_R v Smith_

Judgment (104 paragraphs)

[1]

Director of Public Prosecutions (Queensland) for the respondent

[2]

[1] McMURDO P: The appellant was convicted in the Townsville Supreme Court on 29 June 2007 of unlawfully killing Brett Matthew Leake at Townsville on or about 20 May 2005. He appeals against his convictions on two grounds. The first is that the conduct of the prosecutor was inflammatory and that the primary judge erred in refusing to discharge the jury because of it. The second is that the primary judge gave wrong directions on accident.

[3]

[2] Before turning to the first ground of appeal, it is necessary to have an understanding of the relevant evidence led at trial of this tragic episode. The altercation between the deceased and the appellant which preceded the death took place outside a Townsville nightclub called "The Bank" in the early hours of 20 May 2005. The appellant was an off-duty security officer at The Bank. Both the appellant and the deceased were patrons at The Bank that night. John Wilson was working as a security officer. There was a scuffle between patrons and Wilson asked the deceased to leave. The evidence did not suggest that the deceased was involved in the scuffle but rather that Wilson mistakenly thought he was. Wilson evicted the deceased from the club. The deceased had been drinking and felt aggrieved at his perceived unfair treatment.

[4]

[3] Surveillance cameras provided chilling audio and video footage of much of what followed. But the cameras did not capture all details. Relevant portions of the security camera footage were played to this Court. The footage showed the deceased's shoe coming off after the punch preceding his fall to the ground. One camera recorded the deceased coming to the front entrance of the nightclub. He can be heard arguing with security staff. The appellant then arrived at the entrance. The deceased was abusive and offered to fight the appellant. The appellant handed something to a companion (Jamie Sommerville, The Bank's door security person on that night) who seemed to restrain the appellant as the deceased continued to offer to fight him. Others made attempts to restrain the deceased. The deceased removed his shirt. The appellant approached the deceased and they exchanged punches. Something then happened to the right of the screen but no detail can be made out.

[5]

[4] A second camera showed the deceased removing his shirt and the appellant then approaching him. They exchanged punches. The appellant punched the deceased in the head with his right fist and the deceased moved backwards out of view. It is this punch that immediately precedes the deceased's fall to the ground where he lay unconscious.

[6]

[5] A third camera showed the incident commencing and then the appellant and deceased moving out of view to the left.

[7]

[6] The security camera footage was an important and objective part of the prosecution case but it did not provide an unequivocally clear account of what happened. The prosecution also called many witnesses to the event and the circumstances surrounding it.

[8]

[7] At least from the time he fell to the ground following the final blow from the appellant, the deceased was unconscious and remained so until his death. He was taken to Townsville General Hospital. He had a fractured skull and a large right-sided subdural haematoma causing the right lobe to burst. There was no swelling to the jaw and no loose teeth. He had mild abrasions to his knuckles consistent with fist-fighting and a 0.9cm laceration to his mouth. He was 183cm tall and weighed 72kg; he was slim but well-built. His blood contained evidence of the active constituent of cannabis and his blood alcohol concentration was .168 percent at the time he was admitted to hospital. His blood alcohol level would have been higher at the time of the incident. A craniotomy was performed and the haematoma drained. He remained deeply unconscious. Later that day he was assessed as brain-dead. He died shortly after his life support systems were withdrawn. The cause of death was head injury due to trauma to the back of the head. The pathologist could not predict how much force was required to cause the fatal injuries. He agreed that "any fall from standing height onto the ground if the ground is hard can produce a fracture".

[9]

[8] Christopher Brown knew the appellant through The Bank nightclub where they both worked as security officers. He saw the appellant at The Bank at about 1.00am on 20 May 2005. John Wilson and the appellant were nearby. A DJ signalled that there was an incident requiring attention. Brown approached two men (the deceased and his brother). Brown asked the taller man (the deceased's brother) to accompany him to the foyer and commenced to walk with him in that direction. John Wilson moved behind, escorting the deceased towards the foyer with his hands around the deceased. Brown heard the sound of an impact like the sound of a foot on floorboards. The deceased had blood on his face. The deceased was struggling. The appellant was one or two steps away. The deceased and his brother were escorted out of the premises.

[10]

[9] Wade Carroll was a flat-mate of the appellant in May 2005. They met through their work at The Bank where Carroll was a barman and "glassie and stuff like that" and the appellant was a security officer. In the early hours of the morning of 20 May, the appellant was at The Bank as a patron. He was completely coherent, not drunk and handling himself very well. Carroll was shown portions of the security camera footage and identified himself on it. He was then cross-examined and gave the following evidence. The two men who had been evicted from The Bank were involved in "a lot of name-calling, a lot of, like, enticing to fight, taking off shirt, calling [others] names. Basically [the appellant] didn't really say anything. He just stood there." The deceased was using insulting words like "come on down. I'll sort you out, you fat fucker. All that kind of stuff." The appellant was focussed on what they (the deceased and his brother) were saying rather than listening to Carroll who was encouraging him to come inside and enjoy himself. The deceased said "It doesn't matter what you do, we're going to wait out here regardless." The deceased had taken off his shirt. The appellant went downstairs. The deceased rushed at him. Because Carroll was standing behind the appellant, he did not see any connecting punches. He did see the appellant's head move as if he had been punched. He saw the appellant throw only one punch which hit the deceased. There was then a thud. Carroll was worried the situation might escalate and encouraged the appellant to leave. He thought that the appellant handed him his mobile telephone and that this was depicted on the security camera footage.

