Bugeja & Johnson v The Queen [2010] VSCA 321

CRIMINAL LAW - Sentence - Offer to plead guilty to trafficking in a commercial quantity not a mitigating factor - Head sentence of ten years' imprisonment with a minimum term of eight years' imprisonment - Non-parole period open to the judge in the exercise of his discretion.

1 After a trial in the Supreme Court, the applicants and Brian Zerna were found guilty on a count alleging that between 1 October 2004 and 22 August 2005 they conspired with each other and with a person designated as 'PTO' and George Lipp to traffic in not less than a large commercial quantity of methylamphetamine. A plea was conducted. Each of the applicants was sentenced to be imprisoned for a term of ten years with a minimum term of eight years' imprisonment.

2 Bugeja seeks leave to appeal against conviction and sentence. Johnson seeks leave to appeal against his sentence.

3 The principal Crown witness was PTO, who had been the operations manager of a company which dealt in chemicals. From the latter part of 2004 to 22 August 2005, when the conspirators were arrested, PTO sold Johnson large quantities of chemicals from which methylamphetamine could be manufactured. Johnson paid PTO about $60,000 in cash overall.

4 Apart from the evidence of PTO, the Crown led evidence of conversations recorded by listening devices, data from a tracking device in Bugeja's car, surveillance of the conspirators, descriptions of chemicals and equipment from a laboratory at a farm at Knowsley and at the home of Zerna, recordings of intercepted telephone conversations and documents, including recipes, orders for chemicals, maps and accounts. It appeared from the evidence that several batches of methylamphetamine were manufactured by Zerna and his associates in the period covered by the presentment at the laboratory.

5 The Crown alleged that the primary organiser of the enterprise was Zerna, assisted by Lipp. Johnson's role was to obtain the chemicals needed to manufacture methylamphetamine. Bugeja assisted Lipp and Zerna, and carried out tasks directed by them, to manufacture methylamphetamine.

6 The first ground of Bugeja's application for leave to appeal against conviction is as follows:

The learned trial judge erred by ruling that the prosecution could adduce evidence of Zerna's burglary of the Sigma factory (wherein the purpose of the burglary was drug related) if it was to be suggested to the witness PTO that the meeting with PTO on 19 July 2005 did not take place, thereby causing a substantial miscarriage of justice in the instance of the applicant.

7 In evidence-in-chief PTO said that he and Johnson met Zerna at the Panton Hill Hotel and discussed the supply of chemicals to Zerna and his associates for the manufacture of methylamphetamine. PTO and Zerna discussed the amount of money Johnson had paid PTO for chemicals , the availability of chemicals and whether PTO should continue to supply chemicals to another person. That was the only occasion upon which Zerna had met PTO.

8 Counsel for Zerna told the trial judge that he wished to put to PTO in cross-examination that the meeting did not take place. He also said that the prosecutor had informed him that if he did so, the prosecutor in re-examination would elicit from PTO evidence that Zerna boasted to him that Zerna had broken into the premises of Sigma Pharmaceuticals and had stolen chemicals and would prove that Zerna had been convicted on a charge of burglary. The evidence was said to be probative because the likely source of the information was Zerna.

9 Counsel for Zerna sought a ruling from the trial judge that the prosecutor could not lead the evidence he had adumbrated. Counsel for Bugeja supported the application for a ruling excluding the evidence.

10 The trial judge refused to rule that the evidence should be excluded. His Honour held that the probative value of the evidence was not outweighed by its prejudicial effect and that it was not necessary to exclude the evidence in order to ensure a fair trial.

11 Counsel for the applicant submitted that the trial judge erred by permitting the prosecutor to prevent PTO's evidence being challenged by threatening to prove that Zerna had stolen chemicals. In seeking to use Zerna's conviction in this fashion, the Crown was said to be splitting its case. If the prosecutor had sought to lead evidence of the conviction as part of the Crown case, it would have been ruled inadmissible. The prosecution would not have proved that PTO's only source of the information was Zerna and the prejudicial affect of the evidence outweighed any probative force it may have had.

12 The link between Zerna and PTO was an important part of the case against Bugeja. Counsel for the applicant submitted that the means by which it was established were unfair to the applicant.

