R v Johnson, Sonnet & Paisley [2001] VSCA 242

Court of Appeal (Vic)|2001-12-20|Before: PHILLIPS, C.J., CHARLES and CHERNOV, JJ.A.

CRIMINAL LAW - Appeals Against conviction - Miscarriage of discretion in trial judge refusing application for jury's discharge - Discretion miscarried in circumstances of the judge being placed under extreme and unacceptable strain - Appeals allowed - s.399.3 Crimes Act 1958 considered.

2 They subsequently lodged notices of application for leave to appeal against their convictions and sentence. After proceedings before the learned Registrar, the grounds pleaded by them touching conviction came to be as follows:

Johnson

"(a) The convictions are unsafe and unsatisfactory.

(b) The Learned Trial Judge erred in the exercise of his discretion in failing to discharge the jury and the failure resulted in a trial whose course constituted a miscarriage of justice.

(c) The Learned Trial Judge did not direct the jury sufficiently in relation to comments made by the alleged victim during the course of the Trial that the defendant and his co-accused would not give evidence."

Sonnet

"1. The learned trial judge erred in the exercise of his discretion in failing to discharge the jury.

2. The failure of the learned trial judge to discharge the jury resulted in a trial whose course constituted a miscarriage of justice.
3. The learned trial judge erred in failing to direct the jury in accord with Domican v. R.[1] concerning the evidence of the witness Clifford Alan King.
4. The learned trial judge erred in failing to direct the jury that in order to rely on the evidence of the witness, Clifford Alan King as being corroborative of the evidence of Gregory John Brazel they would have to be satisfied of King's evidence beyond a reasonable doubt."

Paisley

"1. The Learned Trial Judge erred in failing throughout the course of the evidence of the witness Brazel to constrain or curtail the witness from making uninvited statements calculated to prejudice the fair trial of the Applicant (and his co-accused) and in so failing deprived the Applicant of a fair trial.

2. The Learned Trial Judge erred in failing to exercise his discretion to discharge the jury due to the prejudicial nature of the evidence of the witness Brazel, in particular those parts of his evidence in which he asserted and implied:

(a) that the Applicant (and his co-accused) would not give evidence in the trial and that such election by them would be demonstrative of guilt of the offences;

(b) that the Applicant (and his co-accused) were of bad character and required special management as high security prisoners;

(c) that the cross-examination was directed to attacking the bad character and credit of the witness because the Applicant (and his co-accused) had no defence to the charges.

3. The Learned Trial Judge erred in failing to exercise his discretion to discharge the jury following his order to exclude the co-accused Johnson and Sonnet from the trial in the presence of the jury and the comments and actions resulting therefrom
4. The Learned Trial Judge erred in failing to discharge the jury following the propelling of an article into the jury box.
5. The conviction of the Applicant was unsafe and unsatisfactory in all the circumstances."

3 It is unnecessary to recite grounds of the applicants touching sentence.

4 There had been earlier proceedings involving the applicants and Lindrea. They appeared, represented by counsel, before the learned trial judge on 31 July 2000. Brazel was not then a witness on the presentment before the court and it appeared that he had not, as at that time, made a statement to the police. The Crown Prosecutor told the judge that, "as presently advised" the Crown did not propose to call Brazel. Defence counsel, sometimes in rather peremptory terms, sought that the Crown call him. After a short adjournment the Crown Prosecutor informed his Honour that Brazel had indicated that he would make a statement and an adjournment was granted. The parties reassembled on 4 September 2000, the applicants, Wenitong and Lindrea were arraigned and the jury was empanelled. Brazel was called by the Crown and his evidence-in-chief was given to the jury without incident.

5 In the course of his cross-examination by counsel then acting for Johnson, (not being one of the counsel heard on these applications) Brazel accepted that he was "a career criminal". He added, "I have broken many laws, ladies and gentlemen of the jury. I have broken every law in the book. I make no apologies."

6 He admitted that he had killed, but not more than twice. At one point, and non-responsively, he said to counsel, "he committed a few murders, your client". He later said that he thought counsel was appearing for Lindrea. On another occasion, questioned about his alleged homosexuality (and again non-responsively), he said to counsel, "Mr Paisley has made an accusation that Matty Johnson raped him. So, where's the homosexuality?" He added, "your client has been under investigation for raping Mr Paisley, so who's the poof?"

7 With his cross-examination uncompleted by counsel for Johnson, the jury was discharged upon the application of counsel for Lindrea. That application was not opposed by the Crown Prosecutor. I have noted that early in the cross-examination his Honour asked counsel, "to be polite to the witness as you would be polite to me". Counsel acknowledged that he would. Later, the judge told counsel to just get on with his questions. On another occasion when Brazel was being questioned about details concerning a murder, the commission of which he admitted, the learned judge remarked, "there is no point hammering him to death over every little detail about the matter, is there?" He then intervened when counsel and Brazel were speaking at the same time. This was when Brazel said, "he committed a few murders, your client". The judge then told Brazel, "just answer the questions..." and told counsel, "just control yourself too". Shortly after this, Brazel having complained that counsel was trying to "wind him up", the judge told counsel "you are winding me up too". Later still, his Honour asked counsel to be more specific with a question whereupon Brazel repeatedly called counsel a liar and said that the jury knew that this was so.

8 I recount these events as part of the background to the applicants' trial.

9 It is now necessary to set out the events of that trial and to recount, in summary form, the evidence given at it. In this exercise, I have had recourse to the Summaries of Proceedings and Evidence supplied to this Court, the contents of which have not been disputed.

10 In October 1998 Brazel was an inmate of Barwon Prison.

11 The substance of Brazel's evidence to the jury was that on the afternoon of 1 October 1998 the complainant was alone in Exercise Yard 4 of the Acacia Unit of Barwon Prison. He had been allocated the yard alone as he was under investigation. In normal circumstances the only persons who would have had access to him at that time were prison officers. At some point after 2 p.m. a group of prisoners broke through "a high security armoured glass type window, approximately 6 foot by 3 foot". This was a window of the day room. They used a rowing machine, a metal chair and their feet to kick out a horizontal section of the window, and used their hands to manipulate the glass until it weakened. This took them 45 minutes, in which time Brazel did nothing. He had no discussion at this time with the attackers. He did not seek prison officer assistance in this period because it would have appeared cowardly, and would have contravened the prison code.

12 The prisoners referred to were the applicants and their two co-accused, Stephen Wenitong and John Lindrea. (Wenitong had been given Notice of Trial by the Director of Public Prosecutions on 11 August 2000.) They were all known to Brazel as fellow prisoners. The scene was well lit with both natural and fluorescent lighting. Brazel identified the accused men in the dock.

13 The first implement used, he said, was the rowing machine, and this was wielded by Johnson, Wenitong and Sonnet, with Paisley having "some involvement in that at some stage". Johnson "kicked the glass over about a 45 minute period". Lindrea used the chair with another prisoner. In cross-examination Brazel stated that his only evidence against Lindrea was that he was present at the window at one stage. The assault on the window was not constant, but rather there were breaks. They used the rowing machine for 15 minutes before stopping, apparently to confer.