[11]

[10] Fabian Daniel had known the appellant for about 15 years. They went to school together. On the evening of 19 May and the early hours of 20 May 2005 he was at The Bank with his girlfriend, Bianca Nuske, and other friends. He and others were pushed over by a skinny man with a shaved head. Daniel complained to security staff and the offenders were ejected. Daniel was pretty drunk. A few minutes later, he was approached by the appellant who asked who had been thrown out by security. Later he became aware that there was an incident outside. He saw the deceased lying on the ground. There was blood on the cement near his head. He went inside and spoke with Bianca. He and Bianca went to the appellant's house. After about half an hour the appellant arrived. The appellant was wearing different clothes to those he had been wearing at the nightclub. About 15 minutes later Wade Carroll arrived.

[12]

[11] Bianca Nuske was out with her boyfriend, Fabian Daniel, on the evening of Thursday, 19 May 2005. She knew the appellant through her work as a bartender at "The Cri" where he worked as a security guard. She was a patron at The Bank at about 3.00am on 20 May. She considered herself intoxicated. She saw the earlier incident inside the nightclub which was between a man, Shaun, and an unknown Maori man. Two other men started to walk towards Shaun. These two men (the deceased and his brother) were escorted out by Wilson and another security guard. She did not see those two men again until later that night when she saw one of them lying on the concrete in front of the nightclub. She asked Wade (Carroll) what happened. He said, "Just go see Phil." She ran to his home in nearby Palmer Street. She had difficulty remembering the night's events because she was intoxicated. At one stage inside the nightclub there was an altercation during which John Wilson was pushed on top of her by one of the two men who were escorted out of the nightclub.

[13]

[12] As noted earlier, John Wilson was a security officer rostered to work at The Bank on 19 and 20 May 2005 from 11.00pm to 5.00am. He knew the appellant as he had seen him working as a security officer at The Bank but he had not worked with him before. Sometime before 3.00am Wilson saw a fight inside the nightclub. He jumped through the DJ box to break it up. Wade Carroll pointed out two men as being involved in a fight with Carroll's mate. He and Chris Brown advised the two men (the deceased and his brother) to leave. The deceased resisted and became aggressive. He attempted to hit Wilson, who responded by putting him in a "cardio restraint". Wilson escorted the deceased to the front exit. The appellant followed a couple of feet behind. The deceased resisted leaving the premises at the side doorway but Wilson managed to evict him. Security officer Jamie Sommerville was in charge at the door. Wilson noticed that the deceased had blood coming from his nose and mouth at the time he was evicted. He agreed with the prosecutor that he gave two statements to police. He gave the second statement because he left out some details in the first statement. The prosecutor asked what details were left out. Defence counsel objected, querying the relevance of the question. The prosecutor responded that it was "an issue of veracity the jury should assess in relation to the witness". The judge did not allow any further questioning on the issue. Wilson was then cross-examined and gave the following evidence. During the eviction the deceased's head and trunk came in contact with the side of the door. Wilson said to him, "Calm down and I'll let you go." He calmed down and Wilson relaxed his hold but did not let go. Whilst Wilson had him in the hold the deceased was trying to hit Wilson. The deceased struggled violently and Wilson had to use all his strength to control him even though Wilson was bigger. The deceased was in a rage. He did not see the episode outside which culminated in the death of the deceased.

[14]

[13] Bradley Jackson saw the appellant at The Bank in the early hours of 20 May 2005. He went to school with the appellant's brother and also knew the deceased. Jackson decided to leave the nightclub and sat on a garden bed on the street waiting for a friend to join him. After a while he saw the deceased outside and heard him yelling at someone. He also saw the appellant. He saw and heard an argument, swearing, yelling and carrying on. The deceased appeared to be very angry and did not respond to those who tried to persuade him to be quiet or to leave. The deceased said, "Come down here and I'll fight you down here." The appellant said he was not working that night and that he would come down. The deceased took his shirt off and took two swings at the appellant who had by then come onto the street. The appellant hit the deceased around the mouth area. The deceased fell backwards. He did not try to stop himself. He heard a bit of a bang on the cement as the deceased's head hit the footpath.

[15]

[14] Matthew Hannaford was employed as a security officer on 19 and 20 May 2005 at The Exchange Hotel in Townsville, an establishment about 50 or 60m from The Bank. Security staff at The Exchange linked up with security staff working at other establishments in the street. He knew John Wilson and Chris (Brown) and Jamie Sommerville who were working as security officers at The Bank that night. He had met the appellant once before that evening at a hospitality industry breakfast. He did not know the deceased but later found out that he knew his brother, a regular at The Exchange. For most of the evening of 19 May 2005 the deceased and his brother had been drinking at The Exchange. The deceased was "looking pretty intoxicated". Hannaford offered him a glass of water to help him sober up. His brother said that he would look after the deceased for the night. They left about 2.30am. He next saw them outside The Bank. The deceased was behaving very erratically towards the guard at the door, Jamie Sommerville. He and Jamie Sommerville tried to calm the deceased and to move him away. At one stage he was pretty calm and seemed ready to go, but the appellant came outside and the deceased "lost it". He took his shirt off, became very aggressive and it became impossible to get him to leave. After a time, the appellant came down the stairs at a decent sort of pace and punched the deceased in the face. He fell straight back to the ground, did not put his hands out to stop his fall and hit his head on the pavement. He seemed unconscious. He was bleeding from the back of his head.

