Ground 2: The trial miscarried by reason of the conduct of the Crown and the nature of the cross-examination of the appellant where an irrelevant and prejudicial association was raised, namely Jai Abberton, effectively raising the bad character of the appellant
143Ground 2 also concerns the conduct of the Crown prosecutor as cross-examiner, on this occasion his cross-examination of the appellant. The question said to be productive of prejudice and a resultant miscarriage of justice was asked in the context of the appellant being cross-examined about events after his release to bail on 1 August 2003, including his association with Hines at the Coogee Bay Hotel on 5 August 2003 (the night he was killed by Jai Abberton).
144The essence of the appellant's case in so far as it related to Hines was that he had known him for many years as a person with a capacity for violence and intimidation and that he had seen him with a gun on a number of occasions. He also gave evidence that he had passed messages between Hines and James in 2003 during the course of the conspiracy at Hines' request which accounted for his being in James' company on a number of occasions, in particular on 3 June 2003, a proposition which James denied.
145The Crown led evidence from James as to his knowledge of, and any relationship he had with Hines in anticipation of the appellant and Evans seeking to implicate Hines as the principal co-conspirator with James. James gave evidence that he was involved in obtaining a false passport for Hines from Morrison and had received money for that purpose and that Hines had purchased cocaine from him from two previous successful drug importations. He denied that Hines was involved in the conspiracy to import cocaine the subject of the trial. These questions were not objected to by the appellant or either of his co-accused.
146The Crown did not lead evidence from James that Hines had any demonstrated propensity to violence. It was the appellant's counsel who raised Hines' violent disposition with James who conceded that Hines was "extremely violent", and was "a person who had a fearsome reputation for beating people up". He also agreed that Hines was "naturally paranoid" and "a drug dealer", but he repeatedly denied that the appellant had passed messages to him from Hines or that the appellant warned him that Hines was angry because James had not produced the false passport or the money that was owed.
147It was also the appellant's counsel who first introduced the fact that Hines had been killed in August 2003, however no reference was made to the fact that the person charged with his murder was Jai Abberton or that he was acquitted of murder on the grounds of self-defence in 2005. On the appeal the Crown submitted that the appellant's complaint about the Crown prosecutor's cross-examination is diminished by the fact that it was through defence counsel's cross-examination of James that Hines' death by killing was introduced into evidence in the trial, where a more neutral reference to him as having since deceased might have sufficed to explain his absence (and perhaps the fact that he was not charged).
148The cross-examination (which had to this point extended over three days) leading into the objectionable question was directed to exploring the nature of the appellant's relationship with Hines in more detail.
149The appellant agreed that he had known Hines for 25 years but said that, although they were not close friends, they might have a drink together at the Coogee Bay Hotel. The Crown put to the appellant that he "mixed with" Hines frequently, to which the appellant responded, "not frequently". These questions were not the subject of any objection at trial, no doubt in recognition of the fact that the Crown was entitled to test the appellant's claim that he had no involvement in the arrangement to import cocaine and that he only passed messages to James on Hines' behalf because he was fearful of him. Additionally, although the cross-examination concerned the appellant's contact with Hines after he was released on bail on 1 August 2003 (that is, after the conspiracy was over), no objection was taken to the cross-examination for that reason, presumably because counsel accepted the relationship with Hines was relevant even at that time. It was not submitted otherwise on the appeal.
150As to that time frame, the appellant said that he saw and spoke with Hines twice. The first occasion was in a newsagency where they spoke about general things including the fact that Hines was angry with James because of an unpaid debt, about which the appellant said he asked no questions. He also said that Hines was inquisitive about who else had been charged with the conspiracy and that he told the appellant he had just returned from the United States where he had been refused entry, also a matter about which the appellant asked no questions. The Crown queried why he did not ask any questions about the debt or Hines' claim to have been refused entry to the United States despite the fact that, on his case, he was trusted enough to pass messages between James and Hines. The appellant said that that Hines was not the sort of person that he would ask questions of, the inference being because of his irascibility and his violent reputation.
