Jurisdiction : DISTRICT COURT OF WESTERN AUSTRALIA

Criminal law - Appeal against conviction - Interruptions by the trial judge during defence counsel's cross-examination of the principal prosecution witness - Whether the trial miscarried by reason of the trial judge's conduct - Whether the trial judge misdirected the jury in relation to aspects of the evidence

Criminal Procedure Act 2004 (WA), s 143(2)

Misuse of Drugs Act 1981 (WA), s 6(1)(a), s 33(1)

R v Costello (Unreported, NSWCCA, File No 060114/95, 15 December 1995)

R v Lars (1994) 73 A Crim R 91

R v Wilson (Unreported, NSWCCA, File No 60515 of 1994, 31 March 1995)

RPS v The Queen [2000] HCA 3; (2000) 199 CLR 620

Webb v The Queen [1994] HCA 30; (1994) 181 CLR 41

1 BUSS JA: The appellant appeals against his conviction, after a trial in the District Court before Birmingham DCJ and a jury, on a count in an indictment which alleged that on 8 December 2010, at Perth Airport, the appellant attempted to possess a prohibited drug, namely methylamphetamine, with intent to sell or supply it to another, contrary to s 6(1)(a) read with s 33(1) of the Misuse of Drugs Act 1981 (WA).

3 The State relied on the contents of 74 telephone conversations which were intercepted by New South Wales police between 17 November 2010 and 7 December 2010. The appellant and Alex Shalala were parties to numerous of these conversations, which included 'coded' dialogue.

4 The State alleged that the conversations between the appellant and Mr Shalala were concerned with the importation into Western Australia of 52 g of methylamphetamine with a high degree of purity. The drug was to be carried by a courier, Sandra Turner. The appellant and Mr Shalala sometimes referred to Ms Turner as 'mum'.

5 On 8 December 2010, Ms Turner transported the drug on a commercial airline flight from Sydney to Perth. She arrived at the Perth Domestic Airport at about 8 am. The prosecutor tendered video evidence at the trial which showed the appellant approaching Ms Turner shortly after her arrival.

6 On 7 December 2010 (the day before Ms Turner's arrival in Perth), the appellant transferred a total of $14,000 to three bank accounts. One transfer was made to an account in the name of 'Wang' and another, in the amount of $4,000, was made to an account in the name of 'SA Turner'. Mr Shalala was the intended recipient of the $14,000. The intercepted conversations included 'coded' dialogue between the appellant and Mr Shalala about the placement of money into bank accounts.

7 On 8 December 2010, Western Australian police apprehended the appellant and Ms Turner at the Perth Domestic Airport.

8 Police searched Ms Turner and found two packages containing methylamphetamine. One comprised 25.8 g at 81% purity and the other 26.6 g at 78% purity. Ms Turner cooperated with the police and pleaded guilty at an early opportunity. She was a State witness at the appellant's trial and gave evidence to the effect that she had been informed that a man called 'Steve' would meet her at the Perth Domestic Airport and collect the drug she was carrying. The appellant's first given name is Steven.

9 After apprehending the appellant, the police conveyed him to his home in Caversham. They executed a search warrant at the premises and found 1.8 kg of dimethylsulfone, a cutting agent used to increase the quantity and dilute the purity of methylamphetamine. They also found a number of clip-seal bags and a new set of electronic scales.

10 Detective Senior Constable Peter Shanahan gave expert evidence at the trial to the effect that the street value of the methylamphetamine in question was about $70,000.

(a) the 'coded' dialogue between the appellant and Mr Shalala in their telephone conversations;

(b) the meeting between the appellant and Ms Turner at the Perth Domestic Airport;

(c) the drug related paraphernalia found at the appellant's home;

(d) the transfer by the appellant of a total of $14,000 to three separate accounts in the names of individuals associated with the appellant; and

(e) the clandestine nature of the transfers, on the day before the appellant met Ms Turner,

when evaluated together, proved beyond reasonable doubt that the appellant had attempted to possess the drug with intent to sell or supply it to another.

13 The appellant and Mr Shalala had known each other for about 30 years.

14 The appellant had been involved in a number of successful businesses in Western Australia including pawnbroking, motor vehicle sales and private money lending. He was in the process of establishing a new business involving vending machines.

15 The appellant and Mr Shalala agreed to share the profits of the new business. They decided to obtain a loan facility in New South Wales. Mr Shalala was to act as guarantor. Mr Shalala also agreed to assist the appellant by locating products in New South Wales to be used in connection with the vending machines. The telephone conversations between the appellant and Mr Shalala were largely concerned with matters relating to aspects of the new business. The dialogue was not concerned with drug dealing.

16 The transfer of $14,000 was made by the appellant to Mr Shalala in connection with the profit sharing arrangements for the new business. The payments were not connected with the drug found in Ms Turner's possession at the Perth Domestic Airport.

17 In late 2010 the appellant made several trips to Sydney for business purposes. Some of these trips involved meetings with Mr Shalala. On one occasion, the appellant was introduced to Ms Turner's son, Scott Turner.

18 Before Ms Turner's arrival at the Perth Domestic Airport on 8 December 2010, Scott Turner contacted the appellant and requested him to collect his mother from the airport and convey her to a place where she would be staying. At this point, the appellant had not met Ms Turner. He was unaware that she would be carrying a prohibited drug.

19 According to the appellant, Ms Turner was not a truthful or reliable witness. There were material inconsistencies in the version of events she had recounted to the police. She was given a substantial discount on her sentence for the offence because she had agreed to cooperate with the police and give evidence incriminating the appellant. Ms Turner was protecting the supplier of the drug and the real person to whom she was to deliver it.

21 Ground 1 alleges that the trial judge, to the appellant's detriment, misdirected the jury on some matters and, as a result, there was a miscarriage of justice. Initially, the appellant relied on five particulars of this ground. At the hearing of the appeal, counsel for the appellant abandoned three of them (appeal ts 27). The remaining particulars allege that his Honour erroneously told the jury that:

(a) Mr Shalala had been charged in relation to the offence in question; and

(b) the appellant had been practising as an unlicensed pawnbroker.

