Conviction appeal: Ground 6
80 The ground was -
"The trial proceedings miscarried by reason of the inflammatory and intemperate language used by the Crown Prosecutor in his cross-examination of the appellant and in his closing address to the jury, by using the descriptions 'pathetic' and 'absolutely pathetic' as expressions of the prosecutor's own opinion of the quality of the evidence given by the appellant and through deliberately conveying that opinion to the jury."
81 The ground rested on the uses of "pathetic" (three times) and "absolutely pathetic" (once). The appellant relied on R v Rugari (2001) 122 A Crim R 1, R v Liristis (2004) 146 A Crim R 547 (which he said was on all fours) and Livermore v R [2006] NSWCCA 334. Recent consideration of a Crown Prosecutor's conduct can be found in Libke v The Queen (2007) 81 ALJR 1309.
82 The appellant's examination in chief occupied less than two pages of the transcript. He said that he did not murder his parents and sister, that he left Teddy Gonzales' offices prior to 4 pm on 10 July 2001 and parked in the carport at 6 Collins Street and went by taxi to the brothel, returning by taxi to pick up his car and go to the city with his friend. He returned home sometime after 11.30 pm to find that his family had been killed.
83 The cross-examination extended over three days, and occupied over 160 pages of transcript.
84 The Crown Prosecutor used the description "pathetic" once in the cross-examination, in the penultimate question. The question was concerned with the emergency telephone call made to the Ambulance Service in which the appellant told the operator that someone had shot his parents and that there was a lot of blood; in fact the victims had not been shot. The question should be put in context.
85 In his statement to the police of 3 August 2001 the appellant had said that when returning home late on 10 July 2001 he slowed down in Wicks Road to see if there was anything strange. The Crown Prosecutor drew the appellant's attention to this, and over some two pages of the transcript pressed the appellant on whether he was expecting anything strange and put to him that he had expected that while he was away someone would try and ring his family, fail to get through and go to the house and discover the bodies.
86 The cross-examination continued -
"Q. And I suggest to you that you never expected that you would have to be the one to discover the bodies?
A. No sir.
Q. And I suggest to you that when you came home finally, you had the difficult task of working out some story about how you discovered the bodies?
A. No sir.
Q. And I suggest to you that you only worked that out on the spot as it were, because you were pretty hopeful that someone else would discover the bodies?
A. No sir.
Q. And that is why you went out at 8 o'clock because you were hoping that somebody would go and discover the bodies?
A. No sir.
Q. You cut the telephone line?
A. No I did not.
Q. So nobody would be able to get through and there would be some disruption to the telephone service?
A. No sir.
Q. And that is why, I suggest to you, you made such a pathetic attempt at the triple-0 call?
A. Excuse me sir?
Q. I suggest that you didn't really have much time to prepare what you were going to say in the triple-0 call, and that is why you said at the beginning of the triple-0 call that your family had been shot; you didn't have much time to prepare it?
A. I just said what I was feeling sir." (emphasis added)
87 In his address to the jury the Crown Prosecutor used the description "pathetic" once and the description "pathetic, absolutely pathetic" once. Again, it is necessary to put the uses in context. The use of "pathetic" was in relation to an e-mail dated 3 August 2001, and the use of "pathetic, absolutely pathetic" was in relation to an alleged attempt to gain entry to the appellant's apartment in May 2002.
88 On 20 August 2001 the appellant provided to the police an e-mail dated 3 August 2001. It became Exhibit AAN. It was partly in Tagalog and partly in English, and was to the effect that a Mr C (who was a wealthy Philippines businessman), had something to do with the murders because Teddy Gonzales "refused an illegal deal" and that the appellant had been an intended victim and was still at risk. The Crown case included that the appellant had sent the e-mail to himself. There was evidence that an early version of the e-mail was on the appellant's computer, together with programmes designed to disguise and create false e-mails. There was evidence from the "owner" of the e-mail address from which the e-mail had purportedly come that he had had nothing to do with it, and from Mr C that he did not know Teddy Gonzales. It was open to the jury to regard the e-mail as a false attempt to divert attention from the appellant, and to take this into account in coming to their satisfaction that he had committed the murders.
