R v Burns [1999] QCA 189

4 Michael gave evidence that he met the appellant at the beginning of October 1997 and "after about five minutes he asked me if I knew anybody that would knock off his missus". He was invited over to the appellant's house a few nights later for a couple of beers and said, "That he wasn't going to give anything to his missus, he'd worked too hard for it and did I know anybody, and that, and I said no." The next Sunday, the appellant came to his home and "He asked me the same thing, about getting someone to knock his missus off. ... he was really angry about his marital breakup, and that, and if I would know anybody - I don't know why he was asking me - and this, that and the other and I asked him to leave and he did. ... He said it was worth x amount and if anybody was going to do it he'd give them the boat."

5 The primary judge allowed the evidence to be given as it was relevant to the relationship between the appellant and the complainant. The appellant denied the conversations. In his summing up, his Honour told the jury that if they accepted the conversations occurred they:

"... may find that they show an attitude by the [appellant] towards his wife at a time shortly before these incidents that lend some support to what [the appellant's wife] says happened. You may find that the [appellant] bore serious ill-will towards his wife prior to 30 October 1997. If that was the case, you may well find it relevant to what occurred on that day, and in your task of weighing up the differences between the complainant's account and the [appellant's] it may well explain the presence of gloves and rope in the [appellant's] possession in the car that day - if you accept the complainant's account of what happened.

You might also recall that the complainant spoke of her husband speaking to her at the bridge of his attempts to hire someone to kill her. What you shouldn't do if you find that the conversations with Mr Michael did occur, is use that fact to determine the complainant is telling the truth, at least about that part of the events. It may be that this evidence is capable of that use, but it has been admitted solely to assist you in looking at the attitude of the [appellant] to his wife shortly prior to 30 October, and you should restrict that evidence, if you find it to be true, to that use."

6 The offences occurred on 30 October 1997, shortly after the conversations. The evidence from Mr Michael was admissible in relation to all offences as evidence showing the relationship between the appellant and complainant.

7 In addition, the offence of torture involves "the intentional infliction of severe pain or suffering on a person by an act or series of acts done on one or more than one occasion". The evidence was also admissible as evidence as to the intention of the appellant in respect of the offence of torture. The direction given by the learned primary judge was therefore more favourable to the appellant than required. There is nothing in this ground of appeal.

8 The second ground of appeal is that the learned trial judge permitted, encouraged and supported a misuse of the rule in Browne v Dunn[1] against the appellant, in respect of the evidence given by the appellant's father.

9 The appellant's father gave evidence in the defence case that early in October, prior to the commission of the offences, he telephoned the complainant telling her that the appellant was concerned about his daughters. She said, "He needn't worry about them because he won't be seeing them ever again because I want your f....ing son dead or in jail and I know just how to do it because I've got friends in high places. ... Don't you try and find my children and don't you ever phone my parents again".

10 Immediately after the complainant had completed her evidence, the appellant's barrister told the trial judge she had omitted to put some instructions and requested the complainant be recalled for further cross-examination. This was done and counsel suggested to the complainant that "sometime after this event occurring" during a phone conversation with the appellant's father at her parents' place she told him, "'I want your fucking son dead or in jail and I know how to do it because I have friend (sic) in high places'." This was denied by the complainant.

11 On the fourth day of the trial in the absence of the jury the appellant's barrister asked for leave to withdraw. When asked for brief details of the conflict by the trial judge the barrister said:

"Your Honour, I did have a conversation with my client prior to coming to court - and unfortunately my instructing solicitor was not present for this conversation - as a result of which I became compromised.

COUNSEL: I have sought advice from Mr Grant Britton who is a member of the Bar Council, in relation to this matter and I have been advised that ethically I am bound to withdraw at this point."

12 His Honour gave leave to withdraw and an adjournment was granted until the next day when a second barrister appeared for the appellant.

13 In the afternoon of the fifth day of the trial, after the Crown case was closed but before the appellant had been called upon, the appellant's second barrister told the judge he intended to call the complainant's father to give the evidence set out earlier. The primary judge pointed out that evidence was not consistent as to dates with what was put to the complainant by the appellant's first counsel. The appellant's barrister then asked for the Crown case to be re-opened and the complainant recalled. This was opposed by the prosecutor, who said:

"If there was a mistake made it was at a time when there was clear focus on the evidence itself, in that undoubtedly Ms McCarthy was acting on the instructions of the [appellant] at the time in having to recall the complainant in order to ask this specific question. It is not as though it was one question in the midst of a whole series of questions that might have been overlooked if there was any mistake made at the time. The [appellant] clearly had the opportunity to ensure that his counsel was acting firmly on the instructions that he had given.

HIS HONOUR: In the circumstances, considering the way in which that question was asked when the complainant was recalled, it is my view that it was obviously a matter of some importance to the [appellant]. The [appellant] did not correct what was put to the complainant and I will not permit the application that the Crown should reopen its case and recall the complainant."

14 Affidavit material from the appellant's solicitor at the appeal establishes that prior to the commencement of the trial, the first barrister had been briefed with a statement from the appellant's father as to his conversation with the complainant which, whilst not specific as to the date, was consistent with the conversation occurring prior to the date of the offence. The date was important: if it occurred before the offences, it was more consistent with the appellant's claim that the complainant had fabricated her complaints to get rid of him.

15 The learned trial judge was never informed that the instructions were put through an error or misunderstanding by the first barrister, if that were so. The prosecutor did not claim that it was difficult or inconvenient to recall the complainant. It would have been preferable for defence counsel, if he were able, to have told the judge that the mistake was an error or oversight: were this so, the prosecutor would not have taken the position he did. In any case, the judge should have allowed the Crown case to be re-opened and the complainant recalled to have the instructions correctly put.

16 The Crown prosecutor submitted to the jury that the failure to properly put the date of the conversation with the appellant's father to the complainant showed that the appellant was changing his story during the trial to better suit his case. Such a submission was unfair as the appellant was not present when the conversation between the father and the complainant occurred, although it could be expected that he was later told of the conversation by his father and knew whether or not it preceded the offences. Furthermore, the jury were not told that the appellant had sought to have the complainant recalled to put the date of the conversation to her, nor was Mr Burns Snr cross-examined as to when he first told the appellant's lawyer of the date of the conversation.

17 In R v Foley,[2] this Court said that:

"... it is now generally recognised in criminal trials that in summing up on this issue, the Judge should simply point out to the jury that the particular matter was not put to the relevant witness; that it should have been put so that the witness could have the opportunity of dealing with the suggestion; and that the witness has been deprived of the opportunity to give that evidence and that the court has similarly been deprived of receiving it. There will be exceptional cases where it is necessary to go further, for example where there seems to be a tenable case of recent invention. There may for example be a strong perception that the cross-examiner has deliberately preserved a case from damage by preventing it from being tested, and that this has enabled the client to lie by and present the case that belatedly seems opportune. The giving of additional directions in such cases is however fraught with difficulty.

