She says that the event took initially ten minutes and then five to ten minutes. It is a matter to you to make an assessment but the Crown suggests that you would have some grave doubts in relation to the reliability of her evidence.
71 Counsel appearing for Mawas at the trial spent some time in his final address basing submissions on the quality of the evidence given by Mrs Zahabe. He said that she had not been shown to have any reason to lie or to deceive the jury in any way. In expressing the importance of her evidence, he said:
Ngaari Zahabe of all of the eye witnesses is the most important for these reasons, and in my submission to you she gave evidence in a way which was clearly a woman speaking from her observations and speaking without doubt as to who she had seen and, most importantly, quite clearly, that she had not recognised any of the men she knew and they were not involved.
72 Counsel appearing for Kanaan at the trial in his final address specifically took up the remarks of the Crown prosecutor. He told the jury that the Crown did not want them to accept the evidence of Mrs Zahabe because her evidence destroyed the Crown case - it was "poison" to the Crown case, and it had left its case "in tatters", he said. Yet, he pointed out, the Crown prosecutor had never suggested to Mrs Zahabe that she was "hiding the truth" or had "got it wrong", and he had left her evidence uncontested. Counsel suggested to the jury that the Crown had instead attempted in a roundabout way to make out that her evidence was a "put-up job", when it was clear and uncontested. Her evidence of non-recognition, he said, was just the same as the recognition evidence given by Laycock when he said he saw Mawas shooting into the vehicle. Her evidence, it was submitted, told the jury a great deal, and it had the effect that the identification evidence on which the Crown relied left many questions unanswered, questions which should trouble them.
73 Counsel for El-Assaad made no reference to the Crown prosecutor's address, no doubt as El-Assaad was not, on the Crown case, one of the shooters. Mrs Zahabe had not identified El-Assaad as the man who, on the Crown case, subsequently went down to the motor vehicle to remove the deceased's mobile telephone. However, she was not present at the relevant time.
74 No complaint was made on behalf of any of the appellants at the trial concerning the Crown prosecutor's address in relation to Mrs Zahabe. In his Summing-up, the judge reminded the jury of the submissions made by counsel for Kanaan - that the basis of the Crown prosecutor's argument that Mrs Zahabe "had got it wrong" had not been put to her when she gave her evidence. The judge was not asked to give any further directions on this issue.
75 It was submitted on appeal that the remarks by the Crown prosecutor were unfair, in that they clearly invited the jury to conclude that the evidence of Mrs Zahabe, his own witness, was not truthful. The Crown prosecutor, it was submitted, should have made it clear when Mrs Zahabe gave her evidence that the Crown challenged her negative identification, and by not doing so denied her (and the appellants) the opportunity to explain or to qualify the matters raised by the Crown prosecutor in his final address: Browne v Dunn (1894) 6 R 67 at 70-71, 76-77, 78-79.
76 The report of Browne v Dunn is not readily available and, at the invitation of the appellants, reference is made to Allied Pastoral Holdings Pty Ltd v Commissioner of Taxation [1983] 1 NSWLR 1 at 16-23 (Hunt J) in which Browne v Dunn and the decisions which have followed it are fully discussed. That discussion has been referred to with approval in a number of appellate decisions: Archer v Richard Crookes Construction Pty Ltd (BC9705329), Court of Appeal, 22 October 1997, at 7; Flower & Hart v White Industries (Qld) Pty Ltd (1999) 87 FCR 134 at 148 (Full Federal Court); Regina v Pye [2000] NSWCCA 544 at [54]; Southern Area Health Service v Brown [2003] NSWCA 369 at [102]-[103]; Markem Corporation v Zipher Ltd [2005] EWCA Civ 267 at [57]-[61] (English Court of Appeal); and Townsville City Council v Chief Executive, Department of Main Roads [2005] QCA 226 at [54]. See also Seymour v Australian Broadcasting Commission (1977) 19 NSWLR 219 at 224-225 (Court of Appeal) and Regina v Birks at 689-690 (Court of Criminal Appeal).
77 The Crown has disputed that any "positive assertion" was made by the Crown prosecutor that Mrs Zahabe should not be believed. That is so, but his intention is not relevant in this appeal, nor is the appellants' allegation that his conduct was improper. It is the effect of the Crown prosecutor's conduct, not its propriety, which may cause a miscarriage of justice: TKWJ v The Queen at [25], [79], [97], [101], [107]-[108]; Nudd v The Queen [2006] HCA 9 at [10]-[19], [24], [64], [68], [157]. The relevant issues in this case are how those submissions by the Crown prosecutor would have been interpreted by the jury, whether that interpretation prejudiced the appellants (either procedurally or otherwise), and whether that prejudice resulted in a miscarriage of justice.
