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[2002] NSWCCA 78
Court of Criminal Appeal (NSW)
2002-02-26
Beazley JA, Bell J, Smart AJ
Original judgment source is linked above.
CITATION : Eric Russell Picker v Regina [2002] NSWCCA 78 FILE NUMBER(S) : CCA 60385/00 HEARING DATE(S) : 26 February 2002 JUDGMENT DATE : 20 March 2002
PARTIES : Eric Russell Picker v Regina JUDGMENT OF : Beazley JA at 1; Bell J at 2; Smart AJ at 3
LOWER COURT JURISDICTION : District Court LOWER COURT FILE NUMBER(S) : 99/41/0275 LOWER COURT JUDICIAL Howie DCJ OFFICER :
COUNSEL : (A) P M Strickland (R) P G Ingram SOLICITORS : (A) D JHumphreys (R) S E O'Connor CATCHWORDS : Impermissible cross-examination by Crown driving accused to say complainant was lying and to the effect that the reason his counsel had not asked her about certain matters was because he had recently made them up - difficulties compounded by inadequate re-examination and prosecutor's florid address - oath against oath - credibility of complainant and accused critical LEGISLATION CITED : Nil Rich 102 A Crim R 165 Palmer v The Queen (1998) 193 CLR 1 R v Dennis [1999] NSWCCA 23 CASES CITED: R v Davies (unrep) CCA 5/12/94 R v Gilbert (unrep) NSWCCA 10/12/98 R v Smith [2000] NSWCCA 468 R v Birks (1990) 19 NSWLR 677 R v Manunta SACCA (unrep) 28/7/99 DECISION : (1) Appeal allowed, convictions quashed; (2) Order that there be a new trial
IN THE COURT OF CRIMINAL APPEAL 60385/00 BEAZLEY JA BELL J SMART AJ
1 BEAZLEY JA: I agree with Smart AJA 2 BELL J: I have had the benefit of reading in draft form the judgment of Smart AJ. I agree with the orders which his Honour proposes for the reasons which he gives. 3 SMART AJ: Eric Russell Picker appeals against his conviction, after a trial extending over three days, of two counts of sexual intercourse without consent and a third count of possession of a weapon (a rifle) with intent to commit a sexual assault. He also seeks leave to appeal against the severity of his sentences, namely imprisonment for twenty-two months with a non-parole period of sixteen months commencing on 9 February 2000 on the third count and imprisonment for seven years with a non-parole period of four years six months commencing on 9 June 2001 on each of counts 1 and 2. The judge took into account two months pre-trial custody. The total effective overall sentence was thus eight and a half years with a non-parole period of six years. 4 The Crown case could be summarised as follows. On 10 October 1999 the complainant told Mr Barry Moore that her fiancée Mark Umbach, was working in South Australia. Mr Moore passed this information on to the appellant and his partner later that day. On 11 October 1999 as the complainant arrived home from work she saw the appellant sitting on a motor bike outside her property. A conversation began and during this, according to her, he said, "The funniest thing happened to me the other day a twenty year old propositioned me. I got the shock of my life." The complainant did not respond. She invited the appellant inside for a cup of tea. There was a discussion about selling Amway products and other matters. 5 On 18 October 1999 the complainant arrived home from work about 6 pm. Her fiancée, Mark Umbach, was working in Mildura. About 8.30 pm she telephoned him and spoke with him at length. While she was still on the phone she saw a white utility pull up outside the front door. She mentioned this to him but before she could answer the door the appellant had entered the premises. When her fiancee asked whom it was the complainant floundered and said it was Roger (rather than Eric) Picker. The telephone conversation ended shortly afterwards. 6 The complainant alleges that the appellant told her "I was just in the neighbourhood, I was checking Barry's cattle and I saw the lights were on and I knew I'd get a cuppa here." She put the kettle on. After some general conversation the appellant told her of the problems he was having with his partner (Noni). He repeated that he should not be there and should go. The appellant asked her for a cuddle. She refused. He lifted her off the lounge but she pushed him away. He said that he should not have done that and that she would tell her father. 7 The appellant went outside ostensibly to obtain a letter for her from his utility. She was unable to prevent the appellant returning to the house because there was no way of locking the front door. When he returned he was carrying a rifle. She asserted that he said "Tonight's the night I'm going to do myself in and before I do it I'm going to make love to a beautiful woman and you're it, sweetheart." After further conversation the appellant promised to leave if she gave him a cuddle. She stood up and put her arms around his shoulders. He picked her up, kissed her and said "Come on we'll take this a bit further." She said, "Don't do this Eric" and "Don't wreck my life." She did not struggle as she did not want the appellant to become aggressive or forceful. 