'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 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.'[3]

... There are many possible explanations of a failure by counsel to observe the rule, and some of these do not reflect upon the credibility of the client. Counsel for example may have misunderstood the instructions, or the failure may be through oversight. Jurors are not familiar with the rules and practices of preparation for trial, the special relationship between lawyer and client or counsel's duties and responsibilities to the Court in conducting a case. If then a jury is to be instructed in a way which will permit adverse inferences to be drawn against the credibility of a defence witness, there must be at least some explanation of these factors, and particular mention of the possibility of other explanations such as misunderstanding or error on the part of counsel. It should also be made clear that before drawing an adverse inference against the accused, the jury should be satisfied that there is no other reasonable explanation for the omission to cross-examine."[4]

"However if the Browne v Dunn factor was permitted to go to the jury in the fullest sense, that is to say as permitting an inference to be drawn of lack of credibility on the part of the appellant, it would have to be done thoroughly. It is not easy to explain the subtleties of legal practice to lay persons, and this is another reason why we think that it should only be in rare cases that the full direction should be attempted."

The learned trial judge, when dealing with the evidence of Mr Burns Snr told the jury:

"The fact that the conversation occurred before 30 October was never put to the complainant, so she had never had the opportunity of answering that allegation, although she adamantly denied that it had occurred after the incident.

It is a rule of our law that a witness should be given the opportunity of answering or commenting on events which differ from their own account, and you have heard that occur numerous times in this case where both counsel have put suggestions to witnesses. It is a rule of our law that where differences are to be given as evidence, that a witness who knows about them should be given the chance to comment on them. The suggestion that that conversation occurred prior to 30 October was not put to the complainant. You will remember that I allowed her to be recalled so that a conversation could be put to her. That was done in the presence of the [appellant] and he made no effort to correct a mistake, if it was made, by his then barrister. The Crown have suggested from this you can infer that the [appellant] has changed his ground. He has changed his account during the course of the trial to better suit his case. That may well be one explanation, but I remind you of what I said earlier about drawing inferences.

If more than one inference is reasonably open in all the circumstances, you must draw the inference that favours the [appellant]. That is a function of the onus of proof in a criminal trial. Here, before you did draw the conclusion that the [appellant] has changed his ground and the effect that that would have upon his credit, you must consider other possibilities - for example, the [appellant's] then counsel may have misread or misunderstood his instructions. That is a possibility. It is only if you can exclude that as a reasonable possibility, or any other possibilities that are reasonably open, that you can infer that the [appellant] changed his ground. So you must look at that issue quite carefully if you consider it to be important."

When summarising the prosecution case the primary judge added:

"In relation to the evidence of the [appellant's] father, he submitted to you that it was only at this stage that you heard that the alleged phone conversation was prior to 30 October, and that it hadn't been put to the complainant by the [appellant's] then counsel. He argued that you could infer from that that the [appellant] was simply changing his story as he went along.

I have already referred to the considerations you should look at in that argument and I will remind you of them again. You must consider whether there are other possibilities before you can move on in that way."

18 This was not one of those exceptions referred to in Foley that necessitated a full Browne v Dunn direction as permitting an inference of lack of credibility on the part of the appellant to be drawn: it related not to the appellant's evidence but to that of his father. If the Browne v Dunn point was to be an issue for the jury, it should only have been on the basis that it was put to the complainant that this conversation occurred after the offences, not before: as a result she did not have the opportunity of clearly answering that suggestion and the court was deprived of receiving her answer: see Foley.[5]

19 As the learned judge erred in allowing the prosecution to put this issue to the jury in the manner in which he did and compounded the error by repeating the prosecutor's submissions in the judge's directions to the jury, it is necessary to consider whether this is a proper case for the application of s 668E(1A) of the Criminal Code to dismiss the appeal as no substantial miscarriage of justice has actually occurred. That question is answered by determining whether the appellant lost a chance of acquittal which was fairly open to him: see Mraz v The Queen; [6] R v Stafford [7] and R v Wilson. [8] The judge told the jury that the Crown submitted they would find the appellant less credible because of the failure of defence counsel to put to the complainant that the conversation occurred prior to the commission of the offences. His Honour gave no encouragement to the jury to accept that submission, immediately told them that another open inference was that defence counsel may have misread or misunderstood instructions and that an inference unfavourable to the appellant could only be drawn if it was the only inference reasonably open. His Honour also explained to the jury the rules requiring counsel to put their case to a witness where it differs from the witness's accounts, so that the witness has a chance to comment: see Foley.[9]

20 The Crown case was strong: the complainant's evidence that she was not consenting to intercourse was supported by medical evidence and photographs of her significant injuries. Marks on her wrists were consistent with the complainant's evidence that her wrists were tied with rope by the appellant during part of the incident. The complainant alleged there were three acts of intercourse without consent, two on the bonnet of the car and one on an area of grass. The appellant gave evidence that there was only one act of intercourse at the isolated scene; this occurred on the bonnet of the car and was consensual. The complainant's version was supported by the presence of two head hairs and a positive reaction to semen in an area of grass, although the appellant explained this evidence as attributable to the complainant urinating in the grass. The complainant gave evidence that as her pants were damaged from the offences, she changed into her mother's pants, later discarding the damaged pants. Her mother gave evidence that pants, which she had packed in an overnight bag and left in the car used during this incident, were missing from the bag the next morning. The mother's evidence on this matter also supported the complainant's evidence.

21 The appellant gave evidence that whilst he assaulted the complainant and later had one act of consensual intercourse with her at the isolated scene, her allegations were otherwise a fabrication. The directions given to the jury on the Browne v Dunn point, which was never put higher than Crown submissions, were immediately sanitized by the judge pointing out that defence counsel may have misread or misunderstood instructions and that an unfavourable inference could only be drawn against the accused if it was the only inference rationally open. I am finally persuaded that this error alone did not cause the appellant to lose a chance of acquittal fairly open to him and I would not allow the appeal solely on this ground.

22 The third ground of appeal is that the appellant was cross examined unfairly by the learned Crown prosecutor firstly in that the prosecutor cross-examined the appellant about threats which went only to credit then contradicted the appellant by the tender of a tape recording of a telephone conversation; secondly in that the prosecutor persistently cross-examined the appellant about inferences to be drawn from, or his inability to explain, other people's evidence; and thirdly, that the prosecutor cross-examined the appellant about his refusal to be interviewed by police.

23 Although counsel for the appellant after questioning from the Court did not press this ground, I agree with Pincus JA that the tendering of the tape recorded phone conversation and the cross-examination upon it should not have been allowed. During cross-examination the appellant denied some conversations with the complainant in April 1997 where he threatened the complainant. This conversation was tape recorded and relevant portions were played to the jury to show, contrary to his denials, that he did threaten the complainant. The tape was tendered pursuant to s18 Evidence Act 1977 which relevantly provides:

"If a witness upon cross-examination as to a former statement made by the witness relative to the subject matter of the proceeding and inconsistent with the present testimony of the witness does not distinctly admit that the witness has made such statement, proof may be given that the witness did in fact make it."

"Statement" is defined in s3 Evidence Act 1977 as "any representation of fact, whether made in words or otherwise and whether made by a person, computer or otherwise". "Statement" in s18 therefore includes the relevant tape-recorded conversation. Section 101 Evidence Act 1977 relevantly provides:

(a) a previous inconsistent or contradictory statement made by a person called as a witness in that proceeding is proved by virtue of ss17, 18 or 19; ....

that statement shall be admissible as evidence of any fact stated therein of which direction oral evidence by the person would be admissible."

To be admissible under s18 it is necessary that the statement is "relative to the subject matter of the proceeding". Here the statement was relevant to the relationship between the appellant and the complainant and also to the element of intention in the offence of torture. Once a statement is admissible under s18, s10 makes it admissible as evidence of the truth of facts in the statement, not merely credit. His Honour erred in telling the jury the tape was only relevant to credit. This error would be of no moment as it favours the appellant.