[16]

[15] Christopher Maiden was working as a "glassie" at The Bank nightclub in May 2005. He did not then know the appellant. At about 3.00am he became aware of a bit of a fight outside. The deceased was arguing with a security guard about having been hit inside the nightclub. The appellant came out the front and said, "If you want some more, I'm up here." The appellant was "calling him all the names under the sun, f-ing - swearing." The deceased was very angry and had a cut lip with blood on his mouth. The deceased was about the same size as Maiden. The appellant "looked pretty big. About twice, three times the size of me." The appellant's mates were trying to get him to come inside and have a drink and ignore what was happening. The appellant ran down the stairs towards the deceased. The deceased was trying to take his shirt off. The deceased's brother was attempting to calm them both down. The appellant kept going towards the deceased. The deceased was walking back trying to defend himself. By the time he tried to get away it was too late. The appellant had already hit him. It was only the one hit, a punch, really hard, right on the jaw. It looked like he was unconscious before he hit the ground. The back of his head hit the concrete. He heard a crack, like a smack. The appellant turned to the deceased's brother and asked him if he wanted some as well. He added, "I told you so. I told you so. I told you I'd get you." The appellant then ran towards "Macca's".

[17]

[16] James Pollard was a security guard working at the nearby nightclub, Mad Cow. He had met the appellant from "security on the street" and knew him as "Big Phil". The Mad Cow nightclub closed at 3.00am. Other nightclubs like The Bank had a lock-out policy after 3.00am for intoxicated patrons. Shortly after 3.00am in the early hours of 20 May 2005 he was talking to security guard, Jamie Sommerville, at the door of The Bank. A man (the deceased) was on the street offering to fight the appellant if he came downstairs. The deceased was abusing the appellant. The deceased took his shirt off and again asked for a fight. The appellant started to walk down the stairs. Pollard's attention was taken with another person on the ground. He did not see what happened between the deceased and the appellant.

[18]

[17] Jamie Sommerville was front door security and acting supervisor at The Bank on 19 and 20 May 2005. He had worked with the appellant in security at different times. Shortly after 3.00am he saw the appellant throw a punch at the deceased which hit him to the left side of the face, causing the deceased to fall over onto the ground. He described the deceased as about six foot and between 80 and 90 kilos and the appellant as about six foot and between 90 to 100 kilos. He noticed a whiplash action to the deceased's head. The prosecutor applied to have Sommerville declared hostile on the basis that he initially made a sworn statement that did not identify the male throwing the punch as the appellant and in a second statement said that he did this because he did not want to get the appellant into trouble. The prosecutor submitted that he had not come up to proof in respect of the details in his second statement. After brief evidence from Sommerville in the absence of the jury, the judge refused the application.

[19]

[18] The prosecution called but did not question Gary Newman, a security officer, and made him available for cross-examination. He was working at "Coyote Ugly" nightclub on 19 May 2005. After finishing work early on 20 May he went to The Bank because he had heard on his two-way radio that there had been an incident there. When he arrived he saw a young man lying on the footpath. Blood was coming from his nose, mouth and the back of the skull. One of his shoes was missing. He did not know the young man. He stayed with him until he was put into the back of an ambulance.

[20]

[19] Denis Jacobson was a taxi driver. At about 3.00am on 20 May 2005 he was in the taxi rank opposite The Bank on Flinders Street East in Townsville. He heard a lot of yelling and screaming. He looked across the road towards The Bank. He saw a man standing on the footpath facing the nightclub waving his hands and yelling out to another man at the top of the steps. The man on the footpath was about 180cm and of slight build. The man at the top of the steps was a lot bigger and more solid. The man at ground level pulled his shirt off and threw it onto the ground yelling at the other man to come on down. The man at the top of the stairs was being restrained. The man on the ground went towards the steps and the man at the top of the steps broke away and came down towards him at a fairly fast rate. There were a few punches swung but the struggle seemed to be mainly wrestling and pushing and shoving. The larger man from upstairs was dominating the other quite easily. They were sort of wrestling, pushing and shoving backwards along the footpath. The big man swung his right fist which connected with the other man's face. It was a pretty forceful blow. It snapped the smaller man's head back pretty quickly and he went straight backwards and hit his head on the ground. He heard a crack as he hit the ground. Jacobson was about 15m away. The bigger man stood over the deceased yelling "Come on. Get up and have another go." The man on the ground was not moving. Others pulled the big man away. Jacobson walked over to see if he could assist. He saw a pool of blood under the injured man's head. He returned to his taxi and radioed for an ambulance. The big man had walked across to the middle of the road where he stood for a minute or so before walking towards Flinders Mall.

[21]

[20] Aidan Leake, the deceased's brother, was 20 in May 2005. His brother was 19. On 19 May they joined their friends, Marion Ramos and Darren Hutchinson, at The Exchange on Flinders Street East at about 9.00pm. They went on to "the Cri" at about 12.30am on 20 May . They left there at about 2.00am. He returned to The Exchange for a time and the deceased and Marion went to The Bank. Later he joined them there. The deceased and Ramos arguing with others. There was some "swearing back and forth". He went towards them but before he arrived the deceased was dragged away by a "bouncer". Someone punched the deceased whilst the bouncer had his arm locked behind his head and was pulling him towards the side entrance. The deceased was not resisting. He saw a big, stocky male throw three or four punches at the deceased whilst he was held by the security man. He screamed at the top of his lungs in protest at his brother's treatment. The bouncer told him to leave too. He ran outside so that the bouncer could not touch him. He met up with the deceased who was enraged at his treatment. He was probably the angriest he had seen him. The deceased took off his shirt and wiped his face which had blood on it. Aidan unsuccessfully tried to calm him down. He did not see the fight with the appellant which followed. It was over in seconds. He next saw his brother lying on the ground, not moving. He left in the ambulance with his fatally injured brother. Aidan was reasonably drunk. In cross-examination he agreed that in his statement to police he had said that inside The Bank two bouncers were holding the deceased when he was hit by another person. There were two uniformed bouncers holding the deceased at that time.