13 The prosecutor, it seems, did not seek to lead evidence of the burglary from PTO in chief because he thought that at that point the evidence was likely to be excluded in the exercise of the trial judge's discretion. The prosecutor recognised that the balance of the competing factors of probative value and prejudicial effect would alter if the fact of the meeting was put in issue.

14 In my opinion, the prosecutor did not act unfairly. On the contrary, I think it would have been unfair for the prosecutor to silently stand by, allow counsel to put the fact of the meeting in issue by cross-examining PTO and then seek to lead evidence of the theft of chemicals with the leave of the trial judge as a new matter arising from the cross-examination. I do not regard it as insignificant that no complaint was made by counsel for the applicant or Zerna to the trial judge of the course taken by the prosecutor.

15 The second ground of the application to appeal against conviction is that the verdict was unreasonable or could not be supported having regard to the evidence.

16 Counsel for the applicant submitted that the Crown case established no more than an association between the applicant, Zerna and Lipp dating back to at least November 2004, the presence of the applicant at Knowsley days before his arrest and the performance of manual tasks by the applicant at the behest of Zerna and Lipp, separated by weeks and months. It was contended that the evidence could not establish an agreement to manufacture methylamphetamine. Alternatively, the evidence pointed to a series of separate agreements rather than one agreement.

17 The question is whether the jury must have entertained a reasonable doubt about the applicant's guilt, not whether there was material which might have produced doubt.[1] In the present case there was evidence of the purchase of large quantities of chemicals, the existence of a large laboratory apparently established to manufacture methylamphetamine, a large quantity of waste material at the laboratory containing a great deal of methylamphetamine and the association of the applicant with and participation in the activities conducted at the laboratory.

18 There was evidence that the applicant associated with his alleged co-conspirators between November 2004 and August 2005, that he assisted Johnson to transport a large quantity of chemicals on 6 December 2004, that he frequently attended at Knowsley in June, July and August 2005, including overnight stays, that he transported flasks from Knowsley to his house, that intercepted conversations involving the applicant, Zerna and/or Lipp involved discussions as to chemicals, equipment and processes involved in the manufacture of methylamphetamine, that the applicant was observed in and around the laboratory at Knowsley performing functions consistent with his involvement with the manufacturing process, that he was present at Knowsley when police raided the premises and at a time when large scale manufacturing processes were in progress and that an item used in the manufacture of methylamphetamine was found at the applicant's residence during a police search.

19 In my opinion, it was open to the jury to conclude that the applicant was a party to an agreement to manufacture a large commercial quantity of methylamphetamine. There was evidence that, during the period from late-2004 to 22 August 2005, by discussing and fulfilling tasks in the course of manufacturing methylamphetamine, the applicant participated in an enterprise calculated to produce a large commercial quantity of methylamphetamine. The enterprise could

be seen as ongoing, not as a series of ah hoc or unconnected acts or agreements to produce only particular batches of the drug.

20 At the hearing of the appeal, counsel for Bugeja sought to amend the grounds of the application for leave to appeal against conviction by adding this ground:

A substantial miscarriage of justice occurred in the instance of the applicant by virtue of the prosecutor in closing address asserting that the jury could more readily accept that the Panton Hill meeting had taken place on 19 July 2005 because it had not been suggested otherwise by the defence.

21 In the course of his closing address to the jury the prosecutor said:

Counsel conducting cross-examination of a witness is bound by a rule of law and practice that he must challenge the witness as to any matter of fact or inference which is inconsistent with the evidence of the witness on which the Crown is relying. Now, that process is essential to a jury's understanding of what facts are truly in issue. ... You heard me open that [PTO] did give evidence that in July of 2005 he had lunch with Zerna and Johnson. ... In the course of that lunch numerous things which are consistent with a conspiracy to manufacture methylamphetamine are discussed. ... [PTO] gets into the witness box, he gives evidence about that lunch. Is he challenged to any extent? Is it suggested to him that it didn't happen or something that he says was said at that luncheon wasn't said? No.

On two further occasions in the course of his address, the prosecutor reiterated that PTO's evidence had not been challenged. In his charge to the jury, the trial judge said:

[The prosecutor] submitted that you would be entitled to conclude that the lunch [PTO] said he had had with Mr Zerna and Mr Johnson happened and that the matters discussed were discussed. He said [counsel for Zerna] did not challenge [PTO's] evidence in this regard.