8 He carried her to the bedroom, placed her on the side of the bed, and undressed her from the waist down. She said "Eric don't do this." He removed some of his clothes and told her to pull her top up. He performed cunnilingus (count 1). He rubbed against her and asked "Do you want me to come inside you or on your stomach?" She said, "On my stomach." He had vaginal-penile intercourse with her and ejaculated on her stomach (count 2). He said "I shouldn't have done that. You'll tell your father." He dressed and left the bedroom. 9 She dressed and walked out to the lounge room. The appellant apologised. He disconnected the telephone and took it with him so she could not call her father or the police before he got to the highway. He also took his gun. 10 After the appellant left she walked to the home of one of her neighbours and from there telephoned her fiancee's father, telling him that the appellant had raped her and had a gun. Her fiancee's father collected her and took her to his property in Bega. The police and the ambulance were called and she was taken to Bega Hospital and examined by a doctor. When seen by the police in the early hours of 19 October 1999 she was sobbing and shaking as she related what had happened. 11 Her fiancee was not concerned that Roger Picker, a former co-worker had called, although she sounded nervous and frightened. Her fiancee had to end the call to attend to his dinner on the stove. He invited her to call him back. 12 Her fiancee's father said when the complainant told him of the rape and the gun she sounded "distressed". As he drove her to his property she was shaking as she recounted what had happened. 13 Mr S A Fryer said that the appellant came to his place on the morning of 19 October and had a firearm at this time. The appellant stated that he went to a woman's place to sell Amway, that she "came on strong" and he "went for it" but then she "cried rape". The appellant gave Mr Fryer some letters to give to the appellant's partner. The appellant left taking his firearm. 14 On 19 October 1999 Det Snr Cons Grey found an empty rifle case under the bed in the master bedroom of the appellant's home. About 4pm Det Grey received a telephone call from a man who identified himself as the appellant who said "I'm sitting here with a gun between my legs just wondering what to do." The man would not reveal his whereabouts. Det Grey asked the appellant to come in and see him. 15 On 20 October 1999 the appellant and his solicitor attended at Bega Police Station. The solicitor told Det Grey that the appellant was "not going to make a statement or anything." The appellant was interviewed but he exercised his right of silence on the advice of his solicitor. The appellant was charged. A little later the appellant told Det Grey that he threw the telephone out the window as he drove away from the house and it should be on the side of the road about 100 metres away. It was 220 metres from the complainant's farmhouse. Det Grey asked the appellant if he was willing to tell him where the firearm was. The appellant replied, "There was no firearm, when I rang you I was at a friend's place and I was looking at his gun which was on the floor." 16 Cons J C Stevenson said that while the appellant was in his company in the police vehicle this conversation occurred:
" Q. Did he say 'I went around there to see her and to see why she didn't come to an Amway meeting we had at the Welcome Inn. While I was there she started to get fresh with me, I didn't know anything about a gun being present until Noni told me that's what was said.'? A. Yes he did.
Q. Did you say 'Did you have sex with her?' A. Yes I did.
Q. And did he say 'Yes I did but it wasn't against her will she came onto me first. This is what I wanted to say in the interview when he was asking all those questions but my solicitor wouldn't let me say anything.'? A. That's correct.
Q. Did you say 'They usually do that'? A. Yes.
Q. Did he say 'I don't mind telling you, I couldn't even get it up, she had to work on me to get me going.'? A. Yes, he did.
Q. 'I don't know whether I was feeling guilty or nervous but it took me awhile.'? A. Yes, that's right.
Q. 'When he was saying in the interview that I put my arm or elbow across her throat that's bullshit.'? A. That's correct.
Q. Did you say 'That's what this is all about, I am taking you to the hospital to take blood to prove that you had sex with her.'? A. Yes I did.