14 Ultimately the accused gained access to Exercise Yard 4. Sonnet was the first prisoner to enter the yard , followed by Johnson, and Brazel believed, Wenitong. Brazel could not recall Paisley or Lindrea entering the yard, but was aware of them once they were there. They all entered through the broken window.

15 Once in the yard the accused assaulted him with a number of different implements. His initial attackers were Johnson and Sonnet.

16 Johnson hit him "on two different occasions to the head with a sandwich maker." The force of these blows was "sufficient to cause cuts, approximately two inches to the back of the head, and one to the front, approximately an inch and a half." Johnson was also responsible for a number of blows and kicks while Brazel was on the ground. Brazel threw one punch "in defensive mode", making contact with Johnson's midriff.

17 Sonnet had injured himself as he came through the window. His injury was a graze, and he was not bleeding. Brazel said "He hit me with an iron bar which I believe was a vacuum cleaner extension, he threw a number of punches and kicked me a number of times when I was on the ground." He was not sure who was responsible for his different injuries.

18 Brazel said he was only aware of Lindrea punching him once to the face. This was when he was "staggering". He believed Lindrea took no further part in the assault.

19 Wenitong's role was to obtain a bicycle seat from the exercise area of the yard and hit him with that once. He also "threw a couple of punches". Johnson then ordered Wenitong to go to the door to prevent prison officers from entering the area, and Wenitong disappeared back through the window out of the complainant's sight.

20 Brazel stated that Paisley "threw a couple of punches and kicked me on a number of occasions whilst I was on the ground. He also picked up the bicycle seat that Stephen Wenitong had taken from the bicycle and hit me with that several times." He struck Brazel to the back of head and back shoulder area.

21 The assault lasted several minutes, and at a certain point Brazel started to lose consciousness. He was on the ground for two to three minutes, and in that period he was kicked to the head and upper body.

22 Immediately prior to the assault Johnson and Sonnet told Brazel that he was to be attacked because they believed he had given information to the prison authorities.

23 Apart from the defensive punch to Johnson, the complainant did nothing else to any of his attackers, either before or during the assault. He said "I was outnumbered five to one, I was trying to defend myself against a barrage of blows." He was not armed.

24 He described the injuries he suffered in the assault. He received 6 or 7 fractures to his face, with both cheek bones and his nose broken. He suffered a fracture that damaged nerves in the eye region, and has resulted in permanent double vision. He suffered a surgical emphysema. He has subsequently undergone surgery to correct the double vision and a deviated septum. He had been diagnosed with deep depression and post-traumatic stress. He suffers from severe headaches and now takes eight Panadeine Forte tablets a day

25 He also gave evidence about his medical treatment immediately after the assault, and described the contents of the book of photographs, Exhibit A. He was bleeding profusely from various injuries to his face and head, and it was his blood in the various photographs.

26 After the assault he went back to his cell and showered. He could not recall going to the sink in the exercise area.

27 Brazel was cross-examined at length. I shall return later to much of the detail of the matters canvassed with him.

28 Johnson's instructions were put to Brazel. In this exercise it was conceded that Johnson had struck Brazel once only with vacuum cleaner extension. It was put that he did so in self-defence. It was said that Brazel had broken the window, and Johnson had then entered the yard at the complainant's invitation, and that the others had joined him later after he was attacked by Brazel. Brazel rejected these assertions.

29 Sonnet's instructions were put to Brazel. It was put he was not involved in breaking the window, he was not the first through the window, and that he had not assaulted Brazel in any way. Brazel rejected these assertions.

30 Brazel did say that in his view Paisley had acted under duress. Paisley's instructions were put to him. It was put that he had been in the yard, but had not taken part in the assault. Brazel rejected these assertions.

31 Clifford King, a prison officer, also gave evidence for the prosecution. He said that on 1 October 1998 he was performing functions in the Acacia Unit of Barwon Prison. He first became aware of an assault upon Brazel at about 2.45 to 2.50 p.m. He was in the officer's post at that time, sitting at a desk which had a view out a window into Exercise Yard 4. Brazel had been placed in the yard at 12 o'clock. King heard a single loud bang. Prior to the incident Brazel was alone in the yard, and in normal circumstances only prison guards would have had access to the complainant there. King stated: "I looked up and looked out into the yard, and at the time, for a split second, saw a group of prisoners and at the time it didn't register that there should've only been one there in the yard, and when I second looked I could see that prisoner Brazel was slumped on the ground and that there were five other prisoners standing in the yard around him."

32 King said he had first looked up some 10 or 15 seconds after he heard the loud bang. The five men, all dressed in "prison" red, were the accused men Johnson, Sonnet, Lindrea, Paisley and Wenitong, all of whom were familiar to King. The yard was quite bright with natural light, and King observed the men for "maybe two or three seconds." King's station was approximately 20 to 25 metres away from the prisoners. Earlier that day King had seen the prisoners and Brazel apparently talking through the window.

33 When King later saw Brazel he was on his backside on the ground, leaning against the wall. King said he saw Johnson "swing a black and white object and strike Mr Brazel in or about the head or the upper body three times." In his statement King had described this simply as a white object, and numbered the blows at "about three". He now knew, and determined on the day of the assault, that the object used was the seat [with post] of an exercise bike. At the same time he saw Sonnet "kicking at" Brazel. He did not know if Sonnet's foot made contact with him. Sonnet was one of 3 prisoners in the group with dark hair, and possibly, with a similar build. King agreed his opportunity to observe him was very brief, and he only observed him from behind. He was not 100% certain that the man kicking Brazel was Sonnet. In re-examination King explained that he had identified Sonnet by his build. He stated "He's a rather stocky fellow, dark hair, broad shoulders, and out of the ... group of prisoners that were in the yard, he's the only one with that type of build." Lindrea, Paisley and Wenitong, were all standing around watching, and King said he did not see them attack Brazel in any way. King was unable to recall anything specific confirming Lindrea's presence in the yard. At the committal King had conceded he could have been wrong in his belief that Wenitong was present.

34 After viewing this King said he alerted the other staff "working in the unit at that time", and then took steps to provide access to the unit for responding staff. To do this he left his vantage point in the officer's post. With other officers he then entered the prisoner's unit - Unit 2. He found them milling around in the Unit 2 day room. They appeared to be agitated. He said "A couple were flushed, red faced, and their demeanour just appeared to be not normal." King noted that Sonnet had a scratch or graze on the back of his leg. The prisoners, including the five accused men and a sixth prisoner Synan, were instructed to return to their individual cells, and they complied. In the unit King observed the apparent means by which the 5 prisoners had gained access to the Exercise Yard 4, a broken window between Unit 2 and Yard 4. He could not say whether the "loud bang" he had heard had been the breaking of this window. He had not heard any pounding on the window, or any glass shattering. King then went to render first aid to Brazel in the exercise yard. This was about 90 to 120 seconds after he had heard the loud bang.

35 When he entered the exercise yard King said he found Brazel alone, on his feet and walking to the hand basin. He was bleeding profusely from about the head and "he was groggy on his feet." He proceeded to the basin and attempted to wash the blood off his face and the back of his head. In the yard King observed a damaged bike seat, an extension tube from a vacuum cleaner and a sandwich maker. When he approached the complainant, Brazel said words to the effect "Fuck your first aid", the expletive being a normal gaol term.

