14 On 18 February 2000, Mr Stratton made an application for a discharge of the jury based on this direction, which was refused by the trial Judge.
"Mr Stratton: I have got an application to make to your Honour. During the course of the trial what happened was that I opened the case to the jury and the accused then gave evidence and there were discrepancies between my opening and the evidence that the accused made. The Crown very properly made reference to that during his closing address and he also made reference to it during cross-examination of the accused. I made reference to it and I made a certain comment about it. Your Honour made reference to it in relation to your Honour's summing up. What I said in my closing address was that the reason for it could have been that the accused himself because I'd made reference to the accused himself, together, regrettably, the incompetence of his counsel. Your Honour then made some reference to that about the fact that experienced Queens Counsel wouldn't be that incompetent or words to that effect.
His Honour: I don't think I said that.
Mr Stratton: Pretty close to it your Honour. They are not your Honour's exact words but it was something like that. Now your Honour can do a number of things. One is to do nothing obviously. One thing your Honour can do, apart from doing nothing, your Honour can withdraw the remark. If your Honour does that, that highlights it. My submission is that that wouldn't be sufficient and I would ask your Honour to discharge the jury.
His Honour: Where is there any evidence that you are incompetent?
Mr Stratton: Pardon?
His Honour: I would have thought that if this was a matter of your incompetence, evidence could have been given to the jury to indicate that in fact the instructions given to his counsel and his solicitor were in accordance with your opening.
Mr Stratton: Well there was no evidence given of any incompetence at all. There's no question about that. But your Honour referred to it in your Honour's summing up.
His Honour: No, but you put it to the jury that it could be because of the accused or it could be because of your incompetence.
Mr Stratton: Yes that's exactly what I put.
His Honour: Now if it was a matter of your incompetence I would have thought that what would have happened was that you would have led evidence as to the instructions given to your solicitor to show that it was your incompetence. Otherwise why shouldn't the jury take it on the basis that counsel acts on instructions, counsel is Queens Counsel. There is nothing to suggest that counsel has been incompetent. For example if it had been a matter of incompetence of counsel material would have been put to show that they were the accused's instructions and that counsel had been incompetent by not putting his instructions.
Mr Stratton: Well no evidence was called along those lines.
His Honour: How can they infer that?
Mr Stratton: Just the same as they can infer that he told lies. They can make whatever inference they like with respect. Those inferences are open.
His Honour: That's because they can examine the accused. They can hear his evidence, they can hear him make explanations. They can hear nothing from you about an application for that. And it seems to me with great respect that it was gratuitous by you to say that from the bar table. There was no evidence at all to indicate that you had been incompetent in not putting your instructions or that in any way had been incompetent. That was in fact simply a remark made by you under submission based without any evidence to suggest that it was so.
Mr Stratton: I have made the application your Honour.
His Honour: Yes, the application is rejected."
15 During the hearing of this appeal, counsel for the appellant, Mr Game SC, sought leave to lead evidence to demonstrate that the inconsistency was in fact due to an error or misunderstanding on the part of Mr Stratton. Mr Game tendered two affidavits, one of the solicitor for the appellant at trial, Mr Stephen Sukkar, sworn on 3 October 2001, and one of the appellant, sworn on 4 October 2001. The Crown objected to the reading of these affidavits on the basis that they contained further evidence which was, or would have been, available at trial. Mr Game submitted that a miscarriage of justice had occurred and in these circumstances it was appropriate for the Court to hear further evidence. The Court decided, and both counsel agreed, that the best course was to allow the affidavits to be read, and the Crown to cross examine on the material before making a final decision as to its admissibility. Counsel for the Crown cross examined both the appellant and Mr Sukkar.
16 I do not, however, consider that the material tendered in evidence determines this appeal, and accordingly it is not necessary to rule on its admissibility. The crucial issue for this Court to resolve is whether, in the circumstances and regardless of the true cause of the inconsistency between the opening address of Mr Stratton and the evidence of the appellant, the direction given by the trial Judge was appropriate.
17 Counsel for the appellant submitted that the questions and answers quoted above underpinned the Crown's attack on the appellant's evidence. In order to succeed, the Crown needed to persuade the jury to reject the appellant's account. The argument that the accused was making his evidence up gained much of its force from the suggestion that the appellant's claim he did not know about the package on the Friday was a recent invention. Counsel for the appellant submitted that this attack both strengthened the Crown's attempt to discredit the appellant and undermined a significant argument put on behalf of the defence, that the appellant was not present when Mr Vasquez attempted to collect the parcel on the Friday.
18 To my mind, it was the Crown's challenge to the appellant's credibility, based on the discrepancy between the appellant's evidence and the opening statement of his Counsel, that is of critical importance. The first question put to the appellant during cross examination was "You've made up the story you've just given in evidence to explain why you were in the unit with the suitcase haven't you?" The credibility of the accused was a key issue in the trial. As the trial Judge commented in his summing up:
"Very few of the facts really are in dispute at all. The majority of the Crown witnesses were never cross-examined and it has never been suggested that any of them have been dishonest or unreliable. In fact, the only witness whose honesty has been called in to question is that of the accused himself and in this case, it is perhaps somewhat unusual for a prosecution case or even an accused's case, that at the end of the day, almost the entire concentration of the submissions that have been made to you have been based upon the accused's evidence and that is because of the way that the trial has unfolded and the fact that very little of the Crown's case is in fact, in any way in dispute."
