Crockford v R

Factual background

1. Where it is alleged that a prosecutor has made incorrect or inflammatory submissions to a jury, both the characterisation of the material complained of and an assessment of whether it gave rise to a miscarriage of justice must be viewed in the context of the trial. It is therefore necessary to set out the background to the trial, before turning to the statements relied on by the applicant on the appeal.
2. The prosecution case was that, at the time of the collision, the applicant was in a state of fatigue and was not keeping a proper lookout. In support of that case, the prosecutor called evidence as to the applicant's activities and hours of sleep during the two days before the accident. The prosecutor also called evidence as to the driving of the applicant's vehicle shortly before the accident.
3. The applicant presented a different explanation for the collision, namely that he had briefly lost consciousness and control of the vehicle due to a cough syncope. A cough syncope is a coughing fit of sufficient seriousness to cause a brief loss of consciousness. As there was evidence in support of the applicant's explanation, it was necessary for the prosecutor to satisfy the jury that there was no reasonable possibility that such an event took place shortly before the collision.
4. Although there is no suggestion that the verdicts were unreasonable or could not be supported on the evidence, it is convenient to start by summarising the prosecution case.
5. The prosecution constructed a timetable based upon Facebook messages sent to and by the applicant, use of his iPhone, and the electronic monitoring system of the vehicle, which included times when the ignition was turned on and off and when the driver logged on and off.
6. The undertaking on which the applicant was engaged at the time of the accident involved the transport of prefabricated concrete panels from a depot in Queensland to the Australian National University in Canberra. There were two vehicles making the trip, being that of the applicant and another vehicle driven by a Mr Robert Scott. The planned trip covered some 1,200 kms and the drivers were expected to unload in Canberra on the morning of 17 January. The loaded vehicles weighed some 35 tonnes. On the night of 14-15 January, the applicant was on his iPhone up until 11:40pm Queensland time. The ignition in the vehicle was switched on at 5:25am the following morning, he was at the loading site by 7:30am and departed at about 12 midday. The time between the last use of his iPhone and when he started the engine vehicle was 6 hours. It may be inferred that he was not asleep for the whole of that period.
7. On 15 January, the vehicle stopped for the night at 6:50pm New South Wales time at Gurley, some 30 kms south of Moree. The applicant drank the equivalent of seven standard drinks at dinner. He and Mr Scott then accompanied the publican and his wife to hot springs on a private property nearby. The applicant was using his mobile phone until 1:28am on 16 January. He started his truck at 7:17am. He could not have slept for more than 5.5 hours that night. The applicant logged on at 7:36am and he and Mr Scott recommenced their journey. They drove until approximately 11am when they stopped at Gilgandra for a little under 1 hour for breakfast. They left the truck stop at 11:55, 35 minutes before the accident. The applicant left first, being followed by Mr Scott. The applicant crashed into the line of stationary vehicles at 12:30pm. As a result of the collision, the applicant was trapped in the cabin of his vehicle with a broken leg for about four hours before he was freed and taken by helicopter to Liverpool Hospital where he underwent surgery on his broken leg.
8. Movements of the applicant's vehicle during that period were recorded on Mr Scott's dashcam. An expert in crash and accident investigation, Professor Raphael Grzebieta examined the footage from the dashcam and prepared a table identifying where the applicant's truck was on the road during the minutes prior to impact. It also recorded the road signs as the truck passed them. About 75secs before the moment of collision the applicant's vehicle passed the first warning sign and slowed from approximately 100 kph to 85 kph, when it passed the first "80 km/h ahead" warning sign, and then to about 80 kph. Between 60 and 40secs before the collision it started to increase speed to about 90kph, in which period it passed an 80km/h speed limit sign and continued at speeds a little above or below 85 kph until it struck the first car in the queue of stopped vehicles.
9. The movement of the truck before the collision across the southbound lane suggested that the driver was in control and, at one stage, had moved so that the left wheels were over the fog line to allow a truck in the northbound lane room to pass. The applicant's vehicle then moved back into the centre of the southbound lane. Professor Grzebieta stated that, in his opinion, the changing speed indicated that the applicant was actively accelerating or maintaining acceleration. Further, the vehicle drifted towards the fog line on more than one occasion, but corrected by coming back to the centre of the lane. He stated that in his opinion the movement across the left fog lane was deliberate to allow room for the truck in the northbound lane. Professor Grzebieta stated that the truck could not have been driven in the manner demonstrated by Mr Scott's dashcam if the applicant had been unconscious.
10. At 1 minute 13 seconds before the collision, the applicant passed signs stating "ROADWORK AHEAD", "TRAFIC QUE AHEAD" and "PREPARE TO STOP". The line of stationary vehicles was visible 21 seconds before the accident. The truck did not change speed thereafter.
11. Although the applicant was trapped in the cabin of his vehicle after the collision, he remained lucid and alert and told people at the scene that his accelerator had stuck and that the brake would not work. Subsequent investigations demonstrated there was no mechanical defect in the vehicle.
12. The applicant's case at trial was that he had a bad coughing fit as he approached the line of traffic that caused him to lose consciousness. Although there was no objective support for the fact that he was subject to such fits prior to the accident, and indeed he did not suggest he had had such a fit prior to the accident, he produced medical evidence to confirm the possibility of a cough syncope in a person of his build and attributes. He called a thoracic physician, Dr Allan Finnimore, whom he first saw in December 2018 in relation to his cough and (at that stage) undiagnosed sleep apnoea. The applicant gave a history of childhood asthma and undertook a spirometry test which required him to blow into a tube. The applicant was described as coughing violently and then slumping in the chair. That history was described by Dr Finnimore as a "classic cough syncope". [1] He described it as either a full-blown syncope or presyncope because Mr Crockford lost control of his ability to sit up briefly. [2] There was evidence of a similar episode with a physiotherapist who administered a spirometry test at Liverpool Hospital on 24 January 2018. The physiotherapist said that such a reaction to a spirometry test was not uncommon.
13. The applicant also obtained support from evidence given by Mr Scott. Mr Scott was called by the prosecutor, but said nothing in his evidence in-chief about the applicant's condition on the day of the accident or the previous day. He said he had had no contact with the applicant since the collision. In cross-examination by defence counsel he spoke about the applicant coughing. He said that he was coughing on each occasion on which they stopped. Following the cross-examination, the Crown prosecutor sought a ruling that the evidence was unfavourable and asserted that the witness had made a prior inconsistent statement with respect to coughing. He noted that it was the prosecution case "that coughing never occurred and it's simply a recent invention". [3] Mr Scott's earlier statement, made on 16 January 2018, less than an hour after the accident, made no mention of coughing, despite speculating about the applicant's health and anything that may have affected his health. [4] Leave was given under s 38 of the Evidence Act for the prosecutor to cross-examine Mr Scott. The prosecutor noted that in a second statement to police on 27 February 2018, Mr Scott had stated that the applicant "coughed the day we loaded, he coughed the whole bloody trip". [5] He first confirmed evidence that he had given in-chief that he had not spoken to the applicant since the accident. [6] However, he then agreed that he had spoken to the applicant "every couple of days since the collision at least up until the point of [the second] interview". He agreed that he had spoken to him whilst he was in hospital. [7]

Conduct of prosecutor - legal principles

1. Principles relating to the conduct of the prosecutor in a criminal trial have been stated and restated on numerous occasions. A recent comprehensive statement of the principles was set out in the judgment of N Adams J in Glenn (a pseudonym) v R. [8] It is not necessary to restate those principles here. Relevantly, three propositions may be identified.
2. First, while a prosecutor is entitled, perhaps obliged, to present the prosecution case "firmly and vigorously", that obligation is tempered by the need for restraint. As an officer of the State, the prosecutor has a duty to ensure the fairness of the trial.
3. Secondly, a fair trial may be in jeopardy where a prosecutor (i) makes statements having the tendency to inflame prejudice, rather than promote rational assessment of the evidence, (ii) misrepresent any part of the evidence, or (iii) express personal opinions in relation to the evidence or the witnesses.
4. Thirdly, while a form of expression inviting the jury to reject the defendant's case in language which the prosecutor thinks the jury will understand is appropriate, colloquialisms should be avoided, especially if they have a pejorative flavour, because they may invite an instinctive response, rather than a rational assessment of the evidence.
5. Bearing these principles in mind, in Zurshig v R [9] it was suggested that a challenge to a conviction based on the conduct of the prosecutor might require a three-stage analysis along the following lines: 1. How would the impugned conduct of the prosecutor have been understood by the jury? 2. Does such an understanding involve a contravention of the standards to which a prosecutor is expected to conform? 3. If a breach of those standards has been established, was the effect to deprive the accused of a fair trial?
6. The third question is often the most difficult to answer: an appeal court can never be sure whether a jury has in fact been distracted or diverted from the proper course of considering the evidence. Because it was properly accepted by the Director that aspects of the address contravened the standards of proper restraint, the third question is critical in the present case. If, as a practical proposition, and having regard to the context in which the misconduct occurred, there is a real possibility that the jury was distracted or diverted, the court should accept that there has been miscarriage of justice.

