(c) impugned statements of prosecutor
39Returning to the primary submission, it is necessary to refer to the passages relied upon by the applicant as demonstrating that a miscarriage had occurred.
40The complaints about the prosecutor's address ranged across a number of different issues. The primary complaint, however, was that the prosecutor purported to tell the jury, on the basis of his experience and expertise, that children, generally, can be relied upon to tell the truth. Thus he said at Tcpt, 03/09/12, p 4(10):
"A great many people would have difficulty accepting a child's word over an adult saying that they are wrong. No[w] there is no evidence in the trial and as far as the Crown knows, no evidence at all that children are any more or less likely to tell lies on their oath in a court. [SG] and [TG] are nine. Some people would say well, kids fantasise. The Crown says to you that you know, you know, from your own childhood from your children or grandchildren, that kids know the difference between their fantasies and what happened to them in real life."
41Subsequently, in dealing with the police interviews with the complainants, the prosecutor noted that some questions were repeated and asserted that "it is dangerous to repeatedly ask little kids the same question because they get the impression they've given you the wrong answer and will change it": Tcpt, p 12(25). In fact, SG did not change her answers: this, the prosecutor said, indicated that SG "was a very honest witness": Tcpt, p 12(40).
42Referring to the apparent consistency of her answers in cross-examination the prosecutor submitted, at some length, that SG came through "unscathed" which was "a difficult thing", given the length of the questioning: Tcpt, p 13(35)-(45). The prosecutor further stated (Tcpt, p 13(20)):
"In the Crown's respectful submission to you it would be within your knowledge of children that well and truly exceeded her attention span, which is about 20 or 30 seconds. But in any event she said there, she did her best, she listened [to] those questions and she agreed with them because there isn't any dispute."
43These passages may be assessed together. Given the relative brevity of the trial, the prosecutor's address was somewhat prolix and, to an extent, argumentative. There is no doubt that the prosecutor was entitled to identify circumstances which tended to demonstrate the reliability and credibility of the complainants; that included a consideration of the statements made in the police interviews and the effectiveness or otherwise of the cross-examination. However, it was not appropriate for the prosecutor to purport to call in aid his own experience with children giving evidence in court to suggest that children were or were not generally truthful. Such statements were inappropriate for two reasons: first, the task of the jury was to consider, against their general experience, whether these particular complainants were telling the truth and were reliable in the evidence they gave for the purpose of the proceedings. The prosecutor's opinions were an irrelevant distraction. Secondly, and more significantly, by calling in aid the authority of his office, the first statement at least had a tendency to suggest that there was particular information, not within the knowledge or experience of the jury, suggesting that these complainants should be believed. To that extent, the remarks had a prejudicial tendency.
44As counsel for the applicant accepted, the early remarks by the prosecutor with respect to the credibility of children generally probably involved an attempt, inept, unnecessary and inappropriate, to reflect the policy underlying s 165A of the Evidence Act 1995 (NSW) which prohibits a judge from warning the jury that "children as a class are unreliable witnesses" or that the evidence of children as a class is "inherently less credible or reliable, or requires more careful scrutiny, than the evidence of adults". For a prosecutor to wander into this territory without careful forethought risks putting the trial judge in the awkward position of needing to correct any inappropriate or distracting statement, without contravening s 165A(1).
45Further, in commenting on the police interviewing technique and upon the cross-examination, he was implying that the "system" was unfair to child witnesses and the fact that their evidence was apparently unshaken was a stronger indication of their truthfulness and reliability than might otherwise have been the case. Again, it may be accepted that these statements had a prejudicial tendency, but it is difficult to treat them as significant. Whether the jury would have made anything at all of the proposition that the attention span of a nine year old was about "20 or 30 seconds" may be doubted.
46Two other passages were the subject of challenge, but on a rather different basis. Thus, the prosecutor spent several sentences noting that children, because of their youth and lack of experience, were naïve. This passage culminated with the proposition that "[g]ood children who believe what we tell them need to be watched and protected because they are so vulnerable, because they are so naïve, because of their inexperience": Tcpt, p 4(30).
47On one view, this was an irrelevant flourish and an example of ill-discipline. As counsel for the applicant correctly submitted, "there was no issue that children should be cared for and not be sexually abused." He went further, however, suggesting that the remarks "had a tendency to arouse prejudice on the part of the jury and deflect them from their true task." Again, it may be accepted that the potential for such an effect was present; it was unrealistic, however, to think that, in the course of days of evidence and directions, this irrelevancy could have had any material effect. That is not to condone the impropriety of the remarks.
48Finally, the applicant complained of a passage directed not so much to the evidence of the complainants, as that of the applicant. However, the remarks were made in the context of the unqualified evidence of the complainants that when he licked SG's genitals, he was kneeling. The prosecutor stated (Tcpt, p 10(25)):
"The accused said why he couldn't kneel. It is a matter for you. Can't get down on his knees for his own sexual gratification when on the Crown case he has a few wines, it is a matter for you. Whether that helps him or not because it is a worry when people and [sic] come and say things are impossible when you might not be at all convinced that they are impossible. It is a matter for you what you make of that."
49This passage involved a digression in the course of the prosecutor's address: at no point did he return to the specific evidence of the accused that his back injury prevented him from kneeling. The passage is inarticulate: what it was intended to convey is unclear. The applicant submitted that the jury was being invited to convict on the basis of a lie told by the applicant and indeed to use it as an admission without being satisfied that it was a lie, but rather if not satisfied that the statement was true. That approach, it was submitted, would have been inconsistent with the correct approach to the use of lies by an accused person, as discussed in Edwards v The Queen [1993] HCA 63; 178 CLR 193.
50It would undoubtedly have been better if this confusing passage had been left out of the prosecutor's address. Nevertheless, this was not the judge's direction to the jury and it is by no means clear that the jury would have understood it in the way proposed by counsel for the applicant. No doubt it was capable of being misunderstood, but that would be insufficient to demonstrate a miscarriage of justice.
51The first and last passages complained of provided the strongest basis for an allegation of miscarriage based upon the prosecutor's address. However, when the address is read as a whole, in the context of the trial as a whole, it is not possible to conclude that there was any realistic possibility of prejudice arising from these statements. It was not insignificant that the trial judge did stop the prosecutor at one stage, when he rambled too far from the facts of the case, although in a context which, as the applicant conceded, was not prejudicial. Further, counsel for the applicant at trial made no complaint of the prosecutor's address in respect of any of the passages referred to in this Court. In these circumstances, the challenge based on the prosecutor's address must be rejected.