Grounds 2 and 3: Browne v Dunn Issues.
59 It is convenient to deal with grounds 2 and 3 together. They both concern the application of the rule in Browne v Dunn (1894) 6 R 67, in the context of a criminal trial. It will be remembered that the grounds were stated in these terms:
Ground Two: The comments on Browne v Dunn by the learned Crown Prosecutor in his address were improper and caused the trial proceedings to miscarry.
Ground Three: The Browne v Dunn direction given to the jury by the learned trial judge was inadequate and erroneous.
60 When the appellant gave evidence, many of his answers were long and unresponsive. He was asked by the trial Judge a number of times to address the specific question, and only that question. His answers included material which had not been put (in its detail) to various witnesses called by the Crown. The Crown objected on six occasions, saying, in the presence of the jury, that the evidence had not been put to the particular witness. On each occasion the jury was sent out. The issue was debated in their absence. The Crown acknowledged, at least in respect of some evidence, that the broad proposition had been put, but not the detail (T252). When the jury was brought back, Mr Liristis was allowed to give the evidence.
61 Much of the evidence to which objection was taken was peripheral (the exchange rate in Singapore and its effect upon the cost of the litigation; the time Mr Liristis had attended Mr Jordan's office). Some matters, however, were important. Mr Liristis, for instance, said that he drew to Mr Jordan's attention three months before the Local Court hearing, a paragraph in the Supreme Court affidavit, which he said was inaccurate, being the paragraph suggesting that he had received the costs agreement by fax on 15 July 1998.
62 Mr Jordan was certainly cross examined to suggest that Mr Liristis disclosed that error. Questions were asked as to when that disclosure had been made in relation to the drafting of the Local Court affidavit (T172/173). It was not put, however, that the disclosure had been made three months before the Local Court hearing (providing an opportunity for correction of the Local Court affidavit). The failure to put that question prompted the trial Judge to address the following remarks to counsel then appearing for the accused: (T278)
"The question you are putting ... could be easily regarded as unfair because you were not suggesting to him in order to remind him this was a period of three months before but, rather, suggesting it could have been the last few days or the few days prior to the hearing."
63 The appellant complains that the repeated objections by counsel for the Crown would have left the jury with the impression that counsel for Mr Liristis had been unfair. Further, the impression of unfairness would have been compounded by the following question asked by the prosecutor: (T385)
"Q. That would have been a very good thing to put to him when he gave his evidence?
A. I did say that, I did say that to my barrister but it wasn't put to him."
64 However, no unfairness attended the repeated objections by the Crown. Each was overruled. The evidence was given. The question by the Crown prosecutor set out above was inappropriate. The appellant's opinion on that issue was irrelevant. The question should not have been asked. However, there was no objection. Having regard to the appellant's answer, no harm was done.
65 The appellant next drew attention to the final address of the Crown prosecutor, where he said this: (T448)
"Another matter I want to emphasise to you is that any first year law student knows, and I am sure my learned friend is intimately aware of it and even though you're not lawyers, I am sure it will make sense to you: if as part of your case which you present you want to put against a witness for the other side, that you want to say well look, you delivered this affidavit to my client at his home at Sylvania Waters when you went there, something to do with a jet ski. If you knew that, you wouldn't let the witness give his evidence, go away and then when the other side closed their case bring it up. It would be most unfair. Does it make sense to you? That is the law. You must put to that person that that is your case. You don't wait until they go and then raise it so they cannot answer it. I wouldn't for one in a nano second suggest that (counsel for Mr Liristis) deliberately did that. She would not be so stupid.
In fact if you recall the questions she was asking, they were specific questions. You might think she was just as surprised as I was at some of the answers. I had to stand up and say, your Honour, this was not put to Mr Jordan. This was not put to Mr Xenos. It should have been. (Counsel for Mr Liristis) knows that. I think she was just as surprised because questions in a case advanced on instructions from our clients, of course that material came, it should have come earlier. It should have been put to those witnesses, all this business about being friends for 25 years, this special relationship, other than a professional relationship and why it was that affidavits are being drawn up and signed and taken back. Ladies and gentlemen, I would ask you to, when you come to assess the evidence to bear all those things in mind."
