Gonzales v Regina

CITATION: Gonzales v Regina [2007] NSWCCA 321 This decision has been amended. Please see the end of the judgment for a list of the amendments.

Adanguidi v R [2006] NSWCCA 404; De Gruchy v The Queen (2002) 211 CLR 85; Gallagher v The Queen (1986) 160 CLR 392; Kelly v The Queen (2004) 218 CLR 216; Knight v R (2006) 164 A Crim R 126; Lawless v The Queen (1979) 142 CLR 659; Libke v The Queen (2007) 81 ALJR 1309; Livermore v R [2006] NSWCCA 334; Mickelberg v The Queen (1989) 167 CLR 259; Palmer v The Queen (1998) 183 CLR 1; Papakosmas v The Queen (1999) 196 CLR 297; Perpetual Trustee Company Ltd v Khosaba [2006] NSWCA 41; R v Blick (2000) 111 A Crim R 326; R v Booty (CCA, 19 December 1994, unreported); R v Buckley (2004) 149 A Crim R 122; R v Chai [2002] NSWCCA 512; R v Cook [2004] NSWCCA 52; R v Crump (CCA, 30 May 1993, unreported); R v De Gruchy (2000) 110 A Crim R 271; R v Denyer (1995) 1 VR 186; R v Fernando and Fernando (1997) A Crim R 533; R v Gapper[2007] SASC 119; R v GH (2000) 105 FCR 419; R v Gilbert (CCA, 10 December 1998, unreported); R v Glen [1999] NSWSC 1018; CASES CITED: R v Harris (2000) 50 NSWLR 409; R v Horton (1998) 45 NSWLR 426; R v Kaddour [2005] NSWCCA 330; R v Lawrence (1980) 1 NSWLR 122; R v Leak (1969) SASR 172; R v Leonard (CCA, 7 December 1998, unreported); R v Lewis [2003] NSWCCA 180; R v Liristis (2004) 146 A Crim R 547; R v Lyberopoulos [2002] NSWCCA 280; R v McCullough (1982) 6 A Crim R 274; R v Merritt (2004) 59 NSWLR 557; R v Praturlon (CCA, 29 November 1985, unreported); R v Reid [1999] NSWCCA 258; R v Rich (1998) 102 A Crim R 165; R v Robinson [2000] NSWSC 972; R v Robinson [2000] NSWCCA 359; R v Roulston (1976) 2 NZLR 644; R v Rugari (2001) 122 A Crim R 1; R v Slack (2003) A Crim R 314; R v Spathis and Patsalis [2001] NSWCCA 476; R v Taouk (2005) 154 A Crim R 69; R v Valera [2002] NSWCCA 50; R v Whitmore [1999] NSWCCA 75; Selsam Pty Ltd v McGuiness (2000) 49 NSWLR 262; Shaw v The Queen (1952) 85 CLR 365; Whitehorn v The Queen (1983) 152 CLR 657.

