Singh v The King [2025] VSCA 95

1A ... as a result of the course adopted by the prosecutor at trial. In particular, the trial miscarried because the prosecutor:

(a) without first seeking and being granted leave from the trial judge under s 38 of the Evidence Act 2008, cross-examined Joyce Zuidam at large and for the whole of her evidence-in-chief;

(b) departed materially from his opening to the jury in his prosecution at the trial;

(c) adduced and relied upon evidence of incriminating conduct without giving notice under the Jury Directions Act 2015 or warning the Court or defence.

1B ... because defence counsel incompetently permitted the prosecutor to adopt the course he did throughout the trial.

1. ... because the prosecutor adduced evidence from the witness Joyce Zuidam that she and the Applicant had married to secure for the Applicant a visa.
2. ... as a result of the aggregate impact of some or all of the errors relied upon under grounds 1A, 1B and 2.

1. At the conclusion of oral argument on 1 May 2025, the Court unanimously was of the view that leave to appeal should be granted; the appeal allowed; the convictions set aside; and a new trial ordered. We made orders to that effect accordingly and indicated that we would give reasons in due course. These are those reasons.

1. It is necessary to summarise the evidence in the trial.
2. The evidence established that, in the early hours of 29 April 2017, Changkuoth Luak (for convenience, 'Luak'), aged 32 years,[5] was with friends at the Jim Dandy Hotel, situated in Lonsdale Street, Dandenong. While there, he was approached by Joyce Zuidam ('Zuidam'), aged 26,[6] who was at that time married to the applicant, Harpreet Singh, aged 24.[7]
3. Zuidam's evidence was that she had first met Luak a week earlier when she went to his home with his cousin, Jang Gai Jang ('Jang'), where both Luak and Jang sexually assaulted her. After Zuidam approached Luak at the hotel, she asked him if he remembered her from the week before. Luak said he did but did not know her name. They conversed for a time before Luak said he was tired and was going home. He told Zuidam that she could come with him if she wanted to. She agreed, and the two left the hotel at about 1.20 am. They walked west along Lonsdale Street towards Foster Street, and are shown on CCTV at approximately 1.45 am.
4. As Zuidam and Luak walked along Railway Parade North near the Pickett Street intersection, Zuidam asked Luak if she could use his mobile telephone. She used the phone to call Luak's cousin, Jang, but did not hand the phone back to Luak. Zuidam and Luak then continued walking, going under the railway bridge and past the roundabout.
5. At that point, the applicant appeared and struck Luak on the back of the head from behind with a piece of wood. Luak fell to the ground and the applicant struck him repeatedly with the wood (charge 1). The applicant and Zuidam then left, still in possession of Luak's phone (charge 3). Luak lay seriously injured and unconscious on the ground until found by a police officer, Sergeant Keith Bellinger, at approximately 2.10 am. Police and paramedics attended to Luak, who was taken to the Alfred Hospital and treated for serious injuries, including a fractured skull; a fracture to his right leg; a fracture to his left arm; a fractured bone in his right hand; and a lacerated liver. In the opinion of a forensic medical expert, Dr Jason Schreiber, Luak suffered blunt trauma to multiple body locations. The injuries were life-threatening, and likely to cause a poor quality of life.
6. Subsequent police investigations showed that a SIM card had been inserted into Luak's mobile phone. That SIM card was traced to the applicant's brother-in-law, Sandeep Kaur, who confirmed that only the applicant used that SIM card.
7. Police arrested and interviewed the applicant on 15 June 2017. In the course of a record of interview, the applicant stated that he acted in self-defence and in defence of Zuidam. He admitted that he used a piece of wood to hit Luak; hit Luak a few times; and took Luak's phone and used it. Further, the applicant claimed that:
   • Zuidam had told him that she had been raped by two men a week prior;
   • he and Zuidam went looking for the men, so as to identify them for the police;
   • Zuidam found one of the men in the Jim Dandy hotel, and left with him;
   • the applicant followed them;
   • during the walk, Luak commenced another sexual assault on Zuidam;
   • the applicant then went to her assistance;
   • two or three African men then appeared and they, together with Luak, started to assault the applicant; and
   • the applicant defended himself with a piece of wood that he picked-up from the ground.

1. In order to understand the issues raised by the grounds of appeal, it is necessary to set out in some detail the manner in which Zuidam's evidence was approached at trial.
2. Initially, Zuidam refused to make a statement to police. On 24 March 2021, however, she made a statement to Senior Constable Matthew Whelan at Dandenong Police Station. That statement - which was tendered by the defence at trial and became Exhibit 3 - supported the applicant's version of events. Earlier, on 16 March 2021 and 19 March 2021, Zuidam had signed statutory declarations. Those declarations - which were tendered by the defence at trial and became Exhibit 1 and Exhibit 2 respectively - also supported the applicant's version.
3. Zuidam also gave evidence at a pre-trial hearing on 21 June 2021, conducted pursuant to s 198B of the Criminal Procedure Act 2009. Once more, her evidence was consistent with the applicant's version of events.
4. The applicant's first of three trials commenced on 3 July 2023. Shortly after the judge in that trial assumed the bench on the first morning it was listed, there was the following, somewhat obscure, exchange between the judge and counsel:[8]

[PROSECUTOR]: ... Your Honour will see that my learned instructor wrote to the court and put the parties, and most importantly, Your Honour will notice that there was an application by the Crown for a preliminary ruling with respect to the evidence of Ms Zuidam.

HER HONOUR: Yes.

[PROSECUTOR]: We had understood that to be opposed, and without speaking for [defence counsel], understand that there is no opposition to that course now being proposed by the accused, and in any event, a good deal of the evidence of Ms Zuidam is required by the Crown to be accepted as truthful in any event. So there are some discrete issues that we would cross-examine her about, but it won't be in a sense a holus-bolus cross-examination of that witness, but when we do get to critical points about what she was told and when she was told and what happened on the night, she'll be challenged on some of those by us, but not in any vociferous way.

HER HONOUR: All right. So you're content with that arrangement, [defence counsel]?

[DEFENCE COUNSEL]: Content's a good word, Your Honour, and well used. Being as old as I am, I'm - - -

HER HONOUR: Oh, come on, [defence counsel].

[DEFENCE COUNSEL]: I'm as aggressively against the new Evidence Act - in narrow focus - - -

HER HONOUR: I suppose it shows that you've been around a long time when you refer to a 2008 piece of legislation as 'the new Evidence Act'.

[DEFENCE COUNSEL]: Well, yes, Your Honour, and I practice in New South Wales occasionally, so it takes that back even further. But Your Honour, the reality is the old hostile witness issue is now statutorily cured by s 38 and other sections, and I don't wish - didn't wish - and neither of us sought to wish to waste time. It is an unusual trial because we have a witness who gave a statement for the first time very late in the investigation, and quite a while ago now - the events having occurred six years ago - and it has aspects of it that my learned friend will seek to rely upon, and indeed aspects of it that Your Honour would be aware of that we will be seeking to rely upon.

HER HONOUR: Yes.

[DEFENCE COUNSEL]: And so it would be wasting the court's time for us - certainly after private conversations between the learned prosecutor and I that have indicated to me, to my satisfaction, that he will be acting very fairly and properly in the - - -

HER HONOUR: I would have no reason - - -

[DEFENCE COUNSEL]: - - - practical application - - -

HER HONOUR: - - - to believe that [the prosecutor] would be other than that, and - - -

[DEFENCE COUNSEL]: Yes - - -

HER HONOUR: - - - Mr [Counsel's name].

[DEFENCE COUNSEL]: - - - and his attitude has helped in our resolution of our attitude to this issue, Your Honour.

HER HONOUR: Well, that is good news. ...

1. Notwithstanding the imprecision with which the submissions of both the prosecutor and defence counsel were expressed, the following may be drawn from the exchange immediately above:
   • first, the prosecutor and defence counsel had discussed the fact that the prosecution would make application for a ruling permitting the prosecutor to cross-examine Zuidam;
   • secondly, the prosecution had written to the court and the defence communicating its intention to make such an application (presumably cognizant of s 38(6)(a) of the Evidence Act 2008);
   • thirdly, defence counsel understood that the prosecution's proposed application was made pursuant to s 38 of the Evidence Act 2008, which 'statutorily cured' the 'old hostile witness issue';
   • fourthly, there was 'no opposition' by the defence to the prosecution's application;
   • fifthly, anticipated cross-examination would not be 'holus-bolus' (that is, as we understand it, wholesale or indiscriminate) or 'vociferous' (presumably, insistent and forceful);
   • sixthly - and allied to the fifth matter - when 'critical points' were arrived at, the prosecution sought to cross-examine Zuidam about 'some discrete issues', and challenge her evidence on some 'critical points about what she was told and when she was told and what happened on the night'; and
   • seventhly, 'a good deal of the evidence of Ms Zuidam is required by the Crown to be accepted as truthful in any event'.
2. It is noteworthy that, although the prosecutor indicated that the prosecution did not seek to conduct a wide-ranging cross-examination, and sought instead to challenge Zuidam's evidence only on discrete issues, the prosecutor did not specify with precision (or at all) what those issues might be. Moreover, the judge did not (provisionally) rule on the mooted application.
3. In the morning of the next day - a jury had been empanelled immediately after the lunch break the previous day - the prosecutor opened to the jury and defence counsel responded. The prosecutor then indicated that Luak had said something to the informant which prompted the prosecution to seek a discharge of the jury. It is unnecessary to say any more about the issue that was the basis of the prosecution's application. The judge discharged the jury, explaining to them that 'there's been material that's come to light that requires investigation'.
4. A second trial commenced before another judge on 27 February 2024. Prior to empanelment, there was the following exchange involving the judge and counsel:

[PROSECUTOR]: Your Honour will see that there were a number of matters discussed at the last trial that I just simply want to flesh out before we get into the meat and potatoes of this matter. Principally, the evidence of both the complainant and the witness Joyce Zuidam is such that both of them have been given 128 [i.e. s 128 of the Evidence Act 2008] advice previously. We will likely provide that further advice to them and, as I understand it, the certificates were given in the Magistrates' Court and witnesses are prepared to answer questions under the protection of that certificate.

