Court of Appeal (WA)|2004-12-20|Before: Murray J, Steytler J, Templeman J, Smith J

Stack v The State of Western Australia [2004] WASCA 300 (20 December 2004)

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

CITATION : STACK -v- THE STATE OF WESTERN AUSTRALIA [2004] WASCA 300

Jurisdiction : SUPREME COURT OF WESTERN AUSTRALIA

Criminal law and procedure - Aboriginal witnesses - Ruling by trial judge that counsel crossexamining was not to ask leading questions of Aboriginal witness - Whether error of law - Whether error in exercise of discretion - Directions as to assessment of credibility of Aboriginal witnesses - Whether miscarriage of justice

Alcoa of Australia Ltd v McKenna [2003] VSCA 182

Allen v Allen [1894] P 248

Clarke v Saffery (1824) Ry & Mood 126; 171 ER 966

Crofts v The Queen [1996] HCA 22; (1996) 186 CLR 427

Domican v The Queen [1992] HCA 13; (1992) 173 CLR 555

Gavin v The Queen (1992) 6 WAR 195

Glennon v The Queen [1994] HCA 7; (1994) 179 CLR 1

Gordon v Carroll (1975) 6 ALR 579

GPI Leisure Corp Ltd v Herdsman Investments Pty Ltd (No 3) (1990) 20 NSWLR 15

Hall v Police [1999] SASC 197

Kirby v United States [1899] USSC 86; (1899) 174 US 47

Lee v The Queen (1998) 195 CLR 594

McLure v Mitchell (1974) 24 FLR 115

Mechanical & General Inventions Co Ltd & Lehwess v Austin & Austin Motor Co Ltd [1935] AC 346

Osolin v The Queen (1993) 86 CCC (3d) 481

Price v Manning (1889) 42 Ch D 372

Rawcliffe v The Queen [2000] WASCA 239; (2000) 22 WAR 490

Wakeley v The Queen [1990] HCA 23; (1990) 64 ALJR 321

Whitehorn v The Queen [1983] HCA 42; (1983) 152 CLR 657

Wilde v The Queen [1988] HCA 6; (1988) 164 CLR 365

Australian Coal & Shale Employees' Federation v The Commonwealth [1953] HCA 25; (1953) 94 CLR 621

Bushell v Secretary of State for the Environment [1980] UKHL 1; [1981] AC 75

Dietrich v The Queen [1992] HCA 57; (1992) 177 CLR 292

Ex parte; Steven Burns t/as Burns Corporation, unreported; FCt SCt of WA; Library No 980154A; 6 February 1998

Giannerelli v Wraith [1988] HCA 52; (1988) 165 CLR 543

Hally v Starkey [1962] Qd R 474

Houghton v The Queen [2004] WASCA 20

Jones v National Coal Board [1957] EWCA Civ 3; [1957] 2 QB 55

Public Service Board (NSW) v Osmond (1986) 159 CLR 656

Ratten v The Queen [1974] HCA 35; (1974) 131 CLR 510

Regina v Gordon Twine, No 97/2922/X3, Ct of App, Crim Div, Royal Courts of Justice, 5 February 1998

Salemi v MacKellar (No 2) [1977] HCA 26; (1977) 137 CLR 396

Stead v State Government Insurance Commission [1986] HCA 54; (1986) 161 CLR 141

1 On 8 December 2003 the applicant was presented in this Court for trial by judge and jury on an indictment charging him with the murder of Wayne Robert Lawrence, and the unlawful wounding of one Gregory Colin Lawrence. Both offences were alleged to have been committed at Parmelia, a suburb of Perth, on 4 April 2001. On 16 December 2003 he was acquitted of murder, but convicted of manslaughter and unlawful wounding. He seeks leave to appeal against those convictions.

2 He instituted that application, which was later amended, on 24 March 2004. He was therefore out of time by some 3 months. It is explained that the delay was occasioned by the process of applying for legal aid for an appeal against the convictions and the processes within the Legal Aid Commission which led, by mid February, to the grant of aid. It is accepted for the applicant that the grounds advanced in support of the application for an extension of time are insufficient to persuade the Court to extent time. It is therefore accepted that time will not be extended unless to refuse to do so would be to leave unaddressed, a manifest miscarriage of justice: Gavin v The Queen (1992) 6 WAR 195.