LOWER COURT MEDIUM NEUTRAL CITATION: Regina v Gonzales [2004] NSWSC 822

(b) whether there was a reasonable excuse as to why a tape recording could not be made ("reasonable excuse": s 281(2)(b)). 22 The prior question is whether the admissions in the statement were inadmissible in the absence of an objection to their admissibility. R v Reid [1999] NSWCCA 258 was concerned with s 424A of the Crimes Act 1900, the predecessor to s 281 and although differently structured using the same key words that "evidence of an admission is not admissible unless … ". Spigelman CJ held at [5] that "is not admissible" should be construed as meaning "is not admissible over objection", saying that the usual course of proceedings in trials under the adversary system requires objection to be taken to evidence and that the usual practice was "part of the total context in which Parliament used these words". The reasons of Smart AJ were less explicit, but at [61] his Honour said that s 424A was "enacted against the long-standing and well-known practice of the Court generally not to reject evidence led by a party until a legitimate objection is taken by the other party"; his Honour went on to point out that the parties were generally left to conduct their own cases and they should know, which the Court did not, whether there was a reasonable excuse why a tape recording could not be made. Greg James J at [11] agreed with Smart AJ, and also with the "matters raised by the Chief Justice". 23 The status of evidence to which objection could successfully have been taken but which was not objected to is not entirely clear; see Weinberg, "The consequences of failure to object to inadmissible evidence in criminal cases" (1978) 11 MULR 408 and the discussion in Cross on Evidence, Australian ed, paras 1650-1680. The construction of "is not admissible" as proposed by the Chief Justice is generally in accord with principles whereby such evidence may be used in proof of an issue, at least in civil proceedings, by the operation of a doctrine of waiver. Criminal proceedings may be in a different position: for example in Shaw v The Queen (1952) 85 CLR 365 it was said at 381 (Dixon, McTiernan, Webb and Kitto JJ) that the failure of the accused's counsel to object to inadmissible evidence did not make it admissible. At least in criminal proceedings there may be occasions on which a trial judge is obliged to question the admissibility of evidence although no objection is taken, in the interests of ensuring a fair trial: R v Slack (2003) A Crim R 314 at [37] (Sheller JA, Wood CJ at CL and Smart AJ agreeing); R v Lewis [2003] NSWCCA 180 at [68] (Buddin J, Santow JA agreeing). Further, while leave under r 4 must be obtained it is not uncommon for a ground of appeal to be entertained that the trial miscarried because inadmissible evidence was admitted notwithstanding that no objection was taken to it, for example R v Chai [2002] NSWCCA 512 at [41] (Mason P, Sperling and Bergin JJ). 24 The prior question is not one of use of inadmissible evidence which was not objected to, but of construction of s 281. It does not concern s 281 alone. The Evidence Act 1995 uses the words "is not admissible" in relation to hearsay evidence (s 59), opinion evidence (s 76) tendency evidence (s 97), coincidence evidence (s 98), credibility evidence (s 102) and visual identification evidence (s114), amongst other provisions. The words are to be contrasted with "is not to be adduced" in ss 118 and 119 and similar directory words in other provisions. Strong forms of words are found in s 137, "must refuse to admit evidence", and s 138, "is not to be admitted". In Selsam Pty Ltd v McGuiness (2000) 49 NSWLR 262 Spigelman CJ said at [149] that ordinarily "not admissible" in the Evidence Act means "not admissible over objection". 25 On the other hand, s 190 of the Evidence Act (under the heading "Waiver of rules of evidence") provides for the court to dispense by order with the application of many provisions of the Act if the parties consent, which at first sight is not consistent with the provisions being inapplicable if they are not invoked by a party objecting to evidence. In particular, by s 190(c) in criminal proceedings a defendant's consent is not effective unless the defendant has been advised to consent by his lawyer or the court is satisfied that the defendant understands the consequences of giving the consent. 26 However, the Chief Justice's construction of "is not admissible" in R v Reid has been adopted in this Court in R v Spathis and Patsalis [2001] NSWCCA 476 at [416]-[417] (Carruthers AJ, Heydon JA and Smart AJ agreeing) R v Lyberopoulos [2002] NSWCCA 280 at [41] (Hulme J, Mason P and Simpson J agreeing) and R v Kaddour [2005] NSWCCA 330 at [62] (the Court). The appellant submitted that R v Reid should be reconsidered in the light of the rationale for equivalents to s 281 explained, and the purposive construction given, in some of the judgments in Kelly v The Queen (2004) 218 CLR 216 and Nicholls and Coates v The Queen (2005) 219 CLR 196, but the High Court was not concerned with the present question. In the absence of proper argument to the contrary, the decisions should be followed. Accordingly, the ground of appeal fails in limine because, in the absence of objection, the statement was not inadmissible and was not wrongly admitted. 27 It is nonetheless appropriate to consider suspicion and reasonable excuse. The absence of objection to the statement is material to these matters, because it meant that there was no occasion for the Crown to address either of them by evidence. 28 Detective Inspector Sheehy (then Detective Sergeant) was the officer in charge of the investigation of the murders. He went to 6 Collins Street at about 1 am on 11 July 2001. He spoke to police already at the scene, and spoke to the appellant and at the appellant's request called a friend to come and support him. He took the appellant to the Gladesville Police Station, where the appellant was placed in a victim room with relatives; they included his uncle, Joseph Claridades, and his aunt, Emily Luna. A little later he took the appellant to an interview room, where the appellant was accompanied by Joseph Claridades, and there took the statement from him. 29 The statement began that it accurately set out the evidence which the appellant would be prepared, if necessary, to give in court as a witness. It was in the form of a statement of a witness, not that of a cautioned suspect. It included, clearly enough prompted by enquiry from Detective Inspector Sheehy, that the appellant did not know of any person with ill feeling towards his family, or of any threats or violence towards any of the members of his family, save for a description of an incident of road rage the previous night when the appellant was driving and his parents were in the car; a passenger in another vehicle yelled out "Bloody Asians" and the other vehicle cut the appellant's car off and then followed it and stopped behind it. Nothing in the evidence of Detective Inspector Sheehy or in the statement itself suggested that the appellant was suspected of the murders or that there were grounds for such suspicion. Detective Inspector Sheehy gave evidence, and was not asked anything in cross-examination in relation to suspicion of the appellant. 