22 Ground 2 alleges that the trial judge repeatedly interrupted defence counsel during his cross-examination of Ms Turner and, as a result, the appellant was prevented from advancing his defence and did not receive a fair trial.

23 On 7 May 2012, McLure P granted leave to appeal on ground 2 and referred the application for leave to appeal on ground 1 to the hearing of the appeal.

Ground 1: Mr Shalala had been charged in relation to the offence in question

24 Detective Senior Constable Paul Grace of the New South Wales police was called by the State. He said in evidence-in-chief:

(a) He had applied for, and gained, authority to conduct a 'controlled operation' that involved the purchase of prohibited drugs from Mr Shalala (ts 46).

(b) He had obtained warrants to intercept two mobile telephones used by Mr Shalala (ts 46 - 47).

(c) The telephone intercepts disclosed that the people conversing with Mr Shalala included the appellant (ts 47) and Scott Turner (ts 51).

25 During Detective Grace's evidence-in-chief, numerous telephone conversations and SMS messages between the appellant and Mr Shalala were tendered.

26 Detective Grace said in cross-examination that Mr Shalala was one of the targets of drug dealing operations being investigated by the New South Wales police (ts 116 - 117). As a result of the interception of Mr Shalala's mobile telephones, the police heard conversations between him and the appellant (ts 117).

27 Defence counsel asked Detective Grace whether Mr Shalala or Scott Turner had been charged with the offence for which the appellant was being tried. He answered:

Neither party has been charged. I am expecting Mr Shalala to be charged at some stage, yes (ts 119).

28 During Ms Turner's cross-examination, defence counsel asked questions about Mr Shalala and elicited evidence that Mr Shalala was 'charged' at about the time Ms Turner was charged and that he was in custody. The transcript reads:

By the time your sentencing came around in Perth, Alex [Shalala] was no longer at your son's unit---No, Alex was charged the same time that I was charged when I was in Perth apparently.

He was in custody, was he---He was in custody, yes.

And you've told the prosecutor in this trial that the reason you gave the police the false version of events was because Alex [Shalala] was at home with your son---That's true.

You just told us that it was because you wanted to save [Alex Shalala's] name and that's why you camouflaged it---I camouflaged the name because ... Alex was with my son and the way he spoke to me like when Scott tried to say, 'Don't go, mum', Alex told him to shut up and he was quite - you know - aggressive in his manner and I didn't know if I said anything about Alex whether he would do anything to Scott.

By the time you came around to be sentenced, that was no longer an issue because Alex Shalala was in gaol---Yes, that's true (ts 232).

29 It would have been readily apparent to the jury from the cross-examination of Detective Grace and Ms Turner that:

(a) Mr Shalala had been involved in the distribution of prohibited drugs;

(b) he had spent time in custody in relation to matters connected with prohibited drugs; and

(c) a New South Wales police officer expected that he would be charged at some stage in connection with the matters the subject of the appellant's trial.

30 The trial judge told the jury in his summing up:

You have before you the communications between the accused and Mr Shalala, a person who's from New South Wales and has been charged in relation to this offence during the preceding six weeks prior to the commission of the offence at the Perth Airport (ts 436).

31 At the conclusion of his summing up, his Honour asked counsel, in the presence of the jury, whether there were any 'matters of evidence' that should be clarified or corrected (ts 446). The following exchange occurred between the prosecutor and his Honour in the presence of the jury:

STANDISH, MR: Now, your Honour, Mr Shalala was charged with offences in New South Wales, not with this offence. I think just in - - -

BIRMINGHAM DCJ: Sorry. Yes. Yes, thank you. Yes, very well then (ts 446).

32 The trial judge's response acknowledged the correctness of the point made by the prosecutor.

33 His Honour adequately corrected, at the conclusion of his summing up and in the presence of the jury, his earlier misstatement that Mr Shalala had been charged with the offence for which the appellant was being tried.

34 In my opinion, the trial judge's misstatement did not cause any prejudice to the appellant or occasion a miscarriage of justice. This particular of ground 1 is without merit.

Ground 1: the appellant had been practising as an unlicensed pawnbroker

35 The appellant gave evidence-in-chief at the trial about his pawnbroking and money-lending business (ts 260 - 263, 265 - 273). This evidence was relevant in that it purported to provide an innocent explanation for the cash transfers which the State alleged were for the payment of the methylamphetamine that Ms Turner brought to Perth.

36 The appellant gave this evidence-in-chief concerning his status as a pawnbroker:

(a) a friend held a pawnbroking licence and a second-hand dealer's licence (ts 260 - 261); and

(b) although his friend held the licences, he (the appellant) owned and operated the business under the name 'Top Gear Pawnbrokers' (ts 261).

(a) he was aware that pawnbroking businesses must be licensed in Western Australia (ts 315);

(b) a company, Rigola Pty Ltd, traded as 'Top Gear Pawnbrokers' (ts 314);

(c) he was not an employee or a shareholder of the company (ts 314 - 315);

(e) he was not the licensee of 'Top Gear Pawnbrokers' (ts 315);

(f) the licensee did not actively run the business (ts 315);

(g) although the licensee had to 'oversee' the business, the appellant, and not the licensee, ran the business (ts 315); and

(h) he was unable to explain what the licensee did to 'oversee' the business, other than to say that the licensee was 'too busy doing other things' (ts 315 - 316).

38 The prosecutor put to the appellant that he was 'an unlicensed pawnbroker working on someone else's licence' (ts 316). The appellant rejected the proposition. He asserted:

No, no, I work for a pawnbroker; I work for a pawnbroker (ts 316).

39 There is an obvious inconsistency between the appellant's assertion that he 'worked' for a pawnbroker and his assertions in evidence-in-chief and earlier in cross-examination that he was running his own business and was not an employee of the licensee.

