Abbott v R [2015] NSWCCA 7 | Case summary

Leave to appeal must be granted

In my view leave to appeal under s 5 should be granted, given the Crown's concession, but the appeal would have to be dismissed.
No objections were taken at trial to any of the matters raised on appeal and no directions were sought of the trial judge, as to the aspects of the Crown's address it is now complained gave rise to a miscarriage of justice. In these circumstances Rule 4 of the Criminal Appeal Rules (NSW) applies. It provides that no omission to direct by the trial judge may be advanced as a ground for appeal without leave, unless objection was taken at the trial to the omission by the party applying for leave to appeal.
In the circumstances of this case, leave under Rule 4 ought to be given, even though the course taken at trial was the result of forensic decisions then made by the applicant, given what was in issue. It was then plainly recognised that the way in which the Crown put its case did not amount to a miscarriage of justice and did not require further directions to be given by the trial judge, given the written and oral directions which were in fact given.
The case turned entirely on the truthfulness and reliability of evidence called by the Crown and that given by the applicant. The applicant elected to give evidence and accordingly, his evidence was subject to the same tests which are generally applicable to witnesses in a criminal trial: Robinson v The Queen at 536.
Syme DCJ instructed the jury at the outset that the Crown had to prove the charge to which the applicant had pleaded not guilty, beyond reasonable doubt. The jury was also instructed that they would have to assess the witnesses' evidence and that they did not have to accept or reject the whole of any witness' evidence, but could accept or reject a part of the witness' evidence, if there was a logical and proper reason to do so.
The Crown's case was circumstantial. It was opened by the Crown on the basis that it had to prove beyond reasonable doubt that the applicant had wounded Mr Tucker at the time and place alleged, intending to cause him grievous bodily harm. The evidence which Mr Tucker and other witnesses were expected to give was outlined and the jury was informed that none of them would say that they had seen the applicant wound Mr Tucker. The jury was not at that point addressed by counsel for the applicant.
Evidence was called by the Crown from Mr Tucker, Mr Balchin, Mr O'Dea, Mr Webb and Detective Senior Constable Walker and various things were tendered. The applicant then gave evidence.
The applicant's evidence as to how much alcohol he had consumed conflicted with that given by Mr Webb, who had not consumed any alcohol at the party. Mr Webb's credit was not challenged. The applicant's evidence about the altercation with Mr Tucker and that given by Mr Tucker, also conflicted. Their credit was in issue. The jury thus had to decide whose evidence they would accept on critical matters. Whether the jury would prefer the applicant's evidence over that of Mr Webb, was, in the circumstances, important to how the conflict between the evidence of Mr Tucker and the applicant would be resolved.
The Crown then addressed the jury on these matters.
The first parts of the address quoted below, which are highlighted in bold, were relied on appeal, to establish the miscarriage of justice claimed. It is important to see those parts of the Crown' address in their context. It was submitted, by the Crown, as to the witnesses' evidence: "I told you again in my opening and it's important that you understand that the Crown does not have to prove every word of every witness beyond a reasonable doubt. What the Crown has to prove beyond a reasonable doubt are those essential elements. And if you think about it for a minute when you had realised that when a witness comes before you to give their evidence what they are telling you is what their recollections are of an event that occurred in this case over two years ago and your common sense and your experience of life will be telling you that when a number of people are present when an event occurs and later asked to recount what that event was they will give different versions of what they saw or heard, and that's because different people have different abilities. Some people are more observant than others and some people maybe[sic] affected, certainly in this case, by alcohol, it may have been a stressful or an anxious type of situation, as in this case, so it may be something that you would expect that when a number of people have given evidence about the same event they give different versions. You may think that that's not unusual at all. You may think that when these witnesses before you gave their evidence and obviously some had better recollections than others. Some were affected by alcohol and if my memory serves me correctly that some said that there were some incidents that they remember and some that they were very hazy about. What the Crown has to prove beyond a reasonable doubt, as I told you the other day, the essential elements of the count before you and those essential elements, and I have no doubt that her Honour will give you some written directions of what the elements are, but they are that it was the accused that wounded Mr Tucker, that when he inflicted the wound he had an intent to cause grievous bodily harm and, in fact, grievous bodily harm was inflicted. (236-237)
As to credibility it was submitted: "You are also going to be asked to make determinations about the credibility or the believability of the witnesses that you have seen and heard in this case, the accused, for example, and Mr Tucker. In other words you are going to be asked whether or not those witnesses are worthy of belief. And if you think about that for a moment also that is again something you do everyday in your lives, you make decisions about the acceptability of people. We have all had experiences of people that we know and if they told us something we would accept it outright. We perhaps also know people that exaggerate or may be forgetful or may be who are event deceitful. And your experience of life as a member of the community will also tell you that when you come to decide about whether a person is worthy of belief you will find it important to not only to listen to what the person says, but to observe them and see the manner in which they say it." (238)