36 Later "management" attended the unit and King was instructed to conduct strip searches of the prisoners, for the purpose of removing their clothes. King strip searched and removed clothing from Sonnet, Wenitong and Paisley. He visually scanned their bodies and the clothing left on their floors was placed in paper bags. Sonnet's clothing was all placed in one bag. Those bags were sealed and handed to police. King recalled that Paisley had a graze on one of his forearms, as depicted in a photograph, Exhibit C.

37 It was, King declared, standard practice that whenever a prisoner is taken to and from the yard, "all equipment, and windows, doors, locks, bolts, hinges" are inspected. The yard is also inspected for contraband, damage, graffiti and similar at the end of the day when the last prisoner is removed. Earlier damage to items such as the exercise bike would have been detected. The yard itself is not subject to video monitoring. The area of the broken window between Yard 4 and Unit 2 was not always visible in the surveillance system.

38 On 1 October 1998, Jane Ellen Creece, another prison officer, was also assigned to the Acacia unit of Barwon Prison. She said she did not see any part of the assault upon the complainant. She did not hear any "loud bang". When alerted by King she went to the window and looked into Yard 4. She saw the arms and legs of unidentified prisoners leaving the yard through the broken window. She had noted before that day that the window had a crack "just about in the middle."

39 Creece entered Unit 2 as part of the response, and was involved in locking away the prisoners there. She noted blood on Sonnet's leg. She also noted that all of the prisoners except one Synan, were puffing. Some of them may not have been puffing. Prisoners generally spend a lot of time exercising. Thirty seconds after the 3 initial responding officers entered the unit, they were joined by 20 to 30 response officers, some with batons.

40 Creece gave evidence about aggressive, threatening behaviour by Brazel on occasions prior to the date of this incident.

41 On the afternoon of 1 October 1998 David George Langsford, a prison officer, was also performing duties in the Acacia unit of Barwon Prison. Giving evidence for the Crown, he said he did not observe any part of the assault, but observed Brazel bloodied after the event. He also entered the day room as part of the response group. He found the prisoners Johnson, Sonnet, Lindrea, Paisley and Wenitong pumped up, "just like...they'd been exercising or something like that."

42 Langsford gave evidence of abusive and threatening behaviour by Brazel on occasions prior to the date of this incident.

43 On 1 October 1998 Kevin Collister, a further Crown witness, and a member of the Security and Emergency Services Group at Barwon Prison, was called up in the response to the incident of that day. He was involved in obtaining from Johnson blood stained clothing which he "bagged and tagged". These items were subsequently handed to police. The bloodstains were on his long john underwear. Johnson was strip searched and Collister did not observe any injuries to his body.

44 By agreement, the statement of a Dr. Trevor Jackson was read into evidence. At the time of making his statement he was a staff specialist in emergency medicine at Barwon Health at Geelong Hospital. Dr. Jackson examined Brazel at 5.40 p.m. on 1 October 1998. Brazel initially refused assessment or treatment, and stated he had no recall of the incident. He complained of headache, facial pain and some difficulty swallowing. He was alert and fully conscious. Examination of his head and neck showed bilateral periorbital oedema and bruising, and two 2 centimetre lacerations on the forehead. The right eye was visible and had a normally reactive pupil, "but the left eye could not be visualised". Both cheeks and his nose were swollen. Further examination revealed a six centimetre by 3 centimetre bruise over the upper left chest anteriorly. He had a tachycardia of 140 beats per minute. His neurological, respiratory and cardiac systems were otherwise normal. X-rays and CT scans revealed fractures to the front sinus, left and right maxilla, the peritoid plate and nose. There was evidence of pneumo media stinum, but no pneumo thorax [punctured lung] detected. In conclusion, Dr. Jackson described the complainant as having suffered "Significant injuries including multiple facial fractures, minor closed head injury and pneumo media stinum following blunt trauma."

45 Dr. Mark Page of St. Vincent's Hospital also gave evidence for the prosecution. He explained medical references in the statement of Dr. Jackson, and described the results of his examination of the complainant on 2 October 1998. Dr. Page noted a 3-4 centimetre laceration on the lateral posterior aspect of his left scalp, and surgical emphysema - air leakage under the skin - over his neck and anterior chest. They related this to his multiple sinus fractures.

46 Admissions were made by defence counsel in respect of the formal elements of the offence at count 1, in respect of ownership of the property, and the lack of permission to cause damage. It was also admitted on behalf of all accused that the "exhibits examined at the Forensic Science Laboratory came from their named source as per the Forensic Science report."

47 Dr. Henry Roberts, a forensic scientist attached to the Forensic Science Laboratory at McLeod, was also called for the prosecution. He set up the DNA profiling service at that organisation. Dr. Roberts said he received items from the complainant (Item 1A) and various items taken from Paisley (Item 4 - shoes), Johnson (Item 5 - long john underpants) and Sonnet (Item 6 - red t-shirt). These items were all stained with what appeared to be blood. Dr. Roberts also received blood samples from each of these persons. He ran DNA profiles on those blood samples, and the stains from the various items.

48 Interpreting those profiles, in respect of each of Items 4, 5 & 6, the witness said Brazel could not be excluded as the source of biological material on those items.

49 Dr. Roberts also examined an exercise bike seat and a vacuum cleaner "hose", and found "These samples also matched the Brazel G. blood sample." Dr. Roberts understood no blood had been found on the sandwich maker.

50 The DNA on the various samples matched that of Brazel. The probability of such a match with any other male chosen at random from the Victorian population was 1 in 300 billion.

51 Item 6 was in fact comprised of a t-shirt and a full set of clothing, including shoes and two towels. Blood was found on the towels, but that was not subjected to DNA analysis.

52 The next prosecution witness was Peter Stanley Menzies, a technical officer at Barwon Prison. He said in October 1998 he was responsible for maintenance work and testing the security of the prison. He was called in on 1 October 1998 to remove a security breached window in one of the day rooms and to place a barrier across the opening. That breached window had been cracked for about a month. He found the window out of its frame, as shown in Exhibit A, photographs 13 & 14. The nature of the crack prior to this date was such that he did not consider the security barrier had been breached. He observed the original tests of that window in the commissioning of the prison. His opinion was that a single man, bare handed, would not have been able to pull the window into the area it had been found in. He was involved in removing the broken glass after the incident, and could not have removed it without gloves. The witness Menzies had last examined this window 7 days prior to 1 October 1998. The glass in the Acacia unit is 10 millimetres thick. It is in fact an 8 millimetre thick plastic sheet with a two one millimetre thick glass faces. The glass does not contribute to the strength, but facilitates maintenance. It was this cosmetic glass surface that had originally been cracked. The witness said he had no technical expertise in respect of the characteristics of glass.

53 The final prosecution witness was Detective Senior Constable Gerard Hockey. He said he attended Barwon Prison on the day of the incident and sought to obtain a statement from Brazel. Thereafter he repeated his request on at least one further occasion. Brazel refused to make a statement until August 2000. He agreed to do this after he had been shown a transcript of the committal proceedings. Hockey gave evidence about the various items collected for examination and analysis at the Forensic Science Laboratory. Hockey examined the exercise bike seat. He did not observe any glass embedded in it.