So we simply advise the court that the 128 matter will take its course and we will advise Your Honour when that advice has been given. Secondly, the evidence of Ms Zuidam is, classically, adverse evidence under the new Act with respect to its content and Your Honour may have gleaned by the way in which she was cross-examined at the committal that there was an arrangement between the parties that she could be gently cross-examined, for want of a better description. [Other prosecuting counsel] had the care of the matter in the Magistrates' Court.

Obviously, I will be - and this was a matter that was discussed and my memory is that we settled it between the parties at the last hearing that there was no impediment to me taking a similar approach with her. I will be opening to the jury that she's an adverse witness and gives evidence counter to the Crown narrative in so far as the, what I might describe, the group attack that is alleged to have taken place.

I'll be challenging her on some issues that fall from that but if there is a need for a ruling as to that, I don't believe there is, Your Honour, but I'll leave that to [defence counsel] to raise with Your Honour. I do intend to lead her in chief in the normal way but on a number of discrete issues that she's inconsistent with the Crown case to challenge her on as an adverse witness.

HIS HONOUR: I mean, informally cross-examine her.

[PROSECUTOR]: Well, it will be cross-examine in the sense that the questions will be leading and I will challenge her on it but I won't be, in a sense, breaking stride from evidence in chief in any great way. Classically, I might cross-examine from the very beginning but I want to see what I can get within an evidence in chief setting in a non-leading way before we get - - -

HIS HONOUR: And the defence side of the table have no objection to that course?

[DEFENCE COUNSEL]: In the circumstances, no, Your Honour.

1. Several things may be gleaned from the above:
   • first, the prosecutor considered that 'the evidence of Ms Zuidam is, classically, adverse evidence under the new Act with respect to its content' (that statement probably being intended to convey that the content of Zuidam's evidence was 'unfavourable' to the prosecution, the use of the adjective 'adverse' being redolent of the common law rules that were abrogated by s 38 of the Evidence Act 2008);
   • secondly, for the purposes of Zuidam's evidence at committal, the parties had agreed that she could be 'gently cross-examined' (whatever that is meant to convey);
   • thirdly, for the purposes of the first trial it had been 'settled' between prosecution and defence that the prosecutor could adopt a similar approach (that is, presumably, 'gently' cross-examine Zuidam);
   • fourthly, the prosecutor would open that Zuidam was 'an adverse witness', in the sense that her evidence about the 'group attack' is 'counter to the Crown narrative';
   • fifthly, on a number of unspecified 'discrete issues' where Zuidam's evidence is 'inconsistent with the Crown case' the prosecutor would 'challenge her on as an adverse witness' (albeit that, save to intimate that they related to the group attack, those issues were not identified with any precision);
   • sixthly, the prosecutor did not believe that there was any need for the judge to rule that the prosecution be permitted to cross-examine Zuidam, but that, if a ruling was required, the prosecutor would leave that to defence counsel to raise with the judge;
   • seventhly, the judge understood that the prosecutor was flagging that he would 'informally' cross-examine Zuidam; and
   • eighthly, defence counsel had no objection to the proposed course.

(It also appears that both Luak and Zuidam had been granted certificates under s 128 of the Act for the purposes of giving evidence during the applicant's committal proceedings.)

1. Once more, it is noteworthy that although the prosecutor indicated that he sought to challenge Zuidam's evidence on 'discrete issues', beyond intimating that those issues related to the 'group attack', he did not specify with precision (or at all) what those issues might be. Furthermore, the judge was not called upon to rule on the course indicated by the prosecution, defence counsel indicating that there was no objection to what was proposed.
2. As it transpired, due to a difficulty relating to one of the jurors, the jury in the second trial was discharged the next day, 28 February 2024, before any evidence was called.
3. The third trial - which resulted in the applicant's conviction - commenced the following day, 29 February 2024, and the prosecutor opened to the jury. In doing so, he submitted that, on the prosecution case, Zuidam was not to be accepted as a witness of truth as to what occurred at the scene of Luak's alleged assault. The prosecutor did not, however, seek to assail Zuidam's credibility in a general way. Among other things, he said:

I also say this about Ms Zuidam. She is not to be accepted on our case as a witness of truth with respect to what happened at the scene of the assault. The things that she says about what happened at the pub and the walk home are broadly consistent with Mr Luak will say. But as to what happened at the scene, I'll be approaching you at the end of this trial and saying on the evidence as you've heard it you should be rejecting her as a woman who years after the event makes a statement that broadly supports her husband about what they say collectively happened at the scene. ...

1. In his response to the prosecution opening, senior counsel for the applicant spent a deal of time outlining the evidence that Zuidam would give supporting the defence case. He asserted, in effect, that her evidence corroborated the account given by the applicant to police in the record of interview. Indeed, not only was senior counsel at some pains to make it clear to the jury that the defence placed great reliance on Zuidam's evidence, he went so far as to suggest that Zuidam's evidence spelled the end of the prosecution case. By way of example, counsel said:

She will tell you this witness of truth with the qualification that she wasn't always telling the truth, so the prosecutor says. You won't find it hard to guess what my attitude to that is. She's a Crown witness. I'd be very surprised when I finally address you at the end of the day, I do anything other than say she's a witness of truth, members of the jury. That's the end of the case. Because she will tell you that yes, it is so, that she and Mr Singh went to the Dandenong Hotel complex on this night to collected detailed evidence of who it was she had told her husband had violated her a week earlier when two men against her protestations raped her. ...

1. Further, when cross-examining Luak, senior counsel for the applicant tied the applicant's defence to Zuidam's evidence, relying heavily on the evidence she would give contradicting Luak's account. One example will suffice to make the point:

We are going to hear from Joyce [Zuidam] after you finish your evidence as you expect don't you, you understand that. And you know, don't you, that she alleges against you and your cousin for the time we're not talking about from let's pick your 5 to 11, but in the early hours of that morning that you sexually assaulted her?---No.

You know that's what she's going to say don't you?---If, if I sexually assaulted her she would call the police. She would do it.

I'll ask you the question again?---I'm, I'm not going to sexually assault, assault, assault her while I was with my cousin together.

I'll ask the question again?---Yeah.

As you give your evidence there you know that Joyce after you is going to say that you sexually assaulted her. You know that don't you, already?---Oh.

Me putting it to you now doesn't take you by surprise surely. You know that to be alleged against you don't you?---Oh, cause I'm a hundred percent sure I didn't have sex with her or nothing.

That's a different issue?---That's so.

You say you didn't have sex with her but you know that she complains that you did?---How come she didn't call the police.

Listen to the question I'll ask it again. As you stand there you know she's about to complain that you sexually assaulted her don't you?---Oh.

You don't know that she's going to complain?---I, I didn't sexually assaulted her. They were with my cousin.

You say you didn't sexually assault her?---Now you're telling me she's forcing me to accept something I did not do, right.

All right, well let me put it to you with more particularity. Bear with me for a moment. 'Two men', one of them being you and at your premises, 'Two men', a week before the night that she said hello to you at the pub, 'took advantage of me and performed sexual actions against me, against my permission and wouldn't stop even though I had asked them to and tried to push them away and even bite one of them'?---So, what's the question? Where's the proof?

That's the question?---Where's the proof.

Wait till I finish asking you about that. That's what I say we will hear from her, amongst other things after you've given your evidence and she gives hers. Now, you've already said you didn't do anything that night. Did you know that that's what she was going to say?---I didn't know. How would I know.

And she is going to say that whilst your cousin was having sexual intercourse with her from behind, you were asking if you could put your penis in her mouth. That happened?---It, they never have sex in house.

1. Notably, when Zuidam was called to give evidence, the prosecutor cross-examined her at large, without first seeking leave under s 38 of the Evidence Act 2008 to do so. The cross-examination was wide-ranging, and extended well beyond the bounds that the prosecutor had identified in opening.[9] Indeed, the prosecutor's initial questions were calculated to establish that the applicant's and Zuidam's marriage was a sham, entered into to evade immigration laws, thereby suggesting by a sidewind that the applicant had colluded with Zuidam and was of bad character:

All right, fine. Now, this all begins back in 2017 in April and as I understand it Mr Singh was your husband at some point in 2017?---Yes.

And there were two events weren't there. There was the one on the roughly between 22 April and the one a week later on 29 April?---Yes.

When were you married to Mr Singh. When did you get married, the date of the marriage?---I don't really remember to tell the truth. It wasn't like a wedding thing. Just an office kind of marriage.

It was a real wedding though wasn't it?---Yep, well, it was supposed to be at the (indistinct).

Well, did you consider yourself married in the formal sense?---Yeah, yes.

Was it a marriage of love and affection or was it a convenience marriage for visa purposes or something like that. Pretty easy question?---Is this the part where I ask for a certificate [under s 128 of the Act].

