Criminal law and procedure - Appeal - Conduct of prosecution case - Miscarriage of justice - Circumstances under which conduct of prosecutor gives rise to real risk of improper influence over jury - Prosecutor has overriding duty to ensure fairness to the appellant - Unfair comments made in cross-examination of appellant - Single incident of unfair conduct not enough alone for trial to miscarry - Unfair to suggest a matter was an established fact when the appellant had expressly denied it - Unfair to imply that the appellant was being evasive when clear answers were given - Unfair comments made in closing address - Unfair to suggest that the appellant alleged police had lied or conspired when no such allegations were made - Unfair to suggest that the appellant's testimony was ridiculous when there was no foundation in the evidence for such a suggestion - Unfair and prejudicial for prosecution to suggest that appellant's testimony was false when evidence supporting the testimony was available to counsel - Cumulative effect of conduct of prosecution case was that appellant was deprived of a fair trial

Criminal law and procedure - Duty of Commissioner to ensure that trial was conducted fairly - Commissioner should have intervened in relation to a number of unfair comments made by prosecutor

Criminal law and procedure - Evidence - Failure of prosecution to call a witness whose testimony supports the appellant - Whether such failure is unfair to the appellant - Crown prosecutor alone bears responsibility for deciding whether a witness for the Crown will be called - Evidence of witness would not have been of assistance to the appellant

Criminal Code (Cth), ss 6.2, 9.1, 10.2, 11.1, 132.1(2A), 132.2(3)(2A), 132.43A, 132.4(4)(6)(7), 132.5(4)(a)(b), 132.5(5)(a)(b)(c), 132.7(3)(c)(d), 132.7(4)(c)(d)(e), 135.1(4), 135.1(8)(a)(b), 135.4(2)(4)(6), 135.4(8)(a)(b), 141.1(2)(a)(b), 142.1(2)(a)(b), 144.1(2)(4)(6)(8), 145.1(2)(4)(6)(8), 145.2(2)(4)(6)(8), 145.3(3), 147.1, 149.1(2)(a)(b)

Respondent : Commonwealth Director of Public Prosecutions

1 MALCOLM CJ: This was an appeal against conviction. The appellant also made an alternative application for leave to appeal against sentence. On 5 August 2003, the appellant was convicted after a trial before a jury in the District Court at Bunbury of attempting to cause harm to a public official contrary to s 147(1)(e) of the Criminal Code (Cth) ("the Cth Code") being the schedule to the Criminal Code Act 1995 (Cth). On the same date, the appellant was sentenced to imprisonment for 2 years with eligibility for release after serving a period of imprisonment for 10 months, upon his entering into a recognisance to be of good behaviour for a period of 14 months in the sum of $5000.

2 The appeal was heard on 28 October and 12 November 2003 when the decision was reserved. On 16 December 2003 the Court, by a majority, with Steytler J dissenting, allowed the appeal and quashed the conviction. It was then indicated that the Court would wish to hear submissions on the question whether there should be a retrial. In the result, consideration of that question was adjourned to a date to be fixed pending the publication of the reasons for judgment. In the meantime, it was agreed by counsel for the Commonwealth Crown that the appellant should be discharged on the basis that he presented no flight risk. The Court then discharged the appellant from custody on his undertaking that he remain in the jurisdiction pending the outcome of the proceedings.

3 The grounds of appeal as amended at the hearing of the appeal contended that:

(1) The manner in which the Crown case was conducted gave rise to a real risk of improper influence over the jury and caused a miscarriage of justice.

(2) The learned Commissioner erred in not directing the jury in sufficiently strong terms that the case was not to be decided by resolution of the issue whether the police were telling lies or "trying to do something untoward".

(3) The learned Commissioner erred in not directing the jury to ignore a submission by the Crown prosecutor not to "tar these honourable people (the prosecution witnesses)" with what the jury may have read about in the Royal Commission into Police Corruption.

(4) The learned Commissioner erred in not directing the jury regarding what conclusions could properly be drawn from the apparent failure of defence counsel to comply with the rule in Browne v Dunn (1893) 6 R 67.

(5) The learned Commissioner erred in directing the jury that the Crown did not have to prove that the accused knew that Agent Harrison (the complainant) was a Commonwealth or Federal Police Officer rather than a State Police Officer.

(6) The learned Commissioner erred in failing to address the jury "as to whether the accused acted as he did because of duress".

(7) The trial was unfair to the accused because the prosecution failed to call a Ms Rixon who had provided a statement to the Commonwealth Director of Public Prosecutions indicating that she had witnessed at least part of the incident the subject of the charge.

4 The offence with which the appellant was charged was that:

"... on 27 March 2002 at Bridgetown in the State of Western Australia AARON PAUL PATERSON attempted to commit an offence under section 147.1(1) of the Criminal Code (Cth) in that he attempted to cause harm to a public official without the consent of that official, namely he engaged in conduct intending that his conduct would cause harm to a public official, namely Australian Federal Police member David Edward Harrison, who was a Commonwealth law enforcement officer, the said AARON PAUL PATERSON having engaged in his conduct because of the official's status as a Commonwealth law enforcement officer, contrary to section 11.1(1) of the Criminal Code (Cth)."

5 Section 147.1 is in Div 147 of the Cth Code which is headed "Causing harm to Commonwealth Public Officials". Section 147.1 relevantly provides that:

"(1) A person (the first person ) is guilty of an offence if:

(b) the first person's conduct causes harm to a public official; and

(c) the first person intends that his or her conduct cause harm to the official; and

(d) the harm is caused without the consent of the official; and

(e) the first person engages in his or her conduct because of:

(i) the official's status as a public official; or

(ii) any conduct engaged in by the official in the official's capacity as a public official; and

(ea) the public official is a Commonwealth public official; and

(eb) if subparagraph (e)(i) applies - the status mentioned in that subparagraph was status as a Commonwealth public official; and

(ec) if subparagraph (e)(ii) applies - the conduct mentioned in that subparagraph was engaged in by the official in the official's capacity as a Commonwealth public official."

6 The elements of the offence under s 147.1 are that, in summary form:

(1) (s 147.1(1)(a)(b)(c)) the accused engages in conduct which causes harm to a public official intending to cause harm;

(2) (s 147.1(1)(d)) the harm is caused without the consent of the public official;

(3) (s 147.1(e)) the accused engages in the conduct because of:

(ii) any conduct engaged in by the official in his or her capacity as a public official; (s 147.1(1)(e)) and

(iii) (s 147.1(1)(ea)) the public official is a Commonwealth public official; and

(iv) (s 147.1(1)(eb)) if subparagraph (e)(i) applies, the status mentioned in that same paragraph was status as a Commonwealth public official; and

(v) (s 147.1(1)(ec)) if subparagraph (e)(ii) applies - the conduct mentioned in that subparagraph was engaged in by the official was in the official's capacity as a Commonwealth public official.

"Absolute liability applies to the paragraphs (1)(ea), (eb) and (ec) elements of the offence."

(1) A person who attempts to commit an offence is guilty of the offence of attempting to commit that offence and is punishable as if the offence attempted had been committed

(2) For the person to be guilty, the person's conduct must be more than merely preparatory to the commission of the offence. The question whether conduct is more than merely preparatory to the commission of the offence is one of fact

(3) For the offence of attempting to commit an offence, intention and knowledge are fault elements in relation to each physical element of the offence attempted

Note: Under section 3.2, only one of the fault elements of intention or knowledge would need to be established in respect of each physical element of the offence attempted

(3A) Subsection (3) has effect subject to subsection (6A)

(a) committing the offence attempted is impossible; or

(b) the person actually committed the offence attempted

(5) A person who is found guilty of attempting to commit an offence cannot be subsequently charged with the completed offence

(6) Any defences, procedures, limitations or qualifying provisions that apply to an offence apply also to the offence of attempting to commit that offence

(6A) Any special liability provisions that apply to an offence apply also to the offence of attempting to commit that offence

(7) It is not an offence to attempt to commit an offence against section 11.2 (complicity and common purpose), section 11.5 (conspiracy to commit an offence) or section 135.4 (conspiracy to defraud)."

9 The Crown case against the appellant, as opened by counsel for the Commonwealth, was that on 27 March 2002 at Bridgetown, Australian Federal Police were conducting surveillance with respect to the appellant in the area of the Bridgetown Post Office. At about 11.50 am, the appellant drove a Holden Rodeo utility into the carpark behind the Post Office. He then walked to a group of post office boxes at the side of the Post Office. He collected some envelopes and was observed to walk back to his vehicle and got into it.

10 Federal Agent Harrison approached the vehicle on foot with the intention of searching the vehicle pursuant to a lawful search warrant that had been obtained. The appellant was sitting in the driver's seat with the engine running. Agent Harrison gave evidence that as he approached the vehicle, he shouted out "Stop. Police". The distance between him and the vehicle was said to be about 15 to 20 metres when he first came out. Agent Harrison was not in uniform.

11 According to Agent Harrison, after he had shouted at the appellant, the appellant locked his driver's door and wound up the driver's side window of the utility. The appellant started reversing the vehicle. Harrison said he shouted at least two or three times "Stop. Police". While Agent Harrison was arriving alongside the vehicle, he drew his firearm for protection. He said that the appellant then stopped reversing and drove forward towards him. By that time, Agent Harrison was in front of the vehicle and was forced "to rapidly move away, to get out of there", as counsel for the Crown put it to the jury. Agent Harrison's evidence was that if he had not got out of the way, he would have been run over and harmed.

12 Counsel for the Crown told the jury in opening that:

"You will hear evidence that the accused man's vehicle engine was revving at a very high rate. The accused man's vehicle continued towards Harrison, forcing Harrison, as you will see on the video - or it will be my submission that that's the conclusion you will draw, but the picture will tell you all about that - forced Harrison to rapidly move away, to get out of there.

You will hear evidence from Harrison and indeed another police officer that on his view if he did not get out of the way, he would have been run over and harmed. You will hear evidence that he didn't consent to anybody harming him - pretty sort of obvious, you will think, but that's one of the things we have to prove to you.

You will hear evidence that the vehicle continued travelling forward and left the area of the post office with the vehicle tyres literally screeching, the engine revving loudly, and it will be my submission to you at the end of the case as well that had Federal Agent Harrison not taken evasive action, he would surely have been run over.

Unbeknown to the accused man at the time, much of what I'm telling you now was videotaped by another police officer who was part of the surveillance team and you will hear from Federal Agent Donna Ninyett. She was standing in a building about two floors up, looking down at the scene, and she had a video camera taking the video - there are some Venetian blinds which do restrict the view a little bit - and through a pane of glass which you may think distorts or might have helped distort some of the sound, but the picture will still be there.

Federal Agent Steve Elliott was also in the surveillance team in the vicinity of the Bridgetown hotel which - I don't know if you know the area or not. You will see another video showing you the area anyway, but from which he has a clear view of much of what has gone on, but of more importance he has a clear view as to the incident in question that the crown relies on as having constituted - the conduct having constituted the offence.

Elliott will also tell you that he heard Harrison shout out on a number of occasions, 'Stop. Police.' He has also heard and seen the accused man's vehicle reversing, revving the engine, taking off at a very fast pace directly towards Federal Agent Harrison with gravel flying from the rear wheels of the vehicle and Elliott, I understand, will also tell you that he saw Harrison jump for his safety."

13 The prosecution case was based primarily on the evidence of three Federal Agents with the Australian Federal Police. The first was Agent Ninyett. On 27 March 2002, she had been a police officer for just over two years. She was on duty at Bridgetown with Federal Agents David Harrison, Stephen Elliott and Peter Chevall. They were conducting surveillance in the vicinity of the Bridgetown Post Office in respect of the appellant. On the morning of 27 March 2002, she was located on the second floor of a building overlooking the carpark below between that building and the Bridgetown Post Office. She was operating a video camera and a police radio. She also had a mobile telephone. She was observing the area through open Venetian blinds.

14 At 11.48 am she saw a white tray top utility enter the carpark of the Post Office from the Hampton Street entry to the carpark. The utility was parked adjacent to the rear access to the Post Office. She saw a male person "exit the ute" and enter the rear access to the Post Office. She identified the person she saw as the appellant.

15 A short time later she saw him exit from the rear access to the Post Office. He had envelopes in his hand. He got into his vehicle and shut the driver's side door. While this was happening, she tried to contact Federal Agent Chevall. At that point in her evidence, counsel for the prosecution arranged to show the video film to the Court. The film was played twice.

16 The video does not pick up anyone calling out "Stop. Police" at any stage. When the vehicle starts to move, a dog can be heard barking. The evidence was that the dog in the appellant's utility was barking. The barking continued for three to four seconds.

17 When the video was played to the jury a second time, it was stopped from time to time and Agent Ninyett was asked to describe what was depicted in the video. She explained that when the appellant emerged from the Post Office she called Agent Peter Chevall to let him know that the "target", namely the appellant, had arrived. She confirmed that when Agent Harrison emerged from the shed at the back of the Post Office he was carrying something which she could not identify. She noted that he was bending down. The appellant's utility then reversed very quickly. The first sound Agent Ninyett heard was the tyres of the utility "squeal". From where she was she could not hear any sound from the vehicle, Agent Harrison or the appellant.

18 The video upon which the prosecution relied was played at the hearing of the appeal. I have since viewed it on a number of occasions. The utility is depicted parking and the appellant leaves the vehicle at 10.34 am and 5 seconds and walks into the Post Office. The vehicle is seen on the video parked at 11.48 am and 38 seconds. At 11.48 am and 43 seconds the appellant is seen walking down the steps from the Post Office from the left of the walkway. He walks towards the utility at 11.48 am and 45 seconds. At 11.48 am and 50 seconds, he opens the driver's door, looks around and gets into the utility. At 11.48 am and 52 seconds he closes the door.

19 At 11.48 am and 54 seconds, Harrison appears around the corner from the opposite side of the walkway from where the appellant emerged. He approaches the appellant's vehicle at 11.48 am and 58 seconds. He appears to be at the driver's window at 11.49 am. He drops his jacket, picks it up and has a gun in his hand. The vehicle reverses at 11.49 am and 03 seconds and then moves forward, turning right away from Harrison and departs the scene at 11.49 am and 05 seconds. From my observation of the video, Harrison was at no point in the actual path of the vehicle. Harrison does not appear to have been in any obvious danger of being struck by the vehicle. The video does not record any relevant sound in the early part but does record a dog barking in the later part, which is consistent with the appellant's evidence.

20 The whole event took some ten seconds. Agent Ninyett tried to contact Agent Chevall. She did not see Agent Harrison when the utility drove off with its tyres squealing and the engine revving "very loud". A second video was played to the jury showing the general location of the incident in question.

21 When cross-examined, Agent Ninyett acknowledged that when Agent Harrison approached the appellant's vehicle he was carrying a jacket or pullover. She saw him "fumble at the car door", but she did not see him drop his jacket, although this is clearly apparent on the video. She did see him bend over, however, but she did not see him come up with a gun in his hand. She did not see him banging on the driver's window. She did not recall him standing up with his right arm extended. After the vehicle reversed, the movement of the vehicle is not depicted on the video, except that from close to 11.48 the left-hand side came back into the view of the video camera.

22 Agent Harrison gave evidence that on 27 March 2002 that he was a member of the Australian Federal Police stationed in Perth. As of the time he gave evidence on 4 August 2003 he had had 17 years' experience as a police officer. On that day at Bridgetown he had a search warrant in respect of the appellant and another search warrant for the appellant's motor vehicle.

23 At 11.48 am on the day in question he was stationed at the rear of the Post Office in a toilet block. He then received a telephone call from Federal Agent Elliott. As a result he went into the carpark where he saw the appellant's utility. As he approached the utility its engine was running. He walked towards it. He made eye contact with the appellant. His evidence was:

"He looked at me and I made eye contact with the person. He looked at me and I said, 'Stop. Police", in the direction."

24 Asked to describe how loud the engine was running, he said that:

"I didn't scream it at the top of my voice, but I gave it in a direction tone like, 'Stop. Police'."

25 According to Agent Harrison, the driver's window:

"... was open. The majority of it was open. The window may have been partially up, but the majority of the window was open."

26 Agent Harrison's intention was to execute the search warrants on the appellant and the utility. Later in his evidence, he said that when he came around the corner from the toilet block:

"... immediately I made eye contact with the driver I said it straight away, 'Stop. Police', projected it in a voice so someone at that distance, 5 or 30 metres away in a vehicle would hear it. I could see the window was down. Most of it was down."

27 Agent Harrison said that he first said, "Stop. Police" when he came around the corner from the toilet block. Almost straight away the appellant locked the driver's door and wound the window up "really fast". He said he tried the door handle, but it was locked. He then produced his firearm "for his own protection" and "followed around the vehicle", saying:

"As its been reversing around, I've had to keep walking around to avoid getting run over and it goes out of vision there."

28 It was while the vehicle was reversing that he said, "Stop. Police" the second time.

29 The effect of his evidence was that he said "Stop. Police" at least twice, once from five metres away as he came out of the toilet block, again as he approached the driver's window and once more when the vehicle was reversing around, although there was some uncertainty about the third time. Having said that he said it twice, he said he said it again. He was then asked, "When and how many times?" His answer was:

"I said it again as the vehicle was reversing around. My particular position as it was reversing around I can't exactly recall but it was about three times that I said it."

30 He said that the vehicle reversed way quickly. He was worried about getting his foot caught under the wheel and said:

"I was thinking on my feet to make sure I didn't - I hoped I didn't get run over, so it happened very quickly."

31 When the vehicle swung around further, he backed off and was then in front of the vehicle which was facing up a laneway which headed up towards Rose Street. In that position he was in front of the vehicle. The vehicle went forward and he stepped aside, "So I wouldn't get run over. I thought I was going to get run over."

32 Agent Harrison confirmed that he dropped his jacket when he was "obtaining" his firearm. He also estimated that the time from when he emerged from the toilet block to the appellant's departure from the carpark was 10 to 15 seconds. Agent Harrison had no recollection of a dog barking and did not remember a dog at all.

33 Agent Elliott was posted across the road from the Post Office carpark. Agent Ninyett was posted in the council offices on his instructions. Agent Harrison agreed that he aimed his firearm at the appellant as the vehicle was reversing. He said that he did that not to threaten the appellant with the use of the firearm, which was for his "protection only in case I needed to protect myself".

34 In cross-examination, he agreed that he heard the engine start up as he started to walk outside the toilet block. Agent Harrison also agreed that this was "well before" the appellant would have been aware of his presence. He was positive that eye to eye contact was made with the appellant before the driver's window was wound up. He could not recall whether the car radio was on. He did not remember a dog, but acknowledged that the video recorded a dog barking. He conceded that it was possible that he could have missed the car radio going. When he got to the car, the first thing he did was to grab at the door

35 At that point his pistol was in his jacket in his other hand in its holster. He dropped his jacket and had to bend over to get his firearm. He moved away from the vehicle for this purpose:

"Because I wanted to get away from the vehicle a bit and do it safely. I did not want to have a firearm coming out at - at eye height and swinging around. I wanted to do it as safely and quickly as I could and step away from the vehicle."

36 It was put to Agent Harrison that when the pistol was in his hand, but still in the holster, he started banging the pistol against the car window. His answer was:

"I put it against the windscreen. It may have banged as I was walking around."

37 Asked if there was a loud thud of metal on glass as that happened, Agent Harrison could not recall, although he conceded that, "There could've been a noise".

38 As the car continued to reverse, he stood up almost erect and with the pistol in his right hand, pointed it at the driver. Agent Harrison said that as the vehicle was reversing, he had to keep moving. It was also put to him that as the vehicle was moving forward, he had to take "Probably one big step, yep. It was just like a leap sort of thing, to the side just to get out of the way".

39 In re-examination he agreed with his counsel that when he was about five metres away from the vehicle and approaching it, "the window was up". The distance was then demonstrated and his counsel then asked:

"All right; and at that time the window was open?"

The two answers were contradictory, but no point was made of it at the time.

40 Agent Elliott gave evidence that he was a member of the team that morning. He was sitting on a bench seat across the road from the Post Office. He saw the appellant's utility on the main street of Bridgetown, namely Hampton Street, at about 11.32 am. He contacted Agent Harrison and Agent Ninyett by mobile telephone to inform them of his observation. At about 11.45 am he saw the appellant's vehicle drive along Hampton Street and turn left into the carpark adjacent to the Post Office. He informed Agent Harrison of this by mobile telephone. He saw the appellant get out of the utility and walk to the rear entrance of the Post Office.

41 Shortly afterwards, he saw the appellant come from the rear of the Post Office walking towards the utility. He saw Agent Harrison following the appellant "a couple of steps behind" which he estimated at "a metre to a metre and a half". He said that as the appellant got into the vehicle he saw Agent Harrison approach the driver's side door and heard him shout "Stop. Police". He heard Agent Harrison say that on two occasions. He estimated that when he first heard Harrison, he would have been 12 to 15 metres away from Harrison. On the second occasion he was two to three metres away. The utility was between him and Harrison. At that time, the utility was parked "nose in" against the side wall of the Post Office. Agent Elliott approached from the right-hand side, so that the utility was between him and Agent Harrison.

42 He heard the engine of the utility revving very loudly and the tyres spinning as the utility reversed. Agent Harrison was following the direction of the vehicle. As Agent Elliott put it:

"As it was turning and reversing, he was attempting to stay beside the driver's door and he was being swung around in the same direction as the movement of the vehicle."

43 Asked whether Agent Harrison took any evasive action, the transcript records the following:

" ... I could see that he was attempting to step away - keep away from the vehicle as it was turning in its arc, or reversing in its arc.

Were you concerned at that time?---I was concerned that he would be struck by the vehicle and would be knocked down."

44 Agent Elliott said that his observation of the appellant's vehicle from the point where the video ended was that the vehicle swung around in an arc, came to a fairly sudden stop, rapidly changed direction and accelerated along a laneway at the rear of the Post Office. The tyres were spinning and the engine was revving very loudly. He could hear gravel being thrown up. He also said that he saw Agent Harrison:

"... step out of the way of the vehicle in order to avoid being struck as it accelerated forward."

45 When Agent Elliott was cross-examined, he agreed that he first saw Agent Harrison one and a half metres from the utility when the appellant was already in the vehicle. He agreed that Agent Harrison was not following one and a half metres behind the appellant. Agent Elliott did not see Agent Harrison fumble with his jacket or strike the gun against the driver's window. He did not hear a loud thud or see a dog in the utility. He did hear a dog barking towards the end of the video. He accepted that there was a dog barking.