24 Of far greater significance, as Pincus JA has pointed out, is that the cross-examination and tender of the tape in these circumstances was rebuttal evidence: see Niven v The Queen.[10] Rebuttal evidence is only permitted to be called by the Crown in exceptional circumstances: see R v Chin[11] and R v Ghion[12]. The effect on the jury of fixing their attention on this rebuttal evidence during cross-examination would have been very damaging to the accused. As a result, the appellant has suffered significant prejudice. As no objection was taken to the cross-examination or the tendering of the tape, the primary Judge did not give consideration to this issue and did not exercise his discretion as to whether exceptional circumstances existed here to allow rebuttal evidence to be given in this way. There is nothing before this Court which would have justified an exercise of discretion in favour of the Crown. It seems the evidence was available to the Crown prior to the close of its case. If the Crown sought to rely on the evidence it should have called the evidence in its own case with proper notice to the defence. The defence may then have wished to argue the admissibility of the evidence, only as it did in respect of Bruce Michael's evidence. Trials are not conducted by ambush: adherence to this principle is all the more essential in serious criminal trials such as this. A serious error has occurred which necessitates allowing this appeal.

25 In any case I will deal briefly with the remaining grounds in case some assistance is provided in any retrial.

26 As to the second claim of unfair cross-examination, I agree with Muir J for the reasons given by him that the conduct of the trial in this respect did not result in any real prejudice to the appellant, especially as it was the defence case that the complainant had concocted this story to damage him. No objection was taken to the questions by defence counsel. Nevertheless cross-examination of this type should not be encouraged and at times it bordered on the unacceptable: see Foley.[13]

27 As to the third claim, this must be considered in context, and I set out the relevant portion of cross-examination:

"You are just making this story up to avoid responsibility for what you did to Carol Burns on 30 October ? -- No I am not.

The only bits of the account from Carol that you have accepted are things that you cannot deny ? -- What do you mean by that ?

You cannot deny that you assaulted Carol Burns that day, can you ? -- I am not denying I assaulted her.

She is covered in bruises ? -- I am not denying it. That's right.

You cannot deny that you had sexual intercourse with her that day, can you ? -- I am not denying we had sexual intercourse.

Because there is forensic evidence which substantiates it ? -- I followed the police the day I walked into the watch house. The first time I walked in there, right, I thought - I knew I broke the restraining order. That is all I thought I was looking at, was the assault on the domestic violence order, whatever they call it, and Col Harvey brought out all these charges, said, 'I have to get all the charges.' He come out, sat down. I said, 'Mate, what are you talking about?' I said, 'We had sex three times that day - out under the bridge and twice at home.' I admitted the first day we walked in there we had sex. I said - me father was there. There was no rape in it.

Was that it ? -- Well, I asked him about the torture charge and all the other charges. I asked him what the hell they were all about, but, anyway, yes, that wasn't all. He said we went into an interview room. We didn't go into an interview room at all. We sat out in the hallway, me and my father.

You have a conversation with Fred Starr ? -- That's right. I had a conversation with him out in the hallway.

He certainly invited you to take part in an interview, -- He did.

Did you take that -------? -- My solicitor said exercise the right to silence and tell him nothing. I didn't think that was a good idea at the time, but that's what my so-called solicitor told me.

So you didn't tell anything to Fred Starr then about what had happened that day, did you ? -- No, just about the sex. He said it was rape and I said, 'What rape ?' I said, 'We had sex three times that day, not twice.'

Mr Burns, you never told Fred Starr that you had sex three times that day ? -- Well, that's your opinion.

The first we heard about sex three times that day was when you were giving your evidence ? -- Well, I haven't had - no one has asked me about it anyway, so ------

You had the opportunity to take part in an interview and explain your side of the story, and you didn't ? -- That's right, I didn't. Like it says in the statement, I didn't take part in an interview."

28 Although this technically offended the principles established in Petty v The Queen,[14] if this were the sole ground of appeal it would be appropriate to exercise the proviso and nevertheless refuse the appeal. The appellant gave an unresponsive answer in cross-examination and raised conversations he claimed to have had with police. The cross-examination that followed was a fair attempt to test the appellant's claim that he told police he had three acts of consensual sexual intercourse with the complainant. In those circumstances, the prosecutor was entitled to put that these conversations did not occur and that the appellant's claim was unlikely as he declined the offer of an interview. It was not suggested to the jury by the learned trial judge or apparently by the prosecution that the appellant's exercise of the right to silence provided a basis for inferring a consciousness of guilt or that previous silence about an issue raised at the trial provided a basis for inferring that the defence is new invention or suspect or unacceptable: see Petty. The judge should ideally have given the Petty direction to the jury both at the time the evidence was received and later in the summing up: see R v. Reeves,[15] and R v Vannatter[16]. These cases dealt with questions asked directly by the prosecutor of the accused as to the accused's failure to co-operate or be interviewed by police, without any preceding claim by the accused that he made self-serving statements to the police. The appellant here was able, through his unresponsive answer, to give unchallenged evidence of self-serving statements made by him to the police. The evidence, a small part of a lengthy cross-examination, does not appear to have been a focus in the Crown address, which like the defence address, was summarised by the learned judge in his directions to the jury.

29 The appeal must however be allowed on the rebuttal evidence point. The Crown case is a strong one and there must be a retrial. As Pincus JA points out, Pearce v The Queen[17] raises the issue as to whether there can be a retrial for torture when the acts constituting the offence of assault occasioning bodily harm were subsumed in the offence of torture. Consistent with Pearce, the primary Judge correctly imposed no separate penalty in respect of the count of assault occasioning bodily harm as the acts involved in that count were subsumed in the acts which constituted the torture. In Pearce, McHugh, Hayne and Callinan JJ, Gummow J agreeing, continued to confine the availability of a plea in bar to cases in which the elements of the offences charged are identical or in which all of the elements of one offence are wholly included in the other.[18] Kirby J was of a similar view.[19] Here the offences of assault occasioning bodily harm and torture have quite separate elements.

30 Section 17 of the Criminal Code relevantly provides:

17. It is a defence to a charge of any offence to show that the accused person has already been tried, and convicted ... upon an indictment on which the person might have been convicted of the offence with which the person is charged, ... or has already been convicted, of an offence of which the person might be convicted upon the indictment or complaint on which the person is charged."

The offence of assault occasioning bodily harm is not an offence of which the appellant could have been convicted on an indictment charging torture, unless it was joined in a separate count. Section 17 of the Criminal Code does not prevent a retrial in respect of the torture charge; nor does Pearce.

31 I would allow the appeal, set aside the verdicts and order a retrial in respect of all counts.

1 I have had the advantage of reading the reasons of Muir J. in which the nature of the case is comprehensively explained.

2 It was argued that the judge should not have admitted this evidence. Shortly before the events complained of occurred the appellant, it was alleged, asked a workmate "if I knew anybody that would knock off his missus". The relevance of the evidence was to show that before the appellant attacked his wife, as the Crown alleged, he had what might be broadly described as aggressive intentions towards her.