54 No evidence was called on behalf of any of the accused men.

55 Paisley was unrepresented at the time of Counsel's addresses, and addressed the jury himself, stating, "I'm not denying being in the yard, I'm only denying I took part in the assault."

56 The latter part of the trial was punctuated by numerous disturbances from the dock. The applicants were excluded from the courtroom. They were voluntarily joined by Lindrea and Wenitong. As this Court has been told prosecution of the applicants for contempt of court is in contemplation, I will say little more as to this.

57 In the course of the trial there were some 13 separate applications for discharge of the jury. The asserted bases for the applications were unresponsive and prejudicial answers of the complainant in cross-examination, the prejudicial effect of misbehaviour by co-accused, an apprehension of bias on part of the learned trial judge, and the prejudice arising from the exclusion of the accused and discharge of a single juror.

58 I now turn to the arguments of counsel on these applications. The primary task of their advancement fell on counsel for Sonnet. His submissions were supported by counsel for the other applicants as to Johnson's grounds (b) and (c) and Paisley's grounds 1 to 4 inclusive. Ground (a) of Johnson and ground 5 of Paisley (which alleged unsafe and unsatisfactory convictions) were not argued and must be taken to have been abandoned. Addressing grounds 1 and 2 of his client, counsel for Sonnet submitted that the two grounds effectively covered the same complaint, which could be summarised as the failure of the judge to discharge the jury after a particular event in the trial or a cumulation of such events. His Honour, so the argument went, was faced with the difficulty of trying to control Brazel. His efforts, and those of the Crown Prosecutor, were insufficient to curtail Brazel's unresponsive, irrelevant and very prejudicial answers. Accordingly, the trial miscarried. It was said that the transcript revealed Brazel as an articulate and intelligent person with considerable understanding of legal proceedings. The jury should have been discharged upon one of the applications supported by all counsel for, when being cross-examined, Brazel repeatedly asserted that the accused had no defence and would not go into the witness box. Further, it was submitted that Brazel referred under cross-examination to a number of extraneous matters which effectively attacked the character of the accused persons. Counsel took the Court to the detail of Brazel's cross-examination to support these submissions and it is sufficient to say that the particular matters relied upon by counsel will become evident later in this judgment. Emphasis was laid on the assertion that a considerable amount of cross-examination had taken place, which involved the impugned answers, before his Honour personally gave a firm and comprehensive direction to Brazel. So, too, it was contended, at no time before this direction to Brazel had the judge given the jury any directions about these answers.

59 Turning to Sonnet's ground 3, counsel reminded the Court that in the course of his evidence, the witness King purported to identify Sonnet as kicking Brazel at or around the time when Johnson was striking him. This evidence having been given, it was contended that the learned judge should have directed the jury in accordance with Domican v. R. and that his Honour failed to do so.

"Perhaps I will say to you at this point, and this applies not only to the evidence of Brazel to some extent but much to the evidence of Prison Officer King; as you have got some inkling already from Mr Thompson's address, the history of the law reveals that the evidence of identification of accused persons by witnesses or what a particular person might have done on a particular occasion when it is given in evidence for the Crown should be treated with substantial caution. Such evidence is frequently given with confidence by respectable and honest witnesses who are nevertheless later found to have been wholly mistaken. Because they are respectable, honest and confident courts are inclined to accept their evidence forgetting that human observation and recollection are infinitely fallible and that the statement that 'I saw this man do this' can never be really more than an expression of opinion at rock bottom that, 'I believe I saw this man do that'. Remembering this, I warn you that however confident such a witness may appear you should scrutinise the evidence most carefully before basing a conviction of any person upon it. Of course sometimes such evidence is entirely correct and reliable but the difficulty is to say when it is reliable and when it may be simply an invitation to injustice.

There are a number of rules of common sense to be followed. First, there is the witness identifying someone well known to him or her. Although even then mistakes can occur if the witness knows the person well, he is less likely, one supposes, to be mistaken and you should consider the following sorts of matters: what opportunity for accurate observation existed; what time existed to make the observation; what aspect of the person identified was presented to the witness; was it side or back or front or face on view, and so on; at what distance was the observation made? Whether there were intervening and perhaps distracting movements of people and the like? Were there any other peculiar factors that might affect the situation? Were there any apparent peculiarities of the person identified which might have assisted identifying the person who did a particular thing? Was the witness under a state of stress at the time? What were the circumstances of the attention that was being paid to the event said to be witnessed? Did the person have any reason to remember the event? The fallibility of human observation and recollection can be infinite...

In the case of Mr King at his observation post, what was he doing at the time? How did he react to a situation that might have surprised him? Could he make accurate estimates of the time it took him to do this and that; call out and move across the room to get his colleague, come back? All these things are factors. So in assessing evidence of that character you should be pretty careful in the way that I have described."

61 Invited to say in what way the above directions were deficient, counsel replied that they were no more than "general propositions", delivered without the authority of the judge's office.

"It (the Crown) points to the evidence of King, the prison officer. Part of that argument, as I understand it, is that King said - and I am summarising - 'I looked a second time and saw Brazel was slumped on the ground and that there were five other persons standing in the yard around him. There were five others standing in the yard. They were dressed in red. Brazel was slumped and sitting on his haunches' and he described it.

That piece of evidence about five is on the Crown case directed at being some evidence corroborative of Count 2 against Lindrea and perhaps also against Wenitong. The cases put for those two persons are that they did not enter the yard, but you have that witness King, who you may regard as an independent witness, putting five people in that yard, five other than Brazel. Again in his evidence later he said, 'When I heard the bang I looked out the window. I initially saw Johnson swing a white object, strike Brazel about the head or upper body three times. It was the seat of the exercise bike as I now know. At the time I thought I saw Sonnet kick or try to kick Brazel while he was slumped on the ground once. I don't know if it connected. They were 20-25 metres from me."

63 Invited to say in what way the above account was deficient in terms of Domican, counsel said the jury's attention should have been specifically drawn to King's evidence that he made his observations from a distance of about 60 feet; that the events were unexpected and of short duration; that all the prisoners in the yard were wearing prison issue red clothing; that his vision was focussed primarily on a white object; that three of the persons in the yard had dark hair - several appearing to be about the same height and perhaps of similar build and that his purported observation of Sonnet was of very short duration and was a back view. Further, said counsel, the judge should have mentioned that King had conceded that he could not be 100 percent accurate that it was the leg of Sonnet he saw moving endeavouring to kick Brazel and the witness had also expressed doubt about the correctness of his purported observation of the accused Wenitong. Additionally, it was said that the two other prison officers, Moore and Creece, who were looking into the yard at the time of the altercation did not make observations consistent with that of King.

64 To return to the charge, counsel for Johnson took an exception to what he called the "identification direction", saying that it did not sufficiently satisfy Domican. The learned judge said that he thought there was no dispute about identity in the trial, rather there was dispute "about who did what". His Honour appeared disinclined to redirect. Counsel for Wenitong also sought a redirection on identification issues and in this was supported by the Crown Prosecutor. His Honour agreed to redirect and did so. At this time, no counsel was appearing for Sonnet. Sonnet's defence, in so far as it can be gleaned from the transcript of evidence and the judge's charge, appears to involve a suggestion that Brazel broke the glass window and a concession that Sonnet went into the yard together with a denial of involvement in any attack on Brazel. Relevant cross-examination of Brazel by counsel for Sonnet reads:

Counsel: "Mr Brazel, I suggest that Mr Sonnet wasn't the first through that window?