46 The appellant gave evidence that on 27 March 2002 he went to the Bridgetown Post Office just before midday to pick up his mail. He had his dog with him, which was sitting with him in the cab of the utility. The dog was a Kelpie, aged approximately 2 years. His evidence was that he drove into the carpark area from Hampton Street, and parked. He wound down the window just enough so that his dog could breathe. He left the engine running and walked to the mailbox to collect the mail. The radio was on in the car. He went to the mailbox, collected his mail and walked back to the car. The engine was still running and the radio was still on. He had to push the dog into the passenger's seat before he got in. The first thing he did was to wind the window back up, as it was cold. As he was winding up the window he noticed someone coming toward the car quickly. The appearance of the person was that he was "all flustered and angry". The appellant could not make out what he was doing. He did not hear him say anything. The dog started barking. The appellant was then putting the vehicle into reverse gear as he was winding the window up.

47 The man approached the driver's door. He noticed that he had a jacket and a gun which was in its sheath. When he got to the car, he appeared flustered and dropped the jacket and "produced a gun that was still in its sheath and pointed it straight at me".

48 The appellant denied that he heard the man say "Stop. Police" in a loud tone. When it was put to the appellant that Agent Harrison and another witness had given evidence that the words "Stop. Police" were said in a loud tone, the appellant said he did not hear that and went on to say:

"I don't think he would have said that. He was - he looked like he was trying to mumble something. He was quite flustered at the time. He looked like he was trying to spit out something but couldn't.

Did you hear anything coming from him?---No, I didn't. Didn't hear a word coming from him because the dog was barking and the radio was up. The engine was running and I was in the motion of driving my car.

So get back to the stage where you have seen this gun in the sheath. Right?---Yes.

What happens with that or what happens next?---He pulled it up directly and pointed it at me. He came running at the window and he - and I could hear the gun belt against the window, the actual barrel hitting the window. If you could imagine in the cab how loud that would be, hitting it. It banged pretty hard. Steel against glass, it was pretty noisy."

49 The appellant went on to say that the person looked like he was yelling at someone else and made a gesture to someone across Hampton Street towards the Freemasons Hotel.

50 The appellant said that when he first saw the gun and it was banging against the window, he put his head down just below the steering wheel so that he could still see. The vehicle was then in reverse motion. The appellant's evidence then was as follows:

"... I was pretty concerned that - yeah, that a bullet was going to go off or bullets were actually going off because it was that load with the barrel hitting the glass. It actually sounded like bullets going off, like, bang, bang, bang.

As you were reversing, could you detect where the person was?---Yes, I could notice the person at the side of my door the whole time.

So how far did you go in your reverse?---It was only like a point turn which I would've normally done to exit the joint which I intended to - to do that. It was only, like, I travelled a distance of 7 metres at the most, maybe not even that.

So you reversed and then what have you done?---I put the gears into first and gone forward.

Can you exit the area by going forwards?---Yes, there's an exit way up - the single lane heads towards the railway track and I turned right from there which heads to other streets.

Is that a route you have ever taken before to exit from the Post Office?---That is my normal route exiting the Post Office. The most direct route home.

What sort of pace did you take off that - when you went forward?---Quickly.

What was going on in your mind?---I was pretty worried that I was going to get a bullet in the head. I was literally packing myself.

Did you ever hear, 'Stop. Police'?---Not once.

When you went forward, did you notice where the man was?---He was at the side of the car, belting the gun at my window, trying to scare me with it obviously.

There's evidence that you were supposed to have driven towards him. What do you say about that?---That is incorrect. He was never in front of my car. I never had to make that decision to drive forward at him.

Did you ever see him directly in front of your car as you went forward?---He was never in front of my car.

Did you ever see him - did you ever see him directly in front of your car?---He was never in front of my car. He was at the window the whole time.

What was your intention when you left to go out? What was your intention as you were getting out of there?---To get away from the gunman."

51 He was subsequently asked to explain just what he saw. The appellant said:

"I saw him jump back and rip the sheath off the pistol and chucked [sic] it on the ground - don't know where it went - and then leaned over and put the gun against my front window. This is while's he's still outside the car."

52 He did not notice anything such as police uniforms or badges or anything with "police" written on it or any identification. He said he never had any intention to harm anybody. He repeated his evidence that he did not see any police uniforms or anything to indicate police officers. He said that between him becoming aware of the man with the gun and exiting the area took, as he put it:

"... a couple of seconds. It wasn't very far at all - a very long time at all. I would say like 5 seconds, but to me being in the position I was, it did seem like probably a little bit longer than it did take compared to when I see it on the video. It sort of happened to me in a little bit more slow motion."

53 He agreed that he had seen the video of the scene taken by Officer Ninyett.

54 Cross-examined by counsel for the prosecution, the appellant agreed that a video depicting the scene which had been taken some three months later, after the events in question, fairly depicted the scene except for one matter. The appellant thought that the white vehicle shown where he had been parked might have had power steering so that the wheels might have been straight whereas his wheels were at an angle. Asked whether he accepted the accuracy of the video film taken of the events when he was confronted by Agent Harrison, he said that "... as far as I'm concerned, half the sounds aren't there, so it's not accurate at all". He agreed that apart from the problems with the sound, what happened was fairly depicted on the video. He agreed that when he came out of the Post Office, Agent Harrison had come after him. The video showed accurately where he had come from. It was then put to him that he was "happy" that, until the time his vehicle went out of sight and Agent Harrison went out of sight, the video accurately showed what happened on the day. The appellant disagreed.

55 After watching the video again, the appellant made a number of comments, but accepted that what was shown on the video was correct. There were a number of things that could not be heard, including Agent Harrison saying "Stop. Police". The dog was not heard barking until the car reversed closer to the point where the video was taken. The radio could not be heard. The video simply did not record sound until later. The appellant conceded that he had seen the video "enough times". The appellant pointed out that it did not show him reversing his car and going forward again totally correctly until the vehicle disappeared. There was then the following exchange:

"It [ie the vehicle] disappears, but up until that time does the video accurately show what's happened, Harrison coming up to you?---Well, because I was in the situation it did seem like it was slow motion to me and I saw a lot more than what I could see from looking at the video.

I think it's time I pinned you down. In your view does it show what happened or are you saying that there's something that's - - -?---No. It doesn't really show what happened really very well at all because you can't hear much at all. You can't see very much.

...

Does what you can see with your eyes show you what happened?---It does, but it doesn't show it very well.

All right, and what we can hear with our ears we can only hear from the time you reverse - some high revs. Do you accept that?---I accept that you start hearing more as the situation got closer to the video, yes."

56 The appellant agreed that there were very few sounds of the vehicle "other than a couple of clicks" from the time he reversed his vehicle. The appellant said that Agent Harrison was not yelling out "Police, police". He said he was "very flustered and couldn't spit out what he was trying to say". He said that he did not deny that he said it. He just did not hear it. The following passage then appears:

"It is correct that no shots were fired at you?---I believe, no, but there was a lot of bang, bang, bangs.

A lot of bang, bang, bangs in your windscreen. I assume you checked for any bullet marks or anything like that?---Yes, I did, yes.

Since you say you couldn't hear Harrison, I assume by that you would also agree with me that he made no threats at you, directed at you, verbal threats?---No.

No, what? No, you're disagreeing with me or, no, he didn't make any?---No, I did not hear any verbal threats. No, I didn't hear much at all. The main thing I heard was my dog."

57 Asked why he did not stop his car when the incident happened, the appellant said:

"He was pointing a gun at me and I was in the motion of leaving, reversing."

"Do I sum it up correctly - please say if I'm wrong. You were just hell bent on getting out of there and whoever or whatever got in your way, tough luck?---No, that was not the case.

Why didn't you stop?---I was reversing.

Not all the time, Mr Paterson. You went forward?---Yes, I went forward as well. Yes.

You heard Mr Harrison, Federal Agent Harrison, say, and you heard Federal Agent Ninyett say that you drove your car towards Mr Harrison in the direction that he was?---He was never in front of the car.

...

Where was he in relation to the right front fender of your vehicle?---He was at the side of my door the whole time.

You could see him all the time, couldn't you?---Most of the time. I wouldn't say I saw him all the time. I had my head down most of the time."

59 The appellant denied that he was "hell bent on getting out of there", whoever or whatever got in his way. He said he was scared. He denied the evidence of Agents Harrison, Ninyett and Elliott, that Agent Harrison had to take evasive action to get out of his way. He said that Agent Harrison was " ... not in evasive action. He was in attacking mode." He said that the reason he did not stop was because the person who approached him had a gun, although he acknowledged that he did not see the gun until he started reversing when Agent Harrison dropped the gun on the ground with the jacket. He admitted that he had not seen the gun before that. He denied that he reversed in such a manner as to intentionally cause the officer harm.

60 It is apparent from the opening that the prosecution case was that the alleged attempt to cause harm to Agent Harrison occurred when, after reversing away from Agent Harrison and turning to a position at a right angle to where he was originally parked, the appellant drove his vehicle forward and turned to the right. The evidence of Agent Harrison was the car appeared to be coming toward him and would have hit him had he not taken evasive action. The appellant's evidence was that he drove out of the position turning right and away from Agent Harrison rather than toward him and that he had no intention of harming him.

61 The direction given by the learned Commissioner on this aspect of the case was in the context of the issue of an intention to cause harm to Agent Harrison because he was a police officer. As the Commissioner put it in his summing up to the jury:

"There are really only two ways of proving intention. They are, firstly, the person whose intention is in issue may say what he did or did not intend at a particular point in time. Whether or not one accepts what he says he did or did not intend at the particular time is another matter. You adjudge what he says he did or did not intend against all of the circumstances you find existed at the time that his intention is in issue.

If a person doesn't say what his intention was at a particular point in time then the second way of proving intention is by way of inference, an inference being a logical deduction or conclusion from a factual circumstance or combination of fact circumstances that you find proved. Indeed, as I have said, even if a persons says what his intention was at a particular point in time, when deciding whether or not to accept what he says he did or did not intend, you would weight what he says his intention was or wasn't against all of the circumstances, against the background that you found existed at the time, and then decide whether or not you believe or disbelieve what he says his intention was.

So in this particular case you need to consider all of the circumstances in relation to the conduct of the accused, including the way he manoeuvred and accelerated his motor vehicle forwards in the incident and the relevant positions of the accused's ute and Officer Harrison when he drove his ute forwards. What was said, what was not said, what you think would have been heard, what was heard - all of these things need to be taken into account."

62 The learned Commissioner also make it clear that it was not enough for the Crown to prove that the appellant drove recklessly in such a way as to put Agent Harrison at risk, but it was necessary to prove that the appellant intended to cause him harm by driving the vehicle at him. Later in his summing up the Commissioner said:

"You have to be satisfied that in the course of getting away from the scene - and as has been mentioned by both sides, obviously the accused for some reason, and there's a difference of view as to the reason but obviously the accused for some reason wanted to get away from the scene. He says that he was scared because an unknown person whom he didn't know to be a policeman pointed a gun at him.

You have to be satisfied that in the course of doing so, that is, getting away from the scene, he had an intention to cause harm to Officer Harrison. So it's not enough for the crown to satisfy you that the accused knew that Officer Harrison was a police officer and because of that wanted to get away from the scene. Further, it's not enough for the crown to satisfy you that in getting away from the scene the accused drove recklessly and in such a way that put Officer Harrison's physical welfare at risk.

The crown must satisfy you that when the accused conducted himself in the way he did, that when he drove his ute forwards in the circumstances in which he did it he had an intention to cause harm to officer Harrison. On this issue of intention you must bear in mind that it is the accused's state of mind that you are concerned about, so it is a subjective test. The test is: what was the accused's state of mind at the time? The question is: has the crown satisfied you that he accused had such an intention?"

Ground 5: Necessity to prove that the complainant, Federal Agent Harrison, was a Commonwealth or Federal Police Officer rather than a State Police Officer

63 The first ground argued by counsel for the appellant was ground 5. Ground 5 contended that the learned trial Judge erred in directing the jury that the Crown did not have to prove that the appellant knew that Federal Agent Harrison (the complainant) was a Commonwealth or Federal Police Officer rather than a State Police Officer.

64 It was contended that the trial Judge misdirected the jury when he told them that the Crown only had to prove that the appellant knew that Agent Harrison was a police officer and that it was not necessary for the prosecution to prove that Harrison was a Commonwealth Police Officer. In this context, the learned Commissioner directed the jury that:

"In this particular case the key issues are whether or not the accused knew that Officer Harrison was a police officer, whether or not he intended to harm Officer Harrison, and involved in that is the issues as to whether or not the officer was standing to the side of the vehicle when it was driven forwards or whether he was at a position in front of the vehicle, and also, if he did have an intention to harm Officer Harrison, whether or not he had such an intention and manoeuvred his ute in the way that he did because Officer Harrison was a police officer.

Before I go any further, I should tell you that when I refer to harm in this particular case I mean physical harm, be it permanent or temporary. I should also tell you that as a matter of law a member of the Australian Federal Police is taken to be a Commonwealth law enforcement officer. I should also tell you and it won't come as any surprise that an Australian Federal Police is a public officer."

65 Later his Honour again directed the jury on the question of knowledge by the appellant that Agent Harrison was a police officer as follows:

"Did the accused know that Officer Harrison was a police officer? When during the course of the incident was the firearm drawn? What was done with it? What significance, if any, do you attach to that? The video captures vision of the relative positions of the accused's ute and Officer Harrison when the accused reversed his ute in an arc. What do you make of that? There is a conflict between the evidence of Officers Harrison and Elliott on the one hand and the accused on the other on where Officer Harrison was positioned relative to the accused's ute when the accused drove forwards in an easterly direction towards the railway line.

Officer Harrison says that he was in front and had to step aside to avoid being hit. Officer Elliott supports that. The accused says that Officer Harrison was alongside the driver's side door, and that also at that time he was pointing a gun at him, and that at no time was Officer Harrison in front of his ute. So these are matters of fact that you will need to consider and reach findings on if you are able.

What findings you make on all of this evidence is entirely a matter for you. What significance, if any, you attach to your findings on this aspect of the evidence is entirely a matter for you. On the issue of intention generally, what inferences you think are open and what inference you reach, bearing in mind the rule on inferences that I have explained to you, is entirely a matter for you.

Remember to reach a finding by inference that the accused had an intention to cause harm to Officer Harrison, you must be satisfied not only that the circumstances you find proved were consistent - or are consistent with him having such an intention but you must also be satisfied that the circumstances you find proved are such as to be inconsistent with any other reasonable conclusion than the accused had such an intention."

66 Prior to the trial, at a preliminary hearing under s 611A of the Criminal Code (WA), counsel for the Commonwealth, Mr Dembo, had submitted to the learned trial Judge that in accordance with s 147.1 of the Cth Code:

"The Crown must prove knowledge on behalf of the accused that he intended to harm the Commonwealth public official. It's the Commonwealth part that's an absolute offence. We have to prove a public official. It's absolute liability; once the Crown has proved that it's a public official acting in their duty, it's absolute liability if the official is a Commonwealth official. That's the only part. The Crown doesn't have to prove knowledge by the accused that Harrison was a Commonwealth, and I stress Commonwealth, public official. The Crown must prove knowledge that it was a public official engaging in his capacity as a public official."

67 Thus, there was an onus on the Crown to prove that the appellant knew that Agent Harrison was a public official. It was not necessary to prove that he was not only a public official but also a Commonwealth public official. In my opinion, however, it was also necessary for the Commonwealth to prove that the alleged attempt to cause harm to the public official was made because of the relevant person's status as a public official or any conduct engaged in by the officer in his capacity as a public official. This necessarily required knowledge on the part of the appellant that Agent Harrison was a police officer.

68 As has already been seen, the penalty for an offence under s 147.1 of the Cth Code is imprisonment for a maximum of 13 years under s 147.1(1)(f) in the case of "a Commonwealth law enforcement officer". Section 147.1(1A) provides that absolute liability applies to the pars (i)(ea), (eb) and (ec) elements of the offence.

69 Counsel for the appellant contended that the trial Judge erred in directing the jury that the Crown did not have to prove that the accused knew that Agent Harrison was a Commonwealth or Federal police officer, rather than a State police officer. In either case, of course, the Crown would have to prove that the appellant knew that Agent Harrison was a public official. This contention was put in two ways. First it was submitted that, as a matter of drafting, it is apparent from the relevant provisions that a deliberate choice was made not to specifically provide in s 147.1 or elsewhere a requirement that the appellant knew that Agent Harrison was a Commonwealth police officer, rather than a State police officer. Secondly, it was submitted that the natural meaning of the words in the relevant subsection, namely, s 147(1)(e) when read with s 147(1)(eb) meant that the public official must be a Commonwealth public official.

70 As has been seen, s 147.1(e)(i) has the effect that if "a person (the first person) engages in his or her conduct because of the official's status as a public official", or as provided in s 147.1(e)(ii) "any conduct engaged in by the official in the official's capacity as a public official" an offence is committed.

71 On the face of it, these provisions require proof of knowledge on the part of the alleged offender that the person concerned was at least, a public official. In the present case, there was a real issue on that point. The Crown case was that the appellant knew that Agent Harrison was a public official, namely, a police officer, because he shouted a number of times, "Stop. Police", from which the appellant must have understood that Agent Harrison was a police officer, having identified himself as such. Two questions immediately arise. The first is whether those words were spoken or shouted at all. The second is whether they were shouted in a manner which must have been heard by the appellant, who was in his car with a dog barking, the radio and engine on and probably had the driver's window wound up at the time it was said that the words were spoken.

72 The effect of sub-par (e)(i) in s 147.1 is that an offence is committed if a person causes harm to a public official "because of" his status as such. That in turn requires not only that the person had that status, but that the alleged offender knew that he had. That knowledge would be a necessary element in causing harm to a person because of his status as a public official. Counsel for the appellant referred to a number of provisions in the Cth Code which specifically provide that the Commonwealth Crown is not required to prove knowledge or knowledge or belief in a certain state of things, namely, ss 132.1(2A) (receiving); 132.2(3) (robbery); 132.3(2A) (aggravated burglary); 132.43A, 132.4(4), 132.4(6) and 132.4(7) (burglary), 132.5(3), 132.5(4)(a), 132.5(4)(b), 132.5(5)(a), 132.5(5)(b) and 132.5(5)(c) (aggravated robbery), 132.7(3)(c), 132.7(3)(d), 132.7(4)(c), 132.7(4)(d) and 132.7(4)(e) (going equipped for theft), 135.1(4) (causing loss), 135.1(8)(a) and 135.1(8)(b) (influencing a Commonwealth official), 135.4(2), 135.4(4) and 135.4(6) (conspiracy to defraud), 135.4(8)(a) and 135.4(8)(b) (influencing a Commonwealth public official), 141.1(2)(a) and 141.1(2)(b) (giving a bribe). Numerous other provisions were referred to to the same effect identifying elements of the offence in relation to knowledge which was not required to be proved: see ss 142.1(2)(a), 142.1(2)(b), 144.1(2), 144.1(4), 144.1(6) and (8), 145.1(2), 145.1(4), 145.1(6) and (8), 145.2(2), 145.2(4), 145.2(6) and (8) and 145.4(3).

73 In the case of the offence of obstruction of Commonwealth public officials under s 149.1(2)(a), the Crown was not required to prove that the defendant knew the official was a Commonwealth public official. In relation to s 149.1(2)(b), obstruction of Commonwealth officials, it is not necessary to prove that the defendant knew the functions were the functions of a Commonwealth public official.

74 In the light of these provisions, it was submitted that, had the relevant legislation intended to establish that the prosecutor did not have to prove that the defendant to a charge under the provisions in question knew that the relevant official was a Commonwealth public official, express provision would have been made to that effect. As Steytler J pointed out during the course of the hearing, the more relevant proposition was that, had the Commonwealth intended that the first person should know that the other person involved was a Commonwealth public official, it would have provided in s 147(1)(e)(i) that:

"The first person engages in his or her conduct because of:

(i) the official's status as a Commonwealth public official."

75 However, I note that it is an element of the offence that, as provided in s 147.1(1)(ea) that "the public official is a Commonwealth public official"; and it is further provided in par (eb) that, "If par (e)(i) applies - the status mentioned in that subparagraph was status as a Commonwealth public official".

76 In my opinion, it is critical that, as compared to many other places in the Cth Code, in the present case knowledge that the relevant official was a Commonwealth public official was an additional element of the offence. Hence the function of par (eb) is that it adds an element if subpar (e)(i) applies, namely that the offender knew that the status in that subparagraph was status as a Commonwealth public official. In my opinion, the provision under which the appellant was charged necessarily requires proof, as an element of the offence, that the appellant engaged in the relevant conduct because of the status of Agent Harrison as a Commonwealth public official. In my opinion, the words "because of the official's status as a public official" require proof of knowledge, at the least, that the accused knew that the person who was approaching was a public official.

77 It is then necessary to take into account the provision in s 147.1(1A) which provides that absolute liability applies to the pars (i)(ea), (eb) and (ec) elements of the offence. As I understood the position of the Commonwealth, it was that upon proof that harm was caused to a Commonwealth public official in a way which otherwise brought the person charged within the purview of the section, and proof that the victim was a Commonwealth public official, the provision for absolute liability applies.

"(1) If a law that creates an offence provides that the offence is an offence of absolute liability:

(a) there are no fault elements for any of the physical elements of the offence; and

(b) the defence of mistake of fact under section 9.2 is unavailable

(2) If a law that creates an offence provides that absolute liability applies to a particular physical element of the offence:

(a) there are no fault elements for that physical element; and

(b) the defence of mistake of fact under section 9.2 is unavailable in relation to that physical element

(3) The existence of absolute liability does not make any other defence unavailable."

79 These provisions are not easy to reconcile. In the present case, the defence was that the appellant did not know that the complainant was a police officer of any kind. He simply reacted to the apparent threat of an armed person coming towards his car by attempting to escape because he thought the person approaching intended to do him physical harm.

"(1) A person is not criminally responsible for an offence that has a physical element for which there is a fault element other than negligence if:

(a) at the time of the conduct constituting the physical element, the person is under a mistaken belief about, or is ignorant of, facts; and

(b) the existence of that mistaken belief or ignorance negates any fault element applying to that physical element

(2) In determining whether a person was under a mistaken belief about, or was ignorant of, facts, the tribunal of fact may consider whether the mistaken belief or ignorance was reasonable in the circumstances."