151The appellant was then asked about the second occasion when he saw and spoke with Hines after his release to bail:
Q. What was the second occasion on which you saw Mr Hines?
A. The second occasion was the night I was at the Coogee Bay having drinks with friends.
Q. What night was that?
A. I think it would have been about 4 or 5 August.
Q. Was there some particular event that night that enables you to identify the date?
A. Tone Hines was murdered that night.
Q. 5 August you mean Mr Montgomery?
A. I wasn't sure, 5 or 4 August.
Q. So you were having a drink at the hotel?
A. Yes.
[STRIKEOUT BEGINS]Q. With friends. Was that with Mr Hines and Mr Jyham--[STRIKEOUT ENDS]
OBJECTION (DRIELS)
A. No, no-one was--
152It was agreed at the trial, and for the purposes of the appeal, that the reference to "Mr Jyham" (as transcribed) should read "Mr Jai Abberton" and that it was a sensitivity to his name as the head of a local gang self-styled as "the Bra Boys", as the trial had progressed to that point, that immediately prompted the trial judge to ask the jury to retire without ruling on the objection in their presence. It was also understood at trial, and accepted for the purposes of the appeal, that the Bra Boys were a gang local to the eastern suburbs of Sydney who were notoriously involved in street violence and that Jai Abberton was the leading member.
153In the absence of the jury, the trial judge immediately invited the prosecutor to justify the relevance of including in a question about the nature of the relationship between the appellant and Hines (a legitimate subject for cross-examination) the fact that Jai Abberton was a friend of the appellant with whom he was in company on the night of Hines' death, in circumstances where the Crown well knew that Jai Abberton had killed him later that night. The trial judge's sensitivity to the issue, and his immediate reaction to the potential prejudice in the question, needs to be understood in the context of the Crown being on notice from repeated exchanges with defence counsel during the trial that any references, whether in direct or in oblique terms, to the Bra Boys would be objected to and the trial judge's ruling that the Crown should avoid any references of that kind at all costs.
154After argument in the absence of the jury the question which was objected to was struck from the record. No further direction was sought by defence counsel at that time, or later, as to what the jury should do with the question in the event that they heard it (or the answer), defence counsel having apparently taken the view that it was advisable not to draw attention to it in the event that some of the jurors may not have heard it or those that heard it had not recognised the name. Thereafter the cross-examination of the appellant resumed without further reference to Hines or the appellant's association with him.
155The trial judge was clearly of the opinion that the question carried with it an obvious prejudice by including a completely irrelevant reference to Jai Abberton. In addition, although his Honour was extremely critical of what he regarded as the Crown deliberately posing the question as to the friends the appellant was with on 5 August 2003 to include the name "Jai Abberton" without any legitimate forensic justification, an application for the jury to be discharged was refused. (That ruling was not challenged on the appeal.) That is where the issue rested at trial. There was no further reference to Jai Abberton or the Bra Boys in the evidence or in counsels' closing addresses.
156The appeal was first listed for hearing in August 2011. In the course of senior counsel (then appearing for the appellant) identifying the prejudice said to flow from the reference to Jai Abberton, it became obvious that the appellant had not filed any evidence establishing the notoriety of that person (or the Bra Boys) at or before the time of trial to support the submission that a miscarriage of justice had been occasioned. (I note that when considering the application to discharge the jury mounted by the appellant's counsel at trial, his Honour also referred to the difficulty the accused faced in establishing the extent of risk of unfairness when, despite the fact that he was familiar with Jai Abberton by name, he had no way of assessing whether the jury was also aware of him or the context in which they may have known who he was.)