[22]

[21] Marion Ramos was at school with the deceased and had known him since they were 11 years old. On 19 May 2005 he was drinking with the deceased and his brother. In the early hours of the next morning, he and the deceased were at The Bank. Ramos was involved in an altercation near the deceased. Ramos swung a few punches because he thought this person had hit the deceased. He recalled a group of people rushing through the crowd towards the front door and he followed them. He did not see the deceased leave The Bank. He next saw him lying on the ground. Aidan Leake was crying and panicking and standing near his injured brother.

[23]

[22] The appellant was examined by a doctor at the watch-house later on 20 May. He had swelling to the left side of his face, a small linear abrasion to the left side of his upper lip and some enamel damage to his left upper incisor and right lower first incisor.

[24]

Did the prosecutor's address result in a miscarriage of justice

[25]

[23] The appellant contends that many passages in the prosecutor's final jury address, set out in context below, went beyond what was reasonable comment on the evidence of prosecution witnesses and was inflammatory, resulting in a miscarriage of justice: R v Teasdale.[1]

[26]

[24] The respondent contends that the prosecutor's comments complained of by the appellant are insufficient to demonstrate that a miscarriage of justice has occurred. Prosecutors, in their final addresses to juries, are not prohibited from criticising the evidence of witnesses called by them. The prosecutor did not use the impugned evidence of the witnesses to mount an attack on the defence case because the appellant did not give evidence. The prosecutor's submissions and the judge's subsequent summing-up highlighted the importance of the crucial evidence contained on the security camera footage. Teasdale is distinguishable because, unlike the present case, it did not involve an independent video and audio taped record of the assault. Any attack made by the prosecutor on the credit of prosecution witnesses in the present case was collateral and cannot have caused a miscarriage of justice. It did not directly involve the appellant in impropriety and did not impact upon the real issues in the trial: R v Macfie.[2]

[27]

(b) The prosecutor's address and the judge's summing-up at trial

[28]

[25] The prosecutor invited the jury to reject the evidence of some of the Crown witnesses:

[29]

"... particularly the door staff either from the Bank Nightclub or from related premises. Their evidence you may conclude was disgraceful in the circumstances. And I'll - and I'll take you through pointing to you the actual facts that occurred. But their evidence was nothing less in general terms than a disgrace and showed an incredible bias towards [the appellant]. The intention of bias was to give the impression of an equal affair that took place between two combatants who were equally matched and there was no excessive force applied.

[30]

Now I'm - I implore you not to hold that bias against the [appellant]. People are biased for a variety of reasons. The general tenor of the evidence of the hospitality staff - and you might raise an eyebrow at the word 'hospitality' when I draw your attention to what you can actually see on the video. There was little hospitality going on in this evening towards [the deceased] and his brother Aidan Leake. The - the bias of the hospitality staff, the security staff, is borne out of some sort of unspoken code of conduct between security providers on that street. And there's nothing noble about it. There's nothing glorious about it. It is a disgrace in that they come before you and as members of the community you should expect other members of the community be able to tell you the truth with an honest recollection.

[31]

I - I say this conscious of the fact that I as the Prosecutor called those witnesses before you. But nonetheless, and I'll draw your specific attention to the fact where those witnesses were not just mistaken, not mistaken with the passage of time, not mistaken - well they can't - hopefully they weren't intoxicated at the time unlike other people, but they demonstrated such bias in favour of the [appellant] and it also goes to Wade Carroll, the man that the [appellant] was living with that you can virtually reject the vast majority of their evidence." (my emphasis)

[32]

[26] In discussing the evidence of security officer John Wilson as to what happened inside the nightclub preceding the fatal altercation outside, he commented:

[33]

"It's inconceivable and I invite you to conclude at that stage Mr Wilson didn't want to tell you the truth because he knew that [the appellant] had punched [the deceased] whilst he was being held from behind. You may think it's an extremely cowardly thing to do, that [the deceased] at that point was not offering any threat to [the appellant]. He might have been resisting with another doorman but the other doorman was dealing with him with - with really little difficulty." (my emphasis)

[34]

"And Mr Wilson is making up an aspect simply to account for the fact that he knows [the deceased] is injured prior to him getting to that door."

[35]

[28] When discussing Mr Pollard's evidence, he commented:

[36]

"... Mr Pollard worked at the Mad Cow and he was part of the - what I'm going to suggest to you - the disgraceful wall of silence that the - the security community have tried to put around this accused and the reason why they've done so is they just want to make it appear as if it's an even match. But it wasn't an even match from the word off." (my emphasis)

[37]

[29] The prosecutor then urged the jury to watch and listen to the security camera footage, commenting that the appellant:

[38]

"... didn't know there was audio facilities and it's only fortuitous that you have the benefit of being able to listen to the words that actually came out of his mouth because if we listen to his best mate and if we listen to the security providers you might as well put a halo around the head of [the appellant] because he didn't say anything. You're going to have the benefit of listening in detail to what [the appellant] said in this incident, 'If you want to do it, let's do it.' And he's calm and he's contrived in what he's doing and it's within minutes of him punching [the deceased] inside.