The impugned passages in the prosecutor's address

1. The applicant's written submissions identified nine passages (under separate headings), each of which was said to involve a breach of the standards applicable to a prosecution address to the jury. It will be convenient to deal with these in the following categories.
2. First, three were statements made by the prosecutor as to lies told by the applicant. These may be dealt with together. It was common ground on the appeal, and at the trial, that the guilt of the applicant turned on a single issue, namely whether the prosecution had removed as a real possibility the contention that the applicant may briefly have lost consciousness at the time of the collision because he suffered a cough syncope. The evidence in that regard fell into two categories. First, there was evidence of things said by the applicant which supported or contradicted the existence of such a condition materialising shortly before the collision. Secondly, there was the medical evidence in relation to the nature of the condition and, in the case of treating doctors, observed symptoms. It will be convenient to start with the first category.
3. Secondly, it was contended that the prosecutor over-stated the effect of the evidence of the prosecution expert on cough syncope, Professor Matthew Naughton.
4. Thirdly, and a matter on which the applicant placed weight at the hearing, the applicant alleged misconduct in respect of a number of passages in the closing address which, it was said, sought to belittle or ridicule the defence case.
5. Fourthly, complaints were made about the treatment of the evidence of specific witnesses (including some called in the prosecution case) on which the defence relied.

Submissions as to lies by the applicant

1. As the applicant submitted, lies told by him were "a significant focus" of the prosecutor's address. Some were relied on as evidence of consciousness of guilt, whilst others were said only to affect his credibility. [10]
2. The applicant did not give evidence, but there were multiple accounts of important statements made by him. These included statements made immediately following the accident and in the four hours whilst he was trapped in the cabin of the truck. Secondly, there were accounts given in the course of an electronically recorded interview (ERISP) taken on the evening of 2 February 2018, some two weeks after the collision. The transcript included some 1,400 questions, answered over a period of 2 hours. Thirdly, there were accounts provided by the applicant of his medical history.
3. The prosecutor identified numerous inconsistencies, which, if accepted as such by the jury, provided ample reason for the jury to doubt his account of a coughing fit and loss of consciousness prior to the collision. Some were identified as lies demonstrating a consciousness of guilt. In some passages lies were identified as distractions or "red herrings".
4. In her summing up, the trial judge identified 14 separate lies, five of which went to consciousness of guilt and nine of which went to the applicant's credibility generally. The list was not comprehensive, but identified topics about which the prosecution alleged he had lied. Several topics involved more than one untrue statement.
5. The applicant did not complain of the judge's list, but did complain that in the opening paragraphs of his address, the prosecutor did not distinguish clearly between which category the lies fell within and, further, included as lies, statements that he suffered a coughing fit which rendered him unconscious immediately before the collision.
6. These particular criticisms were not made good. It is true that the prosecutor commenced with a broad summary of the lies, but each area was developed separately in the course of the submissions and those which were said to indicate consciousness of guilt were also separately identified as such in the course of submissions. It is true that whether the applicant was truthful when he said he lost consciousness as a result of a coughing fit, whilst a lie on the prosecution case, was the ultimate question to which issues of credibility were directed. The jury would not have been misled.
7. Secondly, relying on a passage from this Court's reasoning in Lyndon v R, [11] the applicant contended that the prosecutor did not use a formulation in terms of "I submit" or "I suggest", as he should have.
8. In the first two paragraphs of the transcript of his address, the prosecutor merely gave a list of topics on which he said the applicant had told lies. He then stated: [12] "This is part of the trial where I get to speak to you, where I get to suggest to you ways of looking at the evidence. I get to suggest to you arguments. When you're assessing the evidence ways to think about the evidence to determine whether or not the Crown has proven the elements of these cases beyond reasonable doubt. … In order to convict the accused, in terms of the issues of this trial, you only need to find two things. Firstly, that he was conscious up until or shortly before the time of the collision and, secondly, that he was not paying proper attention, whether that be due to fatigue, microsleep, inattention, distraction or otherwise. It is dangerous, ladies and gentlemen, for somebody to be driving a heavy vehicle down the Newell Highway 20 kms north of here, without paying proper attention. He was conscious, he was controlling the steering, he was controlling the acceleration right up to the point of impact. He was not paying attention, probably due to fatigue. He was controlling the vehicle for at least 1.8 kms prior to the crash. He drove [past] eight road signs that he completely ignored. He missed every sign that everybody else saw. He missed the rumble strips. He didn't slow to 80, he didn't slow to 60. He clearly wasn't going to slow to 40. He collided with a row of stopped traffic."
9. The precise language in which submissions are expressed, especially in providing a brief summary of a case, will rarely give rise to a miscarriage of justice. It is true that the prosecutor (like any counsel) should not be understood to be expressing personal opinions, nor should there be reliance on rhetoric or emotion. However, that was not the language used by the prosecutor in these passages. There was no breach of standards in these respects.
10. The applicant also submitted that the prosecutor went beyond the legitimate course of addressing "firmly, in relation to the applicant's credibility", and made statements which implied bad character. [13] This was said to appear from the following passage: [14] "The Crown is not saying you should disregard them ["lies, inconsistencies and red herrings"], you shouldn't think about them. You should, you should think about them. You should look at them closely. You should look at the lie, look at the evidence, and think about it closely. And once you've done that you will see that they are lies. That some of those lies were told because he knew he was guilty. But all of those lies show that he cannot be trusted."
11. Later, the prosecutor noted that two doctors had expressed opinions as to his medical condition, but based on his self-reports, he being a person, "who you can't trust a word from". [15]
12. The applicant submitted that the prosecutor should have restricted the statement about trustworthiness to "the issues in the trial rather than making a general statement about the accused's trustworthiness". [16] However, there is no substance in that complaint. The case which the prosecutor put, and was entitled to put, to the jury was that the applicant had told many lies in relation to matters which were at the heart of the prosecution case in rebutting the defence.
