R v Foley [1998] QCA 225

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 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[5]. 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"[6].

R v Robinson[7] is one of the exceptional cases where such directions are appropriate, but the need for caution in giving such directions is now well recognised. 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.

There are of course ways and means of avoiding the necessity of presenting such issues to juries at the end of the trial. Sometimes it is possible to have a witness or witnesses recalled for cross-examination. Sometimes it may follow from the conduct of the trial that it is not fairly open to counsel to make a particular suggestion in address. Sometimes the reason for the omission is itself explored at trial, and if it can be seen that the omission reflects only on counsel (or solicitor) and not the accused, then the only available comment would relate to the potential disadvantage to the witnesses or to the Crown's case from the omission, with an express statement that this was not the fault of the accused but rather of counsel.

It will however be necessary for additional directions to be given in some cases notwithstanding their difficulty. Without this safeguard some counsel might deliberately follow the undesirable practice of what is colloquially described as beating around the bush. The practice of failing to expose actual instructions of the case that is to be put cultivates dishonesty and is unworthy of counsel.

We propose to present a short summary of the respective cases for the Crown and the defence (which were very different) and examine the extent to which defence counsel failed to expose his client's case to relevant Crown witnesses. We shall then note the lengthy criticisms advanced by the Crown Prosecutor of the accused and of his case for alleged failures of this kind, and whether the directions of the learned trial Judge were adequate in the circumstances.

The incident in question occurred at Rosie's Nightclub on 25 June 1997. There was a dance floor and also a section where patrons watched the State of Origin football match. The Crown case is that late in the night while the complainant (Purvis) was with a friend (Anita) the appellant approached him from the dance floor waving his arms and struck him on the face and right side of the chin. Purvis put his arms up to protect his face. In the event he suffered multiple lacerations to his face, left arm and neck. He fell back onto the floor. Medical examination revealed lacerations to the chin (3cm long and 4mm deep), under the left eye (3cm long), the front of the neck (5.5cm long), the right side base of the neck (4cm long) and the left upper arm (11cm long and exposing the fat below). The wounds were consistent with being made by a sharp object such as broken glass. The complainant, Mr Purvis, did not see what caused his injuries, and in his initial statement to the police had assumed it was a knife, but by trial he assumed that it was a broken glass.

Another witness, Shannon Tynan, saw the assailant (the appellant) strike the complainant in the face with his fist and then strike him in the face, about the chin, with a glass. She described some hits as a "sort of slashing attack". She saw two closed fist punches and two strikes with the glass. Her evidence is unclear as to whether the appellant was already in possession of the glass or whether he picked one up. She saw two blows with the glass and described the event as happening "in a flurry".

Another witness observed, after the event, that the appellant also sustained an injury, namely a laceration to his forearm. The appellant told her that he did not know how he received it. There was further evidence that glass and debris were on the floor after the incident occurred.

Anita Purkiss gave evidence of a minor incident, apparently between her and the appellant, immediately before the assault, which led the complainant Purvis to speak to the appellant. Thereupon the appellant "went to hit" the complainant and she saw the latter putting his arm up to defend himself. However she did not see the relevant parts of the ensuing incident.

The appellant's account to the Court was that he was leaning against the bar and "the next thing I knew I was in a brawl". He did not at any stage slash the complainant with a glass or with anything. He could not account for the injury to his own arm but believed that someone must have used a knife on him. (He claimed to his doctor that he had been attacked with a knife and he suffered the injury when he put his arm out to defend himself.) He felt a sharp pain at the beginning of the incident, saw the complainant looking very angry and they began fighting. The fight ended when the appellant pushed the complainant who then fell face down. The suggestion is that he must have suffered his multiple lacerations by coming into contact with glass or sharp objects on the floor.

The essential contest is not difficult to see, and, if counsel had been in possession of such instructions it would not have been very difficult for him to put them to the respective Crown witnesses. Unfortunately, except at a very superficial level, he failed to do so.

