Grounds 3 and 4
22It is convenient to deal first with Grounds 3 and 4 together. In order to give substance to the appellant's submission, it is necessary to record the relevant portions of the Crown's address to the jury about which complaint is made. They are contained in so much of her address to the jury as follows:
"CROWN PROSECUTOR: Ladies and gentlemen, thank goodness Mr Robert Small decided to do his patrol at the time he did on the morning of 2 September 1991. Had he not discovered the body of Felipe Flores at that time, at about 3.30 or so, perhaps 3.35, in the position that it was, the area we all know, had he not discovered it then, had the body gone undiscovered until 5, 6 or 9 o'clock in the morning, the Crown would not be in such a strong position to submit to you that the accused was the killer of Felipe Flores.
...
And we have from Mr Small this very important evidence, really, about a car. Well, of course, there are a lot of early model Holden station wagons of a white or cream colour around but we have got this primer in the rear door. The evidence doesn't exactly say that this car had primer in the rear door but we have heard from a number of owners, we have got a different coloured door from the Skermans, we have got work being done by the Moore boys and we have got the evidence it was a piece of junk, a wreck, and things like that.
And Mr Small noticed that, as you know, that the headlights of the car were not put on by the person leaving that location. The Crown would submit to you that that was because the driver of that car had done something for which he did not wish to be identified, he didn't want his number plates illuminated, he drove off with the headlights and taillights off so that the person that he could see - he could see the night watchman, you might think, carrying the torch even though he was some distance away - keep those headlights off so that his car was not to be seen.
That was the murderer of Felipe Flores and the Crown submits to you, on the basis of the evidence, that it was this man, Paul Darcey Armstrong, the owner of the car, the car that he had forgot, the car he had said to police nothing about until they put it to him, it was Paul Darcey Armstrong who, in a similar vein to not turning on his headlights as he was leaving, didn't come walking out held up to his full 6 feet 7 when he saw that night watchman patrolling with a torch, he skulked back to that car so that the night watchman wouldn't be able to see from 80 or 90 metres away what his true height was. He's been 6 foot 7 since he was 16 years of age, he knows how conspicuous a man of his height is and how you can get into trouble, 'The big bloke did it'. He wasn't marching alone like a soldier marching along at his full height when he went back into that car, so Mr Small thought it was a man of about 5 foot 6 to 5 foot 8. It wasn't Clifford Lee though and of course I'll take you in some detail to that conversation with poor old Clifford Lee who perhaps may have been targeted because of the police grabbing on to this 5 foot 6, 5 foot 8 business that led to that red herring.
Of course, as we know, ladies and gentlemen, this crime was not solved and the Crown submits to you it was solved when the DNA under the fingernails of Felipe Flores - and I'll take you to Dr Bruce's evidence where it is suggested that at least some of that DNA is on the concave surface, that is the inside surfaces of the fingernails, wasn't solved until that DNA was found to be, and the accused concedes it, the DNA of the accused. There's no other DNA under the fingernails of Mr Flores, no third party at all, there's Mr Flores' own DNA and there's this man's DNA, Paul Darcey Armstrong, who had a par [sic] which extraordinarily matches, you might think, the description by Mr Small.
And we have this very tight time frame, we have a very tight time frame without which it could be suggested that Mr Flores had plenty of time to get down there, anyone could have done it, the car leaving at 3.20 or 3.20, whatever you take from Mr Small's evidence, had nothing to do with it, Mr Flores mightn't have got there for hours later but we have this very tight time frame. We have the car.
...
We have, ladies and gentlemen, the visit to the doctor by the accused on 3 September 1991, and follow-up visits, as you know, in February of the next year. That's one of the problems with cases that come to courts so much later than it happened, so many records are lost and destroyed, but we have these pieces of evidence fitting in together.