3 Although the evidence was not, read in context, very weighty and the arguments against its admission do not lack cogency, it is my opinion that the learned primary judge made no error in letting it in. Where the Crown case is that the accused physically attacked another person, as it was here, evidence of an inclination to attack the person in question or have her attacked will often be admissible. Such evidence will more readily be admitted where it is the identity of the attacker which is in question; that was not so here, but the evidence did not merely tend to show that the appellant had a "bad disposition"; the evidence had a "specific connection" with the commission of the offence alleged: Pfennig [1995] HCA 7; (1995) 182 C.L.R. 461 at 484. The jury might rationally, because of the presence of evidence that shortly before the alleged torture he had spoken of finding someone to kill her, have thought it more likely that the appellant had tortured his wife, as the Crown alleged.

Judge's direction with respect to conversation between appellant's father and complainant.

5 One of the complaints made under this heading was that the judge suggested that, because of circumstances which are fully explained in the reasons of Muir J., the appellant's evidence was not to be believed. The passage to which particular exception was taken is as follows:

"In relation to the evidence of the accused's father, he submitted to you that it was only at this stage that you heard that the alleged phone conversation was prior to 30 October, and that it hadn't been put to the complainant by the accused's then counsel. He argued that you could infer from that that the accused man was simply changing his story as he went along".

6 It will be noted that the judge was merely summarising a submission made by the prosecutor; his Honour did not say whether or not he thought it to be correct. It is evident that a judge has no obligation to summarise for the jury every argument, however unsound, advanced by the Crown and the defence. Doing so uncritically has its dangers, illustrated by this case. In Giffin [1971] Qd.R. 12 at 17, the court quoted from discussion in Smart [1963] N.S.W.L.R. 706, of the judge's duty in summing-up.

"But it is a matter within the discretion of the presiding judge, as to whether he should put to the jury arguments upon particular issues of fact, so as to give them 'a weight and a dignity and importance' which otherwise they would not have". (713-714)

See also R v. G [1993] QCA 267; [1994] 1 Qd.R. 540 at 545 line 10, where a similar point is made.

7 If a submission is made by counsel which is undoubtedly erroneous then not only has the judge no obligation to expound it to the jury, but doing so may, if the submission goes against the accused, vitiate the conviction. Less circumspection is necessary, in deciding whether to mention in the summing-up a defence submission which seems to lack cogency; but a judge is never obliged to put before the jury suggestions which are, beyond rational argument, simply incorrect. This point, although marginally relevant in the present case, deserves some attention; the temptation simply to give a summary of all points made by counsel must be resisted. In Chevathen (C.A. 222 of 1997, 3 October 1997) Davies J.A. stated that:

"It appears to be implicit in that submission that, in every case, a trial judge must, in substance, put to the jury all of the evidence favourable to the accused and the submissions made on his behalf, however the trial may have been conducted, including however extensively and forcefully these may have been put, only a short time before, by his counsel. That is plainly not a trial judge's obligation . . . ".

It has been held that "the substantial defence must be put to the jury, but not every part and particular of it": see Morex Meat Australia Pty Ltd and Doube [1995] QCA 154; [1996] 1 Qd.R. 418 at 420. In Strampel (C.A. 308 of 1984, 19 June 1985) cited in McKandie (C.A. 43 of 1994, 22 June 1994) it was said that:

"In a case such as this the trial judge is not required to repeat defence counsel's argument in support of the defence. He must explain what the essential matters are which have to be proved and give reference to the appellant's defence in his directions as to essential matters".

8 I have included reference to these authorities in my reasons partly because it appears to me that there is an idea current that unless a judge tells a jury about every point which counsel have thought worth mentioning, he or she fails in his or her duty; to the contrary, mechanical and unselective repetition of all the arguments advanced in addresses is unlikely to be a component of a helpful summing-up.

9 The main objection to the prosecutor's contention about the father's evidence which the judge placed before the jury, without adverse comment, is that an inconsistency between the father's evidence and what was put by the appellant's counsel regarding that evidence could not go to show that the accused "was simply changing his story as he went along". The "story" was his father's, not the appellant's; there was no suggestion that the appellant was a witness to the conversation in question, nor was it proved that the appellant had seen his father's statement.

10 The statement which the father gave to the appellant's solicitors did not give a date for the conversation in question; we have a copy of that statement, exhibited to the affidavit of a Mr M P Pearson. It is, however, plain enough from the context that the remark attributed to the complainant - "I want your fucking son dead or in goal (sic) and I know just how to do it because I have friends in high places" - was supposed to have been made before the alleged offences were committed. When the appellant's father gave evidence, he gave the date of the conversation as being the first week in October 1997; its importance in affecting the complainant's credit, if the jury accepted the evidence, did not in my opinion entirely depend on whether the statement attributed to the complainant was made shortly after or shortly before 30 October 1997, the date of the alleged offences.

11 It is no doubt correct that, as was suggested during argument at the trial, the appellant could have interrupted his counsel, who had put the conversation as occurring before, not after, the alleged offences, but his failure to take this unusual step could not go to his credit; the same applies to the appellant's failure to correct his counsel, after the relevant cross-examination concluded. The suggestion that it did so should never have been put to the jury by the prosecutor, nor given credence by the judge's summing-up. Apart from the passage in the summing-up quoted above, the judge gave an elaborate direction about the proposition that the failure of the appellant to correct the mistake made by his then barrister went to his credit. The situation was aggravated, in my view, by the circumstance that the argument, treated by the trial judge as one of weight, about the appellant's failure to correct his counsel, used language echoing the contention put in cross-examination of the appellant that he "was simply changing his story as he went along". The directions the trial judge gave would have inclined the jury to think that this point could be used as one of considerable significance in destroying the appellant's credit; in truth it had no relevance to his credit and so, subject to the possibility of applying the proviso, the error vitiated the trial.

12 Complaint was made of the tender of a tape recording of a telephone conversation to prove that in April 1997 the appellant, during the course of a long telephone conversation, the critical part of which is set out in the reasons of Muir J., threatened his wife. The appellant's outline says that the tape should not have been admitted. That is in my opinion correct. It is clear from the five authorities mentioned below that the judge had a discretion to exercise, since the proffered evidence constituted rebuttal and was therefore only admissible subject to the tests in Killick [1981] HCA 63; (1981) 147 C.L.R. 565 at 571, and Chin [1985] HCA 35; (1985) 157 C.L.R. 671; the five cases are Niven [1968] HCA 67; (1968) 118 C.L.R. 513, Ghion [1982] Qd.R. 781, Neville [1985] 2 Qd.R. 398, Hall [1986] 1 Qd.R. 462 and Kern [1986] 2 Qd.R. 209. This does not appear to have been recognised at the trial, where admission of the tape was not objected to. Had objection been made, in my opinion the evidence should have been excluded; the circumstance that the evidence was proffered during cross-examination of the appellant, rather than at the conclusion of his evidence, does not make the principle I have mentioned inapplicable. Rationally, the evidence proved little more than that the appellant, some six months before the occurrence of the alleged offences, had become very angry with his wife and used extravagant language towards her. If it had proved anything more specific an attempt might have been made to have it admitted in chief, on the principles discussed above in relation to the evidence of Michael.

13 In Killick the main judgment drew attention to the general rule that the evidence on which the Crown relies should be presented before it closes its case and to the fact that evidence tendered by the Crown after the close of the defence case "may assume an inflated importance in the eyes of the jury": 147 C.L.R. at 569. The evidence in question here was given before the defence case closed; but nevertheless it came in at a stage when its impact upon the jury's view of the appellant's credibility might have been considerable. Altogether different considerations would arise, as to the exercise of the discretion to admit evidence of a prior inconsistent statement made by an accused, where the point of inconsistency is one of central importance, although not one on which evidence could necessarily have been led in chief. An example of that would be a case where the accused, having told the police he knew absolutely nothing of the matter in question, gives evidence at his trial that he was indeed involved but in an innocent way.