No, no, you've just got to answer the question. Was it a marriage for love - - -?---No.

- - - and affection or was it a convenience marriage for visa purposes?---Ah, convenience, I suppose.

And in that sense, pardon me, you were marrying him, Mr Singh, for your own benefit if I can put it that way, financial benefit perhaps?---No way, no.

All right, the first incident [the alleged sexual assault] is said to have taken place on 22 April and the records that we have from the births, deaths and marriages registry is that you were married on 26 April?---Oh, okay.

Does that help you remember?---IF that's what it says that's what it says.

And the second event [the alleged assault on Luak] here happened on 29 April?---Yeah.

So, putting them in order you were his fiancé on the 22nd where you say that you were sexually assaulted. You were married a few days later, four days later on the 26th and three days after that you say that you met up with one of the men that sexually assaulted you at the pub in Dandenong. Have I got the order right there?---Yes.

...

Over the course of the week, you got married?---Yes.

And - - - ?---Was planned before then may I add.

Sorry, it was?---It was planned before that may I add.

All right, had you not done what Mr Singh had wanted you to do, did you think that that might have had some impact on whether or not you got married?---Ah, I didn't marry him for my benefit.

No, you married him for his benefit?---Yeah, so what do you mean?

Well, I'm asking you what was the benefit that you say accrued to him by getting married to him?---Well, I dated him for a while and that's what was gonna happen and then we broke up and then I just still, then it happened so he was trying to save something, I guess.

Saved?---Well, the whole citizen thing.

All right, so it was a visa thing. You married him to help him get a visa?---He was a good guy.

Whatever, but you married him to help him get a visa?---Yeah, sure.

Well is that true or not?---Yes.

1. The prosecutor also alleged that Zuidam had lied about the alleged sexual assault on her:

All right, well I'm not going to go through any of that detail you will be pleased to know. I just want to suggest to you that [Luak] didn't sexually assault you at all on that night and I guess you would say yes, he did?---So you were just saying that he didn't, is that what you just said.

Yes, I'm just suggesting to you madam that he didn't and I take it your evidence would be that he did?---Yes.

Well is that right?---Yes, that's right.

Did you report what happened to you that night according to what you say to the police?---No.

Did you go to the doctors?---No.

Did you go to the GP - the hospital - the emergency

services?---No.

Did you get any treatment for STDs or anything like that?---I did actually not too long after that I did go and get myself tested so yes, I did.

...

You didn't want to tell [your husband] did you, that you'd spent the night with a strange man, did you?---Oh, see where you're going with this. Um - - -

No traps?---No, of course not. Um, yeah.

You would've had to have told him something about the night before. I'll put it to you squarely madam, did you make up an allegation to your husband that you'd been sexually assaulted to stop him getting angry at you for being somewhere that you shouldn't have been four days before your wedding?---No, I did not.

1. Without objection from the applicant's two counsel - indeed, with their apparent acquiescence - and without leave having been granted by the judge, the prosecutor was permitted as the cross-examination unfolded to put to Zuidam that she was making her evidence up and providing 'a false narrative'; to put to her prior inconsistent statements from her police statement; and to cross-examine her in an unconfined manner.
2. Eventually, Zuidam again raised the possibility of asking for a certificate under s 128 of the Act.[10] In the discussion that followed, the judge observed that the direction that the trial had taken arose from the 'latitude' that had been allowed the prosecutor. It also appears that the prosecutor seems to have held the view that, had he made an application under s 38, it was inevitable that the judge would have 'allowed [him] full cross-examination':

[PROSECUTOR]: Perhaps to recap Your Honour, I had just asked the witness, reminded her that she's on her oath and asked her whether the narrative involving the men, to use the vernacular, was truthful and she's paused for some considerable time and asked for a certificate on that point. Others might have a - - -

HIS HONOUR: She mentioned the certificate with the visa question.

[PROSECUTOR]: Yes, I am about to ask her that question and if the answer comes out - - -

HIS HONOUR: Which question?

[PROSECUTOR]: The question as to whether she's making up the involvement of these men and we paused at what might have been the moment where - well, she's asked for the certificate on that very threshold and I am concerned - I'm not wanting necessarily to trap this witness into anything but if the truthful answer is yes in response to my question, that has implications for everyone, her included and as I said, I don't necessarily want to be putting her in a position where certificate notwithstanding, she finds herself now faced with curial perjury.

HIS HONOUR: On the basis of her statutory declarations?

[PROSECUTOR]: Or on the basis that she's - well, non-curial perjury, in any event and her statement and her evidence that the 198 on oath in front of - I don't know who the judge that took that was but yes. We pause on that threshold and I do it in fairness to the witness.

HIS HONOUR: Well, I can remind her that the certificate has the effect which I told her in the first place.

[PROSECUTOR]: It seems to me Your Honour, she has the right to refuse to answer my question on the basis that it's not covered by that certificate and such a refusal to answer the question once she - if she indicates that she doesn't want to answer it, would be the question that I'd ask in front of the jury knowing that she would decline to answer and I don't think I'd have much more for her but she ought be reminded by Your Honour with respect, that the certificate doesn't cover her for perjury.

I've reminded her about her oath. We paused at the edge of that question for a moment and I don't want it suggested of me that I am somehow not giving this witness the opportunity to protect herself from an answer that might incriminate her in a way that's not covered by the certificate. So, with respect, I pause for her benefit, notwithstanding it may come with a consequence.

HIS HONOUR: Well, it's come about because of the latitude that's been allowed you to in effect - - -

[PROSECUTOR]: Your Honour, she's - well - - -

HIS HONOUR: - - - done with the witness - if you had been always asking non-leading questions, it's unlikely we would've reached this stage but I understand that was done with the consent, specific consent of your learned colleagues. But we've now reached that stage where you're asking in cross-examination in effect, a false narrative and this has thrown up these issues. Wouldn't a better way be that you just desist?

[PROSECUTOR]: That she?

HIS HONOUR: You desist. You don't ask that - you don't press that question.

[PROSECUTOR]: I want the answer to that question.

HIS HONOUR: I know you want the answer but if it were to be put in a non-leading fashion, you wouldn't have reached this point.

[PROSECUTOR]: With respect, Your Honour, if it had required a ruling on whether or not she was - and clearly is - an adverse witness within the current and modern definition under the 2008 Act, putting aside historical positions with respect to being hostile, that application would've allowed me full cross-examination and we would have reached this point.

HIS HONOUR: What about the application.

[PROSECUTOR]: Well - - -

[DEFENCE COUNSEL]: Your Honour, could I be heard on this?

[PROSECUTOR]: It's, respectfully, hard to see how this evidence could not be seen as adverse to the Crown case, the Crown narrative. It's just flatly adverse.

HIS HONOUR: Not adverse to her statement, is it. The statement she made to the police.

[PROSECUTOR]: Yes, but that's not the measure of her adversity to the Crown case. It's simply whether or not she is inconsistent with the narrative that is the case - - -

HIS HONOUR: I think we're going off on a tangent.

[PROSECUTOR]: Yes, Your Honour, I'll step back.

1. Remarkably, defence counsel then joined with the prosecution in seeking a ruling under s 38 of the Act, retrospectively granting the prosecutor leave to cross-examine Zuidam. We set out the discussion between counsel and judge in full, since it demonstrates the lack of rigour exercised by counsel at both ends of the Bar table:

[DEFENCE COUNSEL]: Your Honour, there's another matter that's inadvertently arisen and perhaps if we'd been more attentive, we could've attended to it. There's been a lot of discussion in this matter on the issue of my learned friend having the ability to make application which he's made, to cross-examine his own witness.

HIS HONOUR: Hasn't made any application. I understood - might've been in the course of the first trial for goodness' sake - that it was agreed between you and him that he would be allowed this latitude. You said as much to me and he's done as much in his examination-in-chief of the witness. A lot of it has been cross-examination.

[DEFENCE COUNSEL]: Well, most of it. So, I'm not being critical on that sense.

HIS HONOUR: No, because you agreed with it.

[DEFENCE COUNSEL]: And I'm going to enjoy dealing with it later.

HIS HONOUR: What are you submitting I should do now?

[DEFENCE COUNSEL]: Only to point out that normally, there's a formal ruling that permits the course - I'm not speaking against it but we note that Your Honour hasn't formally ruled in favour of the prosecution's ability to cross-examine this witness. It's a very simple matter but it does require Your Honour's formal dealing with it, in our submission.

HIS HONOUR: Don't like your timing much, [defence counsel].

[DEFENCE COUNSEL]: And I apologise for that. It perhaps should've been - we all assumed, Your Honour and my learned friend and I, that what was going to happen and then it started to happen and the last thing I was going to do was seek to interrupt my learned friend to say what I'm now saying but we've now got the ability - - -

HIS HONOUR: But you're - - -

[DEFENCE COUNSEL]: - - - to do that.

HIS HONOUR: You're seeking from me now at this late stage, a formal ruling.

[DEFENCE COUNSEL]: Yes, Your Honour because there isn't one and my learned friend's cross-examining a witness without a formal ruling. It's all very well for us to inform and as Your Honour pointed out, we have - that we have both worked on the basis that my learned friend would have this ability and I don't seek to dissuade Your Honour from that but it does require an order of the court in a criminal trial for it to happen and there hasn't been one.

HIS HONOUR: All right, what do you want to say, [prosecutor]?