At the very least the following essential components of the appellant's case (assuming that such a case existed when defence counsel was cross-examining) should have included the following:

2. That Purvis made a threatening gesture or action towards him that caused him to react;

3. That the appellant did not at any material time have or use a glass;

4. That Purvis inflicted a stabbing type injury to the appellant's arm early in the hostilities;

6. That Purvis fell face forward to the floor in a way that could account for his injuries being caused by glass on the floor.

Unfortunately such a case, despite lengthy cross-examination by defence counsel, was not exposed to the Crown witnesses. It was suggested at some stage that Purvis had approached the appellant and had struck him with a sharp object, but one searches in vain for the other propositions or for any coherent presentation of the case that was ultimately put, namely absence of glass as a weapon, and accidental injury from falling face forward to the floor. Indeed the sequence in which a window of opportunity opened so as to allow such a case to be made is interesting. Mr Purvis, who was called first, said that he fell on his back. No challenge was made to that statement. Shannon Tynan was then called, and also said that he fell on his back. Again there was no challenge. Considerably later, another Crown witness, Mr Hope said that Mr Purvis fell on his face. Then, when the accused elected to give evidence, he gave evidence that he had never used a glass or other weapon, that Mr Purvis had fallen on his face and that this explained his multiple lacerations.

One can therefore understand that the Crown Prosecutor was extremely concerned about the sequence of events, and his desire to make such use of the principle in Browne v Dunn as might be appropriate. However from that point on, the principle in Browne v Dunn was made to work overtime. As has been observed in another case[8] "the observance or non-observance of the rule should not become the focus of a trial". It can be inferred from the summing up that apart from an introductory reference explaining that the observation of different persons of a scene such as this might well be different and contain some inconsistencies, the balance of the Prosecutor's address was substantially devoted to discrepancies between what the appellant said in the witness box and the things that it should be inferred he must have told (or not told) his own counsel. It may be inferred from the summing up that the Crown Prosecutor relied in this context upon each of the following matters as supporting the view that the appellant must have told one thing to his lawyers and another thing to the Court. These included extensive details of somewhat peripheral issues of inconsistency between details stated by respective Crown witnesses and those stated by the appellant.

1. Absence of cross-examination of Anita Purkiss about the preliminaries that led to contact between the two men (e.g. the Crown Prosecutor, inter alia, asked "Did you hear your barrister say to Miss Purkiss `Listen, you are wrong. He never moved his arm at all'").

2. Absence of cross-examination of Mr Purvis about whether he used any weapon that could have caused the wound to the appellant's arm.

3. Absence of cross-examination about Purvis' alleged drunkenness.

4. Absence of cross-examination suggesting that the appellant never had a glass in his hand.

5. Absence of any cross-examination to suggest that Mr Purvis (who had been pushed backwards) fell onto his face.

6. Absence of cross-examination to support the theory that Mr Purvis' multiple injuries may have been caused by his falling onto glass on the floor.

7. Absence of cross-examination of Mr Mahoney (a bouncer) about details following the main incident, including anything to challenge Mahoney's evidence that the appellant had kicked him, and had started to twist his (Mahoney's) arm when he let him go.

8. Failure to cross-examine police officers as to how many stairs the appellant ran up in an effort to get away from them when he saw them subsequently to the incident.

In our view the Crown Prosecutor was fully entitled to complain about items 4, 5 and 6, and possibly also about item 1. However items 3, 7 and 8 would seem somewhat peripheral to the main story, and to resort to the principle of Browne v Dunn to such an extent was to overwork that principle. We appreciate however that it may be difficult to know where to stop in such matters. In R v Whittall CA 49 of 1983, 17 May 1983, unreported, Thomas J observed "it would be a mistake to suggest that a (counsel) may slavishly put the whole of his instructions on every conversation and event to every witness so that by the end of the evidence a particular conversation will have been dealt with four times. The rule is designed to secure fair play..".