14 Complaint was made on behalf of the appellant of the way in which cross-examination was conducted. Some of the aspects of this are examined in the reasons of Muir J. With one exception, I do not propose to deal in detail with the complaints about the nature of the cross-examination as it is unnecessary to do so for the purposes of deciding this case; I simply express the view that the complaints have substance and the nature of the cross-examination is one of the matters which has convinced me that the appellant did not have a completely fair trial.

15 The exception just mentioned is the appellant's argument that his right to remain silent had been infringed by the cross-examination. A similar point was recently discussed by this Court in Vannatter (C.A. 355 of 1998, 9 April 1999). There the prosecutor cross-examined about the appellant's failure to have told the police his version of events, concluding with the question:

"You had ample opportunity to tell the police your version at the time? You've already agreed with that?-- Yes".

The prosecutor's question in the present case and the answers given were:

"You had the opportunity to take part in an interview and explain your side of the story, and you didn't?-- That's right, I didn't. Like it says in the statement, I didn't take part in an interview".

Of the questioning in Vannatter, the Chief Justice and Davies J.A. remarked:

"The questions should not have been asked and the appellant's counsel could have objected to them but did not do so. The cross-examination suggested that previous silence about a defence raised at the trial provided a basis for inferring that the defence was a new invention or was rendered suspect or unacceptable: Petty and Maiden v. The Queen (1991) 173 C.L.R. 95 at 99".

It is my opinion that Vannatter shows that the question in this case was inadmissible; the circumstances here were such that one can sympathise with the prosecutor, who was in a sense drawn into asking the forbidden question; but nevertheless the question should not have been asked and this constitutes a third error at trial.

16 There were five counts in the indictment, four of which were proceeded with: assault causing grievous bodily harm, to which the appellant pleaded guilty, torture, and two counts of rape. The Crown case concerning torture had some strength, in my opinion, particularly as there was no dispute that in the course of the encounter in question there was an assault occasioning bodily harm. But the fact that the appellant has been convicted of that assault might give rise to a problem; in his sentencing remarks the learned primary judge declined to impose a sentence in relation to the assault, saying:

"In my view, the elements of that offence are subsumed in the offence of torture and also in the circumstances of the rape offences". (emphasis added)

No submissions have been addressed to us with respect to the parts of the conduct alleged against the appellant which constituted the offence of assault, as opposed to that which founded the count of torture. The decision of the High Court in Pearce [1998] HCA 57; (1998) 72 A.L.J.R. 1416 relating to double jeopardy is relevant; I refer especially to the reference to offences the elements of which are "included" in another, at p. 1419 para. 18.

17 It appears to me clear enough that the verdicts cannot stand, as one cannot conclude that the errors which in my respectful opinion occurred could have made no difference to

the outcome. I would allow the appeal, set the verdicts aside and order that the appellant be retried on the counts of torture and rape.

1 Peter John Burns was convicted in the District Court at Rockhampton on 7 November 1998 on one count of torturing the complainant (his wife) and on two counts of raping her. He had pleaded guilty on 2 November 1998 to one count of assault on the complainant occasioning bodily harm. All of the offences were alleged to have been committed in the vicinity of the Limestone Creek Bridge some 20 kms outside Rockhampton within the space of about two hours on the afternoon of 30 October 1997. The appellant was sentenced to five years imprisonment for the offence of torture and to 12 years imprisonment for each offence of rape. All sentences were ordered to be served concurrently. No sentence was imposed for the offence of assault occasioning bodily harm as the acts relied on to constitute that offence were comprehended in the offence of torture.

2 The appellant appeals against conviction and, alternatively, against the sentences imposed for the rape offences.

3 Before going to the grounds of appeal, it is convenient to say something about the facts.

4 The appellant was born on 18 July 1957. He was thus 40 at the time of the events in question and a qualified cabinet maker by trade. The complainant and the appellant married in 1988 but had lived together for some years prior to that. There are three children of the marriage, a son (Matthew) and two daughters. Their ages at the time of the trial were 13, 10 and 8 respectively. The relationship was a turbulent one and the complainant and the appellant separated in about December 1996, when the complainant left the matrimonial home in Gracemere and went to live in Townsville with the three children. There had been a number of earlier separations.

5 The following narrative is taken from the complainant's evidence at the trial. In early 1997 Matthew went to live with his father and discussions then took place between the complainant and the appellant about the complainant and the two girls moving back to Gracemere so that the family could be together. The complainant said that the appellant refused to accept that the marriage was over whilst her stated position was that the marriage was over but that she was returning to Gracemere to enable the children to be with their parents. Her expectation was that the appellant would find somewhere else to live. The appellant, however, refused to leave the house. The complainant had returned to the house for about a month when an altercation between the appellant and the complainant took place in which the appellant spoke of killing the complainant and threatened her with a knife. On another occasion, after the appellant made threats (at least implicitly) of committing suicide and killing the complainant, the complainant and her daughters went to a women's shelter. The complainant then took her daughters to live in Bundaberg.

6 The appellant, despite being prohibited from doing so by a domestic violence order made on 18 July 1997, continued to maintain contact with the complainant by telephone. Just prior to 30 October 1997, the appellant rang the complainant and suggested that she come to Gracemere with a view to going to the bank and entering into an arrangement about the disposition of the matrimonial home. The complainant travelled to Gracemere with her mother and daughters in the mother's small Nissan car on 30 October and met the appellant at the matrimonial home. The complainant and the appellant drove in the complainant's mother's car to the bank in Rockhampton. Outside the bank, in Jessie Street in view of a full car park, the appellant revealed that there was no appointment with any bank officer, saying that he had informed her erroneously in order to have the opportunity of discussing other matters with her. When the complainant continued to assert that the marriage was over, the appellant punched her, pushed her out of the driver's seat, took the driver's seat himself (seemingly by clambering over the top of her), put on gloves and drove to the Limestone Creek Bridge outside Rockhampton. For part of the journey at least, the complainant's body, including her head and shoulders were wedged under the dash board with her legs on the seat. As he drove, the appellant threatened to kill the complainant.

7 When the car stopped, the appellant whilst swearing, calling out and making threats, tied the complainant's hands behind her back.

8 He took the complainant's leather belt off, placed it around her neck and pulled it tight. Whilst doing that he threatened to kill her. She felt she was being strangled until the appellant loosened the belt after about a minute.

9 He then pushed her on the ground and punched her repeatedly in the chest. For some of that time the appellant was questioning the complainant about whether she had had sexual activity with anyone else. He ripped off her shorts and underwear and had intercourse with her whilst she was lying on the ground. The complainant lay there crying and did not struggle.

10 The appellant then untied her hands saying that he had come too far and couldn't "stop now". Immediately on doing so he coiled the rope up and threw it onto the floor of the car. He spoke of joint suicide and of a killing and suicide. The complainant talked to him with a view to calming him down. The appellant then lifted the complainant's shirt, positioned her over the bonnet of the car and had intercourse with her again. During this episode she cried and said nothing. After the appellant finished with her, she put on her underpants and, because her shorts were ripped, changed into a pair of her mother's slacks which were in the boot of the car. She also changed her T shirt which had grass stains on it.