[PROSECUTOR]: That being so, I make the application. It's always a discretion to the court that this was a matter that was discussed at the last trial and this between my learned friend and I and I don't - no one is pointing fingers at anyone but if Your Honour's required to make a ruling, then we invite Your Honour to make a ruling that she's an adverse witness within the definition of the section, s 38 and that the Crown is properly permitted under that section to cross-examine the witness in the way that has taken place, consistent with what I'll call the Bar table agreement. Your Honour doesn't have to do that immediately as in as an extempore decision. That can be a considered ruling that Your Honour publishes at a later point if required.

HIS HONOUR: All right, so it's a brief submission. Do you want to say anything, Mr - - -

[DEFENCE COUNSEL]: No, Your Honour. It's perhaps an over-sensitivity to proper formality in criminal trials but it is a formality that requires Your Honour's judicial intervention, usually - and this is part of my apology - before the physical expression of evidence given takes place.

1. The judge then delivered a brief ruling granting the prosecutor leave to cross-examine Zuidam:

All right, well I will allow the application. Section 38 deals with unfavourable witnesses and this is more of on the basis that the evidence given by the witness, it is unfavourable to the party calling her which is the prosecution. So, I will grant leave to question in the form of what is to be taken to be cross-examination. If either of you require formal and more detailed reasons, I am happy to provide them in due course.

1. Thereafter, the prosecutor resumed his cross-examination of Zuidam. What then occurred could fairly be described as disastrous for the defence. The following passage is illustrative:

Now we had just gotten to the stage in your evidence where I was suggesting to you that your narrative that you've just given to the jury about there being other men involving themselves in the fight, I suggested to you that that was a false narrative. That it was untrue. Do you remember me asking that?---Yeah.

I'll ask it simply, is that a false narrative what you were saying about the involvement of these other men?---Yes.

Thank you. It's the case isn't it that there were no, to use the air quotes, other men, were there?---No.

And insofar as what happened at the scene is concerned, [Luak] was assaulted by Mr Singh from behind wasn't he?---Yes.

And Mr Singh gave no warning to [Luak] that he was about to approach from behind and strike him, did he?---No.

And he struck him with an object, a piece of wood or a bat of some sort?---Yes, an object.

Do you know what the object was?---Yes.

And what was it?---A bar.

Made of?---Metal.

Where did the bar come from?---He had it in his car.

Was part of the plan that you had with Mr Singh to strike [Luak] with the bar?---This was Harpreet's plan, yes.

You tell the jury what Harpreet's plan was?---He wanted to hurt him for hurting me.

So it was a pay back revenge attack by Mr Singh against [Luak]?---Yes.

Did you and he talk about making a false narrative that included these other men?---Yes.

Was it his idea to have these other men involve themselves in the narrative to try and make it look like Mr Singh was acting in self-defence?---They wrote it all down. I said it.

...

Who is the 'they' that wrote it all down?---Um, his wife maybe.

All right, I'll just ask it this way. Was it Mr Singh who asked you to say these things to help him in his case?---Ah, well, yeah, he yeah. Not directly to me at that time. Through someone else.

Okay, but you understood that you were being asked to say something that wasn't true to help - - -?---Not the whole truth, no.

Okay, dealing with the assault. I can be categoric here. It's just the events at the scene of the assault that I'm referring to now?---Oh. Okay. Yeah.

You understood that you were being asked to say something that wasn't true to help Mr Singh in relation to the assault that happened near the railway line?---Yeah.

Were you given money for that?---Yes.

What is the truth of it, now is your opportunity. Please just tell the truth?---Um, well it's pretty much the way that it went besides, um, the aim. So I guess, um, I went there to get him into the dark so Harpreet could hurt him.

And that was Harpreet's idea?---Yes. It's the truth, it's the truth that I didn't want to do anything about it. I just wanted to go back to South Australia. That's the truth of the matter.

And did you feel forced to do it?---Well, he kept, he wouldn't let me go back and he kept me there. So, yeah, I suppose so.

1. Defence counsel then sought time to take instructions, since 'matters have now arisen for the first time unexpectedly'. Counsel needed 'time to properly prepare what was not expected'. The judge gave counsel time, adjourning the trial to the following day.
2. When senior counsel for the applicant cross-examined Zuidam the next day, he abandoned the approach that he had set out in his response to the prosecutor's opening. During the cross-examination, senior counsel put it to Zuidam that the truth was reflected in her statutory declarations and police statement, a proposition that she rejected. Zuidam claimed that the applicant's pregnant wife (or partner) had turned up on her doorstep and offered her money to make false declarations and statements to the police. Counsel took Zuidam through her statutory declarations, police statement and evidence at the s 198B hearing, proposition by proposition, and had her identify what was true and what was false. The applicant's counsel also took Zuidam through (and tendered) a bundle of text messages she exchanged with the applicant between September 2017 and February 2020 disclosing affection between the two. Counsel put to Zuidam that, during the preceding two years, and after the applicant had stopped supporting her financially and had re-partnered, she grew to resent him. Defence counsel also put Zuidam's prior convictions to her. Of some significance, Zuidam gave evidence that the applicant's new (pregnant) wife had 'just rocked up on [her] doorstep', and told her 'she wanted [Zuidam] to try save her husband 'cause she was pregnant and um, didn't want him to go to gaol and wanted [Zuidam] to help and give [Zuidam] money'. Zuidam said that the applicant's new wife offered Zuidam money to lie because the applicant 'would get in a lot of trouble and probably get deported'.
3. Finally, we note that counsel for the applicant sought an 'unreliable evidence' direction under s 32 of the Jury Directions Act 2015 ('JDA') with respect to Zuidam's evidence. In his charge to the jury the judge gave the request direction. Counsel did not ask for, however, and the judge did not give, any direction concerning incriminating conduct under ss 21 or 22 of the JDA, relating Zuidam's evidence to the effect that the applicant had attempted to pervert the course of justice by paying her to lie.