81 The defence case was that the appellant was under a reasonable mistaken belief about the identity of Agent Harrison as a police officer and that he was simply trying to escape from a situation in which he believed that the armed person by whom he was confronted intended to cause him harm. In particular, his evidence was that he did not hear anyone say "Stop. Police" or anything which would have identified the speaker as a police officer. Furthermore, under s 147.1(1)(e)(i), not knowing that Agent Harrison was a police officer, the element of the offence in s 147.1(1)(e) could not be satisfied because he did not engage in the conduct, either because of Agent Harrison's status as a public official, or because of the conduct engaged in by Agent Harrison in his capacity as a public official, given the absence of knowledge that Agent Harrison was a public official.

82 The question then becomes whether under s 9.1(2), the mistaken belief or ignorance was reasonable in the circumstances. That, of course, is a question for the jury. A further result of that analysis is that sub-pars (ea), (eb) and (ec) do not fall to be considered if neither of the elements of the offence in par (e) is established.

83 Counsel for the Commonwealth submitted that the construction put forward on behalf of the appellant of the combined operation of ss 147.1(1)(e)(i) and 147.1(1)(eb) misconstrued their effect and was inconsistent with the clear intention of those provisions. It was contended that a connection to a Commonwealth public official as a matter of fact was made by s 147.1(ea) which requires that:

"The public official is a Commonwealth public official ..."

84 The effect of the provision in s 147.1(1A) was said to be that absolute liability applies, among other things, to s 147.1(1)(ea). Absolute liability is defined in s 6.2(2) of the Cth Code in relation to an element of the offence. The term "public official" is defined in the dictionary to the Cth Code to include a Commonwealth or State public official. The next step in the argument is that s 147.1(1)(e)(i) requires the conduct to occur because of the official's status as a public official. It was contended that this reference was related to the element of engagement by the alleged offender in the conduct and thus relates to his or her intent in so acting. The phrase in s 147.1(1)(eb) to "... the status mentioned in that subparagraph" was said to be a reference to the actual status or status in fact of the public official. It was said that this was a different element to that involved in s 147.1(1)(e)(i). This led to a final submission that, in relation to this element of actual status, s 147.1(1A) had the effect that this element made the offence one of absolute liability. In other words, the prosecution must establish that the appellant engaged in his conduct because of the status of the public official as a Commonwealth or State public official and that, as a fact, the official's status at the time was that of a Commonwealth public official.

85 In my opinion, however, with all due respect, that does not overcome the necessity for the prosecution to prove that the appellant engaged in the relevant conduct, either because of Agent Harrison's status as a public official, or by reason of conduct engaged in by Agent Harrison in his capacity as a public official. Consequently, it was necessary for the prosecution to prove beyond a reasonable doubt that, at the material time, the appellant knew that the person approaching him was a police officer and, consequently, a public official. In the result, therefore, it was a necessary part of the prosecution case to prove beyond a reasonable doubt that Agent Harrison identified himself as a police officer by calling out, "Stop. Police" in a manner and in circumstances which would satisfy the jury beyond reasonable doubt that the appellant must have heard him say that and, as a consequence, must have known that Agent Harrison was a police officer and was for that reason a public official. In my opinion, the learned Commissioner's directions to the jury made it clear that the jury had to be satisfied beyond a reasonable doubt that not only did Agent Harrison shout at least twice "Stop. Police", but also that the circumstances were such that they were satisfied beyond reasonable doubt that the appellant heard those words and that they conveyed to the appellant that, notwithstanding his plain clothes and the manner of the approach by Agent Harrison, including the fumbling with the jacket, the gun and holster, that Agent Harrison was in fact a police officer and not someone posing as a police officer.

86 In my opinion, the directions of the learned Commissioner on this point were adequate. The primary issue which was identified by the Commissioner for the jury was:

"Did the accused know that Officer Harrison was a police officer?"

87 If that question was answered in the affirmative, it would follow that the appellant knew that Officer Harrison was a "public official". It follows that ground 5 has not been made out.

88 Ground 6 of the grounds of appeal contended that:

"The learned trial Judge erred in failing to address the jury as to whether the [appellant] acted as he did because of duress."

89 Section 10.2 of the Commonwealth Code provides that:

"(1) A person is not criminally responsible for an offence if he or she carries out the conduct constituting the offence under duress.

(2) A person carries out conduct under duress if and only if he or she reasonably believes that:

(a) a threat has been made that will be carried out unless an offence is committed; and

(b) there is no reasonable way that the threat can be rendered ineffective; and

(c) the conduct is a reasonably response to the threat.

(3) This section does not apply if the threat is made by or on behalf of a person with whom the person under duress is voluntarily associating for the purpose of carrying out conduct of the kind actually carried out."

90 It needs to be borne steadily in mind that by s 147(1)(a), absolute liability applies only to the elements of the offence specified in pars (1)(ea), (eb) and (ec). Given the verdict of the jury, it seems to me that the jury must have been satisfied beyond a reasonable doubt that Officer Harrison was a police officer and as a necessary consequence in the context of s 147.1 that Officer Harrison was a "public official". For these reasons, ground 6 has not been made out.

Ground 1 - Conduct of Counsel for the Prosecution

91 Ground 1 of the grounds of appeal contended that the manner in which counsel for the Commonwealth conducted the prosecution case:

" ... gave rise to a real risk of improper influence over the jury and thereby caused a substantial miscarriage of justice to the appellant."

92 Counsel for the appellant made it clear that no allegation was being made of a deliberate attempt to improperly influence the jury. The submission was that errors of judgment were made, which caused an unfair result and an unfair impact upon the appellant's case at the trial.

93 Where submissions of this kind are made, the starting point is that counsel for the prosecution has an overriding duty to ensure that the prosecution case is presented properly and with fairness to the accused: Richardson v The Queen [1974] HCA 19; (1974) 131 CLR 116 at 119 per Barwick CJ, McTiernan and Mason JJ; and R v Lucas [1973] VicRp 68; [1973] VR 693. The relevant authorities were dealt with in some detail in my judgment in Vella v The Queen (1990) 2 WAR 537 at 539 - 542. In particular, I said at 540:

"Crown counsel should not allow himself to become an advocate fighting for a conviction and it is quite impermissible for him to persuade a jury to a point of view by the introduction of factors of prejudice or emotion: R v Roulston (1976) 2 NZLR 644. While prosecuting counsel should not fight for a conviction, he is fully entitled to be as firm as the circumstances warrant. This does not mean, however, that he is entitled to employ language likely to inflame the jury against an accused: R v Banks (1916) 2 KB 621; R v House (1921) 16 Cr App R; R v Hay & Lindsay [1968] Qd R 459. This was referred to with approval by Wickham J in Cushing v The Queen [1977] WAR 7 at 11. In R v McCullough [1982] TASR 43, the Court of Criminal Appeal of Tasmania (Green CJ, Neasey and Everett JJ) regarded the following passage in CS Kenny Outlines of Criminal Law (19th ed 1966) at 611 - 612 as stating 'The proper role' of prosecuting counsel:

'... The Crown counsel is a representative of the State, "a minister of justice", his functions is to assist the jury in arriving at the truth. He must not urge any argument that does not carry weight in his own mind, or try to shut out any legal evidence that would be important to the interests of the person accused. "It is not his duty to obtain a conviction by all means; but simply to lay before the jury the whole of the facts which compose his case, and to make these perfectly intelligible, and to see that the jury are instructed with regard to the law and are able to apply the law to the facts." "It cannot be too often made plain that the business of counsel for the Crown is fairly and impartially to exhibit all the facts to the jury. The Crown has no interest in procuring a conviction. Its only interest is that the right person should be convicted, that the truth should be known, and that justice should be done."'"

94 In R v McCullough [1982] Tas R 43, the Court of Criminal Appeal of Tasmania (Green CJ, Neasey and Everett JJ) commented on that passage at 57 - 58 as follows:

"That passage was cited with approval by W B Campbell J sitting as a member of the Court of Criminal Appeal in R v Hay & Lindsay [1968] Qd R 459. However, it should also be said that the observance of those canons of conduct is not incompatible with the adoption of an advocate's role. Counsel for the Crown is obliged to put the Crown case to the jury, and when appropriate, he is entitled to firmly and vigorously urge the Crown view about a particular issue and to test and, if necessary, to attack that advanced on behalf of the accused. But he must always do so temperately and with restraint, bearing constantly in mind that his primary function is to aid in the attainment of justice, not the securing of convictions. As the New Zealand Court of Appeal said in R v Roulston [1976] 2 NZLR 644 (at 654):

'... it has always been recognised that prosecuting counsel must never strain for conviction, still less adopt tactics that involve an appeal to prejudice or amount to an intemperate or emotional attack upon the accused. Such conduct is entirely inappropriate and a basic misconception of the function of any barrister who assumes the responsibility of speaking for the community at the trial of an accused person. Naturally enough, a proper balance needs to be maintained. ...

The feel and atmosphere of one trial may make it reasonable and even necessary for tactics to be employed that would seem out of place and disproportionate to the circumstances of another. Nevertheless, it is wrong for Crown counsel to become so much the advocate that he is fighting for a conviction and quite impermissible 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.' "

95 In McCullough (supra) at 58 - 59, the Tasmanian Court of Criminal Appeal held that remarks made to the jury by counsel for the prosecution went beyond the bounds of what was necessary for the proper presentation of the case for the Crown and exceeded the bounds of propriety. While their Honours said that this conclusion would not in itself be sufficient to justify allowing the appeal, they concluded that there was a real risk the jury were improperly influenced by those remarks, with the result that:

"... the trial process was compromised in that the possibility cannot be excluded that in convicting the appellant the jury were actuated, partly at least, by indignation, disgust and fear aroused by the intemperate language employed by counsel for the Crown. That is enough to demonstrate that a miscarriage of justice within the meaning of the Criminal Code s 402 occurred and that the verdict cannot be allowed to stand."

96 In Vella v The Queen (supra), I went on to say at 541 - 542 that:

"The starting point is that it is fundamental that the accused should have a fair trial and that counsel for the prosecution should not do anything which would prejudice the fairness of the trial. This is one of the duties of any counsel. Counsel should not make assertions or make imputations which are likely to prejudice a jury unfairly against a party. Where there is a real risk that remarks made by counsel would have improperly influenced the jury, the court has jurisdiction to order a new trial: Croll v McRae (1930) 30 SR (NSW) 137; Fitzpatrick v Walter E Cooper Pty Ltd [1935] HCA 82; (1935) 54 CLR 200; Vosser v Tooth & Co Ltd [1963] NSWR 1675; Chatzipantelis v Grimwade Castings Co Pty Ltd [1966] VicRp 33; [1966] VR 242; Smout v Smout [1989] VicRp 74; [1989] VR 845; R v M (1991) 2 Qd R 68; R v Lewis (1994) 1 Qd R 613."

97 The question in each case is whether the conduct of counsel for the prosecution has resulted in a miscarriage of justice: R v Lewis (1994) 1 Qd R 513 at 626 - 627 per Macrossan CJ (with whom Byrne J agreed).

98 In that case, although parts of the address by counsel for the prosecution had exceeded acceptable limits, it did not, in the end, result in a miscarriage of justice.

99 In Whitehorn v The Queen [1983] HCA 42; (1983) 152 CLR 657, Dawson J referred to:

"... The general obligation which is imposed upon a Crown prosecutor to act fairly in the discharge of the function which he performs in a criminal trial. That function is ultimately to assist in the attainment of justice between the Crown and the accused. In this respect the Crown prosecution may have added responsibilities in comparison with other counsel but it does not mean that his is a detached or disinterested role in the trial process."

100 It was submitted on behalf of the appellant that counsel for the Crown wrongly suggested to the appellant in cross-examination and to the jury in his closing address, that no report of the incident at the Post Office on 27 March 2002 had been made to the police. It was further submitted that counsel for the Crown then had in his possession a statement from Sergeant Taylor, a member of the Western Australian Police Service stationed at Bridgetown, that indicated to the contrary. In that statement, Sergeant Taylor said:

"On 27 March 2002, I was on duty at the Bridgetown station when at approximately 12.21 pm I received a telephone call from a person who introduced herself as Suzie WILKINSON. From previous dealings I recognised this person as Susan WILKINSON of 5 Huggett Place, Bridgetown. She said to me, 'Why are the police chasing Aaron?'

After confirming that she was referring to her de-facto husband Aaron PATERSON I said, 'I am not aware that Police are chasing Aaron'. We then had further conversation and left it at that.

I can confirm from station records that there were no reports to Police of incidents of assault, threats, or firearm involvement on 27 March 2002."

101 Later in the cross-examination of the appellant by counsel for the prosecution, the following passages appears:

"You were pretty scared out of your mind, I think you're trying to tell his jury?---Yeah. It was a pretty frightening situation.

So why didn't you go and report it to the cops?---I rang my de facto from somebody's house.

Yes?---Okay? And she rang the police from there.

Yes, okay. We will take that on board. You didn't go to the police to make a complaint?---No. I had no idea who was after me at the time [emphasis added].

I will just put to you, if members of the jury were to accept what you're saying - would you disagree with this proposition: someone's in a carpark, on your version. Some lunatic comes running at you, mumbling things, pulls a gun at you. Wouldn't you expect that the first thing one would do would be to go to the Bridgetown police station, which is just around the corner, and report it? 'Hang on, there's a maniac in this carpark.' Wouldn't that be a reasonable proposition for anybody to do?---Not if they were scared out o their wits, no.

But who's your protection, if you're scared out of your wits? Surely they are the best people to protect you in those circumstances, the coppers who are just around the corner?---Yes, and we went to inform them. Yes.

When did we go to inform them?---I'm not sure. It was like within 15 minutes."

102 At that stage, of course, Sergeant Harrison of the Western Australian Police Service had given evidence for the prosecution that there was no record of any report about the matter in the records of the Bridgetown police station. The following cross-examination of the appellant then occurred:

"Your counsel did not - you were here - did not challenge him on that evidence at all, did he?---No, he did not. No.

You presumably told your counsel the story you're asking this jury to believe?---Yes.

So are you saying on oath that within 15 minutes you went to the - be careful now. I've given you a fair go?---Yes.

That within 15 minutes you went to the police station at Bridgetown and report [sic] it?---No, I did not go to the police station to report it.

Okay. You're in a corner now. You're changing your story, are you?---No.

Well, when did you report it? You said you reported it within 15 minutes?---I rang my de facto, I said. She rang the police.

You said, 'We reported it within 15 minutes.' We can play that back as well if you like?---I would say, yes, we reported it. I conferred with my de facto. She rang the police.

Were you present when she did so?---No.

You don't know who rang the police or, if anybody rang the police, when?---I believe my de facto, what she says.

Did you tell your de facto, now that you've brought this up, to ring the police to ask why the coppers - if the coppers were after you?---No.

What did you tell your de facto to tell the police?---I told them - I didn't really tell her to tell them anything.

What did you tell your de facto please?---I said that someone was chasing me with a gun.

Are you sure you didn't say, 'The coppers are chasing me'?---No.

There'd be no reason then for anybody, particularly your de facto, to tell the police that you told her the coppers were chasing you?---Sorry. Say that again?

On what you say now, there'd be no reason for your de facto to tell the police that you had said, 'Why are the coppers chasing me?' or words to that effect?---No. No, that's not what was said. No.

No, so she wouldn't have made something like that up, as far as you know your de facto. I know you can't talk for her?---What are you saying?

She wouldn't have made something like that up to say - - -?---No.

- - - to the police, well, why are the police chasing you?---No."

103 These passages, when taken in the overall context of the trial, constituted a significant attack on the credibility of the appellant which called into question his evidence that he asked his de facto to call the police. In my opinion, it was improper for counsel for the prosecution to suggest that the appellant was both lying and had changed his story, having regard to the contents of the statement in the Crown brief from Sergeant Taylor, while at the same time attempting to obtain a forensic advantage by later making use of the evidence in the statement of Sergeant Taylor that Ms Wilkinson telephoned him and said to him:

104 The appellant denied that he had told Ms Wilkinson that the police were chasing him.

105 The appellant's evidence at the trial was that, at first, he said "... we went to inform them", namely the police. He then corrected that and said that he telephoned his de facto and she "rang the police" and added, "Well, look I really didn't tell her to tell them anything". As McKechnie J pointed out at the hearing of the appeal, this left open at least a theoretical possibility that Ms Wilkinson concluded that police were chasing the appellant. In the light of the evidence and materials in the Crown brief, I consider that the cross-examination was unfair. In my opinion, however, this incident alone was not enough for the trial to miscarry, although it was prejudicial to a degree. The appellant apparently had the opportunity to call Ms Wilkinson, but she was not called to give evidence.

106 It was in this context that counsel for the prosecution elected at the outset of the trial to lead evidence from Sergeant Harrison that there was no relevant report to the Bridgetown state police of the incident. Had there been evidence that a report had been made to the effect that "Why are the police chasing Aaron?" [ie the appellant], counsel for the appellant readily agreed that objection would have been taken to the admissibility of such evidence. From that position, counsel for the appellant submitted that knowing, in his cross-examination, the appellant had said there was a report, which could have been corroborated by Sergeant Taylor, it was unfair to suggest that on 27 March 2002 there were no reports of any incidents, threats or firearm involvement. Given the knowledge by counsel for the Crown of the telephone call from Ms Wilkinson to Sergeant Taylor, it was unfair of counsel for the Crown to suggest that nothing was said at all by anybody, which was the position adopted by counsel for the Crown, who then sought at the same time to capitalise on the fact that the report of the incident was in terms of a question ("Why are the police chasing Aaron?") In the circumstances, the situation could have been clarified by cross-examination of Sergeant Taylor, but there was no relevant cross-examination other than to establish that Sergeant Taylor was aware that there were Federal Police in town.

107 In my opinion, as was pointed out by Steytler J in argument, the inference is that counsel for the defence assessed that the evidence of Sergeant Taylor concerning the content of the report was more damaging than helpful. No doubt it was for this reason that counsel for the Crown cross-examined the appellant on the substance of the telephone call from Ms Wilkinson which was evidence that counsel for the defence presumably wished to avoid being brought out.

108 It was against this background that counsel for the Crown said that not only did the appellant not go to the police and report the incident:

"He phones his wife 15 minutes later and she - he says 'Well, we reported it'. You heard the police officer but it is a matter for you of course. The police officer, Sergeant Taylor, the first witness - remember I had called him out of turn, so he could get back to his duties. Surely you would report such an incident."

109 It was also submitted that at a number of points in the cross-examination, to which I have referred, and on a number of other occasions subsequently, counsel for the prosecution made a number of inappropriate comments such as:

"I want an answer that answers the question. You know certainly as a martial arts - you know how to look after yourself ...";

"After this event where you've hooned off - it's fair to say hooned off - at quite a high speed."

110 Complaint was also made of the following comment in cross-examination when the appellant said that the horn of his utility was not working properly. Counsel for the prosecution then asked:

"No, so these people must believe you're driving a ute with a family, two young kids I think you say you've got, with a horn that doesn't work?"

111 It was submitted that, on the face of it, there could have been no foundation for this comment. That, of course, depends on what relevant instructions, if any, counsel for the prosecution had at the time. If there was no basis in fact for the comment, it would have been improper. Absent any evidence on the point, it cannot be taken any further.

112 In cross-examination, it was put to the appellant that he had "a fairly good view of Federal Agent Harrison". The appellant's reply was "I wouldn't say I got a good view of him, but, yeah, I saw his face." It was then put to him that he could have described him easily to the police, to which the appellant replied, "Actually, he did look different a few years ago." The cross-examination then continued:

"You see, I put to you the reason why you hooned out at 30 kilometres an hour as you say. I put to you that you hooned out of that carpark because you knew Harrison was a cop. Yes or no?---No.

Because you'd heard him tell you on at least two or three or more occasions to 'Stop. Police'?---No, that's incorrect.

You knew - you tried to run him down?---That is incorrect.

You knew you intended to cause him some harm, but missed because he jumped out of the way?---No.

You did whatever you could to get out of there. Right?---No. That's incorrect.

You're saying you were frightened?---Yeah. I was scared, very.

Why didn't you carry on reversing out and go out the other way and then not drive in the direction of this maniac standing in front of you?---If you had tried to reverse out like you are suggesting, I would have reversed straight into main traffic that was on the main road.

Yelling and screaming and hopefully attracting somebody's attention to get rid of this person who's trying to, for no rhyme or reason, stop you?---There's no way I would have reversed out onto that road. No way.

The course of action was open to you had you chosen to do so, though. Do you agree with that?---I suppose I could have kept on reversing, but that just would have been ridiculous.

Rather not reverse and try and run somebody over who happens to be in your way?---No. He was never in the way.

So he's got it wrong again, has he, when he says he had to take evasive action?---Yes, that's correct

Federal Agent Elliott has also got that wrong?---Yes.

The version of events that you were giving members of the jury this afternoon you presumably told your counsel about?---Yes

You see, your counsel didn't put it to the police officer, did he, that you did not hear him say, 'Stop. Police'?---Sorry?

Your counsel didn't put it fairly and squarely to the police officer that you didn't hear."

113 At that point, counsel for the appellant at the trial objected and said that he had put it to one of the police officers that "it must have been pretty soft". The transcript then records the following:

"THE COMMISSIONER: I'm not sure that the police officer can say whether or not an accused hears or not. He can say what he says to the accused.

DEMBO, MR: Yes.

You didn't say to your - or your counsel didn't put to Federal Agent Harrison that he was flustered and muttering and trying to say something, but couldn't get the words out?---Didn't he - - -

Okay. You were here, the same as I was?---Yeah.

You see, I will tell you why he didn't put it to him: because this is just an invention that you are making up as you go along, isn't it?---No, that's incorrect.

Are you saying you told your counsel that Harrison mumbled something at the time: that you couldn't hear what he was mumbling?---Yes, he was - you could see him trying to spit out something, but it just wouldn't come out.

Spit out something, yes, and yet that wasn't put by your counsel. The officer wasn't cross-examined or given the opportunity to explain that, was he?---He gave his version of events, I think.

You will agree with me that these matters were not put to the police officer?

Trust me. I'm sure if they were, Mr Owens would have jumped up and down by now?---Yeah. Okay. Well, he mustn't have done that, no."

114 Later, at 123E-124B, the appellant was cross-examined about his evidence that he saw Agent Harrison jump back and then lean over and banged the gun against his front window. In cross-examination he was asked when he did that. The appellant answered:

"This was when the car had done the point turn backwards, when I'd reversed and stopped. He was at the side of my window, right, and he has jumped back, like commando style. Ripped off the sheath and gone whack against the window.

What, he had some sort of death wish that he would get run over, did he? Is that what you are asking us to accept?---It seemed like that, yeah."

115 It was at that stage that Mr Dembo asked for the opportunity to make a submission in the absence of the jury. This related to the telephone call from the appellant to his de facto. Mr Dembo then said:

"Your Honour will recall that we had a voir dire on this and I was directed to and indeed I would never have in chief brought out the fact that the de facto phoned on the same day, according to the police officer, and said, 'Why are the police chasing Aaron?'