The heavy emphasis upon the Browne v Dunn principle in this case was exacerbated by some further factors. One of these is that the Crown Prosecutor's submissions in item 2 above were inaccurate, because defence counsel had indeed put to Mr Purvis that he struck the appellant's arm with a sharp object, that the appellant then turned around and a fight ensued. The Crown Prosecutor was also in error in saying that Purvis had not been cross-examined about alleged drunkenness. It is also the case that at least some hints may be found of suggestions that Mr Purvis' injuries might have been caused by glass on the floor, although this was never explicitly suggested, other than to a medical witness who was asked whether it was possible that they may have been so caused. These inaccuracies in the Prosecutor's complaints based upon Browne v Dunn were not, it would seem, exposed to the jury either by the Crown Prosecutor in his address or by the learned trial Judge in his summing up. Indeed, the learned Judge's charge repeated a short summary of the Prosecutor's submissions:

"Now, a large part of Mr ... submissions to you really amounted to this: that one can see discrepancies between - this is what he said to you. One can see discrepancies between the evidence given by Mr Foley in the witness-box and the things that he must have told his own counsel, his own lawyer, because they are reflected in the cross-examination that went before. The reason he was saying all that to you is that he wants you to accept that Foley is an unreliable man who would say anything that seemed to serve his purposes at the moment. In other words, he would make up things to suit the prevailing winds."

His Honour then explained how counsel act entirely upon instructions and put things on that basis, but do not make up things themselves. His Honour continued:

"What Mr ... is saying to you is that there are so many gaps between the cross-examination of Mr Walsh and then the evidence of Mr Foley that you can detect that Foley has really told two different stories - that is, an account of things to his own lawyers over here which is reflected in cross-examination and then a somewhat different story here.

I think the various things that Mr ... relies on are these: the theory about the fall onto the glass was not put to people in cross-examination; the absence of a kick was not suggested at least to Mahoney; there was no cross-examination about Purvis's state of sobriety to allege he was drunk, especially to Anita; there was no cross-examination of the girl Tynan about his not having a glass in his hand - (you remember Tynan was the girl who said she saw a glass and that was not contradicted), no cross-examination of Purvis about any weapon that he might have been carrying to do the wounding and that there was no cross-examination of Anita Purkiss of her version of the attack by Foley - that is, they went up to the bar together, the raising the arm and so on.

Well, it is up to you, I suppose, what you make of all that. It seems to me there indeed were a number of discrepancies between the cross-examination and the eventual evidence that would make one really wonder what account was given to the legal advisers."

In cross-examination of the appellant the Crown Prosecutor repeatedly asked him whether he had told his solicitors certain facts, and for the most part the appellant claimed that he had done so. He said that he gave his solicitors only a brief account when he first met them a few weeks after the incident, and a detailed statement two weeks before the trial. He agreed that for the whole of the trial his counsel and solicitor would have known his story. It is noteworthy that his counsel and solicitor continued to act for him and remained silent about the truth or otherwise of those assertions. In some cases when such a situation arises, counsel admits the fault, and thereby takes the sting out of any suggestion that the case is one of recent invention. In the present case we cannot help observing that the Crown Prosecutor's repeated allegations of recent invention provided to defence counsel a rare opportunity to tender his client's self-serving statement in order to demolish the Crown Prosecutor's submissions, if the statement was indeed as the client had claimed. But no such application was made. A proper explanation to the jury of the significance of this factor would be difficult but by no means impossible. 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 present case was however one where the issue of recent invention might properly have been presented to the jury.

Even in the present case, the possibility still existed that the failure to take advantage of disproof of recent invention might simply have been a further instance of possible incompetence of defence counsel. Such a possibility would need to be expressly mentioned. In our view the summing up in the present case left the issues of Browne v Dunn and of recent invention in an inconclusive and unsatisfactory state. No reference was made to the appellant's evidence that he had given a full statement or to the prima facie surprising failure of defence counsel to produce that statement. In particular the summing up was defective in failing to mention the possibility of other explanations such as misunderstanding or error on the part of counsel; and no direction was given that before drawing an adverse inference against the accused the jury should be satisfied that there was no other reasonable explanation for the omission to cross-examine.