11 The complainant promised the appellant that she would not go to the police and continued to talk to him with a view to settling his frame of mind. Eventually, the complainant and the accused got back in the car. Before they drove off the complainant picked up the rope from the floor of the car and placed it in her handbag which had been on the seat. The appellant then drove back into Rockhampton. In Rockhampton he stopped at a phone booth and asked the complainant to ring her mother, tell her that she and the appellant were thinking of getting back together again and ask her to take the children with her to Bundaberg. The complainant made the phone call with the appellant standing beside her. In doing so she was able to speak to her mother in a composed manner. She placed the T shirt, which she had taken off at the bridge, and her shorts, in the phone booth because she did not want the children to see them.

12 The appellant and the complainant went into a McDonalds where the keys of the car were left for the complainant's mother. They then hired a hire car. From there they drove to a shopping centre car park so that the complainant could go to a pharmacy to purchase make-up for her face. The car park was quite busy at that time of day. The appellant drove to a bank which he went into whilst the complainant remained in the car. They then went to a shopping centre where the complainant, whilst in the company of the appellant, bought some clothing. Their last destination was to the matrimonial home where the complainant had a bath whilst the appellant prepared a meal.

13 Whilst the appellant was washing up after the meal the complainant left the house and ran to the nearest house with lights on.

14 Elizabeth Lambert-Barker, who resided in that house with her parents, observed the complainant running towards her and noticed that she was crying and in an extremely distressed condition. Mr Lambert-Barker recalled the complainant saying "Peter belted me". She did not mention rape. He took the complainant to the airport. A taxi driver who drove the complainant from the airport into town gave evidence of taking her to an automatic teller machine and then back to the airport. On the way back to the airport, the complainant told him that her husband had taken her out to the Alton Downs area and had raped her there.

15 The complainant called a female friend of hers from the airport who picked her up and took her to her home. She gave her friend an account of what had transpired between herself and the appellant. Her friend took her to the hospital where she was examined by a nursing sister who rang the police. She was examined later that evening by a medical practitioner.

16 The appellant's version of events was rather different. He admitted going with the complainant to the bridge, but denied : that he drove; punching her in the car; putting a belt around her throat or tying her hands. He accepted that he punched her severely in the region of the chest seven times, saying that this was after, and in consequence of, the complainant's informing him of extra marital sexual relations with seven men. He claimed to have been provoked, but said that after he had punched her, he felt ashamed and both he and the complainant were crying. He said he expressed remorse, started to kiss her, she responded and they had intercourse on the bonnet of the car. The complainant moved a little distance from the car, urinated and cleaned herself with tissues. He also denied wearing gloves at any time that day and that any intercourse took place apart from that just described.

17 The following considerations are relevant to the Crown's submission, addressed later, that irrespective of whether there is any substance in the appellant's contentions, the appeal should be dismissed.

18 In the course of her evidence, the complainant's female friend said that the complainant had told her on the evening of 7 November 1998 that she had been raped twice by the appellant, first on the bonnet of the car and then on the ground.

19 The complainant did not mention the rapes to the Lambert-Barkers.

20 Her evidence was to the effect that her handbag was on the front passenger seat when she got back into the car after the rape. She was unable to explain why she placed the rope in her handbag, presumably whilst being observed by the appellant.

21 There was no evidence of any microscopic examination of the rope with a view to determining whether it had the complainant's skin on it as she asserted in the course of her evidence.

22 The gloves to which the complainant referred in the course of her evidence were not found by the police. They did, however, locate a belt (identified by the complainant as the one placed round her neck) in a drawer in the lounge room of the matrimonial home. There is no evidence as to the circumstances in which the belt got into that location. The clothes which the complainant said she had changed into and her underpants were found in a laundry basket. The front interior of the car was examined, without result, by police with a view to finding evidence of the activity in the front seats sworn to by the complainant.

23 The medical practitioner who examined the complainant on the evening of 7 November gave the following evidence of her observations -

"On the face there were a lot of red marks on the right cheek and bruises on the left cheek. There was a linear red mark on the left neck just below the angle of the jaw.

... The angle of the jaw, the left neck. There was extensive bruising on the front of the chest and over the breasts, and there were bruises and abrasion on the right wrist and there was red marks on the back of the left wrist and patches on the front of the left wrist; bruises on the right thigh; bruises on the left leg. There was a small red mark below the lower lip and on her back there were bruises on the centre of the back, red marks. ...

Starting with the left, on the front of the left wrist there were two patches of redness; the outer one was larger than the one on the inner side. On the back of the writ there was red lines on the - across the writ. On the right side there was a bruise just above the left - above the right wrist, and across the side of the wrist. There were red patches with abrasions on the centre part of it."

24 The appellant was represented on the appeal by counsel. In lieu of the grounds stated in the notice of appeal, leave was sought, and granted, to argue three fresh grounds. I will now deal with each of them in turn.

(a) the learned trial judge erroneously admitted evidence from a witness Bruce Michael to the effect that on three occasions the Appellant sought to ascertain if Michael knew anyone who would kill his Wife, as he was having marital problems.

26 Over objection by the appellant's counsel, one Bruce Michael gave evidence of meeting the appellant whilst working with him at a country school in early October 1997. He said that within about five minutes of meeting the appellant "he asked me if I knew anybody that would knock off his Missus". He said he had other conversation with him in the course of that day in which the appellant complained about his "Missus playing up". He gave further evidence to the effect that he had had similar conversations with the appellant on two other subsequent occasions. The learned trial judge ruled the evidence admissible on the basis that, as the offences included torture and assault occasioning bodily harm, the evidence showed the state of mind of the appellant in relation to the complainant shortly prior to the events in question and was thus relevant.

27 It was no part of the prosecution case that on 30 October 1997, the appellant had set out or attempted to kill the complainant or that he was acting in furtherance of a pre-conceived plan to injure or kill her. The thrust of the allegations against the appellant was that he had approached the complainant with a view to effecting a reconciliation with her but had lost control of himself when she resisted that approach.

28 It is true that there is evidence that the appellant had some prior history of violence towards the complainant and evidence was led in that regard. That evidence, which showed past outbreaks of violence as a result of disputes with the complainant, was relevant to explain the relationship between the appellant and the complainant. The evidence of Michael, however, had little or no probative force and, was highly prejudicial to the accused. In those circumstances it should have been excluded by the trial judge. It could not be said that there was no rational view of such evidence consistent with the innocence of the appellant. cf the observations of Mason CJ, Deane and Dawson JJ in Pfennig v The Queen [1995] HCA 7; (1994-1995) 182 CLR 461 at 482-3.

(b) the learned trial judge permitted, encouraged, and supported a misuse of the rule in Browne-v-Dunn against the Appellant, in respect of the evidence given by the Appellant's father to the effect that prior to the date of the offence the Complainant had made a statement amounting to a threat to falsely accuse the Appellant of a crime or crimes.

30 Evidence was led in the defence case of a conversation between Mr. Robert Burns (father of the appellant) and the complainant, which the father said had occurred prior to 30 October 1997, and in which the complainant was alleged to have said -

"He needn't worry about them (his daughters) because he won't be seeing them ever again because I want your f .....ing son dead or in jail and I know just how to do it because I've got friends in high places."