Grounds 1A and 1B: The conduct of prosecutor and defence counsel

1. Given that ground 1B alleges incompetence on the part of the applicant's trial counsel, the Court, as has become the practice, directed that counsel be informed of the allegation and be given a chance to respond.[11] In the result, the applicant's senior counsel filed an affidavit, sworn 15 April 2025, and gave viva voce evidence in this Court.
2. Counsel's affidavit was as follows:
   1. By e-mail dated 25 March 2025, I received from the Supreme Court - Court of Appeal Registry mail disclosing the existence of an appeal lodged in that Registry on behalf of HARPREET SINGH, against his conviction, by jury verdict, on 12 March 2024, on two charges he faced.
   2. I was also provided with copy of the Applicant's Revised Written Case, and the Respondent's Revised Written Case. Both documents are filed herein.
   3. I also had my attention drawn to the decided case of Knowles (a pseudonym) v The King [sic] (2015) VSCA 14.
   4. This affidavit is sworn by me due to this material being brought to my attention. I no longer act on behalf of Mr SINGH. I have not had any input into the preparation of his appeal.
   5. I appreciate, at once, the limited value to the Court of an affidavit such as this but felt constrained to make several observations.
   6. I acted on behalf of Mr SINGH throughout his trial, and had as my learned junior [name] of counsel.
   7. It is the case that the evidence of JOYCE ZUIDAM was always going to be given upon the call of the prosecution, and that it was likely that her hostility would allow for the prosecutor to cross-examine her pursuant to law.
   8. I advised Mr SINGH of the practical consequences of the situation.
   9. On behalf of Mr SINGH, I made it clear to the learned prosecutor that in his declared intention to call M ZUIDAM as a prosecution witness, the defence did not oppose his desire to cross-examine the witness. The trial proceeded on that basis, and Mr SINGH enjoyed the benefit of the prosecution calling her as a witness, and we, on his behalf, having the ability to cross-examine her.
   10. During her evidence-in-chief, she became clearly frustrated, and eventually gave evidence, both in content and delivery, which had a devastating negative impact upon Mr SINGH's prospects of acquittal.
   11. I deny that by agreeing with the prosecutor that he be able to cross-examine Ms ZUIDAM, and, further, by failing to seek a discharge of the jury following on from the evidence she gave, referred to in the previous paragraph, were errors demonstrating my forensic incompetence. On the contrary, both decisions were made in the best interests of Mr SINGH.
   12. Otherwise, counsel is concerned that instructions received from Mr SINGH, during the currency of the trial process, must be protected, and that no further argument, in reliance upon such instructions, can be properly here made.
3. There are several observations that may be made of the content of senior counsel's affidavit. First, counsel deposed that Zuidam was always going to be called by the prosecution, and 'it was likely that her hostility would allow for the prosecutor to cross-examine her pursuant to law'. Counsel's reference to 'hostility' invokes notions of the common law 'hostile witness' rules, which were abrogated by s 38 of the Act. Senior counsel made no reference to the requirements of s 38 of the Act, however, and the limitations it places on a party's capacity to cross-examine a witness called by the party, let alone endeavour to explain why he regarded it as a virtual fait accompli that the trial judge would grant the prosecution unfettered leave to cross-examine Zuidam.
4. Secondly, senior counsel swore that he advised the applicant 'of the practical consequences of the situation'. He did not, however, explain what he perceived those practical consequences to be, or what he told the applicant they were.
5. Thirdly, counsel deposed that he 'made it clear to the learned prosecutor that in his declared intention to call [Zuidam] as a prosecution witness, the defence did not oppose his desire to cross-examine the witness'. Counsel did not, however, explain which limb of s 38(1) of the Act might have been engaged; why he considered leave would inevitably be given; why he was content to permit the prosecutor to cross-examine at large; why he did not oppose the prosecutor making a general and concerted attack on his own witness's credibility; or why he did not seek to impose any limits on the proposed cross-examination.
6. Fourthly, although senior counsel made a blanket denial that by agreeing that the prosecutor could cross-examine Zuidam he demonstrated 'forensic incompetence', he provided no analysis or insight into his forensic decision-making. Moreover, counsel gave no reason for failing to resort to the simple expedient of seeking a discharge of the jury after Zuidam's devastating evidence (which, so the transcript reveals, counsel asserted had taken him by surprise). Nor did counsel explain why he considered that these decisions 'were made in the best interests' of the applicant.
7. Upon the hearing in this Court, the applicant's senior counsel at trial gave oral evidence, parts of which we will summarise. When cross-examined by the applicant's current senior counsel, trial counsel said (among other things) that, in 'numerous conversations over a lengthy period of time' with the prosecutor, the prosecutor did not 'identify which parts of [Zuidam's] evidence he did not accept and was likely to challenge'. His understanding, he said, was that the prosecutor sought to 'challenge the veracity' of Zuidam's evidence 'in its entirety'. Further, trial counsel agreed that he neither asked the prosecutor to 'narrow the scope' of his proposed cross-examination of Zuidam, nor asked the trial judge to put any 'fetters' on it.
8. As trial counsel's viva voce evidence continued, the Court drew his attention to the opening questions of the prosecutor's cross-examination of Zuidam, which were directed to the applicant's sham marriage and attempt to evade immigration laws, and which, thereby, raised the applicant's bad character. Asked why he did not seek a discharge of the jury, or, at least, a prophylactic direction, counsel's explanation was: 'I was content, in the context of a running trial, for that to be absorbed and worked with otherwise'. He added: 'Well, I didn't seek a discharge of the jury mainly because the, if you like, the theatrics, the dynamics of the trial at that point in time made us feel relatively comfortable with the progress of the trial'. Trial counsel also said: 'We didn't see it as a significantly dangerous aspect of the evidence that couldn't be managed in the overall context of the trial'.
9. When it was pointed out to counsel that the prosecutor in opening had made it clear that the only part of Zuidam's evidence that he challenged was that 'part of the story that related to what occurred at the scene of the assault', and trial counsel was then asked to explain in light of that why he thought it to be permissible for the prosecutor to 'be permitted to cross-examine [Zuidam] wholesale on the very issues he had identified as having not been the subject of challenge', counsel said that 'in my assessment of her and her reluctance to give evidence at various stages etcetera, etcetera, we were content for the cross-examination to be very significantly broadly based ... and in the context of this trial, we came to the conclusion that as broad an ability to question her in the way that the prosecutor chose to was not inimical to our prospects of success'. Trial counsel added: 'But she, in our assessment, was always calculated to be a very dangerous witness'. When it was then put to trial counsel that so much should have underscored the need for Zuidam's evidence 'to be controlled rather than being subjected to a wide-ranging cross-examination', counsel said that was a view he did not take.
10. Asked - 'apart from the prejudicial effect' - why Zuidam's evidence that she had married the applicant so he could get a visa was relevant, trial counsel replied: 'Well, it might not be, but in the context of the trial there are practical limits as to defence counsel engaging in a negative way there [sic] and I on behalf of the client didn't wish to do so and didn't see it necessary to do so. It didn't appear in the thrust and parry of the trial to be a significant issue'. Trial counsel said he did not seek a discharge of the jury because he was 'solidly certain' that it was a 'sound' forensic decision 'to keep going with her in that trial'. He gave evidence that he considered seeking a discharge of the jury on more than one occasion, but decided against doing so.

1. The applicant's counsel in this Court contended that a substantial miscarriage of justice resulted from the failure of trial counsel to ensure that the provisions of s 38 were adhered to, and from trial counsel condoning a situation in which the prosecutor was given carte blanche to conduct an unfettered cross-examine of the critical witness, Zuidam.
2. In support of grounds 1A and 1B, the applicant's counsel submitted that the prosecutor had opened to the jury that his challenge to Zuidam's evidence would be restricted 'to what happened at the scene' of the assault.[12] But within a few questions of commencing his cross-examination - with the topic of the applicant's marriage and visa[13] - the prosecutor had manifested a clear intention to depart materially from the way he had opened the case, including the limited scope of the foreshadowed challenge to Zuidam's evidence. The applicant's counsel submitted that it should have been almost immediately apparent to trial counsel that the prosecutor intended to mount a wholesale attack on Zuidam's credibility and her account contained within her statutory declarations and police statement.
3. Further, the applicant's counsel in this Court submitted that both prosecuting and defence counsel at trial wrongly believed that, had the leave of the judge been sought under s 38, the judge would have granted leave to the prosecutor to cross-examine at large. The parties are not at liberty to 'contract out' of the provisions of s 38. And when leave is given, cross-examination is confined to aspects of the witness's evidence that are unfavourable. The course adopted by the prosecutor - with the apparent agreement of defence counsel - meant that the parties did not make submissions about, and the judge did not confine, the parameters of the cross-examination in respect of which leave might have been sought and granted.
4. Counsel for the applicant submitted that the course adopted by the prosecutor was unfair, and his cross-examination operated as a tactical device to the disadvantage of the applicant. It meant that the prosecution case changed, evolved and expanded in the running. And rather than intervene and put a stop to it, defence counsel appeared to think he had no choice but 'to play catch-up'. By the trial's end, Zuidam, on whose evidence defence counsel had anchored his client's defence, was the person he attacked in his address, calling her a liar and perjurer, and calling in aid of his attack her alleged motives to lie, criminal history, and an 'accomplice warning'.
5. Furthermore, counsel submitted, the prosecutor in his final address, relying on Zuidam's evidence, went to the jury on the basis that the applicant had paid Zuidam to provide a false account to police, the version that there was a group of men being a 'fabrication'. These submissions not only expanded the prosecution case, but invited the jury to use the applicant's alleged lies to police and his recruitment of Zuidam - whom he had paid for her false testimony - as incriminating conduct. At the least, counsel submitted, these submissions necessitated a direction under s 21 of the JDA, which defence counsel ought to have requested, and which, in any event, the trial judge was obliged to give.
6. Finally, the applicant's counsel submitted that the prosecutor owed the duty to conduct the trial fairly, and in accordance with his status as a minister of justice. The prosecutor did not do so. Unhappily, he was aided and abetted by the inaction and silence of the applicant's trial counsel.

1. In written submissions, counsel for the respondent had submitted that, although the prosecutor cross-examined Zuidam without leave first obtained under s 38, his intention to do so was well known to defence counsel and judge. Senior counsel for the applicant made clear that he did not oppose this course; and it appears that the prosecutor believed that, since defence counsel offered no opposition, leave was not required. Further, the trial judge understood that there was an agreed position between the parties that the prosecutor could cross-examine Ms Zuidam. Pursuant to the agreement between counsel, the prosecutor cross-examined Zuidam from the outset of her evidence, leave only being granted retrospectively under s 38 - with the encouragement of defence counsel - when her evidence was well advanced. The respondent's counsel submitted that the explicit agreement of defence counsel, together with the belated grant of leave by the trial judge, was sufficient to dispose of this part of the application. Counsel submitted that Zuidam's evidence clearly was unfavourable to the prosecution. Thus, had leave been sought, it is inevitable (with one possible exception) that it would have been granted.
2. Counsel for the respondent had submitted in writing that the prosecutor did not materially depart from his opening, although he acknowledged that the prosecution case underwent a 'major shift' when Zuidam changed her evidence. The prosecution case remained, however, that the applicant's account to police that he was acting in self-defence was untrue.
3. The respondent's counsel submitted in writing that the prosecutor did not set out to adduce evidence of incriminating conduct. It appears that the prosecutor was unaware that Zuidam would say that she gave false evidence because she was bribed. He could not therefore have given prior notice under s 21 of the JDA. And although the prosecutor submitted that the applicant had lied in his record of interview with police, those lies were only relied upon as going to credit. Counsel accepted, however, that the judge should have given directions under s 21 of the JDA with respect to incriminating conduct, directed to the topic of 'witness interference' and, perhaps, the applicant's lies.
4. The respondent's counsel submitted in writing that defence counsel was not incompetent permitting the prosecutor to cross-examine Zuidam without leave; and no miscarriage of justice resulted from the belated grant of leave. Defence counsel could have asked for the jury to be discharged once it became clear that Zuidam was changing her evidence. But even if it is assumed that such an application would have been granted, that does not mean that defence counsel was incompetent in not seeking a discharge. In that regard, it should be concluded that defence counsel acted on specific instructions. Moreover, it cannot be shown that the decision to continue with the trial was necessarily wrong. Although it is true that in his closing address defence counsel had to disavow what had been said in opening, he sought to turn that to the applicant's advantage, by arguing that the 'turnaround' by Zuidam highlighted how she could not be believed.
5. Ultimately, in his oral submissions, counsel for the respondent very fairly submitted:

Well, I'll say this. I would certainly - as I've already said - the sham marriage, if that's important enough, is enough to overturn the conviction.[[14]]

The incriminating conduct - that it was adduced in such an unguarded fashion and no directions given - would also be enough to overturn, or may also be enough to overturn, the conviction.

I would seek, perhaps forlornly, to maintain the position that the cross-examination of Ms Zuidam did not necessarily cause a substantial miscarriage of justice on the basis that even if he'd [the prosecutor] gone around it the proper way, it would have been granted at least in relation to the key topics about the existence of the mystery men.

