You will have noticed that in the summary of the evidence that I have given to you, the summary of the evidence of the accused about the events in question and the events preceding the events in question, that there were occasions where the accused in cross-examination was questioned on the basis that he was giving evidence that had not been put to Crown witnesses, notably Ms Muntz, by his barrister or he had given evidence inconsistent with facts that had been put by his counsel to Crown witnesses. In the outlines of argument I referred to the discrepancies that the Crown identified of that kind. The Crown has argued that when you look at those, effectively the accused's evidence was a dishonest work in progress. That argument involves the drawing of conclusions, dare I say it, inferences from the conduct of the accused's case by the accused's counsel on instructions from the accused.
To understand the argument I need to say something to you about a very ancient rule, it is known as the rule in Browne v. Dunn. It requires that the version of facts relied upon by a defendant in a case should be put by his counsel accurately to any prosecution witnesses who may be in a position to give evidence about the subject. The obligation is to do it accurately and in a sufficiently explicit form to enable the witness to provide a response while the witness is still in the witness box. Now there are obvious practical reasons for that, if you are going to be running trials you don't want to be having witnesses coming back and forth. The witness is there, you want to process the evidence in one go. The other aspect of it is that it is described as actually being fair to the witnesses concerned.
Sometimes counsel can go overboard and put matters in excruciating detail to witnesses and judgments can differ as to how much detail should be put. But in essence defence counsel is under an obligation to put the substance of the instructions received from the client, in this case the accused, as counsel understands them to those witnesses who may be in a position to give evidence relevant to those matters.
The argument for the Crown is that you are invited to infer that those matters of which the accused gave evidence and which were not put to relevant Crown witnesses were matters on which the accused did not in fact give instructions to Mr Lincoln, and had in fact been recently invented for the purpose of his evidence. In relation to the evidence he gave, which it is said contradicted the matters put to Crown witnesses, counsel for the prosecution has invited you to infer that he changed his evidence from the instructions he gave to his counsel, and again it was evidence invented by him for the purpose of this trial. Obviously these are significant attacks on the credibility of the accused.
Let me just remind you of the particular points that were referred to by counsel for the prosecution in her final address to you.
These are matters the Crown argues were not put and invite you to infer he had not given instructions: his evidence that he and Ms Muntz had agreed three nights before that he would move out, this was not put to Ms Muntz. The accused said that he told his counsel and it was not something he had made up. His evidence that he said in the presence of Muntz and McGuire, "I'll leave tonight", was not put by his counsel. He said counsel for the Crown would have to take that up with his counsel. He denied changing his story.
The matters put to him said to be inconsistent with what was put to Crown witnesses referred to in final submissions by counsel for the Crown were, firstly, that he did not say to Ms Muntz in the presence of Birute McGuire at the home, 'I suppose you want me to fucking leave, do you?', something his counsel had put to Birute McGuire or Ms Muntz, I forget which.
The other matter was his evidence that he put his work bag near the door into the laundry, whereas his counsel put to Ms Muntz that he placed the bag near the door. As to that in fact the accused said counsel got that wrong.
I think in relation to the other matter I just mentioned what the accused said in evidence was, 'I'll leave tonight.'
The argument is obviously open to the prosecution, and it is open to the prosecution to ask you to consider it, but you need to approach it with very great care and I will attempt to explain why.
You would need to be satisfied in each case that there had been a failure by counsel to put matters, or that there was inconsistency between the instructions given by the accused to his counsel and his later evidence before you could draw the inference that's suggested. The major difficulty in drawing any inference is that we weren't there when the instructions were given, and in most instances we don't have any direct evidence as to what the instructions were to the accused's counsel. Of course, we can't put [counsel] in the witness box. In addition, there can be a variety of explanations for these situations arising: there might be an error of judgment on the part of counsel on what needed to be put and what did not, about how much detail to put, it may be the original instruction lacked clarity which later emerged in the evidence of the accused, it may be that forensic pressures on counsel led to inexactitude in the framing of questions. It may have simply been overlooked, bearing in mind that counsel have to remember a lot of things in these cases.
An apparent inconsistency between the evidence given and matters apparently put on instructions may in some cases arise from the matters I have mentioned or may simply reflect a misunderstanding between counsel and the client. For these reasons you understand you need to be very cautious before placing reliance on these matters.
I think at the end of the day what needs to be said to you about handling this evidence is this: taking the situation where counsel for the prosecution has argued that you should draw the inference that counsel failed to put matters to Crown witnesses, because the accused did not give counsel instructions about them, such an inference adverse to the accused should not be drawn unless you are satisfied that there was a failure of counsel to put matters to Crown witnesses and that this arose because counsel did not have instructions from the accused about them, about those matters about which he later gave evidence.
Looking at the other situation where what you have is an argument that the accused changed his evidence, because he gave evidence different from that which was put by his counsel to Crown witnesses, you shouldn't draw any adverse inferences from those inconsistencies unless you were satisfied that he had given such instructions to his counsel in those terms, in which counsel put the matters to the Crown witnesses.
Finally on this, could I say if in your deliberations you find yourself in the position that any inferences attacking the credibility of the accused arising from these arguments of the prosecution are an essential part of any reasoning process that will justify a conviction, you cannot take such inferences into account unless satisfied beyond reasonable doubt that there was such a failure or an inconsistency. That follows, obviously, from the fact that you can't be satisfied beyond reasonable doubt of the guilt of anyone in that situation unless you are satisfied beyond reasonable doubt that there was such a failure in consistency in that link in the chain of your reasoning process. I hope that's reasonably clear.
I think the great fundamental rule to apply is, of course, you cannot be satisfied of guilt unless you are satisfied beyond reasonable doubt and everything flows from that, and if you just bear that in mind when you are considering all the evidence you can't go wrong.
Could I also say that what I've just said applies both to the alleged omissions by counsel and the alleged inconsistencies between evidence of the accused and counsel's puttage, as we call it, referred to by counsel for the prosecution in her final address, and if you are considering any other omissions and inconsistencies which you may consider arise between the cross-examination of Crown witnesses and the evidence of Mr Heaney.