23 The prosecutor's argument was apt to mislead the jury in their assessment of critical Crown evidence.[2] In seeking a ruling that the prosecutor should be precluded from leading evidence of the burglary at the Sigma factory, counsel for Zerna made it clear that he wished to challenge PTO's evidence that a meeting took place at Panton Hill. It is evident that he only refrained from doing so because he knew that if he did, the prosecutor would elicit evidence from PTO that Zerna had boasted of the burglary. It is unfortunate that his Honour repeated the prosecutor's argument.

24 While counsel for the applicant did not complain to the trial judge about the prosecutor's conduct, that may have been because he feared the revelation to the jury of the commission by Zerna of the burglary.

25 In the circumstances of this case I am of the view that the prosecutor's error, repeated by the trial judge, caused a miscarriage of justice.

26 Counsel for the respondent submitted that the error did not produce a substantial miscarriage of justice and he relied upon the proviso to s 568(1) of the Crimes Act 1958. He said that PTO's evidence was coherent and consistent.

27 As I have said, the meeting between Zerna and PTO was an important part of the Crown case. The jury were told by the trial judge that words and conduct of persons in the absence of the accused could be considered in determining whether the accused was party to the alleged conspiracy. They were told that they might infer the existence of the conspiracy from, inter alia, 'the lunch that ... [PTO] ... had with Mr Zerna and Mr Johnson and the matters that were discussed'.

28 The link was particularly important because of the possibility that Johnson was on selling the chemicals supplied by PTO to persons other than the syndicate to which Bugeja belonged. The quantity of the chemicals supplied by PTO to Johnson was consistent with the manufacture of substantially more than of a large commercial quantity of methylamphetamine. PTO's account of his conversation with Zerna supported the conclusion that all the chemicals sold by PTO to Johnson were acquired by Zerna's syndicate. A reduction in the quantity of the chemicals received by Zerna's syndicate from Johnson may have caused the jury to doubt that the subject matter of the conspiracy was a large commercial quantity.

29 Accordingly, it is not surprising that, in the course of submitting that he should be able to elicit evidence of the burglary, the prosecutor said that the meeting 'is probably the most critical piece of information from both the point of view of the defence and the Crown in the case concerning Zerna'.

30 I do not think that the jury would necessarily have found that Zerna met PTO at Panton Hill without the support of the argument advanced by the prosecutor based upon the absence of cross-examination. The prosecutor was not content to let PTO's evidence stand on its merits, but sought to bolster it by limiting cross-examination. Judging solely from the transcript, PTO's evidence appears capable of establishing the Panton Hill meeting. What the jury, who saw and heard PTO giving evidence, would have made of it if they had not been misled as to the inference that could be drawn from the failure of defence counsel to assail it directly, lies in the realm of speculation.

31 Accordingly, in my opinion, the trial of the applicant Bugeja miscarried.[3] I would grant the application for leave to appeal against the conviction, allow the appeal, set aside the verdict and order that the applicant be re-tried.

32 I turn to Johnson's application for leave to appeal against sentence.

33 The applicant is 41 years' old. He left school after completing year 8. His principal employment has been in his father's chicken shop. A report by a forensic psychologist was tendered during the course of the plea. The psychologist said that since he was aged 17 years the applicant had a chronic amphetamine dependence and an addiction to gambling. As a consequence, the applicant had a large number of prior convictions principally related to his addiction to amphetamine and gambling. The applicant had 141 prior convictions from ten court appearances, principally for offences of dishonesty. The applicant had served several periods of imprisonment. The applicant had one conviction for a drug offence, possessing amphetamine, in 1993.

34 The sentencing judge found that the applicant took part in the conspiracy in order to obtain money, which he could not otherwise earn due to his drug affected lifestyle, and also to gain access to the drugs upon which he was dependent. There was no evidence that the applicant obtained any significant financial advantage from his activities.

35 The grounds of the application for leave to appeal against sentence are as follows:

1. The learned judge erred in failing to take into account in mitigation the applicant's offer to plead guilty to the lesser charge of conspiracy to traffic in a drug of dependence in a commercial quantity.
2. The learned judge erred in imposing a non-parole period (eight years) that is disproportionately long when compared with the head sentence (ten years' imprisonment).