78 Notwithstanding the care with which the Crown prosecutor appears to have formulated his submissions to the jury concerning Mrs Zahabe, those submissions, in our opinion, would inevitably have been interpreted by the jury as an invitation to disbelieve her evidence. It is difficult to see how his remarks could have been understood in any other way. The final address by counsel for Kanaan obviously sought to meet the submissions by the Crown prosecutor as an attack on the truthfulness of his own witness. The judge in his summing-up described the Crown prosecutor's remarks as having been directed to the credibility of Mrs Zahabe and as suggesting that her evidence was improbable. The Crown prosecutor made no objection that this had not been his intention.
79 The references by the Crown prosecutor to the witness's familiarity with the three accused - in themselves quite justifiable in the context of dealing with her evidence - may well also have been understood by the jury in the context of that invitation as a suggestion of bias on her part in favour of the accused. The reference to the men pulling out guns in a brightly lit area could have been understood by the jury as a suggestion that it was unlikely that the shooters would have done so in such an area. The repeated reference to the imprecision of the time Mrs Zahabe said she observed the three men may have been understood as another attack on the truthfulness of her evidence. It was claimed on appeal that the Crown prosecutor's address may also have been interpreted as a suggestion that Mrs Zahabe was exaggerating the time she had been watching the three men in order to give her own evidence greater credibility, but it is doubtful that the jury would have reached that particular conclusion unaided.
80 Before turning to what the Crown prosecutor should have done before attacking the credit of his own witness, it is important to emphasise that the Crown does not warrant the truthfulness of its witnesses, and it is not obliged to embrace and accept whatever the witnesses say: Regina v Le (2002) 54 NSWLR 474 at [68]. That is because the Crown has the obligation to present its case conformably with the dictates of fairness to the accused: Richardson v The Queen (1974) 131 CLR 116 at 119. That obligation is imposed on a Crown prosecutor as an incident of his or her position as a "minister of justice": Regina v Puddick (1865) 4 Foster & Finlayson 497 at 499 [176 ER 662 at 663]. See also Regina v Thursfield (1838) 8 Carrington & Payne 269 at 269-270 [173 ER 490 at 491-401]. It is the usual practice in criminal trials that, subject what is said in the following paragraph of this judgment, the Crown accepts an obligation to call witnesses whose evidence is relevant to the Crown case when requested by the accused to do so. When doing so, the Crown prosecutor is always entitled to say to the jury that the Crown has not put that particular witness forward as a witness of truth. The Crown's obligation to call such witnesses has been stated more firmly in Regina v Le at [68]. (The duties of a Crown prosecutor are discussed in an address to the Student's Union of the Inns of Court in 1955, by the then Senior Prosecuting Counsel at the Old Bailey in Great Britain, Mr Christmas Humphreys, of which a shortened version has been published under the title "The Duties and Responsibilities of Prosecuting Counsel" in [1955] Crim LR 739.)
81 In determining whether such a witness should be called by the Crown, rather than leaving it to the accused to do so, the Crown prosecutor - at least where the evidence of that witness is central to the unfolding of the Crown case - may take into account, inter alia, the credibility and truthfulness of the evidence to be given by that witness and whether in the interests of justice it should be subjected to cross-examination by the Crown: Richardson v The Queen at 119. The Crown prosecutor's decision has been described as a lonely but also a heavy one: The Queen v Apostilides (1984) 154 CLR 563 at 576-577. A refusal to call a particular witness within this category may be justified only by reference to the overriding interests of justice; such occasions are likely to be rare. The unreliability of the evidence will be a sufficient basis for a refusal to call the witness only where there are identifiable circumstances which clearly establish such unreliability; it will not be enough that the prosecutor merely has a suspicion that the evidence to be given by the witness will be unreliable: Ibid at 577. In order to avoid any suggestion that a tactical advantage is sought by not calling a particular witness, it is advisable for the Crown prosecutor to confer with the witness to form an opinion as to the witness's reliability: Regina v Kneebone (1999) 47 NSWLR 450 at [49]-[53].