As to assessing the witnesses it was submitted: "Her Honour told you at the opening of the trial that when assessing witnesses you didn't have to accept all that a witness told you, you didn't have to reject all that a witness told you, you're entitled to accept parts of the evidence and reject parts of the evidence. What you accept and what you reject it's a matter for you. And an example of that is, for example, Mr Balchin, who said he was affected by alcohol, some things that he could remember clearly and others that he couldn't Mr Tucker also said to you that some parts of the night were just a blur. So you can accept if you wish to accept parts of the evidence and reject parts. It's also important I would suggest to you that to assess the witness and first of all determine whether they are telling you the truth, that is, is the witness genuinely trying to assist you and give an accurate version. Obviously, because if they are not it's not going to be of any assistance to you and you may reject the evidence entirely. Once you accept the witness as reliable you then look at the second aspect, that is once you accept the witness as truthful then you look to see if the witnesses were reliable. The witness may be trying to do their best to assist you and give an accurate account of what occurred, but their memory may be so bad or affected by alcohol that they are just wrong. An example of credibility and reliability may be the comparison between the accused and Mr Webb, who was the last civilian witness. You will recall that Mr Webb, who did not drink on that night and who left at about 1.30, said that in his opinion - somebody who was sober, not drinking - that the accused was the drunkest person at the party. Compare that to the accused's version, who said he had six drinks over a six hour period. If you accept Mr Webb's evidence, and I suggest you should, because there was no motive for him to give you a version which is not accurate or truthful, if you accept Mr Webb then you would reject the accused's evidence that he only had six drinks in a six hour period. And if you reject or accept Mr Webb you might ask yourself why the accused said that he only had six drinks in that six hour period. Was he not telling you the truth? Was he trying [to] colour his evidence to make his evidence more acceptable, more credible? Was he trying to discredit Mr Tucker? Who agrees that he had a lot to drink and also ingested cocaine, as he tried to, by inference, suggest to you that his, that is the accused's version, is more accurate than Mr Tucker. But if you reject the accused's evidence in relation to how much he had to drink that night and you accept Mr Webb you may think that the reasons for the accused telling you that he only had a small amount to drink is sufficient for you to reject his evidence outright, because if he's not telling you truth in relation to how much he had to drink and you infer the reason for him not telling you will give you an accurate estimate of how much he had to drink and what his state of intoxication was, was to discredit somebody else, in particular Mr Tucker then you might think that the whole of his evidence is just not worthy of being accepted by you. And that would be my submission, that one piece of evidence alone is sufficient for you to reject the evidence of the accused, because he's obviously not trying to assist you, he's not telling you the truth, the reasons are that he's trying to discredit Mr Tucker and the reason why he's trying to discredit Mr Tucker is because Mr Tucker gives an accurate account of what occurred." (238- 239)
As to motive it was submitted: "You might also when assessing witnesses look to see if a witness had a particular - or had a motive to give a particular version. Mr Webb, I suggest to you, has not[sic] motive whatsoever. Does Mr Tucker have a motive to suggest or to tell you on oath that it was the accused who struck him on the head and slashed his face. Why would he pick on Mr Abbott? Out of all the people there why suggest that it was Abbott who did it, or did it deliberately? Is there a motive for the accused not to give you an accurate version of what occurred? You might think that his motive is that he is facing a serious criminal charge. As I said, who you believe and who you don't believe is a matter for you. What parts of the evidence you accept and what parts you reject is a matter for you. But in doing that, apart from a clear comparison when two witnesses give conflicting versions, for example, Mr Webb and the accused in relation to how much they had to drink. You may also compare the evidence of a witness with the physical evidence in the case, and the physical evidence comes from the photographs, and you might compare the evidence and the versions given by the witnesses to what's shown in the photographs immediately after the event." (239-240)
As to the conflict in the evidence of the witnesses it was submitted: "Mr Tucker you will recall, and I will be very brief, Mr Tucker said the accused struck him to the head with the bottle which left a bruise and some minor lacerations, and he indicated to you it was at his headline just above his left ear. He said then that the accused took his hand away about six inches and came back again with a broken bottle, and again he demonstrated to you in a downward motion with the broken bottle, and that was the laceration to his cheek. The accused said that Mr Tucker came to him with the bottle, he ducked under the bottle, it glanced off his shoulder, the accused said he grabbed the hand of Mr Tucker and the bottle at the same time, he was pushed back against the wall, he then pushed off the wall forward and stumbled. He doesn't know how the bottle smashed, he said it may have smashed on the wall or it may have cracked on his head, but he did not see any injury and didn't see any blood. It wasn't until the next day he spoke to or text Mr Balchin that he became aware of the injury. If you believe - it's no