The Sir Ninian Stephen Lecture
17 A copy of Ms Cunneen's lecture was in evidence. She commenced by reminding the audience of the great contribution which Sir Ninian Stephen has made to the law. This is followed by a short autobiographical account followed by encouragement to young lawyers to meet the challenges which the law will bring them.
18 Ms Cunneen told the audience that she had been a Crown Prosecutor since 1990 usually prosecuting crimes where there is a complainant, or complainants, who also have families. She remarked on the injury and trauma which crime can occasion to complainants saying that:
"For some victims the anguish continues in a justice system which can give the impression that it is increasingly focussed on the rights of the accused person to the complete exclusion of the right of the victims, many of whom, on any view of the evidence, have been victims of someone's crime and have found themselves bound up in the criminal justice system through absolutely no fault of their own."
19 Ms Cunneen acknowledged that a Crown Prosecutor is not the representative of the complainant and referred both to the Director of Public Prosecution Guidelines and the New South Wales Bar Rules, both of which provide that the prosecutor is to assist the court in arriving at the truth by a full and firm presentation of the case; the objective being to do justice between the community and the accused.
20 Ms Cunneen also referred to the New South Wales Charter of Victims Rights - appended to the DPP Guidelines and extracts as the first and foremost of these rights:
"A victim should be treated with courtesy, compassion and respect for the victim's rights and dignity."
21 She then said:
"While New South Wales, which started off as a gaolhouse, has now reached the civilised position of achieving a myriad of protections for the rights of the accused person, the course of some cases through the criminal justice system may leave you to ponder when the undoubtedly innocent (as opposed to the merely presumed innocent), the victims, will have their liberty restored."
22 These words preface a detailed account of the trial of the men accused, including the applicant, some of whom have been convicted, of the sexual assault of Ms C. Understandably, any account of the facts of the assault would evoke great sympathy for Ms C in the terrible ordeal which she suffered.
23 After introductory remarks which acknowledged the increasing sophistication and complexity of the investigation of crime and the consequential increase in the complexity and length of trials, Ms Cunneen proceeded to canvass, in some detail, the facts of the alleged assaults. She included a discussion of the trial of the applicant and the miscarriage of justice which arose from the tender and admission of evidence of the phone call with MC. She said of this evidence:
"The admission, and use made, of one piece of evidence was to have a disastrous effect for the unfortunate complainant, whom, on any view of the evidence, had been subjected to an unspeakable ordeal.
The police arrest MC and interviewed him about several of the Bankstown rapes, A telephone intercept warrant had been obtained and his mobile phone was being monitored. During the interview, MC was given a break and left the police station to obtain some lunch. He telephoned MG and his calls were intercepted and recorded. He is heard to say:
'G…, they've f…ed me brother. They know your name, I've seen B's name, everyone's name. They know everything bro.'
MG replies:
'So what's gunna happen?'
MC says:
'I'm at the cop shop.'
They then made arrangements to meet urgently at the library nearby.
The trial judge ruled that this evidence was admissible to show consciousness of guilt on the part of MC but that it could not be used for this purpose against MG. Nevertheless the evidence was available to show 'close association' or 'deep interest in what MC was talking about' or 'an association between two people having an interest in the matter which is the subject of the trial.'
All four accused were found guilty by the jury. All four appealed on numerous grounds each. Of the 7 grounds in MG's appeal he was successful in establishing that the trial judge had erred in allowing telephone intercept evidence against him and erred in his directions about that evidence. The Court of Criminal Appeal held that MG had not, in the phone call, adopted MC's inculpatory statements or otherwise implicated himself and further, that the judge should have directed the jury, with emphasis, that this was the case and warned them against using the call as indicating MG's consciousness of guilt."
