Consideration
88A number of general observations may be made about questions 1 and 2. They are as follows:-
(1)Both questions can be seen as related in that they sought information on the subject as to whether there existed ethical restrictions on what counsel may put forward as being true when counsel knew that to do so would be putting forward material he/she knew to be untrue.
(2)Question 2, following the trial judge's response and directions on question 1, was framed in terms that gave it a more detailed or precise focus on the issue that had been expressed in very broad terms in question 1.
(3)Questions 1 and 2, taken together, indicate that they were related to matters that defence counsel had put forward in cross-examination of the complainant based on the proposition, inherent in the questioning, that the sexual intercourse had been consensual.
(4)The phrase in question 1, "Mr Brady make statements" and the expression in question 2, "Mr Brady, when suggesting consent had been given ..." when considered in context, could only have been referring to suggestions or "statements" (or more accurately, propositions) made by way of questions put by Mr Brady to the complainant in the course of his cross-examination.
89As the discussion between the trial judge and counsel indicates both questions 1 and 2, insofar as they focussed on counsels' ethical obligations, were somewhat unusual and were seen to be such. However, the questions, nonetheless, clearly related to the central issue in the trial, namely, the issue of consent or absence of consent.
90Ground 1 asserts error in the trial judge's directions concerning the application of the rule in Browne v Dunn. Ground 1, can, in my opinion, be seen as including an issue as to the point raised by the Crown Prosecutor, namely, that Mr Brady had not put to the complainant in cross-examination that she had used her feet to remove the applicant's pants. Ground 1 effectively asserts that the claimed misdirection is inextricably linked to that point.
91Whilst Ground 1 invokes the rule in Browne v Dunn, it is clear from the cross-examination that Mr Brady did put to the complainant the proposition that she had helped push down his pants. The failure to expressly put that she did so by the use of her feet related only to the means by which she allegedly did so. Such failure, in my opinion, would not have constituted a breach of the Browne v Dunn rule. The rule is one which essentially provides that a party is obliged to give appropriate notice to the other party, and any of the person's witnesses, of any imputation that the former intends to make against either of the latter about his or her conduct relevant to the case, or a party's or a witnesses' credit: MWJ v Regina (2005) 80 ALJR 329 per Gummow, Kirby and Callinan JJ at [38]. Mr Brady put the issue of the complainant's alleged action of pushing down the pants squarely to her which, of course, she denied. The means by which she did so was an incidental matter only.
92An issue raised by Ground 1, in my opinion, is that, the Crown, having put to the applicant in cross-examination the point that no suggestion had been made in cross-examination of the complainant that she had used her feet in the manner described, was a matter that could only have been relevant to a submission by the Crown of recent invention. However, in the event, as earlier stated, the Crown did not make any such submission.
93In the circumstances, at the time questions 1 and 2 were being dealt with (if not before then), the Crown, in my opinion, ought to have made it unambiguously clear that no point or criticism (including a submission as to recent invention) would be made by the Crown in relation to the failure by Mr Brady to put a question to the complainant as to her having used her feet to pull down the jeans. The jury should, accordingly, have been informed of that when the trial judge gave directions in relation to question 2 and the jury told that accordingly no significance whatsoever should attach to that matter.
94The Crown having put to the applicant that the complainant had not been cross-examined on the matter in question, Mr Brady, understandably responded in re-examination by obtaining evidence from the applicant that he had, in fact, given instructions on that very matter prior to the trial.
95Questions 1 and 2 indicate that one or more jurors were seeking instructions on "statements" or "suggestions" (or more accurately, propositions made in questions put to the complainant by Mr Brady) on matters relevant to the question of consent or absence of consent, particularly, those matters which the defence contended indicated consent by the complainant. The jury, in my opinion, ought to have been told that the re-examination of the applicant on the point had been rendered necessary by the issue having been raised by the Crown, but that, in fact, the issue was no longer one of any significance in the trial.