66 The appellant makes a number of complaints about these comments.
· First, the Crown, in describing his surprise at the accused's evidence, and that of his counsel, was giving evidence. He should not have done so.
· Secondly, in purporting to state the "law" in respect of the rule in Browne v Dunn the Crown prosecutor in fact misstated it. His explanation, according to the appellant, was "dangerously incomplete and misleading".
67 In my view both complaints were warranted. It was inappropriate for the Crown prosecutor to have intruded his own reaction to the accused's evidence. It was certainly inappropriate and highly prejudicial that he should have attributed a reaction to counsel for Mr Liristis ("she was just as surprised as I was at some of his answers"). No objection was made by Mr Liristis' counsel. Nothing was said by the trial Judge. In my view, with respect, the trial Judge should have asked the Crown to withdraw these remarks (unless the accused preferred that nothing further be said, lest the matter be made worse).
68 Dealing with the second complaint, the supposed misstatement of the "law" in Browne v Dunn, the submissions by the appellant were made upon alternative bases. On the one hand, it was submitted that if the rule in Browne v Dunn applied in the context of a criminal trial, it had been misstated. Alternatively, and more radically, it was submitted that recent decisions of the High Court threw into doubt the "obligation" of an accused to "put a case". It was said to be no longer appropriate in a criminal trial to speak of the rule in Browne v Dunn as obliging the accused, through his counsel, to put a version to Crown witnesses. If that be right, the Crown's address, in which he spoke of an obligation on the part of counsel for the accused, was quite wrong.
69 The appellant complains that the statement by the prosecutor, and the illustration he gave, misstated the rule. Mr Liristis said that Mr Jordan had delivered the draft affidavit in the Local Court to his home at the same time as he dropped off a jet ski. Such an illustration, according to the appellant, suggested that counsel for Mr Liristis was obliged, as a matter of fairness, to put to Mr Jordan every detail of Mr Liristis' account. That was not the rule (Seymour v The ABC (1977) 19 NSWLR 219; Allied Pastoral Holdings Pty Ltd v Commissioner of Taxation (1983) 1 NSWLR 1, per Hunt J at 24 [para 3]). Mr Jordan was, relevantly, challenged and the opposing view put. Nothing was said about the jet ski, that being a peripheral detail. The failure to put that aspect was not, according to the appellant, a breach of the rule.
70 Further, the appellant asserted that the prosecutor's statement was incomplete and misleading. He referred to the issue of fairness. Fairness certainly underpins the rule in Browne v Dunn. However, his explanation failed to include any reference to the remedy provided under the Evidence Act 1995, available to an opposing party, where there is a breach, namely, s46 of the Act, which is in these terms:
" 46 Leave to recall witnesses
(1) The court may give leave to a party to recall a witness to give evidence about a matter raised by evidence adduced by another party, being a matter on which the witness was not cross-examined, if the evidence concerned has been admitted and:
(a) it contradicts evidence about the matter given by the witness in examination in chief; or ..."
71 Here the Crown made an application under that section to recall certain witnesses (T425). The application was then abandoned (T426). No reference was made to that application or its abandonment.
72 Dealing with these submissions, the reference to the jet ski may or may not have been a peripheral detail. There certainly were better illustrations available to the Crown, which he might have used, where there was unmistakably a breach of the rule in Browne v Dunn, assuming it applied. The failure to advert to s46 arguably did render the statement of the "law" incomplete and apt to mislead.
73 Passing from that to what I have termed the more radical submission, the appellant drew attention to the decision in Azzopardi v The Queen (2001) 205 CLR 50. In that case the majority (Gaudron, Gummow, Kirby and Hayne JJ) said this: (at 74, para 64)
"In an accusatorial trial, an accused is not required to explain or contradict matters which are already the subject of evidence at trial. These matters must be assessed by the jury against the requisite standard of proof, without regard to the fact that the accused did not give evidence."