24 Ms Cunneen's discussion of the proceedings with respect to the applicant does not conclude with the phone call. She continued with an account of the process of retrial and included a discussion of the Crown appeal to this Court in relation to the identification evidence. She said:
"A psychiatrist was called by the defence to challenge the accuracy of the complainant's recollection. This necessitated the complainant being required to be examined by a psychiatrist called by the Crown, whose opinion was that there was nothing to suggest that her accounts would be inaccurate. The trial judge ruled that the evidence of the psychiatrists as to the reliability of her recollection would be admissible, thereby, it could be thought, taking the emphasis from the credibility of the complainant and casting it upon the relative charisma of the two doctors, who will of course have to be called at the two opposite ends of the trial. The last word, in terms of evidence, will go to the defence psychiatrist who has not examined the complainant either at the time she was raped or at any time since, who will say that in his opinion she should not be believed in relation to her identification of the accused.
The second new defence application raised, for the first time, at retrial, concerned the notes of the counsellor who had spoken to the complainant at the hospital to which she was taken soon after she was assaulted. The hospital counsellor, who accompanied the complainant during the medical examination arranged by investigating police, followed up with several brief phone calls to the complainant in the weeks that followed. The defence sought access to the notes and the Department of Health briefed counsel to oppose the access on the basis that as they were records of 'a sexual assault communication', they were privileged under the relevant provisions of the Criminal Procedure Act 1986.
After argument, the trial judge permitted the release, to the defence, of some of the material which he ruled may have been relevant to the timing of her recollection of the many events she had related to the police.
I understand from Ms C's father that Ms C will not now attend any medical practitioner or other health worker for any reason whatsoever, fearful that her private medical records will be subpoenaed and come into the hands of the accused.
The third new defence application raised for the first time in 2004 concerned the photograph of the accused used by police in the photoboard. The photo was not used for the photoboard identification process until several weeks later, after the accused's legal representative had advised the police that the accused would not take part in an identification parade. On 20 October 2004 the trial judge ruled that he would not permit the photograph (and therefore the identification process which used it), to be admitted in the trial. He ruled that the accused, in standing still while the photograph was taken, was making an admission or representation and therefore should have been cautioned before it was taken and told of any purpose for which it may be used in the future.
The judge ruled that the photograph was unfair pursuant to section 90 of the Evidence Act 1995, improperly obtained pursuant to sections 138 and 139 of the same Act and that the photographing should have been videotaped (as an interview is) pursuant to section 281 of the Criminal Procedure Act. The Crown had submitted that posing for the photograph did not constitute an admission and that the accused was merely supplying a particular of identification. Interestingly the judge said that if the police had merely extracted a still photo of the accused from the video of the search of the premises and used that, there would have been no problem. For my part I must say that as the accused was wearing a peaked cap with a large jacket hood over the top throughout the search, it may not have provided a very useful image."
25 The detailed discussion concluded with the following passage:
"As the identification evidence (which had not been found to be deficient in the earlier appeal to the Court of Criminal Appeal) is the lynchpin of the Crown case, the decision has been appealed against by the Crown and the Court of Criminal Appeal is yet to deliver its judgment. This issue is of even greater importance because of the fact that the same photograph was used to identify the accused in a separate earlier trial concerning the gang rape of two other young women taken from Chatswood and assaulted in a Greenacre Park. Even though the accused's appeal against conviction in that matter was not successful, one can envisage that he may re-open that matter on the strength of the ruling about the photograph in the other case if the Crown appeal in this case fails. So G's matter limps on."
26 In this passage Ms Cunneen told her audience of the Crown appeal in respect of which the decision was reserved and also spoke of another matter where the applicant was convicted of sexual assault. Viewed in the context of the total address she was complaining that the appeal process may enable the applicant to reopen the other matter and challenge the legitimacy of his conviction.
27 After completing her discussion of the trial and appellate proceedings in relation to the applicant and his alleged co-offenders, Ms Cunneen embarked on a discussion of the adversary system and criminal trials. She firstly drew upon the remarks of Sir Daryl Dawson in Whitehorn v The Queen (1983) 152 CLR 657 at 682. Ms Cunneen said:
"Our criminal trials in New South Wales are conducted under the adversary system. Unlike the inquisitorial system of the European model, the object of which is to ascertain the truth, the adversarial system is an enquiry into whether the prosecutor has discharged the burden of proof beyond reasonable doubt.
