It was an intemperate attack that was inclined to arouse the jury’s prejudice towards a Crown witness who was integral to the defence case theory. It was also a submission that was designed to ridicule and belittle that case theory. By conveying to the jury in no uncertain terms that counsel representing the interests of the community and of the State regarded a witness as a fool to entertain for one moment the thought that the complainant may have had consensual sexual intercourse with the accused, the jury were in effect being told that they were also fools if they were to reach the same conclusion. Such a submission represents a significant departure from the responsibilities and obligations of a Crown Prosecutor to persuade a jury of an accused’s guilt by way of balanced and rational argument based upon the evidence in the trial.

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38. The Crown Prosecutor made a number of comments that could have had no effect other than to ridicule the defence case. References to the defence case as "bizarre", "silly" and reminiscent of a plot worse than “Desperate Housewives” disparaged and dismissed the accused’s case. The objective features surrounding the alleged assaults upon the complainant provided the appellant with ample material capable of raising a reasonable doubt in the minds of the jury as to the alleged non-consensual nature of the sexual activity. It was the critical issue in the trial and was worthy of serious consideration. The Crown Prosecutor's comments may well have deflected the jury from that task.

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41. The combination of these features of the Crown address represents a serious departure from the standards of fairness required of a Crown Prosecutor. Moreover, we would be inclined to that view solely on the basis of the Crown Prosecutor’s disparagement of a Crown witness whose evidence was partly favourable to the appellant (see Kennedy). That aspect of the Crown address was particularly damaging, and the trial judge’s somewhat qualified reproof (“probably not appropriate”) was insufficient in the circumstances.

42. We acknowledge that the trial judge was placed in an invidious position when the application for discharge was made. No doubt, his Honour expected a measure of redress by way of defence counsel’s address. Yet defence counsel’s address could not counter the abuse of the Crown Prosecutor’s role. His Honour was required to lend his authority to an unambiguous denunciation of the Crown Prosecutor’s conduct. That was not done.

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48. We would add, with emphasis, that the role of the prosecutor must be performed without any concern as to whether the case is won or lost. As the High Court makes plain, the purpose of the prosecutor is to expose the truth which may or may not result in a conviction.

McClellan CJ at CL

1. Ms Caroline Byrne died on the night of 7 June 1995. Her body was recovered from the rocks at the Gap at Watsons Bay in Sydney early the following morning. At the time the assumption was made that, like many others had done before her, she committed suicide by jumping from the cliff top. A coronial inquest was held in November 1997. The Coroner returned an open finding in February 1998.

2. Eleven years after Ms Byrne died, on 3 May 2006, Gordon Wood, who I shall refer to as the applicant, was charged and subsequently convicted of her murder. He had been living with Ms Byrne at the time of her death and was the first to raise the alarm concerning her wellbeing. Although suspicion attached to him, and some of his actions at the time caused Caroline's father and other members of her family to have doubts as to whether he had been somehow involved in her death, the objective facts were apparently considered to be insufficient for the authorities to take any action.

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577. Section 13 of the Director of Public Prosecutions Act 1986 empowers the Director to furnish guidelines to Crown prosecutors in respect of the prosecution of offences. Section 15(2) further provides that prosecutors to whom the Director has furnished guidelines are obligated to comply with those guidelines. The current Guidelines were in force at the time of the applicant's trial, and the Barristers' Rules set out above were incorporated into Appendix B to the Guidelines. Relevantly, Guideline 2 sets out the "Role and Duties of the Prosecutor" as follows:

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578. The duty to present a case fairly, completely and with fairness to the accused was emphasised in Livermore v The Queen [2006] NSWCCA 334; (2006) 67 NSWLR 659 at [24] where this Court cited with approval the dicta in McCullough v The Queen (1982) 6 A Crim R 274; [1982] Tas R 43 at 57:

"[It is] quite impermissible [for a Crown Prosecutor] to embark upon a course of conduct calculated to persuade the jury to a point of view by the introduction of factors of prejudice or emotion. If such a situation should develop and there is a real risk that the conduct complained of may have tipped the balance against the accused then an appellate court will not hesitate to follow the safe course and order a new trial."