[39]

There's nothing lawful about any of this. There's nothing laudable about the smoke that's been - the smoke screen that's been attempted to put up by his security colleagues. It's a disgrace and [the appellant's] conduct from this point, you may conclude, in his position as a man who is trained and sober - we heard that from his friend, Wade Carroll, 'The alcohol hadn't affected [the appellant]. He's a big man anyway.' You may conclude that from this point on he's just behaving like a thug." (my emphasis)

[40]

[30] Again referring to the security camera footage, he commented:

[41]

"... And to be absolutely fair to [the appellant], [the deceased] is the first one who uses that word. But in the next sentence in his calm, menacing, controlled manner, intentional in his thought process, he says, 'You didn't dance that well inside, cunt.' And that is at 3.04.56. [The deceased] continues, says, 'Come down here, fuck you, I'm not finished.' So we have - we have that little exchange.

[42]

At 3.05.13 - now, I'll just remind you, this is 19 seconds after [the appellant] - on the counter after [the appellant] said, 'If you want to do it, let's do it,' 19 seconds later he hands something over to his good friend, Wade Carroll. Now, what that was doesn't really matter, but what it indicates clearly is an intention of or preparation for violence. Something that was either dear to him or dear to someone else that he didn't want to drop or get damaged. And it doesn't matter what it was, whether it was - it was a phone or not.

[43]

I suggest to you at this stage, Wade Carroll, is just as - just as judgable about what Wade Carroll did from this point of view and his evidence does colour or should colour your view of the [appellant] because it was - his involvement is with the [appellant] directly. Wade Carroll was a bare faced liar. That's the suggestion that I put to you. He said, 'I didn't hear [the appellant] say anything.'"

[44]

[31] Again, whilst referring to the security camera footage, he invited the jury to draw inferences from it in this way:

[45]

"Then somebody almost gives [the appellant] a congratulatory rub on the head. Wade Carroll hands him something back and tells him to run away. And I'll show you Wade Carroll. He's got a horizontal stripy T-shirt. That's the type of man Wade Carroll is. There's nothing noble about it. He's not protecting his friend. He's joined in. He's joined in an assault that was intended to be on two people and he's taken part.

[46]

So just look at the - the - the evidence in the light of Wade Carroll. You may conclude his evidence was a disgrace, once you look at the video.

[47]

Now, he was drinking. Let's try and be fair to him. His recollection might have been different. He was the only witness that we heard on evidence who was shown the video and asked to identify him on - on the video by the police officer. He was the only witness that we heard from who had the benefit of watching that video before he came in the witness box. Wade Carroll, a liar, to protect [the appellant].

[48]

Now, that does taint your view of [the appellant] because that is intrinsically linked with [the appellant's invitation to Wade Carroll to become involved in this process. That isn't with some sort of noble doorman's code of silence or smokescreen. He's just a liar because he wants to protect his mate.

[49]

So when you can accept and reject any evidence of prosecution witnesses - I called them for the Crown case - you judge them in the light of other evidence that you have available and you'll find Wade Carroll consistently wanting in accuracy and a fair account of what happened. He's just not being - he's not being fair to [the deceased]." (my emphasis) (all errors as in the original)

[50]

[32] The appellant also emphasised that the prosecutor in his address repeatedly referred to the deceased as a "kid" and "a little bloke" whilst describing the appellant on at least three occasions as a "thug". He twice mis-described the deceased as only five foot seven inches tall when the post-mortem report tendered as part of the prosecution case recorded that he was 183 cm tall, or six feet.

[51]

[33] After a lunch break and before the prosecution address concluded, defence counsel applied for the jury to be discharged because of the inflammatory nature of the prosecution address. The judge refused the application, noting that the prosecutor made it clear at all times that it was for the jury to ultimately determine the issues and that the comments relied on by defence counsel were at least arguably within the bounds of permissible conduct for a prosecutor. The judge concluded that he was not prepared at that late stage of the trial to order a mistrial: an appeal court would be in just as good a position, if not better, to determine whether the address amounted to a miscarriage of justice. His Honour noted, however, that some of the matters raised by defence counsel arising from the prosecutor's address were concerning. Despite those concerns, the judge finally determined that it was desirable that the trial proceed to a jury verdict with the issues being determined by an appellate court, if necessary. The judge did not direct the jury to disregard the prosecutor's inflammatory words.

[52]

[34] The prosecutor continued his address to the jury in a much less inflammatory manner. He commenced by stressing that the jury could accept or reject anything he said and that they were the judges of fact. He added:

[53]

"... there isn't anything that I have intended to say to you would seek to play upon your emotions in this case and stress that you must, in your duty as a jury, make an unemotional, impassioned, calm, collected, controlled view of the evidence in this case despite the very nature of the offence."

[54]

[35] He then continued to discuss the evidence of witnesses and to make submissions as to what he urged the jury to accept from the security camera footage. He urged the jury to reject the evidence of security officer Wilson and to find that it was "inconceivable that [Wilson] didn't feel [the deceased] being punched" whilst evicting him. The appellant does not contend that any other passages of the prosecutor's address were unfair or inflammatory.

[55]

[36] Unsurprisingly, a significant portion of defence counsel's final address to the jury was spent meeting the contentious allegations made by the prosecutor leading to the application for a mistrial. In essence, the defence address emphasised that the last punch preceding the deceased's fall coincided with his shoe coming off, as seen in the security camera footage, and that this, not a "king hit", may have been causative of his fall resulting in death, turning what was "a squabble, a bit of fisticuffs, into this tragic death". On the evidence, the jury would have a doubt, either as to whether the fall was a direct result of the appellant's punch, or as to whether the final punch may have been necessary to make an effectual defence against the deceased's assault on the appellant.