36 Counsel for the applicant informed the sentencing judge that prior to trial the applicant's solicitors had made a written offer to plead guilty to trafficking in a commercial quantity of methylamphetamine. The offer was rejected because it was not made by all the accused.

37 His Honour did not treat the offer as a mitigating factor. He said:

The fact that an accused person offered to plead guilty to an offence less than the one of which they were convicted has no bearing on the sentencing process one way or the other. The discount for pleading guilty is available because it saves the community and the witnesses the trouble, expense and trauma of a trial. It might also be relevant as signifying that the accused feels sincere remorse. None of those considerations applies where the offer is to plead guilty is made with respect to a lesser offence.

In the result, there is no evidence of remorse on the part of any of you.

38 Counsel for the applicant submitted that the offer was evidence of remorse and demonstrated a readiness to accept responsibility for what was a serious offence, for which the maximum sentence is 25 years' imprisonment, and that bore upon the applicant's prospects of rehabilitation.

39 In my opinion, the sentencing judge was entitled to disregard the offer. The applicant went no further than the offer itself. He did not contest the charge on the

limited issue whether the subject matter of the conspiracy was a commercial or a large commercial quantity. He did not plead guilty to the lesser charge nor did he conduct the trial on the basis that he admitted all the elements of the offence save quantity. Instead, he fully contested all aspects of the charge and sought an acquittal. The sentencing judge did take into account in the applicant's favour the fact that his counsel had conducted the trial in an expeditious manner. The Crown's evidence was that the applicant supplied enough chemicals to make several times a large commercial quantity of methylamphetamine. Accordingly, in my view it was open to the sentencing judge to find that the offer did not indicate true remorse or increase the prospect of the applicant's successful rehabilitation.

40 Pursuant to the second ground, counsel for the applicant submitted that a non-parole period 80 per cent of the length of the head sentence was very high and was in error in the light of the applicant's solid work history, his abstinence from the use of drugs while on bail, the fact that part of his motivation was to receive payment in drugs to feed a life-long addiction, the absence of any substantial financial betterment and his reduced moral culpability in view of his drug affected lifestyle and disadvantaged background.

41 On the other hand, the offending itself was extremely serious, the applicant had a significant criminal history, he did not exhibit genuine remorse and the sentencing judge made no favourable finding as to his prospects of rehabilitation. In the light of those factors, I consider that the non-parole period fixed by his Honour was open to him in the exercise of his discretion.

42 I would refuse the application for leave to appeal against sentence.

43 I have had the advantage of reading in draft the reasons for judgment prepared by Buchanan JA. I agree that the prosecutor's closing address had the potential to mislead the jury, quite fundamentally, as to how they could legitimately

go about their task of determining whether Bugeja's guilt had been established. As a result, Bugeja's conviction should be quashed, and a new trial ordered.

44 I also agree that Johnson's application for leave to appeal against sentence should be refused.

45 In relation to Bugeja, there are several additional matters that I wish to mention.

46 The prosecutor, in his closing address, had this to say about the failure of any of the defence counsel to challenge PTO with regard to his evidence as to what took place at the Panton Hill Hotel:

In the case of Mr Zerna, you heard cross-examination of various witnesses. Now, there is a rule which, in layman's terms, might be called "The rule of challenge about the way in which criminal trials are run". And you might think it's a rule of common sense. The essence of that rule is if you are going to end up putting to the jury something which is contradictory to a witness' evidence, you must, in the course of cross-examination, clearly identify for that witness that that fact is in issue. If you don't do that, you, ladies and gentlemen, are entitled to take into account the failure to do that in assessing whether or not you hear a submission about a matter which you now hear for the first time after I sit down.

Counsel conducting cross-examination of a witness is bound by a rule of law and practice that he must challenge the witness as to any matter of fact or inference which is inconsistent with the evidence of the witness on which the Crown is relying. Now, that process is essential to a jury's understanding of what facts are truly in issue. They are essential for you to enable you to assess the witness' credibility in relation to those issues. You are entitled to, as I said, take into account any failure to comply with that rule in determining whether or not you accept something which comes out of the blue after I sit down.