13. The third topic raised in relation to lies by the applicant was a complaint about the prosecutor "postulating a hypothetical thought by the applicant". [17]
14. The prosecutor sought to identify when the applicant first referred to a coughing fit in his description of what had happened to cause the collision. The first explanations given, to first responders at the scene of the collision, were that the accelerator had stuck and that the brakes would not work. That explanation was given to a paramedic, Tony Hare. The prosecutor stated: [18] "When Tony Hare asked the accused what happened, when Tony Hare said, 'do you remember what happened?' the accused said he remembered everything. He said, 'whilst coming up to the roadworks, the accelerator stuck. I tried the brakes, there was nothing. Then ran into the back of the truck and a couple of cars'."
15. This was his version given straight after the collision. The prosecutor said this was his "first attempt at grasping at a straw", but at a time when he was "conscious, alert and lucid".
16. The prosecutor then referred to the evidence of a conversation with Dr Lin Hu, a medical officer who arrived at the scene of the collision about two hours after the event. The prosecutor observed that the applicant responded to questions asked by the doctor before he administered ketamine and continued: [19] "Dr Hu was trying to ascertain the mechanism of injury. He told Dr Hu he was driving at approximately 80 km/h, down the road, saw a row of stationary traffic ahead of him, attempted to apply the brakes, his throttle jammed. He was alert, he was conversing appropriately. This was in the first few minutes that Dr Hu got there. He sticks with this lie, mostly, for the next five or six hours. He tells Dr Carpio, at Liverpool Hospital, a hybrid lie, this time. This is the first time we hear of coughing, he doesn't say he blacks out. But he also tells Dr Carpio that his accelerator stuck. He sort of remembers, this is the first time, his foot being stuck in the accelerator, unable to release it, saw a car and hit it at approximately 85 km/h. He said, before this, that he'd been coughing and that he had an asthma attack in the days leading up to the crash."
17. The prosecutor then noted that the mechanical evidence excluded a stuck accelerator and any brake failure. That evidence was not contested. Up to that point, the prosecutor noted, there had been no reference to a loss of consciousness. He suggested to the jury that if a coughing fit and a loss of consciousness were the true explanation, "he would be telling everybody, anywhere near him that would listen". [20] In fact, the coughing was not referred to until 6 hours after the accident and the loss of consciousness not until 2 days later. He had the opportunity to tell the paramedic and Dr Hu when they asked him what had caused the accident. The prosecutor continued: [21] "This is a lie, ladies and gentlemen. It's a fabrication. The accused is trying to get out of responsibility for what happened on 16 January 2018 about 20 kms north of here. You know, he probably had some sort of a cough. The gantry operators observed a slight cough. Importantly, they didn't observe him passing out. They observed a cough. The accused thought, after five or six hours of being conscious, alert and lucid 'this is pretty bad. I've got to come up with an excuse. The mechanical excuse isn't going to work because they can look at the truck. I know, I'll tell them I coughed and passed out'."
18. As the applicant noted, [22] in Armstrong v R, [23] a murder case, this Court was highly critical of a prosecutor for postulating an hypothetical thought process in relation to a conversation between the accused and his father in an intercepted telephone conversation. What the accused had in fact said in that case related to forensic choices and decisions that would need to be made when DNA results were to hand. The prosecutor suggested he was thinking, "I might have to wear it but maybe I can tough it out and maybe I can convince the jury I didn't do it". As the Court noted, an arguably neutral statement was turned into a confession of murder and an intention to deceive a jury. The creation of the hypothetical thought process was said to be both "inappropriate and intemperate".
19. It must be accepted that suggestions as to an hypothetical thought process should generally be eschewed. In Armstrong, an inference of guilt was derived from a statement which was, in its terms, largely neutral. [24] The reasoning in Armstrong was as follows: "43 It was always the Crown case at trial that this conversation amounted either to an admission by the appellant or was demonstrative of a consciousness of guilt, because an innocent person would neither have entertained the possibility of being inculpated by DNA results nor reserved his position on his plea in such circumstances. Such submissions were genuinely available and open to the Crown. What was to be made of the conversation always remained a matter for the jury. 44 However, I do not consider that it was proper for the Crown Prosecutor to descend, in the context of a contest about whether particular samples of DNA were or were not blood or semen, to characterise the position confronted by the appellant in the course of the conversation as being something he can potentially pass off 'as some sort of toilet sexual activity because of [his] gay lifestyle'. In my opinion, comments such as that were inflammatory and derogatory and likely, if not actually intended, to cause unfair prejudice to the appellant. The expression 'toilet sexual activity' was gratuitously pejorative and fundamentally irrelevant. It represented a crossing of the boundary between what was legitimate and what was illegitimate for a Crown Prosecutor to say to a jury. 45 Moreover, the Crown Prosecutor asserted to the jury 'the accused did it'. She postulated an hypothetical thought that the appellant might have had when speaking to his father in the intercepted telephone conversation: 'I might have to wear it but maybe I can tough it out and maybe I can convince the jury I didn't do it.' The Crown Prosecutor did not in her address confine her references to the telephone conversation evidence as demonstrating a consciousness of guilt but arguably treated it as if it were a confession to the murder of the deceased. That was an unwarranted extrapolation from the statement made by the appellant to his father concerning forensic choices and decisions that were to be made when the DNA results were to hand into a statement that the appellant had it in his mind to deceive the jury. That was an inappropriate and intemperate remark for the Crown Prosecutor to have made."
20. The hypothetical thought process in the present case was of a different character. It was a speculation as to why the applicant abandoned one (false) explanation of the cause of the collision for another which, for entirely different reasons, the prosecutor asserted was also false. It was an available part of the prosecution case that the applicant changed his story from time to time. The inference sought to be drawn was that, in each case, he was providing a false explanation for the cause of the collision. To put that inference into the terms of the hypothetical thought process was unhelpful, but, if prejudicial, only to a minor degree. It was inherent in the prosecution case that some sort of thought process must inevitably have taken place.
21. It follows that the three grounds upon which the prosecutor's dealing with the applicant's lies were challenged should be rejected. They did not constitute grounds establishing a miscarriage. As in the case of each challenge, it will be necessary at the conclusion to consider whether any potential prejudice may have been sufficient to warrant intervention by this Court, when assessed on a cumulative basis.