But even if the even if the court was with me on that, I suppose there's enough there to allow the appeal.

Section 38 of the Evidence Act 2008

1. Grounds 1A and 1B turn in large part on the application of - or, perhaps, on the failure to apply - s 38 of the Evidence Act 2008. It is thus convenient at this point to turn to s 38 and to a number of the authorities that have considered how it is to be applied.
2. So far as relevant, s 38 provides:[15]

38 Unfavourable witnesses

(1) A party who called a witness may, with the leave of the court, question the witness, as though the party were cross-examining the witness, about -

(a) evidence given by the witness that is unfavourable to the party; or

(b) a matter of which the witness may reasonably be supposed to have knowledge and about which it appears to the court the witness is not, in examination in chief, making a genuine attempt to give evidence; or

(c) whether the witness has, at any time, made a prior inconsistent statement.

(2) Questioning a witness under this section is taken to be cross-examination for the purposes of this Act (other than section 39).

(3) The party questioning the witness under this section may, with the leave of the court, question the witness about matters relevant only to the witness's credibility.

(4) Questioning under this section is to take place before the other parties cross-examine the witness, unless the court otherwise directs.

...

(6) Without limiting the matters that the court may take into account in determining whether to give leave or a direction under this section, it is to take into account -

(a) whether the party gave notice at the earliest opportunity of the party's intention to seek leave; and

...

(b) the matters on which, and the extent to which, the witness has been, or is likely to be, questioned by another party.

1. Although headed 'Unfavourable witnesses', s 38 is concerned not with the qualities of a witness, but with the evidence (or prior statement) that a witness has given (or made). When its provisions are engaged, s 38 permits departure from the general rule that a party cannot cross-examine a witness called by that party. If one or more of the criteria in s 38(1) are satisfied, the court may give leave to a party to question the witness 'as though the party were cross-examining the witness'.
2. Significantly, s 38(1) provides that the court may give the required leave only if one or more of three conditions are met: first, if the witness has given evidence that is 'unfavourable' to the party calling the witness; secondly, if it appears to the court the witness is not, in examination in chief, making a genuine attempt to give evidence about a matter of which the witness may reasonably be supposed to have knowledge;[16] or, thirdly, if the witness has at any time made a prior inconsistent statement.[17] Also significantly, s 38(3) makes clear that the party may only question the witness about matters relevant only to the witness's credibility if the court gives leave to do so.[18]
3. Importantly, s 192(1) of the Act provides that the court may give leave 'on such terms as the court thinks fit'. As to that, s 192(2)(c) provides that in deciding whether to grant leave the court must take into account 'the extent to which to do so would be unfair to a party or to a witness'.
4. It is clear, in our view, that neither the judge nor counsel at either end of the Bar table paid appropriate attention to the provisions of s 38.
5. In Meyer, when discussing the requirements of s 38, Priest and Kaye JJA said:[19]

That provision, which constituted a significant change in the law of evidence from the position at common law, has been the subject of discussion in a number of cases. For the purposes of this application, the principles, stated in the cases, can be briefly summarised as follows:

(1) The exercise of the discretion, by a trial judge under s 38 to permit cross-examination of a witness, must be undertaken carefully in order to ensure that there will be no unfairness in the trial.[20]

(2) In considering whether to grant leave under s 38, it is important to have regard to the factors specified in s 192(2) of the Act, and, relevantly, the extent to which the grant of leave would be 'unfair to a party or to a witness' pursuant to s 192(2)(c).[21]

(3) In particular, the court should be astute to prevent the use of s 38 as a tactical or forensic device which may result in an unfairness to a party or a witness.[22]

(4) As specifically stipulated by s 38(4), questioning under s 38 should ordinarily take place before any other party to the proceeding cross-examines the witness.[23] However, if leave is given to a party to cross-examine its own witness in re-examination of the witness, after the completion of cross-examination of that witness by the other parties, the opposing party should be given the opportunity to further cross-examine the witness after the s 38 examination has been completed.[24]

(5) Section 38(1) only permits a witness to be questioned, by way of cross-examination, about the three topics specified in subsection (1)(a) to (c). Accordingly, leave may only be granted to a party to cross-examine its own witness directed to one or more of those three topics. Such cross-examination may, however, also be directed to establishing the probability of the factual state of affairs in relation to a matter falling within one of those topics.[25]

1. Further, in Murillo, Kaye JA (with whom T Forrest and Osborn JJA agreed) observed:[26]

[96] First, it is fundamental that leave may not be granted to permit cross-examination of a particular witness at large. Rather, leave may only be granted to a party to cross-examine a witness about evidence given by that witness which is unfavourable to the party seeking leave to cross-examine the witness. That principle is clear from the plain language of s 38(1)(a). It has been restated in a number of authorities.[27]

[97] It is accepted that, where leave is granted to cross-examine a witness in relation to specific topics, the cross-examination may include questions directed to establishing the probability of the factual state of affairs relevant to those topics. Further, in establishing the probability, or improbability, of a particular state of affairs, the cross-examiner is entitled to ask questions relating to the witness's credibility, provided that that cross-examination is directed to the witness's credibility on the particular topic in relation to which leave to cross-examine has been granted.[28]

[98] However, that proposition does not permit a party, to whom leave has been granted under s 38, to cross-examine a witness at large on matters relating solely to the witness's credibility. By its terms, s 38(3) of the Act provides that the party, cross-examining the witness under s 38, may only question the witness 'about matters relevant only to the witness's credibility' with the leave of the Court.

[99] The second relevant principle is that, in considering whether to grant leave to cross-examine a witness under s 38, the judge is required to take into account the matters specified in s 38(6) and s 192(2) of the Act.[29]

[100] The principles were succinctly, and appropriately, stated by Greg James J in Hogan as follows:

It is necessary, when giving consideration to the grant of leave, to have regard to the effect on the trial of the ambit of questioning and of the matters that might be raised. It is essential when considering the grant of leave to consider how far, at least initially, cross-examination might be permitted to extend, having regard to the bounds set by s 38, to the matters to which regard must be had when granting leave in s 38(6) and s 192 and to whether prejudicial matters to which ss 135 and 137 might apply might be raised.[30]

1. We consider it to be readily apparent that, prior to the prosecutor embarking on his cross-examination of Zuidam, the judge, the prosecutor and defence counsel did not distinctly advert to the requirements of s 38. Nor did they adhere to a number of principles distilled in authorities such as Meyer and Murillo. Indeed, no one appears to have considered whether leave to cross-examine Zuidam needed to be granted - let alone the parameters of any cross-examination - before the prosecutor cross-examined the witness at large, including on matters going to her credibility generally.
2. Meyer and Murillo (and the authorities there referred to) make clear that the trial judge's exercise of discretion under s 38 to permit cross-examination of a witness must be undertaken carefully in order to ensure that there will be no unfairness in the trial. In particular, the trial judge should be astute to prevent the use of the section as a device which may result in an unfairness to a party (or witness). Moreover, it is fundamental that leave may not be granted to permit cross-examination of the relevant witness at large. And if leave is granted, it must be confined to the party cross-examining the witness about that witness's evidence which is unfavourable to the party seeking leave. Importantly, a party to whom leave has been granted under s 38 is not permitted to cross-examine a witness at large on matters relating solely to the witness's credibility.

1. As we have mentioned, the failure by the prosecutor and the judge to adhere to the constraints imposed by s 38 appears to have occurred with the acquiescence - if not the encouragement - of defence counsel. That being so, a critical question that the Court must resolve is whether the applicant should be bound by the conduct of his trial counsel. Counsel for the applicant in this Court maintained that the conduct of trial counsel was incompetent, so that the applicant should not be bound by it. A substantial miscarriage of justice had resulted from trial counsel's conduct.
2. As the authorities recognise, the parties in a criminal trial are, generally speaking, bound by the conduct of their counsel. Counsel exercise a wide discretion in deciding what issues to contest, and the manner in which those issues will be contested. An applicant in a case such as the present will have difficulty in establishing a substantial miscarriage of justice when the alleged errors of counsel concern forensic choices upon which competent counsel could have differing views as to their suitability.[31] In this Court, the applicant's counsel submitted that the failure of trial counsel to invoke the provisions of s 38 - and thereby tolerate a situation in which the prosecutor was given complete freedom to cross-examine a critical witness without any constraints whatsoever - cannot have been the result of sound forensic decision-making.
3. Nudd[32] involved a complaint that the incompetence of trial counsel had led to a miscarriage of justice. Gleeson CJ discussed the recognised distinction between 'outcome' and 'process'.[33] Having observed that where the conduct of counsel is said to give rise to, or to be involved in, a miscarriage of justice, ordinarily it was what was done or omitted that is of significance, rather than why that occurred;[34] Gleeson CJ said:[35]

Sometimes, however, a decision as to whether something that happened at, or in connection with, a criminal trial involved a miscarriage of justice requires an understanding of the circumstances, and such an understanding might involve knowledge of why it happened. A criminal trial is conducted as adversarial litigation. A cardinal principle of such litigation is that, subject to carefully controlled qualifications, parties are bound by the conduct of their counsel, who exercise a wide discretion in deciding what issues to contest, what witnesses to call, what evidence to lead or to seek to have excluded, and what lines of argument to pursue. The law does not pursue that principle at all costs. It recognises the possibility that justice may demand exceptions. Nevertheless, the nature of adversarial litigation, with its principles concerning the role of counsel, sets the context in which these issues arise. Considerations of fairness often turn upon the choices made by counsel at a trial. ... It is the fairness of the process that is in question; not the wisdom of counsel. As a general rule, counsel's decisions bind the client. If it were otherwise, the adversarial system could not function. The fairness of the process is to be judged in that light. The nature of the adversarial system, and the assumptions on which it operates, will lead to the conclusion, in most cases, that a complaint that counsel's conduct has resulted in an unfair trial will be considered by reference to an objective standard, and without an investigation of the subjective reasons for that conduct.