Brazel: (Inaudible response.)

Counsel: I suggest that he had no weapon?

Brazel: He did.

Counsel: And I suggest that he did not assault you in any way when he was in that exercise yard?

Brazel: Well, he must've been out there for the fresh air.

Counsel: And was not involved in the breaking of that window?

Brazel: That's incorrect.

Counsel: What I suggest, in effect, Mr Brazel, is that Mr Sonnet went into the yard at a later stage after Mr Johnson?

Brazel: Yes.

Counsel: And he was not involved in any assault on your person?

Brazel: Well, why would he go out in the yard then?"

65 King gave evidence, which was undisputed, that as at 1 October 1998, he had dealt with the five accused "over a period of time".

66 It may be said that the essence of Domican lies in the following paragraph:

"Whatever the defence and however the case is conducted, where evidence as to identification represents any significant part of the proof of guilt of an offence, the judge must warn the jury as to the dangers of convicting on such evidence where its reliability is disputed. The terms of the warning need not follow any particular formula. But it must be cogent and effective. It must be appropriate to the circumstances of the case. Consequently, the jury must be instructed 'as to the factors which may affect the consideration of [the identification] evidence in the circumstances of the particular case.' A warning in general terms is insufficient. The attention of the jury 'should be drawn to any weaknesses in the identification evidence.' Reference to counsel's arguments is insufficient. The jury must have the benefit of a direction which has the authority of the judge's office behind it. It follows that the trial judge should isolate and identify for the benefit of the jury any matter of significance which may reasonably be regarded as undermining the reliability of the identification evidence."[2]

67 For the respondent as to this ground, it was submitted that the case of the applicants was not an "identification" case - rather, it was a "recognition" case.

68 As the presence of Sonnet in the yard appears to have been conceded, the issue raised by King's evidence was, to adopt the language of the learned judge, "who did what". Accordingly, as a matter of fairness, it was appropriate for the judge to point out to the jury that they should take into account considerations of the distance of observations, the limited time available to the observer, commonality of dress and appearance among some of the actors, the presence of any distracting factor and any concessions made by King. In my opinion, his Honour sufficiently did this. This ground fails.

69 In addressing ground 4 of Sonnet, counsel for that applicant at once drew back from any suggestion that it was an established principle that corroborative evidence had to be established beyond reasonable doubt. No such principle, he allowed, could be found in any of the authorities. However, he submitted that in this particular case it was necessary for the learned judge to direct the jury that they could not be satisfied that King's evidence corroborated that of Brazel unless they were satisfied of its accuracy beyond reasonable doubt. The failure to give such a direction, he contended, subverted other directions as to the standard of proof. For the respondent, it was submitted that a contention that corroborative evidence has to be established beyond reasonable doubt was erroneous. It was also submitted that in the instant case the introduction of the need for corroboration of Brazel's evidence was, if anything, favourable to the applicant.

70 In my opinion, there is no substance in this ground. In a relatively short charge, the learned judge mentioned the standard of proof on no fewer than 13 occasions. He also directed the jury "it seems to me that you could not convict any of the accused at all unless you were satisfied beyond reasonable doubt of the truth, honesty, accuracy of the evidence of Brazel". The reality is that, taken as a whole, his Honour's charge effectively delivered rather more than the direction which it is now said he should have given. This ground fails.

71 As I have said, counsel for Johnson (who did not appear for him at the trial) adopted as to his client's grounds (b) and (c), the arguments put forward by counsel for Sonnet. In addition, he laid stress on what he said was the repeated denigration and vilification of defence counsel by Brazel for which, it was submitted, Brazel was never rebuked or brought to order by the learned judge. Indeed, he contended, there was a risk that the jury would have inferred that his Honour was supporting much of what Brazel was saying. Counsel for Paisley also, as to his client's grounds 1 to 4 inclusive, adopted the arguments of counsel for Sonnet. He also drew attention to Brazel's denigration of defence counsel and the relative paucity of objections during Brazel's cross-examination by the Crown Prosecutor.

72 With respect to these grounds common to all three applicants, counsel for the respondent submitted that the trial of the applicants was a "singular" trial, with the applicants introducing their own mores of misconduct. The Court's attention was drawn to a video compilation of a number of incidents and the members of the Court were invited to view it and also to read complementary transcript. As to his Honour's failure to discharge the jury following responses by Brazel under cross-examination, counsel pointed out that he had become a witness following requests - some would say demands - by counsel appearing for the applicants and their co-accused in the earlier aborted trial. It was submitted that this Court should consider complaints concerning the failure of the learned judge to discharge the jury without verdict in the light of the above circumstances. Counsel also submitted, as he put it, "with reluctance" that, during the trial, counsel had intentionally sought to provoke Brazel by asking questions about such matters as his religious beliefs; his alleged commission of sexual offences and his alleged friendships with the notorious prisoners Knight and Edmonds. There was also the suggestion that he drank his own blood.

73 As the summary of counsel's arguments reveals, the events which lie at the core of these present applications essentially occurred during the cross-examination of Brazel. The giving of his evidence-in-chief was uneventful. But, shortly after cross-examination by counsel for Johnson had commenced, and in an unresponsive way, Brazel accused that counsel of having photographed a number of personal items from his personal file. He went on to say to counsel, "your only defence in this matter for your client is to make me look like a scumbag...". A little later he told counsel, "you will not interrupt me". Not long after this Brazel said to counsel, "you are a desperate man trying to find a defence for your client and I understand, that's your job". Next, he told counsel, twice, "you're an idiot". He then said to counsel, "...your client has done this on several occasions". He later added, "...Mr Sonnet had continually made threats".

74 Asked about another prisoner attacking him, Brazel non-responsively added to his reply, "I did not inform on Mr Lindrea during the first attack on my person by him".

75 Asked about a conversation with Johnson, and despite a warning by the judge, Brazel rejoined, "the only words that have come from your clients are threats". A little later Brazel said to counsel, "you have no defence so you are trying to attack me in front of this jury...". He went on to say to counsel, "you continue to lie". Not long after this Brazel told counsel he was an "idiot" and that he was, "making it up". Questioned about his file, Brazel replied non-responsively, "by the way, are you game enough to put your client's file on the table...bet you're not". When questioning about the file continued, Brazel said, "...put your client's file on the table and let the jury see both of them". After more cross-examination Brazel agreed he was a person of ill-repute and added, "...as are all the accused in this matter". After interjections from the dock by Sonnet, in the presence of the jury, the learned judge told him, "I can exclude you from this trial all together, and your counsel". In addition to the above, Brazel had referred to "pathetic little individuals (either defence counsel or the accused) that have tried to bring up a defence that hasn't got one" and had rounded on counsel saying he was "distruthful (sic), dishonest and a lack of integrity". Asked how many times he had been gassed out of his cell, he replied, "about twice the amount of times as your client" (Johnson). Questioned about the alleged offences, the subject of the presentment, Brazel said, "it is not the first time your client (Johnson) has broken a window".