Now that has come out in the course of cross-examination and I will seek to - I will have to see if Sergeant Taylor is available [to] lead evidence in rebuttal. Now, on the basis of the telephone call that Taylor received, it having been brought out by the accused in cross-examination, as to the content of that call. He has denied as far as he knows - he didn't tell his wife that it was the police chasing him. That's what he says and yet the - - -

THE COMMISSIONER: Wouldn't the witness that would need to be called be his de facto? She is the person who the accused has spoken to.

DEMBO, MR: That's up to the accused. He has said in his evidence, 'We've reported it.' By 'we', meaning, 'I've told my wife to report it.' I understand that Sergeant Taylor would give the evidence that he has that the Crown previously didn't lead, in paragraphs 2, 3 and 4 of his deposition at page 10A of the brief. It would not be for the Crown to call a witness unproofed, the reliability of whom may or may not be beyond repute. I don't know.

My understanding, with all due respect to the lady, is that she would not be a reliable Crown witness. I say this with the utmost of respect. There was a time and there's information in the brief to the effect that Federal Agent Ninyett actually called upon Ms Wilkinson, I think it is, I think it might be Ms Wilkinson there. I have never met her, but I will still say what I'm saying. I don't need her to - in fact, if she is a potential witness maybe she should leave the courtroom, sir."

116 It was confirmed that the lady in question was Ms Wilkinson.

117 Mr Dembo then indicated that he had been informed that Federal Police had attended on Ms Wilkinson some days after Sergeant Taylor had received the telephone call, but she had told them she could not longer remember. After some discussion, the Commissioner indicated that the person who would need to be called was Ms Wilkinson as the evidence of anybody else would be hearsay.

118 The Commissioner noted that whether or not the appellant knew that Agent Harrison was a police officer or not was a key issue and one of the other key issues was the appellant's intention. The Commissioner ruled that the Crown was entitled to lead rebuttal evidence, provided that evidence was admissible. This meant it would need to come from Ms Wilkinson. That matter was put aside for the time being and the jury were recalled. The cross-examination then continued. The appellant denied that he pressed down the lock of the driver's door. He also denied that he rapidly wound the window up and repeated his explanation that he had only put it down just enough "for the dog".

119 Counsel for the appellant contended that counsel for the prosecution repeatedly used language which was "inappropriate and calculated to inflame the jury against the applicant". It is necessary to examine each of them in turn.

120 At p110 of the transcript in the cross-examination of the appellant, the following passage appears in respect of the video:

"So you've had plenty of opportunity to look at it as many times as you like?---Yes, I've looked over it a few times. Yes.

Nobody has deprived you of any opportunity to look at the video, have they?---I would have liked to have taken it home and had a good look, but - - -

Are you suggesting that the crown stopped you doing that, because they didn't. Your counsel was entitled to - - -?---I'm not too sure whether that's the case or not.

But if you wanted to go and see Mr Owens - we know he's a busy man - you could have gone to his office at any convenient time - - -?---Yes, that's correct.

- - - and seen it as many times as you like?---Yes.

Would you like to see it again? You're on trial here. Would you like to see it again?---For what purpose?

You tell me. I'm offering you the opportunity to see it again?---I think I've seen it enough times."

121 Counsel for the appellant contended that the appellant had never said that he had been deprived of any opportunity to see the video. He had never said the Crown had deprived him of anything. There was no basis for putting it to the appellant that he was deprived of any opportunity to view the video. Counsel for the appellant submitted that the comment was uncalled for and calculated to put the appellant in a bad light, as opposed to the Crown, which was doing everything it could to facilitate things for the appellant. In my opinion, as counsel for the appellant himself acknowledged, this point, standing alone, was a small point.

122 The appellant did not agree with counsel that the video showed totally correctly the appellant reversing his vehicle and going forward again, when it disappeared. The following exchange then occurred:

"It disappears, but up until that time does the video accurately show what's happened, Harrison coming up to you?---Well, because I was in the situation it did seem like it was slow motion to me and I saw a lot more than what I could see from looking at the video.

I think it's time I pinned you down. In your view does it show what happened or are you saying that there's something that's - - -?---No. It doesn't really show happened really very well at all because you can't hear much at all. You can't see very much."

123 It was submitted that the comment, "I think it's time I pinned you down," was uncalled for. The response to the previous question could not be characterised as evasive or untruthful. This was followed by the following exchange:

"All right, and what we can hear with our ears we can only hear from the time your reverse - some high revs. Do you accept that?---I accept that you start hearing more as the situation got closer to the video, yes.

I'm not trying to trick you?---Yeah. I'm - - -

I can assure you I'm giving you the absolute honest chance of saying. Do you accept that you can hear nothing meaningful at all until - other than a big [sic bit] of interference, click, click, click, and whatever - until you've reversed your vehicle?---See, all those little click, click, clicks and stuff like that are hard to accept because you don't know what's just behind all that.

What do you mean?---Like sounds and what you could see behind the Venetian and stuff like that. It sort of looks okay, but I wouldn't put 100 per cent on it.

Are you suggesting that somebody had bodgied it?---No, no, not at all. I'm just suggesting that it is a low quality video-recording.

124 It was contended that saying, "I'm giving you the honest chance of saying ...", in the context where there was no basis for the implication that the witness was evasive, was unfair in the context of cross-examination about the video.

125 The applicant maintained that he did not deny that Agent Harrison said, "Stop. Police". He said that he did not "have really any idea what he was yelling or saying. I could not hear a thing." He made it clear that he did not deny that he said, "Stop. Police". He "just didn't hear it".

126 Asked why he did not stop, the appellant said that when he saw the gun, he reversed and then drove forward and turned right to get out of the carpark. He said that Agent Harrison was never in front of the car, but alongside the driver's window. The following exchange between prosecuting counsel and the appellant was relied upon in support of the allegation of unfair or improper conduct by counsel:

"The only reason, do I understand you correctly - the only reason you didn't stop is because the man had a gun?---The reason I didn't stop was because I was scared the living daylights out of.

He scared the daylights out of you, I think you said, because he had a gun?---Yes.

You see, he didn't produce his gun until some time after you had started reversing. We've seen that on the video?---That's incorrect.

That's incorrect?---Yes.

I see. When did he produce his gun?---When he dropped his jacket on the ground.

But by that time he's already right at your door. We've seen that on the video?---That's right.

So you say that's incorrect as well, do you; that he didn't have a gun until - he didn't take his gun out until you started reversing?---You see, he fumbled and dropped it on the ground with the jacket.

At that time while he was fumbling you didn't know what he was fumbling about because you didn't see the gun at that time, did you?---Well, he immediately picked it up.

Don't let's jump ahead. Just try and stick with me. If I'm going too fast or you don't understand, please, I'll stop and slow down?---I saw the gun on the ground, yeah.

You saw the gun on the ground?---If that's what you're asking.

But until he's dropped it on the ground you haven't seen this man, Federal Agent Harrison, with a gun at all, have you?---Well, yeah. He dropped it on the ground.

Before he dropped it on the ground, Mr Paterson. Come on. You know what I'm saying. Let's get it straight. Before he dropped his gun on the ground you didn't see a gun?---Well, no, no.

So what possible reason did you have to be scared of him if he's just come up to you without a gun?---He had an angry face on him and he was coming at me.

An angry face?---Yeah.

You're a pretty big sort of a bloke yourself?---Not as big as him.

Yes, but you're a big guy. You know how to look after yourself, let's face it, don't you?---I wouldn't say - I'm no champion.

I'm not suggesting you're Jeff Fenech or anybody like that, but you know how to look after yourself, don't you?---Look, I've got two kids now. I take it easy these days.

That's not what I'm asking you?---Well, that's my answer.

I want an answer that answers the question. You know certainly as a martial arts - you know how to look after yourself and knew how to look after yourself?---I haven't had a fight for that many years I can't remember.

Okay, so you've not answered my question that you knew how to look after yourself or didn't know how to look after yourself?---As in looking after myself? What context do you want that in?

Well, you've got some bloke, on your version, before you see any gun - some bloke coming at a brisk pace - the video is correct, I take it, and he's come up to you. You don't see a gun and why don't you just stop and say, 'Look, what's the matter, buddy? You're in my way'?---But I was reversing.

Pardon?---I was reversing.

Right, and you reversed in such a manner as to, I'm putting to you, intentionally cause him harm?---No. That's incorrect.

Because you did hear him say, 'Stop. Police,' didn't you?---No. I didn't ever hear anything like that. There was too many other noises going on.

What other noises were going on?---The car, the radio, the dog was going berserk."

127 It was submitted that there were a number of misstatements or prejudicial comments made by counsel for the prosecution in this passage. The first related to the question beginning, "But until he's dropped it [ie the gun] on the ground ...". Counsel for the appellant rightly pointed out the question was ambiguous as it could be whether this was the first point in time that he had seen Agent Harrison, or the first time that he had seen Agent Harrison with a gun. In fact, the appellant had already seen Harrison drop his jacket on the ground and pick up the gun as he approached the appellant's vehicle. With all due respect to counsel, the questions were misleading and ambiguous and appear designed to confuse the witness and provide some basis for attacking his credit. In my opinion, his answers were not evasive. This particularly applies to the comment, following the appellant's reply to the suggestion that he had not seen Agent Harrison with a gun until he dropped it on the ground. The comments, "Come on. You know what I am saying. Let's get it straight" were inappropriate and unfair insofar as there was an implication that the answers were deliberately evasive leading to an inference of dishonesty.

128 The subsequent questions, which were designed to suggest that the appellant knew how "to look after" himself following an ambiguous reference to "martial arts", were in my opinion, also improper and unfair. There is no other reference to "martial arts" in the evidence.

129 It was the appellant's evidence that his dog began to bark loudly as soon as Agent Harrison "came up" to the car. At that point, the video was not recording sound. When the car got closer to the point where Agent Ninyett was filming, the dog could clearly be heard barking.

130 The following passage records how the cross-examination then proceeded:

"I put to you that you knew Mr Harrison was a police officer because he said to you, 'Stop. Police.' You knew it?---No, that's incorrect. I had no idea. He had no uniform, no nothing.

Yes, but he did say, 'Stop. Police'?---No. He was trying to mumble something.

Mumble something?---Yeah.

What do you reckon he - - -?---But I don't think he could get it out.

He couldn't get it out. After this event where you've hooned off - it's fair to say hooned off - at quite a high speed. You're not charged with speeding, so don't worry about that. You've gone off at a high speed?---I wouldn't say it was high speed. It would have been less than 30 K's an hour.

Less than 30 K's. What, does your car over-rev at many thousands of revs at 30 K's per hour, does it?---It's only a Rodeo ute.

So, what, you're meandering out on a Sunday afternoon drive, are you?---It's like an old farm vehicle. It doesn't do anything special.

But you heard the video and I think you've accepted, and if you haven't I will put it to you again, that engine was fair dinkum screeching?---Yeah. It was revving, yes.

And the tyres were spinning?---Yes, tyres were - - -

Something obviously caused some gravel - - -?---Yes, the bitumen.

That was all at about 30 K's, was it?---I wouldn't estimate exact speed, but there wasn't anything fast. I was in first gear. That car just does not go very fast in first gear."

131 No witness had used the word "hooned" in this context. It was repeated in the cross-examination in the following passage:

"You see, I put to you the reason why you hooned out at 30 kilometres an hour as you say. I put to you that you hooned out of that carpark because you knew Harrison was a cop. Yes or no?---No.

Because you'd heard him tell you on at least two or three or more occasions to Stop. Police?---No. That's incorrect.

You knew - you tried to run him down?---That is incorrect.

You knew you intended to cause him some harm, but missed because he jumped out of the way?---No.

You did whatever you could to get out of there. Right?---No, that's incorrect.

You're saying you were frightened?---Yeah. I was scared, very."

132 These references followed the earlier reference by counsel to, "After this event, you've hooned off - it's fair to say, hooned off - at quite a high speed".

133 The reference to the appellant having "hooned off" has to be seen in the context where, as has already been seen, it was put to the appellant in cross-examination that the reason he "hooned out at 30 kilometres an hour" was that he "knew Harrison was a cop". This was against a background that the witness had specifically denied that he was hooning. Consequently, it was misleading and unfair to use the expression in a context which suggested that it was an established fact.

134 Counsel for the prosecution also challenged the appellant's evidence that his horn was not working and was still not working at the time of trial. This answer prompted the following exchange:

"No, so these people must believe you're driving a ute with a family, two young kids I think you say you've got, with a horn that doesn't work?---I don't drive my family around in that car."

135 On the face of it, this question was quite unfair unless counsel had specific instructions about the matter. The fact that it was not pressed implies that there were no such instructions.

136 The appellant gave evidence that he telephoned his de facto partner and asked her to report the incident to the police. The following exchange with counsel for the prosecution then occurred:

"Yes, okay. We will take that on board. You didn't go to the police to make a complaint?---No. I had no idea who was after me at the time.

I will just put to you, if members of the jury were to accept what you're saying - would you disagree with this proposition: someone's in a carpark, on your version. Some lunatic comes running at you, mumbling things, pulls a gun at you. Wouldn't you expect that the first thing one would do would be to go to the Bridgetown police station, which is just around the corner, and report it? 'Hang on, there's a maniac in this carpark.' Wouldn't that be a reasonable proposition for anybody to do?---Not if they were scared out of their wits, no.

But who's your protection if you're scared out of your wits? Surely they are the best people to protect you in those circumstances, the coppers who are just around the corner?---Yes, and we went to inform them. Yes.

When did we go to inform them?---I'm not sure. It was like within 15 minutes.

You've heard the police officer come and tell you this morning that there is no record of any report of this nature in the Bridgetown police station's records?---Yes, I remember that. Yes.

Your counsel did not - you were here - did not challenge him on that evidence at all, did he?---No, he did not. No.

You presumably told your counsel the story you're asking this jury to believe?---Yes.

So are you saying on oath that within 15 minutes you went to the - be careful now. I've given you a fair go?---Yes.

That within 15 minutes you went to the police station at Bridgetown and report it?---No, I did not go to the police station to report it.

Okay. You're in a corner now. You're changing your story, are you?---No.

Well, when did you report it? You said you reported it within 15 minutes?---I rang my de facto, I said. She rang the police.

You said, 'We reported it within 15 minutes.' We can play that back as well if you like?---I would say, yes, we reported it. I conferred with my de facto. She rang the police.

Were you present when she did so?---No.

You don't know who rang the police or, if anybody rang the police, when?---I believe my de facto, what she says.

Did you tell your de facto, now that you've brought this up, to ring the police to ask why the coppers - if the coppers were after you?---No.

What did you tell your de facto to tell the police?---I told them - I didn't really tell her to tell them anything.

What did you tell your de facto please?---I said that someone was chasing me with a gun.

Are you sure you didn't say, 'The coppers are chasing me'?---No.

There'd be no reason then for anybody, particularly your de facto, to tell the police that you told her the coppers were chasing you?---Sorry. Say that again?

On what you say now, there'd be no reason for your de facto to tell the police that you had said, 'Why are the coppers chasing me?' or words to that effect?---No. No, that's not what was said. No.

No, so she wouldn't have made something like that up, as far as you know your de facto. I know you can't talk for her?---What are you saying?

She wouldn't have made something like that up to say - - -?---No.

- - - to the police, well, why are the police chasing you?---No."

137 Sergeant Taylor was not cross-examined by the appellant's counsel about the telephone conversation with Ms Wilkinson when he was first called to give evidence for the Crown, although the appellant's solicitors had obtained a statement from her:

"So why didn't you go and report it to the cops?---I rang my de facto from somebody's house.

Yes?---Okay? And she rang the police from there."

138 It was in this context that counsel for the Crown cross-examined in the way that he did, knowing that Ms Wilkinson had made a statement in which she had in fact telephoned Sergeant Taylor. It was then put to the appellant that the police were "the best people to protect you in the circumstances, the coppers who are just around the corner". The answer "Yes, and we went to inform them. Yes." This was not literally what happened and was clearly a reference to the earlier evidence that he telephoned Ms Wilkinson and asked her to contact the police. An attack was made on his credit. In my opinion, it was unfair as is apparent from the clarification by the appellant that repeated the earlier evidence that he telephoned Ms Wilkinson and she telephoned the police.

139 When the appellant clarified his evidence by repeating his earlier evidence and said that he did not go to the police, prosecuting counsel commented, "Okay. You're in a corner now. You're changing your story, are you?" In my opinion, this comment was unfair, having regard to the information which counsel had in his possession, when he asked the question. It created an unfair context in which counsel quite properly asked the question based on the statement of Ms Wilkinson which he had in his brief whether he told Ms Wilkinson in the telephone conversation that "The coppers are chasing me", which he denied.

140 The Crown made a late application to recall Sergeant Taylor and to call Ms Wilkinson. Counsel for the defence objected on the basis that Sergeant Taylor could not give evidence of the conversation he had with Ms Wilkinson because what she said to him would be hearsay evidence. Evidence from Ms Wilkinson herself regarding what the accused told her would be admissible if it was against his interests. The relevant evidence was that the appellant told her that "the cops were chasing him". If the jury accepted that evidence, it would be relevant to the issue whether or not the appellant knew that Agent Harrison was a police officer. The Crown elected not to call Ms Wilkinson because it believed she could become a hostile witness. An application was subsequently made to re-open and call her after the accused denied that he had told Ms Wilkinson that the "cops" were chasing him. The application was refused by the learned Commissioner on the ground that the position after the prosecution had closed its case was no different at the close of the defence case. It remained likely, if not inevitable, that Ms Wilkinson would be a hostile witness. As the Commissioner put it, "for these reasons I think that the crown should not be allowed to re-open and call evidence from Ms Wilkinson by way of rebuttal".

141 In my opinion, given the overall context of the trial and the fact that a statement had been obtained from Ms Wilkinson, the questions put by counsel for the prosecution were appropriate in the light of the information in the possession of the prosecution. What was not permissible were the comments that were made by counsel for the prosecution in the context where the appellant had given clear both in evidence-in-chief and in cross-examination that he had telephoned Ms Wilkinson and asked her to report the matter to the police. He repeated this in cross-examination immediately prior to the passage the subject of complaint.

142 Shortly after the cross-examination regarding the contact with Ms Wilkinson and her telephone call to Sergeant Taylor, counsel for the prosecution asked the appellant whether he had a fairly good view "of Agent Harrison". The appellant's answer was that:

"I wouldn't say I got a good view of him but, yeah, I saw his face."

143 When it was suggested to him that he could have quite easily identified him his reply was:

"Naturally he did look different a few years ago."

"Yes, very different. Where did he look different?---I don't know. He seems to have maybe gained a little bit of weight. Not much or anything. I'm just saying he's a little bit different now.

Mr Paterson, let's not play games. You could have described him if you wished to?---No, I wouldn't say - - -

Again I'm not trying to trick you. It's yes or no?---I wouldn't say so. He's not the sort of person I would remember."

145 In my opinion, the comment "Mr Paterson, let's not play games" was uncalled for and improper.

146 Counsel for the appellant also referred to the following passage in the cross-examination of the appellant:

"I think you also said close by - towards the end of your evidence, again if I have got it incorrectly I'm sure I will be told, 'I saw Harrison jump back' while you were - and I'm not quite sure you were saying. You said, 'I saw him jump back and lean over and put the gun against my front window.' Do you remember saying that?---Yes.

Now tell the members of the jury when he did that?---This was when the car had done the point turn backwards, when I'd reversed and stopped. He was at the side of my window, right, and he has jumped back, like commando style. Ripped off the sheath and gone whack against the window.

What he had some sort of death wish that he would get run over, did he? Is that what you are asking us to accept?---It seemed like that, yeah."

147 That expression of agreement needed to be looked at in the whole context of the cross-examination. The officer did put himself at risk, but the appellant consistently maintained Agent Harrison was never in front of the appellant's vehicle. That is consistent with what is seen on the video. The incident described here occurred when Agent Harrison first made contact with the vehicle and banged on the window.

148 Counsel for the appellant's final point about the cross-examination arises from the following passage:

"I think you were present, well, I know you were present in court, when you heard Federal Agent Harrison say that as he approached you, you pressed the lock down. He saw you press the lock down of the driver's seat door. Is he correct there at least?---No; I never pressed down the lock, no.

So he is wrong there as well, is he?---Yes.

He also gave evidence that he saw you, without putting words in his mouth, rapidly winding up your window?---I wouldn't say rapidly winding up but as soon as I entered the car I wound up the window because I'd only put it down just enough for the dog.

So is he right or are you saying then that - do I understand you correctly: you are saying that he is wrong there as well where he said - - -?---Yes, he's incorrect, for sure.

So has Harrison got it right anywhere?---Yeah.

Where?---Well, there's many places that are right, yeah.

Except all the places that seem to implicate you?"

149 In my opinion, the comment at the end was improper and unnecessary.

150 In addition to the various comments made in the cross-examination on which counsel for the appellant (who had not been counsel at the trial) relied, there were also matters arising from the final address by counsel for the prosecution in which it was submitted on behalf of the appellant were inappropriate.

"Paterson didn't go as far as to say that he thought the police bodgied that video because that wouldn't suit him, you see. 'You can't hear,' he says - 'You can't hear Harrison say, 'Stop. Police,' ' because it suits him for that to be said, but neither can you hear the engine running as he says it was. Neither can you hear his dog barking as he gets into the car.

That all points you to the fact that for one reason or another no sound came out of the video until that - until his vehicle started reversing ...".

152 The fact was that in the early part of the video no sound was recorded. There was no sound recorded until the appellant's vehicle is seen reversing. It was contended that counsel for the prosecution suggested that the appellant, if he could have, would have said that the video had been "bodgied" because of the differences and discrepancies in the video. It was never suggested that the police had done anything in respect of the video. It was imperfect in that it did not pick up all the sounds that those at the scene could hear. It was put to the appellant that he was suggesting that the video had been "bodgied" but he denied it. The appellant was asked several times whether there was anything which should be on the video which was not. His answer was a negative on the basis that he could not accept what he did not hear.

153 Immediately following some further comments about the quality of the video, counsel for the prosecution said:

"Now, it seems to me that what the accused man is putting to you - he has chosen to give evidence and, therefore, as I have said, his evidence is tested like anybody else. It seems that what he is putting to you is that these cops just didn't say, 'Stop. Police.' You see, Federal Agent Harrison - I don't think he said 'shouted it'. He said it in a loud direction and he sort of pitched his voice to where he was - from where he was, sorry, to the car.