3 The persons involved in the incident in which the offences were allegedly committed were all persons of Aboriginal descent, but not by any means living a traditional lifestyle. They lived in ordinary suburban circumstances. Many of those who gave evidence were related. The deceased and the person wounded were cousins of the applicant. There had been what was described by the prosecutor, in opening, as a long drinking session at the house. Arguments occurred.

4 Ultimately, the applicant's de facto wife, a woman called Pansy Mills, who did not give evidence at the trial, called to collect the applicant. The man who was killed, Wayne Lawrence, spoke to her. The applicant took offence. A further argument and a fight occurred. The applicant allegedly went into the house, returned with a large kitchen knife, stabbed Wayne Lawrence in the neck and stabbed Gregory Lawrence in the chest. The neck wound to the deceased cut his jugular vein and carotid artery, and in a short time he bled to death.

5 The house where all this occurred was that of Vernon Frank Lawrence. The deceased man was his brother. The man, Gregory Colin Lawrence, who was wounded, was a cousin. His son, Gregory Clinton Lawrence, was also there. All of those persons, apart from the deceased of course, gave evidence at the trial. So also did Marlene Ryder. She was Vernon Frank Lawrence's de facto wife.

6 But because of the long drinking session which had occurred, the most important witness by far, was the teenage son of the occupant of the house, Vernon Raymond Lawrence, sometimes referred to as young Vernon to distinguish him from his father, Vernon Frank Lawrence. Young Vernon was 18. He was conceded to be the only person present at the house on the day in question who was sober. This application for leave to appeal is concerned with the processes at trial by which young Vernon was questioned by defence counsel and with comments made by the trial Judge in directing the jury.

7 There are a number of grounds of appeal. I need not set them out in full. The first four grounds are concerned with the ruling made by the trial Judge that the applicant's counsel must not ask leading questions of young Vernon. The ruling was made during the witness's cross-examination. It is argued that by making that ruling the trial Judge erred in law or, alternatively, in the exercise of his discretion to make rulings governing the conduct of the trial, thereby denying the applicant the right to cross-examine the prosecution witness. By denying the applicant the right for his counsel to conduct his defence as he saw fit, the applicant is said to have been denied his right to a fair trial. It is argued that the trial fundamentally miscarried at that point.

8 It is, of course, well-recognised that there will be a miscarriage of justice where something has occurred during the course of the trial which may be described as a fundamental irregularity, where the proceedings have so far miscarried as to hardly be a trial at all: Wilde v The Queen [1988] HCA 6; (1988) 164 CLR 365, 373. The question really is, in that case, whether the accused has had a proper trial, the fair trial to which he was entitled. In such a case the proviso will not apply. It will not be held that having regard to the strength of the prosecution case and other matters, there has been no substantial miscarriage of justice. Only if the irregularity is deemed not to be of a fundamental kind, but an irregularity nonetheless, may the proviso be applied and then only if it may fairly be said that absent the error which has been established on appeal, the jury would inevitably have convicted: Glennon v The Queen [1994] HCA 7; (1994) 179 CLR 1, 8-9; Crofts v The Queen [1996] HCA 22; (1996) 186 CLR 427. The first question in this case, of course, is whether what occurred, of which the grounds complain, was properly categorised as an irregularity at all.

The Opening Observations of the Trial Judge

9 Before discussing that, I should refer to the background against which his Honour's ruling was made. It is noteworthy that when the trial commenced, after the pleas were taken and the jury empanelled, the trial Judge made some observations to the jury. Much of what his Honour said was unexceptionable, being concerned with an explanation of the trial process, how it might be that under the Juries Act 1957 (WA), the 14 jurors empanelled would be reduced to 12 when they commenced their deliberations, the respective roles in the trial process of judge and jury, the onus and standard of proof, the approach the jury ought to take to the evidence as it unfolded, the importance of being alert to any improper approach to the jury during adjournments when they were permitted to separate, a brief exposition of the trial process, the role of the foreperson, the taking of notes, and the like. None of that is material to this application.

10 The jury were then permitted to retire to choose their foreperson. Upon their return, the trial Judge continued his remarks, making a number of observations about the approach the jury ought to take to the evidence of Aboriginal witnesses and the assessment of the credibility of those witnesses. The remarks were extensive. I have set them out as an Appendix to these judgments.