Misrepresentation of prosecution evidence

1. A separate challenge arose with respect to the manner in which the prosecutor summarised the evidence of Professor Naughton, the head of general respiratory and sleep medicine at the Alfred Hospital in Melbourne. Professor Naughton was, as the applicant acknowledged, a critical source of expert evidence in the prosecution case.
2. There were three passages in the summary of Professor Naughton's evidence which were said to constitute misrepresentations. The first was as follows: [25] "You remember Professor Naughton's impressive evidence that of the between 160,00 and 320,000 patients that he's seen since 1988, he's seen three cases of cough syncope. He said many, many cases are referred to him, but he's only seen three. In each of those cases, the person who suffered the cough syncope also suffering serious lung damage, had cardiovascular issues and was a strong, young male. … Is there a cough syncope? Three cases in between 160,000 and 320,000 patients. It's extremely, extremely unlikely. The accused just happens to be patient four. Patient four, without the underlying illnesses that are required to give rise to a cough syncope."
3. The applicant in written submissions reproduced the second of these passages without the first, which puts it in context. The error was said to be the inference that the applicant was a patient of Professor Naughton, whereas he had never been treated or seen by Professor Naughton, as Professor Naughton expressly acknowledged. The point was said to be significant because Dr Finnimore, called for the defence, had been a treating doctor (although not until about a year after the collision).
4. With respect, this is the kind of submission which must be viewed from the perspective of the jury. There had been no suggestion at any stage that Professor Naughton had treated the applicant. Professor Naughton had been the last prosecution witness and had been cross-examined at some length on the afternoon of Thursday, 12 March 2020. There had been no hearing on the Friday morning and the final witness, Dr Finnimore, gave evidence on the Friday afternoon. The prosecutor addressed on the following Monday morning.
5. Apart from the fact that the jury had heard Professor Naughton's evidence quite recently and it would have been fresh in their minds, it is tolerably clear that the reference to "patient four" was intended, and would have been understood as, a figure of speech. It was merely a means of making clear that such cases were extremely rare, even by reference to the number of patients who were thought to be suffering from cough syncope. There was no substance in this complaint.
6. Two succeeding passages to which the applicant took objection may be considered together. The first should be put in context, although the applicant complained only about the last sentence. The first part appeared between the two passages set out above, thus after explaining Professor Naughton's evidence that, in each of the three cases in which he had diagnosed cough syncope, the patient was also suffering from serious lung damage, cardiovascular issues and was a strong, young male. The prosecutor continued: [26] "He explained to you why that was. He explained to you the mechanics of a cough syncope. He explained to you that the reason that somebody can cough themselves into unconsciousness is if the pressure within the thoracic cage increases to a point where it impedes the flow of the blood to the brain. That's what causes someone to fall unconscious. It's got nothing to do with oxygen. It's the blood. The only cases are of people with severe lung disease, coronary disease and strong enough muscles in order to generate the pressure required."
7. Taking that passage at face value, it is clear that the phrase "[t]he only cases" referred to, and would have been understood by the jury to refer to, the only cases that Professor Naughton had seen. In the next passage to which the applicant took objection, the prosecutor continued: [27] "They are extremely rare. They are only ever in young men with severe lung disease, problems with their arteries and very strong chest muscles. The accused has a healthy heart, healthy lungs and healthy brains. The syncope was not reproduced even though they tried to reproduce it in intensive care in the days after his operation. It was not reproduced. Professor Naughton said genuine cough syncope is reproduceable. In fact, a genuine sufferer of cough syncope would fall unconscious with every coughing episode. So [if] the accused was genuinely suffering cough syncope, not lying about it, those observations made by the gantry operators in Queensland should have been that he coughed and passed out. He coughed, but he didn't pass out. There is no cough syncope, ladies and gentlemen."
8. The applicant's complaint is that Professor Naughton, in listing the three criteria which were associated with cough syncope, was referring to his own experience and was not making a general statement about cough syncope. Further, the applicant submitted that Professor Naughton had not suggested that cough syncope was necessarily reproduceable, nor that it occurred with every coughing episode.
9. In fact, Professor Naughton gave evidence which was consistent with the summary by the prosecutor. It is convenient to set out the relevant passages from his evidence. They commenced as follows: [28] "Q. You've been provided with some material in this specific matter? A. Yes. Q. You're aware that the accused has provided in his version that he coughed and coughed himself to unconsciousness whilst behind the wheel? A. Yes. Q. What do you say about that? A. Based on the information I've been provided I think it's extremely unlikely. Q. Extremely unlikely? And why do you say that? A. Well, there are a number of things. First it is a very rare condition. Usually it's reproducible, so if it's occurred once it usually occurs [multiple] times. The patients that have it usually in my experience - and I've seen a lot of people referred with cough syncope, but in fact when they come into hospital for a period of observation and they're monitored and we get them to cough we can't reproduce it. The patients that we have had at our hospital that have had cough syncope indeed have underlying lung disease and vascular disease. For example, young men with cystic fibrosis who have got very strong muscles in their chest wall, who can generate intrathoracic pressure which is very high with its main peak blood supply, but it's the patients with cystic fibrosis and vascular impairment, in other words the blood vessels between their chest and their brain which are narrowed or blocked, are the ones that we've seen at our hospital and the number of patients that we've had with that, that I'm aware of in the last 38 years, is very, very small. I can think of about two or three cases. I can think of dozens of patients that have been sent to me as possible cough syncope, but we've never been able to reproduce it and my opinion is that it's often a diagnosis which is overcalled by some of my colleagues for which there's not a lot of evidence in support of that as a condition in people who have got normal cardiac or normal pulmonary heart, lung and brain. Q. In this case Mr Crockford had normal heart tests? A. I'm led to believe that he had an echocardiogram and a coronary angiogram which were both normal. Q. Normal brain tests? A. I believe he had a normal electronic cephalogram and a CT scan of his brain. Q. Normal lung test? A. I believe he had a normal lung function test and a normal CT scan of his chest."
10. After a brief break and some further description of how cough syncope worked, the following exchange took place: [29] "Q. So you said, Professor, that somebody who genuinely is predisposed to cough syncope or who has had a cough syncope, in those particular patients, the cough syncope could be and should be reproducible. Can you just tell that jury what sort of patients it's reproducible in? A. The patients that I've seen with cough syncope are able to reproduce the event. And the frequency that they would reproduce the syncope is certainly infrequent. It might be several times a day, it might be once or twice a week. But it's usually at a time that they're very sick. It's often associated with other factors, they might be dehydrated, they might be upright walking to the bathroom. In other words, the blood is having to go further against gravity at a time there's not much blood in their system. They've usually got very damaged lungs and they're usually young men who can generate - they've got lots of muscles in their chest wall, and they can generate these high pressures. So, it is reproducible, in our hospital, we know the patients who get cough syncope, it's a very small number, as I said, it's about two or three over the past 20 or 30 years that we've had. And our staff know that this is likely to occur in these patients when they're sick. When they get over - when they recover from a - a chest infection and they return and have no further syncope. Q. So, if somebody who genuinely suffered from cough syncope had a coughing episode, you would expect them to pass out? A. Correct. Q. Someone who doesn't suffer genuinely from cough syncope, they have a coughing episode, they wouldn't pass out? A. Correct."
11. Aspects of this evidence were challenged in cross-examination, but it is clear that the prosecutor's reliance upon his evidence-in-chief was appropriate and the summary was not misleading. In Professor Naughton's view cough syncope was reproducible and someone suffering from it would pass out with each coughing episode.
12. It is also clear that Professor Naughton was generalising when describing the necessary comorbidities. His evidence was not merely that this was what he had witnessed in patient of whom he had clinical experience, but that these criteria were consistent with, and explained by, the mechanism of a syncope. That is, there was a need for strong chest muscles to create the necessary pressure to close sufficiently the vascular system so as to prevent blood to the brain, thereby causing a loss of consciousness. It was also necessary that those systems were compromised.
13. So understood, there was no substance in this challenge to the prosecutor's address.