Q. Did he say 'That's not a problem I did have sex with her but I didn't force her to do anything.'? A. Yes he did. "
Cons Stevenson was not cross-examined. 17 The appellant's case was as follows. He resided with Noni Stanborough, his de facto partner and one of her sons at a property called Bronte and worked as a grazier and salesman. He had recently started work for Amway. On 11 October 1999 he went to the property of Barry Moore. While he went to get a tyre fixed for his tractor the appellant rode his motor bike along the fence line towards the complainant's property. He stopped and saw a vehicle driven by her approach the house. After some brief conversation she invited him into the house for a cup of tea. They chatted and he invited her to attend a meeting in Bega the following Wednesday for potential Amway sellers. If she could not make it he would return following week and speak to her about it. 18 On 18 October 1999 he went to her home to speak to her about Amway. On arrival she was speaking on the telephone but she answered the door and invited him inside. She hung up the telephone soon afterwards and asked if he would like a cup of tea. He accepted. Upon it being made he sat in the chair opposite the fire and she sat on the lounge opposite him. They had a general discussion for about 30 to 45 minutes. Then he walked across to the lounge where she was sitting, sat beside her, showed her some Amway materials and explained how Amway functioned. She lent on his shoulder. He commented that this gesture was "a bit fresh" or "frisky." It had been raining. She replied, "the rain does that to me." 19 She beckoned him to follow her to the bedroom. He demurred. He stated that she said "Mark and I have split up and who's going to find out. Noni will never find out." He went towards her and tried to kiss her. She said, "I don't want to kiss, I just want to have sex." This was greeted with laughter, smirking and commotion by people in the public gallery directed against the appellant and his evidence, suggesting that the evidence was unbelievable. The judge intervened immediately stating that if there was "any more laughter or smirking or any of that" he would ask them to leave. He insisted that the members of the public gallery behave properly. This was a most unfortunate episode in a case where the appellant's credibility was very important. 20 The appellant said that she removed her boots and some of her clothing and laid on the bed. He took off his boots, trousers and underpants and hopped on the bed with her. He found it hard to obtain an erection. She pulled her top up and said "Here play with these." He did so. He was not sure whether he inserted his penis in her vagina but thought that he probably did. He said that after a period he said "Would you like me to come inside you or on your stomach?" She replied, "On my stomach, please." He ejaculated on her stomach. As he dressed she said "You know I can have you up on rape now?" Stunned, he continued dressing and went to the lounge room. She dressed and followed a few minutes later. He said that she sat in a chair and just stared at him. He picked up the Amway papers. As he left he said to her "If you're going to have me on these charges of so called rape I'll take the phone with me." He did so, got into his car and drove off. When he was a short distance from the farmhouse. He stopped his vehicle and threw the phone on a bank. 21 Feeling guilty about his infidelity, he parked in a paddock and wrote a note to his partner. He walked to a shed on the property on which he lived and saw that there were people at the house. He took a gun from the shed to discourage the dog from following him and walked to the premises of Mr S Fryer. The appellant gave him some letters to give to the appellant's partner. It is unnecessary to recount the appellant's version of his subsequent movements. 22 The appellant denied having a gun when he went to the complainant's premises. He denied engaging in any act of cunnilingus. Whilst he admitted having intercourse with her, he insisted that it was consensual and that she initiated it. He rejected her version of events. 23 Appeal Ground 1 reads: "A miscarriage of justice occurred as a result of impermissible questions asked by the Crown Prosecutor." 24 The appellant contended that the cross-examination contained two types of impermissible questions. First, the prosecutor asked the appellant questions which invited the appellant to comment on whether the complainant had fabricated her evidence. Secondly, the prosecutor asked the appellant questions the effect of which was that he had recently made up some of his evidence because his counsel had not asked the complainant about those matters in cross-examination. 25 The first type of questions occurred in four passages: (1) "Q. On 11 October in that conversation you said something to her about being propositioned by a twenty something year old girl didn't you? A. Never
Q. Nothing like that? A. Nothing like that.
Q. That's something that's been made up? A. It is something that has been fabricated."
The bite is in the last question. (2) "Q. After she let you in sir she was standing there with the phone wasn't she? A. Uh-huh.
Q, And did she continue the conversation in your presence? A. Yes sir, heard her say 'Picker'
Q. Because she was standing in front of you? A. No, she'd opened the door and then she went back to the phone.
Q. So she stopped her conversation, gone to the door, opened the door and then gone back to where she had been. A. I'm not sure that she didn't still have the phone in her hand.
Q. But in any event there was a large gap in the conversation with whoever she was speaking to on the phone? A. No, I don't think so.