31 The appellant's counsel had changed mid trial. One counsel, Ms McCarthy, appearing on days 2 and 3 of the trial and another counsel, Mr Costello taking over on the subsequent days. Mrs McCarthy cross-examined the complainant. Immediately after re-examination had concluded, she sought, and was given, leave to further cross-examine the complainant. She put to the complainant the above conversation, but identified it as having occurred after 30 October.

32 At the end of the Crown case, the second counsel, Mr Costello, sought a ruling on the admissibility of the father's evidence. His submissions show an expectation on his part that the father would give evidence of a conversation with the accused 2 to 3 weeks before 30 October. When it was pointed out by the trial judge that the conversation was put to the complainant as having occurred after 30 November counsel took further instructions and confirmed his initial submissions. Counsel then sought leave to further cross-examine the complainant and put to her that the conversation in fact occurred prior to 30 October.

33 The application to recall was opposed and the trial judge refused it. He ruled that the evidence was admissible and, in so doing, said -

"And it is, of course, open to the Crown to argue to the jury that the complainant has had no chance to answer this allegation, although she plainly denied that any such conversation occurred at a subsequent time. In the circumstances, I am also of the view that it would be unjust to require the complainant to be recalled. ... Mr Burns, the accused, was present and made no complaint at that stage that an error had been made.

In my view, the evidence is admissible but comment can be made by the Crown Prosecutor concerning the way in which the complainant was not allowed to answer the allegation."

34 That invitation thus given was accepted by the prosecutor in his address to the jury. In summing up the trial judge said:

"In relation to the evidence of the accused's father, he submitted to you that it was only at this stage that you heard that the alleged phone conversation was prior to 30 October, and that it hadn't put to the complainant by the accused's then counsel. He argued that you could infer from that that the accused man was simply changing his story as he went along.

I have already referred to the considerations you should look at in that argument and I will remind you of them again. You must consider whether there are other possibilities before you can move on in that way."

That was a reference to the following passage in the summing up -

"Also, you have heard evidence from the accused's father, Mr Burns Senior. He gave evidence about a conversation by phone with the complainant, which apparently on his evidence occurred before 30 October. In that conversation she made some threats about wanting her husband either dead or in jail. The fact that the conversation occurred before 30 October was never put to the complainant, so she never had the opportunity of answering that allegation, although she adamantly denied that it had occurred after the incident.

It is a rule by law that a witness should be given the opportunity of answering or commenting on events which differ from their own account, and you have heard that occur on numerous times in this case where both counsel have put suggestions to witnesses. ... The suggestion that that conversation occurred prior to 30 October was not put to the complainant. You will remember that I allowed her to be recalled so that a conversation could be put to her. That was done in the presence of the accused and he made no effort to correct a mistake, if it was made, by his then barrister. The Crown have suggested from this you can infer that the accused has changed his ground. He has changed his account during the course of the trial to better suit his case. That may well be one explanation, but I remind you of what I said earlier about drawing inferences."

35 This sequence of events, in my view, was unfortunate. The trial judge did not suggest in his reasons for declining the application to recall the complainant that there was any physical or practical difficulty in the way of her return to the witness box. His Honour's decision was based on the failure of the appellant to correct an error (if in fact an error occurred) in the matter put by the appellant's first counsel to the complainant. It is likely that his Honour had regard also to the fact that the complainant had been recalled once already to permit the appellant's counsel to put the subject conversation to her. I note also that no explanation for the error in time referred to in the cross examination was placed before his Honour. That deficiency was remedied on appeal where there was evidence that the account given by the appellant's father, relevantly, had remained consistent.

36 It was no doubt relevant to his Honour's determination that the appellant had sat by without interrupting whilst the conversation was put to the complainant by the appellant's first counsel. But, in my view, that was not a particularly significant consideration. The conversation, after all, was not one to which the appellant was party and the appellant's failure to interrupt his counsel is capable of a number of obvious and innocent explanations. Having regard to the potential significance of the evidence, the more appropriate course would have been to permit the complainant to be recalled. The exercise proposed to be undertaken by the appellant's counsel was of a relatively formal nature and could have been done in such a way as to occasion little further distress or discomfort to the complainant. That course was made the more appropriate by the change in representation of the appellant and by the ignorance of the trial judge as to why the initial cross-examination took place on the assumption that the conversation was post 30 October.

37 The problem was then compounded by the prosecutor's submission which suggested, erroneously, that the first time the court had heard that the alleged conversation was prior to 30 October was when the accused's father gave his evidence. He submitted, it seems from the summing up, that the jury could draw the inference from that circumstance that the appellant himself was "simply changing his story as he went along". Relying on Brown v Dunne in the circumstances, in my view, was ill-advised and the problem was exacerbated by the contention that the appellant's own evidence, as well as that of his father, was tainted by the change in instructions. That contention was given credence by its being repeated by the trial judge in his summing up without demur. His Honour specifically referred to the matter twice.

38 Although it was pointed out to the jury that the complainant "never had the opportunity of answering that allegation", the jury was not advised that the appellant's counsel has sought an opportunity to put the matter afresh to the complainant and had been refused that opportunity. In those circumstances, it seems to me that both the prosecutor's address and the trial judge's summing up were materially misleading.

39 It was submitted on behalf of the Crown that the summing up of the trial judge was such as to negate or minimise any prejudice to the appellant flowing from the matters under consideration. It is true that the trial judge cautioned that -

"If more than one inference is reasonably open in all the circumstances, you must draw the inference that favours the accused. That is the function of the onus of proof in a criminal trial. Here, before you did draw the conclusion that the accused has changed his ground and the effect that that would have upon his credit, you must consider other possibilities - for example, the accused's then counsel may have misread or misunderstood his (sic) instructions. That is a possibility. It is only if you can exclude that as a reasonable possibility, or any other possibilities that are reasonably open, that you can infer that the accused changed his ground. So you must look at that issue quite carefully if you consider it to be important."

That direction, coming as it did directly after discussion about the alleged conversation between the complainant and the father may have been helpful, to a degree, but it maintained the error of attributing the conversation and the consequences of any change in versions of that conversation between the giving of instructions to counsel and the giving of evidence in respect of it to the appellant rather than his father.

40 In R v Foley, C.A. 136 of 1998, 11 August 1998, it was pointed out in the Judgment of the Court that -

"The giving of additional directions in such cases [ie. where the Crown Prosecutor has relied in address to the rule in Browne v Dunn] is however fraught with difficulty.

`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 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.' (R v Birks (1990) 19 NSWLR 677 at 690)"

"While variations in circumstances of particular cases may call for different responses, it is now generally recognised in criminal trials that in summing up on this issue, the judge should simply point out to the jury that the particular was not put to the relevant witness; that it should have been put so that the witness could have the opportunity of dealing with the suggestion; and that the witness has been deprived of the opportunity to give that evidence and that the court has similarly been deprived of receiving it."

41 As the appellant's counsel had sought the opportunity of putting the relevant conversation to the complainant in circumstances in which there was no particular difficulty in acceding to the request, even a direction in such terms would not have been appropriate. The direction given by his Honour, apart from being misleading, implicitly expanded the principle by suggesting that its application could operate to cast doubt on the evidence, not only of the witness whose evidence was not put to the complainant but that of the appellant himself.

42 In my view, the aspects of the prosecutor's address and of the summing up which I have identified concerned evidence of potential significance for the defence case, reflected unfavourably on the appellant and were potentially quite prejudicial to his interests.