Harrison tells you that the accused man made eye contact with him and immediately locked his door and frantically. I don't think he said frantically. Sorry, I'm summarising - quickly, hurriedly. He demonstrates how he wound up the window. Harrison says that he has continued to shout, 'Stop. Police,' or say it loudly in the direction. You don't hear it on the video but you don't hear a lot of other things either."

154 In this passage, counsel incorrectly implied that Agent Harrison and the other police officers were lying. In his evidence-in-chief, the appellant was asked, "Did you ever hear 'Stop. Police?'" His answer was, "Not once". In cross-examination he made it very clear that he did not deny that the words had been said. He said that he did not hear those words because he had wound up the drivers' side window, the dog was barking and the radio was on. The engine was also started almost immediately.

155 A little later in his address, counsel for the prosecution said that Agent Harrison said that "the operation was going a bit wrong or something was happening, he had to act there and then ... they were conducting surveillance on the accused man." Counsel then said:

"You would think if he is asking you in some fashion to say that the cops have put their heads together and say, 'Yeah, we said, 'Stop. Police,' you know, 'Stop. Police,' loud, loud, loud' - you would think with these three people sitting behind me that if they had sat down and got together in an effort to stitch him up and say, 'Yeah, 'Stop. Police' ' - you would think Ninyett would have come along and said, 'Yeah, I heard it.' You would think they might have said, 'We yelled it louder.' They would have done a better job than that.

They have come and told you the absolute truth, what they said what happened, what was done. So there's no stitching up here. No cross-examination was directed at the fact that they were stitched up - sorry, I beg your pardon, that they were attempting to just stitch him up, so to speak. They have given it to you as it happened.

Mr Owens in his closing address to you says, and forgive me if I haven't got 100 per cent correct and I will go right quite furiously, but he was telling you that Mr Paterson intended to get out of the situation. He says he was confronted with a hand gun. That's where you stop and think, 'Hang on. Where's all this story coming from?' On his own evidence he was not confronted with a hand gun, and we heard that yesterday. He was not confronted with a hand gun at all."

156 It was never at any stage suggested by the appellant or his counsel that the police had concocted their evidence or in some way conspired to "stitch up" the appellant. The comments were made without any proper foundation and were unfair as well as improper.

157 Shortly afterwards, counsel for the prosecution told the jury that on the appellant's "own evidence he was not confronted with a hand gun. He was not confronted with a hand gun at all". Counsel went on to say:

"Federal Agent Harrison only draws his hand gun, as you will see and as you have seen a number of times, when the vehicle starts - just before it starts reversing. He has already said, 'Stop. Police.' He has already approached him and as Mr Paterson reluctantly conceded eventually yesterday, he didn't see - there was no gun drawn initially. So he is not confronted with a hand gun. You see somebody coming at you - and I submit there's no doubt at all that he has been told 'Stop. Police' - what do you do? You stop. I mean, that's the most normal thing to do.

Of course if you don't accept that Harrison said, 'Stop. Police,' on any occasion then you might be thinking, 'Hang, what's going on here?' So in a way it does come down to this: Federal Police officers, are they telling lies? Did they get it wrong? Are they trying to do something untoward? Or is this man making it up on the run, in my submission to you, whilst he is in the witness box, making up his story to suit the questions that are being asked? Was he the one that's telling blatant untruths? I submit that that's the situation."

158 It was not denied by the appellant that Harrison said, "Stop. Police" when he said he did. The appellant's evidence was that he did not hear those words for the various reasons already mentioned. The engine was started as Agent Harrison was walking up to the vehicle and it was said that the dog was barking and the radio was on.

"Elliott he criticises - another police officer, a number of years' experience. Honest fellow, I submit to you, not cross-examined - neither of them were cross-examined, 'Look, you're telling porkies here.' He is criticised - why - on this magnificent, and I say that sarcastically, magnificent point? He said Harrison was following.

Now, when you look at - it's a matter of words. It's a matter of semantics, which means interpreting words. When you look at the video and when you see where Elliott was in relation - Harrison, ute, Elliott, it's quite reasonable for him to say, 'Well, you followed him,' because he has seen Harrison and he has come out behind Paterson and that's - so he is criticised. He is called unreliable for that, for maybe the misuse of a word, but you will remember he explained that away quite easily."

160 Agent Elliott was a police officer who observed Agent Harrison approach the appellant's vehicle. Agent Elliott said that as the appellant was walking back to his vehicle, Agent Harrison was following about a metre behind him. When cross-examined, he accepted that was incorrect as is demonstrated by the video itself. It was not the defence case that the evidence of Agent Elliott was false. It was simply mistaken.

161 Later in his address, counsel for the prosecution referred to the evidence given by the appellant that the car radio was on at the material time as follows:

"He is talking about his radio being on. Again the only cross-examination on that that I could find from the notes that we have made was that Harrison was asked, 'Did you hear the radio go on?' Maybe not in the exact words and if I'm proven to be wrong, it will be corrected but it wasn't put to Harrison, 'I put it to you that the radio was on. It was loud.' Not even he, not even Paterson, said, 'It was loud. I couldn't - because it was so loud, that's why I couldn't hear,' or 'I couldn't hear anything else.' Again making it up, 'Yeah, the radio was on.'

'Hey, Mr Paterson, you are in this terrible situation. Surely you would blow your hooter? You would try and attract attention to this maniac that has coming running after you?' Oh, the hooter doesn't work. Every time he was backed into a corner, he found, what I would put to you, some absolutely ridiculous explanation the hooter doesn't work."

162 The relevant evidence to which counsel referred was in the appellant's evidence-in-chief, which was as follows:

"Did you hear anything coming from him?---No, I didn't. Didn't hear a word coming from him because the dog was barking and the radio was up. The engine was running and I was in the motion of driving my car.

So get back to the stage where you have seen this gun in the sheath. Right?---Yes.

What happens with that or what happens next?---He pulled it up directly and pointed it at me. He came running at the window and he - and I could hear the gun belt against the window, the actual barrel hitting the window. If you could imagine in the cab how loud that would be, hitting it. It banged pretty hard. Steel against glass, it was pretty noisy.

And did you notice him doing anything else at all?---He briefly looked like he was yelling at someone else, making a gesture like, 'Hey, hey, hey,' sort of thing. You could see his mouth going - like that, but he made the gesture like it was to someone - his eyes were pointed across the road towards the Free Masons, across Hampton Street.

When you saw the gun first off, what did you do?---Well, I was shocked. Pretty well as soon as I saw the hand gun, and it was banging up against the window, I've put my head down.

By this stage, you are - - -?---What I mean by down is just down below wheel - steering wheel level sort of thing but still able to sort of see.

Were you in the reverse motion by this stage?---Yes."

163 When the Commissioner summed up the evidence for the jury, he said with reference to this aspect of the case:

"The defence case is that the accused didn't hear 'Stop. Police' said at all and that the accused didn't know that Officer Harrison was a police officer; as I have mentioned before, that Officer Harrison had no police clothing on or any police identification with him at all to indicate that he was a police officer.

The accused says that he had his dog in the car. It was barking. The engine and the radio was on and he indicated that the window was only about 3 inches or, in modern language measurements, 7 and a half centimetres I think or thereabouts open from the top. His evidence is that he could see that Officer Harrison was mumbling something but he didn't know what Officer Harrison says. I have given the reasons or at least some of the reasons why he says that he couldn't make out what was said."

164 It was submitted on behalf of the appellant that while this aspect of the case was the subject of an entirely proper direction by the learned Commissioner which redressed the balance to an extent, when the Crown prosecutor had made this kind of point so many times, there was significant prejudice. In this context, however, it is of considerable relevance that no point was taken about the matter by experienced defence counsel at the trial. That is somewhat puzzling having regard to a number of the comments made by counsel for the Crown to which objection is now taken.

165 In my opinion, there was no foundation in the evidence for the comment made by counsel for the prosecution that:

"Every time he was backed into a corner, he found, what I would put to you, some absolutely ridiculous explanation the hooter doesn't work."

166 In my opinion, those comments were quite unfair and an improper characterisation of the evidence in terms that suggested the appellant was making things up as he went along.

167 In his address, counsel for the prosecution also said with reference to the evidence of Sergeant Taylor:

"If you are confronted by a maniac wielding - he didn't use the word 'maniac,' sorry, by a guy wielding a gun at you who has come at you for no rhyme or reason and he is in the carpark in quite a small town that has a police station just around the corner, colloquially - I don't know how far it is in distance - and there's this guy on the loose with a gun, wouldn't you go to the police and report it, 'Look, somebody has attacked me in the carpark. I've just got the hell out of there. I don't know who or what it is. Please investigate'?

But what does he say? He phones his wife 15 minutes later and she - he says, 'Well, we reported it.' You heard the police officer but that's a matter for you of course. The police officer Sergeant Taylor, the first witness - remember I had called him out of turn, so he could get back to his duties. Surely you would report such an incident."

168 Given the information which was available to counsel for the prosecution in the form of the statement from Sergeant Taylor, this comment was unfair and prejudicial to the appellant.

169 It was contended that the cumulative effect of the conduct of the case by counsel for the prosecution was such that the appellant was, in effect, deprived of a fair trial because there was a real risk of improper influence over the jury giving rise to a substantial miscarriage of justice. In my opinion, the cumulative effect of the matters to which I have referred was that the appellant was deprived of his right to a fair trial by the manner in which the prosecution case was conducted. On that basis, I consider that ground 1 of the grounds of appeal has been made out. There is a difficulty, however, which was raised with counsel for the appellant at the hearing of the appeal, namely, that counsel for the appellant at the trial did not object to any of the matters which are now raised. Given the nature of a number of the matters raised to which I have referred, there were a number of the comments and statements made by counsel for the prosecution which I consider were unwarranted and unfair.

170 It was, of course, the responsibility of the learned Commissioner to ensure that the trial was conducted fairly and to intervene if it was considered that it was not, even in the absence of objection from experienced defence counsel. In my view, it would have been appropriate for the learned Commissioner to have intervened in relation to a number of the comments made by counsel for the prosecution, particularly in the light of their cumulative effect so as to redress the balance of fairness in favour of the appellant.

171 The comment that the evidence that the horn was not working was "a ridiculous explanation" and given because the appellant was "backed into a corner" was particularly unfair. There was no evidence to the contrary of the appellant's evidence on this point. A similar comment was made about the appellant's evidence that the radio was on in the utility and the dog was barking. There was criticism in the closing address by counsel for the prosecution that it was not put to Agent Harrison that the radio was on. In cross-examination, Agent Harrison said he heard the appellant's vehicle start up just as he started to walk down the path from the toilet block. The window was wound up after eye to eye contact was made. He was specifically asked whether he heard the car radio going. His answer was, "I don't recall." He did not remember a dog, but he heard the dog barking on the tape when the sound was recorded on the video. He conceded that he initially missed the fact that the dog was barking when giving his evidence and also conceded that it was possible that he had also "missed the dog barking". It follows that counsel for the prosecution had no basis for the attack on the appellant's credibility in relation to this part of the evidence. This was clearly unfair to the appellant.

172 Counsel for the appellant also relied upon a number of other comments made by counsel for the prosecution to the jury in his closing address. The first point was that counsel had said in his address:

"Paterson didn't go as far as to say that he thought the Police bodgied that video because that wouldn't suit him, you see. 'You can't hear,' he says - 'you can't hear Harrison say, "Stop. Police," ' because it suits him for that to be said, but neither can you hear the engine running as he says it was. Neither can you hear his dog barking as he gets into the car.

That all points you to the fact that for one reason or another no sound came out of the video until that - until his vehicle started reversing, but as I said yesterday, Mr Owens in his eloquent fashion or me in my not maybe so eloquent fashion, whatever you decide - we are not scoring points against each other. You can make the decision, but you know when the sound started and you will see those pictures, not Steven Spielberg quality, taken in trying circumstances and you will make what you will of those pictures on the video as amplified, as added to by the evidence of the police officers and, indeed, you must take and give due consideration to what the accused man has told you himself. Now, it seems to me that what the accused man is putting to you - he has chosen to give evidence and, therefore, as I have said, his evidence is tested like anybody else. It seems that what he is putting to you is that these cops just didn't say, 'Stop. Police.' You see, Federal Agent Harrison - I don't think he said 'shouted it'. He said it in a loud direction and he sort of pitched his voice to where he was - from where he was, sorry, to the car.

Harrison tells you that the accused man made eye contact with him and immediately locked his door and frantically. I don't think he said frantically. Sorry, I'm summarising - quickly, hurriedly. He demonstrates how he would up the window. Harrison says he has continued to shout, 'Stop. Police,' or say it loudly in the direction. You don't hear it on the video, but you don't hear a lot of other things either."

173 It was submitted that the effect of the appellant's evidence was that the police officer was lying. That was a misrepresentation. The appellant's evidence in answer to the question "Did you ever hear, 'Stop. Police'?" was, "Not once." The appellant never denied that Agent Harrison had said "Stop. Police". His evidence was that he did not hear that said. He said that he did not hear what he said because the dog was barking, the radio was on and the engine was running and he was in the motion of driving his car.

174 Later in his address to the jury, Mr Dembo, commenting on the appellant's evidence, said:

"You would think if he is asking you in some fashion to say that the cops have put their heads together and say, 'Yeah, we said, "Stop. Police," you know "Stop. Police," loud, loud, loud' - you would think with these three people sitting behind me that if they had sat down and got together in an effort to stitch him up and say, 'Yeah, "Stop. Police" ' - you would think Ninyett [the police officer taking the video] would have come along and said, 'Yeah, I heard it.' You would think they might have said, 'We yelled it louder.' They would have done a better job than that.

They have come and told you the absolute truth, what they said what happened, what was done. So there's no stitching up here, no cross-examination was directed at the fact that they were stitched up - sorry, I beg your pardon, that they were attempting to just stitch him, so to speak. They have given it to you as it happened."

175 There was in fact no suggestion of concoction or of "stitching up" made by the appellant or his counsel.

"Mr Owens in his closing address to you says, and forgive me if I haven't got 100 per cent correct and I will go right quite furiously, but he was telling you that Mr Paterson intended to get out of the situation. He says he was confronted with a handgun. That's where you stop and think, 'Hang on. Where's all this story coming from?' On his own evidence he was not confronted with a handgun and we heard that yesterday. He was not confronted with a handgun at all.

Federal Agent Harrison only draws his handgun, as you will see and as you have seen a number of times, when the vehicle starts - just before it starts reversing. He has already said, 'Stop. Police.' He has already approached him and as Mr Paterson reluctantly conceded yesterday, he didn't see there was no gun drawn initially. So he is not confronted with a handgun. You see somebody coming at you - and I submit there's no doubt at all that he's been told 'Stop. Police' - what do you do? You stop. I mean, that's the most normal thing to do

Of course, if you don't accept that Harrison said, 'Stop. Police', on any occasion then you might be thinking, 'Hang - what's going on here?' So in a way it does come down to this: Federal Police officers, are they telling lies? Did they get it wrong? Are they trying to do something untoward? Or is this then making it up on the run in my submission to you, whilst he is in the witness box, making up his story to suit the questions that are being asked? Was he the one that's telling blatant untruths? I submit that's the situation."

177 For these reasons, I consider that ground 1 of the grounds of appeal has been made out to the extent that the prosecution was conducted in a manner that was unfair to the appellant as the accused and to the extent that he was deprived of a fair trial by reason of the conduct and comments of prosecuting counsel. It is in this sense that there has been a miscarriage of justice. This miscarriage of justice can only be corrected by quashing the present conviction and ordering a retrial.

178 Ground 7 was the next ground argued. Ground 7 was that:

"The trial was unfair to the accused when the prosecution failed to call a Mrs Rixon the postmaster of the Bridgetown Post Office; she had witnessed the incident and provided a statement to the DPP; the DPP refusing to call her because she was not named on the indictment."

179 By a letter to the appellant's solicitors dated 16 October 2002 from the Commonwealth Director of Public Prosecutions ("the DPP") to the appellant's solicitors, the DPP indicated that a witness to the events, a Ms Robyn Rixon would not be called as a witness at the trial. In his reply to that letter dated 1 August 2003, the appellant's solicitor requested that Ms Rixon be called as a witness. By a facsimile dated 1 August 2003, the DPP refused to call Ms Rixon. The reason for refusing the request was that she was not named as a witness on the indictment and had not provided a statement to the police because of a fear of reprisals taken against her. In the letter to the appellant's solicitors dated 16 October 2002, a notice was given pursuant to s 103 of the Justices Act 1902 (WA) by the DPP that Ms Rixon may be able to give some relevant evidence at the trial. The DPP indicated that he had been informed by the Australian Federal Police that Ms Rixon's recollection of the incident on 27 March 2002 was as follows:

"That whilst working at the Bridgetown Post Office during the time of the incident she was situated at the rear of the Post Office having lunch. Ms [Rixon] states that she heard a loud thud coming from the vicinity of the Post Office carpark and as a result has quickly made her way towards the carpark area to investigate the sound. She states that she made her way to the rear gate of the Post Office and that at this location witnessed a male person picking himself up and grabbing for his blue jacket.

She then sighted a vehicle with a male driver. She states that she has seen the male driver in Bridgetown prior to the incident, but could not identify the male driver. She then witnessed the vehicle, reverse from the carpark and travel along the laneway adjacent to the Post Office. She states that the engine of the vehicle was revving loudly and the vehicle departed quickly.

This office, at this stage does not intend calling Ms Robyn [Rixon] as a Crown witness."

180 In the above passage, the name "Rixon" appears in square brackets as the witness was incorrectly referred to as "Ms Riqon" in the original letter.

181 It is apparent that Ms Rixon was in a position to see and, more particularly, to hear what occurred. As the appellant's defence was that he did not hear Harrison calling to him because of the combined noise of the revving engine, the barking of his dog and the noise of the radio, it was the obligation of the prosecution, in order to ensure a fair trial, to call Ms Rixon as an eye witness to the events, so that the issue whether Agent Harrison's voice was audible over the noise could be explored. In this context, it was highly relevant that Ms Rixon had told the police that "the engine of the vehicle was revving loudly" and, at the same time, made no mention of hearing Agent Harrison calling out to the appellant.

182 It is apparent from the correspondence that Mrs Rixon saw part of the incident. She heard noises and came out into the carpark to see what was happening. She could also hear what was happening. This was in the context of the issue at the trial whether or not there was some foundation for the evidence of the appellant that he did not hear Agent Harrison call out "Stop. Police".

183 The Crown prosecutor alone bears the responsibility of deciding whether a person will be called as a witness for the Crown, but that decision must be made with regard to the obligation of fairness: cf Winning v The Queen [2003] WASCA 245. A decision by a prosecutor not to call a particular person as a witness will only constitute a ground for setting aside a conviction if, when viewed against the conduct of the trial as a whole, it has given rise to a miscarriage of justice: R v Apostilides [1984] HCA 38; (1984) 154 CLR 563.

184 Counsel for the appellant said that steps were being taken to obtain an affidavit from Ms Rixon and at that stage counsel had obtained two signed statements from Ms Rixon, in one of which she says that she had never said that she was in fear of reprisals to anybody. Counsel explained that the statement was received by the appellant's solicitors too late to have the statement reproduced in affidavit form. It was submitted that it was not correct to say that Ms Rixon was in fear of reprisals. She was more than prepared to give a statement. She would have been in a position to say how loud the engine was revving, whether she could hear the dog, whether she heard anyone calling out and, in particular, calling out, "Stop. Police". All of these matters were relevant to questions going to the heart of the case.

185 Because of uncertainty about the factual position, the issue could not be resolved at the hearing of the appeal. Subsequently, by letter dated 17 November 2003 from the DPP to the appellant's solicitors, it appears that a misunderstanding on the part of the police had arisen that Ms Rixon refused to provide a signed statement to the Australian Federal Police ("AFP") out of fear of reprisal. In fact, the police decided not to take a statement from Ms Rixon for this and the further reasons set out below. The same letter from the DPP to the appellant's solicitors states:

"The misunderstanding seems to have had its genesis in a letter from this Office to your office of 1 August 2003 wherein it was stated:

'There is no obligation for the Crown to call Ms Riqon (sic). She did not provide the Police with a statement, apparently fearing reprisal. It is the AFP opinion that her recollection was vague and unreliable.'

It is acknowledged that this letter suggests that the witness would not provide a statement out of rear of reprisal. This is the interpretation that you appear to have drawn from the letter and is reflected in the appellant's submissions filed in the above appeal wherein it is stated that:

'The DPP by fax dated 1 August 2003 refused to call Ms Riqon (sic) stating that she did not provide the Police with a statement out of a fear of reprisals being taken against her.'

This misunderstanding of the situation was also reflected in the Crown's submissions filed in the appeal at paragraph 29 where it is stated that '... she would not provide a signed statement to the Police and did not want to cooperate because of fear of reprisal.'

I confirm that the position is not that the witness would not provide a signed statement, but that the AFP decided not to take a statement from her because of her nervousness, anxiety and vague and unreliable recollection of the events. This position was first set out in a letter to this Office from the AFP dated 11 October 2002 wherein it was stated that:

'I recommend that due to Ms Riqon's (sic) vague recollection and incorrect account of events that obtaining a witness statement from Riqon would not provide any further evidence. Ms Riqon is also reluctant to provide Police with a statement fearing reprisal from the offender.'

Based on this information, this Office decided not to call Ms Rixon. You were advised of this decision and the nature of what her evidence might be via letter dated 16 October 2002.

No reply was received to this Office's letter of 16 October 2002 until 1 August 2003, two days before the trial. In a letter from your Office, it was requested that the Crown arrange for Ms Rixon to be present to give evidence on behalf of the prosecution. Following receipt of this request, this Office spoke to the case officer, Federal Agent Donna Ninyett, who confirmed that what Ms Rixon could have said was considered vague and unreliable and that she was reluctant to cooperate with the Police, apparently for fear of reprisal. It was on that basis that the Police decided not to take a statement from her. Following confirmation of the position, the letter referred to above of 1 August 2003 was forwarded to your office.

Federal Agent Ninyett was contacted on 13 November 2003 in relation to the matter. She confirmed that the AFP's dealings with Ms Rixon were as set out in the AFP's letter of 11 October 2002. She did add, however, that she did not recall Ms Rixon specifically using the words 'reprisals'. Federal Agent Ninyett says that by the word 'apparently' she meant that it appeared to her and that she had formed the opinion that the witness was nervous, that something could happen to her or that there could be some repercussions if she did provide a statement. She did not specifically state that she feared that the accused man would 'come and get her' so to speak. Federal Agent Ninyett did not make notes of the actual conversation but recalls definitely that the account of the version given by Ms Rixon when Ninyett spoke to her was vague and unreliable and contrary to the video evidence that they had. She again confirmed that Ms Rixon appeared anxious and nervous and that she did not want to have any further part in the matter and did not want to cooperate. She did not, however, refuse to cooperate.