76 Thereafter, there occurred the first of many applications for the discharge of the jury. This application was made only by counsel for Lindrea and was, if I may say so, summarily dismissed. In the course of it, counsel complained that Brazel had effectively taken control of the trial. The learned judge responded that he was satisfied that Brazel had been sufficiently warned by the Crown instructor and, comparing Brazel's two sojourns in the witness box, said, "he has behaved like an angel this time".

77 When the cross-examination, (by counsel for Johnson) continued, Brazel was asked if he had been required to wear a body belt (an extreme form of restraint). He responded that that was the procedure for all "high security prisoners" adding, "Mr Lindrea and everyone else wears them as I do". Somewhat later Brazel called counsel a liar twice and, when asked by counsel if he was an habitual liar, he replied, "no more than you...".

78 Then followed a complaint to the judge by counsel for Sonnet. In describing it counsel said, "Perhaps application might be putting it too highly...". It related to remarks Brazel had made about body belts. The conduct of the cross-examination to date was discussed with his Honour saying, "...ask him closed questions and you will have the situation under control". Counsel then acting for Lindrea made an application on much the same basis for the discharge of the jury.. It was not pressed and his Honour thought it no more than "a very lovely friendly chat".

79 Upon cross-examination (still by counsel then appearing for Johnson) resuming in the presence of the jury Brazel soon declared to counsel "you are desperately trying to discredit me because you haven't got a defence and you want to - your client will stand mute and your client will not give evidence...because I know your defence, or lack thereof".

80 Shortly thereafter, there occurred the third application for the discharge of the jury made by counsel for Lindrea and supported by counsel for Johnson, Sonnet, Paisley and Wenitong. This application was based on Brazel's conduct in the witness box, described by counsel as "an accumulation of material, inadmissible material before the jury" and "...the accumulation of what has fallen from his (Brazel's) lips". It was put to his Honour that there was "no real way Your Honour can adequately deal with that by way of direction". The learned judge stated that he considered there was not "any high degree of necessity" for the jury's discharge and that he thought "...a fair trial is still possible". He refused the application and discussion then turned to the matter of directions being given by the judge to Brazel as to his conduct.

81 On the cross-examination resuming, (now administered by counsel for Sonnet), the judge appealed to Brazel to answer the questions. Not long thereafter Brazel said to counsel that he was lying and that he was a liar. His Honour remarked as to this, "I think he is saying that it (the suggestion put to Brazel) is not right". When a report about events at the prison was put to Brazel he said to counsel, "that is unfair and you are grandstanding because you have no intentions of allowing your client in this witness box". Shortly thereafter, in the presence of the jury, and upon Brazel complaining about "cat calls" there occurred the first incidence of misbehaviour (obscene language) by unidentified accused in the dock. The jury was sent away for lunch and the fourth application for the jury's discharge made or supported by counsel for all the accused persons then took place. During argument, which centred on Brazel's conduct, his Honour made it clear that he was not going to accede to the application, whereupon he was asked to "specifically tell Brazel he is not to mention the antecedents of any of the accused men..." The judge responded, "do you think that will stop him?" and added, "I think he's been restrained. I think he has. But he is easily provoked."

82 Brazel was recalled in the absence of the jury whereupon his Honour said, "Mr Brazel, you've been in the box a fair while now and have showed substantial constraint. I want to bring to your mind as forcibly as I can, that you should stick strictly to the question asked and volunteer nothing further than the question demands." He added, "...there are several topics that you can't mention at all" and went on to specify the previous criminal history of any of the accused, any misbehaviour by them in the past or in gaol and any reference to whether they stand mute or not or to their prison file. The judge added to Brazel, "One consequence of failure on your part..." and Brazel interjected, "could blow the trial, yes..."

83 It should be noted that the direction to Brazel set out in the previous paragraph was administered in the afternoon of the fourth day of the trial, cross-examination of Brazel having commenced during the morning of the second day of the trial.

84 Before Brazel was first called to the witness box, and in the absence of the jury, the judge said he expected that someone from the prosecution would make it clear to Brazel that when he gave evidence he was not to mention the character and antecedents of the accused, but that he should understand that the law said his own character is or may be put in issue. His Honour said that should be firmly brought home to Brazel and he wanted an assurance that that had been done before Brazel was called Later, after the jury had been empanelled, the Crown Prosecutor said to the judge that his instructor had spoken to Brazel.

85 In response to Brazel's unresponsive or argumentative answers, his Honour variously said to him, "I wonder if you would just answer his (counsel's) questions"; "keep quiet"; "will you just answer the questions that you are asked"; "Maybe I will just say to you 'please try and confine yourself to the events, the subject of the attack...'"; "just answer the questions, if you will". He also appealed to Brazel to make yes or no answers if possible.

86 In my opinion, the first appropriate and substantially sufficient, direction to Brazel, delivered with the authority of his Honour's office, is that set out in paragraph 82. (I here interpolate that, much earlier in the trial, his Honour had remarked that he was satisfied that Brazel had been sufficiently warned by the Crown instructor. Whatever the content of the warning, it was appearing to be ineffectual, even at that stage of the trial - the beginning of day 3.)

87 To that point the learned judge had given no directions to the jury at all in relation to Brazel's non-responsive and, I am satisfied, very prejudicial answers. Specifically, he had never directed them that these answers should be ignored or that they were inadmissible. The explanation for this may lie in the nature of the cross-examination, his Honour's view of counsel's methods and perhaps a belief that directions, given later in his charge, would suffice. As to his Honour's relations with counsel, he has complained in a report to this Court that "the powers of a judge conducting a jury trial are now so circumscribed (as mentioned in eg. Magistrates' Court at Prahran v. Murphy[3]), and counsel know it, that he is in practice powerless in a jury trial to deal summarily with counsel in the course of the trial to any effect without interrupting or jeopardising the trial of the accused. Hence my reluctance on the present occasion." With respect, the case of Murphy stands for no more than this - that a Magistrate intending to deal summarily with a charge of contempt is obliged to provide proper particulars of the charge a reasonable time before the actual commencement of the proceedings. It most certainly does not constrain a judge from giving counsel appropriate directions as to their conduct in court, together with an intimation that a charge of contempt may, or will, follow if those directions are not obeyed.

88 In my opinion, in refusing the application for the discharge of the jury described in paragraph 80 the learned judge's discretion miscarried. I entertain no doubt that a combination of Brazel's conduct, and the failure of his Honour to give the jury any directions touching it, had produced a situation where there was a high degree of necessity for the jury's discharge, a fair trial of the applicants having been rendered impossible. It would seem that his Honour considered that directions given in his charge would ensure a fair trial for the accused. If that were his view, in my opinion he erred. For the sake of completeness, I will set out the directions that he ultimately gave.