30 The appellant submitted that it should nevertheless be found in this Court that the appellant was a suspect, it seems meaning either was suspected or could reasonably have been suspected, having regard to other of the evidence at the trial plus evidence tendered on appeal. He said also that the fact that the appellant was a suspect was supported by the Crown Prosecutor's cross-examination of him, in which it was put to the appellant in connection with the lies making up the first alibi that he believed from the beginning that he was a suspect (which the appellant denied). 31 The cross-examination can immediately be put to one side. The appellant's belief, if held, turned on what was in his mind and what was known to him, not what was in an investigating official's mind or what was known to an investigating official. Putting the belief to him does not support actual suspicion or reasonable grounds for suspicion by an investigating official. 32 The evidence at the trial on which the appellant relied was as follows. 33 Constable Luke Mulligan arrived at 6 Collins Street at about midnight on 10/11 July 2001. The appellant was in a distressed state and was crying and shaking. The appellant told him, amongst other things, that when the appellant came home he heard noises, one or two persons rushed past him and went out the front door, and he followed them but could not catch them. (A similar account was given in the statement of 11 July 2001). Constable Mulligan recorded this conversation in his notebook, and also recorded - "* I accompanied the dog handler after setting up a perimeter. * The son was very distressed & lying on the floor of the garage. * At times the story he was telling me changed. * About 12.25-12.30 am I accompanied Dog 514 and Sen Const Cornell in an attempt to find a trail. * Shortly before doing this a [sic] noticed a vehicle parked under a carport separate to the enclosed garage the number plate contained the letter [sic] SEF . * I felt the bonnet of the vehicle & there was no heat on the bonnet. I cannot recall the exact colour of the vehicle or if it was wet due to the inclement weather. * I accompanied the dog squad along Collins St & into Ryrie St travelling in a north & south direction. * I observed the dog & handler & no property, other exhibits or like were found. It appeared that no scent was found either." (Emphasis added) 34 Senior Constable Paul Cornale was the dog handler. He arrived at 6 Collins Street at about 12.15 am on 11 July 2001. He spoke to the appellant, who told him that he had heard the side gate close and had run after one or more persons. The appellant told him, in answer to his question, that the persons did not get into a vehicle. Senior Constable Cornale searched in the direction to which the appellant pointed, then "everywhere where someone could make an escape route", but his dog did not pick up a scent. He gave evidence to the effect that persons leaving as described by the appellant would definitely have left a scent which the dog would have picked up. He also gave evidence that after he had finished the search he heard the appellant tell another police officer that the persons had got into a white four wheel drive, which he said would have been material to his searching because "it would have changed the whole perspective of my job at the scene". 35 Senior Constable Cornale was not asked in cross-examination anything about suspicion falling on the appellant because his account of persons leaving was not borne out by finding a scent, and had changed in relation to the persons getting into a vehicle. Constable Mulligan was cross-examined to the effect that he had made up the conversation with the appellant as recorded in his notebook. The cross-examination included asking why he had not read to the appellant what he had recorded and asked him to initial it, and his response included his understanding that under police instructions that was to be done only if the officer believed that the person was a suspect. Implicitly, Constable Mulligan did not so believe, and the cross-examination did not extend to putting to him that he did. 36 The appellant submitted that the matters emphasised in the extract from the notebook of Constable Mulligan and the evidence of Senior Constable Cornale about lack of a scent and a changed account of the persons getting into a vehicle provided reasonable grounds for the appellant to have been suspected of having committed the murders. He submitted that it was not necessary that the police officer conducting the official questioning in the course of which the admissions were made, here Detective Inspector Sheehy, knew of the grounds. 37 The evidence tendered on appeal on which the appellant relied was contained in an affidavit of his solicitor sworn on 22 August 2007, the day the hearing in this Court commenced. The Crown had no prior notice of the tender of the evidence. From the affidavit in relation to extension of time, the appellant's solicitor and senior counsel had been retained for a considerable time prior to the hearing in this Court, and the written submissions in support of the grounds of appeal were dated in March 2007. It is unacceptable that reliance on this further material emerged only when the hearing of the appeal was in progress. 38 The affidavit annexed three documents. It was said that each had been served on the defence as part of the police brief of evidence. The documents were - (i) the transcript of a recorded forensic procedure at 4.27 am on 11 July 2001 of taking swabs of the appellant's hands for gunshot residues;

