R v BANIC

R v BANIC - [2004] NSWCCA 322 - NSWCCA 2004 case summary — Zoe

[20]

15 Having instructed the jury about the assessment of the reliability of witnesses his Honour continued - In this case you are not concerned with the honesty of the witnesses called by the Crown Prosecutor. It was not suggested to you that anyone of the witnesses for the Crown was lying. Although the word was never used, learned counsel for the accused's cross-examination was designed to point out the possibility of the witnesses being mistaken, not that they were lying, but that they were mistaken. Now, members of the jury, learned counsel for the Crown, however, suggested that the accused is lying. Learned counsel for the Crown put to him that, having regard to the evidence of the others, the bag containing the tablets was under his cupped hands, which he denied. Now there cannot be any greater suggestion than that he is lying about where the bag containing the tablets was when it was on the table… I want you to understand two things about the accused having given evidence. Firstly, by his giving evidence, he did not take upon himself any burden, onus or obligation, and those words are interchangeable, to prove anything. By giving evidence, he did take upon himself any burden, onus or obligation to prove anything. The second thing is this. By giving evidence, his evidence becomes that of one of six witnesses in the trial. His evidence is not any better or any worse simply because he is the accused giving evidence in his trial… The Crown must prove the guilt of the accused and the accused does not have to prove anything. The Crown having asserted, must prove. The Crown must prove that the guilt of the accused. The accused does not have to prove anything. He does not have to prove that he did not have possession of the plastic bag containing the tablets of prohibited drugs. He does not have to prove that his hands were not cupped over that plastic bag when it was on the table. In other words he does not have to prove his innocence. He does not have to prove any reason or motive in any of the witnesses giving the evidence they have given… So, in this case, members of the jury, understand what it is that you are concerned with. Whether the accused possessed the plastic bag containing the twenty-three tablets by exercising control over it. And it all turns upon whether they were under his cupped hands or not. There is not any doubt that there was a plastic bag and that it contained twenty-three tablets. There is not any doubt that that plastic bag containing those tablets was on that bench where the accused was standing. The question is, were they under his cupped hands… So, members of the jury, I come back to what I have said already, the only question is, does the evidence satisfy you beyond reasonable doubt that the accused had the plastic bag containing the twenty-three tablets in his possession? If the answer is yes, you must find the accused to be guilty. If the answer is no, you must find the accused to be not guilty…

[22]

17 His honour then reviewed the evidence of the several witnesses and continued - Constable Ritson said that the accused was standing with a cigarette in his left hand. Sergeant Nuttall said that the accused had a cigarette in his left hand. Sergeant Burke did not mention seeing the accused with a cigarette in his hand. That does not mean that the accused did not have a cigarette in his hand, only that Sergeant Burke did not see it. The accused said that he had a cigarette in his left hand. Constable Ritson, Sergeant Nuttall and Sergeant Burke never mentioned a bottle in the accused's right hand. None of them was asked by learned counsel for the accused whether the accused was holding a bottle in his right hand. The accused told you he was holding a bottle in his right hand. You may think, members of the jury, that that was made up by the accused to explain how he could not have cupped his hands together. And you may think that because learned counsel for the accused did no suggest to Constable Ritson, Sergeant Nuttall or Sergeant Burke that the accused had a bottle of water in his right hand. If the accused wished to challenge those three police officers about his having a bottle in his right hand.Then members of jury, the challenge should have been made to them when they were in the witness box answering questions so that they could admit it or deny it or say they do not know about it. And not one of them was asked by the accused's counsel as to whether the accused had a bottle of water in his right hand. You my [sic] think, members of the jury, as I have said, that that was made up by the accused to explain how he might not have been able to cup his hands together on the table as Constable Ritson said they were cupped together, and as Sergeant Burke said they were cupped together. Members of the jury, the accused told you that he was where the police say he was. He told you that he was on the particular side of the pillar as the police said he was. He told you he had his right elbow on the table around the pillar as the police said he had. He told you that the plastic bag containing the tablets was behind his elbow. The police say it was cupped under his hands. He told you that he was spoken to by Constable Ritson when he was told he was under arrest for possession of prohibited drugs. He told you that he did say "They're not mine, they could be anybody's". Police said that when he said that to Constable Ritson he was looking over his left shoulder and not at the plastic bag containing the drugs. He said to you that he did not know they were there. He said he did not know they were there until they were pointed out to him. You might ask yourselves, members of the jury, if the police are correct, how could the accused have said to police "they're not mine, they could be anybody's" if he did not know they were there and if he did not know what they were. Admittedly, Constable Ritson had said to him "You are under arrest for possession of prohibited drugs". From that, anyone would conclude that whatever Constable Ritson was concerned with was prohibited drugs. But the police say the accused said "they're not mine, they could be anybody's". Not "It's not mine, it could be anybody's". Rather "They aren't mine, they could be anybody's". Any you might think, members of jury, the use of the plural, "they," suggests a knowledge of what was in the plastic bag. Whether you do or not, of course, members of the jury, is for you to decide. All of these matters that I have commented upon, you must, as I have said already, disregard my opinion or what you perceive to be my opinion unless it coincides with the one that you yourselves form on the evidentiary material. What I have commented upon are all questions of fact, members of the jury, and they are all questions for you to decide.

[28]

23 It was submitted that particular unfairness resulted from his Honour's statement that the police witnesses should have been challenged with the proposition that the appellant had had a bottle of water in his hand. Reference was made to the judgment of Gleeson CJ in R v Birks (1990) 19 NSWLR 677. In a passage commencing at 686 his Honour drew attention to the rule of professional practice known as the rule in Browne v Dunn and to the need to apply the rule flexibly, particularly in criminal proceedings. As his Honour observed, the consequences of a failure to observe the rule will vary depending on the circumstances of the case, but will usually be related to the central object of the rule, which is to secure fairness. His Honour said this at 690 - However, as in the present case, it is often suggested that the practical effect of the rule goes a good deal further. 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 interest 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 the 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 intervention, 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 the comments may be available: se, eg, R v Robinson [1977] Qd R 387 at 394. However, especially in a criminal trial, there are considerations which may indicate the need for action.

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