[56]

[37] The trial judge's summing-up to the jury was balanced, emphasising the security camera footage rather than the evidence of the witnesses. It did not repeat the inflammatory statements made by the prosecutor. But nor did it direct the jury to ignore them. No redirections were sought on this aspect of the judge's summing-up.

[57]

[38] The role of prosecuting counsel is one of institutional significance in the criminal justice system. It differs from that of an advocate representing an accused person in a criminal matter or a party in civil litigation. A prosecutor represents the state. They should make any evidence which could be in the interests of an accused person available to the accused person or their counsel. Their duty is not to obtain a conviction by all or any means. It is to fairly and impartially place before the jury all relevant reliable evidence. They should then address the jury as to how to use this evidence according to law when they deliberate to consider their verdict so that the jury can carry out their function of administering justice according to law and reaching a true verdict on the evidence: see R v Hay and Lindsay,[3] cited more recently with approval by this Court in R v M.[4] Prosecuting counsel must not adopt tactics that involve an appeal to prejudice or amount to an intemperate or emotional attack upon the accused person. That does not mean that in properly carrying out the role the prosecutor's cross-examination and jury address must be bland, colourless and lacking in the advocate's flourish: R v Roulston;[5] R v M[6] and R v Daye.[7]

[58]

[39] In determining whether to allow an appeal on the basis of an inflammatory jury address by a prosecutor, the critical question is not whether the prosecutor's remarks were improper but whether they may have improperly influenced the jury so as to cause a miscarriage of justice: R v M[8] and R v McCullough.[9] Central to that question is the underlying right of an accused person to a fair trial according to law. As Cooper J noted in R v M:[10]

[59]

"If procedural unfairness of this type is demonstrated, this may mean a conviction which might otherwise be perfectly proper on the evidence will be set aside."

[60]

[40] An intemperate and improper prosecution address can result in a miscarriage of justice and lead to the setting aside of a conviction; it is important a prosecutor's jury address does not distract from the true issues in the trial: R v Freer and Weekes.[11]

[61]

[41] In R v MRW[12] the New South Wales Court of Appeal determined that the prosecutor's final jury address gave rise to a miscarriage of justice. The complainant in sexual offences brought against MRW alleged that MRW's daughter was present when some of the counts occurred. MRW's daughter was called in the prosecution case. She was sworn, no questions were asked of her by the prosecutor, and she was made available for cross-examination. She gave evidence inconsistent with the complainant's and supportive of the account later given in evidence by MRW. In the prosecutor's final jury address he said that the prosecution did not rely on her evidence because it was "a version of the event given to support a cock and bull story made up by her father". The court concluded that the prosecutor's address powerfully built on the assertion that the jury could find support for the complainant's account in MRW's asserted lies and sought to nullify the daughter's account. The prosecutor's attack on the daughter's credibility was integral to the way in which the prosecution submitted its case to the jury. The witness was not given an opportunity to rebut this attack by having the allegation put to her so that she could comment on it as required by s 38 Evidence Act 1995 (NSW). In the circumstances, the prosecution address was so unfair and the subsequent judicial directions so inadequate to deal with that unfairness that the trial was fundamentally flawed.[13]

[62]

[42] The New South Wales Court of Appeal more recently considered a like question in R v Teasdale.[14] Teasdale, an off-duty police officer, was convicted of inflicting grievous bodily harm by throwing a beer glass at the complainant, causing him serious facial injuries. Teasdale was present at the hotel where the offence occurred with about 10 or 12 other off-duty police officers. The prosecutor called five witnesses who gave evidence that they saw who threw the glass. Four of those were friends of the complainant. They did not identify Teasdale as the thrower but gave a description consistent with his appearance. The other was an independent witness who knew none of those involved. He was unable to identify the appellant as the assailant. The only witness who did identify the appellant as the assailant was Mr Foster who had known him for many years but who had been arrested by him the month before on a drink driving charge. The prosecution also called nine of the off-duty police officers who were present. None of them saw who threw the glass. Constable Armstrong gave evidence exculpatory of Teasdale. The prosecution also called another witness, Mr Hofman, who was not a police officer but was a good friend of Teasdale and who also gave exculpatory evidence. It was accepted at trial that Mr Foster's evidence was critical as he was the only witness who saw Teasdale throw the glass. The prosecution case hinged on the jury's acceptance beyond reasonable doubt of the credibility and reliability of Mr Foster and the truth and accuracy of his identification of the appellant as the glass thrower.[15]

[63]

[43] The prosecutor in the course of his address poured scorn on the fact that the nine off-duty police officers had not seen the glass being thrown. He said they "seemed to have a unique ability to witness assaults on fellow-police but don't seem to be able to witness assaults on anybody else." He asked the jury to speculate if there was "some agreement ... that no-one would see the glass?" He suggested to the jury in his concluding remarks that the off-duty police officers "... didn't want you members of the jury to find out who it was that threw the glass, but fortunately members of the jury, Dane Foster saw it. In my submission to you members of the jury you should accept his evidence beyond a reasonable doubt."[16]

[64]

