Criminal law - Appeal against conviction - Appellant convicted after trial of murder and attempted murder - Prosecutor commented to the jury in his closing address that the State, the community and the family of both the deceased victim and the injured victim had the right to a conviction - Whether the prosecutor's comment occasioned a miscarriage of justice - Whether the trial judge's directions to the jury failed adequately to deal with the prosecutor's comment

Carr v The Queen [1988] HCA 47; (1988) 165 CLR 314

Goedecke v The State of Western Australia [2013] WASCA 25

JJS v The State of Western Australia [2014] WASCA 136

Longman v The Queen [1989] HCA 60; (1989) 168 CLR 79

MAM v The State of Western Australia [2018] WASCA 35

RPS v The Queen [2000] HCA 3; (2000) 199 CLR 620

Tully v The Queen [2006] HCA 56; (2006) 230 CLR 234

Whitehorn v The Queen [1983] HCA 42; (1983) 152 CLR 657

Wood v The Queen [2012] NSWCCA 21; (2012) 84 NSWLR 581

1. The appellant has applied for leave to appeal against conviction.
2. The appellant was charged on indictment with two counts.
3. Count 1 alleged that on 18 February 2017, at Capel, the appellant murdered Jennifer Kay Pratt, contrary to s 279 of the Criminal Code (WA) (the Code).
4. Count 2 alleged that on 18 February 2017, at Capel, the appellant attempted unlawfully to kill Karen Susan Williams, contrary to s 283(1)(a) of the Code.
5. On 20 June 2018, after a trial before Corboy J and a jury, the appellant was convicted of both counts.
6. The sole ground of appeal, as explained by counsel for the appellant at the hearing of the application, alleged that there was a miscarriage of justice at the trial. The miscarriage was allegedly occasioned by the trial judge's failure to direct the jury in relation to 'the inappropriate comment of the prosecutor to the effect that the State, community and the family of both the deceased and the injured complainant had the right to a conviction'.
7. At the conclusion of the hearing of the application, this court ordered that leave to appeal be refused and the appeal be dismissed. We said that our reasons for decision would be published at a later date. These are our reasons.

Overview of the facts and circumstances of the offending

1. During the afternoon of 18 February 2017, the appellant drove his Toyota LandCruiser vehicle from a campsite at Wonnerup Beach in Capel onto the Bussell Highway. He proceeded to drive along Bussell Highway towards Bunbury. During the journey, the appellant drove recklessly by veering consistently into oncoming traffic on the incorrect side of the road. The appellant deliberately drove in that manner and caused a number of motorists to swerve off the road to avoid a collision. When the Bussell Highway became a dual carriageway, separated by a median strip, the appellant deliberately drove north on the southbound lanes into the path of oncoming vehicles. The speed limit on this section of Bussell Highway is 110 km per hour. About 100 m south of Capel Drive, the appellant deliberately drove his vehicle towards a vehicle driven by Ms Pratt. His intention was to collide with her vehicle. Ms Williams was in the front passenger seat of Ms Pratt's vehicle. The vehicles collided head on. The appellant was thrown from his vehicle onto the road. His vehicle caught fire as a result of the impact. Ms Pratt was trapped in the driver's seat of her vehicle and died at the scene as a result of multiple injuries caused by the impact. Ms Williams suffered several injuries and was conveyed to Bunbury Hospital.

1. The prosecutor made the following statements towards the end of his closing address to the jury:

[H]is Honour will tell you that the accused man, Mr Southern, has certain rights in this process. And he has the right to the presumption of innocence and he's had that, and he has the right to a fair trial and he's had that. And he has the right to have the evidence assessed by an impartial jury and he will have that.

But on the evidence led in this trial, we respectfully submit that the guilt of the accused has been established beyond a reasonable doubt. If you find that to be so, then the State and the community you represent and the family of Jennifer Pratt and Karen Williams herself have the right to judgments of conviction in respect of these charges.

Jennifer Pratt had a right to make it home. I respectfully ask you to find the accused guilty.

Thank you very much for your attention, members of the jury.