For instance, let me just put this into some perspective in the case of Mr Zerna. You heard me open that [PTO] would give evidence that in July of 2005 he had lunch with Zerna and Johnson. Now, if Johnson doesn't know anything about this what's Zerna doing taking him to the lunch but in any event. He has lunch with Zerna and Johnson. In the course of that lunch numerous things which are consistent with a conspiracy to manufacture methylamphetamine are discussed. When I opened to you I think I said something along the lines of, "I don't know whether this is in issue or not". When Mr Barker opened to you - nothing said, nothing said, not a word said about what you might think is a critical piece of evidence in respect of his client, not a word. [PTO] gets into the witness box, he gives evidence about that lunch. Is he challenged to any extent? Is it suggested to him it didn't happen or something that he says was said at that luncheon wasn't said? No. And so what I say to you, ladies and gentlemen, as a result of that there is no logical basis - I mean, it's a matter for you - but there's no logical basis on which you could fairly come to the conclusion that that lunch did not take place precisely as [PTO] said it did. And if that is now - you see, what's happened, and I will take you to this in just a minute because I will be going to [PTO's] evidence, but the cross-examination of [PTO] was almost exclusively challenging his credibility in respect of his role as an informer, who he dobbed in, who he didn't dob in, he's an alcoholic, he's had mental health problems. That's all very well but that would assist you, perhaps, if there was some issue in this case which was identified for him, where it's said to [PTO], "Look, [PTO], because you're a drunk and because you're a liar and a crook and because you denied something at the committal which you shouldn't have denied, what I am suggesting to you is that this happened at all". Did that ever happen? Not once, not once. So if it is suggested now that you should not believe [PTO] about something he says about this case, you ask yourselves, "Well, if that's being suggested to me why wasn't it put to [PTO]?" And you would be entitled to conclude that the reason it wasn't put was because [PTO] would have hit any such suggestion to six because, as it turns out, despite the problems he's had the past, he presented as a witness who had quite a remarkable ability to recall facts and to assemble information.

You will recall that [PTO] gets into the witness box, he gives evidence. The first piece of evidence he gives is about that list, the list he got at the end of October or early November which the Crown says is a list of chemicals required for the manufacture of methylamphetamine. Now, Mr Johnson, who was in fact the person who has provided the list, he makes no challenge to anything that [PTO] says. What happens when he's cross-examined? You had him cross-examined along the lines of, "Well, look, did Roth give you a list? Are you sure that Roth never gave you?" He said, "No, I'm absolutely adamant Roth never gave me a list". If it is now said to you, "Perhaps that list came from Roth", ladies and gentlemen you would say, if you accept the propositions that I have been putting to you, "Well, how could I accept that when you didn't ever put to [PTO] that that list came from anywhere else other than where you said it came from?"

You can't just fiddle around the edges in the hope to stand up after the prosecution has closed, you have to put your cards on the table in order to allow the processes to take place which allow us to analyse the merit of some proposition which is capable of being the subject of examination or re-examination to be properly assessed by a jury and if you don't do that, the jury, I would suggest to you, are entitled to conclude that the reason that wasn't done was because it would have brought about a counter-productive response.

47 Shortly thereafter, the prosecutor went on to repeat essentially the same argument. He said to the jury:

Then we had cross-examination from Mr Barker. You recall that I made the point to you that nothing that [PTO] said is challenged, so if I am right about that, and that's a matter for you, and no doubt Mr Barker will say for some reason I am wrong and misleading, but if I am right about that, what's this all about? I mean, if you don't challenge something that a person is saying, why would you spend your whole cross-examination attacking his credibility? Other than just to create a bit of theatre, something which is unrelated to your ultimate function.

In the end, of course, you have to decide whether you'll accept [PTO's] evidence or whether you won't. However, if there is something that [PTO] said directly or indirectly involving Mr Barker's client with which he disagreed and he had instructions from his client that it's incorrect or likely to be incorrect, it's his obligation to make that clear to the witness as I've already explained to you.