82 No basis on which the Crown prosecutor could have refused to call Mrs Zahabe has been suggested in this appeal. But the Crown's obligation to call all relevant witnesses even where their evidence does not support the Crown case does not deny the Crown prosecutor the opportunity to discredit the evidence of a Crown witness.
83 Section 38 of the Evidence Act abrogated the common law relating to hostile witnesses, by enabling a party calling a witness to obtain leave to question his own witness as though cross-examining that witness about evidence which is unfavourable to that party - in order, for example, to establish that the witness has made a prior inconsistent statement. The word "unfavourable" means merely "not favourable", and it is no longer necessary for the party seeking leave to demonstrate that either the witness or the evidence given is hostile to that party: Regina v Souleyman (1996) 40 NSWLR 712 at 715; or that the unfavourable evidence was unexpected: Regina v Adam (1999) 47 NSWLR 267 at [99]. Leave to cross-examine, once granted, does not permit the Crown to undertake a general cross-examination; it is restricted initially to the ground on which leave was granted: Regina v Le at [55]. However, it may range more widely: Ibid at [59], [63]. In the present case, for example, it would have permitted not only cross-examination on any prior inconsistent statement made by Mrs Zahabe in order to prove that the prior statement was true and that the evidence given was false, and also to suggest that bias in favour of the appellants was the reason for the inconsistency: Ibid at [67].
84 The greater availability of cross-examination of a Crown witness by the Crown prosecutor pursuant to s 38 has obviously placed more emphasis on the Crown's obligation to call witnesses whose main relevance is the availability of their evidence unfavourable to the Crown case. Section 38 is living up to its potential for transforming the traditional procedure in criminal trials: Regina v Parkes (2003) 147 A Crim R 450 at [81], [141]. In Regina v Ronen [2004] NSWSC 1298 at [32], Whealy J observed that the increasingly common use of s 38 has often demonstrated its value in getting to the truth of the matter, although great care must be taken to ensure that the trial does not become side-tracked by a collateral issue carrying with it the real possibility of prejudice to the accused. That observation was correct, but attention is drawn to the accepted interpretation of "unfairly prejudicial" in ss 135-136 and of "unfair prejudice" in s 137, that prejudice to the accused is not unfair merely because the evidence tends to establish the Crown case: Regina v BD (1997) 94 A Crim R 131 at 139; Papakosmas v The Queen (1999) 196 CLR 297 at [29], [91], [98].
85 Where the Crown prosecutor fulfils such an obligation, it would be unjust to the Crown (which prosecutes on behalf of the community) to refuse leave to cross-examine in relation to the unfavourable evidence given, subject of course to the usual discretions such as provided by s 137 of the Evidence Act: Regina v Milat (BC9607720), Hunt CJ at CL, 23 April 1996, at 5-6. (See Evidence Act, s 192(2).) Leave must also be sought to cross-examine the witness about matters "relevant only" to the witness's credibility: s 38(3); and it should be noted that the credibility of a witness includes the witness's ability to observe or remember facts about which the witness has given evidence (that is, the reliability of his evidence): Evidence Act, s 3 Dictionary. In the present case, however, leave would not have been needed pursuant to s 38(3) for that particular purpose, because the prior statement made by Mrs Zahabe said to be inconsistent with her evidence was also relevant to a fact in issue, the identification of the men involved in shooting the deceased. To that statement we will turn shortly.
86 The evidence of the Crown witness in Adam v The Queen (2001) 207 CLR 96 giving rise to the application by the Crown prosecutor in that case to cross-examine him was similarly negative identification evidence (see [14] and the more detailed description given by Gaudron J in her dissenting judgment at [44]). It was treated by the High Court as evidence unfavourable to the Crown case. Leave had been granted to cross-examine the witness in relation to the inconsistent statement he had made to the police when first interviewed, which was directly relevant to the Crown case against the person whom the witness had identified when so interviewed. It was thus not "relevant only" to the credibility of the witness (see [36]), and it was held to be admissible pursuant to s 60 to prove the truth of what a witness had said to the police when interviewed (see [38]-[39]). It was also held that the grant of leave to the Crown to cross-examine the witness was not unfair to the appellant (see [29]-[30]). That case is clear authority that evidence of the nature given by Mrs Zahabe in the present case may properly be described as unfavourable to the Crown case.