We have then Jacinta Webber, formerly Stephan Webber, who came into this Court, you might think, and gave evidence to the best of her recollection honestly and truthfully. We have heard how Detective Senior Constable Hungerford finally found the person who was Stephan Webber. It took a while, or course, because not only had the name changed but of course the gender had changed. But we heard from Jacinta Webber that she had been in a relationship for a very convenient one year or so period, all in 1991. So she's not confused about the year that these things happened because she was only with him for one year, it didn't cross two years, it was always in one year, 1991.
...
You recall the evidence, and I'll take you to it in a little bit of detail later, but you would be satisfied, I am sure, that there was no suggestiveness by Detective Hungerford to Ms Webber about what she should say as to how the death occurred. There was no coercion, there was nothing improper in the way Detective Hungerford approached her and asked her in no improper way if she could remember anything from that year.
And she told you, of course, that she remembers the accused coming home with scratch marks on his face, not a suspected broken nose and a laceration on the lip. And isn't it interesting that in relation to that 1991 injury that the accused suffered in June when two or three men set upon him, he doesn't even remember telling Stephan about that. He doesn't even know whether she was at home, she might have been away. She wasn't talking about that time.
Look at the diagram in the records from the St Vincent's Hospital. There's no scratch marks on that face, there's no scratch marks on the body. The accused came home with those scratch marks on 2 September 1991 and the shirt that Stephan Webber had given him that cost, Jacinta remembers now, $120, she remembers it clearly, she was annoyed, the shirt had been destroyed because it had blood on it and it had been torn, that shirt was thrown in the rubbish bin and that's why she remembers that occasion. But the parallel scratch marks centimetres long on the face and on the chest, that was the only defensive action that the unfortunate Mr Flores got the chance to do. He didn't get the chance to punch or fight or anything else, he was in close proximity, he scratched the accused in the last moments of his life.
The accused wasn't forthcoming to Jacinta about what had happened at that time. You can imagine, can't you, perhaps if you had done something dreadful, if you had killed someone and the police aren't yet knocking on your door, aren't yet chasing you, you're going to be very reticent about telling anyone, even the person with whom you're living, that you're going to try and get away with it and tough it out. And this wasn't a relationship where the accused told Stephan everything, he was unfaithful to him, he had his own secrets, he had his own social life. He didn't tell him everything, you might think, and he didn't tell him the truth about what had occasioned these scratch marks on the face and chest.
But several weeks later, you might think, when the heat's off a bit and this looks like just another unsolved gay homicide, the accused gets a bit more cocky about telling Stephan about what happened. He doesn't read newspapers but Stephan had the Sydney Star Observer, which comes out once a fortnight, and said, 'Another gay murder in Woolloomooloo' and the accused couldn't help himself - you know the accused well now, you know the type of man he is - he couldn't help but boast almost. He said, 'I hurt a man very badly down there that night but he was still alive when I left him'.
Another reason why we should be very grateful not just for the evidence of Mr Small but for the fact of Mr Small having done his patrol at the time he did. We know from Dr Schwartz that death with the dreadful internal injuries Mr Flores suffered would have been quick. But it was not necessarily instant. The blood had to be lost from the heart and spleen and liver, as the doctor explained, and Mr Small was very clear about his perception that the deceased's eyes, when he first saw him, had the appearance of some life in them, some pleading look in those eyes, some brightness, which soon was extinguished. The accused, when he beat, kicked and stomped the deceased, knew he was still alive when he left him and that's why he told Stephan, 'He was still alive when I left him' and Mr Small thought Mr Flores was still alive. How would Jacinta Webber make that up today?
...
Then, of course, we have the interview with the police which I'll take you to some parts of in due course, but you might think when you look at it - and look at it again in the jury room when you come to consider your verdict - you know the accused well now, watch his body language, watch the way his eyes go, watch the sharp intakes of breath when he realises that the body of evidence is getting closer and closer to him. You, ladies and gentlemen, know how to evaluate people who are telling the truth or telling lies and that's what you get to do here in this courtroom, to watch witnesses give their evidence and work out whether they are telling you the whole truth, none of the truth or part of the truth, and you do it just the same way as you evaluate anyone in your workplace or your children or in your home and work it out for yourself: Is this person telling me the truth? And you will see from the body language of the accused that he gets more and more worked the more and more facts that are presented to him about cars, locations, workplaces and so on and he tells a complete untruth, in the Crown's submission to you, about not having acquired any cars there.