Thank you, your Honour (ts 391 - 391). (emphasis added)

1. The trial judge's summing up to the jury included instructions and comments as follows:

And you must assess the evidence dispassionately and impartially. Matters of sympathy, prejudice, sentiment or emotion must not play any part in your decisions. That is expected of every jury in our system of criminal justice. It's most important in this case that you put aside feelings of sympathy that you may have felt for those who will have grieved for the loss of Ms Pratt, and feelings of sympathy that you might have experienced for Ms Williams as a result of the injuries she suffered in the collision.

You must also put to one side any feelings of shock that you may have experienced because you may have found some of the evidence in this trial unpleasant or confronting.

It is inevitable that juries in trials involving the death of a person will experience various emotions on hearing the evidence because of its very subject matter. ...

...

You should recognise that those emotions or thoughts that you experienced when you first heard the evidence were to be expected, but they must now be put to one side and disregarded. They are not evidence and do not assist you to discharge your duty as jurors to give a true verdict according to the evidence and that is because you would be acting on emotion and prejudice rather than on what the evidence establishes. Concentrate on taking an analytical approach to the evidence so that you can find the facts that have been actually proven by the evidence to your satisfaction.

...

Your duty, as I've said, is to assess the evidence, find the facts and reach your verdicts impartially and dispassionately. You would be acting contrary to your oath or affirmation if you allowed matters of prejudice or sympathy to intrude into your assessment of the evidence and the way in which you reason to your verdicts. The key is to take an analytical and not emotional approach to the evidence.

...

As I explained to you at the commencement of the trial, the evidence consists of what you heard from the witnesses, what they said and the exhibits that were tendered and received by me. You'll take the exhibits with you into the jury room so that you can examine them further in the course of your deliberations. As Ms Fisher has already indicated to you, you'll be provided with equipment on which you can play the three DVDs that have been tendered as exhibits.

The questions that the witnesses were asked by counsel were not evidence. Likewise, what counsel said in their opening and closing addresses was not evidence, and anything that I say to you in the course of my directions to you is not evidence. Indeed, any argument, comment, question made or asked by counsel or myself during this trial was not evidence. It's what the witnesses said and what the exhibits show (ts 424 - 426).

1. At the trial, the appellant was represented by a competent and experienced criminal defence lawyer.
2. After the prosecutor completed his closing address, defence counsel addressed the jury. She did not dispute or deal with the prosecutor's impugned statements in her closing address.
3. Also, defence counsel did not raise with the trial judge any issue or concern in relation to the prosecutor's impugned statements.
4. Further, defence counsel did not request his Honour to redirect or give any additional direction to the jury.

The sole ground of appeal: counsel for the appellant's submissions

1. Counsel for the appellant complained in his written submissions that:

(a) the prosecutor 'effectively saddled the jury with the burden of both the families of the deceased [Ms Pratt] and the complainant [Ms Williams] expecting justice and having the "right to a conviction"'; and

(b) the trial judge's directions in his summing up were not sufficient 'to ameliorate or cure the vice' in the prosecutor's impugned statements.

1. Counsel noted that Ms Williams had given evidence at the trial. He asserted that '[t]he poignancy of her trauma would have been apparent to the jury and served to buttress the prosecutor's demand that she was, in effect, entitled to a verdict of guilty'.
2. Counsel submitted that the prosecutor's impugned statements were 'a breach of the prosecutor's fundamental duty, having the potential to distract the jury from their duty to dispassionately assess the evidence without regard to the consequences of their verdicts'.
3. At the hearing of the application, counsel for the appellant argued that the prosecutor's impugned statements were 'tantamount to inviting the jury to have regard to the consequences of their verdict' (appeal ts 4).

1. The prosecutor in a criminal trial represents the State. The prosecutor must 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': Whitehorn v The Queen.[1]
2. As Mazza JA (McLure P agreeing generally & Newnes JA agreeing) noted in Goedecke v The State of Western Australia:[2]

Consistently with a prosecutor's duty, in a closing address a prosecutor should not (inter alia) tell a jury something that is not evidence (R v Callaghan [1993] QCA 419; [1994] 2 Qd R 300, 306; offer a personal opinion (KNP v The Queen [2006] NSWCCA 213; (2006) 67 NSWLR 227 [32]), introduce false lines of reasoning or invite a jury to speculate about the evidence. As to these last two points see Wood v The Queen [2012] NSWCCA 21.