48 The prosecutor returned to this theme when he said to the jury:

Then of course on 19 July 2005 there is the lunch and I've already been through with you precisely what the matters were that were discussed during that lunch. That was the lunch, obviously between Johnson, Zerna and [PTO] and what I've put to you is that there is no basis on which you could find that that did not occur, it's not challenged by counsel for Mr Johnson who is there, it's not challenged by counsel for Mr Zerna who is there, not a question asked suggesting that this lunch didn't take place. And, of course, I mean the series of phone calls that you've seen leading up to the lunch and Zerna saying, "I've got to have lunch with this" whatever he called him, make it absolutely clear that the reason that isn't - sorry, it makes it absolutely clear that it occurred precisely as [PTO] said.

49 It can be seen therefore that, on no fewer on three occasions, the prosecutor invited the jury, in his closing address, to conclude that PTO's evidence regarding the meeting at the Panton Hill Hotel should be accepted, in large part at least, because of the failure of defence counsel to challenge him regarding that matter. Indeed, the prosecutor couched that argument in terms that strongly implied that there was a rule of law to the effect that Mr Barker's failure to mount such a challenge to PTO on behalf of his client, Zerna, meant that Mr Barker could not have been instructed that PTO's account was either untrue, or in any way inaccurate. As the prosecutor put it, if Mr Barker had been given those instructions, it was his 'obligation' to make that clear to PTO by challenging him specifically about that matter.

50 For reasons which are by no means apparent, none of the accused raised any complaint as to the propriety of the prosecutor's address regarding the consequences of failure to cross-examine PTO about the meeting. No one sought to have the jury discharged, as might have been expected. Neither Johnson nor Bugeja sought a separate trial, as might also have been expected. No one sought to have the prosecutor disavow the argument that ought not to have been put. There was no request to the trial judge to deal with the matter by a clear and powerful direction to the jury that that aspect of the prosecutor's address was entirely misconceived and should be ignored.

51 The trial judge, in his charge to the jury, did not seek to rectify, or in any way ameliorate, the damage which the prosecutor's address had done. In fact, his Honour reminded them of what the prosecutor had said in his closing address regarding the failure to challenge PTO.

52 The trial judge referred to the prosecutor's argument in the following terms:

[The prosecutor] submitted that you would be entitled to conclude that the lunch [PTO] says he had with Mr Zerna and Mr Johnson happened and that the matters discussed were discussed. He said Mr Barker did not challenge [PTO's] evidence in this regard.

53 His Honour further reminded the jury of the prosecutor's argument regarding PTO when he said:

[The prosecutor] referred at length to the attacks in cross-examination made upon [PTO's] credit and submitted that there was no significant fact to which [PTO] actually attested that was challenged.

54 In my opinion, his Honour's charge to the jury could well have been regarded as having tacitly approved of the legal correctness of what the prosecutor had said. The prosecutor had, after all, spoken of what he termed 'a rule of challenge' (which he then characterised as a 'rule of law'). This was, of course, a reference to the so-called rule in Browne v Dunn.[4]

55 Failure to comply with that rule cannot compel a jury to any particular conclusion on an issue of fact. It may, however, have a marked effect upon the view which the jury take of the facts.[5] In the somewhat unusual circumstances of this case, the prosecutor's argument that the failure to comply with that rule should have that effect was unfair. If ever there was a case where the rule should not operate in that way, it was this case.

56 I turn to the general principles that govern grounds of appeal of this nature. The starting point, in relation to a ground of that type, must be to consider the role of prosecuting counsel. As has been said many times before, that role differs from that of an advocate representing an accused person in a criminal matter. The prosecutor represents the State. His or her duty is to fairly and impartially place before the jury all relevant and cogent evidence, and not to obtain a conviction by any or all means. Having presented the evidence, the prosecutor should then address the jury as to how it should be viewed, but always doing so in a manner that is scrupulously fair.

57 The cases establish that the prosecutor should not, for example, adopt tactics that involve an appeal to prejudice or amount to an intemperate or emotional attack on the accused.[6] It is not, of course, suggested that the prosecutor in this case did any such thing.