(b) that evidence relating to inquiries made by the appellant of Mr John Stafford should have been excluded pursuant to s 135 or 137 of the Evidence Act and evidence given by Mr Rolando Baros as to the size of the Gonzales estates should not have been admitted because it was irrelevant. 55 Section 135 of the Evidence Act, applicable to both civil and criminal proceedings, gives a general discretion to refuse to admit evidence if its probative value is substantially outweighed by the danger that the evidence might be unfairly prejudicial to a party. Section 137, applicable only to criminal proceedings, provides that the court must refuse to admit evidence adduced by the prosecutor if its probative value is outweighed by the danger of unfair prejudice to the defendant. This is akin to a discretion so far as it calls for evaluative judgment, see for example R v Blick (2000) 111 A Crim R 326 at [19]; R v Cook [2004] NSWCCA 52 at [38]; and in a different context, Perpetual Trustee Company Ltd v Khosaba [2006] NSWCA 41 at [39]-[40]. 56 The two grounds of appeal can conveniently be dealt with together. I will first describe the evidence and the use made of it. 57 Motive was important in the Crown case. Why would the appellant kill his parents and his sister? The Crown case included but was not confined to accelerated inheritance of the appellant's parents' wealth. 58 The significance of motive is reflected in the judge's findings in his remarks on sentence under the heading "Motive". The judge found that the appellant had been performing poorly in his university studies, to the disappointment of his parents who were ambitious for their children, and that his parents had discovered that he had falsified documents showing his university results. The parents had warned the appellant that if he did not do well in the next university semester his car, to which he was very attached, would be taken away from him. The judge continued - "35 At the time of their deaths Mr and Mrs Gonzales owned property in Australia and the Philippines worth about one and a half million Australian dollars. The consequence of the wills made by Mr and Mrs Gonzales and their deaths and the death of their only other child Clodine would be that the prisoner would succeed to all of his parents' property, unless, of course, he was disqualified from succeeding by reason of it being established that he had killed his parents and sister.