74 In Dyers v The Queen (2002) 210 CLR 285, Gaudron and Hayne JJ, in the context of the companion rule of Jones v Dunkel (1959) 101 CLR 298, said this (omitting references): (at 292)
"9. As was pointed out in RPS , it will seldom, if ever, be reasonable to conclude that an accused in a criminal trial would be expected to give evidence. Not only is the accused not bound to give evidence, it is for the prosecution to prove its case beyond reasonable doubt. The mode of reasoning which is spoken of in R v Burdett and Jones v Dunkel ordinarily, therefore, cannot be applied to a defendant in a criminal trial. That mode of reasoning depends upon a premise that the person concerned not only could shed light on the subject but also would ordinarily be expected to do so. The conclusion that an accused could shed light on the subject matter of the charge is a conclusion that would ordinarily be reached very easily. But given the accusatorial nature of a criminal trial, it cannot be said that, in such a proceeding, the accused would ordinarily be expected to give evidence. So to hold would be to deny that it is for the prosecution to prove its case beyond reasonable doubt. That is why the majority of the Court concluded, in RPS and in Azzopardi , that it is ordinarily inappropriate to tell the jury that some inference can be drawn from the fact that the accused has not given evidence. To the extent to which earlier decisions of intermediate courts held to the contrary they were overruled.
The reasoning which underpinned the decisions in RPS and in Azzopardi cannot be confined to the accused giving evidence personally. It applied with equal force to the accused calling other persons to give evidence. It cannot be said that it would be expected that the accused would call others to give evidence. To form that expectation denies that it is for the prosecution to prove its case beyond reasonable doubt."
(emphasis in original)
75 The principles stated in Browne v Dunn presuppose that the accused puts his case. It was said by the appellant that, as a natural extension of these authorities, there is no obligation for an accused to "put his case" to Crown witnesses. Such an obligation, it was said, would be incompatible with the presumption of innocence and the right of the accused not to give or call evidence at trial. Where ultimately there is a case called by the accused, and it has not been put, then, according to the appellant, there may be consequences. An accused may, in that circumstance, be met with an application by the Crown under s46 of the Evidence Act to recall witnesses, or a comment by the Crown in closing address or the Judge in his or her summing up.
76 Ordinarily the Crown is not, of course, permitted a case in reply, except in very limited circumstances (Shaw v The Queen (1952) 85 CLR 365; Killick v The Queen (1981) 147 CLR 565). The assumption is that a reply may significantly disadvantage an accused. Where the Crown is permitted a reply, the last evidence the jury hears is that of Crown witnesses rebutting the account given by the accused. Were leave given to the Crown to recall witnesses (under s46), that may operate to the disadvantage of the accused in the same way. A comment by the Crown or the trial Judge, calling attention to the failure of the accused, through counsel, to put matters to Crown witnesses, who were able to deal with the issue, may be a further consequence.
77 The difficulty with the radical submission is that the place of the rule in Browne v Dunn in criminal trials has been affirmed and reaffirmed (Peter Schneidas (No 2) (1981) 4 A Crim R 101; Zorad (1990) 47 A Crim R 211; and R v Birks (1990) 19 NSWLR 677, per Gleeson CJ at 686-692). In Birks, Gleeson CJ said this: (at 688)
" Browne v Dunn was a civil case. There are some obvious difficulties concerning the operation of the rule in criminal trials. The notion of fairness, whilst it has relevance to criminal as well as to civil proceedings, may have a somewhat different practical content in a criminal trial."
78 The Chief Justice added: (at 689)
"However, whilst the rule does apply in this State in criminal as well as civil proceedings, its practical content needs to be related to the circumstances of the particular case, and one important circumstance may be that what is involved is a criminal trial. The precise significance of that may vary from case to case."
79 The success of the appellant on this ground does not ultimately depend upon an adoption of "the radical view", even though there is much to commend it. I accept that, for the reasons put by the appellant, the statements by the Crown prosecutor were in some cases inappropriate and highly prejudicial. I also accept that he incompletely stated the rule in Browne v Dunn. Both aspects were matters of some importance. They went to an acceptance of the accused's account. They carried with them the risk of a miscarriage of justice.