58 That is not, however, the end of the matter. It is clearly established that the prosecutor should not invite the jury to accept any argument that does not carry conviction in his or her own mind. Nor should the prosecutor put forward any argument or submission that is misleading, unfair, or otherwise unsustainable. To do so is to act contrary to the basic responsibilities that the prosecution must shoulder, and may well lead, in a given case, to a miscarriage of justice.[7]

59 In King v The Queen,[8] Murphy J summarised the ethical responsibilities that rest upon a prosecutor in the following terms:

The duty of a prosecutor is to present the case against the accused fairly and honestly; not to use any tactical manoeuvre legally available in order to secure a conviction.[9]

60 In R v Lucas,[10] Smith ACJ made essentially the same point. His Honour said:

For the purpose of establishing such an allegation of unfairness it is not necessary for the applicant to be able to point to the conduct of an identified person or persons concerned in the prosecution as having been blameworthy. It is sufficient for him to show that the totality of the acts of those concerned on behalf of the Crown in the preparation and conduct of the prosecution has operated unfairly against him. ... [T]he duty of a prosecutor is to prosecute and not to defend, nevertheless it has long been established that a prosecution must be conducted with fairness towards the accused and with a single view to determining and establishing the truth.[11]

61 Newton J and Norris AJ, in their joint judgment in Lucas,[12] put the matter this way:

prosecuting counsel are ministers of justice, who ought not to struggle for a conviction ... it is their duty to assist the court in the attainment of the purpose of criminal prosecutions, namely, to make certain that justice is done as between the subject and the State.[13]

62 In Whitehorn v The Queen,[14] Deane J said:

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 ensure that the accused's trial is a fair one.[15]

63 These broad statements as to the duties of the prosecutor extend, of course, to the content of his or her closing address. They lead to the conclusion that a prosecutor must not, in that closing address, invite the jury to proceed upon a theory which is known to be, at the least, highly dubious, and has the very real potential to mislead the jury. That conclusion is expressly supported by the authorities.[16]

64 In the present case the prosecutor was undoubtedly well aware that the real reason why Mr Barker had not challenged PTO's account of the meeting at the Panton Hill Hotel was because the trial judge had ruled that any such cross-examination would open up, in re-examination, the matter of Zerna's previous conviction for a very serious drug-related offence. Although theoretically, Mr Barker had a forensic choice as to whether to go down that path, the practical reality was that such evidence would have been highly prejudicial, to the point of being devastating, to his client's defence. It is understandable, in those circumstances, that he adopted the safer course that he did.

65 Although Bugeja was not present at the Panton Hill Hotel meeting, there was little doubt that anything said at that meeting would be admissible against him under the co-conspirators' rule. Accordingly, it was essential, as part of his defence to the charge against him of trafficking in a large commercial quantity, to cast doubt upon PTO's account of that meeting. Anything that might bolster PTO's credibility regarding that account must have operated to Bugeja's significant disadvantage.

66 The prosecutor is not to be criticised for having taken the stance that he did in relation to PTO's possible re-examination. There was nothing wrong with his having warned the defence that he would seek to re-examine PTO to bolster his credit if PTO's account of the meeting was challenged. A different prosecutor might even have sought to lead some of that evidence-in-chief, though whether it would have been admitted might be problematic.

67 Nevertheless, the position was quite different when it came to the prosecutor's closing address. Difficult as it may have been, the only appropriate course for the prosecutor to have taken, when he came to deal with PTO's evidence concerning the meeting and what was said at it, was to say little or nothing about the fact that PTO was not specifically challenged about that evidence. Instead, the prosecutor addressed the jury, at considerable length, regarding the effects of the failure on the part of the defence to challenge PTO.

68 It is true that the trial judge, in his charge, gave the usual directions as to counsels' addresses, and reminded the jury that they could accept, or reject, arguments put as they saw fit. Regrettably, that was not sufficient, in the circumstances of this case, to overcome the misleading and prejudicial effects of the prosecutor's argument as to perhaps the most critical issue in this case.

69 Though the prosecutor's statement of the effect of the rule in Browne v Dunn[17] might be seen as literally accurate, it was, in the particular circumstances of this case, quite misleading. In effect, the jury were being invited to come to a conclusion about a pivotal matter based upon a premise that everyone, apart from the jury, would have understood to be false.