Q. You thought, didn't you, that she was speaking to her mother? A. I didn't know who she was talking to.
Q. Later on that evening didn't you say to her you were sorry to interrupt her phone call with her mother? A. No I didn't.
Q. You didn't say that at all? A. No.
Q. So that's something again that's just made up is it? A. Well you're telling us.
Q. You've heard the evidence given by Miss Lucas? A. Well I've heard the evidence given, yes.
Q. So that detail where Miss Lucas says that you mentioned interrupting her call to her mother, that never occurred at all, she made that up? A. No, I never mentioned that."
The three questions last quoted are objectionable. (3) "Q. And I suggest to you that at one stage of the evening you indicated to her, this was before any acts of sexual intercourse took place, that you indicated to her 'I better go.'? A. No.
Q And that you asked her for a cuddle. A. No I never, I never once.
Q. And that you put your hand out to shake her hand goodbye? A. No. Q. And that she took your hand as if to farewell and that you pulled her up from the lounge? A. Not true.
Q. So that's another detail that you say Miss Lucas has made up? A. That's right." (This relates to the evening of 18 October 1999). The last question is objectionable (4) " Q. … You heard Miss Lucas tell the jury that you licked her vagina? A. Yes.
Q. You say that never happened at all? A. That never happened. Q. Again that's a detail about this incident which you say she's made up? A. Well, I never licked her vagina, I'm not actually not into that sort of thing.
Q. And your evidence is, I think, that you got on top of her at one stage? A. That's right.
Q. So that when she told members of the jury that she was lying on the bed with her legs up to her chest and to the side, that was wrong too? A. That's right, it was.
Q. Was she correct in that description or was that incorrect A. That was incorrect. Q So again -"
The judge intervened: (T158) "HIS HONOUR: Mr Crown, I don't think it's actually quite permissible for you to constantly put matters to the accused of witness's evidence and ask him whether or not that's been fabricated."
The Crown Prosecutor replied, "I won't pursue that." 26 The appellant submitted that it is impermissible for the Crown in cross-examination of an accused in a case of alleged sexual misconduct to ask if the complainant has fabricated parts of her evidence against him. Reliance was placed on the joint judgment of Brennan CJ, Gaudron and Gummow JJ in Palmer v The Queen (1998) 193 CLR 1. At 6 they said, "Cross-examination is permissible and evidence is admissible to establish that a complainant has a motive to make and persist in false allegations". At 7 they continued: "It is one thing to permit cross-examination of a complainant in order to elicit, if possible, a motive to lie. It is another thing to permit cross-examination of an accused to show that an accused cannot prove any ground for imputing a motive to lie to the complainant. A complainant knows whether he or she has a motive to lie and, as a motive to lie is a fact that may be proved to impeach the complainant's credit, the complainant may be asked about it. And evidence may be given by other witnesses of events from which such a motive may be inferred. But the fact that an accused has no knowledge of any fact from which a motive of the kind imputed to a complainant in cross-examination might be inferred is generally irrelevant. In general, an accused's lack of knowledge simply means that his evidence cannot assist in determining whether the complainant has a motive to lie, but if the facts from which an inference of motive might be drawn are facts that the accused would know if they existed, his lack of knowledge could be elicited to disprove those facts. [Citations omitted] If it were permissible generally to cross-examine an accused to show that he has no knowledge of any fact from which to infer that the complainant has a motive to lie, the cross-examination would focus the jury's attention on irrelevancies, especially when the case is 'oath against oath'. In such a case, to ask an accused the question: 'Why would the complainant lie?' is to invite the jury to accept the complainant's evidence unless some positive answer to that question is given by the accused." 27 In Rich, 102 A Crim R 165 the appellant was charged with sexual intercourse without consent in circumstances of aggravation. the appellant was cross-examined by the crown prosecutor that he was saying that his aunt was lying as to specified parts of her evidence, that a police officer was lying when he alleged that he had seen the appellant naked, that the complainant had lied ("making that up") on a particular point and that three other persons had each made up their evidence on particular points. The appellant was then asked by the crown Prosecutor whether there was "a bit of a conspiracy" operating against him. Hidden J, with whom Grove and Hulme JJ agreed, said at 169: " The Crown prosecutor in this Court (who did not appear at the trial) acknowledged that such a line of cross-examination, whereby one witness is invited to express an opinion about the truthfulness of another, ought not to have been pursued: Leak [1969] SASR 172 at 173-174, Praturlon (unreported, Court of Criminal Appeal, NSW,29 November 1985) per Street CJ at 6-10. Particularly is this so where the witness is the accused in a criminal trial, who is being pressed in cross-examination about aspects of the case brought against him. The situation is analogous to cross-examination of an accused in a case of alleged sexual misconduct about whether he can attribute any motive to the complainant to fabricate the evidence against him: a practice condemned in a number of decisions of this Court and, more recently, by the High Court in Palmer (1998) 193 CLR 1; 96 A Crim R 213." 