11 I would make a number of observations. In the first place, the remarks were very general. They did not purport to be linked to the characteristics as witnesses of any of the persons of Aboriginal descent who were to be called and were in fact called as witnesses. But there was a danger that what was said by the Judge would be taken as characteristics of those witnesses. Ultimately, there was no evidence that that was so. However, there was a considerable emphasis upon communication with and by Aboriginal witnesses which might reflect or be derived from cultural differences from persons in the general community. Again, as it turned out there was no evidence about that in relation to any of the witnesses.

12 Of particular relevance was the discussion of the way in which the persons described generally as Aboriginal witnesses might respond to leading questions. His Honour correctly defined a leading question as one which suggested the answer required or assumed some fact. Importantly, in respect of the present application for leave, his Honour suggested that many Aboriginal people will respond affirmatively to a leading question, even if they do not agree with the proposition contained in the question, out of politeness and because they do not wish to disagree. At the end of his Honour's remarks he tied those observations in to the witnesses to be called, by in effect saying to the jury that they ought to assess their credibility in the cultural context which his Honour had discussed.

13 The applicant makes no complaint directly about these observations. But there is a ground of appeal complaining that his Honour erred in his final directions to the jury about the assessment of the credibility of witnesses which referred back to this material with which, in effect, his Honour had opened the trial. I shall come to a consideration of that ground of appeal in due course. But before examining the matters raised by the grounds of the application I wish to say something about the remarks made by the trial Judge which I have set out in the Appendix.

14 They are very evidently based on an article of which Mildren J, of the Supreme Court of the Northern Territory, is the author. The article was published in 21 Crim LJ 7, Feb 1997. The article is said to have been based on a paper delivered by his Honour to a biennial conference of the Northern Territory Criminal Lawyers' Association held in Bali, Indonesia, in July 1995. It is entitled "Redressing the Imbalance Against Aboriginals in the Criminal Justice System". As the title suggests, the theme of the paper is the proposition that persons of Aboriginal descent who become involved, in one way or another, in the criminal justice system are disadvantaged because of a lack of sufficient court-trained interpreters and because of cultural differences which affect their ability to understand and be understood.

15 The article discusses the main language and cultural difficulties affecting Aboriginal persons in the Northern Territory. It makes proposals for procedures to be employed by police, counsel and judges to more fairly elicit information in the English language from persons of Aboriginal descent and one of the proposals is that trial judges should give a preliminary direction substantially in the terms used by the trial Judge in this case. It is evident, I think, that his Honour took the terms of the direction from the suggestion made by Mildren J in the article.

16 Of course, Mildren J was discussing the position in the Northern Territory, a position which may no doubt have more relevance to the north-west of Western Australia, the inland and perhaps even country areas generally in WA, where persons are inclined to speak that dialect of English which Mildren J terms Aboriginal English. It seems that that terminology is derived from the work of the anthropologist, Dr Eades, "Aboriginal English and the Law", published in 1992 under the auspices of the Continuing Legal Education Department of the Queensland Law Society. There is a reference in that publication, at p 53, to a tendency to answer questions affirmatively out of politeness or what is described as "gratuitous concurrence"; because, as in the answer to a leading question, the witness understands what answer would please the questioner and gives that answer to avoid an unpleasant confrontation.

17 The way in which this application was argued makes it clear that this is not the occasion to consider in any detail the admissibility of evidence about the use of the English language by persons of Aboriginal descent and their understanding of what is meant by others who question them in English. I note that in R v Condren (1987) 28 A Crim R 261 the Queensland Court of Criminal Appeal held that such evidence would be inadmissible for at least two reasons. One was that the members of the Court doubted that there was a sufficiently specialised field of knowledge about the topic which would qualify a person as an expert, although for myself I would think it might be possible for a person to be qualified as a witness to give evidence of primary fact as to the manner of speech and the impact of cultural background on understanding. As I say, there is no occasion in the context of this application to give that question further consideration.

18 The other and potentially more fundamental objection to the admissibility of evidence of this kind taken by the court in Condren was that if it was generally possible to give such evidence it would be inadmissible because irrelevant to the characteristics, language and understanding of a particular individual, whether the accused person or not, who was a witness giving evidence in court or whose out of court statements were sought to be admitted in evidence. Again, I would not wish to foreclose the proposition that evidence of this kind might be given in a context where its relevance could be established.