secret, if you believed the accused version of the events and he doesn't deliberately or recklessly wound Mr Tucker and you could not find him guilty. To find the accused guilty you have to reject his evidence, the evidence of accidental cutting. And who do you believe? Anything in the physical evidence which supports either of the two versions? As I said - first of all before I get to the physical evidence, there's the evidence of Mr Webb. Mr Webb you will remember was standing in the kitchen and he indicates that he was just inside the door of the kitchen near the sink, and he said - I'm sorry, Mr Webb was the person who was the last witness. Mr O'Dea was in the kitchen, he was about a metre away from the accused and Mr Tucker, standing just inside that doorway and he felt alcohol and glass shattering across his face. If you consider that evidence for a moment in light of the two versions given, one by the accused and one by Mr Tucker, if Mr O'Dea feels a spray of alcohol and glass you would think that there would be some force used in the breaking of bottle. He was a metre away and the glass in particular as well as the alcohol shatters over his face. And I think he also said that when he was in the ambulance or when he was in the hospital somebody still saw some glass shards on him. That version, in my submission, supports Mr Tucker. Mr Tucker, you will recall, said that he was struck with force across the head and he said that he was in so much pain as a result of that blow that he thought he'd been scalped, something along those lines, and you would think there would be a fair amount of force used when struck on the head to break the bottle in the first place. It doesn't support, that is Mr O'Dea's version does not support the accused's version of their being a struggle and the bottle either breaking on the wall or breaking on his accidentally. Look at the photos and the glass fragments, in particular photos 23 and 24, there is glass debris almost in the middle of the room near the table and the chairs, that's the approximate area where Mr Tucker said he was struck. It doesn't support the accused's version that he was struck or the bottle broke over near the wall, either against the wall or immediately when he was pushed off the wall, if that was the case you would expect the majority of the glass fragments to be over near the keg and the only bit of glass - not the only bit of glass but the most prominent piece of glass over there is the neck of the bottle. Again, if you accept Mr Tucker or you are looking at Mr Tucker's version of the events and he was struck in the middle of the room you would think it would be more likely that Mr O'Dea was sprayed with the alcohol and the glass shards. In my submission, it would be. If it was over where the accused said the event occurred then there was the wall in the way and you wouldn't expect Mr O'Dea to be sprayed with the alcohol and the glass. (240-241)
It was also explained how other circumstantial evidence supported Mr Tucker's account. The jury was invited to accept his evidence and convict the applicant.
The case then put for the applicant in response was that the jury should not speculate or guess as to what had happened, particularly in relation to glass on the floor of the kitchen. The jury was reminded that they had to be satisfied that the Crown had established its case beyond reasonable doubt and that: "There is no room for error, no room for guessing or speculating. You can only decide in my submission the case on what you've heard in the witness box and what you saw, the demeanour of the witnesses, whether you choose to accept them or reject them. Now in the defence case, Mr Abbott has told you that he was defending himself, he's raised self-defence. Now he doesn't have to prove that he was defending himself, it's for the Crown to prove beyond a reasonable doubt that he wasn't defending himself, that he didn't act reasonably. Now in considering whether he acted in self-defence you must consider what Mr Abbott thought at the time, what was in his mind. We know from the facts that he walked in on Mr Tucker who was snorting I think cocaine with his friends, and Mr Abbott told you and he told the police two days after the event that Mr Tucker had taken offence at that and told him to get out in no uncertain terms. Now you may think as a result of that Mr Tucker got irate, aggressive. You know that from his own mouth he said that he had at least 15 drinks plus cocaine, so when you look at that you may think from your experience outside this courtroom that someone who's on drugs and alcohol may act irrationally, may act aggressively. It's a matter for you. But as Mr Abbott has told you in the witness box, and you saw his demeanour, he answered the questions. He chose to be cross-examined and he didn't have to do that either. Her Honour will explain the law to you. I'm not going to bore you with a long address, I just want to get to the key points, and that is Mr Tucker was obviously affected by drugs and alcohol on his own admission. Mr Tucker on his admission and on Mr Abbott's evidence that they were - he said playing, but Mr Abbott tells you he was hit in the ribs, he was in a headlock for about 30 seconds. He went into the kitchen and some time later Mr Tucker followed him. Now do you accept that or you don't?" (243-244)
As to motive it was submitted for the applicant that: "You may think that Mr Tucker had a motive in attacking the accused, the motive being he walked in on this drug taking. He took a dislike to him from that moment on, and things just got out of hand and when he walked into the kitchen, you may think that he did go to strike the accused and the accused defended himself as he says. I mean we don't know exactly what happened and we probably never will because it happened so quick as Mr Abbott said. Things happened in a split second. Anything could have happened, but we know that George Tucker was injured and we also know from the evidence that Mr Abbott was not the aggressor. Mr Abbott said that he had six drinks." (244)
On appeal it was accepted that the submission in bold referred to a proposition which had been put to Mr Tucker in cross-examination.