40 The trial judge instructed the jury in his summing up:

You must dismiss all feelings of sympathy or prejudice, be it sympathy or prejudice against the accused or for anyone else. Such emotions have no part to play. I direct you that in relation to any view you might have in relation to Mr Cotic, the accused's business arrangements and the extent to which he is seemingly practising or trading as an unlicensed pawnbroker to which he is charging I think 25 per cent per month on money lending and those matters are not relevant to this case and I direct that you do not have regard to those. You might have regard to them for the general assessment as to his character, but in relation to that conduct it is irrelevant to the matters for your consideration in this case (ts 445).

41 After his Honour completed his summing up and the jury had retired, defence counsel complained about the trial judge's directions in relation to the appellant's status as a pawnbroker. The following exchange occurred between his Honour and defence counsel:

NOBLE, MR: Your Honour, it's not been established in this trial that he was in fact acting unlawfully as a pawnbroker and that's the difficulty that I have with that.

BIRMINGHAM DCJ: Wasn't he - I thought that was a matter made quite clear in cross-examination.

NOBLE, MR: It wasn't - it was certainly put to him.

BIRMINGHAM DCJ: Yes.

NOBLE, MR: But it wasn't accepted by him that he was acting - - -

BIRMINGHAM DCJ: He said that he wasn't licensed and he did it under the other person's licence.

NOBLE, MR: And there's no evidence and there's been no submission made by the prosecution in this case in closing that that was unlawful. It hasn't on the evidence, he's not on trial for unlawful pawnbroking. That was the point your Honour seemed to make.

BIRMINGHAM DCJ: And that's the point that I was endeavouring to make, namely in relation to the fact they should put all of that out because it's irrelevant.

NOBLE, MR: The difficulty now is your Honour has suggested to the jury that he was acting as an unlicensed pawnbroker. I don't know that on the state of the evidence that is the case.

BIRMINGHAM DCJ: Okay. Well, that's - - -

NOBLE, MR: And the difficulty that I have with it, your Honour, is that your Honour's told the jury they can use that in an assessment of his character which is critical to the defence case (ts 450 - 451).

42 Defence counsel submitted that the directions in question were incapable of correction and the jury should be discharged.

43 The trial judge refused to discharge the jury. He did, however, give the jury this redirection:

I apologise for interrupting your deliberations but it occurs to me that there's something further I said to you that needs to be corrected and it is this: when I told that you should assess the evidence objectively and dispassionately and decide the case using logic [and] reason, without bias, prejudice or sympathy, I made an observation in relation to the business that's conducted by Mr Cotic and the reference to the percentages of interest and things such as that, and whether or not he was licensed. You have before you the exhibits in relation to those transactions. There is no evidence that what he was doing was improper or unlawful and I direct you, as a matter of law, that you do not have regard to his conduct in relation to those business transactions at all when assessing his evidence and his character. They are put in to show what he was doing, by way of his business generally and that he had other transactions. And that there was money coming by way of explanation for the phone calls. But in relation to the interest rates and whether or not he's licensed and all of those matters, it's my direction to you that you should disregard whether or not he's licensed for that and it's not a matter relevant for your consideration at all when determining his character or his evidence (ts 463).

44 For present purposes, the significant point to be drawn from the redirection is that his Honour instructed the jury to disregard 'whether or not' the appellant was licensed to operate as a pawnbroker.

45 There is no merit in counsel for the appellant's contention that his Honour should have told the jury that there was no evidence that the appellant was unlicensed. It was reasonably open, on the basis of the evidence I have referred to at [35] - [39] above, to infer that at material times the appellant was operating as an unlicensed pawnbroker.

46 In any event, the appellant chose to adduce evidence of his pawnbroking activities as part of an explanation for the transfer of the total of $14,000 which, on the State's case, was payment for the methylamphetamine carried by Ms Turner. The prosecutor was entitled to challenge the truthfulness of the appellant's account of these activities.

47 The trial judge's redirection was adequate to ensure that the appellant received a fair trial. The appellant did not suffer any material prejudice, and no miscarriage of justice occurred. This particular of ground 1 is also without merit.

Ground 2: defence counsel's opening statement

48 I have already explained the nature of the appellant's case at trial.

49 Defence counsel made an opening statement. See s 143(2) of the Criminal Procedure Act 2004 (WA). During this statement he explained to the jury that, on the appellant's case, Ms Turner was a dishonest and unreliable witness:

What happened when Ms Turner was stopped at the airport was that she was caught red-handed with drugs strapped down her pants, as I understand it, and admitted that to the police. What she then went on to tell the police was the first of four different versions of events that she has given regarding how she came into possession of these drugs. What is clear is that she was trying to protect whoever was actually behind the supply of the drugs. She did that by telling the police that a man named Jim, who she had met at the races, supplied her with the drugs and paid for an airline ticket for her to come to Perth. She's changed her story about Jim and how she came to meet Jim a number of times and as late as last week, she's given her fourth version of events as to how she got possession of those drugs. And now [she] says it was through Alex Shalala and she says that the intended recipient of the drugs was Mr Cotic. What she was doing in telling the police that Mr Cotic was the intended recipient of the drugs was protecting the people who were really behind this operation from the police, possibly because she was fearful for her son's wellbeing or the people who were actually behind the drug importation. She is, and I will be suggesting to you at the end of this trial, the lynchpin of the prosecution's case. If you take away her evidence, if you find her to be unreliable, I will be suggesting to you that you could not possibly find Mr Cotic guilty of this offence. Ms Turner falls, leaving aside the fact that she's changed her story four times and I'll take her through in detail when I cross-examine her [on] each of those different stories, she's told police face-to-face on a video record of interview first, then in a written statement, which has attached to it a declaration that she's making an offence if she includes anything false in it, which was a complete pack of lies. Then through her counsel thirdly, in her sentencing in one of these courts before a different judge than his Honour, where her lawyer then put the third version of events out for the first time. And then fourthly and finally, last week when she meets with my learned friend who goes to speak to her in prison, and she tells a completely different story for the first time and that's her fourth version of events. I'll be asking you to closely scrutinise the evidence that she gives in this trial because it is completely and utterly critical to the prosecution case against Mr Cotic. Leaving aside ... the fact she's made four versions - four different statements, given four different stories about these drugs; leaving that aside she, just by reason of the fact that she's involved in this crime, is known to the legal system as, through hundreds of years of experience, as falling into the category of probably the most unreliable witness that will ever give evidence in court: they're called an accomplice.