Federal Agent Harrison was also spoken to on 13 November 2003. He confirms the correctness of the contents of his letter referred to above of 11 October 2002."

186 A copy of the letter was forwarded to the Associate to the Chief Justice under cover of a letter from the appellant's solicitors dated 19 November 2003.

187 By a letter dated 11 October 2002 from Agent Harrison to the DPP, it was recorded that on 10 October 2002, Mr Davidson of the office of the DPP had a telephone conversation with Agent Ninyett in relation to information received from an employee at the Bridgetown Post Office, namely, Ms Rixon. As stated in the letter:

"On the day of the incident, 27 March 2002, Ms [Rixon] was working at the Bridgetown Post Office. During the time of incident she was situated at the rear of the Post Office having lunch. Ms [Rixon] states that she heard a loud thud coming from the vicinity of the Post Office carpark and as a result has quickly made her way towards the carpark area to investigate the sound. She states that she made her way to the rear gate of the Post Office (this gate provides a view of the carpark) and that at this location witnessed a male person 'picking himself up' and grabbing for his blue jacket.

She then sighted a vehicle with a male driver. She states that she has seen the male driver in Bridgetown prior to the incident, but could not identify the male driver. She then witnessed the vehicle reverse from the carpark and travel along the laneway adjacent [to] the Post Office. She states that the engine of the vehicle was Revving? [sic revving] loudly and the vehicle departed quickly.

After speaking to Ms [Rixon] it is apparent to Federal Agent Ninyett that her recollection of events do [sic does] not match police statements or video footage taken of the incident. This is as follows:

• It is clear from the video footage that there is no person standing in the rear gate of the Post Office during the incident and only after the incident has ended does a person appear near the gate.

• My blue jacket falls on the ground during the incident and I retrieve the jacket only after Aaron PATERSON has departed the carpark in his vehicle. Ms [Rixon] states that she witnessed me picking up my jacket from the ground prior to the vehicle departing the carpark.

I recommend that Ms [Rixon's] vague recollection and incorrect account of events, that obtaining a witness statement from Ms [Rixon] would not provide any further evidence. Ms [Rixon] is also reluctant to provide police with a statement fearing reprisal from the offender."

188 These matters have now been deposed to in an affidavit filed on behalf of the DPP by Agent Harrison sworn on 18 November 2003. An affidavit to similar effect by Agent Ninyett has also been filed, corroborating the affidavit of Agent Harrison and adding that on 1 August 2003, she confirmed in a telephone conversation with the Crown prosecutor, Mr Dembo, that Ms Rixon's recollection of events was vague and unreliable and that she was also reluctant to provide a statement for fear of reprisal.

189 In the result, based upon the information then before the Court, when the Court reserved its decision on the appeal, it gave the appellant seven days from 12 November 2003 to make an application to call or produce further evidence.

190 No formal application to re-open the hearing of the appeal to put forward further evidence has been made, although there has been the correspondence to which I have referred. Suffice it to say that had the materials now before the Court been the subject of a proper application to re-open, I would have refused the application.

191 Given that Ms Rixon only appears to have come on the scene about the time the appellant drove his vehicle out of the carpark and saw Agent Harrison picking up his jacket, it would seem to me that her evidence would not have been of any assistance to the appellant.

192 In my opinion, there is no substance in ground 7.

"2. The learned trial Judge erred in not directing the jury in sufficiently strong terms that the case must not be decided by resolution of the issue of whether the police were telling lies or were in the words of the learned prosecutor, 'trying to do something untoward'.

3. The learned trial Judge erred in not directing the jury to ignore the learned crown prosecutor's submission to the jury not to 'tar these honourable people (the prosecution witnesses)' with what the jury may have read about in the Royal Commission into Police Corruption."

194 In his closing address, Mr Dembo said in the passage to which I already referred at 158B-C:

"Federal Police Officers, are they telling lies? Did they get it wrong? Are they trying to do something untoward? Or is this man making it up on the run, in my submission to you, whilst he is in the witness box, making up his story to suit the questions that are being asked? Was he the one that's telling blatant untruths? I submit that that's the situation."

195 For the reasons already stated, this was not an appropriate comment. I have already dealt with this evidence in relation to ground 1. In my opinion, there is nothing further that needs to be said. To that extent, ground 2 has been made out when looked at in conjunction with ground 1.

196 While I consider that the prosecutor's submission to the jury, the subject of ground 3, was not appropriate, ground 3, whether looked at on its own or in conjunction with any other ground or grounds, did not deprive the appellant of any reasonable chance of an acquittal.

197 Ground 4 was that the learned trial Judge erred in not directing the jury as to what conclusions may be properly drawn from defence counsel's apparent failure to comply with the rule in Browne v Dunn (supra). The well-known rule of practice known as the rule in Browne v Dunn was formulated by Hunt J in Allied Pastoral Holdings Pty Ltd v Federal Commissioner of Taxation [1983] 1 NSWLR 1 at 16 as follows:

"It has in my experience always been a rule of professional practice that, unless notice has already clearly been given of the cross-examiner's intention to rely on such matters, it is necessary to put to an opponent's witness in cross-examination the nature of the case upon which it is proposed to rely in contradiction of his evidence, particularly where that case relies upon inferences to be drawn from other evidence in the proceedings. Such a rule of practice is necessary both to give the witness the opportunity to deal with that other evidence, or the inference to be drawn from it, and to allow the other party the opportunity to call evidence either to corroborate that explanation or to contradict the inference sought to be drawn."

198 It has become regarded as important that counsel should indicate to a witness the respects in which the evidence of the witness is not to be accepted: cf R v Fenlon (1980) 71 Cr App R 307 at 313. Later cases suggest that it is enough to indicate that the evidence was not accepted: Thomas v Van Den Yssel (1976) 14 SASR 205; R v Romeo (1982) 30 SASR 243; and Brown v The Queen [1980] Tas R 61 in the Court of Criminal Appeal. The rule applies equally to counsel for the prosecution and counsel for the defence in a criminal trial.

199 The appellant was cross-examined to the effect that there were discrepancies between his evidence and what was put on his behalf to a number of prosecution witnesses. There were three passages relied upon, namely, (1):

"You've heard the police officer come and tell you this morning that there is no record of any report of this nature in the Bridgetown Police Station's records?---Yes, I remember that. Yes.

Your counsel did not - not - you were here - did not challenge him on that evidence at all, did he?---No, he did not. No.

You presumably told your counsel the story you're asking this jury to believe?---Yes.

So are you saying on oath that within 15 minutes you went to the - be careful now. I've given you a fair go?---Yes.

That within 15 minutes you went to the police station at Bridgetown and report it?---No, I did not go to the police station to report it."

200 This was followed by his explanation that he telephoned his de facto and she telephoned the police.

"The version of events that you were giving members of the jury this afternoon you presumably told your counsel about---Yes.

You see, your counsel didn't put it to the police officer, did he, that you did not hear him say, 'Stop, police'?---Sorry?

Your counsel didn't put it fairly and squarely to the police officer that you didn't hear.

OWENS, MR: With respect, I put it to one of the police officers that it must have been pretty soft.

THE COMMISSIONER: I'm not sure that the police officer can say whether or not the accused hears or not. He can say what he says to the accused

DEMBO, MR: Yes.

You didn't say to your - or your counsel didn't put to Federal Agent Harrison that he was flustered and muttering and trying to say something but couldn't get the words out?---Didn't he?

No, he didn't?---Okay.

You were here, the same as I was?---Yeah.

You see, I will tell you why he didn't put it to him: because this is just an invention that you are making up as you go along, isn't it?---No, that's incorrect.

Are you saying you told your counsel that Harrison mumbled something at the time; that you couldn't hear what he was mumbling?---Yeah, he was - you could see him trying to spit out something but it just wouldn't come out.

Spit out something, yes, and yet that wasn't put by your counsel. The officer wasn't cross-examined or given the opportunity to explain that, was he?---He gave his version of events, I think.

You will agree with me that these matters were not put to the police officer?

Trust me. I'm sure if they were, Mr Owens would have jumped up and down by now?---Yeah. Okay. Well, he mustn't have done that, no.

That the radio was on?---Yes; the radio was on, yeah.

And were all police officers or certainly two of them, two out of the three of them cross-examined on that?---Yes. I heard some people cross-examined.

Some? One was?---One was, okay.

The others? They weren't, were they?---There might have only been one important person to ask, wouldn't there?

OWENS, MR: Sir, with respect, I only cross-examined the one who was close to the car, that was Harrison, on that aspect.

THE COMMISSIONER: All right. I think it's stretching a long bow to say that Officer Ninyett - - -

DEMBO, MR: Moving on anyway

THE COMMISSIONER: - - - could have heard perhaps."

"DEMBO, MR: You have told the members of the jury that you saw the gun - forgive me if I haven't got it word for word. If I mislead you, I'm sure someone will point it out to me?---Yeah.

You saw the gun. 'I was shocked. I put my head down, ducked it down.' You described how not underneath but you sort of lowered your head?---Yeah, sort of steering wheel.

But you were still able to see? All right. 'I was pretty concerned that the bullets would go off. I heard bang, bang, bang'?---Yes.

So did you tell your counsel that?---Yes.

That wasn't put to any of the witnesses, was it?---I'm not sure how his line of argument - - -

OWENS, MR: What? What, with respect, sir?---Sorry

I'm sorry, sir. I can't stand by and say things weren't put when they were. It was put to Harrison that he was banging; he had banged the window with the metal part of his gun.

THE COMMISSIONER: I think that was - something along those lines was put.

DEMBO, MR: It was put once - - -

THE COMMISSIONER: And he said that it may - it might possibly.

DEMBO, MR: - - - that there was a noise. A noise, yes, it was.

But I'm putting to you that the words 'bang, bang, bang' or similar - the sounds of what you thought were shots were not put to any of the police officers to give their version of those events, was it?---Pardon?

THE COMMISSIONER: I think Mr Owens asked a question. In response I think Officer Harrison said, 'It may have banged as I was walking around.' That's when - - -

DEMBO, MR: Yes; yes, he did say that.

THE COMMISSIONER: The reverse arc; he was talking about the pistol against the windscreen may have banged."

203 As has already been seen, counsel for the prosecution in his closing address submitted that the police witnesses had:

" ... come and told you the absolute truth, what they said what happened, what was done. So there's no stitching up here. No cross-examination was directed at the fact that they were stitched up - sorry, I beg your pardon, that they were attempting to just stitch him up, so to speak. They have given it to you as it happened."

204 There was in fact no suggestion of concoction or any suggestion of stitching up by the appellant or his counsel.

205 Later in his address, counsel for the prosecution said:

"Harrison, you know, wasn't cross-examined, 'I put it to you that you did not shout or say out loudly, 'Stop. Police.' ' You will remember I was saying yesterday, Did you tell your counsel about this?' You would expect, I would submit to you, that if he had, he wasn't making this up on the run. That would have been one of the first questions that would have been asked, you know, 'Harrison, you're lying or if you're not lying, you're confused or if you're not confused, you're mistaken but you didn't shout it out. You didn't say it in a voice that was projected.' "

206 This was in a context where the appellant did not deny that the police may have said, "Stop. Police." His evidence was that for the reasons explained, he did not hear that. Again, there was the passage in which counsel for the prosecution referred to the appellant talking about his radio being on and the only question asked of Harrison by the appellant's counsel was, "Did you hear the radio go on?"

207 It was submitted that while it was legitimate to draw appropriate comparisons from counsel's failure to put in cross-examination, some matter to which his client subsequently gave evidence, it is a technique which, unless accompanied by appropriate judicial warnings, is dangerous and likely to lead to unfairness.

208 There may be many explanations for the omission which do not reflect upon the credibility of the witness. The absence of any explanation will or is likely to cause significant unfairness to an accused which, depending upon the circumstances, may render the trial unfair. In R v Birks (1990) 19 NSWLR 677 regarding the rule in Browne v Dunn (supra), Gleeson CJ said at 690:

"It is one thing to say that the interests of fairness to a witness or a party require observance of the rule, and that some interests of fairness may well produce various consequences if the rule is not observed. However, the rule is often invoked for the purpose of entering into another area of discourse, that is to say, the drawing of inferences by a tribunal of fact. This is what is often behind references that are made to a 'comment' following apparent non-observance of the rule. It is important, in the interests of accuracy, to consider the substance of the comment to which reference is made. It is one thing to remark upon the fact that a witness or a party appears to have been treated unfairly. It is quite another thing to comment that the evidence or unsworn statement of a person should be disbelieved, perhaps as a recent invention, because it raises matters that were not put in cross-examination to other witnesses by that person's counsel. Depending upon the circumstances of the case either or both of those comments may be available: see, eg Robinson (1977) Qd R 387 at 394. However, especially in a criminal trial, there are considerations which may indicate the need for caution."

209 Gleeson CJ then referred to the judgment of King CJ in R v Manunta (1990) 54 SASR 17. In that case, the trial Judge had drawn attention to the fact that counsel for the accused had failed to put in cross-examination certain exculpatory matters upon which the accused later relied. The trial Judge drew the jury's attention to the rule in Browne v Dunn (supra) and said:

"You are entitled, for example, to ask yourselves, ladies and gentlemen, could these be matters of recent invention concocted by the defendant and his witness in an attempt to cast doubts on the evidence of the police officers without giving the police officers the opportunity of contradicting this proposition?"

"It seems to me that the failure of counsel to cross-examine the police officers on the topic left open the inference that the challenge to the notes was an afterthought on the part of the appellant and was simply a lie told in cross-examination because he thought it would serve his interests. The cogency of such an inference might be open to question. It is possible that the idea that the police were referring to notes other than those made at the time might not have occurred either to the appellant or his legal advisers. The appellant may have realised it only when the notes were placed in his hands during cross-examination. No such explanation, however, was elicited in re-examination. I think that the point was open for consideration of the jury; its weight was for them to determine."

211 As Gleeson CJ noted in R v Birks at 691, King CJ went on to say:

"I have been concerned about the prominence which the learned Judge gave to these matters in the course of the summing up. It is legitimate, of course, to draw appropriate conclusions from counsel's failure to put in cross-examination some matter to which his client or his witnesses subsequently depose. It is a process of reasoning, however, which is fraught with peril and should therefore be used only with much caution and circumspection. There may be many explanations of the omission which do not reflect upon the credibility of the witnesses. Counsel may have misunderstood his instructions. The witnesses may not have been fully co-operative in providing statements. Forensic pressures may have resulted in looseness or inexactitude in the framing of questions. The matter might simply have been overlooked. I think that where the possibility of drawing an adverse inference is left to the jury, the jury should be assisted generally speaking by some reference to the sort of factors which I have mentioned. Jurors are not familiar with the course of trial or preparation for trial

and such considerations may not enter spontaneously into their minds."

"I would respectfully adopt those views. I would add that one particular matter which makes it difficult for jurors to use the conduct of counsel as a basis for drawing inferences of fact is that most jurors are unaware of the principles, some of which have been set out earlier in this judgment, relating to the wide discretion available to counsel as to the manner in which a trial may be conducted. It may be easy for a jury, unless given an appropriate warning, to assume that a barrister is merely some kind of 'mouthpiece' for the client, conducting the case in close conformity with the client's directions. For reasons that have already been explained, this is far from the truth."

213 In my opinion, the approach adopted by counsel for the prosecution was inappropriate and unfair. While standing alone it may not have constituted sufficient unfairness to affect the fairness of the trial in combination with the other matters mentioned, it provides, in my opinion, sufficient grounds to quash the conviction and order a new trial.

214 Given that the appellant was sentenced on 5 August 2003 to imprisonment for 2 years with eligibility for parole after serving 10 months of that term, and has served more than 4 months of the sentence, there remains a question whether there should be a retrial. This is an issue on which I would be prepared to hear counsel.

215 STEYTLER J: I have had the advantage of reading the judgment of the Chief Justice. It is consequently unnecessary for me to set out the facts and circumstances giving rise to the various grounds of appeal save insofar as is necessary in order for me to explain the different conclusion at which I have arrived.

216 I propose, first, to deal, together, with grounds 1, 2 and 3. Those grounds were essentially to the following effect:

(1) The manner in which the Crown case was conducted gave rise to a real risk of improper influence over the jury and caused a miscarriage of justice.

(2) The learned Commissioner erred in not directing the jury in sufficiently strong terms that the case was not to be decided by resolution of the issue whether the police were telling lies or "trying to do something untoward".

(3) The learned Commissioner erred in not directing the jury to ignore a submission by the Crown prosecutor not to "tar these honourable people (the prosecution witnesses)" with what the jury may have read about in the Royal Commission into Police Corruption.

217 As will be apparent from the judgment of the Chief Justice, there are some propositions which might safely be drawn from the case law with respect to the duty of prosecuting counsel. Relevantly, these include the propositions that such a counsel has an overriding duty to ensure that the prosecution case is fairly and properly presented (Richardson v The Queen [1974] HCA 19; (1974) 131 CLR 116 at 119, per Barwick CJ, McTiernan and Mason JJ; R v Lucas [1973] VicRp 68; [1973] VR 693; Whitehorn v The Queen [1983] HCA 42; (1983) 152 CLR 657 at 663 - 664, 675 and Vella v The Queen (1990) 2 WAR 537 at 539 - 542) and should not fight for a conviction or seek to persuade a jury to convict by means of the introduction of prejudice or emotion (R v Banks [1916] 2 KB 621 at 622 - 623; Vella, above, at 540, per Malcolm CJ, and R v Roulston [1976] 2 NZLR 644) or the use of language likely to inflame the jury against an accused (R v Hay & Lindsay [1968] Qd R 459 and Vella, above, at 540). Where unfair or improper tactics of this kind have been used and these were such as to lead to the conclusion that there is a real risk that the conduct complained of may have influenced the jury to convict the accused in circumstances giving rise to a miscarriage of justice, it will be open to the Court to order a retrial: Vella, above, at 541 - 542; Smout v Smout [1989] VicRp 74; [1989] VR 845.

218 None of this means, of course, that a prosecuting counsel is not entitled to be firm, where firmness is called for. He or she is entitled to urge the prosecution view both firmly and vigorously and to test and, if necessary, attack the version of facts advanced on behalf of the accused: McCullough v The Queen [1982] Tas R 43 at 57 - 58; Vella, above, at 540; and Whitehorn, above, at 675. What is called for is the maintenance of a proper balance: Roulston, above, at 654.

219 The first of the matters relied upon by counsel for the appellant as amounting to unfair and improper tactics on the part of the prosecutor (who was not the prosecutor who appeared on the appeal) is his cross-examination of the appellant in respect of the appellant's alleged report to the police of the circumstances in which a plain-clothed police officer had attempted to arrest him. As will be apparent from the judgment of the Chief Justice, the appellant said in evidence that he had not appreciated that the man coming towards him, and, at one point, brandishing a firearm, was a police officer. He said that he had driven off in a hurry as a consequence of being scared "out of ... [his] wits". It was put to him, by the prosecutor, that in those circumstances he might have been expected to make a report of the incident to the nearby Bridgetown police station. The appellant said that he did so. He contended, in that respect, that he had telephoned his de facto spouse who had, in turn, telephoned the police.

220 The prosecution had earlier led evidence from Sergeant Taylor of the Western Australian Police Service to the effect that none of the records kept by the Bridgetown police station had any entry recording a report of any incident, on the day in question, "relating to any assault, threats or firearm involvement". His evidence in that respect was not challenged by counsel for the appellant.

221 In fact the Crown brief, prepared prior to the trial, had included a statement from Sergeant Taylor to the effect that the appellant's de facto spouse had telephoned him on the night in question and had asked him why the police were chasing her spouse. He said, in the statement, that this was the only report which had been made by the appellant's spouse on that evening. Counsel for the appellant suggested that, in circumstances in which the contents of this statement must have been known to the prosecutor, it was unfair and improper for him to suggest to the appellant, in the course of cross-examination, that no report of an incident of the kind described by the appellant had been made by the appellant or by anyone on his behalf.

222 There was also the following exchange between the prosecutor and the appellant during the course of cross-examination:

"Did you tell your de facto, now that you've brought this up, to ring the police to ask why the coppers - if the coppers were after you?---No.

What did you tell your de facto to tell the police?---I told them - I didn't really tell her to tell them anything.

What did you tell your de facto please?---I said that someone was chasing me with a gun.

Are you sure you didn't say, 'The coppers are chasing me'?

---No.

There'd be no reason then for anybody, particularly your de facto, to tell the police that you told her the coppers were chasing you?---Sorry. Say that again?

On what you say now, there'd be no reason for your de facto to tell the police that you had said, 'Why are the coppers chasing me?' or words to that effect?---No. No, that's not what was said. No.

No, so she wouldn't have made something like that up, as far as you know your de facto. I know you can't talk for her?---What are you saying?

She wouldn't have made something like that up to say - - -?

---No.

- - - to the police, well, why are the police chasing you?---No."

223 This cross-examination, too, was said to have been improper and unfair, given that there was no evidence before the jury of what the appellant's spouse was alleged to have said to Sergeant Taylor.

224 I am not persuaded that there was anything in any of these exchanges which could be taken to have resulted in a miscarriage of justice. It was always open to the appellant's then counsel (who was not the counsel who appeared on the appeal) to cross-examine Sergeant Taylor with respect to the conversation which he had had with the appellant's spouse. Also, it was open to the appellant to call his spouse to give evidence of that conversation, if he wished to do so. Indeed, the prosecuting counsel's failure to lead any evidence from Sergeant Taylor of what had been said by the appellant's spouse was the result of an objection, made by the appellant's counsel in advance on the trial, to that evidence being led from Sergeant Taylor. Moreover, during the course of the cross-examination of the appellant by him, the prosecutor sought leave to call Sergeant Taylor by way of rebuttal, but was refused leave by the Commissioner who presided at the trial.

225 In these circumstances, it seems to me to be quite plain that a tactical decision was made by counsel for the appellant to ensure that no mention was made, whether in the course of cross-examination or otherwise, of the alleged report to Sergeant Taylor by the appellant's spouse, upon the basis that, given what Sergeant Taylor would say if evidence was adduced from him on that topic, any such evidence would do more harm than good. Given that fact, and given also that the only report known to the prosecutor was one which supported the Crown case rather than that advanced by the appellant at trial, I am unable to accept that there was anything improper or unfair in suggesting, in cross-examination, that no report of an incident of the kind described by the appellant (an apparent attack by an armed stranger) had been made to the police or in asking the appellant whether he had told his spouse that the police were chasing him. While there was no basis, in the absence of evidence to that effect, for putting to the appellant, in effect, that his spouse might have asked the police why they were chasing him, I am not persuaded that the prosecutor's questions to that effect were such as might have led to any miscarriage of justice in all of the circumstances.