70 The failure of counsel below to take immediate steps to protest at what the prosecutor had said in his closing address is, of course, a matter of grave concern. So too was counsels' failure to take exception to his Honour's charge in this respect. It gives rise to a question whether, despite the misleading nature of the argument put to the jury, and the obvious prejudice that that argument must have occasioned, this is nonetheless a case for the application of the proviso.

71 Having given this matter careful consideration, I am not persuaded that it would be appropriate in this case to invoke the proviso. PTO's evidence as to the conversation that took place at the meeting was, as the prosecutor himself made clear, of critical importance so far as the prosecution case was concerned. Indeed, his evidence could be described as the lynchpin of that case.

72 The jury should not have been invited to conclude, either as a matter of law, or by way of submission as to fact, that the failure on the part of the defence to

challenge PTO regarding that evidence meant that it could more readily be accepted. That argument was based upon a false premise, and was seriously misleading. The trial judge's failure to intervene, or to correct the position in his charge (despite the fact that he was not asked to do so), leads me to conclude that Bugeja's trial miscarried, and that there must be a new trial.

73 I should add for the sake of completeness that I agree with Buchanan JA that none of the other grounds argued in support of the application for leave to appeal against conviction have been made out. I am, however, troubled by one aspect of the trial judge's ruling regarding the proposed re-examination of PTO. His Honour ruled that, in the event that the defence cross-examined PTO as to whether the meeting took place, or the substance of any conversation that occurred, not only could PTO give evidence of what Zerna had told him regarding his involvement in previous drug-related offending (because this would be probative), but, in addition, the prosecution would be given leave to prove Zerna's conviction for that offence.

74 Even if the ruling as to re-examination was correct, I am not sure why it would ever have been necessary or appropriate to go so far as to prove the fact of the conviction, and its details.

75 In any event, having regard to my conclusion regarding the prosecutor's closing address, it is unnecessary to come to any final determination regarding that matter.

76 I agree with Buchanan JA and with the exposition by Weinberg JA of the duties of prosecuting counsel.

[1] M v The Queen [1994] HCA 63; (1994) 181 CLR 487; Libke v The Queen [2007] HCA 30; (2007) 230 CLR 559; R v Klamo [2008] VSCA 75; (2008) 18 VR 644, 653-4 (Maxwell P).

[2] Cf R v Tran [2000] FCA 1888; (2000) 118 A Crim R 218, 237-42; R v Anderson (1991) 53 A Crim R 421.

[3] See R v Kostaras (No 2) [2003] SASC 323; (2003) 86 SASR 541; Velevski v The Queen [2002] HCA 4; (2002) 187 ALR 233, 273-4; R v Rugari [2001] NSWCCA 64; (2001) 122 A Crim R 1, 7. See also Weiss v The Queen [2005] HCA 81; (2005) 224 CLR 300, 307-8.

[4] (1893) 6 R 67. Of course, the rule itself admits of some flexibility. It requires that in cross-examination of a witness 'any matter upon which it is proposed to contradict the evidence-in-chief given by the witness must normally be put to him so that he may have an opportunity of explaining the contradiction, and failure to do this may be held to imply acceptance of the evidence-in-chief' (cited in Bulstrode v Trimble [1970] VicRp 104; [1970] VR 840, 846). See also R v Birks (1990) 19 NSWLR 677, 686.

[5] R v Costi (1987) 48 SASR 269.

[6] R v Smith [2007] QCA 447; (2007) 179 A Crim R 453, 463-4.

[7] Tran v The Queen [2000] FCA 1888; (2000) 105 FCR 182, 203.

[8] [1986] HCA 59; (1986) 161 CLR 423.

[10] [1973] VicRp 68; [1973] VR 693 ('Lucas').

[11] Ibid 696. This passage was cited with approval by the High Court in Subramaniam v The Queen [2004] HCA 51; (2004) 211 ALR 1, 16.

[12] [1973] VicRp 68; [1973] VR 693.

[13] Ibid 705. See also R v Bathgate (1946) 46 SR (NSW) 281, 284-5 where Maxwell J observed that the prosecutor should regard himself as a minister of justice, and should not 'struggle for a conviction'.

[14] [1983] HCA 42; (1983) 152 CLR 657.

[16] Anderson v The Queen (1991) 53 A Crim R 421; and Tran v The Queen [2000] FCA 1888; (2000) 105 FCR 182.