80 In my opinion ground 2 has been made out.
81 Ground 3 is concerned with the direction on this issue given by the learned trial Judge. His Honour said this: (SU 20/21)
"[The Crown] outlined to you the procedure of lawyers speaking or writing only on the basis of instructions that are given. He said there were a number of instances during the course of the proceedings that you will bring back to mind in which the accused said things that were not put to Crown witnesses, that is, Crown witnesses did not have an opportunity to make any comment about those. His submission, and it is no more than that, is that that was because in terms of the accused had not told his lawyers about those matters and he was, to use the phrase he used during the course of the hearing, 'making it up as he went along'."
82 The directions, according to the appellant, suffered from two defects. First, they endorsed the Crown prosecutor's erroneous statement of the "law" in relation to barristers and their obligations. Secondly, they failed to incorporate directions necessary where an adverse inference against an accused is invited, based upon the conduct of counsel.
83 His Honour's direction did nothing to correct the Crown prosecutor's statement of "the law". However, it was put as the Crown's "submission", that is a comment by the Crown on the failure to cross examine.
84 It was open to the Crown to comment on the failure to cross examine. However, where the Crown seeks to have the jury drawn an adverse inference against the accused, based upon the conduct of his counsel, the trial Judge is obliged to instruct the jury as to the way in which they should approach such a submission.
85 In Birks (supra), Gleeson CJ, adopted the following views expressed by King CJ in Manunta (1990) 54 SASR 17: (at 23)
"It is legitimate, of course, to draw appropriate conclusions from counsel's failure to put in cross-examination some matter to which his client or his witnesses subsequently depose. It is a process of reasoning, however, which is fraught with peril and should therefore be used only with much caution and circumspection. There may be many explanations of the omission which do not reflect upon the credibility of the witnesses. Counsel may have misunderstood his instructions. The witnesses may not have been fully co-operative in providing statements. Forensic pressures may have resulted in looseness or inexactitude in the framing of questions. The matter might simply have been overlooked. I think that where the possibility of drawing an adverse inference is left to the jury, the jury should be assisted, generally speaking, by some reference to the sort of factors which I have mentioned. Jurors are not familiar with the course of trial or preparation for trial and such considerations may not enter spontaneously into their minds."
86 Gleeson CJ added his own caution: (at 691/692)
"I would add that one particular matter which makes it difficult to use the conduct of counsel as a basis for drawing inferences of fact is that most jurors are unaware of the principles ... relating to the wide discretion available to counsel as to the manner in which a trial may be conducted. It may be easy for a jury, unless given an appropriate warning, to assume that a barrister is merely some kind of 'mouthpiece' for the client, conducting the case in close conformity with the client's directions. For reasons that have already been explained, this is far from the truth."
87 In R v Abdallah (2001) 127 A Crim R 46, counsel for the accused opened the case asserting a particular fact. The evidence then given by the accused was inconsistent with the opening. Sheller JA (with whom other members of the Court agreed) said this: (at 53)
"As a practical matter, I do not think that this Court should assume that a barrister even of Mr Stratton's experience could not make such a mistake. Experience does not, unfortunately, preclude error. More importantly, as was noted above, this Court is not primarily concerned with the actual cause of the inconsistency. Even if the chance of the inconsistency being due to an error or misunderstanding on the part of counsel for the appellant at trial was small, this should none the less have been suggested as a possibility to the jury. The comment of the trial judge here, though, allowed for no such possibility. The trial judge's statement that 'you might expect counsel or certainly competent Queen's counsel, to open the case on what he expected the accused to say' is significant. This statement was both factually questionable, since even eminent and experienced counsel on occasion make mistakes, and more importantly, inappropriate given the caution recommended in approaching this subject in Birks and Manunta. The emphasis given to Mr Stratton's competence could only have served to reinforce to the jury that the only explanation for the inconsistency was that the accused had changed his story."
88 Here, the Crown's submission, in the same way, ruled out error on the part of counsel ("She would not be so stupid."). It was a matter "that any first year law student knows". Whilst his Honour, in his directions, did not comment upon the competence of counsel, he failed to sound the note of caution and circumspection required by Manunta and Birks.
89 The Crown on this appeal (not being the Crown who appeared at the trial) acknowledged that the direction did not conform with these authorities. However, no application had been made by counsel for a redirection. Rule 4 applies. I believe, nonetheless, that the matter was of such importance, that leave should be given. In my view ground 3 has been made out.