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604. The second issue raised under this ground of appeal concerns the course which the Crown prosecutor took at the end of his address to the jury. He initially asked the trial judge whether he could give the jury a series of 50 questions incorporated in a written document. Defence counsel objected and the trial judge refused to allow this to occur. The prosecutor then introduced the questions in his oral address. Defence counsel took no further objection and it was submitted by the respondent that Rule 4 applies. Final resolution of that question depends upon a proper understanding of the nature of the objection. However, I do not believe it is necessary to take time over that issue. If further objection should have been taken it is clear that there was no tactical reason why it was not taken. The difficulties which the prosecutor's conduct created are so significant that I am satisfied it caused the trial to miscarry occasioning a miscarriage of justice.

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631. On several occasions the prosecutor offered his own opinion as to how a person committing suicide would act. This included saying to the jury that "People that commit suicide generally don't argue for an hour beforehand." There was no evidence in the trial to support this opinion. He also spoke of the phenomenon of people who commit suicide leaving messages to others prior to their death. These submissions were contrary to the evidence of the only relevant expert in the trial, Prof Goldney, that people certainly do not always exhibit depressive symptoms prior to a suicide attempt. The prosecutor's remark should not have been made. It was a serious breach of the prosecutor's duty to put the Crown case fairly before the jury: Libke at [71] (Hayne J); Richardson v The Queen [1974] HCA 19; (1974) 131 CLR 116 at 119 (Barwick CJ, McTiernan and Mason JJ); R v Rugari at [53]; R v Liristis [2004] NSWCCA 287; (2004) 146 A Crim R 547 at [90]- [95] (Kirby J, Studdert and Hislop JJ agreeing); R v KNP [2006] NSWCCA 213, (2006) 67 NSWLR 227 at [32] (McClellan CJ at CL, James and Hall JJ agreeing); Livermore at [31].

635. There were further matters in the Crown prosecutor's address about which the applicant, in my opinion, justifiably complained in relation to some of them. They included the following:

• An attempt was made by the prosecutor to explain "beyond reasonable doubt" and "reasonable possibility" to the jury. However, the trial judge intervened to stop the prosecutor and his error did not ultimately occasion any prejudice to the applicant.

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Latham J

810. I agree with the reasons of the Chief Judge at Common Law and with the orders proposed. I only wish to add the following comments, in the light of the applicant's acquittal of murder.

Rothman J

820. I too agree with the reasons of the Chief Judge at Common Law and with the orders proposed. I also agree with the additional comments of Latham J.

The Court (McClellan CJ at CL, Fullerton and Garling JJ)

1. The applicant was convicted after trial of the murder of his parents. He appeals against his convictions and seeks leave to appeal against his sentence.

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Ground 10: The trial miscarried because the Crown Prosecutor engaged in cross-examination of the accused in an improper manner.

Ground 12: The trial miscarried because the Crown Prosecutor addressed the jury in an improper manner.

420. The applicant submitted that the Crown Prosecutor cross-examined on topics for which there was no evidence and on topics that were irrelevant and highly prejudicial. It was also submitted that the Crown Prosecutor caused a mistrial by addressing the jury in an improper manner.

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433. It is plain that the Crown Prosecutor was entitled to challenge the evidence of the applicant and to raise particular expected responses. However, what was formerly Rule 64 of the NSW Barristers' Rules (now Rule 84) provides that "A prosecutor must not, by language or other conduct, seek to inflame or bias the court against the accused". The words used by the Crown Prosecutor and the manner in which her challenge was put to the applicant were inflammatory and inappropriate. The Crown Prosecutor's use of similar language in her closing address was similarly inappropriate.

434. The applicant also referred to aspects of the Crown Prosecutor's closing address to the jury that dealt with the applicant's alleged "disdain" for his family. These included statements that:

"he [the applicant] didn't know his brother at all";

the applicant was "the odd man out in the family";

"During cross examination he [the applicant] was given ample opportunity to show you that he had a close and loving relationship, a regard, a respect, for his parents. Did we see it? Did we see any respect for his brother? Far from it"; and

"he [the applicant] was prepared to talk about his [father's] work in such a dismissive, such a condescending fashion, you might think, and that's the context of this family, that's the context even after the passage of years, even after perhaps any unpleasantness would have dropped out of memory - leaving aside the dreadful events of that night - all the bad qualities would drop out and all the good qualities would be there and that's the best that we can have about those three people who all died that night, from this accused in this court."

435. The Crown Prosecutor's description of the applicant talking about Mr Gilham's work in a dismissive and condescending fashion related to answers given by the applicant to questions about his father's qualifications as a scientific instrument maker…