As to Mr Webb's evidence it was submitted: "The Crown is making a bit[sic] thing about Mr Webb's evidence. Mr Webb said that this man was the most drunk person at the party, that's what he said, but he also went to say if you recall that Mr Tucker wasn't that drunk. Now he's also been a friend of Mr Tucker's for 25 years. All the people at that - who were in that vicinity are good friends of Mr Tucker's and you may think well are they trying to cover up what their friend did or not? That's another thing you've got to look at. Is it the case that they were being truthful about not seeing anything? A man who's right next to him says he didn't see anything. Mr Tucker told you that he was talking with several people when he was struck and yet nobody says that they saw the actual motion or the incident. When you look at all that, ladies and gentlemen, you would think to yourself well am I satisfied beyond reasonable doubt that Mr Abbott attacked this man for no reason according to Tucker, no reason at all? He just smashed the bottle over his head in a vicious and callous way. Well you people, as I said, come from all walks of life, you're sensible people. You must look at the case carefully. All cases are serious. This case was a short case, it only went for about two days the evidence, but can I ask you to do one thing. You must be careful when you look at the evidence and you must be satisfied beyond reasonable doubt. Now if you're satisfied that Mr Abbott acted in self-defence, that's the end of the matter. The first charge and the backup and the second charge, you must return verdicts of not guilty. Now as I said earlier Mr Tucker - Mr Abbott chose to give evidence. He became a witness in the case. He didn't have to do that but he chose to do that, he chose to give his version and his version that on that night he was minding his own business and he was being harassed by Mr Tucker, and that in the end Mr Tucker attacked him and he defended himself. When you're sitting in judgment on your fellow human being, ladies and gentlemen, I would ask you to do this. Put yourself in his shoes. If one of your relatives or friends or yourselves was in the witness box you would want to be treated as fairly as possible and you would want to scrutinise the evidence. You wouldn't want to guess at what happened or speculate. There's no room for that in these cases. You must be satisfied beyond a reasonable doubt that the prosecution has proven their case, the elements of the offence." (244-245)
On appeal it was accepted for the applicant that what was submitted above in bold had not been put in cross-examination to Mr Webb, but there was no objection and the trial judge did not refer to it in her summing-up.
In her summing up Syme DCJ explained to the jury repeatedly that the onus lay on the Crown to prove the applicant's guilt beyond reasonable doubt. That was also repeated in the written directions the jury received, where it was directed as to the evidence: "5. The jury should assess the various witnesses. Jury members are judges of facts, and should use their common sense to assess each witness' evidence. The jury does not have to accept all that a witness says. It can accept or reject all or part of any witnesses' evidence. 6. The Accused gave evidence, although he was under no obligation to do so. He is a witness like all other witnesses. You must assess his evidence and decide if it is credible. At the same time you must bear in mind that he does not have to prove anything."
Her Honour explained in her summing up how the evidence of the witnesses was to be assessed; that the jury was not obliged to accept the whole of a witness' evidence and that if there was a logical reason for accepting only a part, the whole of the evidence did not have to be accepted. Her Honour also identified what was not in issue; what had to be resolved; and how the jury would go about that task.