People who are involved in criminal activity tend to blame and maximise involvement of people around them, sometimes who are not involved, to save their own skin. And Ms Turner had a very big carrot dangled in front of her to incriminate Mr Cotic. And I will go into that as well when she gives her evidence (ts 42 - 44).

50 The trial judge interrupted defence counsel's cross-examination of Ms Turner on numerous occasions.

(a) The trial judge interrupted when defence counsel made a statement instead of asking a question:

NOBLE, MR: All right. There was no rhyme or reason in the purchasing of - of that MSM in this case, it was simply purchased because we wanted to have something packaged, because you - we don't have the package in this trial of the MSM.

BIRMINGHAM DCJ: Mr Noble?

NOBLE, MR: Sorry, sir.

BIRMINGHAM DCJ: You're not giving evidence are you?

NOBLE, MR: Yes, yes, sir. No. Well, I am too. I'll stop.

BIRMINGHAM DCJ: Just ask questions, Mr Noble, rather than give evidence from the Bar table.

NOBLE, MR: I'll stop, sir. Very good, your Honour. Very good.

BIRMINGHAM DCJ: If you wish to give evidence about what you're doing you're welcome to take the oath (ts 164).

(b) His Honour interrupted when defence counsel cut off Ms Turner while she was completing her answer to a question and when defence counsel made a statement instead of asking a question:

Do you say that he had his hand on your shoulder at the point the police took hold of both of you---I think so.

All right---I think so. I - I mean, it's - - -

And - and the police - - ----Look, I was in shock.

BIRMINGHAM DCJ: Mr Noble?

NOBLE, MR: Yes, sorry, sir.

BIRMINGHAM DCJ: It would be of assistance if you allow the witness to finish her answer before you start again, thank you.

NOBLE, MR: And the police immediately asked you if you were carrying anything for that man? And you said------They didn't ask me when - when they took me (inaudible).

NOBLE, MR: And you said - just let me finish the question.

BIRMINGHAM DCJ: Excuse me, Mr Noble.

NOBLE, MR: Just let me finish the question.

BIRMINGHAM DCJ: Mr Noble, please ask your question, and then allow the witness to answer; don't speak over her.

NOBLE, MR: You were asked by the - I'll clarify this question for you, Ms Turner, so no one's in any misunderstanding about what I'm asking you. You were asked by the police whether you were carrying anything for the man that you were in company with, and you said 'No'.

BIRMINGHAM DCJ: That's a statement (ts 185).

(c) His Honour interrupted when, in his view, defence counsel's questioning was unreasonably repetitive:

NOBLE, MR: That he said to you - he said to you - you're going to have [to] bear with me through this whole lie you've told the police - that - that was a lie, wasn't it? You didn't meet any person named Jim at the races?

BIRMINGHAM DCJ: Mr Noble, I think she's said that on several occasions already (ts 191).

(d) His Honour interrupted when defence counsel cut off Ms Turner's answer to a question:

NOBLE, MR: And was it a lie - was it also a lie that you were at the races the Wednesday before---No. I'd been to the races.

You'd been to the races on the Wednesday before---I'd been to the races but I - it wasn't the Wednesday before.

NOBLE, MR: So - okay. So that - sorry, just bear with me---I just made - I made (indistinct) story.

BIRMINGHAM DCJ: Mr Noble, leave the witness to finish her answer. And don't speak over her (ts 191 - 192).

(e) His Honour interrupted when defence counsel cut off Ms Turner's answer to a question:

All right. And you said to the police that: Jim was very nice, very polite. That correct---Well, that's the whole story; I've told you 10 times, that - - -

NOBLE, MR: Is Alex Shalala very - - -

BIRMINGHAM DCJ: No.

NOBLE, MR: - - - is Alex - - ----- - - I made up the story about Jim.

BIRMINGHAM DCJ: Mr Noble, - - -

NOBLE, MR: Sorry.

BIRMINGHAM DCJ: - - - I won't ask you again. Please allow the witness to complete her answer. You ask the question - - -

NOBLE, MR: Your Honour, - - -

BIRMINGHAM DCJ: - - - let her answer the question.

NOBLE, MR: - - - I'm anticipating that she's finished, and then she goes again.

BIRMINGHAM DCJ: Well then, - - -

NOBLE, MR: Yes (ts 193).

(f) His Honour interrupted when defence counsel questioned Ms Turner on a written statement without permitting her to read the whole of the passage in question:

And then the police officer said: All right. And your - just read the members of the jury your response---I - I said:

NOBLE, MR: He looked a little bit Polish. A little bit Polish. He looked a little bit Polish, did he? And just to clarify this, - - -

BIRMINGHAM DCJ: This - Mr Noble, if you want her to read the answer, let her read the whole of the answer.

NOBLE, MR: Just to clarify this, Ms Turner, that was all a lie. Every - - -

BIRMINGHAM DCJ: No. Mr Noble, I've asked - I've directed you as to [letting] her read the whole of the answer. You've stopped [her] from reading the rest of the answer.

NOBLE, MR: Well, your Honour, she stopped reading the answer, with respect.

BIRMINGHAM DCJ: Yes, yes. Well, Ms Turner, you were asked a question in relation to what description, and to read it out. Could you read out what answer you gave---I - I said: (ts 195)

(g) His Honour interrupted when defence counsel made a statement instead of asking a question:

NOBLE, MR: To the detective that was questioning you---Well - well, he must have looked Polish.