226 Next, counsel for the appellant relied upon what was said to be a series of inaccurate, exaggerated and sometimes inappropriate comments made by counsel for the prosecution both in the course of his cross-examination and, to a lesser extent, during his submissions to the jury. The substance and general nature of these comments appears from the judgment of the Chief Justice. In my opinion, there is nothing in any of the individual instances relied upon by counsel for the appellant, or in the whole of the cross-examination and submissions, which gave rise to any real risk that the remarks made by counsel might have improperly influenced the jury in such a way as to give rise to a miscarriage of justice. While it is, I think, fair to say that the comments were, at times, ill-considered and intemperate, they were not such, in my opinion, as to be capable of inflaming the jury against the appellant or of "tipping the balance" against him (see Roulston, above, at 654).

227 I am reinforced in this conclusion by the fact that the Commissioner who presided at the trial at no time saw fit to chastise the prosecutor in respect of his conduct and, even more importantly, by the fact that the then counsel for the appellant (who was very experienced) at no time made any objection in respect of the use of intemperate or prejudicial language by the prosecutor.

228 It must be borne in mind in this respect, that it is the duty of counsel appearing at the trial to take objection to any irregular or unduly prejudicial matters: R v Tripodina & Morabito (1988) 35 A Crim R 183 at 191 per Yeldham J, with whom Carruthers and McInerney JJ were in agreement. In Vella, above, at 557 Brinsden J took the silence of counsel, in a case in which similar allegations were made, as tending "to support the view that at least he did not think that Crown Prosecutor's behaviour had been such that the fair trial of his client was likely to be prejudiced". His Honour remarked (ibid) that it was consequently difficult for the Court, in possession only of the transcript, which did little to provide the atmosphere within which the case was conducted, to say that in those circumstances there had been a failure of justice. I should add that in R v Wright [1999] VSCA 145; [1999] 3 VR 355 Phillips CJ and Charles JA said (in the context of the failure to take exception at trial to a supposed error in the Judge's charge) that this "would almost necessarily be taken by a court of criminal appeal as an indicator that counsel present saw no injustice or error in what was done". Their Honours went on to say (at 356):

"It is time to affirm with emphasis that it is the obligation of counsel at the trial (for the prosecution as well as the defence) to take objection to matters which are prejudicial to the fair trial of the accused and that the failure to take exception presents a serious obstacle to the raising of such matters on appeal."

229 As to ground 2, there were, as the Chief Justice has pointed out, various occasions upon which the prosecutor put to the appellant, in effect, that the Crown witnesses must have been lying if the appellant's version of the facts was to be believed. Also, during the course of his closing submissions to the jury, the prosecutor said that there was some suggestion, on the part of the appellant, that the police had attempted to "stitch him up". As will be apparent from the judgment of the Chief Justice, one of the principal issues at trial was that of whether or not the appellant had appreciated that the man who challenged him (Federal Agent Harrison) was a police officer. The appellant said that he did not realise that at any time and that he did not hear the police officer concerned say, "Stop. Police." However, the appellant at no stage based his defence simply upon a denial that the police officer had said those words. He said that he did not hear the police officer say them, but added that the car window had been closed by him, that the car radio was on and that his dog was barking from the passenger seat of the vehicle, although he also said that the man approaching him had been "flustered and muttering and couldn't spit out what he was trying [to] say". Notwithstanding all of this, the prosecutor, in the course of his closing submissions, said to the jury:

"You would think if he is asking you in some fashion to say that the cops have put their heads together and say, 'Yeah, we said, "Stop. Police," you know, "Stop. Police," loud, loud, loud' - you would think with these three people sitting behind me [presumably all police officers] that if they had sat down and got together in an effort to stitch him up and say, 'Yeah, "Stop. Police" ' - you would think Ninyett [a police officer who had been present at the time] would have come along and said, 'Yeah, I heard it.' You would think they might have said, 'We yelled it louder.' They would have done a better job than that.

They have come and told you the absolute truth, what they said what happened, what was done. So there's no stitching up here. No cross-examination was directed at the fact that they were stitched up - sorry, I beg your pardon, that they were attempting to just stitch him up, so to speak. They have given it to you as it happened."

230 A little later in the course of his submissions to the jury the prosecutor said:

"Of course if you don't accept that Harrison said, 'Stop. Police,' on any occasion then you might be thinking, 'Hang, what's going on here?' So in a way it does come down to this: Federal Police officers, are they telling lies? Did they get it wrong? Are they trying to do something untoward? Or is this man making it up on the run, in my submission to you, whilst he is in the witness box, making up his story to suit the questions that are being asked? Was he the one that's telling blatant untruths? I submit that that's the situation."

231 Of course, it was always open to the jury to find that Federal Agent Harrison had told the truth about what it was that he said to the appellant and also that the appellant had failed to hear it. There was, consequently, no necessary conflict of fact as between the two in this respect. Moreover, it had not been part of the appellant's case that the police had attempted to "stitch him up".

232 However, it seems to me that the Commissioner, in the course of his summing up to the jury, remedied any misunderstanding which might have been created by the prosecutor's comments. After recounting the police evidence in this regard, the Commissioner said:

"The accused says he didn't hear Officer Harrison say anything and he wasn't dressed in such a way to identify himself as a police officer. The accused says that he got scared and wanted to get away. He says Officer Harrison looked angry when he approached him and when the gun was produced.

There is no record on the audio of the video of the words, 'Stop. Police.' The video was being operated behind a closed window, through a gap in venetian blinds from the second storey of the shire offices about 20 metres away from where the incident was taking place. Officer Ninyett didn't hear anything said. That doesn't mean that, 'Stop. Police' wasn't said. It just means that she didn't hear it said. If it was said and she just didn't hear it then you may not expect it to have been recorded on the audio of the video given that she was the one operating the vehicle.

The defence case points to 'Stop. Police' not being recorded on the audio and not being heard by Officer Ninyett as evidence to go to show that it wasn't said. The defence case is that even if 'Stop. Police' was said, the accused didn't hear it and Officer Harrison had nothing on him to indicate that he was a police officer."

233 The Commissioner also said, in the course of his summing up:

"Can I just mention to you that at the end of the day it's open to you to accept or reject the whole or part of a witness's evidence. It's not necessarily an all or nothing thing. You might think that something that one of the witnesses said was credible and reliable and you may act upon it but you might think for one reason or another that something else that was said isn't reliable and you don't act on it, so it's not necessarily an all or nothing thing, so bear that in mind.

Can I also mention to you that even if you disbelieve the accused, that's no basis to find him guilty. If you disbelieve him then you can only find him guilty if you are also satisfied on all of the evidence you accept that the crown has proved all of the elements of the offence ... .

Can I mention to you that if you accept the evidence of the accused, you would find him not guilty. Now, there's another scenario and it's this. Bear in mind that at all times the accused does not have to prove anything. The accused does not have to prove innocence. The accused does not have to prove that any one or more police officers lied. If you are unable to decide where the truth lies then you would not be satisfied beyond a reasonable doubt and you would find the accused not guilty."

234 In these circumstances I am not persuaded that anything said or done by the prosecutor in the respects to which I have referred gave rise to any miscarriage of justice.

235 As to ground 3 (which is really an adjunct to grounds 1 and 2), the prosecutor, in the course of his closing submissions to the jury, said:

"You know you read a bit in the paper these days about royal commissions and police officers. Yes, unfortunately there are some bad apples but don't, please, take what you might read in the paper about some corrupt police officers 10 years ago or something, or even now if there are some. Don't tar these honourable people with that same brush because you might be reading about a royal commission.

I'm not saying you haven't and I'm not saying you will but just sometimes, you know, one can't help but say, 'You know, this royal commission is going on. Bloody police. They do bad things.' Maybe some do. I don't think you would find any walk of life that every - you know, if we lived in Utopia, if we lived in a person [sic perfect] society, you would find everybody doing the right thing but don't tar these police officers with that brush, please."

236 Counsel for the appellant contended that there was no basis for these remarks and that the trial Judge erred in not directing the jury to ignore them. In my opinion, the remarks made by the prosecutor were unnecessary and inappropriate, but I am not persuaded that any miscarriage resulted from them when regard is had, in particular, to the Commissioner's directions to the jury referred to in respect of ground 2. I am, once again, reinforced in my conclusion by the fact that, at the trial, counsel for the appellant raised no objection to what had been said by the prosecutor, did not seek any direction from the trial Judge in respect thereof and made no criticism of the trial Judge's summing up to the jury in respect of issues of credibility.

237 It follows that grounds 1, 2 and 3 have not been made good, in my opinion.

238 By ground 4 the appellant contends that the Commissioner erred in not directing the jury as regards the conclusions which could properly be drawn from what was said to have been the failure of defence counsel to comply with the rule in Browne v Dunn (1893) 6 R 67.

239 The rule is, speaking generally (and sacrificing some accuracy for the sake of brevity), to the effect that a cross-examiner must put to an opponent's witness the matters in respect of which or, by reason of which, it is intended to contradict the witness's evidence: R v Birks (1990) 19 NSWLR 677 at 686; Allied Pastoral Holdings Pty Ltd v Federal Commissioner of Taxation [1983] 1 NSWLR 1 at 16 and R v Romeo (1982) 30 SASR 243.

240 There were, in this case, some seven instances in respect of which the prosecutor placed reliance upon the rule, either directly or indirectly.

241 The first of these arose in a context with which I have already dealt, namely, the appellant's contention that he asked his spouse to make a complaint to the Bridgetown police station with respect to the incident. It was put to the appellant, during the course of his evidence, that his counsel had not challenged Sergeant Taylor's evidence to the effect that there was no record of any such complaint. It is unnecessary for me to repeat what I have already said in that regard. It was, in the circumstances, appropriate for the prosecutor to rely upon the rule in Browne v Dunn.

242 The second instance involved the suggestion, by the prosecutor, that the appellant's counsel had not put to Federal Agent Harrison that the appellant had not heard him say, "Stop. Police." However, when this was suggested to the appellant by the prosecutor, the appellant's counsel objected and said that he had put to one of the police officers that those words "must have been pretty soft". Also, the Commissioner said, in the presence of the jury, that he was "not sure that the police officer can say whether or not the accused hears or not" and could only say what he had said to the appellant. Consequently no prejudice could have resulted from this exchange.

243 The third instance was one in which the prosecutor suggested to the appellant that his counsel had not put anything to Federal Agent Harrison to the effect that the latter had, as the prosecutor put it, been "flustered and muttering and trying to say something but couldn't get the words out". However, this seems to me to be in the same category as the second incident complained of and I am not persuaded that anything untoward followed from it.

244 Next, the prosecutor suggested to the appellant, in the course of cross-examination, that it had not been put to two of the three police officers who had been present at the time of the incident that the appellant's car radio had been switched on. When this was said, counsel for the appellant objected and said (quite rightly) that he had cross-examined the only police officer who had been close to the car in that respect. The Commissioner thereupon intervened and suggested that it was "stretching a long bow" to suggest that another police officer might have heard the car radio. No prejudice could have arisen out of these exchanges.

245 Then, in the course of cross-examining the appellant in respect of his evidence that a police officer had banged his gun on the window of the car, the prosecutor said that nothing to that effect had been put to Federal Agent Harrison. However, the Commissioner immediately intervened and pointed out (rightly) that something to that effect had been put to Harrison. This exchange, too, consequently did not give rise to any prejudice.

246 The remaining two incidents arose in the course of the prosecutor's address to the jury. In the first of them he told the jury that there had been no cross-examination directed to the fact that the appellant was "stitched up" or to the effect that the police "were attempting to ... stitch him up". As I have earlier remarked, the appellant had not put his case upon the basis that there had been an attempt to "stitch him up". However, any misapprehension which might have been created in the minds of the jury by the prosecutor's choice of words in this respect would, in my opinion, sufficiently have been cleared up by the Commissioner's summing up to the jury in the course of which, as will be apparent from what I have said above, he set out, very clearly, what was the defence case, being, in essence, that which had been put to the Crown witnesses in the course of cross-examination.

247 Finally, in this respect, counsel for the prosecution said, in the course of his closing address:

"Harrison, you know, wasn't cross-examined, 'I put it to you that you did not shout or say out loudly, "Stop. Police" '. You will remember I was saying yesterday, 'Did you tell your counsel about this?' You would expect, I would submit to you, that if he had, he wasn't making this up on the run. That would have been one of the first questions that would have been asked, you know, 'Harrison, you're lying or if you're not lying, you're confused or if you're not confused, you're mistaken but you didn't shout it out. You didn't say it in a voice that was projected.'"

248 However, as I have previously said, it was always apparent to the jury, and this was reinforced during the course of the Commissioner's summing up, that the real issue was that of whether or not the appellant had been able to hear whatever had been said by Police Officer Harrison, given that his car had been revving loudly, his car radio had been on and his dog had been barking. In those circumstances, and given what was said by the Commissioner in this respect in the extract from his summing up which I have earlier quoted, I am not persuaded that what was said by the prosecutor could have resulted in a miscarriage.

249 I should add, once again, that I am reinforced in the conclusions at which I have arrived by the fact that the then counsel for the appellant at no time sought any further direction from the Commissioner in respect of any of the matters to which I have referred, presumably because they were not then considered to be particularly significant in the overall context of the trial.

250 It follows, in my respectful opinion, that ground 4 of the grounds of appeal, too, has not been made out.

251 Ground 5 is to the effect that the Commissioner erred in directing the jury that the Crown did not have to prove that the appellant knew that Agent Harrison was a Commonwealth or Federal Police officer rather than a State police officer.

252 Sections 147.1(1) and (1A) of the Criminal Code (Cth) read as follows:

"147.1 Causing harm to a Commonwealth public official etc

(1) A person (the first person) is guilty of an offence if:

(b) the first person's conduct causes harm to a public official; and

(c) the first person intends that his or her conduct cause harm to the official; and

(d) the harm is caused without the consent of the official; and

(e) the first person engages in his or her conduct because of:

(ii) any conduct engaged in by the official in the official's capacity as a public official; and

(ea) the public official is a Commonwealth public official; and

(eb) if subparagraph (e)(i) applies - the status mentioned in that subparagraph was status as a Commonwealth public official; and

(ec) if subparagraph (e)(ii) applies - the conduct mentioned in that subparagraph was engaged in by the official in the official's capacity as a Commonwealth public official.

(f) if the official is a Commonwealth judicial officer or a Commonwealth law enforcement officer - imprisonment for 13 years; or

(1A) Absolute liability applies to the paragraphs (1)(ea), (eb) and (ec) elements of the offence."

253 The dictionary to the Code defines the term "public official" as including:

(b) an officer or employee of the Commonwealth or of a State or Territory; and

(e) an individual who is otherwise in the service of the Commonwealth or of a State or Territory (including service as a member of a military force or police force);

254 The Code distinguishes between physical elements and fault elements. Physical elements are provided for by s 4.1. Subsection 4.1(1) reads as follows:

(c) a circumstance in which conduct, or a result of conduct, occurs."

255 Fault elements are provided for by s 5.1. That section reads as follows:

(1) A fault element for a particular physical element may be intention, knowledge, recklessness or negligence.

(2) Subsection (1) does not prevent a law that creates a particular offence from specifying other fault elements for a physical element of that offence."

256 Division 6 of the Code deals with cases where fault elements are not required and distinguishes between strict liability and absolute liability. Sections 6.1 and 6.2 read as follows:

"Division 6 - Cases where fault elements are not required

(1) If a law that creates an offence provides that the offence is an offence of strict liability:

(a) there are no fault elements for any of the physical elements of the offence; and

(b) the defence of mistake of fact under section 9.2 is available.

(2) If a law that creates an offence provides that strict liability applies to a particular physical element of the offence:

(a) there are no fault elements for that physical element; and

(b) the defence of mistake of fact under section 9.2 is available in relation to that physical element.

(3) The existence of strict liability does not make any other defence unavailable.

(1) If a law that creates an offence provides that the offence is an offence of absolute liability:

(a) there are no fault elements for any of the physical elements of the offence; and

(b) the defence of mistake of fact under section 9.2 is unavailable.

(2) If a law that creates an offence provides that absolute liability applies to a particular physical element of the offence:

(a) there are no fault elements for that physical element; and

(b) the defence of mistake of fact under section 9.2 is unavailable in relation to that physical element.

(3) The existence of absolute liability does not make any other defence unavailable."

257 It is plain, from the ordinary meaning of the words used in s 147.1(e), that the prosecution is required to prove that the first person referred to in the section knew that the person against whom the conduct was directed was a public official, as otherwise it could never be established that the first person engaged in the conduct because of the victim's status as such (s 147.1(e)(i)) or, where that is charged, because of conduct engaged in by the official in the official's capacity as a public official (s 147.1(1)(e)(ii)). However, it seems to me also to be plain from the provisions of s 147.1(1A) that knowledge, by the first person, of the victim's status as a Commonwealth public official is not required.

258 As will be apparent, s 6.2(2)(a) provides that, if a law that creates an offence provides that absolute liability applies to a particular physical element of the offence, there are no fault elements for that physical element. As will also be apparent, by the terms of s 5.1 fault elements for a particular physical element include knowledge. It consequently necessarily follows (and I can see no sensible reason why that should not have been so), from the fact that s 147.1(1A) provides that absolute liability applies to the elements described in pars 1(ea), (eb) and (ec), that there are no fault elements, including knowledge (s 5.1(1)), for any of those elements, with the consequence that the Crown was not required to prove that the appellant knew that Federal Agent Harrison was a Commonwealth public official.

260 By ground 6 the appellant contends that the Commissioner erred in failing to address the jury "as to whether the accused acted as he did because of duress".

262 The defence of duress is provided for by s 10.2 of the Code, which reads as follows:

(1) A person is not criminally responsible for an offence if he or she carries out the conduct constituting the offence under duress.

(2) A person carries out conduct under duress if and only if he or she reasonably believes that:

(a) a threat has been made that will be carried out unless an offence is committed; and

(b) there is no reasonable way that the threat can be rendered ineffective; and

(c) the conduct is a reasonable response to the threat.

(3) This section does not apply if the threat is made by or on behalf of a person with whom the person under duress is voluntarily associating for the purpose of carrying out conduct of the kind actually carried out."

263 A defence of that kind could, in the circumstances of this case, only have been open to the appellant if he did not appreciate that Federal Agent Harrison was a police officer. That is because, if he realised that Harrison was a police officer, he could reasonably have rendered any threat posed by Harrison ineffective merely by acceding to his lawful demand that the appellant should stop his vehicle. However, if the appellant did not appreciate that Harrison was a police officer, and therefore a "public official" as defined for the purposes, inter alia, of s 147.1(1), he could not have infringed that section. There was consequently no need for any direction as regards the defence of duress.

264 By ground 7 the appellant contends that the trial was unfair because the prosecution failed to call a witness who had provided a statement to the Commonwealth Director of Public Prosecutions ("DPP") indicating that she had witnessed part of the incident the subject of the charge.

265 As appears from the judgment of the Chief Justice, the DPP informed the appellant's solicitors, by letter dated 16 October 2002, of the nature of the evidence which Ms Rixon might give, but said that it did not intend calling her as a Crown witness. Notwithstanding this, the appellant's solicitors, by facsimile transaction dated 1 August 2003, called upon the Crown to arrange for Ms Rixon to be present to give evidence at the trial on behalf of the prosecution. By a response dated 1 August 2003 the DPP declined to do so, saying that there was no obligation on the Crown to call

Ms Rixon and that she had not provided the police with a statement, apparently fearing reprisal. The letter said that it was the opinion of the Australian Federal Police that her recollection was vague and unreliable. The appellant's solicitors were told that they should feel free to call her themselves if they wished to do so.

266 No evidence was placed before us to suggest that there was any misstatement in the letter from the DPP's office dated 16 October 2002 or in that dated 1 August 2003. Nor was any argument put to the effect that the prosecution had not taken all appropriate steps in order to be in a position to form the opinion that Ms Rixon's recollection was vague and unreliable (as to which see R v Kneebone [1999] NSWCCA 279; (1999) 47 NSWLR 450 at 460 - 461). In those circumstances, no impropriety or unfairness has been shown (see R v Apostilides [1984] HCA 38; (1984) 154 CLR 563 at 575 - 576). In any event, I am not persuaded that any miscarriage resulted from the DPP's failure to call Ms Rixon as a witness, in all of the circumstances of this case (see Apostilides, above, at 577 - 578).

268 It follows that I would dismiss the appeal against conviction.

269 An appeal against sentence was lodged on behalf of the appellant, but this was abandoned at the hearing of the appeal against conviction.

270 I agree generally with the conclusions reached by Malcolm CJ as to grounds 1, 2 and 3. I differ, with great respect, from the conclusion reached by Steytler J that the remarks made by counsel for the prosecution did not lead to a substantial miscarriage of justice.

271 Criminal trials are adversarial and robust. As Steytler J points out, there is a responsibility on counsel to intervene if opposing counsel frequently transgresses the boundaries of fairness. Failure of counsel to so intervene may often prove fatal to an appeal: Vella v The Queen (1990) 2 WAR 537; R v Wright [1999] VSCA 145; [1999] 3 VR 355.

272 A judge is entitled to the assistance of counsel in ensuring, so far as possible, that a criminal trial is conducted according to law and is fair. In the end though, the responsibility is principally that of the Judge.

273 I have taken into account the failure by counsel for the appellant at trial to object to the conduct of the counsel for the prosecution and the inferences which might be drawn from such failure. I have also taken into account the disadvantage of reading transcript removed from the atmosphere of the trial. Notwithstanding, in the circumstances the appellant has established that the prosecution created a real risk of improper influence over the jury and thereby caused a miscarriage of justice to the appellant.

274 In some cases, the real risk might be lessened by the intervention of the trial Judge at the time or in subsequent directions.

275 In words which may be adapted to the present case, the High Court in Crofts v The Queen [1996] HCA 22; (1996) 186 CLR 427 said at 440:

"No rigid rule can be adopted to govern decisions on an application to discharge a jury for an inadvertent and potentially prejudicial event that occurs during a trial. The possibilities of slips occurring are inescapable. Much depends upon the seriousness of the occurrence in the context of the contested issues; the stage at which the mishap occurs; the deliberateness of the conduct; and the likely effectiveness of a judicial direction designed to overcome its apprehended impact. As the court below acknowledged, much leeway must be allowed to the trial judge to evaluate these and other considerations relevant to the fairness of the trial, bearing in mind that the judge will usually have a better appreciation of the significance of the event complained of, seen in context, than can be discerned from reading transcript."