Inappropriate comments concerning defence case

1. It is convenient to turn next to a related topic relied on by the applicant, but based to a considerable extent on the use made of Professor Naughton's evidence. It was said that the prosecutor "made a number of strong comments regarding cough syncope and the defence case which were inappropriate, not supported by evidence and had the tendency to ridicule the applicant's case". These passages were identified by the applicant's counsel as the "most egregious transgressions". [30]
2. The first passage was in the following terms: [31] "Cough syncope is a red herring. It's an excuse and it's a myth that is debunked by proper science. Again, I'm not saying reject it out of hand, think about it, test it but then any common sense would have to reject it."
3. Taken in isolation, this language might appear inappropriate; indeed the Director conceded that the language was inappropriate. [32] However, to assess its effect it should be read in context. The three sentences came immediately after the passage summarising Professor Naughton's evidence set out at [57] above and concluding, "[t]here's no cough syncope, ladies and gentlemen". It was followed by the further observations: [33] "The professor has taken into account all the evidence in this case. Including the opinion of Dr Finnimore and he's ruled out cough syncope as occurring in this case. And so should you, ladies and gentlemen."
4. No doubt the submissions were in colourful terms, but they were a summary of the prosecution case that reliable scientific evidence was inconsistent with the applicant suffering from cough syncope at the relevant time. The submission reflected not only the earlier submissions with respect to the medical evidence, but also the absence of immediate complaint of such a condition and the inconsistent statements as to the cause of the accident given by the applicant. The prosecution case was that the mechanical failings initially relied upon by the applicant were destroyed by the engineering evidence, and the later reliance on a medical condition was destroyed by the expert medical evidence.
5. The sentence complained of was unnecessary and was effectively contradicted by the following sentence. The language of the defence being a "red herring" and "a myth" was an unnecessary rhetorical device; it should have been avoided. However, the immediately following qualifying statement, suggesting emphatic rejection, was entirely appropriate. The prosecution case, well supported on the evidence, was that the applicant did not suffer from a cough syncope which caused the collision. The prosecution accepted that, had there been a loss of consciousness, the applicant would have had a defence to the charges. To describe something as a "red herring" is to imply its irrelevance. The defence case was not irrelevant, rather, as the prosecutor properly submitted, if it were to be rejected, it should be rejected on the evidence. The use of the term "red herring" was itself a red herring and apt to distract the jury. However, given the immediate qualification and explanation on the occasions when it was used, there is no real prospect that it did distract the jury or that its use denied the applicant a chance of acquittal.
6. The second passage complained of by the applicant saw a repetition of the same complaint with an additional element. The prosecutors stated: [34] "I expect the defence will pull* some abstract, theoretical way of drawing different pieces of the mechanics of this cough and the mechanics of that together to try and come up with something they say would raise a reasonable doubt. Words probably* 'unlikely', 'likely'. They're all words, ladies and gentlemen. It's all red herrings. The fact is, when you look at the opinion of Professor Naughton, cough syncope didn't happen. When you look at the opinion of Dr Finnimore, it's more likely that the accused fell asleep."
7. There are four observations to be made as to the reliance on this passage. Two points, marked by asterisks, may be transcription errors. First, the transcript uses the word "pull" in the first line, which is probably a mistranscription for "put". Secondly, the sense suggests that the word "probably" should also be within quotation marks. Nothing turns on these points.
8. Thirdly, in identifying the passage complained of, the applicant's written submissions did not include the last two sentences set out above, which indicate that the submission was merely a repetition of that which had already been put in passages discussed above.
9. Fourthly, and importantly given the complaint as to the reference to the defence submissions, the passage is the fourth of some six passages which formed the last part of the prosecution submissions. They commenced with the following introduction: [35] "Ladies and gentlemen, I'm coming to the close of my submissions to you. At this point, what I'd like to just do is to take a step back and have a look at what possibly might be some of the defence arguments. Now, the Crown is obviously not aware of what the defence are going to say to you in this matter, but we'll step back, test some of these arguments, and you'll see that when you look at them with common sense and intelligence, they have to fall away."
10. Each of the first five issues foreseen by the prosecutor commenced with the words, "I expect the defence will say…", or some variation of that terminology. However, the applicant relied upon criticism by this Court in Hughes v R [36] to the following effect: "… [I]t was open to the Crown prosecutor to submit that the jury should reject any proposition that there had been a conspiracy in existence to implicate the applicant falsely. It would also have been open for the Crown prosecutor to submit that the question of a conspiracy was, on the evidence, a distraction. It was also open to use a colloquialism for a distraction or false path, namely, a 'red herring'. But we consider that it was inappropriate for the Crown prosecutor to submit that there was a possibility that a putative submission of the applicant's advocate was 'actually just there to distract you'. That was open to interpretation by the jury as being an attack upon the person and motives of the applicant's advocate himself, and not upon his predicted submissions."
11. While the Court concluded that this, and other statements, were "inappropriate" the Court also held there was no miscarriage. [37] On the basis of that authority, there was nothing inappropriate about the submission, the subject of complaint in this matter, unless it could be said that the jury might take it as an attack on the conduct of defence counsel. Given the context in which the statement was made, there is no reason in the present case to suppose the jury would have drawn such an inference: the comment was anticipatory, as it had to be, but was squarely directed to the substance of the only defence run by the applicant.
12. Finally, in dealing with the defence case, it was submitted that the prosecutor improperly dealt with a curious matter raised in the course of the cross-examination of Professor Naughton. The passage complained of read as follows: [38] "You will remember under some cross-examination of Professor Naughton by the defence, that reference was made to a UK case in which truck drivers had been acquitted on the basis of cough syncope. And he agreed that they probably didn't have emphysema. It's very dangerous, ladies and gentlemen, to pay any attention to that. You don't know anything about those cases. All you know is those one or two lines from Professor Naughton. In any case, just because a UK jury was fooled, doesn't mean you should be fooled."
13. The applicant's criticism of this passage was two-fold. First, it was submitted that there was "no evidence" that the UK jury had been "fooled", that is, decided the case wrongly. It was further submitted that the prosecutor's language "ridiculed the defence case and suggested that the jury would themselves be fools if they accepted the reasonable possibility of a cough syncope". [39]
14. Again, context is important and a proper understanding of a prosecutor's submission to the jury will depend upon the circumstances of the case, the surrounding words and the evidence being referred to. There was no attempt to belittle any defence witness in this statement, nor was it an attack upon counsel for the defendant. Rather, it was an attempt to anticipate what might be made of some peripheral cross-examination of Professor Naughton, which might well have been excluded, had objection been taken at the time of the cross-examination. The prosecutor was, on any view, correct to warn the jury that it would be dangerous to make any use of it. The exchange in cross-examination came in a passage challenging Professor Naughton's view that cough syncope was "over-diagnosed or over-used". [40] The cross-examiner continued: "Q. I think in your report you indicate that it has been used to defend criminal proceedings successfully. Correct? A. That was one journal article that I referred to. Q. Do you say that those diagnoses were in error or - A. No, I don't. They were in the United Kingdom. They were four truck drivers who were in a medico-legal environment and cough syncope was used as a defence and my understanding is that the court allowed that evidence to come through and to be used and a particular person wrote it up as a case series and had it published in a journal. Q. Did any of those truck drivers have cystic fibrosis? A. No, not that I understand."
15. It was clear that defence counsel treated the UK case as potentially contradicting Professor Naughton's opinions. The jury did not have a copy of Professor Naughton's written report, and thus did not have the context in which the article was noted. They may, however, have inferred that Professor Naughton was sceptical of acquittals based on cough syncope as a defence. The jury would have understood the prosecutor to be saying that, although they knew nothing about the cases, it was possible that the UK juries were misled. The prosecutor was saying that the acquittals should not influence the jury in the present case. The language of being "fooled" was, again, a colloquialism which should have been avoided. It is not reasonable to suppose, however, that the jury drew from that language any more than an emphatic rejection of the availability of such a conclusion in the present case on the medical evidence.
16. There is one further observation to be made in relation to cases in this Court, including Livermore v R, [41] where there has been criticism of submissions which "ridicule and belittle" the case theory of the defence. It is undoubtedly true that emotive language should be avoided wherever possible. However, in circumstances where the prosecution requires the jury to conclude that a defence fails to give rise to the level of a real possibility, it is inevitable that the prosecutor must rely upon stronger language than that of improbability or unlikelihood. In most cases, the impropriety of ridicule will be based upon a failure to ground the particular submission in the evidence. In the present case, the prosecutor was careful to link the statements complained of to specific aspects of the evidence.
17. As it happened, counsel for the accused made no reference to the UK cases. The complaint as to the prosecutor's foreshadowed dismissal of their relevance should be rejected.