89 The appellant was cross-examined in relation to Exhibit AAN. He admitted that the e-mail "was my creation". The cross-examination continued -
"Q. So you created a piece of false evidence which you gave to the police accusing of Mr C and his organisation of being responsible for the deaths in your family?
A. Yes sir.
Q. You were prepared to create false evidence implicating this man and his organisation in the deaths of your family, weren't you?
A. The email was false.
Q. You were prepared to create false evidence which implicated another person and his organisation in the deaths of your family, correct?
A. The contents are not false, sir.
Q. You were prepared to create false evidence in the form of this email implicating another man and his organisation in the deaths of your family, weren't you?
A. Yes sir.
Q. Did you know that it was illegal to create false evidence?
A. Yes sir.
Q. And you were prepared to do that?
A. I felt I had no choice, sir.
Q. You felt you had no choice because the police were onto your trail and you thought that you were going to be charged, didn't you?
A. No sir."
90 In re-examination the appellant said that he had been told by family and friends of death threats not long before the murders, that some time after the murders he was told as well that there were media reports in the Philippines of contract killers, and -
"I put together this e-mail because I was afraid that if it - the information came from me officially, that I would be in danger as well. I didn't see any harm in it because the information that I put in here were based on facts that I heard. I didn't make up what was in this e-mail, all that I attempted to make was that it was from someone anonymous."
91 In his address to the jury the Crown Prosecutor suggested that the appellant had no choice but to admit that he had created the e-mail himself, that he "had to admit that it was some false evidence that he had created", and -
"His explanation for why he is prepared to create this false evidence is just pathetic . We submit that you would reject his explanation. He was trying to convince the police, trying to make it more convincing for the police, that they wouldn't believe him. He just told them that he heard it from his relatives. Ladies and gentlemen, that is just sheer desperation on his part." (emphasis added)
92 By May 2002 the appellant had been told that he was regarded as a suspect. On 30 May 2002 the appellant asked Detective Inspector Sheehy to come to his apartment. At the apartment the appellant said that he had received two threatening e-mails, one of which had self-destructed when he tried to save it. The other e-mail, dated 22 May 2002, told the appellant to "confess" but said, amongst other things, "you will probably be acquitted" and "you cause trouble for us we will kill you. You cannot bring back your family your father deserved to die". From other evidence in the Crown case, it was open to the jury to conclude that the appellant had sent the e-mail to himself. The appellant also told the police that he had heard a noise which led him to believe that someone had attempted to gain entry to his apartment at about 3 am earlier that day.
93 Detective Sergeant Leggat attended later on 30 May 2002 to investigate the attempt to gain entry, and was given a more full account of it which included being told of three gouge marks on the front door. On investigation, no occupant of surrounding apartments had seen or heard anything unusual, and there were no results from fingerprint examination of the front door. There was evidence at the trial from a forensic officer, with photographs and explanation, that the marks on the door were superficial scratches inconsistent with jemmy marks where inwards pressure is applied to the door and door jamb in an effort to defeat the locks or with an object being inserted between the door and the door jamb in an effort to manipulate the latches.
94 In his address to the jury the Crown Prosecutor suggested that, for reasons he put forward, the e-mail was a fake. He continued -
"And on the same day that he gives it to the police he tells them about this attempted break-in. He heard the scratching noises at night, got up to see who was there, nobody was there, in the morning he gets up, there is these dreadful marks on his door and the police go and investigate, and you've seen the photographs. These little scratches there. Nobody was trying to break in. Pathetic, absolutely pathetic ." (emphasis added)
95 In Whitehorn v The Queen (1983) 152 CLR 657 at 663-4 Deane J stated the principles governing the conduct of a Crown Prosecutor -
"Prosecuting counsel in a criminal trial represents the State. The accused, the court and the community are entitled to expect that, in performing his function of presenting the case against an accused, he will act with fairness and detachment and always with the objectives of establishing the whole truth in accordance with the procedures and standards which the law requires to be observed and of helping to ensure that the accused's trial is a fair one. The consequence of a failure to observe the standards of fairness to be expected of the Crown may be insignificant in the context of an overall trial. Where that is so, departure from those standards, however regrettable, will not warrant the interference of an appellate court with a conviction. On occasion however, the consequences of such a failure may so affect or permeate a trial as to warrant the conclusion that the accused has actually been denied his fundamental right to a fair trial. As a general proposition, that will, of itself, mean that there has been a serious miscarriage of justice with the consequence that any conviction of the accused should be quashed and, where appropriate, a new trial ordered."