157In oral submissions in August 2011 the Court was informed about a documentary film featuring Jai Abberton and his brothers and associates entitled "The Bra Boys", which had apparently attracted wide public release following its premiere in March 2007 and which was said to cast Jai Abberton as the leader of the gang. Although it is not clear that the earlier objections to any reference to the Bra Boys was as a result of the release of the film (as distinct from other sources of publicity or community notoriety about the gang by which association the accused was said to be prejudiced), the objection to the reference to Jai Abberton was, as trial counsel put it, not only because of his membership of the Bra Boys but because of the notoriety attaching to the circumstances in which Hines was killed by Jai Abberton on 5 August 2003, and the fact that the appellant was in the company of Abberton that night, a person who the Crown suggested was a friend of the appellant.
158Counsel ultimately accepted that since the documentary film was not in evidence (and there was no other evidence of Jai Abberton's notoriety) an adjournment was necessary in order to assemble evidence to support the contention that a miscarriage of justice had resulted from the Crown's reference to him. The Crown did not oppose the adjournment.
159On 18 November 2011 the appellant filed an affidavit of Kate Herczog which annexed a compendious volume of articles from the print and electronic media assembled by Media Monitors where reference had been made either to Jai Abberton, the Bra Boys and/or "Tony Hines" between December 2002 and March 2007.
160When the hearing of the appeal resumed there was considerable debate, and some shifting of position by both the Crown and senior counsel then appearing for the appellant, as to whether the DVD of the documentary should be exhibited. In the result, neither the DVD nor the script of the documentary was tendered.
161In addition, senior counsel then appearing for the appellant refined, and to an extent recast, what was said to be the prejudice flowing from the question asked of the appellant grounding what was said to be causative of a miscarriage of justice. In the result, very little of the material exhibited to Ms Herczog's affidavit was ultimately relied upon.
162In the course of developing his submissions counsel accepted that he needed to establish that there was a reasonable possibility that the jury heard the question to include the name Jai Abberton; that they then linked that name with the Bra Boys; that they knew something of the reputation of that gang and that they knew Jai Abberton had killed Hines on 5 August 2003.
163As to the first matter, the court stenographer either did not hear the name or did not identify it with any name with which he or she was familiar. However, the transcript of argument at the trial puts it beyond doubt that both counsel and the trial judge immediately heard the name as "Jai Abberton". That reaction may well be explained by the atmosphere of the trial and the heightened sensitivity of both defence counsel and the trial judge to any names associated with the Bra Boys, together with the fact that Jai Abberton's acquittal of the murder of Hines two years earlier was well known to counsel (Evans' counsel having represented him at trial) and apparently to the trial judge.
164That said, I am unable to discount the reasonable possibility that the release of the documentary "The Bra Boys" within months of the commencement of the trial, and with the widespread media attention it attracted over a period of weeks following its release as borne out by the evidence, that at least one member of the jury heard the name Jai Abberton, associated him with the Bra Boys and with the murder of Hines, and appreciated that the question from the Crown implied that not only was Hines a friend of the appellant (and not the casual acquaintance he claimed to be in fear of) but that Jai Abberton was also a friend of his.
165There was considerable press interest in the release of the documentary, as evidenced by the press reports exhibited to Ms Herczog's affidavit (perhaps explained by the involvement of Russell Crowe as narrator). Variously, the gang is described as a notorious surfie gang boasting a "brotherhood culture" and involved in bloody street brawls with police. They are also valorised as local heroes "on the quest to find the biggest wave ... defending their beach against rival gangs ... and brokering peace in the Cronulla race riots". The evidence also makes it clear that the murder trial was referred to in the documentary as was Jai Abberton's celebrated acquittal by reason of self-defence (he asserted that he believed that Hines was going to rape his girlfriend and kill him). However, what was not suggested in the reviews of the documentary or the press reports about it was an association between the gang and drug dealing. Of the great volume of press reports annexed to Ms Herczog's affidavit only one in the Sunday Telegraph of 11 March 2007 refers to an association between the gang and Jai Abberton and drugs and only then nominating Hines as the gang leader.