Medical evidence relied on by defence

1. Two further challenges were mounted to the prosecutor's address relating, respectively, to passages in which the prosecutor dealt with the evidence of the applicant's treating respiratory physician, Dr Finnimore, and the evidence of Dr Stephen Parsons who, with a second medical officer, Dr Royston Ponraj, believed that the applicant suffered a cough syncope whilst at Liverpool Hospital.
2. Dr Finnimore gave evidence that he worked predominantly in private practice in Brisbane. [42] He had a speciality in thoracic and sleep medicine. He first saw the applicant in December 2018 and performed a diagnostic study for sleep apnoea in January 2019. He had the applicant carry out a spirometry test, following which the applicant had a series of "several coughs followed by slumping in the chair for 5 to 10 seconds". He stated that "a series of coughs, though it's not uncommon to cough during spirometry, but this was quite a violent cough and certainly extremely uncommon to slump in the chair semiconscious". [43] Dr Finnimore was asked to describe a cough syncope and stated: [44] "So if people have a number of forceful coughs and subsequently they briefly lose consciousness, would be a classic cough syncope. The event I witnessed during spirometry possibly more fairly described as a pre-syncope. It wasn't long enough for me to know that he was fully unconscious, but functionally wasn't able to sit up."
3. Dr Finnimore was cross-examined to the effect that he lacked the research and academic qualifications of Professor Naughton. He was also cross-examined as to whether, in order to diagnose cough syncope, it would be necessary to measure brain function, lung function and heart function, which he did not do. [45] Dr Finnimore relied upon his "experience of five patients over 28 years" which he said was "actually quite a lot of experience compared to my peers of cough syncope". That evidence agreed with Professor Naughton's evidence as to the rarity of the condition. He also agreed that it was common for people to cough in the context of spirometry. [46] His cross-examination concluded with the following questions and answers: [47] "Q. So, you can't really draw any link between a spirometry test in January 2019 and driving a truck in January 2018, can you? A. True to the - an extent. But he had a similar episode with the physio, while he was in Liverpool Hospital. … Q. It's more likely, isn't it, that given his sleep apnoea and given his 4 or 5 or 6 hours of sleep in the two nights before the crash that he was fatigued, lost attention, and ran up the back of the cars. Isn't that right? A. That's quite plausible."
4. The last answer was undoubtedly ambiguous and was not clarified. Whether or not it was an acceptance of the proposition put to Dr Finnimore may have depended on how the answer was given. However, the prosecutor took it as acceptance and relied upon it in his submissions. In four passages he referred to Dr Finnimore accepting that it was "more likely" that tiredness caused the collision. [48]
5. The prosecutor also asserted that "Dr Finnimore doesn't help the accused". [49] That comment, however, relied upon a statement which appeared a few lines earlier in the transcript, namely that Dr Finnimore "never positively says that cough syncope is the cause of the accident".
6. The Director accepted that the prosecutor "should have been more careful to relate the submissions complained of to the precise terms of Dr Finnimore's evidence, and to have made clear that those submissions were advanced on the basis of an interpretation of Dr Finnimore's evidence". [50] Further, the Director noted that Dr Finnimore's evidence went no further than to identify cough syncope as one of two "possible causes of the accident". [51] The defence relied upon the cautious evidence of Dr Finnimore to enhance his credibility. Defence counsel accepted that "there was a concession as far as the likely mechanisms for the accident". [52] Counsel also accepted the "it's quite plausible" response as acknowledging that the "more likely scenario was a falling asleep accident over a cough syncope" as something that bolstered Dr Finnimore's credibility. [53] Both counsel appear to have assumed that the jury would have recalled the evidence of Dr Finnimore, who was the last witness at the trial.
7. It was open to the prosecutor to rely upon Dr Finnimore's understandable hesitation in expressing an opinion as to the cause of the collision and to rely upon his acceptance that the more likely cause of the collision was falling asleep. Both counsel (and the trial judge) made it clear that the defence could rely upon a medical explanation as a "real possibility" and that the applicant would be acquitted, unless the prosecution could negative that real possibility. There was no substance in the complaint as to how the prosecutor dealt with Dr Finnimore's evidence.
8. A similar incident involving a spirometry test and a slumping in the chair while at Liverpool Hospital was noted, but not witnessed, by Dr Parsons and Dr Ponraj who worked at the hospital. The incident at Liverpool Hospital occurred when a physiotherapist, Mr Nigel Thackray, was asked to carry out a spirometry test on the applicant. He described the test in the following terms: [54] "Spirometry is a form of lung function testing. What it involves is a patient taking a maximal breath in followed by a maximal forceful expiration as hard and as long as they can to measure lung capacity, so we try and get the patient to force all air out in order to measure how much air they have and how much air they can get out of their lungs as well."
9. In the course of performing the test the applicant developed a coughing fit on the forceful expiration. Mr Thackray agreed that that was quite common. [55] He described the applicant as becoming "faint and less responsive". [56]
10. Dr Parsons, a respiratory and sleep disorder specialist, took a history from the applicant of having suffered a cough syncope in childhood, in the course of the crash and when undertaking a spirometry test with Mr Thackray. Dr Parsons' acceptance that there was a syncope involved in the spirometry testing depended upon both the history he had been given by the applicant and the assessment made by the physiotherapist as to a loss of consciousness.
11. Dr Ponraj was a junior medical registrar on the respiratory medicine team at Liverpool Hospital. His evidence generally agreed with that of the consultant, Dr Parsons. Like Dr Parsons, he had relied upon both the history given by the applicant of losing consciousness prior to the collision and the account of the physiotherapist. He considered there were two possible explanations for those events, namely sleep apnoea and cough syncope. His evidence took the matter no further and was contained within some 2.5 pages of transcript.
12. Each of Mr Thackray, Dr Parsons and Dr Ponraj was called in the prosecution case. Their evidence was not the subject of challenge either by the prosecutor, or in cross-examination by counsel for the accused.
13. The prosecutor relied upon the evidence of the doctors in part to support the changing accounts given by the applicant as to the cause of the collision and as to his medical history. Thus, the prosecutor submitted: [57] "He told the doctors that he lost consciousness as a child and that he lost consciousness with physio Thackray. Neither of those are true. He told the police in the ERISP that he passed out with the physio, was unconscious for a couple of seconds or more, …. You saw the evidence of the physio Thackray. He said got a bit dizzy and sat down… Now, in his ERISP he said that he's never passed out before in his life and that he was cleared to be a scuba diver. That's completely different to what he told Dr Parsons and Dr Ponraj about having a syncopal episode when he was a child, that was a lie and further his lie that he suffered a cough syncope. He goes on for eight questions… about how he's never blacked out, never lost consciousness…. Completely different to what he told the doctors and that was something that the doctors relied on and they started thinking about perhaps investigating the cough syncope."
14. The prosecutor returned to the evidence of the two doctors after addressing Professor Naughton's evidence and the extreme unlikelihood of there being an event of cough syncope at the time of the collision. The prosecutor then said: [58] "Dr Parsons and Dr Ponraj expressed some opinion on a cough syncope, but they don't have the expertise, and they based their opinion [on] self-reports of the accused. An accused who you can't trust a word from."
15. The applicant takes issue with the phrase "but they don't have the expertise", as impugning the credit of the prosecution witnesses. However, there is no reason to treat that brief observation as an attack on credit: indeed, it is not entirely clear what was meant by "expertise". The short point was that neither doctor had direct knowledge of the matters reported, and in particular the matters reported by the applicant. Further, as the Director submitted, the statement was clearly made in a context where their expertise was being compared with that of Professor Naughton. After a brief reference to the evidence of Dr Creighton, in relation to the sequelae of an operation performed by him, the prosecutor returned to the "outstanding qualifications of Professor Naughton" and made a further comparison, namely with the expertise and experience of Dr Finnimore.
16. There is no substance in the criticism of the prosecutor based on the supposed impugning of the credit of the prosecution witnesses.