1. Previously, in TKWJ, Gaudron J had observed:[36]

Where it is claimed that a miscarriage of justice was the result of a course taken at the trial, it is for the appellant to establish that the course was not the result of an informed and deliberate decision. This he or she will fail to do if the course taken is explicable on the basis that it could have resulted in a forensic advantage unless, in the circumstances, the advantage is slight in comparison with the disadvantage resulting from the course in question. ...

1. Earlier in TKWJ, Gaudron J had said:[37]

One matter should be noted with respect to the question whether counsel's conduct is explicable on the basis that it resulted or could have resulted in a forensic advantage. That is an objective test. An appellate court does not inquire whether the course taken by counsel was, in fact, taken for the purpose of obtaining a forensic advantage, but only whether it is capable of explanation on that basis.

As already indicated, if there is a defect or irregularity in the trial, the fact that counsel's conduct is explicable on the basis that it resulted or could have resulted in a forensic advantage is not necessarily determinative of the question whether there has been a miscarriage of justice. It may be that, in the circumstances, the forensic advantage is slight in comparison with the importance to be attached to the defect or irregularity in question. If so, the fact that counsel's conduct is explicable on the basis of forensic advantage will not preclude a court from holding that, nevertheless, there was a miscarriage of justice.

1. In Knowles, this Court observed:[38]

TKWJ reinforced earlier decisions which had emphasised that where it is contended on appeal that a trial went wrong because of counsel's 'flagrant incompetence',[39] what must be investigated is whether the process failed so as to result in a miscarriage of justice; rather than upon why - that is, the alleged incompetence of counsel - the process failed. But the importance of TKWJ is that it was stated or agreed in by four of their Honours, with more or less emphasis, that in determining whether the process failed, the subjective reason why counsel took the course complained of - it might be not seeking a particular direction, or making a particular submission, or not adducing particular evidence - was ordinarily irrelevant. The question whether the process failed, in the kind of case now under discussion, was to be resolved by deciding whether the course taken, objectively ascertained, was capable of explanation as having been taken for the purpose of obtaining a forensic advantage (although the fact that a forensic advantage might be objectively perceived did not necessarily mean that there had been no miscarriage of justice). Framing the enquiry that way gave due recognition to the fact that counsel will likely make many forensic decisions in the course of a trial, and an accused is ordinarily bound by the way in which his or her counsel conducted the trial.

1. As the authorities make clear, this Court must assess whether the conduct of trial counsel has resulted in an unfair trial by reference to an objective standard, and without investigating the subjective reasons for that conduct. In making that assessment, the Court must consider whether the course adopted by trial counsel is explicable on the basis that it could have resulted in a forensic advantage to the applicant, and ask whether what counsel did (or failed to do) is capable of explanation on that basis. But even if the conduct of counsel said to give rise to a substantial miscarriage of justice is explicable on the basis that it could have resulted in a forensic advantage to the applicant, if, judged objectively, the forensic advantage is slight in comparison to the defects or irregularities in question, the Court is not precluded from concluding that there was a substantial miscarriage of justice.
2. We have no hesitation in concluding that, objectively viewed, the conduct of trial counsel complained of is not capable of being explained on the basis that it was taken for the purpose of obtaining a forensic advantage for the applicant. In our opinion, it is impossible to see that the failure to insist that the requirements of s 38 were met, and thereby to sanction a situation in which the prosecutor was permitted to cross-examine without restraint a crucial witness whose evidence was critical to the defence case, could have been seen as forensically advantageous to the applicant. Indeed, it should have been obvious that the opposite was true.
3. Having regard to the record of the trial - parts of which we have set out in more detail than is customary in order to make the point - we have no confidence that senior counsel for the applicant at trial had proper regard to the provisions of s 38 of the Evidence Act 2008. Had he done so, and had regard to the manner in which the authorities dictate they are to be applied, trial counsel would not have acquiesced in the prosecutor conducting at large a wide-ranging, penetrating and unconstrained cross-examination, which, at times, had the flavour of an inquiry. Competent defence counsel would have insisted that leave be granted to the prosecutor to cross-examine only if one or other of the three pre-conditions in s 38(1) was satisfied, and only on the basis that the trial judge placed proper limitations on the cross-examination.
4. Trial counsel's failure to insist that the provisions of s 38 be adhered to resulted in a situation where the prosecutor's unrestrained cross-examination of Zuidam elicited inadmissible, highly prejudicial evidence bearing on the applicant's character. At that point, competent defence counsel would have taken steps to protect the applicant, by seeking a discharge of the jury, or, at the very least, seeking a direction designed to reduce the prejudicial effect of the evidence. Trial counsel did neither of those things. Worse still, counsel tolerated a situation where the prosecutor continued with his improper cross-examination, eventually producing evidence which decimated the defence case.
5. Objectively viewed, the course adopted by trial counsel is not explicable on the basis that it could have resulted in a forensic advantage to the applicant. Indeed, as we have said, the conduct of counsel can only be explained on the basis that he had not had proper regard to the provisions of s 38, or to the irremediable damage that the prosecutor's cross-examination wreaked upon his client's case. Evidence of the applicant's bad character had been introduced, coupled with evidence that the applicant had colluded with Zuidam in effect to pervert the course of justice. As a result, defence counsel, having opened to the jury that Zuidam was a witness of truth, whose evidence would spell the end of the prosecution, and upon whose anticipated evidence counsel relied substantially in cross-examining Luak, was forced to do a complete about face, and mount a concerted - but, so it seems to us, wholly ineffective - attack upon her credibility.
6. Finally, the prosecutor's cross-examination of Zuidam produced evidence from which it might have been inferred that the applicant was involved in bribing her to lie, and thereby pervert the course of justice. Plainly, that alleged conduct was 'incriminating conduct' within the meaning of s 18 of the JDA. As a result of the prosecutor's reliance on it in his final address, the judge was required to give the directions in s 21, irrespective of whether counsel had asked for such a direction. (We note also that defence counsel did not seek any direction under s 22.) As counsel for the respondent conceded in this Court, the fact that the evidence 'was adduced in such an unguarded fashion', and that no direction given under s 21, could be seen as 'enough to overturn the conviction'.
7. For these reasons, grounds 1A and 1B must succeed.
8. We cannot leave these grounds, however, without making some observations concerning the conduct of the prosecutor at the trial. Prosecutors have long been regarded as ministers of justice who are obliged to conduct the prosecution case fairly. As to that, Kaye AJ recently observed in Drumgold[40] that in Whitehorn,[41] Deane J

described the duty of a prosecutor to ensure that the trial of an accused person is a fair one.[42] That duty is an aspect of the fundamental principle in our criminal justice system that a prosecutor, in occupying the role as a 'minister of justice', has an obligation to ensure that a trial is conducted in accordance with the dictates of fairness to an accused person, and to ensure that the integrity of a trial is appropriately preserved.[43]

1. Sadly, the prosecutor in the applicant's case did not fulfil the obligation resting upon him to ensure that the applicant's trial was conducted in accordance with the dictates of fairness to the applicant, and so as to ensure that the integrity of the trial was appropriately preserved. Indeed, the prosecutor's conduct was pivotal in the trial miscarrying.