Do I look Polish---No.

NOBLE, MR: And I won't ask you what you think I look like. And - - -

BIRMINGHAM DCJ: Just ask questions, please, Mr Noble.

NOBLE, MR: You were then - and that was all a lie; you never met a handsome, 60-year-old man at the races on - Canterbury on the Wednesday, because you weren't there, correct? It wasn't a mistruth, that was a lie. You didn't misspeak - can you please answer that question, Ms Turner---Sorry?

BIRMINGHAM DCJ: Well, it wasn't a question.

NOBLE, MR: That was all a lie; you made up - I'll stop there. That was all a lie.

BIRMINGHAM DCJ: Just stop. Mr Noble, - - -

NOBLE, MR: Yes, I appreciate - - -

BIRMINGHAM DCJ: - - - if you're going to ask a question---

NOBLE, MR: Yes.

BIRMINGHAM DCJ: - - - ask a question. Making statements for the presence of the jury otherwise is not assisting in the examination of this witness. You know your responsibilities; please do so (ts 196 - 197).

(h) Defence counsel showed Ms Turner a transcript of her interview with the police. She was apparently confused as to which parts were her statements and which parts were statements by the police. His Honour interrupted defence counsel to clarify Ms Turner's apparent confusion:

Your answer - - ----No, no, I can't remember saying that.

NOBLE, MR: Your answer - - -

BIRMINGHAM DCJ: No, no, it - this is what was said to you by a police officer---Right. I can't remember.

BIRMINGHAM DCJ: So where it is a question in that transcript, it is what's put by the police officer. The 'A' is the answer from you.

NOBLE, MR: See the 'A' are your words---From Scott.

Now - - ----I didn't - I didn't know anything about it (ts 206).

(i) His Honour interrupted when defence counsel cut off Ms Turner from completing an answer to a question:

And your answer was - - ----I - I said 'no'.

NOBLE, MR: - - - you said 'no'.

BIRMINGHAM DCJ: Mr Noble.

NOBLE, MR: Sorry, sir.

No, I said 'no'.

BIRMINGHAM DCJ: Wait for the witness to answer.

Cos I was making up Jim (ts 209).

(j) His Honour interrupted when defence counsel made statements instead of asking questions:

NOBLE, MR: Now, Ms Turner, when you gave your statement to the police later that day you left out any reference to Alex Shalala being at Scott Turner - your son's house the day before, when you were given the drugs.

BIRMINGHAM DCJ: Is - is that a statement or a question?

NOBLE, MR: That's a question.

...

NOBLE, MR: All right. Well, we'll - we can get that later and I'll return to it. What then happened after you gave that statement to the police was - was it later in the afternoon that you were granted---

BIRMINGHAM DCJ: Mr Noble, please formulate your question as a question (ts 216 - 217).

(k) His Honour interrupted when defence counsel treated the plea in mitigation of sentence made on Ms Turner's behalf as a prior inconsistent statement of Ms Turner herself:

Well, what I'm asking is the lawyer didn't make up a version of events and tell the court that version, did they---I can't remember what the---

BIRMINGHAM DCJ: Well, Mr Noble, I think you're obliged to put to the witness if something is said on her behalf, the proper way of formulating it is to put whether that was said and whether it was in accordance with her instructions (ts 217).

(l) His Honour interrupted when defence counsel made a statement instead of asking a question:

And are you telling us that you don't remember telling your lawyer two major changes in your story from the - - ----No, I don't. I really - truly I don't remember (inaudible)122321 that day.

BIRMINGHAM DCJ: Mr Noble, I think the question needs - to be fair the question should be put to her as a question as to whether she, in fact, told her lawyer that.

NOBLE, MR: I'm asking you, Ms Turner, did you tell your lawyer - in fact, I'm suggesting to you.

BIRMINGHAM DCJ: No. No. Ask it as a question (ts 220).

(m) His Honour interrupted when defence counsel treated the plea in mitigation of sentence made on Ms Turner's behalf as a prior inconsistent statement of Ms Turner herself:

Do you accept that that is what your lawyer told the court you had told her---I can't remember. I've - I've told her since but I - I didn't tell - I can't remember saying it when I was at court.

NOBLE, MR: All right. Okay. I'd ask that transcript be tendered, your Honour.

BIRMINGHAM DCJ: No. Just pause a moment. Where does it say that she had been told that?

NOBLE, MR: Your Honour, it's her lawyer putting her instructions before the judge.

BIRMINGHAM DCJ: Well - - -

NOBLE, MR: Sir, it's implicit.

BIRMINGHAM DCJ: The witness has been asked as to whether she told her lawyer that.

NOBLE, MR: Yes.

BIRMINGHAM DCJ: She can't recall. I think that's what her answer is. Your point is that the lawyer had received those instructions. Where is that apparent from this document?

NOBLE, MR: Your Honour, the lawyer - her lawyer may well have said - may well not have said, 'She's told me these things'. I don't presume the lawyer's made it up.

BIRMINGHAM DCJ: Well - well, that is a bold assumption. Mr Standish - Madam Foreman, members of the jury, could you please retire to the jury room, please? If we could just switch the sound off from the witness as well, please? (ts 221)

An exchange then occurred between his Honour, the prosecutor and defence counsel in the absence of the jury.

(n) His Honour interrupted when defence counsel asked Ms Turner to comment on events about which she had no direct knowledge:

NOBLE, MR: Can I suggest to you this? That your son, Scott Turner, rang and arranged with the person who met you at the airport for you to be collected that day in Perth.

BIRMINGHAM DCJ: How will she know that?

NOBLE, MR: Well, I'm asking.

I don't believe that.

NOBLE, MR: You were not present---I don't - I don't believe that at all.

NOBLE, MR: You were not present---

BIRMINGHAM DCJ: Mr Noble, frame it as a question (ts 233).