Defence witness Robert Scott

1. Robert Scott was the driver of the other truck accompanying the applicant on the trip to Canberra and behind the applicant at the time of the collision. The applicant made two complaints about the manner in which the prosecutor dealt with Mr Scott's evidence.
2. The first related to the contention that the applicant's account of the cause of the collision, and of his state of health in the two days prior to the collision, changed over time. The first statements relating to Mr Scott concerned the applicant's statement in his ERISP that he was on the CB radio with Mr Scott over a lengthy period between the breakfast stop at Gilgandra and the collision site. That was untrue, Mr Scott being on the telephone to his son throughout that period. [59]
3. In his evidence-in-chief, Mr Scott answered many questions about the night before the collision with "I can't remember". He could not remember if the trailer was loaded at the same time as the applicant's trailer. He was with the applicant and spoke to him while they were both checking their trucks the following morning. [60] He did not notice anything about the applicant while he was doing his general checks. He recalled having spoken with the applicant over breakfast at Gilgandra, but said nothing else happened whilst they were stopped.
4. When cross-examined by the applicant's counsel, he gave evidence about noticing "the amount of times Robert's coughing" on the previous evening; [61] he stated that he could remember him coughing, and that he first noticed it when they were loading. [62] He remembered the coughing was "multiple times in a row" and was "the whole time" while they were loading. [63] He said he had never observed coughing like that before. [64]
5. The prosecutor obtained leave to cross-examine Mr Scott and took him to his statement to the detectives given about an hour after the collision, when he was asked about the applicant's condition, and told them everything he could think of, but mentioned no word about coughing. [65] He was also cross-examined about a second statement to police on 27 February 2018 when he said the applicant "coughed the day we loaded, he coughed the whole bloody trip". As noted above, although he had given evidence on oath that he had not spoken to the applicant since the collision, he agreed that he had rung the applicant every couple of days whilst he was in hospital. The cross-examiner challenged his evidence that he had seen the applicant coughing prior to the collision, suggested that he was making it up because the applicant was a colleague and that he didn't want him to get into trouble. [66] The cross-examination continued: [67] "Q. You didn't tell Detective McGahan an hour after the incident you saw him coughing. A. No I didn't think anything of it. Q. Well you only started to think something of it after you'd spoken to Mr Crockford - A. No after I spoke to - I told my wife about it and she said, 'You should say something'. Q. You didn't tell the court earlier today that you had spoken to Robert Crockford since the collision because you wanted the court to believe that this coughing story is true. A. No that's not the case, I just wanted to tell the truth to the best of my knowledge."
6. In submissions, the prosecutor stated in relation to coughing: [68] "Robert Scott didn't see anything. Robert Scott and the accused got their heads together to come up with this story."
7. That statement was misleading: the cross-examination did not suggest that the two men had fabricated the story together, but rather that Mr Scott had given false evidence. It was open to the jury to infer from the fact that Mr Scott had spoken to the applicant after the collision and whilst he was in hospital, that the applicant may have told him things which led him to tell the police and the court that he had seen the applicant coughing, but there was no suggestion, nor the basis for any inference, that the two men had "got their heads together to come up with this story".
8. After the luncheon adjournment, the trial judge raised the issue with counsel: [69] "I was just looking at the submission you made, Mr Crown, that Robert Scott and the accused had put their heads together about the collision and the coughing fit. When I was reading the transcript I don't know if you actually put it in those terms to him, but I think that looking at the totality of your cross-examination there was a sufficient basis for that submission. Mr Tyler-Stott. TYLER-STOTT: I wasn't going to say too much about it, your Honour. I don't know that that's the case, but I don't know that there's much that can be done after it's been said. … It's difficult, your Honour. It's now out there and it was essentially suggested that they'd cooked it up together, which I don't think was a fair reflection of what was said."
9. On the morning of 17 March, the conversation with the counsel continued, prior to the commencement of the judge's summing up. Mr Tyler-Stott was reluctant to pursue the matter but agreed that a direction could be given to the effect that, while the prosecutor suggested Mr Scott had tailored his evidence, there was no suggestion that the applicant was involved in that. [70]
10. At the conclusion of the summing up, the trial judge stated: [71] "Now, that concludes my summing up, but there is one thing I must remind you of. It is in respect of a submission that was made by the Crown to you about Robert Scott and the accused getting their heads together to come with the coughing fit story. There is no evidence to suggest that the accused was in any way involved with him putting his head together with Mr Robert Scott. What the Crown does say is that Mr Scott has tailored his evidence. I must stress to you that there is no suggestion that the accused was involved in putting his head together with Robert Scott to come up with the cough syncope story."
11. On the appeal, counsel for the applicant acknowledged that "some remedial steps" were taken to rectify the inappropriate submission made by the prosecutor. [72] They were said to be inadequate because the judge did not "explicitly tell the jury to ignore the submission". There is no substance in that complaint. A direction that a particular proposition was no part of the prosecution case was, on one view, more powerful than a direction that they simply ignore what they had been told. Further, counsel for the accused was involved in the discussion when the direction was formulated and was asked if any further directions were required; he acceded to the judge's proposal in the first place and sought nothing further when offered the opportunity after the direction was given.
12. Accepting that the statement by the prosecutor should not have been made without putting that suggestion to Mr Scott (although the inference was one against the applicant, rather than Mr Scott) there is no reason to suppose that the judge's direction was ineffective as a means of correcting the error. The error did not cause the trial to miscarry.
13. There was a second passage in respect of the prosecution submissions in relation to Mr Scott's evidence which was the subject of challenge. It was in the following terms: [73] "You also might think it was convenient the way that Robert Scott gave his evidence, that he could hardly remember a question that I asked him. The Crown prosecutor asked him questions, I can't remember, I'm not sure, I don't know, it's a while ago, I can't remember. And he said he can't remember dozens of times. When Mr Crockford's barrister was asking him questions, suddenly his memory improved. He remembered everything that Mr Crockford's barrister wanted him to remember."
14. Two challenges were made to the propriety of that submission. First, it was noted that nothing was put to Mr Scott about his ability to answer questions from the applicant's barrister, but not from the prosecutor. Secondly, it was said that the submission cast doubt on the integrity of defence counsel.
15. Neither of these complaints should be upheld. As to the first, counsel was entitled to draw the jury's attention to the manner in which a witness answered questions. It was put to him, on the basis of previous statements to police, that in respect of the critical issue of coughing, he was lying. It was put to him that he was giving the impugned evidence because he was a friend of the applicant. He did not deny the relationship but denied the suggestion that he was lying. It would have been open to the prosecutor to suggest that, given his answers to defence counsel, he was lying in stating to the prosecutor that he did not remember aspects of the events of the two days prior to the collision. That challenge was not made. Rather, the prosecutor invited the jury to infer that he was uncooperative, a fact which they may have inferred in any event from the leave given to the prosecutor to cross-examine Mr Scott. He was entitled to do that without cross-examining the witness to that effect
16. With respect to the second matter, there is no substance in the suggestion that pointing out that a witness is more cooperative with counsel for the party in whose interests he seeks to give evidence, impugns the integrity of that counsel. The jury would not have so understood it.
17. Accordingly, although there was an improper allegation made against the applicant in summarising the evidence of Mr Scott, the impropriety was adequately corrected by the trial judge. It follows that these grounds do not demonstrate a miscarriage of justice.

Use of emotional or intemperate language

1. The final complaint which needs to be addressed, namely the use of emotional or intemperate language, operated at a more general level, but was based upon specific passages in the prosecutor's closing address. The first passage occurred early in the closing address and was as follows: [74] "This is a tragic event, members of the jury. But it's not a tragic accident. It's a tragic crime. You heard the evidence of what the accused was doing two nights before the collision, the night before the collision. What he was drinking. That he was up till 1.30 in the morning, the morning of the collision, which for him was the night before, looking at internet sites on his phone. This isn't a case about a man just doing his job. This is a case about a man completely abandoning his responsibility to the other road users, to the people who use these roads, the people who use your roads, ladies and gentlemen, to be in a safe condition to drive."
2. The applicant submitted that the line was crossed by the words "who use your roads", on the basis that it sought to arouse emotion in the jury and deflect them from an objective assessment of the facts.
3. As the Director pointed out, the charges on the indictment were directed to the safety of the public on public roads and to conduct which was unacceptable because of the risk of harm to other road users. The tragedy of the circumstances involving deaths and serious injuries was an unavoidable element of the case. The significance of the events with respect to members of the public using the roads was no less part of the case. Although it may have been unnecessary and undesirable to appeal to the jury's interest as members of the public, it is not possible to identify prejudice in the circumstances of the case.
4. The applicant also took exception, on the same basis, to a second passage in which, after referring to the context in which the driving occurred, the prosecutor continued: [75] "This is a case, ladies and gentlemen, about a man who dangerously and wantonly killed, seriously injured and injured 12 people."
5. This language was also identified as emotive and intemperate. It was submitted that the use of the word "killed" implied intentional killing. However, the adverbs "dangerously and wantonly" did little more than reflect the wording of the charges, which included dangerous driving occasioning death and dangerous driving occasioning grievous bodily harm, together with wanton driving occasioning bodily harm. The adverbs qualified "killed". It may have been better had the prosecutor simply noted that two persons died as a result of the collision. However, it was not inappropriate to describe the applicant as a man who killed two persons in circumstances where it was alleged his driving occasioned the deaths. The precise elements of each offence were properly identified in due course by the judge. The conduct, if it were conscious driving, undoubtedly warranted the description of abandonment of responsibility and dangerous and wanton driving.
6. An emotional response was unavoidable in the circumstances of the case. The description in these passages would not realistically have diverted the jury from the need to consider carefully and objectively the evidence as to whether or not the applicant was conscious at the time of the collision. While the language reflected the emotive circumstances, it did not cause prejudice. There was no miscarriage of justice as a result of the use of these few words in the opening stages of the closing address.