[44] Tobias JA, with whom Adams J and Smart AJ agreed, observed that the prosecutor's address was an assertion that there was a conspiracy of silence between the off-duty police witnesses to protect Teasdale because he was guilty of the offence charged. It was an attack upon a class of people by reason of their membership of that class of which the appellant was also a member. The prosecutor clearly invited the jury to disbelieve their evidence and without providing any basis for doing so. He had not applied to cross-examine the off-duty police officers other than Constable Armstrong.[17] Those eight witnesses were not afforded the opportunity to answer the allegation made by the prosecutor in his address that they were not truthful when they said that they did not see the glass being thrown and that they were deliberately conspiring with each other to protect Teasdale knowing he was guilty of the offence charged.[18] Tobias JA concluded that the prosecutor's conduct, in asserting that the off-duty police officers whom he had called in his case had essentially conspired to give evidence to dishonestly protect Teasdale, required the court's most severe disapproval. In order to negate a reasonable doubt raised by the evidence of Constable Armstrong and Mr Hofman, the prosecutor urged the jury to disbelieve the evidence of all nine off-duty police officers because "... they had conspired to close their eyes to the truth in order to protect their colleague [Teasdale]."[19] Whilst Mr Hofman was not a police officer, the prosecutor had made clear in his final address that he was Teasdale's friend and was included by association in the alleged misconduct of other police witnesses. Tobias JA, in allowing the appeal against conviction on this ground, considered that:

[65]

"The trial judge should at the very least have made it clear in his directions to the jury that they were to ignore the Crown Prosecutor's unsubstantiated and improper assertions. Regrettably, he did not do so. ..."

[66]

[45] By contrast, in R v Macfie[20] the Victorian Court of Appeal dismissed an appeal against conviction on the ground that the trial was unfair because of the prosecutor's approach in calling the parents of the child complainant in sexual offences and then commenting adversely on their evidence. Eames JA, with whom Callaway and Buchanan JJA agreed on this point, distinguished R v MRW[21] because the criticism of the witnesses in Macfie was peripheral to the prosecution case and the prosecutor did not rely on the suggested dishonesty of the witnesses as proof of the Crown case. Further, s 38 Evidence Act 1995 (NSW) was relevant in MRW but had no application in Macfie.[22] Eames JA also distinguished Teasdale because there the prosecutor's criticism of the witnesses was central to the prosecution case and invited the jury to simply reject sworn evidence of witnesses which was inconsistent with the Crown case as advanced by the prosecutor. By contrast, in Macfie:

[67]

"... the prosecutor was not using the suggested false evidence of the witnesses in order to mount an attack on the defence case. He did not suggest that the witnesses were in league with the accused, and were telling lies to support his defence. At its highest the attack on the parents' evidence was that by turning a blind eye to the sexual conduct of their daughter they knew of and encouraged sexual acts of the accused with their daughter, and possibly with the other girls. Their evidence, on which defence counsel relied - that they had no idea that sexual acts were taking place, nor had they seen any such conduct - could not have positively established that the offences did not occur. These witnesses, therefore, could not have been accused of colluding with the accused, by their evidence, in order to support his defence. It was never suggested by the prosecutor that they had actually witnessed any of the offences taking place. ...

[68]

... He did not seek to prove the Crown case by the indirect route of calling the witnesses liars. If they were giving false evidence as to their suspicion or knowledge it was in their own defence, not [Macfie's]."

[69]

[46] In the present case, the prosecutor in his final address to the jury initially urged them to reject evidence from door staff from the The Bank or other related premises. He described their evidence as:

[70]

"... nothing less ... than a disgrace and show[ing] an incredible bias towards [the appellant]. The intention of bias was to give the impression of an equal affair that took place between two combatants who were equally matched and there was no excessive force applied."

[71]

[47] He implored the jury not to hold that bias against the appellant but then immediately returned to criticise their evidence, suggesting that:

[72]

"the bias of the hospitality staff, the security staff, is borne out by some sort of unspoken code of conduct between security providers on that street. And there's nothing noble about it. There's nothing glorious about it. It is a disgrace ... ."

[73]

[48] The appellant was also a security officer in that street. The prosecutor attacked a class of people to which the appellant belonged by reason of their membership of that class. He asserted that this class of persons was giving dishonest evidence to damn the conduct of the deceased and to mitigate the conduct of the appellant: cf Teasdale. The prosecutor repeated this submission in discussing the evidence of security guard Wilson, submitting that he "didn't want to tell you the truth because he knew that [the appellant] had punched [the deceased] whilst he was being held from behind." He suggested that "the disgraceful wall of silence that the security community have tried to put around [the appellant]" extended to Mr Pollard's evidence and that "the reason why they've done so is they just want to make it appear as if it's an even match." Later the prosecutor referred to "the smoke screen that been attempted to put up by his security colleagues. It's a disgrace." When dealing with Wade Carroll's evidence, he referred to it as "a disgrace" and that he was "a liar, to protect [the appellant]" acting under "some sort of noble doorman's code of silence or smokescreen. He's just a liar because he wants to protect his mate." In addition, the prosecutor twice mis-described the deceased as only five foot seven inches in height when in fact he was about six feet tall.

[74]

[49] The prosecutor did not continue with any inflammatory aspects of his address after defence counsel unsuccessfully applied for a mistrial. But nothing he said to the jury subsequently was in any way adequate to undo the harmful comments previously made. The judge, either when the jury returned to listen to the remainder of the prosecutor's address or in his later summing-up to the jury, did nothing to pour water on the wildfire ignited by the prosecutor. Understandably, defence counsel in his address had to return to the prosecutor's inflammatory statements and attempt to meet them. But it was not defence counsel's task to set up the framework for a fair trial for his client. The appellant was entitled to a fairly conducted prosecution.