87 How then would the Crown prosecutor have fared in an application to cross-examine Mrs Zahabe based on a prior inconsistent statement? Such a statement is said to have been made in the evidence she gave before the Crime Commission on 25 October 1999, some ten months after the shooting. This evidence was placed before the judge. The Crown had given notice to the appellants that an application would be made pursuant to s 38 (see s 38(6)(a)), presumably based on that evidence, and the matter was raised briefly before Mrs Zahabe gave evidence. The judge observed that, at that stage, he did not see that Mrs Zahabe was "unfavourable". The Crown prosecutor submitted that the evidence she had given before the Crime Commission was inconsistent with the evidence he expected her to give in the trial. If that submission was accurate, that in itself would be sufficient basis for leave to be granted pursuant to s 38 when that evidence has been given. It was agreed that the application should be raised again in the light of the evidence which was actually given.
88 The Crown prosecutor did not take the matter any further at the conclusion of Mrs Zahabe's evidence in chief, and the judge was not asked to assess the evidence before the NSW Crime Commission in the light of the evidence she had given in the trial. It is therefore necessary for this Court to undertake the task which the judge should have been asked to undertake.
89 Mrs Zahabe was questioned for some time before the Crime Commission. She told the Commissioner she saw the three men who subsequently ran to the deceased's motor vehicle when they were at the front of the unit block in Surry Hills, after she had seen both her husband and the deceased come out of that building. She said that, when she first saw the three men, she did not recognise them. Nor did she recognise them when they approached the deceased's motor vehicle. She had seen their faces "briefly" at that stage. Mrs Zahabe said that she recognised four of the men subsequently shown to her by the police in an identification video - Kanaan, Mawas, El-Assaad and the man named Eddie - and she said that she did not recognise any of them as having had anything to do with what she had seen of the shooting. She added that she had also recognised Rossini on the police identification video, but she was not asked whether she had seen him that night.
90 Mrs Zahabe was asked whether she had seen the faces of all three men or just the face of one of them. Her answer was "probably all of them, yes". She was told that the Crime Commission had evidence to suggest that two of the four men she had identified on the identification video had been the men who approached the deceased's motor vehicle. Her reply was:
Well, I couldn't - um - I mean, I could only give you a des … - a description of them but, you know, whether they looked different at the time, I don't know.
She said that she "didn't recognise them at all", and she repeated that statement twice. The questioning continued:
Q. What we're now asking you is, whether you can say that the people you saw on the street were not those four people [she had recognised on the identification video], or you can't say one way or the other? A. Well I can't say that it - it was them or it wasn't, I suppose, 'cause I - that's the only description I could give but when I saw them on the video tape they didn't look anything like what I saw, when I saw them on the video tape.
Q. When you say they didn't look like anything that you saw, you meant - you mean, do you, the people you saw on the video didn't look anything like the people you saw on the street? A. On the street, yep.
91 She said that she knew what Kanaan looked like and that she was able to identify him from the identification video, but she did not recognise him as one of the people on the street that night. The evidence continued:
Q. Yes. But are you able to say that one of the people on the street that night was - was definitely not Mr Kanaan or you can't say one way or the other? A. Can't say one way or the other.
Q. I see. And is that true of the others, that you can't say that Mr Mawas wasn't there or Mr El-Assaad wasn't there or Mr whoever Eddie is wasn't there? A. No, I can't say one way or the other.
92 Mrs Zahabe was asked whether she had told the police when shown the identification video that she was "sure" that Kanaan, Mawas, El-Assaad and Eddie were "not" the people who were on the street or whether she had told them "what you told us here today". Her reply was:
"No. I told them that they weren't. That they were not the people that were on the street.
Q. So which is different to what you're telling us now? A. Yes. Because I was - well, I was sure then but, I mean, who - well, I'm sure that they're not the people otherwise I would've recognised them, they would have stuck out, but, you know, if maybe they looked different on the night I'm - I don't know I can only go on what I described.
93 Mrs Zahabe said that her husband had told her to tell the truth, and she denied that he had suggested to her that it would be better not to identify the people on the street. She said that no one had made that suggestion to her. Mrs Zahabe was also questioned about a number of other matters. For example, she said that only one of the three men appeared to be facing her and this was only for "probably seconds", and that they did not have their faces directly facing her. The last evidence Mrs Zahabe gave as to her negative identification was as follows:
Q. So, you're saying that you can't make a positive identification either way, you can't exclude the four persons whom the Commissioner and Mr O'Connor have named, you can't exclude those from … A. No, I can't.