(o) His Honour interrupted when defence counsel made a statement relating to matters not in evidence:

NOBLE, MR: My client was told that you were coming here---

STANDISH, MR: Sir---

BIRMINGHAM DCJ: Mr - stop. You know that's not a proper way to formulate the question. Please rephrase it in admissible form and don't make it as a statement.

NOBLE, MR: You know full well that the man who was picking you up at the airport, Ms Turner, was under the impression---

BIRMINGHAM DCJ: No, no. Mr Noble, ask her a question and naturally you would need to bear in mind it would need to have some way of indicating that this person knew what your client was thinking. And that would require some evidence.

NOBLE, MR: You had been told, Ms Turner.

BIRMINGHAM DCJ: No. You're making it as a statement. Please frame it as a question.

NOBLE, MR: Your Honour, the - the question I'm going to put---

BIRMINGHAM DCJ: Please frame your question as a question, not a statement. Did you, how, when, where, why; that's how---

NOBLE, MR: Ms Turner - yes, your Honour.

BIRMINGHAM DCJ: - - - you ask questions, Mr Noble (ts 235).

(p) His Honour interrupted when defence counsel asked a question that contained an assumption about which Ms Turner had no direct knowledge:

NOBLE, MR: And you were coming to mind someone's house and their dogs---No.

BIRMINGHAM DCJ: Mr Noble that question carries within it an assumption that the other person had been told that, doesn't it?

NOBLE, MR: I'm suggesting she's been told it, yes.

BIRMINGHAM DCJ: You've asked her a question as to whether she knew that. She's answered that. Reformulating it in the way you have and importing into it some Bar table evidence of what the person had been told is an inadmissible form (ts 236).

52 In addition to the trial judge's interruption of defence counsel's cross-examination of Ms Turner, the cross-examination was interrupted by numerous objections from the prosecutor, some instructions by his Honour to Ms Turner to give responsive answers to questions, and some matters which were dealt with by his Honour in the absence of the jury. It is unnecessary to set out details of these additional interruptions. They are not matters within ground 2.

53 The trial judge, in his summing up, gave the jury an orthodox direction about its role as the fact-finding tribunal:

Your task is to determine the facts in the case based on the evidence that you've heard in this court room. That involves determining what evidence you accept. You then apply the law as I explain it to you to the facts as you find them to be and in that way you will arrive at your verdict. I may comment on the evidence in the course of directing you on the law and summarising the case to you. I will do so if I think it might assist you in considering the facts. Whilst you're obliged to accept my directions on matters of law, you're not obliged to accept any comment that I make about the facts. You may ignore any comment that I make about the facts unless it coincides with your own independent view. You and you alone are the sole judges of the facts in this case (ts 423).

54 His Honour explained that, in assessing the credibility of a witness, it was relevant to consider whether the witness had said something different at another time (ts 427). He added:

That is a matter to which Mr Noble for the defence has made particular emphasis (ts 427).

55 The trial judge gave the jury these directions concerning Ms Turner's prior inconsistent statements and the assessment of her credibility:

In this case, there's evidence that Mrs Turner lied to the police ... as to the circumstances in which she came into the possession of the methylamphetamine. At trial, she admitted that what she said about getting the drugs from a person called 'Jim' at the races was false and was done to protect the identity of Shalala due to the fear of implicating her son, Scott. She maintained this facade throughout, up until shortly before the trial. She maintained that it was Shalala that gave her the drugs and that her son, Scott, was not present, but told her not to do it.

It's the evidence that she gave in this court that is her evidence, not what she said on any prior occasion. But you will have regard to what she said on the prior occasion as to whether you consider her to be a credible witness when considering the evidence she gave in court. So you use the prior inconsistent statement in the process of assessing her evidence. What she said on a prior occasion isn't the evidence. The evidence is what she gave here. But you assess that if she has said something to other people on other occasions: is she a credible witness? Is she reliable? When she gave her evidence in court, was she then telling the truth that you could rely on? It's apparent from the evidence of her son, Scott, that he played a role in the delivery of the package to his mother, that she had not disclosed to this court or to you. In weighing up the effect of this inconsistency or discrepancy and the extent to which it differed from the evidence of her son, you need to consider whether there's a satisfactory explanation for it. For example, do the errors in her evidence result from some innocent error, such as faulty recollection? Or could there be an intentional false - or that is to say, seeking to deny or conceal the involvement of her son, who has, obviously, a history of drug addiction, as was apparent from his testimony, having previously [been] on, I think he said he was a heroin addict and then been on a methadone program for something like 12 or 14 years. You will make your own assessment of Mr Scott Turner when you evaluate the evidence. And in the process of that, you will have regard to the differences between his evidence and that of his mother, as to where perhaps the truth lies in the manner in which she obtained, and came into possession of the drugs that were found on her person when she was arrested at Perth Airport. You need to be aware of the discrepancies and inconsistencies and where you find them. And carefully evaluate all the testimony in the light of those inconsistencies. What I've said, by way of considerations, are only examples. You may well think of other general considerations that will assist. It is, as I've said, up to you as to how you assess the evidence and what weight you give to any witness's testimony or to any exhibit (ts 427 - 428).