[75]

[50] The prosecutor's behaviour was comparable to that in Teasdale.[23] His final jury address asserted that there was a conspiracy of silence between security guards in the vicinity of The Bank, a class to which the appellant belonged, and the conspiracy was to protect the appellant and to implicate the deceased because the appellant was guilty of the offence charged. As in Teasdale, this was done without giving those witnesses any opportunity to comment on this attack on their character. This was all most unnecessary. The prosecutor could have made his points as vigorously without resorting to this attack on security officers as a class. It was not even helpful to his case. For example, the security officer Matthew Hannaford gave evidence that was very favourable to the prosecutor's contentions.[24]

[76]

[51] By contrast, in Macfie the prosecutor did not suggest that the parents of the complainant, who were called by the prosecutor and whose evidence was impugned by him in his address to the jury, were in league with Macfie and were telling lies to support his defence.

[77]

[52] In the present case, unlike in Teasdale, there was security camera footage. But this was by no means a full record of what occurred. The accounts of eye-witnesses remained highly relevant to the defences raised of accident and self-defence. The prosecution attack on the witnesses called in its case went to the heart of the issues for determination by the jury, namely whether the prosecution had proved beyond reasonable doubt that the death was not caused in self-defence or was not in law an accident. The prosecutor's assertion to the jury in his final address, that the security guards and other witnesses known to and associated with the appellant had formed a conspiracy of silence to denigrate the conduct of the deceased and exculpate that of the appellant in order to assist the appellant, amounted to a serious and unfair irregularity in the trial process. This was so, even though the appellant did not give evidence. The position may have been retrieved had the trial judge in very firm terms directed the jury to ignore those assertions. The trial judge did not do this. Almost certainly, this was because his Honour did not wish to draw further attention to those inflammatory comments and instead focussed in his summing-up on the real issues and directed the jury to them. Despite his Honour's balanced summing-up, there remains a real danger that the jury may well have been distracted by whether there was a conspiracy between the appellant and the prosecution witnesses who were security guards or his friends, instead of determining the real issues in the case. Those were whether the prosecution had negatived the defences raised on the evidence. As a result, there has been a miscarriage of justice and the appeal against conviction must be allowed. Because a retrial must be ordered, it is unnecessary to consider the second ground of appeal.

[78]

[53] KEANE JA: I agree with the orders proposed by the President and with the reasons given by her Honour for those orders. I would, however, emphasise one particular respect in which I respectfully consider that the trial process miscarried.

[79]

[54] At the trial the principal question on which the issue of the appellant's guilt turned was whether an ordinary person in the position of the appellant would reasonably have foreseen that a punch delivered with the force of the punch delivered by the appellant to the head of the deceased might knock the deceased to the pavement causing such injury that death would occur. It may be said that the Crown mounted a strong case for an affirmative answer to this question from the jury. Nevertheless, the appellant was entitled to have the question considered by the jury free of distractions which were apt unfairly to prejudice the appellant's prospects of obtaining a negative answer from the jury.[25]

[80]

[55] In this regard, the appellant was, in my respectful opinion, unfairly prejudiced by the argument advanced by the Crown Prosecutor to the jury that they should conclude that the witness Carroll told deliberate lies about his recollection of the fatal incident "to protect" the appellant, and that this conclusion "does taint [the jury's] view of [the appellant] because that is intrinsically linked with [the appellant's] invitation to ... Carroll to become involved in this process ... He's just a liar because he wants to protect his mate."

[81]

[56] This argument explicitly linked the issue as to the appellant's guilt to what the Crown Prosecutor characterised as Carroll's deliberately false evidence. It depended for its force upon the proposition that differences between what was shown on the video and audio recordings of the incident and Carroll's testimony were due to deliberate dishonesty on Carroll's part. At no stage did the Crown Prosecutor suggest to Carroll that his testimony was deliberately false. At no stage was Carroll confronted by the suggestion that his recollection was in conflict with the video and audio recordings, and asked to explain the difference. It may be that, had he been given such an opportunity, he would have conceded that his recollection was faulty. At no stage before addressing the jury did the Crown Prosecutor suggest that it was part of the Crown case that the appellant was "linked" to deliberately false evidence given by Carroll which, in turn, reflected a consciousness of the appellant's guilt. Thus the proposition on which this aspect of the argument for the Crown depended was advanced quite unfairly to the appellant.[26]

[82]

[57] It may be that the unfairness which thus arose did not necessitate the discharge of the jury, in that it could have been remedied by a sufficiently strong direction from the learned trial judge to the jury to disregard this aspect of the Crown Prosecutor's address.[27] Unfortunately, no direction in any way apt to defuse this unfair argument was given by the learned trial judge to the jury.

[83]

[58] One must, therefore, conclude that the appellant's prospects of an acquittal were unfairly prejudiced by the conduct of the Crown Prosecutor. It is not suggested by the respondent that the conviction can be sustained by the application of s 668E(1A) of the Criminal Code.

[84]

[59] DAUBNEY J: I respectfully agree with the reasons for judgment of the President and Keane JA, and with the orders proposed.

[85]

[1] (1999) 113 ACrimR 308.

[86]

[2] [2004] VSCA 209; (2004) 11 VR 215, [61].

[87]

[3] [1968] Qd R 459, W B Campbell J 476; Kenny's Outline of Criminal Law 17th ed, p 569.

[88]

[4] [1991] 2 Qd R 68, Cooper J 79-80, Kneipp J and Shepherdson J agreeing.

[89]

[5] (1976) 2 NZLR 644.