96The trial judge's directions in relation to question 2, in other words, should, in my opinion, have expressly and directly dealt with the matter in a way which would have taken the failure to cross-examine the complainant on the above issue completely out of consideration. The imprimatur of the trial judge given to a statement by the Crown that the failure to cross-examine on the matter was of no significance would have reinforced that point.
97That not having been done, I consider that the directions were deficient and therefore constituted a serious misdirection.
98The directions that were given by the trial judge left as an issue for the jury's determination whether Mr Brady's failure to cross-examine on the removal of the jeans was an oversight or not. However, that was not an issue within the capacity of a jury to determine. The fact is, of course, that there may be different reasons behind the failure to raise a matter in cross-examination. The trial judge should, in answering question 2, have emphasised that oversights by counsel do occur during a trial and that that is what did happened in this case. That would have brought the matter to an end. The observations made in RWB (supra) by Simpson J at [101] are important in this respect. There, her Honour observed:-
"These authorities make it very plain that a trial judge should exercise great caution in directions to the jury concerning the failure of an accused's counsel to comply with the rule in Browne v Dunn. Browne v Dunn is an ancient and useful rule of practice and casts a considerable burden of care on counsel. But counsel are fallible and more than one inference may be drawn from non-compliance with the rule. Opposing counsel will always suggest that the only, or the proper, inference is that the client (or witness) failed to include the contentious matter in his/her instructions or statement. But the reality is that that is far from the only available inference, and it may be, and often is, quite unfair to suggest to a jury that that is the only inference, or the inference that they should draw."
99It is clear not only that Mr Brady had, in fact, received written instructions from the applicant about the removal of the jeans issue prior to cross-examination of the complainant, but also that the Crown accepted that there had been an oversight.
100The misdirection in relation to question 2 was an important one. It went directly to the issue of the applicant's credibility, a matter that was central to the question which the jury had to decide, namely, whether the sexual intercourse was consensual or not.
101It was properly observed that no objection was taken to the direction nor any discharge of the jury sought and that, therefore, an issue arises as a result of the operation of the Criminal Appeal Rules 1952, Rule 4. By Rule 4, no direction, omission to direct, or decision as to the admission or rejection of evidence given by the trial judge presiding shall, without the leave of the Court, be allowed as a ground of appeal or an application for leave to appeal unless the objection was taken at the trial to such direction, omission or decision.
102Mr Averre, of counsel who appeared on behalf of the applicant, contended that leave under Rule 4 should be granted as there was and could be no forensic reason for counsel at the trial not asking for a re-direction or discharge of the jury.
103I consider that this is a case in which Rule 4 has no application. Questions 1 and 2 raised by the jury were highly unusual and it is clear that they posed difficulty for the trial judge, the learned Crown Prosecutor and defence counsel in determining how the questions should be dealt with. In the particular circumstances of this case in which I have concluded that a substantial injustice arose from the misdirection concerning question 2, this is not a case in which Rule 4 should be applied.
104In those circumstances, on the basis that leave to appeal is granted, the question arises as to whether or not the proviso to s.6(1) of the Criminal Appeal Act should be applied.
105On the basis of the error and the directions given in relation to question 2, I consider that there was a miscarriage of justice. Section 6(1) of the Criminal Appeal Act provides that the Court may, notwithstanding that it is of the opinion that the point or points raised by the appeal might be decided in favour of the appellant, dismiss the appeal "... if it considers that no substantial miscarriage of justice has actually occurred" .
106The provisions of s.6(1) are, of course, to be applied in accordance with the principles governing the statutory task arising in the application of the proviso to the section: Weiss v Regina (2005) 224 CLR 300.
107In its written submissions, the Crown contended that, in considering the application of the proviso, this Court should make its own independent assessment of the evidence and determine whether the guilt of the applicant has been demonstrated beyond reasonable doubt upon a consideration of the whole of the record, including the verdict of the jury: Weiss (supra); RWB (supra) at [133] to [134].
108The Crown submitted that the Court would be satisfied beyond reasonable doubt of the guilt of the applicant. In support, it referred to a number of matters set out in paragraph [69] of the Crown's written submissions. In summary, these were:-
(1)The circumstance that there was little divergence between the Crown case and that of the applicant except upon the central issue in dispute, namely, consent.