28 In the present case the difficulties arising from the Crown Prosecutor's cross-examination were compounded by the prosecutor's final closing speech to the jury which included an all out attack in colourful language on the appellant's credit. 29 The cross-examination under challenge was unfair and sought to and probably did create illicit prejudice against the appellant. He could not be expected to know what she believed. Lying, fabrication and making up all have the connotation that she was acting basely. All he knew was that her evidence was incorrect. What he suspected or believed was not relevant in the context in question. The prosecution was seeking to disparage, hold up to criticism and capitalise upon the appellant's beliefs as to the evidence of the complainant. They were not relevant and deflected attention from the critical issue, namely, whether the jury were satisfied as to the truth of her evidence beyond reasonable doubt. 30 In R v Gilbert (unreported NSW CCA 10 December 1998) the pattern of some of the questions asked of the appellant (the accused) at the trial was to invite him in his testimony to assert that the Crown witnesses, particularly his wife (the victim), and her daughter (a stepdaughter who lived with the family unit) were fabricating parts of their evidence. No objection was taken to the questions. Grove J, with whom Levine and Dowd JJ agreed, referred with evident approval to the remarks of Hidden J in Rich, namely, that the vice of the impermissible questions is the tendency to "deflect the jury from a proper assessment of the credibility of the Crown witnesses and of the appellant, in accordance with the burden and standard of proof borne by the Crown." Grove J expressed concern at the prejudice which the appellant had suffered, as "the impermissible cross-examination was directed at the appellant where the central issue involved oath against oath." 31 In R v Dennis [1999] NSW CCA 23, the Crown prosecutor cross-examined the appellant (the accused) to the effect that on his version of events the complainant and the other Crown witnesses were lying. McInerney J, with whom the Chief Justice and the Chief Judge at Common Law agreed, applied Rich and the comment that one of the objects of this type of cross-examination is to rattle a witness so as to have a jury disbelieve him or her, no matter what the answers were and that there were clear benefits to the cross-examiner in the impermissible questions. McInerney J also applied the principle in R v Davies (unreported, CCA 8 December 1994), namely "No attempt should be made by the cross-examiner to drive any witness, least of all the accused into saying that another witness is a liar." McInerney J added that prosecutors "should realise that such cross-examination is improper, particularly in a case … where the credibility of the witnesses is extremely important." The Chief Justice pointed out that both Rich and Gilbert were strong Crown cases, in each of which the trial miscarried by reason of the Crown Prosecutor engaging in such cross-examination and that it was extremely dangerous. 32 The Crown submitted that there was an exception to the principle, that this case fell within the exception and that where the exception applies cross-examination of the type in question is permissible. Reliance was placed on R v Smith [2000] NSW CCA 468 per Wood CJ at CL at paras 93 to 106 and especially paras 98 to 100. "98. As a matter of common sense and everyday experience of life, one of the first matters that will occur to the jury is the prohibited question - why, unless it is true, would the complainant make the allegation up and go through all the trouble and stress to himself or herself, as well as to the accused and their respective families, that would be associated with an investigation and trial? 99. The reality of that circumstance has not been overlooked by appellate Courts. [citations omitted]
I turn to the second limb of the first ground. 38 The appellant's counsel put his instructions to the complainant on a number of matters. However, counsel did not put the following: (a) that the complainant lent on the appellant's shoulder (b) that the appellant said to the complainant, "You're a bit fresh, you're a bit frisky." (c) the complainant replied "The rain does it to me." (d) after the appellant tried to kiss the complainant she said "I don't want to kiss, I just want sex." 39 As earlier mentioned the appellant gave this evidence: "She leant on my shoulder and I just looked around and said, 'You're a bit fresh' or 'You're a bit frisky', or something to that nature and she said, 'The rain does that to me."
and "Donna said to me, 'Mark and I are split up and who's going to find out? Noni will never find out. (T133) … I like a gullible fool I went towards her and I tried to kiss her, and she said, 'I don't want a kiss, I just want to have sex.' " (T133) 40 The Crown Prosecutor asked these questions in cross-examination (T151-152): Q. Then you said that Donna leant on your shoulder? A. She did. Q. That's what you say she did? A. That's what she did.