Now, Mr Haesler, when he opened his case to you yesterday, he said, 'Well of course, it's very hard for us to remember 1991, it's hard to remember who the Premier was and who was the Prime Minister and what was news on the front page', and of course it is, but, ladies and gentlemen, God forbid, if you had killed someone in 1991 you'd remember that and it's not hard for the accused to remember that he killed Mr Flores. He knows that's what the police are there to ask him about and he's certainly not going to help him by volunteering ownership of the car that he knows that he drove away in that morning with his headlights off. You can see his mind working and you can see the way that he tries to mislead the police in that interview and only embraces things when he realises that they've got the evidence.
And then we have, ladies and gentlemen, what the accused says to his father and you might think since the accused's evidence yesterday that there actually is no dispute about word on the tape, that it is 'pled' as in the past tense of 'pled', 'I haven't pled to anything yet'. It seems to be an Americanism, that use of the word, but I'm sure you all understand the meaning. But the accused himself only yesterday said at page 470 of the transcript when I asked him, 'What does it mean?' he says, 'It just means I hadn't pled yet, it had nothing to do with DNA'. So he doesn't seem to have any problem with the transcription that that word there is 'pled'.
And what the Crown says to you about that conversation is it's very clear that the accused is pretty open with his father, not saying, 'Dad, I never did it, I don't know why they think I did it', he's saying, 'Well, we have to find out the type of DNA' and reading between the lines, the Crown submits to you, the type of DNA means whether it's blood or whether it's semen. If it's blood well that's going to be hard to explain, but if it's semen, 'I can pass it off as some toilet sexual activity because of my gay lifestyle'. He doesn't come out and say that to his father but that is obviously exercising his mind, the type of DNA, whether it's really damning, as it would be for blood, or whether it can be explained in some way as it might be for semen or saliva.
But the Crown says to you, ladies and gentlemen, and we have heard from Dr Bruce about the DNA, there is no doubt at all that it's the accused's DNA, he acknowledges that and he accepts it, but we don't really know because there was blood under the fingernails of Mr Flores, certainly blood, but could it have been his blood? Actually the Crown would submit to you: Well, where's the blood come from, because there's not a pool of blood where the hands are, there's no wounds on the body itself, there's some bleeding to the head area, but could Mr Flores have put nine of his fingers, or many of his fingernails, in contact with his own blood or do you agree that the DNA under the fingernails is the accused's DNA from blood, or skin cells at least, but perhaps blood, when the deceased scratched the accused during the course of this terrible ferocious beating which led to Mr Flores' death.
...
The Crown throughout would say this is a murder, pure and simple, a terrible, savage beating by a very large man upon a much smaller man who was very restricted from defending himself in the circumstances.
...
Now, Dr Schwartz doesn't see any of that and ventures the opinion that she couldn't see any defensive wounds, but you might think that Mr Flores got one punch in at one stage, that's a matter for you, but he was clearly powerless, very, very outsized and overpowered by whoever it was who killed him and the Crown says to you, ladies and gentlemen, it is clearly, on all of the evidence, the accused.
...
Mr Khoudair says, 'I would lean towards...sort of injury'. He said the hands were bagged at the scene, so no chance of them somehow coming into contact after death with blood or anything like that. So bear that in mind when you're considering whether the blood under the fingernails - and it wasn't copious, it was hard to see until it was searched for at the Division of Analytical Laboratories, but it was red staining and blood, whether it was the blood of the accused or the blood of the deceased.
...The Crown submits to you, ladies and gentlemen, it's blood from the accused and that's where the DNA comes from, not from anything else, blood and skin cells from the accused.
...