Sir Daryl Dawson in a judgment of the High Court in Whitehorn v The Queen (1983) 152 CLR 657 at 682 said:
'A trial does not involve the pursuit of truth by any means. The adversary system is the means adopted, and the judge's role in that system is to hold the balance between the contending parties without himself taking part in their disputations. It is not an inquisitorial role in which he seeks himself to remedy the deficiencies in the case on either side. When a party's case is deficient, the ordinary consequence is that it does not succeed. If the prosecution does succeed at trial when it ought not to and there is a miscarriage of justice as a result, that is a matter to be corrected on appeal."
His Honour said nothing about the fact that if the prosecution does not succeed at trial when it ought to have, there is no appeal. Nor does he address the fact that many criminal appeals result in orders for retrials due to very minor matters which seem most unlikely to have made any difference to the verdict of the jury, the tribunal of fact, which does, after all, have the advantage of seeing the witnesses give their evidence in person. Then the witnesses, including the victims themselves, and the accused, have to endure the whole ordeal again, except that it is longer, because there is cross-examination on any variation in even the most irrelevant detail if it varies even slightly from the way it was described in the first trial.
If justice, in the criminal jurisdiction, means that the innocent are acquitted and the guilty are convicted, the adversarial system may seem routinely to achieve the former but rather often to fail with the latter.
Its methods often seem, to observers, incompatible with justice. Helen Garner, in her latest book, Joe Cinque's Consolation said, (at page 159):
'One of the props of the adversarial system, I began to see, is a curious charade that memory is a clear, coherent narrative, a stable and unchanging source of information, so that any deviation from a witness's original version of an event can be manhandled to look like unreliability, or the intent to deceive … Thus I saw how a Crown witness of what seemed to be transparent sincereity and desire to do right … could go to water under the sustained onslaught of a defence cross-examination.'
The most fundamental aphorism of our criminal law is that it is better that 100 guilty men go free than one innocent man stands convicted. In this I believe whole-heartedly. Wrongful conviction is truly a prosectuor's worst nightmare. The good news is that there has never been a time when it has been less likely to occur in this State."
28 There can be no doubt that these remarks by Ms Cunneen related to the circumstances of the complainant in the applicant's trial. She had already remarked on the "disastrous effect for the unfortunate complainant" of the decision by this Court to quash the applicant's original conviction. Her comment on the need for retrials "due to very minor matters which seem most unlikely to have made any difference to the verdict of the jury" can only be understood as a comment, inter alia, on the retrial of the applicant.
29 Ms Cunneen continued with a discussion of the complexities of a modern criminal trial and the need for prosecutors to exercise care in the evidence which they tender. In that discussion she raised the question whether some of the rules as to the admissibility of evidence mean that "public confidence in the courts is now being eroded by the perception that the pendulum has swung rather too far in the direction of the protection of the rights of the accused person." She questioned whether fairness in the criminal process equates "increasingly, in the courts, to a decision in favour of the defence and against the community." She illustrated her point by reference to an informal exchange with counsel outside a court room in the precincts of the courts at Darlinghurst.
30 By reference to other matters she has prosecuted, that is matters not involving the applicant, Ms Cunneen emphasised the important part which she believes a plea of guilty can play in the restoration of the health of complainants and their families and the rehabilitation of offenders.
31 She concluded her address with the following:
"The investigating and prosecuting authorities of this State have endured decades of refinement and have assumed stringent controls to ensure absolute transparency, full disclosure and, at every level, fairness towards accused persons. Yet I am informed that in some law schools the teaching of criminal law revolves around the supposed epidemic of the conviction of the innocent. This is very old-fashioned teaching.
What I wish to challenge you to do, in your practice of the criminal law, is to bring your sense, your humanity and your conscience with you. Justice isn't achieved by ambush, trickery, dragging proceedings out in a war of attrition with witnesses. It's achieved by honesty, balance and proportion. As lawyers, you have a power. Be good with it."