Q. Remember when Miss Lucas was in the witness box being asked questions by your counsel? A. I do.
Q. She was never asked, was she, or it was never suggested to her that she leant on your shoulder was it? A. I think it was.
Q. You didn''t tell the jury in your evidence that she put her arm around you because that didn't happen did it? A. I didn't say she put her arm around me, no.
Q. Well didn't you hear your counsel -- A. She put her arm on my shoulder.
CROWN PROSECUTOR: Q. Didn't you hear your counsel suggest to Miss Lucas that she put her arm around you? A. No.
Q. This evidence about her leaning on your shoulder -- A. That's right. Q.. That's something you've just made up isn't it? A. No it's not.
Q. You've told the jury that you said to Miss Lucas when she put her head on your shoulder -- A. No, her arm on my shoulder.
Q. "You're a bit fresh, you're a bit frisky," and she said to you "The rain does it to me," or words to that effect? A. Something like that, yes.
Q. You never heard your counsel suggest to Miss Lucas that she ever said something to the effect of 'The rain does it to me.'? A. No I didn't, ask my counsel why.
Q. And that's because she never said such a thing to you at all? A. Yes she did.
Q. And you never suggested to her at all, never said to her at all that she was a bit fresh or a bit frisky? A. Yes I did.
Q. This was all out of the blue, wasn't it, this conduct? A. No it wasn't.
Q. You've been sitting there next to her? A. That's right.
Q. Talking about Amway? A. That's right.
Q. You weren't talking about sexual relationships? A. No.
Q. And out of the blue you say Miss Lucas put her head on your shoulder? A. No, she didn't put her head on my shoulder, she leant on my shoulder.
Q. I'm sorry, she leant on your shoulder? A. That's right.
Q. Never shown you that sort of affection ever before had she? A. No, never.
Q. When you say she said those words, 'The rain does it to me,' was she seated at that time or standing? A. She just started to rise.
Q. And then you say that she walked in the direction of her bedroom? A. Yes.
Q. Didn't say anything to you but gave you nod of the head? A. Beckoned me, yes.
Q. With her head. You're not suggesting to the ladies and gentlemen of the jury that she actually asked you for sex at that time? A. At that time, no.
Q. But that's certainly what you say you took it as? A. That's right, why would somebody beckon you that way otherwise?
Q. And you say to the jury in your evidence today that you tried to kiss her but she said the words 'I don't want to kiss, I just want sex.'? A.. That's right.
Q. You never heard your counsel suggest to Miss Lucas once that she said those words did you? A. No.
Q. Because you've just made them up haven't you? A. Sir I don't know how to tell you this, but I made a statement--
Q. Well you can just answer the questions sir that I'm putting to you? A. I never just made it up, it's been written down a long time before today." 41 That cross-examination was impermissible and highly and unfairly prejudicial to the appellant's case. 42 The gist of the cross-examination was unmistakable, namely because the appellant's counsel had not questioned the complainant about the specified matters, the appellant was telling lies. He had made up his evidence on these points. 43 In R v Birks (1990) 19 NSWLR 677 at 691 Gleeson CJ referred to the views of King CJ in R v Manunta SACCA, unreported, 28 July 1989, namely: " 'I have been concerned about the prominence which the learned judge gave to these matters in the course of the summing-up. It is legitimate, of course, to draw appropriate conclusions from counsel's failure to put in cross-examination some matter to which his client or his witnesses subsequently depose. It is a process of reasoning, however, which is fraught with peril and should therefore be used only with much caution and circumspection. There may be many explanations of the omissions which do not reflect upon the credibility of the witnesses. Counsel may have misunderstood his instructions. The witnesses may not have been fully co-operative in providing statements. Forensic pressures may have resulted in looseness or inexactitude in the framing of the questions. The latter might simply have been overlooked. I think that where the possibility of drawing an adverse inference is left to the jury, the jury should be assisted, generally speaking, by some reference to the sort of factors which I have mentioned. Jurors are not familiar with the course of trial or preparation for trial and such considerations may not enter spontaneously into their minds' ."