Hines was head of the gang
Documents prepared by the Australian Federal Police paint a far darker picture of the underworld activities of the Bra Boys than does their one-sided documentary.
The AFP identified the gang as an "eastern-suburbs drug syndicate" in 2003, two reports obtained by The Sunday Telegraph now reveal.
The reports also identify the late standover man, Anthony Hines, who was shot dead by Jai Abberton, as head of the Bra Boys and detail his extensive overseas travel and drug links.
...
While parts of [the report] are heavily edited, it is headed "importation via small craft". It states: "Anthony Gerard Hines ... is the syndicate head of the Bra Boys, [an] import and distribution syndicate in the eastern suburbs.
"Hines is believed to have organised the distribution of cocaine on behalf of [Mr X, another criminal]."
166To the extent that counsel relied upon the jury connecting Jai Abberton with drugs and thereby connecting the appellant to drugs and a drug dealer by association, the evidence falls short of establishing that link. Counsel also relied upon newspaper reports where Jai Abberton (as the leader of the Bra Boys) was referred to adversely from time to time over five years between 2002 and 2007 by reason of his repeated and sometimes violent encounters with police. I do not regard these relatively random reports, standing alone, as bearing upon the extent to which prejudice flowed from the question struck out. I am also of the view that the press reports in 2005 in connection with Jai Abberton's trial for the murder of Hines, and his celebrated acquittal, are not capable of bearing the prejudice for which the appellant contends in a trial two years later. What remains material, and for the reasons discussed, is the featuring of Jai Abberton and the Bra Boys in the documentary launched in 2007 and the huge public interest evidenced by its distribution, in the months before trial.
167As I see it, narrowed in this way, the question is to assess the extent to which the assertion implicit in the Crown prosecutor's question that the appellant was a friend of Jai Abberton (a name the jury might reasonably associate with the Bra Boys), and in his company on the night he shot and killed Hines, was productive of prejudice, or the risk of prejudice, so as to render his trial unfair and occasion a miscarriage of justice. Succinctly put, it was submitted that the question cast the appellant as a criminal by association with (his friend) Jai Abberton and in that way it exceeded the legitimate bounds of a cross-examination directed to undermining his credibility. I accept that submission.
168I am also well satisfied that the prosecutor knew of defence counsel's sensitivity to any reference to the Bra Boys or its members and that his reference to Jai Abberton was deliberate, in the sense that it was not inadvertent or the result of an excess of the enthusiasm of the cross-examiner seeking to expose fundamental flaws in the appellant's defence. Were that the explanation, the prosecutor had every opportunity to make that plain in the lengthy exchanges with the trial judge in the absence of the jury. Rather, he sought to justify the question, and in particular the reference to Jai Abberton, as giving context to the occasion that the appellant was with Hines shortly after his release to bail. It is difficult in those circumstances to come to any other view than that the prosecutor was at least reckless in making express reference to Jai Abberton and, in that way, he acted contrary to the exacting standards expected of a Crown prosecutor.
169In Wood v R [2012] NSWCCA 21 at [578] McClellan CJ at CL observed:
The duty to present a case fairly, completely and with fairness to the accused was emphasised in Livermore v The Queen [2006] NSWCCA 334; (2006) 67 NSWLR 659 at [24] where this Court cited with approval the dicta in McCullough v The Queen (1982) 6 A Crim R 274; [1982] Tas R 43 at 57:
"[It is] quite impermissible [for a Crown Prosecutor] to embark upon a course of conduct calculated to persuade the jury to a point of view by the introduction of factors of prejudice or emotion. If such a situation should develop and there is a real risk that the conduct complained of may have tipped the balance against the accused then an appellate court will not hesitate to follow the safe course and order a new trial."