96 Departure from the standards of fairness may occur by intemperate conduct by the Crown Prosecutor. In R v McCullough (1982) 6 A Crim R 274, in a passage taken up in R v Liristis at [94], it was said at 285 -
"Counsel for the Crown is obliged to put the Crown case to the jury and, when appropriate, he is entitled to firmly and vigorously urge the Crown view about a particular issue and to test and, if necessary, to attack that advanced on behalf of the accused. But he must always do so temperately and with restraint, bearing constantly in mind that his primary function is to aid in the attainment of justice, not the securing of convictions."
97 It is, of course, a question of balance in the particular circumstances. In R v McCullough the Court continued, through a citation from R v Roulston (1976) 2 NZLR 644 at 654, that the prosecutor should not assume so emasculated a role that the prosecution's case is not adequately presented, and that the "feel and atmosphere of one trial may make it reasonable and even necessary for tactics to be employed that would seem out of place and disproportionate to the circumstances of another".
98 In R v Rugari Carruthers AJ, with whom Spigelman CJ and Sperling J agreed, emphasised that a criminal trial is of an adversary nature and said -
"51 In Moss v Brown [1979] 1 NSWLR 114 at 126, the Court of Appeal (Moffitt P; Reynolds and Hutley JJA) said:
"In any discussion of fairness, it is imperative to consider the position of all parties. It is sometimes forgotten that the Crown has rights and, as it has a heavy responsibility in respect of the invoking and enforcement of the criminal law, which includes seeing that the public revenue is not imposed upon, it is entitled to maintain those rights even if they may bear heavily upon some accused".
52 Thus although Crown Prosecutors are subject to considerable constraints, they must nevertheless discharge their obligations fearlessly in the interests of the Crown, acting on behalf of the community."
99 In Libke v The Queen Hayne J, with whose reasons Gleeson CJ and Heydon J agreed, referred at [71] to the central role of prosecuting counsel to ensure that the Crown case is presented with fairness to the accused, but observed at [72] that the prosecution case is to be presented in the context of an adversarial process in which each side is free to decide the ground on which it or he will contest the issue, the evidence which it or he will call, and what questions whether in chief or in cross-examination shall be asked; his Honour said that there were "boundaries to that process", with choices to be made subject to the rules of evidence, fairness and admissibility. His Honour said at [74] - [77] that, in the complaint in that case of unfairness in undermining the accused's credibility, it was an essential part of the prosecutor's function to test the credibility of the account he gave and that the question was whether that was done unfairly, and that where no objection had been taken at trial it was important to examine carefully what happened at the trial to see in what respect there was said to be an unfairness. The additional remarks Gleeson CJ at [2] included that the argument that the conduct of the prosecutor during his cross-examination of the accused resulted in an unfair trial, and a miscarriage of justice, involved a question of degree.
100 An important matter in considering unfairness is whether the Crown Prosecutor's conduct distracted the jury from rational consideration of the Crown case and the defence. As was said in R v Roulston at 354 -
" … it is wrong for Crown counsel to become so much the advocate that he is fighting for a conviction and quite impermissible to embark upon a course of conduct calculated to persuade a jury to a point of view by the introduction of factors of prejudice or emotion."
101 In R v Rugari the Court considered that in his address to the jury the Crown Prosecutor exceeded the reasonable restraints imposed upon him. The excess was far beyond anything of which the appellant complains in the present case, involving putting matters which the accused was required to explain and thus reversing the onus of proof, summarising the accused's answers to questions in a mocking and ridiculing way, condemning the manner in which counsel for the accused conducted her cross-examination and calling it ridiculous, categorising the accused's defence as a cynical defence and expressing to the jury as the Crown Prosecutor's own view an opinion of the quality of the evidence given by the accused.
102 In R v Liristis it was though sufficient for unfairness that in his address to the jury the Crown Prosecutor had said -
"Its really pathetic in some ways that you are - one wonders is the jury really being asked to accept what you have been asked for the accused? Look, am I really hearing this? I pinch myself to see whether my senses are telling me this is what the accused is saying whether he really thinks that you are going to accept this version of his."