Gleeson CJ continued at 691-692: "I would respectfully adopt those views. I would add that one particular matter which makes it difficult for jurors to use the conduct of counsel as a basis for drawing inferences of fact is that most jurors are unaware of the principles, some of which have been set out earlier in this judgment, relating to the wide discretion available to counsel as to the manner in which a trial may be conducted. It may be easy for a jury, unless given an appropriate warning, to assume that a barrister is merely some kind of 'mouthpiece' for the client, conducting the case in close conformity with the client's directions. For reasons that have already been explained, this is far from the truth." 44 McInerney J agreed with Gleeson CJ. Lusher AJ in separate reasons, agreed that there had to be a new trial. Birks was cross-examined vigorously by the Crown prosecutor that his counsel had not cross-examined the appropriate witnesses about certain points upon which Birks had given evidence and about his instructions to his barrister. It was put to Birks that he was lying about such points and that his barrister's failure to cross-examine the complainant demonstrated that the appellant had never told his barrister about the matters in question (p681). Gleeson CJ observed in Birks that both in the address to the jury of the Crown Prosecutor and in the summing-up considerable emphasis was placed upon the failure of the appellant's barrister to cross-examine the complainant about two particular points and that it had a very important bearing on the appellant's credibility. 45 Birks has been applied frequently. Davies, Rich and Birks were applied in Dennis. That was because the Crown in cross-examination tried to drive the accused into saying that an independent witness and the complainant were lying and also put that he (the accused)was lying because his counsel had not cross-examined the independent witness on particular points on which the accused had given evidence. The latter matter was canvassed at some length in the summing-up. 46 In the present case the Crown Prosecutor in his final address described what the appellant told the jury as "the best fantasy novel ever written" and his description of what happened when he sat down on the lounge with her as a flight of fantasy. The Crown Prosecutor caustically remarked that the appellant's version of the subsequent events "gets better". The prosecution described the appellant's version as absurd and a flight of fantasy and urged the jury not to give the slightest shred of credibility to the appellant's story. He suggested, "…you would find that the accused was telling you a total fabrication in relation to that." The address thus emphasised the fact of fabrication by the appellant and it covered the matters about which the appellant gave evidence and the complainant was not cross-examined. 47 The judge did not refer in his summing-up to the complainant not being cross-examined about matters on which the appellant gave evidence nor to the Crown's cross-examination that he had fabricated parts of his evidence and that he was alleging that she had fabricated parts of her evidence. To that extent the present case differs from the earlier cases. However, while important that difference is not decisive. This was a short trial and the offending cross-examination took place towards the end of the evidence and was followed by the Crown's final address. The lingering illicit prejudice was likely to be high notwithstanding that no reference was made to the offending cross-examination in the summing-up. The risk of such prejudice continuing cannot be discounted. 48 No objection was taken at the hearing to the objectionable portions of the prosecutor's cross-examination nor to the prosecutor's florid address. 49 Two additional grounds of appeal were pressed, namely: Ground 2 A miscarriage of justice occurred because the appellant's counsel did not properly put the appellant's instructions to the complainant. Certainly, the high risk of such prejudice continuing cannot be discounted. Ground 3 A miscarriage of justice occurred because the appellant's counsel did not adequately re-examine the appellant about the instructions he gave to his instructing solicitors.
As earlier indicated the appellant's counsel at the trial did not put to the complainant that she leant on the appellant's shoulder, that he said to her that she was a bit fresh or a bit frisky, that she replied that the rain did it to her and that after he tried to kiss her she said "I don't want to kiss, I just want sex." 50 This failure led to the objectionable cross-examination set out earlier. It could have had a telling impact in a case which was essentially one of her word against his word. 51 The appellant's counsel, in re-examination, sought to redress some of the damage done to the appellant's credibility in cross-examination. Some handwritten notes which the appellant had prepared for his solicitor in November 1999 and so identified were placed in he appellant's hands. He gave this evidence: "Q. … The references that you've made to what [the complainant] said to you. They're contained in those notes? A. They are."