1. Counsel for the applicant in this Court submitted that the prosecutor's cross-examination of Zuidam about the applicant's visa occasioned a substantial miscarriage of justice.[44] The prosecutor's questions, counsel submitted, were calculated to elicit irrelevant, highly prejudicial evidence. Plainly, the questions were not reflexive or spontaneous, the prosecutor in preparation having armed himself with relevant records. The cross-examination adduced highly prejudicial evidence that the applicant had dishonestly sought to circumvent immigration laws, and had colluded with Zuidam to do so. Zuidam's request for a certificate under s 128 underscored that the prosecutor was asking about criminal conduct, and emphasised just how prejudicial the evidence produced by the cross-examination was. The applicant's trial counsel should have immediately taken steps to stop the prosecutor. That he failed to do so cannot have been the product of a rational forensic decision.
2. As we have already indicated, it is plain that the prosecutor's initial cross-examination of Zuidam concerning the status of her marriage to the applicant was calculated to show that the marriage was a dishonest sham, entered into by the applicant to evade immigration laws. That the evidence reflected adversely on both the applicant and Zuidam was, we agree, underscored by Zuidam asking in the midst of questioning, 'Is this the part where I ask for a certificate [under s 128 of the Evidence Act 2008]?'; and, quite remarkably, receiving the response from the prosecutor - without any intervention by the trial judge - 'No, no, you've just got to answer the question'. We consider that, on any rational view, the evidence that the prosecutor deliberately elicited from Zuidam concerning the reasons underpinning the applicant's marriage to her was apt to suggest that the applicant was not of good character.
3. It cannot be gainsaid that the evidence that Zuidam married the applicant 'to help him get a visa' was inadmissible. Not only should the prosecutor's cross-examination on the topic have prompted an immediate objection by defence counsel, but counsel should have sought a discharge of the jury once Zuidam gave the highly prejudicial evidence that she did (or, at the very least, sought a prophylactic direction from the trial judge). That the evidence is inadmissible is clear from ss 110(2) and (3) of the Evidence Act 2008, which provide that evidence that an accused person is not of good character, either generally or in a particular respect, is not admissible unless the accused has adduced evidence to prove (directly or by implication) that the accused is, either generally or in a particular respect, a person of good character.
4. When the prosecutor cross-examined Zuidam as he did, no evidence had been adduced to prove (directly or by implication) that the applicant was (generally or in a particular respect) a person of good character. The prosecutor's cross-examination on the applicant's attempt to circumvent immigration laws through marrying, into which he launched without first seeking the trial judge's leave under s 38, flouted ss 110(2) and (3). And not only was the cross-examination conducted without leave, but we have no doubt that, had leave been sought to cross-examine on the topic, the proper exercise of discretion would have resulted in the refusal of leave.
5. As a member of the Court pointed out in the course of oral argument, there were at least three vices attending the cross-examination: first, it was 'a broadside attack on the character of the applicant'; secondly, it was apt to suggest that the applicant was prepared dishonestly to collude with Zuidam contrary to law; and, thirdly, it had the effect of bolstering evidence suggesting that the applicant was prepared to collude to preserve his immigration status.[45]
6. Counsel for the respondent fairly conceded in oral argument that he could not defend the prosecutor's cross-examination about the 'sham marriage'. Counsel submitted that, if the Court considered it 'important enough', then he 'conceded the appeal'. He eschewed any suggestion that, absent the errors, conviction would have been inevitable.
7. For our part, we do consider the prosecutor's cross-examination to be 'important enough'. In our view, the adduction of highly prejudicial, irrelevant evidence, through improper cross-examination, without any steps being taken to eliminate or mitigate the prejudice flowing to the applicant, occasioned a substantial miscarriage of justice.
8. Once evidence tending to reflect adversely on the applicant's character was adduced, it was, as we have said, incumbent on trial counsel to seek a discharge of the jury (or, at least, seek a protective direction). Failure to do so cannot objectively be explained as the product of a rational forensic decision. We fail to see that refraining from seeking a discharge of the jury could have resulted in a forensic advantage to the applicant. Trial counsel should not have tolerated a situation in which the prosecutor was, without leave, permitted unconstrained cross-examination of a critical witness. Moreover, once that unconstrained cross-examination produced evidence that was highly prejudicial to the applicant, senior counsel at trial should have taken steps to eliminate or reduce the prejudice to his client. Objectively viewed, counsel's conduct was forensically irrational and incompetent.
9. Ground 2 is made out. We are satisfied that the introduction of evidence suggesting that the applicant was of bad character, elicited as a result of the prosecutor's conduct, has occasioned a substantial miscarriage of justice. It would, at the least, have diminished the jury's confidence in the applicant's version of events as contained in his record of interview, and, thereby, his defence to the charges. At the worst, the evidence that suggested the applicant's collusion with Zuidam might have been used by the jury as an implied admission of guilt.

1. In light of our conclusions on the other grounds, it is unnecessary to consider ground 3.

1. As we have indicated, the application for leave to appeal against conviction had to be granted; the appeal allowed; the convictions set aside; and a new trial ordered.

[1] Crimes Act 1958, s 16.

[2] Crimes Act 1958, s 88.

[3] No verdict was taken on charge 2, recklessly causing serious injury, which was an alternative to the first charge.

[4] The judge imposed concurrent sentences of 24 months' imprisonment on charge 1 and 14 days' imprisonment on charge 3.

[6] Her date of birth is 15 January 1991.

[8] Emphasis added to this and following transcript passages.

[10] See [26] above.

[11] See Knowles (a pseudonym) v The Queen [2015] VSCA 14, [127]-[147] (Ashley, Redlich and Priest JJA) ('Knowles').

[12] See [23] above.

[13] See [26] above.

[14] See [87] below.

[16] At common law, an adverse witness was one who, if called by a party who could not ask the witness leading questions, was unwilling for the advancement of justice to tell the truth and the whole truth in answer to non-leading questions. See R v Hayden and Slattery [1959] VLR 102.

[17] In R v Hunter [1955] VicLawRp 56; [1956] VLR 31, a case concerned with hostile witnesses at common law, the Full Court (Martin, O'Bryan and Dean JJ) observed (at 34) that in some cases the fact that a witness has made a prior inconsistent statement is enough to establish that the witness is hostile. See also McLellan v Bowyer [1961] HCA 49; (1961) 106 CLR 95, 104 (Dixon CJ, Kitto and Taylor JJ).

[18] Generally, at common law the right to cross-examine a hostile witness was as wide as the right of cross-examination of an opposing party's witness (with, perhaps, the qualification that the cross-examination was to be confined to matters relevant to the issues in the case). See R v Hunter [1955] VicLawRp 56; [1956] VLR 31, 34-5, 36-7 (Martin, O'Bryan and Dean JJ); R v Ngo [2002] VSCA 188, [21] (Winneke P, Chernov JA and O'Bryan AJA agreeing).

[19] Meyer (a pseudonym) v The Queen [2018] VSCA 140, [182] ('Meyer').

[20] R v Kneebone [1999] NSWCCA 279; (1999) 47 NSWLR 450, 471; R v Fowler [2000] NSWCCA 142 [120] (Wood CJ at CL); Burrell v The Queen [2007] NSWCCA 65; (2007) 190 A Crim R 148, 205 [234]-[235] (McClellan CJ at CL) ('Burrell').

[21] Adam v The Queen (2001) 207 CLR 96, 116 [64] (Gaudron J).

[22] R v Parkes [2003] NSWCCA 12; (2003) 147 A Crim R 450, 462-3 [72]-[76] (Ipp JA); Burrell [2007] NSWCCA 65; (2007) 190 A Crim R 148, 203-5 [240]-[245]; Burrell v The Queen [2009] NSWCCA 163; (2009) 196 A Crim R 199, 240 [190] (Beasley JA, Grove and Howie JJ).

[23] Burrell [2007] NSWCCA 65; (2007) 190 A Crim R 148, 202-3 [237].

[24] R v Milat (1996) (Unreported, Supreme Court of New South Wales, Hunt CJ at CL); Burrell [2007] NSWCCA 65; (2007) 190 A Crim R 148, 202-3 [237], 204 [243].

[25] R v Le [2002] NSWCCA 186; (2002) 54 NSWLR 474, 481 [55], 486 [67] (Heydon JA); Doyle v The Queen [2014] NSWCCA 4 [293]-[294] (Bathurst CJ); Kanaan v The Queen [2006] NSWCCA 109 [83] (Hunt AJA, Buddin and Hoeben JJ).

[26] Murillo (a pseudonym) v The Queen [2020] VSCA 68, [96]-[100] ('Murillo'). See also Saddik v The Queen [2018] VSCA 249, [86]-[88] (Niall and Kaye JJA).

[27] See, e.g., Meyer (a pseudonym) v The Queen [2018] VSCA 140, [182], [184] (Priest and Kaye JJA) ('Meyer'); R v White [2003] NSWCCA 64, [68]-[73] (Smart AJ with whom Giles JA and Dunford J agreed); R v Hogan [2001] NSWCCA 292, [80] (Greg James J) ('Hogan').

[28] R v Le [2002] NSWCCA 186; (2002) 54 NSWLR 474, 486 [66]-[67] (Heydon JA with whom Dunford and Buddin JJ agreed); [2002] NSWCCA 186; Doyle v The Queen [2014] NSWCCA 4, [293] (Bathurst CJ); Saddik [2018] VSCA 249, [87].

[29] Stanoevski v The Queen (2001) 202 CLR 115, 126-8 [41]-[47] (Gaudron, Kirby and Callinan JJ); [2001] HCA 4; R v Fowler [2000] NSWCCA 142, [120] (Wood CJ at CL); Hogan [2001] NSWCCA 292, [4]-[5] (Giles JA), [80] (Greg James J); Deacon (a pseudonym) v The Queen [2018] VSCA 257, [97] (Kaye, T Forrest JJA and Taylor AJA) ('Deacon'); Meyer [2018] VSCA 140, [182].

[30] Hogan [2001] NSWCCA 292, [80] (Greg James J).

[31] TKWJ v The Queen [2002] HCA 46; (2002) 212 CLR 124, 151 [81] (McHugh J) ('TKWJ').

[32] Nudd v The Queen [2006] HCA 9; (2006) 80 ALJR 614 ('Nudd').

[35] Ibid 618-9 [9] (citations omitted; emphasis added).

[37] Ibid 133 [27]-[28] (emphasis added; footnotes omitted).

[39] A term used by Gleeson CJ, when his Honour was Chief Justice of the New South Wales Supreme Court, in R v Birks (1990) 19 NSWLR 677.

[40] Drumgold v Board of Inquiry (No 3) [2024] ACTSC 58, [471].

[41] Whitehorn v The Queen [1983] HCA 42; (1983) 152 CLR 657, 663-4 .

[43] See, for example, R v Apostolides [1984] HCA 38; (1984) 154 CLR 563, 576-7; Richardson v R [1974] HCA 19; (1974) 131 CLR 116, 119; Kanaan v R [2006] NSWCCA 109, [80] (Hunt AJA, Buddin and Hoeben JJ); R v Bazley (1986) 21 A Crim R 19, 29 (Young CJ).

[44] See [26] above.

[45] See [34] above.