See also JJS v The State of Western Australia;[3] MAM v The State of Western Australia.[4]

1. In Wood v The Queen,[5] McClellan CJ at CL (Latham & Rothman JJ agreeing) said that asking questions, even in a rhetorical manner, and inviting the jury when considering their verdict to consider whether the accused had provided satisfactory answers to the questions, was an impermissible course for a prosecutor to follow because it reversed the onus of proof.
2. If a prosecutor breaches his or her duty at trial it will be necessary for an appellate court to evaluate the significance of the breach in the context of the trial as a whole, including whether any objection to the prosecutor's course of conduct was taken by defence counsel. See Whitehorn (664); Goedecke [35], [37]; JJS [134].
3. A judge is bound to give a direction to the jury if, in the circumstances of the particular case, the direction is necessary to avoid a perceptible risk of a miscarriage of justice. See Carr v The Queen;[6] Longman v The Queen;[7] Tully v The Queen.[8] This is an incident of the judge's duty to ensure a fair trial for the accused. See RPS v The Queen.[9]
4. In the present case, the prosecutor told the jury in his closing address that 'the State and the community ... and the family of Jennifer Pratt and Karen Williams ... have the right to judgments of conviction in respect of these charges' (ts 392).
5. A prosecutor is an officer of the court and is obliged to perform his or her functions with detachment. Each of the jurors takes an oath or makes an affirmation to give a true verdict according to the evidence upon the issues to be tried in the proceedings.[10] Neither the State nor the community nor a complainant has a 'right' to a judgment of conviction on the trial of an accused for an alleged offence. In the present case, the prosecutor's impugned statements were an unnecessary rhetorical flourish. They should not have been made.
6. However, we are satisfied, for the following reasons, that the impugned statements did not occasion a miscarriage of justice at the trial.
7. First, the impugned statements were made immediately after the prosecutor had submitted that the appellant's guilt had been established beyond reasonable doubt. The statements were expressly based upon the premise that the jury had found the appellant's guilt to have been established beyond reasonable doubt. See the italicised words in the passage set out at [9] above.
8. Secondly, the trial judge's instructions and comments to the jury in his summing up, which we have reproduced at [10] above, avoided any perceptible risk of a miscarriage of justice arising from the impugned statements. In particular, his Honour directed the jury that they must assess the evidence dispassionately and impartially; and that sympathy, prejudice, sentiment and emotion must not intrude into the jury's decisions, including their assessment of the evidence and the manner in which they reasoned to their verdicts.
9. Thirdly, the only reasonable inference is that the appellant's competent and experienced criminal defence lawyer, who was absorbed in the atmosphere of the trial, did not perceive that the appellant had suffered any prejudice as a result of the impugned statements. As we have mentioned, defence counsel did not dispute or deal with the impugned statements in her closing address; she did not raise with the trial judge any issue or concern in relation to the impugned statements; and she did not request his Honour to redirect or give an additional direction to the jury.

1. The sole ground of appeal did not have a reasonable prospect of success. Accordingly, we ordered that leave to appeal be refused and the appeal be dismissed.

I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.

[1] Whitehorn v The Queen [1983] HCA 42; (1983) 152 CLR 657, 663 - 664 (Deane J).

[2] Goedecke v The State of Western Australia [2013] WASCA 25 [36].

[3] JJS v The State of Western Australia [2014] WASCA 136 [134] (Martin CJ; Pullin JA agreeing & Buss JA relevantly agreeing).

[4] MAM v The State of Western Australia [2018] WASCA 35 [101] - [108] (Martin CJ; Beech JA agreeing & Hall J agreeing generally).

[5]Wood v The Queen [2012] NSWCCA 21; (2012) 84 NSWLR 581 [605].

[6] Carr v The Queen [1988] HCA 47; (1988) 165 CLR 314, 324 - 325 (Brennan J).

[7] Longman v The Queen [1989] HCA 60; (1989) 168 CLR 79, 86 (Brennan, Dawson & Toohey JJ).

[8] Tully v The Queen [2006] HCA 56; (2006) 230 CLR 234 [123] (Callinan J), [158] (Crennan J).

[9] RPS v The Queen [2000] HCA 3; (2000) 199 CLR 620 [41] (Gaudron A-CJ, Gummow, Kirby & Hayne JJ).

[10] Section 105 of the Criminal Procedure Act 2004 (WA).