R v Birks
19 Counsel for the appellant submitted that the situation in the present case is analogous to that in R v Birks (1990) 19 NSWLR 677. The appellant in that case had been convicted on charges of maliciously inflicting bodily harm with intent to have sexual intercourse, assault occasioning bodily harm and sexual offences. Counsel for the accused had failed to put to the complainant matters important to the defence case during cross examination. Both the prosecution and the trial Judge addressed the jury on the possible inferences to be drawn from this.
20 At 691, Gleeson CJ adopted the views expressed by King CJ in R v Manunta (1989) 54 SASR 17 at 23:
"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."
21 Gleeson CJ added his own caution at 691-692:
"I would add that one particular matter which makes it difficult to use the conduct of counsel as a basis for drawing inferences of fact is that most jurors are unaware of the principles….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."
22 Counsel for the appellant submitted that in this case, no sufficient caution or circumspection was exercised by the trial Judge in his summing up. To the contrary, his Honour suggested that the only reasonable explanation for the inconsistency was that the appellant could not get his story straight in relation to his knowledge and involvement with the package. But King CJ suggested explanations which did not reflect upon the credibility of the accused. Counsel may have misunderstood his instructions, forensic pressures may have resulted in looseness or inexactitude in the opening remarks.
23 The Crown submitted that the present case was distinguishable in a number of ways from Birks. First, it was said that the comments made in Birks related to the rule in Browne v Dunn (1893) 6 R 67, and not to a decision not to call evidence to correct a misapprehension.
24 In my view this is not a relevant point of distinction. Whether the inconsistency arose because counsel for the accused failed to cross examine the complainant on aspects of the defence case, or because of statements made by counsel in his opening address, the effect is the same. In both situations, a question arises as to whether the conduct of counsel accords with the instructions given by the accused. And in both situations, the discrepancy between what is said or done by counsel for the accused, and the accused himself, may be due to one of several possibilities. The accused may have changed his story since giving instructions to counsel. Counsel may have misunderstood the instructions given to him, or the solicitor may not have correctly conveyed instructions to counsel. Counsel may simply have forgotten a particular part of the instructions, or become confused between the dates of the 8 and 11 January 1999. The point made in Birks and Manunta is that in such a situation, it is necessary for the trial Judge to draw the attention of the jury to other possible causes of such an inconsistency. Otherwise there is a real danger that the jury, lacking any detailed knowledge of the process of trial preparation, may assume that the cause of the inconsistency must be that the accused has changed his or her story.
25 A second point of distinction suggested by the Crown between this case and Birks related to the relative experience of the barrister in Birks and that of Mr Stratton in this case. At 685-686 of Birks, Gleeson CJ noted that:
"In the present case, the inexperience of trial counsel gave rise to an unusual and extreme situation…There are two features of this case which take it out of the ordinary run. In the first place [the matter on which counsel failed to cross examine] was not only of importance in relation to the events leading up to the sexual assaults, it went to the whole issue in relation to the first charge…Secondly, there were various ways in which the problem, once it became apparent, could have been dealt with…The failure to deal with the matter was not the result of a deliberate, even if perhaps unwise, tactical decision to make as little fuss as possible about subjects on which it was thought that the less that was said the better…The barrister simply did not know what to do, and so, until it was too late, he did nothing."
26 It was pointed out by the Crown that the appellant's barrister at trial is one of the most experienced defence counsel practising in New South Wales. He has been admitted to the Bar for 32 years and has been senior counsel for 16 years. It is true that Mr Stratton's level of experience is quite different from that of the barrister in Birks, and that some emphasis was placed in Birks on the inexperience of that barrister. However, I do not consider that this difference is such that the remarks made by Gleeson CJ, adopting what had been said in Manunta, do not apply here. The Court in Birks was also considering an appeal based on incompetent representation at trial, and the remarks by the Chief Justice appear to me to relate more to that aspect of the case than to the question of the appropriateness of the directions given by the trial Judge.
27 As a practical matter, I do not think that this Court should assume that a barrister even of Mr Stratton's experience could not make such a mistake. Experience does not, unfortunately, preclude error. More importantly, as was noted above, this Court is not primarily concerned with the actual cause of the inconsistency. Even if the chance of the inconsistency being due to an error or misunderstanding on the part of counsel for the appellant at trial was small, this should none the less have been suggested as a possibility to the jury. The comment of the trial Judge here, though, allowed for no such possibility. The trial Judge's statement that "you might expect counsel or certainly competent Queen's counsel, to open the case on what he expected the accused to say" is significant. This statement was both factually questionable, since even eminent and experienced counsel on occasion make mistakes, and more importantly, inappropriate given the caution recommended in approaching this subject in Birks and Manunta. The emphasis given to Mr Stratton's competence could only have served to reinforce to the jury that the only explanation for the inconsistency was that the accused had changed his story.