The fair trial of the appellant was further compromised by the asking by the Crown Prosecutor of a number of inappropriate questions. These included:

"If you are correct then Miss Purkiss can't be correct can she?"

"So either he (your barrister) is incompetent or you're telling a lie?"

"Well the doctor says that. So is the doctor telling the truth?".

There were also some comments interspersed with lengthy questions such as:

"That's why its very hard to accept your story...".

The resort by counsel to questions which invite a witness to answer by reference to comment on the truthfulness of other witnesses is to be deprecated. On a level of professional practice, it is regarded as "not a proper question"[9]. The error however goes beyond one of professional practice; such questions are actually inadmissible.[10] The literal object of such a question is to obtain an opinion whether someone else is a liar, and that of course if not an issue in the case or a matter for any other witness to express an opinion, it is a matter for the Judge or jury. It is also unfair, because it forces the honest witness into a recrimination and seeks to rely upon the natural reluctance of a person to defame another. It is also a form of bullying, using unfair means to persuade a person to retract his or her evidence. Such questions are inadmissible and we agree with Professor Harrison's view that they are improper. Regrettably the practice of asking such questions is by no means uncommon. It should cease.

There must of course be a certain degree of tolerance of loose practices in cross-examination, and such errors commonly occur without impairing overall the receipt of a fair trial by an accused person. However in the present case it seems to us that there was a combination of errors in the conduct of the trial, culminating in the unsatisfactory treatment of the Browne v Dunn factor. A considerable part of the learned Prosecutor's address to the jury related to the difference between the appellant's evidence and his apparent instructions. It can be seen that the learned trial Judge omitted to mention the warnings referred to in Birks and in Manunta[11] so that the possibility of error on the part of counsel might fully be considered by the jury. Further, the uncontradicted assertion by the appellant that he had given such a statement to his solicitors two weeks before trial was an important factor and deserved mention. It may be noted that the conduct of defence counsel played a significant role is producing some of the features which render the trial unsatisfactory. His cross-examination was of the very kind that is prone to open the way to helpful perjury, and the combination of his conduct and that of the appellant unfairly disadvantaged the prosecution and provoked the ensuing over-reaction. In the present case it is the combination of all of the above difficulties followed by a summing up that failed to counterbalance them that makes the result unsafe. It is impossible to say that these factors did not unfairly influence the jury on the all-important matter of credit of the appellant. It is not a case where the proviso can be applied.

The conviction should be set aside. A question has been raised as to whether a re-trial is appropriate. In ordinary circumstances this would be ordered, as the evidence is sufficient to sustain a safe conviction. However there are other unusual circumstances that suggest that this should not now happen. The circumstances include that there was an earlier aborted trial, and the fact that the appellant is only a temporary visitor to this country and was significantly inconvenienced by having to be available for the trial. He has no visa and was kept here at taxpayer's expense awaiting his trial, and would similarly be kept here if further proceedings occur. Also he has already served four months of his sentence which is a significant part of the sentence he would serve even if he were to be convicted. We were initially of the view that it should be left to the Director of Public Prosecutions to decide whether to prosecute further, but on reflection think that the Court should identify this as a case where a further retrial would be unduly oppressive. Accordingly it is directed that there be no retrial.

[2] Cf. Allied Pastoral Holdings Pty Ltd v Commissioner of Taxation (1983) 1 NSWLR 1, 16, 17, 21, 23 and 26; R v Birks (1990) 19 NSWLR 677, 686, 688, 689, 691.

[5] Cf. R v McNamara CCA(NSW) 15 December 1995, unreported.

[7] [1977] Qd R 387, 394.

[9] Harrison's Legal Profession in Queensland, 2nd Ed, p.83.

[10] North Australian Territory Company v. Goldsborough Mort & Company [1893] 2 Ch D 381, 383 per Lord Esher MR.

[11] R v Manunta [1989] SASC 1628; (1990) 54 SASR 17, 23.