(2)The relatively high degree of coherence of the evidence in the Crown case upon that central issue, particularly that of the complainant and the support for that evidence provided by her contemporaneous complaint to her friends and her contemporaneous state of distress witnessed by those friends.
(3)The evidence of the complainant that she would not have had a consensual intercourse with the applicant because, inter alia, she was at the end of her menstrual period and, in that respect, the evidence of Dr Hamilton.
(4)The implausibility of aspects of the account of the applicant that sexual intercourse occurred:-
(a)in a room adjacent to his own when her friends, Amy and Timothy, were close by outside and expected to return imminently;
(b)the complainant, in her heavily intoxicated condition, had managed to slide his jeans down by pushing them down with the soles of her feet;
(c)the complainant's distress;
(d)the immediate complaint to the complainant's friends, Amy and Timothy that she had been raped.
109There are, I consider, two issues to be considered in this case. Firstly, the nature of the failure to properly instruct the jury by way of answer to question 2. Secondly, whether the misdirection was a matter that went to the fairness of the trial in a fundamental way.
110The jury's question (question 2) carried with it a significance that went well beyond the omission by counsel for the accused to raise one aspect of a factual matter relied upon by the defence.
111The Crown, having drawn attention to the failure by the applicant's counsel to cross-examine the complainant on that aspect and that having been left for the jury to use in its consideration of the evidence, the jury (as indicated by its questions) were left to evaluate the truthfulness or veracity of the applicant by reference, amongst other matters, to his counsel's conduct of the cross-examination of the complainant.
112For reasons earlier stated, the jury should not have been permitted to venture into, or to undertake an evaluation of that kind. The directions given by the trial judge by way of answer to the jury's question did not inform the jury that that issue was of no significance whatever in the trial. That omission or failure was compounded by the trial judge's direction which, in effect, left it to the jury to determine whether any omission or failure by counsel to cross-examine the complainant on the matter in question had arisen by reason of counsel's oversight, as distinct, for example, from indicating counsel's disbelief of his own client. This, of course, as earlier stated was an exercise which it was impossible for the jury to resolve.
113The erroneous directions by way of answer to question 2, accordingly, left the jury in the position whereby the determination by them of the applicant's credibility could turn upon their determination of what was or had become, in effect, a false issue. In other words, the function of the jury to fairly and properly determine the issue concerning the applicant's credibility overall was, in my opinion, seriously impaired by the failure to properly and adequately answer and direct the jury in relation to question 2.
114I do not consider that it could be said that the jury in this case would have inevitably convicted the applicant but for that misdirection.
115Relevant authorities establish that, where there has been a departure from the requirement of a properly conducted trial, it cannot be said that there has been no substantial miscarriage of justice if the applicant has thereby lost "a chance which was fairly open to him of being acquitted" , to use the phrase of Fullagher J in Mraz v Regina (1955) 93 CLR 493 at 514 or "a real chance of acquittal" , to use the phrase of Barwick CJ in Regina v Storey (1978) 140 CLR 364 at 376.
116In Wilde v Regina (1987-1988) 164 CLR 365 at 372, Brennan, Dawson and Toohey JJ observed:-
"... Unless it can be said that, had there been no blemish in the trial, an appropriately instructed jury, acting reasonably on the evidence properly before them and applying the correct onus and standard of proof, would inevitably have convicted the accused, the conviction must be set aside ... Unless that can be said, the accused may have lost a fair chance of acquittal by the failure to afford him the trial to which he was entitled, that is to say, a trial in which the relevant law was correctly explained to the jury and the rules of procedure and evidence were strictly followed: see Mraz v Regina ... The loss of such a chance of acquittal cannot be anything but a substantial miscarriage of justice."
117Applying the principles enunciated in Weiss (supra), I am of the opinion that in this case it is not possible to say, notwithstanding the misdirection on question 2, that the jury would inevitably have convicted the applicant. Accordingly, in my opinion, the proviso cannot be applied in this case.