(c) The Appellant was cross-examined unfairly by the learned Crown Prosecutor in that:

(i) the Prosecutor cross-examined the Appellant about threats which went only to credit, then contradicted the Appellant by the tender of a tape recording of a telephone conversation;

(ii) the Prosecutor persistently cross-examined the Appellant about inferences to be drawn from, or his inability to explain, other people's evidence;

(iii) The Prosecutor cross-examined the Appellant about his refusal to be interviewed by Police.

44 The first of these grounds was abandoned by the appellant's counsel in the course of argument. Because of this and the conclusions reached by me in relation to other grounds of appeal, I have not found it necessary to consider this ground.

45 Some of the points made by the appellant's counsel in support of the second of the above grounds appear to have substance, others do not. The prosecutor did have a tendency to adopt an argumentative approach in cross-examination. That may be seen, for example, in the following exchanges -

"Ever had sex with her while she is crying? -- While she's crying? Not that I can recall, no.

How do you explain, then, the marks on her wrists?-- The marks on her wrists?

Yes?-- It is pretty easy to get a bit of green rope and push on your arm. ... She is going to make sure she gets me. Can't you see the pattern? ...

Really sinking the boot as far as you are concerned?-- Yes

Why didn't she mention the sex on the bed then?-- You tell me. ..."

46 At p.332 of the record, the prosecutor put words which the complainant allegedly said to the appellant who responded, inter alia, "that is rubbish". The following exchange then took place -

By including it in her story again she is exposing herself to be caught out?--

At no time after she left did she go and initiate any contact with the police. How do you explain that in the context of your theory?--"

"It's your evidence, in any event, that there is this big conspiracy initiated by Carol to make a false complaint and get you into trouble?-- Yes."

Yet as soon as she got away from you, she didn't make a complaint of rape?--

His Honour, appropriately, interrupted the last quoted exchange stating that "I think that might be a matter for comment".

47 Another example of impermissible cross-examination is the asking of the appellant by the prosecutor whether "the Lambert-Barker's were lying". Questions in this form are regarded as improper (The Law and Conduct of the Legal Profession in Queensland by Professor Harrison p.63) and objectionable as seeking to elicit inadmissible evidence (North Australian Territory Company v Goldsborough, Mort & Company [1893] 2 Ch.D 381, 383 and R v Foley CA No 136 of 1998, 11 August 1998).

48 The boundary between legitimate cross-examination to test a proposition advanced by a witness on the one hand and impermissible argument is often blurred. Whilst satisfied that the prosecutor exceeded permissible boundaries from time to time, the passages in the record to which we were referred by the appellant's counsel do not lead me to conclude that the conduct of the trial, in this respect, resulted in any real prejudice to the accused.

49 The final point made on behalf of the appellant was that -

"The prosecutor cross-examined the appellant to establish that he had declined to be interviewed by the police."

51 The appellant was cross-examined with a view to determining whether he participated in an interview with police and, when it was conceded that he had not, with a view to establishing what he had omitted to say to the interviewing police officer. This exchange occurred -

"You had the opportunity to take part in an interview and explain your side of the story, and you didn't?-- That's right, I didn't. Like it says in the statement I didn't take part in an interview."

In my view, the prosecutor's approach infringed the appellant's right to remain silent when questioned by a police officer. That right was described in Petty v the Queen (1991) 173 CLR 95 at 99 in the judgment of Mason CJ, Deane, Toohey and McHugh JJ as a "fundamental rule of common law". Their Honours said at that reference -

"That incident of the right of silence means that, in a criminal trial, it should not be suggested, either by evidence led by the Crown or by questions asked or comments made by the trial judge or the Crown Prosecutor, that an accused's exercise of the right of silence may provide a basis for inferring a consciousness of guilt. Thus, to take an example, the Crown should not lead evidence that, when charged, the accused made no reply. Nor should it be suggested that previous silence about a defence raised at the trial provides a basis for inferring that the defence is a new invention or is rendered suspect or unacceptable."

52 The Judge gave directions of the usual nature concerning onus of proof and the consequences of the appellant's having elected to give evidence but no remark was made in the summing up in respect of his failure to give an interview to police officers. Such a direction should have been given in the summing up and, perhaps, also at the time it was revealed in evidence that the appellant had exercised his right of silence. R v Reeves (1992) 29 NSWLR 109 at 115 and R v Astill (Court of Criminal Appeal (NSW), 17 July 1992, unreported).

The application of Section 668E of the Criminal Code

53 It was submitted on behalf of the Crown that even if the Court found substance in one or more of the appellant's arguments, the appeal should be dismissed by application of s 668E of the Criminal Code on the grounds that "no substantial miscarriage of justice has actually occurred." In Van der Meer v The Queen [1988] HCA 56; (1988) 62 ALJR 656 it was said in the judgment of Wilson, Dawson and Toohey JJ at 666 -

"The common form proviso (s 668A) does not extend to a case where error, misdirection or unfairness has so affected or fundamentally flawed the trial that it cannot properly be said that the accused has, for relevant purposes, had a fair trial according to law. ... In such a case, the conviction of the accused without a relevantly fair trial according to law is of itself a miscarriage of justice and it is not to the point that the case against the accused was so overwhelmingly strong that the appellate court considers that the jury would have convicted him in any event. On the other hand, this Court will not be persuaded that there is a real risk that the effect of even a fundamental error, misdirection or unfairness may be that the trial has miscarried to an extent that an innocent person may stand convicted if it is positively satisfied that, in all the circumstances of a trial, the jury's verdict of guilty would plainly have been the same even if the alleged error, misdirection or unfairness had not occurred."

54 I accept the Crown's submission that the Crown case was a strong one. But, like most cases of this nature, in substance, it involved acceptance of the evidence of the complainant over that of the appellant. As all of the errors in the conduct of the trial in respect of the appellant's ground (b) earlier identified impinged adversely upon the credibility of the appellant and as the treatment of the appellant's father's evidence may have diminished or negated evidence bearing on the complainant's credibility, I think it impossible to be positively satisfied that "... the jury's verdict of guilty would plainly have been the same" in the absence of such errors. To my mind, there is a high degree of improbability in the appellant's account of consensual intercourse with the complainant after he brutally assaulted her. However, an appellate court lacks the opportunity of seeing witnesses and of assessing credibility against the background of unfolding evidence and a witness's credibility is not a matter able to be predicted with great accuracy prior to its determination by a tribunal of fact.

55 Further, in my view, there is a lack of attraction in applying s.668E in circumstances such as these where there has been material unfairness to the appellant.

56 I would allow the appeal. I have had the advantage of reading the reasons of Pincus J.A. I agree with the orders and course of action proposed by him and with his observations under the heading "Disposition of Appeal".

[3]. R v Birks (1990) 19 NSWLR 677, 690.

[6]. [1955] HCA 59; (1955) 93 CLR 493, 514.

[7]. CA No 40 of 1997, 23 September 1997.

[8]. CA Nos 200 and 333 of 1996, 12 August 1997.

[10]. [1968] HCA 67; (1968) 118 CLR 513 at 515-517.

[11]. [1985] HCA 35; (1984-1985) 157 CLR 671.

[12]. [1982] Qd R 781.

[14]. (1991) 173 CLR 95.

[15]. (1992) 29 NSWLR 109, 115.

[17]. [1998] HCA 57; (1998) 72 ALJR 1416.

[18]. McHugh, Hayne and Callinan JJ at 1419-1421; Gummow J at 1427.