The notes were then marked for identification. This was a rather cursory way of dealing with the matter. The appellant was not taken to the particular passages in the notes. 52 The appellant complained that his counsel neither called his solicitor to give evidence nor tendered the notes. The appellant submitted that after the sustained attack on his credibility by the Crown supporting evidence was important. I can understand counsel being dubious about tendering the notes and it is not clear whether the solicitor could say more than that the appellant had given him the notes and that he had discussed them with the appellant. Counsel may have been concerned that the prosecutor might cross-examine the solicitor on other matters to the appellant's disadvantage. 53 I do not accept the Crown's submission that the attack by the Crown on the basis of "recent invention" had been obviously and comprehensively demolished in the presence of the jury by the course which counsel had undertaken in re-examination. This presupposes that the jury were prepared to accept the appellant's evidence in re-examination without seeing the notes or hearing from the solicitor. 54 The Crown contended that if counsel for the appellant had tendered the appellant's notes or called the solicitor, questions may have been pursued as to why the written instructions were not delivered earlier and as to the terms of the oral instructions originally given to the solicitor. The Court does not know whether cross-examination along those lines would have produced evidence which was beneficial or harmful to the appellant. The Crown contended that the course pursued by counsel for the appellant was reasonable. I disagree. It was too cursory and did not take into account the importance of decisively re-establishing the appellant's credibility. That would have had an effect upon the complainant's credibility and the acceptance of her evidence. 55 The appellant complained that the judge did not alert the jury to the possible alternative explanations why the appellant's counsel did not put his instructions to the complainant on the four matters in question. The judge was not asked to do so, despite his invitation to counsel to raise any matter of fact. It would not have been open to counsel reasonably to take the view that the less said about the matter the better. That was too risky a course. 56 The appellant complained that the judge's intervention during cross-examination may have given the jury the impression that the appellant was evasive. The judge did not intervene excessively. On two occasions he intervened to elucidate matters when the appellant was having difficulty with the question. He also focussed the appellant's attention on the question and reminded him to answer the question. There was nothing objectionable in what the judge did and said. 57 The failure of counsel to object to impermissible and unfairly prejudicial questions and his cursory re-examination of the appellant were adverse to the appellant's interests in a case where the credibility of his evidence was important. The complaints underlying grounds 1, 2 and 3 have been established. 58 The Crown submitted that even if the Court found that the appellant's grounds of appeal or some of them had been established this Court should nevertheless dismiss the appeal as no miscarriage of justice had occurred. The appellant had not lost a chance of acquittal which was fairly open. 59 The Crown case was strong. The appellant had called at the complainant's home after 8pm when he knew that her partner was away and there was no house nearby. She complained immediately after the incident. When he left he took her telephone so she could not contact anyone immediately. She had to and did walk to another farmhouse. She was in distress for some time after the incident. While there was no supporting evidence that he licked her on the outside of her vagina (count 1), that she did not consent to intercourse and he knew that she did not consent (count 2) and that he had a rifle at her home there was evidence supporting a number of the facts which she alleged. For example, shortly after the incident the appellant had a rifle which matched, in a general way, the description by the complainant of the rifle that she said he had when he visited her home. The appellant's version of events on 18 October 1999 while possible was improbable. 60 In a summing-up which was fair and contained careful directions as to the law and related the law to the facts, the judge stated: "… the real issue in this trial is whether the evidence of the complainant can be accepted by you beyond reasonable doubt as being an honest and accurate account of what she says occurred between her and the accused on 18 October last." (SU.8) and "…the Crown's case depends essentially upon your acceptance of the complainant as a truthful and accurate witness … if you had any doubt about that you should acquit the accused. All of the other evidence … both in the Crown case and in the defence case has been led simply to assist you in … your assessment of the complainant." 61 A critical factor in assessing the evidence of the complainant was the weight to be given to the evidence of the appellant. His credit was of considerable importance. In practical terms unless the jury thought that there was a reasonable possibility that his evidence was true he would probably be convicted. It was in one sense "a word against word case" subject, of course, to the law of proof beyond reasonable doubt with the onus of proof resting on the Crown. 62 The damage done to the credit of the appellant by the impermissible cross-examination in the two areas earlier identified was probably considerable. The failure of the appellant's counsel to put his instructions adequately to the complainant made matters worse. The cursory re-examination of the appellant did not repair the damage. The prosecutor's florid address capitalised on the impermissible cross-examination. That address was delivered on the same morning as the summing-up. It is the combination of the established complaints which leads to the conclusion that there has been a miscarriage of justice. For the reasons just given this is not a case where this Court can be satisfied to the contrary. 63 It is unnecessary for this Court to deal with the appeal against sentence. 64 I propose the following orders: 1. Appeal allowed; convictions quashed. 2. Order that there be a new trial. **********
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Eric Russell Picker
Regina