56 His Honour gave the jury a warning about Ms Turner's evidence and the necessity for the jury carefully to scrutinise her evidence:

Can I turn now to a matter that was raised by counsel in their addresses concerning the question of the evidence of Mrs Turner, who was an admitted co-offender, and also the evidence of her son, Scott Turner. You should carefully scrutinise the evidence of each of them insofar as they were involved in the same offence with which the State has charged this accused. The reason why you must carefully scrutinise the evidence is that Mrs Turner, and to an extent her son, have a certain degree of self-interest in giving evidence such that they might seek to justify their conduct in the offence and limit their involvement, and to shift blame onto others. This was perhaps more appropriate in relation to Mrs Turner rather than Scott Turner, but Scott Turner readily admitted being involved in this offence, notwithstanding that his mother had effectively given exculpatory evidence relating to him, he acknowledged that it was he who took the package along with the card to his mother the night before, at the behest of Mr Shalala who had driven him around there and told him to run it up to the flat. The evidence of Mrs Turner is really limited, however, as to what she was required to do, and her testimony as to what was to happen is limited. It was essentially directed to the role that was played by Mr Shalala. It was suggested to her that she was blaming the accused to cover up the person in Perth, for whom she was intending to give the drugs. She emphatically denied that suggestion. However, the fact that ... there was a degree of self-interest is not a reason in itself for you to reject the evidence of a person who is an accomplice or a co-accused such as Mrs Turner. But it is, however, a reason for you to scrutinise her evidence closely, to compare it with what is known about the circumstances of the offence from other evidence, and what other facts can be accepted by you as truthful and reliable. It is a matter for you to consider whether you accept the evidence of Mrs Turner and that of her son, Scott. In this case, Mrs Turner admits being involved in the commission of the offence, and has been convicted and sentenced for that offence. Perhaps she has sought to implicate the accused and to give an untruthful account because she apprehends that she has something to gain by doing so. You know that she pleaded guilty, and she indicated she was prepared to give evidence against the accused in this case. You may consider that she had an expectation of being dealt with more leniently as a result of her cooperation from the authorities. The defence points to this and says you should carefully consider her evidence because of the risk of her giving false evidence in anticipation of favourable treatment. The prosecution submits to you that she is a truthful and reliable witness, and says that when you consider her evidence, you could rely on it. It's a matter for you what weight you give to the evidence of Mrs Turner and to her son, but you should bear in mind the warning that I've given you when you consider that evidence. It's important to note, however, that the evidence of Mrs Turner did not directly implicate the accused, she did not know him and had no dealings with him until she arrived at the airport. The accused says he only went to the airport at the request of Scott Turner. Scott Turner emphatically denied that account. Those are matters that you will need to decide upon the whole of the evidence (ts 431 - 432).

57 Later, the trial judge reminded the jury of the appellant's defence including defence counsel's suggestion, which he put squarely to Ms Turner, that she was carrying the drug for delivery to someone other than the appellant (ts 443). His Honour noted:

It's suggested by the defence that Mrs Turner is protecting someone in WA and using - I think the words used by Mr Noble was that the accused was the patsy, that the calls to Mr Shalala, the payments of money to him have an innocent explanation and that the conversation with Mr Shalala concerning her arrival again is just a matter of coincidence rather than any scheme or agreement between them relating to meeting her to collect the package of methylamphetamine (ts 444).

58 After he completed his summing up, his Honour asked the prosecutor and defence counsel whether there were 'any matters of evidence' which they would like him to clarify or correct (ts 446). Defence counsel told his Honour that there were no matters of evidence which he wanted to raise (ts 446).

59 The fundamental task of a trial judge who is presiding over a criminal trial is to ensure a fair trial of the accused. See RPS v The Queen [2000] HCA 3; (2000) 199 CLR 620 [41] (Gaudron A-CJ, Gummow, Kirby and Hayne JJ).

60 The matters complained about by the appellant in ground 2 of this appeal amount to a complaint that the conduct of his trial was unfair. See RPS [11].

61 A trial judge is, of course, entitled to intervene in the questioning of a witness in a criminal trial (whether in examination-in-chief, cross-examination or re-examination), even though counsel for the other party has not objected, if there is good reason for the intervention. See R v Lars (1994) 73 A Crim R 91, 121 - 143 (Wood, Mathews and Badgery-Parker JJ); R v Wilson (Unreported, NSWCCA, File No 60515 of 1994, 31 March 1995), 11 (Hunt CJ at CL, Smart and Levine JJ agreeing).

62 In Wilson, Hunt CJ at CL considered the circumstances in which a trial judge presiding over a criminal trial should exercise his or her power to reject a question in the absence of objection. After referring to the propriety of a judge interrupting counsel to enquire as to the relevance of a particular question or a particular line of cross-examination, and the manner in which the judge should deal with the matter, his Honour said:

The power of the judge to reject a question in the absence of objection should also be exercised with circumspection. It would be appropriate to do so where the question is offensive or otherwise obviously calculated to do no more than unfairly prejudice the witness (or the party who has called that witness) in the eyes of the jury, or where the form of the question is such that it involves unfairness to the witness (which other counsel may not have detected) or is likely, whether because of latent or patent ambiguity or for any other reason, to elicit an answer which would be misleading. Another obvious instance would be where the asking of the question represents a flouting of some earlier ruling on admissibility of evidence of a particular subject matter, particularly where it is embarrassing to counsel for the other party to have to object repeatedly to such questions.

That is not an exhaustive statement of the circumstances in which the judge would be justified in rejecting a question without objection. There may well be others. What is clear is that the circumstances in which a judge should reject a question without objection are obviously limited, and the decision whether or not to intervene must always be taken by the trial judge with due regard to the undesirability of an interruption to the flow of cross-examination and, above all and especially in a jury trial, with regard to the undesirability of interventions which may give the appearance that the judge has descended into the arena and aligned himself with one or other of the combatants.

It is also worth remarking that a judge who (except in the case of an offensive or ambiguous and potentially misleading question) rejects a question in the absence of any objection from counsel runs the risk of falling into error and of excluding evidence which ought properly to have been admitted. The task of a judge conducting any trial is not an easy one. In a very real sense, not only is a judge entitled to expect proper assistance from counsel in carrying out that task, but he or she is also to a degree dependent on such assistance and (not only in the interests of justice but in his or her own interest) a judge should not too readily discount the value of that assistance nor so act as to be deprived of it (12).

See also R v Costello (Unreported, NSWCCA, File No 060114/95, 15 December 1995), 10 - 12 (Studdert J, Hunt CJ at CL and Smart J relevantly agreeing).