Directions were given as to self defence and the onus which lay on the Crown in that regard. Her Honour directed that: "Your first task I would suggest to you is then to decide and you are the judges of the facts, is to decide as a question of fact whether the accused's intoxication had anything or not anything to do with the events as he perceived them. If you do not find that the accused was under the influence of alcohol to the extent that it affected his judgment in that regard then simply follow the self-defence directions that I have given you. If you do find that intoxication is a relevant consideration then when considering the subjective belief of the accused, you have to take into account his perception in determining whether, what he did was a reasonable response in the circumstances. That reasonable response if you do find he was intoxicated, might be affected by his perception or understanding as to the events earlier in the evening and his interaction earlier in the evening with Mr Tucker. Again these are not legal issues, these are factual issues for you to consider." (20-21)
As to the conflict between the witnesses' evidence, her Honour directed: "In this case I would suggest to you that the version given by Mr Tucker and the version given by Mr Abbott do not sit together. Mr Abbott spoke of Mr Tucker approaching him in a way he did not consider to be in a friendly manner, earlier in the evening, particularly relating to Mr Abbott having walked in on Mr Tucker during the cocaine event. Other witnesses gave their view of the behaviour of both of them earlier in the evening. Mr Webb talked about Mr Abbott being highly intoxicated and of Mr Tucker being less so. Mr Balchin saying they were both intoxicated and indulging in what he called physicality. Mr O'Dea confirmed that they were both drunk and Mr Tucker was in as he described it a happy mood but Steve he said, Mr Abbott, not enjoying it. I think he spoke about folded arms at one stage. Keep in mind the state of sobriety or otherwise of the witnesses who were giving evidence and I might suggest to you members of the jury you will have noticed that this is just another complicating feature, not a complicating legal feature but a complicating factual feature for you as judges of the facts to consider. You consider the state of sobriety of the witnesses when they were observing certain things, you consider whether people who have drunk that amount of alcohol are good observers. You consider a party with apparently, according to the evidence of some witnesses, around about 50 people, going over a number of hours and you consider the observations of those people, some of whom may or may not have been drinking a lot during the course of that evening, not all of whom spent all of their time with either Mr Abbott or Mr Tucker. These are all matters you take into account when considering the observation of the various witnesses. It was suggested by Mr Crown that Mr Webb would be a better observer because he was not drinking, Mr Paneras suggested that might be the case but that Mr Webb might be biased in other ways because he was a good friend of Mr Tucker. Again all matters for you to take into account." (22-23)
Her Honour also gave a particular warning in relation to Mr Tucker's evidence: "Now as I have suggested to you the evidence of Mr Tucker is important. Wherever the Crown case seeks to establish the guilt of the accused person, Mr Abbott, with a case based entirely or largely as I suggest to you is the case here, on the evidence of a single witness and that witness is Mr Tucker, it is important that you the jury are given certain directions about that, that is what I am going to do now, I am going to tell you that you must exercise caution before you can convict the accused because of the fact that the Crown case largely depends on you accepting the reliability of the evidence of Mr Tucker. Unless you are satisfied beyond reasonable doubt that Mr Tucker is both an honest and an accurate witness in relation to the account he has given you, then you cannot find the accused guilty. I would suggest to you that is because the nature of the evidence that you heard before you, Mr Tucker gave you evidence of a completely unprovoked attack out of the blue. It was a twofold attack. You will recall him standing up and giving evidence of the way things happened. Before you can convict the accused you should examine the evidence of Mr Tucker very carefully in order to satisfy yourselves that you can safely act upon that evidence to the high standard required in a criminal trial. Now this caution is not based on any view that I have, I told you at the outset I would not give you my view on any particular piece of the evidence and I am certainly not doing that now. Both counsel have concentrated on the evidence of this witness for good reason, where the Crown case depends on the evidence largely, or the single witness, juries are always given a direction such as this. It is because the onus and standard of proof remains on the Crown. The onus is on the Crown to prove their case beyond reasonable doubt, the standard is beyond reasonable doubt. They rely heavily on Mr Tucker's evidence. I am not suggesting that you are not entitled to convict the accused upon the evidence of Mr Tucker. Clearly you are entitled to do so but only after you have examined his evidence and satisfied yourself it is reliable beyond reasonable doubt. In considering his evidence and whether it does satisfy you of the accused's guilt, you of course look to see whether it is supported by any other evidence. Mr Crown suggested to you you would look at the way evidence was given, answers to questions in chief and answers to questions in cross-examination. He has also suggested that there is some evidence that supports Mr Tucker's evidence, he has referred to the physical evidence of the glass shards on the floor. Mr Paneras addressed you on that issue as well and has told you that you should not take that as evidence, supporting Mr Tucker's evidence and you should not speculate as to how those glass shards got there." (23-24)
Directions were also given as to the circumstantial evidence, including that the jury was not to speculate in relation to inferences and in relation to Mr O'Dea's evidence.