170In Libke v R [2007] HCA 30; 230 CLR 559 one of grounds of appeal concerned the cross-examination of the accused by the prosecutor which was said to be so unfair as to result in a miscarriage of justice. Although the appeal was dismissed by majority because, despite the prosecutor's misconduct, the trial was not shown to have been unfair (Gleeson CJ and Heydon J agreeing with Hayne J (Kirby and Callinan JJ dissenting), each of the judgments with differing degrees of emphasis expressly disapproved of the form, content and style of the cross-examination.
171The offending questions were categorised and discussed variously as being wild, uncontrolled and offensive, questions that were not questions but comment, compound questions, cutting off the witness' answers, questions resting on controversial assumptions and questions that were argumentative.
172After considering the way in which the role, rights and responsibilities of prosecuting counsel form an integral part of a fair trial, Hayne J observed:
[71] A criminal trial in Australia is an accusatorial and adversarial process. In that process, prosecuting counsel has a role that is bounded by long-established duties and responsibilities. Those duties and responsibilities are summarised when it is said that "[t]he duty of prosecuting counsel is not to obtain a conviction at all costs but to act as a minister of justice". In the Supreme Court of Canada, Rand J described the role of the prosecutor as being:
not to obtain a conviction, it is to lay before a jury what the Crown considers to be credible evidence relevant to what is alleged to be a crime. Counsel have a duty to see that all available legal proof of the facts is presented: it should be done firmly and pressed to its legitimate strength but it must also be done fairly. The role of prosecutor excludes any notion of winning or losing; his function is a matter of public duty than which in civil life there can be none charged with greater personal responsibility. It is to be efficiently performed with an ingrained sense of the dignity, the seriousness and the justness of judicial proceedings. (emphasis added)
A central, even the central, element in that role is "ensuring that the Crown case is presented with fairness to the accused".
[72] 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". But again, there are boundaries to that process. The choices that have been described are to be made "subject to the rules of evidence, fairness and admissibility"...
173His Honour went on to note that while unfairness may take many forms, often it involves a departure from rules, including the rules of evidence, that ensure the orderly conduct of a trial. However, as his Honour observed, not every departure from that standard will be productive of unfairness. That said, his Honour also noted at [73] that:
... because the rules of orderly procedure are designed to safeguard the fairness of the proceedings, what is unfair will often be a departure from those rules.
174At [78], after noting that none of the questions said to have constituted an unfair cross examination on credit were objected to, his Honour said:
In the present case, if comments made by the trial prosecutor are put to one side, the complaints of unfairness that now are made directed attention to the way in which the prosecutor set out to undermine the appellant's credibility. It was said that this was done "unfairly". The appellant identified a number of questions as evidencing this "unfairness". Some, the appellant said, were founded on a false or unproved assertion. Others, he submitted, made unwarranted criticism of evidence he had given. But leaving aside the prosecutor's intrusion of his comments on the evidence, the cross-examination, when read as a whole, betrays no unfairness to the appellant. Some questions might have been framed better than they were. Some carried imputations critical of the appellant's evidence. Some questions were founded on assertions that were not established or admitted. But the appellant was able to and did give the account he wished to give of the events about which he was asked. And whether the cross-examination was such as to distract the jury from a proper and dispassionate examination of the issues in the case requires consideration of not only those questions that were said to be designed unfairly to undermine the appellant's credibility, but also the various comments made by the trial prosecutor in the course of his examination of the appellant.
175His Honour went on at [81] to say:
The comments the trial prosecutor made, in the course of cross-examining the appellant, departed from the rules that ensure the orderly conduct of a trial. But that observation does not answer the critical question presented by the appeal provision of the Criminal Code, which is said to be engaged. That question is whether there was a "miscarriage of justice". More particularly, did the making of these comments, either standing alone, or in conjunction with other aspects of the prosecutor's cross-examination of the appellant, make the trial unfair?
176His Honour also distinguished the prosecutor's comments (which he noted were about matters in issue in the case), from inappropriate comments which suggested, either directly or indirectly, that the jury should follow some impermissible path of reasoning perhaps by appealing to prejudice or sympathy.