"In deciding the facts of the case, you should be careful to put aside extraneous issues and confine yourself to the evidence given in the case. You should be careful about your own inherent biases about what you see and hear may happen in the court. Your task in that sense is an objective task. Let me say to you that in this case it will be obvious to you that the accused men are in custody for some crimes or another that each of them may have committed. We do not know what they are, nor does it matter. They are charged here with specific offences and they are entitled to have your consideration based on the evidence related to those specific events and nothing else matters. You should be very careful to expunge from your minds altogether any consideration whatsoever of any criminal history, whether derived from what is obvious to you and by their presence and what is obvious to you by the place where the alleged offences occurred and by anything that any witness called by the Crown has said about their past. It is absolutely irrelevant and forbidden from your consideration."

I would beg to doubt whether his Honour's expectation of the sufficiency of these directions was met. Some of Brazel's most damaging remarks related to threats by the accused, the lack of any defences and the disparagement of trial counsel. The directions did not address any of these matters.

89 Because of the orders this Court intends to make on the applications, I propose to set out a review of Brazel's cross-examination. I will deal first with its entirety and then make some comments. My comments, and the transcript references, are almost entirely directed to that cross-examination administered on behalf of Johnson. The entire cross-examination was not finally completed until the ninth day of the trial - but there were interruptions to it, some substantial. In all, he was asked some 1500 questions. A number were of inordinate length. One of them (not objected to by the Crown Prosecutor) contained over 250 words, which included a dozen statements of fact and several of both intent and opinion. Nor was the passage of time seen as a barrier to enquiry for the jury's assistance. Thus, Brazel was variously asked about what a County Court judge had said in a courtroom in 1978 and about a conversation and other incidents said to have occurred in prison in 1981, 1983 and 1985.

90 Given the nature of material available to any cross-examiner, I should have thought that the objectives of damaging Brazel's credit, impugning his reliability and showing in him a propensity for violence could have been accomplished in a relatively short time. Indeed, within such a period after the commencement of his cross-examination, he had agreed that he had broken all ten commandments and had killed people on three separate occasions - twice for money. He had, he admitted, been paid $95,000 for one murder and $50,000 or $60,000 for the other. He volunteered that he had behaved like a "scumbag". He had strangled one woman and then stabbed her five times through the heart. The other woman had also been strangled. He allowed he had been in custody for ten years and was "doing 30 years". He agreed he was "a notorious criminal". He accepted that he had broken the nose of a prison officer in 1983. In the matter of impugning his reliability, he agreed that he was "taking out" a personal injury claim against the Prisons Department. In the matter of his propensity for violence, it may be said that this could have been more than adequately shown by exposure of his prior criminal record, which he did not dispute and which included convictions for murders, armed robbery (several counts), assaulting a police officer, being a felon in possession of a pistol, assault occasioning actual bodily harm and assaulting a prison officer. Curiously, this was not done until late in the afternoon of the third day of the trial.

91 At the beginning of the trial, in the absence of the jury, the learned judge expressed the wish that Brazel be not deliberately or unnecessarily provoked. During his cross-examination, counsel asked for a direction that the witness answer the questions. His Honour rejoined "you can stop him, you know". Counsel said he had been "trying" and the judge commented, "not very hard". He later added, "just ask him the questions". At other times, his Honour appealed to counsel to "keep your questioning tight" and not ask "open ended questions". Resort should not be made, said his Honour, to more than is "necessary for your case". When the Crown Prosecutor suggested a line of questioning only went very remotely to credit, his Honour remarked, "I've been trying to suggest that to (counsel)...all the morning". The learned judge also appealed to counsel to be "direct and specific" and careful and precise. He urged "closed" and "tight" questions and declared that he could stop Brazel's conduct if Brazel was asked a closed question but not if he was asked an open question.

92 Cross-examination was at times argumentative and provocative. The following instance is illustrative of this.

Counsel: "Is that all? What about, leaving aside the women that you have murdered, have you assaulted many women?

Brazel: "Let's go. Name them.

Counsel: No, Mr Brazel?

Brazel: No, I haven't.

Counsel: How many women have you assaulted?

Brazel: I just told you, I haven't.

Counsel: None?

Brazel: Not to my recollection.

Counsel: Is that a truthful answer?

Brazel: That is a truthful answer, yes. Now that you put that accusation, can you name one? You can't can you?

Counsel: You are a very slow learner, Mr Brazel, aren't you?

Brazel: Approximately as slow as you,......"

93 For completeness, I should add that counsel for Johnson was rebuked several times by his Honour. Firstly, for making a comment described by the judge as, "insulting, improper". Secondly, for making another comment, for which he apologised. Thirdly, for telling the witness that he, counsel, had written "lie" on a document shown to the witness and fourthly, for asking a question his Honour deemed to be, "improper". I think it appropriate to set out the transcript of this last incident.

"Counsel: One last question, Mr Brazel. On your affirmation a month ago, you said that you'd murdered two people. Two days ago, it was three. Are there any advances on three Mr Brazel?

His Honour: Look, is that - - -

Brazel: That's contemptible.

His Honour: Just don't respond, don't respond...

Brazel: Well, Your Honour, he's left it that I've told a lie.

His Honour: No, no, no...

Brazel: He asked me - - -

His Honour: There's no need to respond. It was an improper question, and there's no need - you treat it with the contempt it deserves."

In my opinion, it was open to his Honour to administer each of these rebukes.

94 His Honour's attitude to the cross-examination by counsel then acting for Johnson may be derived from a variety of sources. He stated, during it, and in the absence of the jury, that Brazel had been asked "a series of open questions...rather than closed questions". He defined closed questions as "responsive simply by a yes or no answer" and declared that he had been endeavouring to have the cross-examination conducted in that way. He said that if the witness was asked an open question, "I can't stop him", offering the opinion that counsel would complain that he was being restricted. His Honour defined an open question to Brazel as "an invitation for you to make a speech". He said that the solution was in counsel's own hands "you ask him closed questions and you will have the situation under control. If you ask him open questions you invite it." With respect, I should have thought that there were a number of questions which might have been properly administered to Brazel and which did not admit of a purely "yes" or "no" answer. I should add that his Honour expressed the view, early in the cross-examination, that the details of the events constituting the murders of the two women had nothing to do with the trial. Again, with respect, I consider that it would have been proper for counsel to ask, for example, about any particularly horrendous details of Brazel's conduct.

95 His Honour also expressed views as to the consequences of cross-examination of which he disapproved. These views may explain why his Honour gave no directions to the jury during the cross-examination as to Brazel's non-responsive and prejudicial answers. He said of counsel for Johnson, "with a series of provocative and open ended questions he invites disaster, with deliberate risk..." Later, he remarked "well, we're all in counsel's hands to some extent, and to the extent that they transgress they bring it on themselves, but it doesn't help anybody".

96 Something of the atmosphere of the trial is conveyed, I think, by an incident which occurred late in the afternoon of the third day, Brazel having then been under cross-examination for most of that day together with the afternoon and part of the morning of day two.

His Honour: "We are covering a lot of time and a lot of ground along the way here...are we going to get precisely to 1 October 1998?

Counsel: Yes, Your Honour.

His Honour: When?

Counsel: When I have chronicled this man's extraordinarily extensive violent and threatening past in appropriate detail.

His Honour: Well, get on with it with expedition will you?

Counsel: It is not an easy task, Your Honour.

His Honour: I am sure we are all bursting to hear your questioning as to the date of the alleged incident."