276 The High Court then noted the duty of the appellate court is to decide for itself whether there was a substantial miscarriage of justice:

"In other words, can the appellate court say with assurance that, but for the admission of the inadmissible evidence, the conviction was inevitable?"

277 This case is not of course concerned with the admission of inadmissible material but, to use the High Court's words, the deliberateness of the conduct.

278 The trial Judge in his directions to the jury made no attempt to redress the excesses of the prosecutor or the unfairness which resulted. Nor did he give the directions outlined in grounds 2 and 3, although otherwise I would accept that his directions were fair and appropriate. The prosecution case, although reasonable was not so strong that a conviction was inevitable.

279 The failure of the trial Judge to sufficiently reduce or eliminate the risk renders it inappropriate to apply the proviso to Criminal Code, s 689(1).

280 One of the apparently simple rules of evidence is the rule in Browne v Dunn (1893) 6 R 67. For such a simple rule, it has been the subject of a surprising amount of judicial consideration.

281 It is, first and foremost, a rule of conduct preventing a party who has failed to cross-examine on an issue from pressing that issue in summation or in relying on the issue on appeal. Browne v Dunn is itself a good illustration as to why there is such a principle.

282 In a case bound by pleadings the rule has considerable importance. It has importance in a criminal case but adherence to the rule may be modified by observance of more fundamental principles, namely the burden of proof and the right to silence until waiver at an appropriate point in the trial. There is an obvious tension between these principles.

283 The rule in Browne v Dunn is principally a rule preventing subsequent impeachment of a witness, especially when there is no opportunity for recall and is, essentially, a shield. Use of it as a sword to actively impeach a witness by reference to the conduct of the witness's agent - counsel for the accused - demands care and caution.

284 It is usually incumbent on a judge to deal with any potential inference as to the credit of an accused who is a witness by drawing attention to some of the factors outlined in R v Birks (1990) 19 NSWLR 677. In the present case, I am of opinion that the Judge failed to sufficiently advise the jury of the aspects they should consider in assessing credibility on this point.

285 I agree with Malcolm CJ that, in combination with grounds 1, 2 and 3, ground 4 provides a further basis to quash the conviction.

286 I have nothing to add to the reasons of Steytler J with which I agree.

287 I conclude that the appeal should be allowed and the conviction quashed.

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

CITATION : PATERSON -v- THE QUEEN [2004] WASCA 63 (S)

Jurisdiction : DISTRICT COURT OF WESTERN AUSTRALIA

Appeal and new trial - Conviction quashed - Whether new trial should be ordered

Respondent : Commonwealth Director of Public Prosecutions

1 MALCOLM CJ: On 16 December 2003, the Court, by a majority, allowed the appellant's appeal against his conviction of an offence of attempting to cause harm to a public official contrary to s 147.1(1) of the Criminal Code (Cth). It was then stated that the reasons for judgment would be published later.

2 The appellant had been convicted after trial before a jury in the District Court at Bunbury on 5 August 2003 and on the same date had been sentenced to imprisonment for 2 years with eligibility for release after serving a period of 10 months of his sentence, upon his entering into a recognisance to be of good behaviour for a period of 14 months in the sum of $5000.

3 At the conclusion of my judgment in par [214], I said:

"Given that the appellant was sentenced on 5 August 2003 to imprisonment for 2 years with eligibility for parole after serving 10 months of that term, and has served more than 4 months of the sentence, there remains a question whether there should be a retrial. This is an issue on which I would be prepared to hear counsel."

4 When the decision was pronounced, the Court indicated that it wished to hear submissions on the question whether there should be a retrial. Consideration of that question was adjourned to a date to be fixed pending the publication of the reasons for judgment. In the meantime, it was agreed by counsel for the Commonwealth Crown that the appellant should be discharged from custody on his undertaking that he remain in the jurisdiction pending the outcome of the proceedings.

5 The reasons for judgment were published on 5 April 2004: Paterson v The Queen [2004] WASCA 63. The Court then heard submissions on the question whether there should be an order for a retrial. These submissions were made on the basis that the appellant had succeeded on grounds (1), (2), (3) and (4) of the grounds of appeal, namely that:

"(1) The manner in which the Crown case was conducted gave rise to a real risk of improper influence over the jury and caused a miscarriage of justice.

(2) The learned Commissioner erred in not directing the jury in sufficiently strong terms that the case was not to be decided by resolution of the issue whether the police were telling lies or 'trying to do something untoward'.

(3) The learned Commissioner erred in not directing the jury to ignore a submission by the Crown prosecutor not to 'tar these honourable people [the prosecution witnesses]' with what the jury may have read about in the Royal Commission into Police Corruption.

(4) The learned Commissioner erred in not directing the jury regarding what conclusions could properly be drawn from the apparent failure of defence counsel to comply with the rule in Browne v Dunn (1893) 6 R 67."

6 In Rabey v The Queen [1980] WAR 84, Wickham J considered the circumstances in which the Court, having quashed a conviction, should exercise the discretion under s 689(2) of the Criminal Code. After commenting that, at that time, all the criteria for exercising the discretion to order a new trial, as distinct from simply directing a judgment and verdict of acquittal, had not yet been worked out, his Honour went on to say at 95 - 96:

"Where the case is strong and the error is a procedural one only, there is much to be said for the proposition that the matter should be retried in a proper manner. There are, however, other considerations. A new trial ought not to be ordered as a matter of course. Once justice has miscarried it is not always easy to maintain the scales in precise equipoise on a second occasion. The public interest in securing a fair trial of an alleged wrongdoer must be weighed against public inconvenience and expense, and against the possible oppression upon a member of the public who is placed in jeopardy twice for the same offence, has already spend some time in prison and has already been through one trial and an appeal. I think that a properly directed jury would be unlikely to convict on the issue of 'intent', and 'possession' would only have been triable summarily. Some of the criteria for exercising the discretion to order a new trial are referred to in R v Bailey [1956] SASR 153; R v Leak [1969] SASR 172 at 175 et seq; in R v Hanias (1976) 14 SASR 137 at 145, 157, and in the authorities therein mentioned. To these I would add the consideration that in this case the circumstances of the charged offence were comparatively venial.

In Peacock v R [1911] HCA 66; (1911) 13 CLR 619 at 675, O'Connor J said that where the facts proved at the first trial would have been sufficient to support the conviction if the jury has been properly directed, in general a new trial may be granted to enable the faulty direction to be remedied, providing that no injustice is done to the accused.

In considering the discretion to grant a new trial, that is the view which is expressed in R v Leak, supra, with the added condition 'if the jury could reasonably convict and might not improbably convict'. In considering the discretion not to grant a new trial, the view adopted was that where the case is weak and the jury properly directed 'would probably acquit' then, the court may properly incline towards refusing a new trial. In a particular case there will be various considerations, but I would respectfully adopt as a starting point the dicta of Griffiths CJ in Peacock v R, at 641, as follows: 'I do not think it was intended that a new trial should be granted as of course in every case where there has been an irregularity. I think the proper rule is that where there was evidence to go to the jury and the error was of such a nature that, if it had not been committed, the verdict would probably have been the same, a new trial may be granted. On the other hand, if, on the whole case, it is reasonably probable that, but for the error complained of, the verdict would or might have been different, a new trial should not be granted.' "

7 In Boxer v The Queen (1995) 14 WAR 505 at 540 - 541 in my judgment (with which Franklyn and Owen JJ agreed), consideration was given to the question whether a new trial should be ordered in a case where the conviction was quashed because the trial Judge had failed to direct the jury that comments made by counsel for the prosecution on the failure of the accused to give evidence breached the prohibition against such comments in s 8(1)(c) of the Evidence Act 1906 (WA). The basis of the comments was that various suggested facts were put to prosecution witnesses in cross-examination by counsel for the defence. In that case, the seven accused were convicted of the offence of riot contrary to s 64 of the Criminal Code (WA). Their appeals against conviction were allowed and the convictions quashed.

8 In his closing address, counsel for the Crown made comments which were held to be comments on the failure of the accused to give evidence. The basis of the comments was that various suggested facts were put to prosecution witnesses which they had not only denied, but there was not " ... one skerrick of evidence from any of the accused". In my judgment at 535 - 536 (with the agreement of Franklyn and Owen JJ) I said:

"Counsel for the appellants contended that if counsel for the Crown had said '... and in respect of which there is no evidence' instead of '... and in respect of which that is the only evidence', such a comment would be capable of being a breach of s 8(1)(c). I accept this contention. Propositions of fact or suggested facts put by counsel to a witness are not evidence. Where a proposition of fact is denied, however, the denial is evidence that the alleged fact did not occur. It follows that it is permissible to say: 'The evidence on the relevant point was X, Y and Z and there is no evidence to the contrary'."

9 In a later passage quoted in the judgment, counsel for the Crown, commenting on other facts, referring to a specific incident alleged, contended that:

"... for no apparent reason - and there's no evidence to the contrary to suggest there was another reason. No evidence has been produced. Not a skerrick - Frank Boxer ran in and king hit ... ."

10 It was held that this was a comment on the failure of the accused to give evidence. There was a further reference by counsel later in his address to another incident when he said:

"Bear in mind there's not a skerrick of evidence to the contrary."

11 In Boxer (supra), it was held that while these various comments infringed the relevant prohibition, standing alone they did not result in a substantial miscarriage of justice, but taken into account with a number of other matters, they contributed to a result which did constitute a substantial miscarriage. These included the fact that the learned Judge gave the standard direction to the jury that the accused were not obliged to give evidence and said:

"However, in a case such as this where in addition to some direct evidence from the Crown witnesses as to acts of the accused, and you have heard that, the Crown ask you to draw inferences, for example, as to the intent of the various accused, then such facts upon which the inferences can be drawn may be more safely found where there is uncontested evidence, obviously from the Crown, and in a situation where when the accused elects not to give evidence of relevant matters which you might think may well have been within their own knowledge.

In that situation you may more readily find the facts proved and draw inferences from them in that situation. Put another way there are two things, first, the silence of the accused cannot be equated with guilt, but on the other hand if in relation to a particular element of the charge which is required to be proved you find the evidence that you have heard from the Crown establishes a fact, the absence of any acceptable evidence to the contrary from the accused may lead you to find those facts more readily and in turn to find the inferences based on those facts." (My italics)

12 It was held that it was a misdirection to tell the jury that "'facts upon which the inferences can be drawn may be more safely found where there is uncontested evidence' and when the accused elects not to give evidence of relevant matters which the jury considers may well have been within their own knowledge, they 'may more readily find the facts proved and draw inferences from them'". The various matters to which I have referred were held to have contributed to a substantial miscarriage of justice, with the result that the appeals were allowed and the convictions quashed.

13 In the context of determining whether to order a retrial in Boxer (supra), it was noted at 540 that in Clemesha v The Queen [1978] WAR 193 at 201, Wickham J (with whom Lavan SPJ agreed) adopted the following passage in the judgment of Napier CJ, Reed and Ross JJ in R v Bailey [1956] SASR 153 at 161:

"The governing consideration is, of course, that justice should be administered according to law, but we are not disposed to say that the interests of justice would be served by laying down the rule that a new trial will be ordered, as a matter of course, where there was evidence upon which the jury could have convicted on an adequate direction. A second trial is seldom an entirely satisfactory solution, and we think that it would be inadvisable to give any encouragement to the idea that a new trial will be allowed, however the case is presented at the first trial. When justice has once miscarried we think that there is some risk that 'truth, like all other good things, may be loved unwisely - may be pursued too keenly - may cost too much'."

14 In my opinion, the present case was one in which the prosecution had a reasonable prospect of success, but a conviction was not inevitable. There were some significant discrepancies in the evidence given by the prosecution witnesses. There was also a major question whether the appellant, when in his vehicle with the engine running, his dog barking and the radio on, did in fact hear Agent Harrison call out, "Stop. Police". It was crucial to the prosecution case that the jury be satisfied beyond a reasonable doubt both that those words were called out by Agent Harrison and that the appellant in fact heard them. The appellant denied that he heard them. In this respect, the evidence of the appellant that the engine in his vehicle was running, the radio was on and his dog was barking was not contradicted, but, at least to a significant extent partly corroborated by the video which recorded the barking of the dog. Reliance was placed upon the words, "Stop. Police" because the prosecution accepted that it had to prove that the appellant knew that Agent Harrison was a public official and that what he was doing at the time was engaging in his capacity as a public official.

15 In these circumstances, acknowledging that a conviction was certainly not inevitable, I do not consider that the prosecution case was so weak that a verdict of acquittal should be entered. It follows that the appropriate order for the Court to make is that there be a retrial.

16 The question whether such a retrial should proceed is in the end a matter for the Commonwealth Director of Public Prosecutions. In Ibbs v The Queen [2001] WASCA 129; 122 A Crim R 377 at [19] I noted a submission by the State Director of Public Prosecutions that this Court should be reluctant to enter a verdict of acquittal where in truth the matters for determination relevant to the question of a new trial rest more with the Director of Public Prosecutions than with the Court. In support of that submission, reliance was placed on Crofts v The Queen [1996] HCA 22; (1996) 186 CLR 427 per Toohey, Gaudron, Gummow and Kirby JJ at 452; Graham v The Queen [1998] HCA 61; (1998) 195 CLR 606 per Callinan J (with whom Gleeson CJ, Gaudron, Gummow and Hayne JJ agreed) at [47]; and Bull v The Queen [2000] HCA 24; (2000) 201 CLR 443.

17 Crofts v The Queen (supra) was an appeal from the decision of the Court of Criminal Appeal in Victoria which dealt with a question relating to when it was appropriate for a trial Judge to give a warning to a jury in a context of delay by the complainant in making a complaint in a sexual assault case. Their Honours said at 452:

"On 14 August 1996, the Court pronounced the orders stated at the outset of these reasons. The appellant has already served a significant part of the custodial sentence imposed upon him. It is appropriate to repeat McHugh J's closing comment in Longman: [(1989) [1989] HCA 60; 168 CLR 79 at 109]

'In all the circumstances of the case, it is arguable that the interests of the public, the complainant and the applicant are best served if the expense and psychological trauma of a new trial are avoided. But that is a matter for the Crown to decide.'"

18 Graham v The Queen (supra) was a decision on appeal from the Court of Criminal Appeal of New South Wales. The appeal concerned the admissibility of the evidence of a complaint made some six years after the last of the acts against the accused. It was held that the admissibility of the evidence under the Evidence Act 1995 (NSW) was not inevitable and that the appellant may have lost a significant chance of an acquittal. After concluding at par [36] that there were a number of errors in the conduct of the trial, it was concluded by Callinan J at [47] that the appeal should be upheld, the verdicts of guilty quashed and a new trial ordered. His Honour concluded at [47]:

"Whether such a trial should take place in view of the term of imprisonment served by the appellant will be a matter for the Director of Public Prosecutions."

19 In Bull v The Queen (supra), it was held that certain evidence in a sexual assault case was inadmissible. McHugh, Gummow and Hayne JJ concluded at [131] that the appeal should be allowed, the conviction quashed and a new trial ordered. Their Honours went on to say:

"However, nothing in the materials before this Court makes it an appropriate case to enter an acquittal in favour of the appellants. The ground of appeal which the appellants have made out entitles them to a new trial, not an acquittal. Whether or not they should be re-tried is a matter for the Executive government of Western Australia, which may well take the view that the acquittal of the appellants on so many charges makes it practically, although not legally, impossible to try the appellants fairly."

20 Gleeson CJ at [28] and Kirby J at [151] agreed with the orders proposed. In my opinion, that case can be explained on the basis that there were public interest and tactical considerations which were relevant to the question whether a new trial should take place, which the executive was best placed to consider.

21 In my judgment in Ibbs (supra), I said at [24]:

"These decisions have been applied in this Court where there are public interest issues which the Director of Public Prosecutions is best placed to decide whether or not to proceed with a new trial. For such cases it may be appropriate to order a new trial, leaving it to the Director to decide whether to proceed: cf Middleton v The Queen [2000] WASCA 200; and Miles v The Queen [2000] WASCA 364."

22 I also went on to say in [25] that it did not follow from those decisions that, in a proper case, this Court should not proceed to order that a verdict and judgment of acquittal should be entered. While this Court will naturally be guided by decisions of the High Court on the proper construction and application of provisions of the Criminal Code, this is not an appropriate occasion upon which to express any definitive opinion in relation to the question whether and in what circumstances, this Court, having decided to quash a conviction, should exercise its discretion in relation to directing the entry of a verdict and judgment of acquittal or ordering a retrial. For example, in McGrath v The Queen (1916) 18 WALR 124, this Court held that, in a case where the conviction had been obtained on the basis of perjured evidence by a witness for the prosecution, a new trial would not be justified. This is not a case of that kind. In Ibbs (supra), the [State] Director of Public Prosecutions conceded that it was not a case in which it would be appropriate for there to be a new trial. In my opinion, that concession was rightly made. It was for this reason that the Court in that case not only ordered that the conviction be quashed, but directed that a verdict and judgment of acquittal be entered.

23 I also adhere to the further comments which I made in Ibbs (supra) at [26] - [35], with which Wallwork and Wheeler JJ agreed, save that Wheeler J refrained from expressing a view on the issues raised by the judgments in R v Main [1999] QCA 148; (1999) 105 A Crim R 412.

24 It is in this context that I would order a retrial. Consequently, it will be a matter for the Commonwealth Director to determine whether such a trial should proceed.

25 STEYTLER J: I have had the advantage of reading, in draft, the judgment of the Chief Justice. The background to the question which now arises, whether or not there should be a retrial, is there fully set out, as are

the relevant authorities. I agree with him that the appropriate order in this case is one for a retrial.

26 The prosecution case is, in my opinion, reasonably strong, albeit a conviction on a retrial is by no means inevitable. Moreover, there is nothing in the grounds of appeal upon which the appellant has succeeded which should entitle him to an acquittal, rather than to a new trial: cf Bull v The Queen (supra) at [131]. While I recognise, of course, that, in this case, there is room for debate whether the interests of the public, the complainant and the appellant are best served by another trial, more particularly given that the appellant has served more than 4 months of the sentence imposed upon him, it seems to me that, in all of the circumstances of the case, that is a matter which should be left for the Commonwealth Director of Public Prosecutions to decide: cf Longman v The Queen [1989] HCA 60; (1989) 168 CLR 79 at 109 and Crofts v The Queen [1996] HCA 22; (1996) 186 CLR 427 at 452.

27 The events which led to the appeal commenced on 27 March 2002 at Bridgetown when it is said that the appellant attempted to cause harm to a public official. An indictment was presented on 2 December 2002 and the trial took place on the 4 and 5 August 2003 following which the appellant was, upon conviction, sentenced to a period of 2 years' imprisonment with eligibility for release after serving a period of 10 months. Notice of application for leave to appeal was lodged on 25 August 2003. The appeal was heard on 12 November 2003. On 16 December 2003 the Court, by majority, allowed the appeal and quashed the conviction. The appellant was released, having then served some 4 months of sentence. The issue of a retrial was raised and it was agreed that the issue be pursued following the publication of the reasons of the Court. The reasons were published on 5 April 2004 and on that day the Court heard submissions as to whether there should be a retrial and reserved that question for consideration.

28 In Middleton v The Queen [2000] WASCA 200; 114 A Crim R 141 Miller J, Kennedy ACJ and Wallwork J agreeing, conducted a review of the authorities on the question when a court will exercise its discretion to direct a judgment and verdict of acquittal from [19] to [24], before concluding:

"... As it is essentially a question for the Director to decide whether there should be a re-trial, I would order that there be a re-trial rather than enter a verdict of acquittal."

29 I adopt the analysis by Miller J which is unnecessary to set out.

30 Generally, a court will order a retrial. An obvious exception is where an appeal succeeds on the grounds that the verdict was unreasonable or could not be supported having regard to the evidence. That is not this case. Another obvious reason for declining to order a retrial is where a person has served a substantial portion or all of the sentence imposed.

31 The institution of the Office of Director of Public Prosecutions, both Commonwealth and State, and the subsequent publication by the DPP of Prosecution Guidelines, provides a further reason for ordinarily leaving the decision whether the accused should be subjected to a further trial to the DPP. The decision to prosecute and the formation of charges are matters for the Executive: Maxwell v The Queen (1996) 184 CLR 501.

32 Ultimately, however, the exercise of the discretion whether to order a retrial is a determination as to the public interest.

33 As Wickham J noted in Rabey v The Queen [1980] WAR 84 at 95:

"... A new trial ought not to be ordered as a matter of course. Once justice has miscarried it is not always easy to maintain the scales in precise equipoise on a second occasion. The public interest in securing a fair trial of an alleged wrongdoer must be weighed against public inconvenience and expense, and against the possible oppression upon a member of the public who is placed in jeopardy twice for the same offence, has already spend some time in prison and has already been through one trial and an appeal."

34 In the present case, the following matters are relevant to the exercise of the discretion:

• The strength of the prosecution case. The prosecution case is reasonably strong although a conviction is certainly not inevitable.

• The appellant has served 4 months of a sentence of 2 years with eligibility for release after 10 months.

• There has been no significant delay in the laying of charges or in the passage of time before trial and appeal.

• The appellant will be put in jeopardy for a second time.

• The conduct of the prosecution was responsible for the conviction being quashed.

• The appellant did not contribute to the miscarriage of the trial.

35 This is very much a borderline case. On balance, I would exercise my discretion against an order for a retrial. The trial having miscarried, by reason of the conduct of the prosecution, and the appellant having served a period in custody, I do not believe that the public interest requires that the appellant be subjected to the stress and expense of a further trial.

• Appeal Against Conviction
• The Crown Case
• Evidence of Prosecution Witnesses
• The Appellant's Evidence
• The Commissioner's Summing Up on Intention
• Ground 5: Necessity to prove that the complainant, Federal Agent Harrison, was a Commonwealth or Federal Police Officer rather than a State Police Officer
• Ground 6 - Duress
• Ground 1 - Conduct of Counsel for the Prosecution
• Ground 7: Failure to call a Mrs Rixon
• Grounds 2 and 3
• Ground 4

• Grounds 1, 2 and 3
• Ground 4
• Ground 5
• Ground 6
• Ground 7
• Conclusion

• Grounds 1, 2 and 3
• Ground 4
• Grounds 5, 6 and 7
• Chronology
• The principles
• Conclusion