177Heydon J was of the express view that the cross-examination was in breach of counsel's ethical duties which were also breaches of rules established by the laws of evidence.
178At [120] his Honour said:
"Cross-examination is a powerful and valuable weapon for the purpose of testing the veracity of a witness and the accuracy and completeness of his story. It is entrusted to the hands of counsel in the confidence that it will be used with discretion; and with due regard to the assistance to be rendered by it to the Court, not forgetting at the same time the burden that is imposed upon the witness." Hence the powers given to cross-examiners are given on conditions, and among the relevant conditions are those which underlie the rules of evidence contravened in this case.
179At [134] his Honour held:
While the breaches of exclusionary rules discussed above were capable of placing the accused in an unfair position, taken as a whole the breaches generated neither unfairness nor a miscarriage of justice. That is so partly because, despite interruptions, the accused was able to get his version of events across. It is so partly because at least the questions (as distinct from the comments) were not irrelevant and hence did not influence the jury towards an illogical approach to the issues. It is so partly because the uncontrolled ineptness of the questioning was such as to attract sympathy to the accused. Evidently designed to disparage and humiliate the accused, the questioning is likely to have rehabilitated him in the jury's eyes as he struggled with success towards advancing an account of the events to which the questioning related. The very egregiousness of the conduct generated safeguards against the dangers inherent in it. "[T]he adoption of an unfair conduct in cross-examination has often an effect repugnant to the interests which it professes to promote."85 Here the overly aggressive and unfair approach of the cross-examiner was one which was likely to have generated sympathy in the jury for the accused. Even if it did not, the accused showed himself capable of pointing out the defects of the cross-examination in a dignified way, and overcoming them.
180Gleeson CJ emphasised that whether the conduct of the prosecutor as cross-examiner resulted in an unfair trial and a miscarriage of justice involved a question of degree. His Honour said at [2]:
First, the argument that the conduct of the prosecutor during his cross-examination of the appellant resulted in an unfair trial, and a miscarriage of justice, involved a question of degree. As Mullins J pointed out in the Court of Appeal, the cross-examination of the appellant extended over 44 pages of transcript. In the course of that cross-examination, counsel made certain inappropriate comments. It is difficult for an appellate court, relying only on the written record, to assess the impact of undisciplined conduct by counsel. It is also difficult, away from the atmosphere of the trial, to measure the significance of the absence of intervention by the trial judge or by opposing counsel. Those difficulties are to be taken into account by way of caution in approaching any attempt to minimise the complaints made on behalf of the appellant. Even so, having read the whole of the evidence of the appellant, I would not interfere with the Court of Appeal's conclusions that the conduct of the prosecutor did not make the trial unfair.
181While in the present case the prosecutor's conduct in deliberately framing a question with a prejudicial sting is not a wholly irrelevant consideration to assessing whether unfairness has resulted, as the High Court has made plain in Libke, it is not determinative of whether the trial miscarried. What is determinative is whether the objectionable part of the question was such as to be productive of an unfair trial.
182I have given earnest consideration to the potential prejudicial implications of the offending question consistent with my finding at [167] that the question cast the appellant as a criminal by association with (his friend) Jai Abberton and in that way it exceeded the legitimate bounds of a cross-examination directed to undermining the appellant's credibility. However, after taking into account the fact that on the appellant's case he passed messages between people who either he knew, or it might be inferred, had criminal records and, in the case of Hines, a man with a violent disposition; the fact that the appellant dealt with a detailed cross-examination that extended over four days with apparent resilience and control; where the offending question was one of very few questions objected to and disallowed and where no further reference was made to it; and where, in this case, there are limitations on making any accurate assessment as to how the question actually impacted on the jury, I am not persuaded that the trial was rendered unfair by the question objected to and struck out. I would dismiss the second ground of appeal.