In relation to the comment, 'Do you agree he's seen us' by the Australian male voice in the truck, he said, 'It sounded like a young male Australian voice'. Well, it sounded like a timorous person, you might think, worried about being seen, someone unlikely, you might think, to be someone who was about to punch, stomp and kick someone to death. Whatever they were doing, they were doing it inside the car.
...
Nothing really explains any blood under the fingertips there, ladies and gentlemen. Although there are some bruises and abrasions, no open wounds that would have bled freely enough to have stained nearly all the fingernails you might think.
...
Finally, ladies and gentlemen, the conversations with the father, which is really nothing more than someone working out with his father what he might have to do in the face of overwhelming evidence. He might be able to get a bargain down to manslaughter, he might have to plead to something because they've got this DNA evidence which, even at that stage, you could not really jump over.
He agreed yesterday that the word that he used was 'pled'. He said so in his evidence, 'We have not pled anything yet because we do not know the strength of the DNA'. Not, 'Because I didn't do it' but, 'Because I don't know how strong this evidence is that they're going to bring against me'. His father says, 'Right, yeah, they mightn't have anything on you then, mate'. That means: Isn't this lucky, it mightn't be good enough to prove you killed that fellow. There's nothing there about 'Dad, this is terrible, I don't know how they could have their DNA because I didn't have anything to do with it. I'm innocent, I could never have killed or hurt someone', nothing like that.
This is a man who knew very obviously that every time he went near the Exchange Hotel, which linked him, Darlinghurst, the Pink Pussycat, which linked him to Stephan and might have produced Stephan as a witness, the car, Sunday, he knows very, very well that he killed Felipe Flores. He's had it in his mind ever since. This isn't 'Who was the Prime Minister in 1991?' This is, 'I killed someone in 1991 and they haven't caught up with me yet' and he knew in December 2008 that they had some conversation with the father and this is not someone who is crazy over false accusations, it's someone very calmly weighing up the odds of, 'How much they've got against me? I might have to wear it but maybe I can tough it out and maybe I can convince the jury I didn't do it'.
But, ladies and gentlemen, the accused did it..." [Italics added - see below].
23Fingernail samples from the deceased returned a presumptive finding positive for the presence of blood. Dr Bruce gave the following evidence-in-chief at the trial:
"Q. There was blood on these fingernail clippings of someone's, is that right?
A. That's correct.
Q. Can one say that the blood was either that of the deceased or that of the accused?
A. No, it is not possible to make that conclusion either way.
Q. Would you consider that it is likely that it is blood from one of those two people or both?
A. All I can say is blood is a likely source of DNA, but again I cannot categorically say whether blood was the likely source of the DNA that matched the victim or the accused."
24None of these questions was objected to and they appear to create the impression that the evidence showed that blood was found under the fingernails of the deceased. There was no such evidence. A presumptive test does not positively establish the presence of blood. The Crown in this Court conceded that. There had been no definitive testing for the presence of blood and Dr Bruce did not give any evidence of the presence of other possible sources that were capable of producing positive reactions to presumptive testing. The appellant's counsel at the trial did not take up the erroneous proposition inherent in the first quoted question and answer, and the inaccuracy was left to the jury.
25The majority of the tested samples demonstrated a presumptive positive result for blood, yet only a minority demonstrated a mixture of DNA. The Crown submitted to the jury that there was blood under the deceased's fingernails. That submission was based upon a false premise. Furthermore, the Crown submitted at the trial, having regard to the deceased's injuries, that there was no mechanism that accounted for how this blood could have been the deceased's blood: there was no expert opinion that supported that suggestion. Finally, in those circumstances, the Crown submitted at the trial that the appellant's blood was the only explanation for the positive testing and that accordingly accounted for the presence of his DNA.
26In her final address to the jury the Crown Prosecutor stated "there was blood under the fingernails of Mr Flores, certainly blood, but could it have been his blood?" She later asked rhetorically, "could Mr Flores have put nine of his fingers, or many of his fingernails, in contact with his own blood or do you agree that the DNA under the fingernails is the accused's DNA from blood, or skin cells at least, but perhaps blood, when the deceased scratched the accused during the course of this terrible ferocious beating which led to Mr Flores death?"