As to the applicant's evidence her Honour directed: "Now the accused's evidence. The fact that the accused has given and/or called evidence does not alter the burden of proof of each of the elements of the offence. The accused does not have to prove that his version is true. The Crown has to satisfy you that the account given by the accused should not be accepted as a version of events that could reasonably be true. Now I am not going to repeat the evidence of Mr Abbott again but it is obvious to all of us here that the evidence of Mr Abbott is at odds with the evidence of Mr Tucker. The accused also gave a version of the events in the recorded interview which you saw on DVD and by and large adopted that in his evidence in chief. The accused again is not required to prove that his account is true. The Crown in discharging its obligation to prove the accused's guilt must satisfy you that the version given by the accused could not possibly be true. So if the accused's version in the DVD or his evidence in court leaves you with a reasonable doubt as to any element of the Crown's case then you must acquit, because it follows obviously that the Crown will not have proven its case beyond reasonable doubt. So if what the accused said leaves you with a doubt as to any element of the Crown's case then you must acquit. It is only if you reject the version given by the accused and on top of that you are satisfied as to the elements of the offence then you can convict the accused." (26-27)
Her Honour asked the parties whether there were any other matters which ought to be addressed. There were not.
As the Crown accepted on appeal, the prosecutor's address to the jury as to the various witnesses' evidence ought not to have been advanced on the basis that the fact that the applicant had an interest in the outcome of the proceedings was relevant to assessing his credibility. It is that concession which in my view should lead to leave under Rule 4 being granted. That occurred when the Crown submitted: "… is there a motive for the accused not to give you an accurate version of what occurred? You might think that his motive is that he is facing a serious criminal charge."
Whether a miscarriage of justice resulted, however, must be determined in the context of all that occurred at this trial.
The Crown submitted at trial that Mr Webb had no motive to lie about how much alcohol the applicant had consumed and that if his evidence was accepted over that of the applicant, the jury might consider why the applicant was not telling the truth about that matter. The question posed was: "Was he trying [to] colour his evidence to make his evidence more acceptable, more credible? Was he trying to discredit Mr Tucker? Who agrees he had a lot to drink and also ingested cocaine, as he tried to, by inference, suggest to you that his, that is the accused's version, is more accurate than Mr Tucker"
There was nothing objectionable in this submission. These were matters which the jury was entitled to consider in determining whether to prefer the evidence of Mr Webb, or that of the accused.
It was further submitted by the Crown that if the applicant's evidence as to how much alcohol he had consumed was rejected, the jury might consider that to be a basis on which it would reject his evidence outright, because: "If he's not telling you the truth in relation to how much he had to drink and you infer the reason for him not telling you will give an accurate estimate of how much he had to drink and what his state of intoxication was, was to discredit somebody else, in particular Mr Tucker then you might think that the whole of his evidence is just not worthy of being accepted by you … "
This submission is not contrary to what was discussed in Hargraves and Robinson, or that discussed in MAJW v Regina [2009] NSWCCA 255, where it was observed at [40]: "… As pointed out by Grove J in R v Booty NSWCCA (19 December 1994, unreported) the "interest of an accused person in securing an acquittal is self evident". However, references to it in the course of the trial should be avoided to the extent possible because such references may unfairly prejudice the position of the accused by suggesting that he or she is to be treated as "a suspect witness" and undermining the presumption of innocence in the manner pointed out in Robinson."
The submissions in relation to whether Mr Webb or the applicant should be believed on the question of how much alcohol the applicant had consumed did not rest on the applicant's interest in securing an acquittal, or that he should be treated as a suspect witness, but rather on an analysis of how credit issues lying between him and Mr Webb might be resolved and what impact that might have on how the jury would resolve the credit issue lying between the applicant and Mr Tucker. They were matters which the parties were entitled to address and which the jury had to consider and resolve.
Nor did these submissions undermine the standard of proof which fell on the Crown, or the presumption of innocence to which the applicant was entitled. In Palmer v R [1998] HCA 2; 193 CLR 1, the problem was cross-examination of the accused to show that he could not prove any ground for imputing a motive to lie to the complainant. The law does not require an accused to prove that a complainant has a motive for the making of false accusations and so it was concluded that the questions there asked of the accused invited speculation and diminished the onus of proof which fell on the Crown.