97 I have given careful consideration to the material cross-examination, i.e. that which preceded the third application for the discharge of the jury. I am not prepared to uphold the submission for the respondent that counsel deliberately sought to provoke Brazel. The difficulty was that although a deal of the cross-examination was unhelpful and obviously grated on the learned judge, it was not technically impermissible. The number of objections by the Crown Prosecutor and their nature are of interest. Considering the length of the cross-examination, they were not unduly numerous. For the period up to the giving of the direction to Brazel which I have set out in paragraph 82 there had been some 11 objections. That direction was given immediately after the luncheon adjournment on the fourth day of the trial and it will be recalled that cross-examination of Brazel commenced during the morning of the second day. The objections were variously based on suggestions of comment being made, an unfair question, remoteness from the witness's credit, descent into the hypothetical, resort to assumption, imprecision, the use of assertions as facts, resort to speculation, resort to hearsay, interruption of the witness and a double-barrelled question. The Crown Prosecutor did not submit during this period of the trial that counsel was deliberately seeking to provoke Brazel.

98 At the conclusion of argument, counsel for the applicants were asked - should the Court come to conclude that the applications should be granted - what orders they sought. They each responded that they sought an order for the entry of a judgment and verdict of acquittal. Discussion then ensued and, I think it is fair to say, no counsel could point to special circumstances such as existed in R. v. Grimwade[4] which would justify the making of such orders. In my opinion, this Court should direct that a new trial of each of the applicants should be had.

99 There is no real point in dealing with any detail of that part of the trial which followed the exercise of his Honour's discretion which I believe miscarried. No doubt in any future proceedings the judge presiding will appreciate the need for firm and sufficient directions to be given to Brazel - and given personally and with the authority of his or her office - before Brazel commences his evidence. Nor will the judge feel constrained, as his Honour did, in dealing with counsel. It is to be expected, too, that counsel will cross-examine with reasonable economy and without argument or provocation. Should the occasion for its use arise, modern technology, with appropriate restriction if necessary, will ensure that witnesses and the jury are not distracted from their duty by extraneous happenings.

100 I desire to add that, in my opinion, his Honour's discretion miscarried in circumstances where he was placed under extreme, and unacceptable, strain. This was brought about by a combination of a volatile witness, some unhelpful cross-examination with provocative and argumentative elements and an understandable

desire that this trial should not be aborted - a fate which befell the previous trial of the accused.

101 We have had the advantage of reading the reasons prepared by the Chief Justice. We agree that these applications for leave to appeal against conviction should succeed, and that a new trial should be ordered, substantially for the reasons given by his Honour. We add only the following comments.

102 It is quite clear from the course of the trial described by the Chief Justice that the trial judge had a most difficult task in seeking to control the witness Gregory John Brazel and the behaviour of the various accused, as well as attempting to confine cross-examination within proper limits. Cross-examination of Brazel by counsel for the accused was extremely and quite unjustifiably prolix, very repetitive, and on many occasions unnecessarily provocative. The obvious consequence was a continuing risk of the trial miscarrying. As the Chief Justice has said, the judge was placed under extreme strain. But we think, with great respect, that it is unfortunate that the firm directions which his Honour gave Brazel after lunch on the fourth day of the trial had not been administered at the very outset of his evidence, nearly two court days beforehand. From a very early point in his evidence Brazel misbehaved in answering counsel's questions, suffering very little reproof from the judge for so doing. In our view, with respect, much stronger control could, and should, have been exercised by his Honour. In any event we agree that the third application for discharge of the jury made by all counsel[5] should have succeeded, there being by that time the relevant high degree of necessity, a fair trial of the applicants having been rendered impossible.

103 In the course of a most helpful report to this Court, the trial judge observed that the "powers of a judge conducting a jury trial are now so circumscribed (as

mentioned in e.g. Magistrates Court at Prahran v. Murphy[6]), and counsel know it, that he is in practice powerless in a jury trial to deal summarily with counsel in the course of the trial to any effect without interrupting or jeopardising the trial of the accused."

104 We wish, with great respect, to indicate our strong disagreement with these views and to associate ourselves particularly with what has been said by the Chief Justice[7]. In Murphy's case the counsel in question was never in fact tried upon or found guilty of the contempt alleged against him, proper particulars of the charge not having been provided at the time the magistrate sought to deal with him. There would, we accept, on many, if not most, occasions be difficulties involved in an attempt to deal immediately with counsel - or for that matter an accused person - for a contempt committed during the running of a trial. The necessity to maintain the momentum of a jury trial is only one of the reasons why it would usually be impossible to break off such a trial to deal with an allegation of contempt. But to concede that an allegation of contempt must be dealt with at the end of, rather than during, a trial, does not circumscribe the powers of the judge, nor should it prevent the judge from exercising necessary and proper control of the trial.

105 As the Chief Justice has shown Brazel repeatedly during his evidence gave unresponsive answers which on a substantial number of occasions amounted to comments that the accused had no defence and would not be giving evidence due to the lack of any viable defence. Presumably because of the existence of s.399(3) of the Crimes Act 1958, the judge did not in the charge make any comment on this fact or explain to the jury any of the forensic reasons why an accused may not wish to give evidence. The judge would, we think, have been entitled to tell the jury after the first such outburst by Brazel, that this was something they should put out of their minds, and that they should concentrate on the evidence that in fact had been adduced and should keep in mind that the burden of proof rested on the Crown[8].

106 But juries usually know that the accused has a right to give sworn evidence,[9] and occasionally ask the judge why the accused has not done so.[10] Only in the Northern Territory[11] and this State can neither the judge nor the prosecutor comment on the accused's failure to testify. In the Commonwealth[12], the Australian Capital Territory[13], New South Wales[14], South Australia[15], Tasmania[16] and Western Australia[17], only the prosecution is precluded from comment. In Queensland[18] neither the judge nor the prosecutor is precluded from comment.

107 The inability of the judge to comment on the failure of the accused to give evidence, as in this case, may work to the disadvantage of an accused because the jury may draw an adverse inference in circumstances where it would be wrong for them to do so. The present is yet another case in which the inability of the judge to make such a comment may have contributed to the trial being aborted. Other judges have suggested that the form of the sub-section be reconsidered by Parliament.[19] The circumstances of this case, and what we think is the necessity to order a new trial, lead us to join in that recommendation.

[5] Referred to in [80] of the reasons of the Chief Justice.

[7] Reasons of the Chief Justice at paragraph [87].

[9] Weissensteiner v. The Queen [1993] HCA 65; (1993) 178 C.L.R. 217, at 224-225.

[10] Cf. S. 93 A.Crim.R. 109.

[11] Evidence Act (N.T.) 1939 s.9(3).

[12] Evidence Act (Cwth) 1995 s.20(2).

[14] Evidence Act (N.S.W.) 1995 s.20(2).

[15] Evidence Act (S.A.) 1929 s.18(1)(ii).

[16] Evidence Act (Tas.) 1910 s.85(8).

[17] Evidence Act (W.A.) 1906 s.8(1)(i).

[18] Weissensteiner 178 C.L.R. at 224.

[19] S. (1997) 93 A.Crim.R. 109; R. v. Phillips (unreported, Court of Appeal, 3 September 1996).

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