Q. … being the persons there? A. No.
Q. And you can't say for sure that it was them? A. Nah.
94 It is reasonable to discern from that evidence that Mrs Zahabe was attempting to make three interrelated points - (a) her previous negative identification of any of the appellants as being one of the three men who were involved in the shooting may have depended on the fact that the men she saw in the street "looked different" at the time (whether that meant merely depended was not investigated), (b) at the time she spoke to the police eleven days after the shooting she was sure that the men she saw on the identification video were not the men she had seen in the street, and (c) some ten months later she was unable either positively to exclude the appellants as having been there or to say for sure that it was them there.
95 If the Crown prosecutor had thought to ask Mrs Zahabe when she gave her evidence in the trial how confident she was that none of the appellants was one of the three men involved in the shooting - a permissible question in the evidence-in-chief of an identification witness - and if she had expressed confidence in her negative identification, there is no doubt that what she had said before the Crime Commission was inconsistent with that evidence. In our opinion, however, and even without such a question being answered in that way, if the s 38 application had been renewed it should have been granted in the light of the evidence she gave in the trial. There is no question here of a fishing expedition if the Crown were permitted to cross-examine. Even though a negative identification arises even where there is merely a reasonable possibility that the person identified was not the accused, her evidence in the Crime Commission was relevant to the weight to be given to the evidence Mrs Zahabe gave in the trial - as demonstrating that the apparent confidence with which her evidence in the trial was given was not wholly consistent with the evidence she gave before the Crime Commission. Cross-examination by the Crown would, in our opinion, have been justified in these circumstances.
96 The next issue is whether the Crown prosecutor's infringement of the rule in Browne v Dunn prejudiced the appellants. The course followed by the Crown prosecutor may well have created some unfairness to Mrs Zahabe as a witness, but any such unfairness would be cured by a complaint being made against the Crown prosecutor before the appropriate professional disciplinary tribunal. It is impossible to see how such unfairness to the witness in this case could affect the fairness of the trial so far as the appellants are concerned. The issue is, rather, whether the appellants were directly prejudiced by the Crown prosecutor's conduct (see par [77] supra).
97 Counsel for Kanaan, in his final address, firmly but fairly criticised the Crown prosecutor's failure to challenge the evidence of Mrs Zahabe as being either untrue or mistaken - despite his claim in an affidavit filed in the appeal that he was not aware of the rule in Browne v Dunn. The judge drew attention to this criticism in his summing-up. He specifically referred to what counsel for Kanaan had said in relation to (a) the issue of Mrs Zahabe's truthfulness, (b) the suggestion that she had got it "wrong", and (c) by allusion to there being "no secret liaison" between the witness and the accused, the issue of bias. Counsel for Mawas, in his final address, pointed out in some detail how the evidence of Mrs Zahabe contradicted the evidence of Peter Laycock, the only other witness who knew the accused and who witnessed the shooting. His submission was based mainly on the descriptions of the clothing the men wore and whether they were of Islander appearance. The judge also drew attention to this criticism in his summing-up.
98 Did the Crown prosecutor's failure to challenge Mrs Zahabe's evidence prevent the defence from calling other evidence or eliciting from her in cross-examination further evidence in order to rebut the challenge that should have been made? No such evidence has been identified by the appellants. Counsel having the conduct of this issue on the appeal, when asked what evidence could have been called, replied "Who knows?". It certainly has not been suggested that this was a case where - as in Cullen v Ampol Petroleum Ltd (Court of Appeal, 20 October 1970, unreported), discussed in Allied Pastoral Holdings Pty Ltd v Commissioner of Taxation at 19-20 - there was a great deal of specific evidence which could have been given if notice of the attack on the evidence of Mrs Zahabe had been given by the Crown prosecutor.
99 It was submitted in this appeal that, whilst defence counsel may have anticipated that the Crown prosecutor would submit to the jury that the evidence of Mrs Zahabe was mistaken (as it was conceded he was entitled to submit), it could not have been anticipated that the Crown prosecutor would allege in his final address without warning that her evidence was untruthful. That may be so, but defence counsel at the trial knew what evidence Mrs Zahabe was to give - including the negative identification evidence, as the existence of that evidence was made clear in her statement dated 6 January 2000. The trial took place in the middle of 2002. That evidence was of vital importance to their case. At the stage of their preparation for trial, defence counsel must clearly have anticipated that the Crown would either seek to cross-examine Mrs Zahabe on the basis that her evidence was untrue or submit to the jury that her evidence was mistaken.