This was a different case. Here the Crown's submission that the jury might conclude that the applicant had sought to discredit Mr Tucker's evidence, by lying about the level of his own intoxication, was a matter plainly open to the jury to consider in deciding whether to prefer the evidence of the applicant over that of Mr Webb and Mr Tucker, and a matter which the Crown was entitled to raise for its consideration.
In Robinson, by way of contrast, what was in issue was a direction which included (see at 532): "Another test was what interest does a witness have in the outcome of a case? If you thought a witness had a large interest in the outcome you, as the judges of the facts, might well conclude that you should scrutinise that witness's evidence closely. You might think - it is a matter solely for you - that the accused had the greatest interest of all the witnesses you saw and heard and that, therefore, you should scrutinise his evidence closely."
It was held at 535: "If the jury accepted that suggestion, as they almost certainly would have, his Honour's directions had the effect that the evidence of the appellant had to be scrutinized more carefully than the evidence of any other witness, including the complainant, for no reason other than that he was the accused. The unfairness of such a direction is manifest, particularly when the outcome of the trial inevitably turned upon the jury's preference for the evidence of the complainant against that of the accused. Moreover, the directions virtually had the effect that the appellant was to be treated as a "suspect witness" in the same way as an accomplice, a complainant in a sexual case and a young child have been treated as "suspect witnesses", that is, as witnesses whose evidence is to be accepted only after the most careful scrutiny … Nothing in the above is intended to suggest that the evidence of an accused person is not subject to the tests which are generally applicable to witnesses in a criminal trial. Thus, in examining the evidence of a witness in a criminal trial - including the evidence of the accused - the jury is entitled to consider whether some particular interest or purpose of the witness will be served or promoted in giving evidence in the proceedings. But to direct a jury that they should evaluate evidence on the basis of the interest of witnesses in the outcome of the case is to strike at the notion of a fair trial for an accused person. Except in the most exceptional case, such a direction inevitably disadvantages the evidence of the accused when it is in conflict with the evidence for the Crown."
In Hargraves it was observed at [45] - [46]: "45 Robinson, too, is to be seen as a particular application of this more general principle. Inviting a jury to test the evidence given by an accused according to the interest that the accused has in the outcome of the trial, or suggesting that the accused's evidence should be scrutinised more carefully than the evidence of other witnesses, deflects the jury from recognising and applying the requisite onus and standard of proof. It is for the prosecution to prove its case, not for the accused to establish any contrary proposition. The instructions which a trial judge gives to a jury must not, whether by way of legal direction or judicial comment on the facts, deflect the jury from its fundamental task of deciding whether the prosecution has proved the elements of the charged offence beyond reasonable doubt. 46 The principle that is identified is expressed at a high level of abstraction: did the judge's instructions deflect the jury from its fundamental task of deciding whether the prosecution proved the elements of the charged offence beyond reasonable doubt? Directions given by a trial judge can often be assessed against that principle by observing no more than that the judge has so instructed the jury that it would be open to the jury to evaluate an accused's evidence on the basis of the accused's interest in the outcome of the trial. It is to be emphasised that trial judges must not instruct juries in that way: whether as a direction of law or as a judicial comment on the facts of the case. And it should also be emphasised that nothing that is said in these reasons should be understood as diminishing the need for intermediate courts of appeal to insist upon the observance of this requirement. Whether there has been on any other ground whatsoever a miscarriage of justice must always require consideration of the whole of the judge's charge to the jury. In every case, the ultimate question must be whether, taken as a whole, the judge's instructions to the jury deflected the jury from its proper task."
There it was concluded that the impugned direction was unlikely to have been given much prominence by the jury and would not have been understood as meaning that the appellants' evidence had to be scrutinised more carefully than that of other witnesses and that "read as a whole, the instructions which the judge gave would not have deflected the jury from its task of deciding whether the prosecution had proved its case beyond reasonable doubt" (see [49]. Accordingly there was no miscarriage of justice.
This is a similar situation.
Here it is the Crown's address which is submitted to have given rise to a miscarriage. It was not, however, submitted for the Crown that the applicant's evidence had to be scrutinised more carefully than that of other witnesses, but rather that the jury would consider whether the applicant had lied about his level of intoxication, in order to discredit the evidence of Mr Tucker. The brief reference to the applicant's motive for lying being that he faced a serious criminal charge is unlikely to have been given prominence by the jury, given the other matters addressed by both parties as to the factual issues which they had to resolve and the directions which Syme DCJ gave the jury.