The combined effect of the various passages

1. Although the written submissions did not expressly rely upon the combined effect of the various passages relied upon in the applicant's case, counsel for the applicant stated at the hearing that it was the "totality [of] the transgressions … considered together, and a number [of] which are conceded by the Crown, [which] resulted in a miscarriage of justice, in that the applicant was denied a fair trial." [76] Consideration of the totality of the address is appropriate, even if the specific passages did not transgress, or did not result in a miscarriage: just as individual phrases and statements should be read in context, so the overall effect of the address should be considered. However, the submission was not developed orally or in writing.
2. Having read the whole of the address, and read separately the various passages relied on by the applicant, I am not persuaded that the address as a whole caused prejudice to the applicant. Describing the defence case, in part or in whole, as a red herring or a myth was a rhetorical flourish which was apt to distract or mislead the jury. At best it identified a conclusion the jury could come to after examining and rejecting the evidence. The prosecutor in fact recognised it as such and qualified the rhetoric with that explanation. The rhetoric was unnecessary and should have been avoided. That similar language was not disapproved in Hughes does not mean it is acceptable in other circumstances.
3. Although in some passages broad statements were made without reference to specific parts of the evidence, the bulk of the address constituted a precise and careful analysis of the evidence, primarily for the purpose of demonstrating inconsistencies, changes and implausibility in the evidence, particularly by reference to statements made by the applicant as to the events preceding the collision.
4. Two further matters warrant consideration. First, as the Director submitted, weight should be given to the fact that the trial judge gave clear and accurate directions to the jury in her summing up, which included an accurate and balanced account of both the prosecution and defence cases. That submission should be accepted.
5. Secondly, The Director submitted that weight should be given to the fact that defence counsel took no issue with the statements made by the prosecutor, except in relation to the mistake which the judge ultimately corrected. There were submissions by both parties as to whether this was a case in which r 4.15 of the Supreme Court (Criminal Appeal) Rules 2021 (NSW) (or more accurately, its predecessor) applied. If there had been a failure to seek a direction, leave would be required to challenge the omission of the trial judge to give such a direction. However, the applicant submitted that this was not a case in which the ground of appeal, either expressly or by inference, relied upon the failure to give directions to the jury. Rather, the ground related to conduct of the prosecutor, which was not properly something to which objection could be taken or which directions to the jury could cure.
6. If it were necessary to resolve this issue, the proper course would be to give leave. However, the principle underlying r 4.15 can have a broader operation than the precise terms in which it is engaged. There may always be doubt, as there is in this case, as to whether the transgression of an appropriate standard by the prosecutor in addressing the jury could have led the accused to lose an opportunity for an acquittal. That is, was there, in practical terms, any prejudice to the accused? Where the accused is represented by counsel, it should be assumed (absent countervailing considerations) that misconduct on the part of the prosecutor which could have such an effect will be identified and raised by counsel in the course of the trial. Where no issue is raised, this Court, in a marginal case, may be able to conclude that those present did not perceive a real risk of prejudice. However, I place no weight on that consideration in the present case.

Conclusion

1. For these reasons, the submission that the prosecutor's address improperly deprived the applicant of an opportunity of acquittal must be rejected. There should be a grant of leave to appeal, but the appeal must be dismissed.
2. PRICE J: I agree with Basten AJA.
3. N ADAMS J: I have had the considerable advantage of reading the judgment of Basten AJA in draft. I agree with the orders proposed by his Honour for the reasons provided. The concession on behalf of the Crown that some of the language used by the Crown prosecutor in his closing address was inappropriate was properly made for the reasons provided by his Honour.
4. The applicant relied upon the third limb in s 6(1) of the Criminal Appeal Act 1912: "that on any other ground whatsoever there was a miscarriage of justice". I agree with Basten AJA that, even taken cumulatively, the inappropriate language in the Crown prosecutor's closing address did not lead to a miscarriage of justice. As Beech-Jones CJ at CL (with whom Davies and Wilson JJ agreed) observed in Zhou v R [2021] NSWCCA 278 at [22] following the (then) recent decision in Hofer v The Queen [2021] HCA 36; 95 ALJR 937: "To constitute a miscarriage of justice under s 6(1) of the Criminal Appeal Act 1912 such an irregularity has to be prejudicial in the sense that there was a 'real chance' that it affected the jury's verdict (Hofer at [41] and [47] per Kiefel CJ, Keane and Gleeson J; at [118] per Gageler J) or 'realistically [could] have affected the verdict of guilt' (at [123] per Gageler J) or 'had the capacity for practical injustice' or was 'capable of affecting the result of the trial' (Edwards v The Queen [2021] HCA 28 at [74] per Edelman and Steward JJ)."

Endnotes

1. Tcpt 13/03/20, p 340(38).
2. Tcpt, p 341(20).
3. Tcpt, p 98(17).
4. Tcpt, p 98(25).
5. Tcpt, p 103(45).
6. Tcpt, p 104(5).
7. Tcpt, p 104(20).
8. [2020] NSWCCA 308 at [189]-[219] (Hoeben CJ at CL and Button J agreeing).
9. [2021] NSWCCA 309.
10. Applicant's written submissions, 14 October 2021, par 74.
11. [2014] NSWCCA 112 at [76] (RS Hulme AJ).
12. Tcpt 16/03/20, p 366(1).
13. Applicant's written submissions, pars 31-35.
14. Tcpt, p 367(40).
15. Tcpt, p 376(35).
16. Applicant's written submissions, par 34.
17. Applicant's written submissions, pars 36-38.
18. Tcpt, p 368(5).
19. Tcpt, p 368(15).
20. Tcpt, p 368(48).
21. Tcpt, p 369(15).
22. Applicant's written submissions, par 38.
23. [2013] NSWCCA 113 at [45] (Harrison J).
24. Armstrong at [42].
25. Tcpt, p 376(5)-(10) and (20)-(24).
26. Tcpt, p 376(10).
27. Tcpt, p 377(5).
28. Tcpt, p 307(23).
29. Tcpt, p 313(17)).
30. CCA Tcpt, 06/05/22, p 2(37).
31. Applicant's written submissions, par 53; Tcpt, p 377(17).
32. Respondent's written submissions, 27 April 2022, par 67.
33. Tcpt, p 377(20).
34. Tcpt, p 382(22).
35. Tcpt, p 381(5).
36. (2015) 93 NSWLR 474; [2015] NSWCCA 330 at [287] (Beazley P, Schmidt and Button JJ).
37. Hughes at [320].
38. Tcpt, p 383(36).
39. Applicant's written submissions, par 60.
40. Tcpt, p 325(28).
41. (2006) 67 NSWLR 659; [2006] NSWCCA 334 at [35]-[36].
42. Tcpt, p 338(20).
43. Tcpt, p 339(22).
44. Tcpt, p 340(37).
45. Tcpt, pp 348(40)-349(4).
46. Tcpt, p 349(10).
47. Tcpt, p 349(13)-(28).
48. Tcpt, pp 367(30), 369(40), 376(30) and 382(27).
49. Tcpt, p 383(27).
50. Respondent's written submissions, par 63.
51. Tcpt, p 343(15).
52. Tcpt, p 393(5).
53. Ibid.
54. Tcpt, p 277(25).
55. Tcpt, p 278(45).
56. Tcpt, p 279(40).
57. Tcpt, p 372(20)-(35).
58. Tcpt, p 376(33).
59. Tcpt, p 91(20)-(30).
60. Tcpt, p 89(35)-(40).
61. Tcpt, p 93(34).
62. Tcpt, p 93(42)-(46).
63. Tcpt, p 94(5)-(9).
64. Tcpt, p 94(36).
65. Tcpt, p 103(30)-(40).
66. Tcpt, pp 104-105.
67. Tcpt, p 105(6).
68. Tcpt, p 382(35).
69. Tcpt, p 386(32).
70. Tcpt, pp 405(40)-406(10).
71. Summing up, 17/03/20, pp 49-50.
72. Applicant's written submissions, par 66.
73. Tcpt, p 383(15).
74. Tcpt, p 366(44).
75. Tcpt, p 367(12).
76. CCA Tcpt, 06/05/22, p 2(3). DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 03 June 2022