100 Whether or not the decision not to go into evidence had already been taken at the preparation for trial stage, defence counsel should have been ready before the trial to ensure that, whichever of those courses the Crown prosecutor followed, the evidence of Mrs Zahabe was strengthened in every way possible when cross-examining her. According to the unchallenged evidence, Mrs Zahabe's husband was an associate of the three accused and they were acquainted with her, and it is incontrovertible that, if there had been any material which would have supported her evidence as being both accurate and truthful, they should have been in a position at the trial to lead it from her in cross-examination. Despite the failure by the Crown to challenge her evidence, that material (if it were available) would still have been used to support her evidence, again because of the apparent importance of the negative identification she made. It is safe therefore to assume - from the "Who knows?" response by counsel for the appellants and from the absence of any such material in cross-examination at the trial - that there was no material which could have been either led or raised in cross-examination had the Crown prosecutor challenged Mrs Zahabe's negative identification as the rule in Browne v Dunn required.
101 Nor is it suggested that the jury would have drawn any inferences adverse to the appellants from the Crown prosecutor's conduct. The Crown prosecutor's opening address made it clear to the jury that he was going to lead direct evidence establishing that Kanaan and Mawas were two of the three men involved in the shooting, from the witnesses Rossini and Peter Laycock. The jury is unlikely, therefore, to have assumed that the Crown had also adopted the evidence of Mrs Zahabe, and they would not have been surprised when the Crown prosecutor challenged her evidence of negative identification in his final address.
102 No direction was sought at the trial to cure the position which had arisen due to the Crown prosecutor's failure to comply with the rule in Browne v Dunn. Counsel for Kanaan may have been ignorant of the existence of that rule, but it has not been suggested that counsel for the other two accused were similarly ignorant. The appellants have now identified two directions which should have been given. The primary submission is that the judge should have directed the jury to ignore the Crown's submission that Mrs Zahabe was untruthful. In the alternative, it is said, the judge should have directed the jury that the witness had been denied the opportunity to show her mettle under cross-examination and that the defence had been denied the opportunity to ask her questions in cross-examination designed to support her credibility or to call other evidence to support her evidence.
103 If a tribunal of fact rejects evidence which has not been challenged, the rejection of that evidence may be described as unfair, or even perverse: Poricanin v Australian Consolidated Industries Ltd [1979] 2 NSWLR 419 at 426. A direction along the lines of the appellants' primary submission may therefore be appropriate in some cases. But in other cases such a direction would be tantamount to directing the jury that it would be unfair to reject the evidence of the particular witness merely because it had not been challenged. Whether it would be unfair to reject the evidence must depend on the circumstances of the particular case. As the Crown prosecutor would have been entitled to say to the jury in the present case that the Crown did not put Mrs Zahabe forward as a witness of truth, and as there was circumstantial evidence from Rossini and direct evidence from Peter Laycock that the three accused were involved in the shooting, such a direction would not have been appropriate in this case.
104 The alternative direction now identified by the appellants, insofar as it suggests that the defence had been denied the opportunity to support Mrs Zahabe's evidence either in cross-examination or by calling independent evidence, would ordinarily have been an appropriate one in the circumstances. However, no such direction was sought at the trial, and there is no ground of appeal directed to the failure to give one. Rule 4 of the Criminal Appeal Rules would require leave to be granted before such a ground of appeal could be argued, and leave would not be granted unless it could be demonstrated by the appellants that the omission to give such a direction led to a miscarriage of justice: see par [156] infra. To suggest that the failure to give the alternative direction in the present case gave rise to a miscarriage of justice ignores the reality of this trial, which necessarily dictated that the defence ensure that such support be given in any event. It could hardly be described as a miscarriage of justice when - for the reasons already given - it has not been shown that appellants could have cross-examined Mrs Zahabe or led evidence in order to support her evidence.
105 We do not accept that the prejudice claimed by the appellants in the present case in relation to the Crown prosecutor's failure to comply with the rule in Browne v Dunn was of such a nature as to amount to a miscarriage of justice. Indeed, the appellants would in our view have been far worse off had Mrs Zahabe been cross-examined by the Crown, because that cross-examination would have demonstrated that the apparent confidence with which her evidence-in-chief was given was false, it would necessarily have revealed the interest in the shooting by the Crime Commission, and it would have given emphasis to the relationship she and (particularly) her husband had with the appellants and thus to the suggestion that her evidence was biased in their favour.
106 Ground 2(a) is rejected.