27This theme is reprised later in her submissions: "The Crown submits to you, ladies and gentlemen, it's blood from the accused and that's where the DNA comes from, not from anything else, blood and skin cells from the accused." A little later again: "Nothing really explains any blood under the fingertips there, ladies and gentlemen...no open wounds that would have bled freely enough to have stained nearly all the fingernails you might think."
28The appellant contended in this Court that there has been a miscarriage of justice on account of the admission of a false premise that blood was detected under the deceased's fingernails and the subsequent Crown submission as to the so-called facts that could be extrapolated from it.
29It will be apparent that there was no evidence before the jury that there was in fact blood on "nearly all" of the deceased's fingernails. The jury was arguably misled by the submission that there was in fact blood found there. To the extent that the presumptive testing was properly capable of giving rise to an inference that there was blood, there was no expert evidence that the only explanation for the blood under the deceased's fingernails was that it came from the appellant. According to the appellant, the Crown's final address to the jury contained the expression of an opinion, not based upon or supported by the evidence, that "the blood" was only explicable upon the basis that it was the appellant's blood.
30The appellant contended that to the extent that the Crown's expression of opinion went beyond the evidence adduced at the trial, it could not be regarded as benign. That follows because if the "opinion" that the appellant was the only explicable source of the "blood" were accepted, it must follow that the appellant was guilty on account of the fact that there could be no innocent explanation for "his blood to be located under the nine fingernails of the deceased". This was not the evidence and it was unfair and improper to characterise it in such a fashion.
31The issue of the presence of blood excited the attention of the jury in a way that underscores the appellant's current concerns. At page 51 of his Honour's summing up the jury asked, "Was there any blood on the victim's hands other than the nails?" That question was clearly infected by the false proposition about which the appellant now complains, namely, that there was blood under the fingernails of the deceased. His Honour answered the question saying, "None of the witnesses called in the case gave evidence that they saw blood on the victim's hands other than on the nails." [Emphasis added]
32That answer did not accord with the evidence, as no witnesses observed blood on the deceased's fingernails. The mischief in the way the evidence was adduced and later characterised was perpetuated in the answer, which itself assumed blood had in fact been observed under the fingernails and in a forensic sense excluded the likelihood that the "blood" could have been the deceased's blood.
33The appellant also submitted in this Court that in the course of her final address to the jury, in addition to comments specifically directed to the alleged presence of blood, the Crown Prosecutor advanced a number of statements and propositions that were at odds with the facts and otherwise unsupported by the evidence. It was contended uncontroversially that the appellant was entitled to have the prosecutor properly discharge her duty to act fairly and with detachment, and always with the objective of establishing the whole truth in order that his trial was fair: Whitehorn v The Queen [1983] HCA 42; (1983) 152 CLR 657 at 663-4; Wood v R [2012] NSWCCA 21 at [577]. It is also uncontroversial that the conduct of a Crown Prosecutor at trial can result in a successful appeal against conviction where that conduct has resulted in a miscarriage of justice: Lawless v The Queen [1979] HCA 49; (1979) 142 CLR 659 at 673; R v Shaw (1991) 57 A Crim R 425. This can arise by reason of an intemperate address to the jury: McCullough v R [1982] Tas R 43; (1982) 6 A Crim R 274. It was, in contrast, very much in contest that the prosecutor had failed to fulfil or to discharge that duty to the prejudice of the appellant in the circumstances of this case.
34Some of the matters to which the appellant drew attention are as follows.
35The Crown Prosecutor suggested to the jury that the accused was a very tall man but that "he wasn't marching alone like a soldier marching along at his full height when he went back into that car, so Mr Small thought it was a man of about 5 foot 6 to 5 foot 8." She had previously suggested that the accused had "skulked back to [the] car so that the night watchman wouldn't be able to see him from 80 to 90 metres away what his true height was." The Crown Prosecutor added that the accused had "been 6 foot 7 since he was 16 years of age, he knows how conspicuous a man of his height is and how you can get into trouble, 'The big bloke did it'."