63 I am satisfied, after reading the transcript of Ms Turner's evidence, listening to the audio record of her cross-examination and reviewing other parts of the trial record (including the opening statements of the prosecutor and defence counsel and the trial judge's summing up), that his Honour's interruptions during defence counsel's cross-examination did not prevent the appellant from advancing his defence and did not result in an unfair trial or a miscarriage of justice. I am of that opinion for the following reasons.

64 First, the appellant's case was straightforward. There was no legal or factual complexity. According to the appellant, he agreed, at the request of Scott Turner, to collect Ms Turner from the Perth Domestic Airport on 8 December 2010 and convey her to a place where she would be staying. The appellant had not previously met Ms Turner and he was unaware that she would be carrying a prohibited drug. The appellant gave evidence to that effect at trial.

65 The appellant's contention in relation to Ms Turner was that she was an untruthful and an unreliable witness. She was protecting the supplier of the drug and the real person to whom she was to deliver it.

66 Secondly, defence counsel explained to the jury in his opening statement, without interruption, the appellant's contention in relation to Ms Turner. He emphasised to the jury that Ms Turner had 'changed her story' a number of times and 'as late as last week [had] given her fourth version of events as to how she got possession of those drugs' (ts 42 - 43). Defence counsel said that Ms Turner was 'the lynchpin of the prosecution's case' and, if the jury found her evidence to be unreliable, it could not possibly find the appellant guilty (ts 43).

67 The jury would have been in no doubt, upon hearing defence counsel's opening statement, as to the nature of the appellant's case or his contention in relation to Ms Turner. Also, the jury would have understood that Ms Turner's credibility was of central importance and that defence counsel would be submitting that she was untruthful and unreliable.

68 Thirdly, there was a proper basis for the trial judge's interruptions. His Honour's complaints about the form or substance of defence counsel's propositions or questions were valid. His Honour explained briefly to defence counsel why the form or substance of a particular proposition or question was impermissible. The interruptions multiplied because defence counsel failed to heed his Honour's rulings and follow the guidance embodied in his explanations.

69 It is not unusual for counsel to put a proposition to a witness which is not in the form of a question. This practice is usually not objected to by opposing counsel and not corrected by the trial judge because it will usually be plain from the rising inflection in counsel's voice that he or she is interrogating the witness and not giving evidence from the bar table or confusing the witness or the jury. However, in the present case, when the trial judge interrupted on the basis that defence counsel had made statements rather than ask questions, it was not plain from counsel's vocal inflection that he was interrogating Ms Turner.

70 Fourthly, the trial judge's interruptions were not directed to the topics the subject of the cross-examination or their relevance and they were not directed to the merits of the points being advanced by defence counsel.

71 Fifthly, the audio record of Ms Turner's cross-examination reveals that:

(a) the trial judge's interruptions, in the presence of the jury, were not aggressive or belligerent; and

(b) his Honour did not disparage defence counsel in the presence of the jury.

72 It is apparent, from his Honour's tone, that on a couple of occasions he became irritated or frustrated by defence counsel's unwillingness or inability, on those occasions, to ask admissible questions. However, a fair-minded lay observer, with knowledge of the material objective facts, would not have entertained a reasonable apprehension, from the nature, extent and tone of his Honour's interruptions, that he might not bring an impartial and unprejudiced mind to the performance of his judicial function. See Webb v The Queen [1994] HCA 30; (1994) 181 CLR 41, 67 - 68 (Deane J).

73 Sixthly, on my appraisal of the audio record of Ms Turner's cross-examination, almost all of the trial judge's interruptions did not materially disrupt the flow of cross-examination, partly because his Honour's interruptions were concise and partly because defence counsel paid little attention to his Honour and pressed on without hesitation or delay.

74 Seventhly, the issue of importance was whether the jury was persuaded that Ms Turner's sworn evidence at the trial was in any respect credible and supportive of the State's case. My assessment of her cross-examination as a whole is that defence counsel confronted her on all matters that could reasonably have been used to undermine her credibility and reliability and to advance the appellant's case. The trial judge's interruptions did not materially inhibit the cross-examination. The jury would have been in no doubt, upon the completion of Ms Turner's cross-examination, that she had made a number of prior inconsistent statements and that she had, on more than one occasion, told lies to the police.

(b) did not express views about the appellant's case that were materially adverse to him;

(c) instructed the jury that it was the sole judge of the facts of the case, and that it was entitled to ignore any comment that his Honour might make about the facts unless the comment coincided with its own independent view;

(d) gave the jury a clear direction about the relevance of Ms Turner's prior inconsistent statements and the assessment of her credibility;

(e) gave the jury a strong warning about Ms Turner's evidence and the necessity for the jury carefully to scrutinise her evidence; and

(f) provided a balanced summary of the State's case and the appellant's case, including defence counsel's suggestion that Ms Turner was carrying the drug for delivery to someone other than the appellant.

76 Ninthly, the jury would have thought that the trial judge, by his interruptions, was critical of defence counsel's technical ability, but would not have thought that defence counsel's deficiencies were indicative of any specific or general weakness in the appellant's case. Further, there was no real risk that the jury might infer from his Honour's interruptions an opinion about the merits of the appellant's defence.

78 I would refuse leave to appeal on ground 1. The appeal should be dismissed.

79 MURPHY JA: I have had the advantage of reading the reasons of Buss JA in draft. Having listened to the audio record of Ms Turner's cross-examination and having considered the transcript of the trial record, I am also of the opinion that the trial judge's interruptions during defence counsel's cross-examination did not prevent the appellant from advancing his defence and did not result in an unfair trial or a miscarriage of justice. I am in general agreement with the reasons of Buss JA and with the orders he proposes.

80 MAZZA JA: This appeal must be dismissed. I have read Buss JA's reasons in draft. I have listened to a recording of defence counsel's cross-examination of Ms Turner. I agree with Buss JA's analysis of it and his reasons for dismissing the appeal.