What was submitted is unlikely to have been understood as meaning that the applicant's evidence had to be scrutinised more carefully than that of other witnesses. The directions given by Syme DJC as to what had to be determined, how the evidence of the witnesses, including the applicant, was to be assessed, namely in a similar way, also diminished the likelihood that the submission as to the applicant's motive would have been given the prominence found in Robinson.
No objection was taken to the Crown's submissions at trial, nor were particular directions sought in relation to the accused's evidence, understandably given the written and oral directions which Syme DCJ gave. On appeal, it is the absence of an instruction that the Crown's submissions on how the credit issues lying between the Crown witnesses and the accused should be resolved, namely by ignoring the Crown's submissions, which were submitted to have given rise to a miscarriage.
That submission may not be accepted. Given the credit issues on which this case turned, had such a direction been sought, it could plainly not have been given.
Nor can it be accepted that the Crown's submission that the conflict between Mr Webb's evidence and that of the applicant might be resolved on the basis that the applicant was lying about his sobriety, because he wanted to discredit Mr Tucker's evidence, was illogical, as the applicant also submitted on appeal.
Nor can the argument that the Crown's submission rested on "comparative motives to lie", which amounted to consciousness of guilt reasoning accepted. In Zoneff v R it was observed at [15] - [17]: "15 The meaning of the phrase "consciousness of guilt", the risk that its use by the trial judge may itself suggest guilt, which circumstances call for the giving of an Edwards-type direction, and the difficulty in distinguishing between lies going to credibility and those indicating guilt have been matters of some controversy. The Court of Appeal in Victoria in a series of cases, R v Morgan, R v Renzella, R v Laz, R v Erdei, R v Cervelli and R v Konstandopoulos has sought to grapple with the problems. But as Hayne JA in Morgan suggests, rigid prescriptive rules as to when and in what precise terms an Edwards-type direction should be given cannot be comprehensively stated. 16 There may be cases in which the risk of misunderstanding on the part of a jury as to the use to which they may put lies might be such that a judge should give an Edwards-type direction notwithstanding that the prosecutor has not put that a lie has been told out of consciousness of guilt. As a general rule, however, an Edwards-type direction should only be given if the prosecution contends that a lie is evidence of guilt, in the sense that it was told because, in the language of Deane, Dawson and Gaudron JJ in Edwards, "the accused knew that the truth ... would implicate him in [the commission of] the offence" and if, in fact, the lie in question is capable of bearing that character. (The words in italics are ours and, for the sake of clarity, should be included in the statement of principle.) 17 Moreover, if there is a risk of confusion or doubt as to the way in which the prosecution puts its case, the trial judge should inquire of the prosecution whether it contends that lies may constitute evidence of consciousness of guilt and, if so, he or she should require identification of the lie or lies in issue and the basis on which they are said to be capable of implicating the accused in the commission of the offence charged. [Citations omitted]"
At trial, what was in issue was whether the applicant had cut Mr Tucker's face deliberately, or recklessly, or accidentally. The difficulty with the evidence of both the applicant and Mr Tucker was that they were both intoxicated at the time of the offence, on the Crown's case, each having consumed alcohol and cocaine.
Mr Tucker had accepted in his evidence that he had consumed a considerable amount of alcohol. The applicant's evidence was that he had not taken cocaine and that he had only had six drinks that night. This evidence conflicted with that given by Mr Webb and Mr Tucker and was challenged in cross-examination. The submission that the applicant had lied about what he had consumed, in order to enhance the credibility of his evidence, by way of comparison to that of Mr Tucker, did not amount to consciousness of guilt reasoning.
As the Crown argued, that submission quoted at [33] above properly drew to the jury's attention that they could not convict the applicant unless they had rejected his evidence as to how the cut had come to be inflicted and invited them to do so, by accepting that the applicant had lied about his consumption of alcohol, in order to enhance his credibility by comparison to that of Mr Tucker. That was not a "short cut" to conviction, as was submitted on appeal.
There was, it follows, no miscarriage in posing the question "[a]nd who do you believe?" in the passage quote at [33] above. What was being put was properly, that if the jury believed the applicant's account of the incident in which Mr Tucker was injured, he had to be acquitted.
That was a question which the jury had to resolve, in accordance with the directions which Syme DJC gave.

Abbott v R

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