36These submissions were all speculative. There was no evidence to support them. The Crown Prosecutor was inviting the jury to rationalise the security guard's description with the known height of the appellant upon the basis that he must have been crouching or "skulking", as she described it, thereby permitting an inference that the person of the height seen and described by the security guard could still have been the appellant. This behaviour was also likened to his alleged conduct "in a similar vein to not turning on his headlights as he was leaving." In other words, the jury was being asked to reason that the so-called skulking person and the driver of the car who had not turned on his lights must have been the appellant because the conduct was in both cases intended to avoid detection and only a person of the appellant's height would have walked in that way.
37It will be immediately apparent that such reasoning is circular and flawed. The submission made to the jury was apt to mislead and confuse. There was no evidence that any person at the scene observed by the security guard was anything other than of the height that he described. There was no description given of a crouching man. The submission was at odds with the facts and otherwise unsupported by the evidence.
38The Crown Prosecutor addressed the jury upon the basis that the evidence established that the appellant "came home with scratch marks on 2 September 1991." That was incorrect. The evidence rose no higher than that Ms Webber believed that she observed scratch marks on the appellant in about September 1991.
39The Crown Prosecutor also suggested to the jury that the deceased "was clearly powerless, very, very outsized and overpowered by whoever it was who killed him." That submission was ultimately enlarged to, "The Crown throughout would say this is a murder, pure and simple, a terrible, savage beating by a very large man upon a much smaller man who was very restricted from defending himself in the circumstances." There is no evidence anywhere at all to support the submission that the deceased was "very, very outsized" or that this was a beating committed "by a very large man upon a much smaller man." The iniquity in saying so is that it invites the jury illogically to reason and possibly to conclude that because the deceased suffered such terrible injuries a large person must have inflicted them. It therefore follows that because the appellant was a large person, it must have been him. Once again that submission is circular and unavailable in the terms used upon the evidence.
40Three consecutive paragraphs of the Crown Prosecutor's address to the jury are particularly offensive to the proper understanding of how a prosecutor should behave. I have italicised them in the reproduction of the Crown Prosecutor's address set out earlier. There are several serious problems with what the jury were told.
41The first of the paragraphs is directed to a consideration of the appellant's truthfulness, in the context of his memory. The prosecutor said, "ladies and gentlemen, God forbid, if you had killed someone in 1991 you'd remember that and it's not hard for the accused to remember that he killed Mr Flores." It would have been perfectly acceptable for the jury to be told that they should not believe the appellant when he denied killing the deceased. What the prosecutor was doing, however, was to assert conclusively that the appellant did kill the deceased, and to seek to support that assertion upon the basis that the appellant could not be believed if he could not remember owning a car that other contested evidence suggested had been at the scene. That attack was inferentially thereby directed to the worth of his denial of killing the deceased that the jury were being told was a fact. That was both improper and unfair.
42The second and third italicised paragraphs are concerned with the appellant's intercepted telephone conversation with his father while he was in gaol on remand awaiting trial. It is necessary to set out the relevant terms of the conversation, which are as follows:
"Accused: The lawyer came out and saw me last Tuesday.
Peter: Oh right.
Peter: Yeah so you have to wait until the 19th June.
Accused: Yeah.
Peter: That's a long way away.
Accused: Yeah about ten weeks. The prosecutors are trying to get all their shit together apparently my lawyer already has a QC barrister lined up. Apparently there is a partial DNA on this persons shirt 1 in 180 thousand - then apparently fairly common. But under the fingernails is 1 in 580 thousand.
Peter: Oh.
Accused: But they don't know what type.
Peter: Oh.
Accused: And previously there was two other suspects and they are both since deceased.
Peter: Two more.