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."

"The line of cross-examination persisted. It was, I repeat, an infringement of a basic rule denying permissibility of cross-examination along these lines and must necessarily attract the greatest of concern. If I felt that there were the slightest basis for concern that the appellant may have suffered any prejudice as a result of this impermissible line of cross-examination, then I would unhesitatingly have said that the appeal should succeed. As it happens, notwithstanding her tender years, the girl Joanne was apparently proof against the oppression inherent in being confronted by the evidence of her three friends and the aura of a court hearing and forced in effect to repudiate what she was told had been their sworn evidence; she maintained throughout a negative attitude to the Crown Prosecutor's cross-examination. Although I have approached the answers that she gave with a strong predisposition towards finding in favour of the appellant that there might thereby have been worked some prejudice to him, I am unable to conclude that this was in fact so. I repeat, had there been the slightest basis for concern that he had suffered as a result of prejudicial evidence given by her in the face of such cross-examination, then I would have had no hesitation in proposing that the appeal should succeed. As it is I must content myself with a strong condemnation of this line of cross-examination having been pursued in this way and express the conclusion that it has not, in my view, led to any miscarriage." 147 The objection to such a cross-examination lies in the witness being asked "to express an opinion as to whether other witnesses are telling the truth", that is, to impugn their truthfulness. Whether what other witnesses have said is correct is a different matter. The distinction was made clear in R v Leak (1969) SASR 172, where the Court (Bray CJ, Hogarth and Walters JJ) said at 173-4 - "In our view a witness ought not to be asked whether another witness is telling lies or has invented something. Any witness, of course, can be asked if what another witness has said is true. He can be asked if he knows of any reason why the other witness should be hostile to him or should tell a false story about him. But if he says that what the other witness has said is not true, he should not be asked to enter into that witness's mind and say whether he thinks the inaccuracy is due to invention, malice, mistake or any other cause. To do so is to ask him for opinion evidence and in our view the normal objections to that type of evidence apply. It is for the jury to decide which witness is telling the truth and how far what they think to be an inaccuracy on the part of any witness is deliberate or otherwise and what effect such inaccuracy has on the rest of the witness's testimony. No attempt should be made by the cross-examiner to drive any witness, least of all the accused, into saying that any other witness least of all a detective, is a liar." 148 Whether the witness could be asked if he knows of any reason why the other witness should be hostile to him or tell a false story about him may no longer be correct, see Palmer v The Queen (1998) 183 CLR 1, but does not presently arise. 149 In R v Booty (CCA, 19 December 1994, unreported) Grove J, with whom Abadee and Simpson JJ agreed, said - "Counsel for the appellant next argued ground 9 which complained of impermissible cross examination by the Crown Prosecutor. Again without reciting the text of the cross examination the thrust of challenge was directed to the appellant's necessary contention that the complainant was lying. He could of course be asked if what the complainant said was true and he could be asked if he knew a reason why he should either be hostile to him or tell a false story about him and to the extent that the cross examiner put such matters I detect no error: R v Leak 1969 SASR 172. What is improper is for the witness to be asked in effect to enter the complainant's mind and say whether the false assertion is due to invention, malice, mistake or any other cause. What is impermissible is to put to one witness that his evidence is to the contrary to that of others and thus impliedly invite comment on the reasons for contradiction. Therein lies the vice of such questions as distinct from simple enquiry of one witness whether another is telling the truth: R v Praturlon unreported NSW CCA 29 November 1985; North Australian Territory Co v Goldsborough Mort and Co 1893 2 Ch 381." 150 In R v Rich (1998) 102 A Crim R 165 it was said at 169 that a witness should not be "invited to express an opinion about the truthfulness of another", referring to R v Leak and R v Praturlon, with risk of reversal of the onus of proof. (As to that risk, see also R v Gapper [2007] SASC 119 at [50]). In R v Gilbert (CCA, 10 December 1998, unreported) Grove J, with whom Levine and Dowd JJ agreed, said that the "essence" of the vice in such a cross-examination was as summarised in R v Leak, namely that the witness was invited "to enter the complainant's mind and say whether the false assertion is due to invention, malice, mistake or any other cause". In R v Buckley (2004) 149 A Crim R 122 at [9] the Court of Appeal in Victoria expressed the prohibition that a witness can not be asked in cross-examination "whether another witness is telling lies or has invented something". 151 I do not think that the cross-examination of which the appellant complained offended these principles. The appellant had not in his evidence in chief addressed the evidence tendered in the Crown case in any detail, and it was appropriate for the Crown Prosecutor to confront him with what had been said in evidence by or through Crown witnesses. Asking the appellant whether the witness was wrong was a permissible way of doing so, and I do not think the cross-examination trespassed into asking the appellant to express an opinion on whether the witnesses were lying or had invented their evidence or otherwise why their evidence was incorrect. 152 I should add that, if the line from permissible to impermissible cross-examination had been crossed, I consider that (like Joanne in R v Praturlon) the appellant was not prejudiced in his cross-examination and there was not unfairness bringing a miscarriage of justice. 153 This ground of appeal fails.

(2002) 211 CLR 85

(1986) 160 CLR 392

(2004) 218 CLR 216

(1979) 142 CLR 659

(2007) 81 ALJR 1309

(1989) 167 CLR 259

(1998) 183 CLR 1

(1999) 196 CLR 297

(1995) 1 VR 186

(2000) 105 FCR 419

(2000) 50 NSWLR 409

(1998) 45 NSWLR 426

(1980) 1 NSWLR 122

(2004) 59 NSWLR 557

(2000) 49 NSWLR 262

(1952) 85 CLR 365

(1983) 152 CLR 657

(2005) 219 CLR 196

(1987) 163 CLR 447

(1988) 164 CLR 465

(1985) 2 NSWLR 466

(2003) 58 NSWLR 589

(1913) 16 CLR 336

[2006] NSWCA 41

[2002] NSWCCA 512

[2005] NSWCCA 330

[2003] NSWCCA 180

[1999] NSWCCA 75

[1999] NSWCCA 311

[1999] NSWSC 1018

[2002] NSWCCA 280

[2000] NSWSC 972

[2000] NSWCCA 359

[2001] NSWCCA 476

[2002] NSWCCA 50

[2002] NSWCCA 359