Accused: Two other suspects they are both since deceased, passed on, dead.
Peter: Oh so.
Accused: According to my lawyer the only thing they have is the DNA so my lawyer is going to check out what type it is, the validity of it how it was stored for the last 17 to 18 years.
Peter: Oh right, yeah they might had nothing on you then mate.
Accused: Yeah they probably want to strike up a bargain, like drop it from murder down to manslaughter.
Peter: You are not having that are you?
Accused: Well we have not pled anything yet, because we do not know the strength of the DNA.
Peter: You won't plead guilty to nothing at the moment.
Accused. No.
Peter: No."
43It was always the Crown case at trial that this conversation amounted either to an admission by the appellant or was demonstrative of a consciousness of guilt, because an innocent person would neither have entertained the possibility of being inculpated by DNA results nor reserved his position on his plea in such circumstances. Such submissions were genuinely available and open to the Crown. What was to be made of the conversation always remained a matter for the jury.
44However, I do not consider that it was proper for the Crown Prosecutor to descend, in the context of a contest about whether particular samples of DNA were or were not blood or semen, to characterise the position confronted by the appellant in the course of the conversation as being something he can potentially pass off "as some sort of toilet sexual activity because of [his] gay lifestyle". In my opinion, comments such as that were inflammatory and derogatory and likely, if not actually intended, to cause unfair prejudice to the appellant. The expression "toilet sexual activity" was gratuitously pejorative and fundamentally irrelevant. It represented a crossing of the boundary between what was legitimate and what was illegitimate for a Crown Prosecutor to say to a jury.
45Moreover, the Crown Prosecutor asserted to the jury "the accused did it". She postulated an hypothetical thought that the appellant might have had when speaking to his father in the intercepted telephone conversation: "I might have to wear it but maybe I can tough it out and maybe I can convince the jury I didn't do it." The Crown Prosecutor did not in her address confine her references to the telephone conversation evidence as demonstrating a consciousness of guilt but arguably treated it as if it were a confession to the murder of the deceased. That was an unwarranted extrapolation from the statement made by the appellant to his father concerning forensic choices and decisions that were to be made when the DNA results were to hand into a statement that the appellant had it in his mind to deceive the jury. That was an inappropriate and intemperate remark for the Crown Prosecutor to have made.
46Finally, the appellant also complains that, in the context of alleged admissions made by the appellant to his then partner, the Crown Prosecutor suggested to the jury that they "know the accused well now" and that they "know the type of man he is." The Crown Prosecutor also said, "you know the accused well now, watch his body language, watch the way his eyes go, watch the sharp intakes of breath when he realises that the body of evidence is getting closer and closer to him." That submission appears to be based upon what the Crown Prosecutor suggested the jury could draw from the appellant's ERISP. While it may have been couched in somewhat flamboyant terms, it did not in my opinion go beyond what was permissible in the circumstances. I am somewhat reluctantly prepared to accept that it amounted in effect to no more than a submission that the jury were entitled to assess the appellant as a witness in the ordinary course of their deliberations.
47In my opinion the Crown Prosecutor's address to the jury went beyond what was permissible. The question is whether anything flows, or ought to flow, from this conclusion, having regard to the fact that no complaint about the Crown Prosecutor's address to the jury was raised at the time.
48Leave to rely upon an error to which no objection was taken at the trial will be granted where the appellant can demonstrate that the error has led to a miscarriage of justice: R v Abusafiah (1991) 24 NSWLR 531 at 536; R v Wilson [2005] NSWCCA 20; (2005) 62 NSWLR 346 at [20] - [24]; Picken v R [2007] NSWCCA 319; R v Kanaan [2005] NSWCCA 385; (2005) 157 A Crim R 238 at [99]; Sanchez v R [2009] NSWCCA 171; (2009) 196 A Crim R 472 at [60].
49Mason P referred to the issue in the following way in Picken at [20] - [22]:
"[20] Leave to rely on an error to which no objection had been taken at the trial will be granted only where the appellant can demonstrate that the error led to a miscarriage of justice. There have been varying formulations of the test for identifying a miscarriage of justice in this context (see Tripodina and Morabito v R (1988) 35 A Crim R 183 at 195; Papakosmas v The Queen (1999) 196 CLR 297 at 319; R v Wilson (2005) 62 NSWLR 346 at 352 [20]).
[21] It appears to be generally accepted that the appellant must at least establish that he or she has lost a real chance (or a chance fairly open) of being acquitted.
[22] The question of leave in accordance with rule 4 needs to be addressed in relation to the particular error identified by the appellant and its impact, in isolation and in conjunction with other errors, upon the justice of the conviction under challenge."
50It is reasonably clear, however, that rule 4 of the Criminal Appeal Rules does not operate in the circumstances of this case. A failure by counsel to object to perceived inaccuracies in the Crown's address or to its allegedly extravagant or intemperate tone does not fit easily within the description of a direction, omission to direct, or decision as to the admission or rejection of evidence. In my opinion the appellant has in any event demonstrated that by reason of the problems with the Crown Prosecutor's address that I have identified, he lost a chance that was fairly open of being acquitted and that the impugned address to the jury has led to a miscarriage of justice. To the extent that it is required, leave to appeal should in those circumstances be granted.
51The Criminal Appeal Act 1912 provides relevantly as follows:
"6 Determination of appeals in ordinary cases
(1) The court on any appeal under section 5 (1) against conviction shall allow the appeal if it is of opinion that ... on any other ground whatsoever there was a miscarriage of justice...
(2) Subject to the special provisions of this Act, the court shall, if it allows an appeal under section 5 (1) against conviction, quash the conviction and direct a judgment and verdict of acquittal to be entered.
8 Power of court to grant new trial
(1) On an appeal against a conviction on indictment, the court may, either of its own motion, or on the application of the appellant, order a new trial in such manner as it thinks fit, if the court considers that a miscarriage of justice has occurred, and, that having regard to all the circumstances, such miscarriage of justice can be more adequately remedied by an order for a new trial than by any other order which the court is empowered to make.
(2)..."
52The appellant submitted that the interests of justice required that he not stand trial again, but that a verdict of acquittal be entered: Spies v The Queen [2000] HCA 43; (2000) 74 ALJR 1263 at 1283; DPP (Nauru) v Fowler [1984] HCA 48; (1984) 154 CLR 627.
53The appellant referred in particular to the following matters. First, the assessment of the strength of the evidence at any new trial. Secondly, the delay between the date of the offence and any new trial, which has occasioned significant prejudice in the absence of any records as to the time that the deceased attended the ATM, a matter going to the timing of the death of the deceased in comparison to the sightings of him earlier in the evening at or near the Exchange Hotel. Thirdly, any new trial would be an instrument of injustice in circumstances where the prosecution in the first trial improperly enlarged the evidentiary material relied upon in support of its case. Fourthly, any new trial would necessarily be different to that originally presented inasmuch as the prosecution will be unable to assert certainly that blood was under the deceased's fingernails or that it was the appellant's blood. Finally, a new trial would provide the prosecution with an opportunity to recast its case, which should not be permitted.
54The appellant also contended that the discretion to order a new trial should not be exercised where the miscarriage of justice has come about as the result of the conduct of the Crown Prosecutor: R v Walton [1999] NSWCCA 452; (1999) 113 A Crim R 308 at [53]; R v Kennedy [2000] NSWCCA 487; (2000) 118 A Crim R 34 at [83]; R v Teasdale [2004] NSWCCA 91 at [48].
55The paramount consideration must ultimately be whether or not any new trial will itself be fair. I am not satisfied in the particular circumstances of this case that a re-trial could not be overseen in a way that would be entirely fair to the appellant. Indeed, the eradication of the matters to which the present appeal was directed would produce a trial that was arguably fairer to the appellant than the trial about which he complains. I consider that a new trial should be ordered.