19 In this case, however, no such evidence was or was sought to be led and, in my respectful opinion, it was undesirable and unfortunate that his Honour made the preliminary observations he did without any substratum of fact properly proved before the jury in the ordinary way. What his Honour said was obviously an effort to discharge the Judge's duty to ensure a fair trial, but there was a danger that what was said might cause the jury, in the course of their fact-finding process, to evaluate the credibility of Aboriginal witnesses against a set of criteria not established in evidence before them and not applicable to the witnesses who were called. What was said by the Judge was calculated to cause the jury, in their evaluation of the credibility of such witnesses, to approach a consideration of their evidence sympathetically, making allowances for cultural differences which might or might not have been having an impact upon the testimony given by the witnesses. The potential for unfairness to the applicant is manifest, in my respectful opinion.

20 It is against that background then that I turn first to the grounds of appeal which are concerned with the ruling of the trial Judge during the course of the cross-examination of young Vernon Lawrence, that defence counsel must cease to ask leading questions. Counsel says that that ruling having been made, he continued the cross-examination for a time, but soon found that he was unable to properly test the witness's evidence without asking leading questions. He says that he felt hampered in his capacity to perform his professional obligations on behalf of the applicant. He wound up the cross-examination and resumed his seat before he would otherwise have done, although in the submissions made to us he does not say that there were particular lines of inquiry that were foreclosed by the Judge's ruling, or that, upon his instructions, he ought to have been able to elicit concessions in specific areas of the facts which he was not able to uncover by non-leading questions.

21 What is argued is firstly that the trial Judge's ruling involved an error of law of a fundamental kind in relation to the trial process, denying the applicant's right to conduct his defence as he saw fit, and denying him the fair trial to which he was entitled as of right. True it is that the Criminal Code (WA), s 634, provides:

"Every person charged with an offence is entitled to make his defence at his trial and to have the witnesses examined and cross-examined by his counsel."

22 The term "counsel" is defined to include any person entitled to audience as an advocate. This section is designed to provide a right for an accused person to defend himself. It is a basic proposition. The section imports no rules as to the nature of the defence which may be made, or what may or may not be permitted in the course of making the accused person's defence. The section also provides a right to be represented by counsel, as defined by the section. The right to examine witnesses by counsel is obviously intended to refer to the questioning of witnesses called by the accused person. The right to cross-examine witnesses by counsel is equally clearly a right to question the witnesses called by the prosecution. The section implies nothing about how witnesses may be questioned by counsel, what questions may be permitted, or how they may be framed.

23 The Evidence Act 1906 (WA) contains a number of provisions concerned with the manner of questioning. Of some relevance for present purposes are ss 25 and 26. Section 25 governs cross-examination as to credit. It says nothing, however, about the form of questioning which may be employed. Section 26 gives the Court a specific power to forbid scandalous or indecent questions or questions intended to insult or annoy or which are needlessly offensive in form. Again, the section says nothing about the power of a trial judge to control the form in which questions are asked, beyond those specific matters.

24 Given the statutory right to cross-examine, the question is whether that right includes the right to formulate questions in leading form as part of a process of confronting a witness with the case of the other side. No statute makes such a provision. But for the applicant it is argued that the right exists at common law, citing Parkin v Moon [1835] EngR 409; (1836) 7 Car & P 408, where at 409, Alderson B said:

"I apprehend you may put a leading question to an unwilling witness on the examination-in-chief at the discretion of the judge; but you may always put a leading question in cross-examination, whether a witness be unwilling or not."

25 Of course, that is right so far as it goes, but the case was not concerned with the power of the trial Judge to control the form in which questions may be couched in cross-examination.

26 The respondent argues that such a power is undoubted. Reliance is placed upon the case of Mooney v James [1949] VicLawRp 6; [1949] VLR 22. The case was the return of an order to review the decision of a magistrate at Petty Sessions, holding that leading questions could not be put of a particular witness in cross-examination. The ground upon which the magistrate made that ruling was that the witness showed partisanship towards the party cross-examining. Barry J referred to the judgment of Alderson B in Parkin v Moon. At 28 his Honour said:

"I consider the learned Baron overstated the position, however, and that there is no absolute right to put leading questions in cross-examination. The basis of the rule that leading questions may be put in cross-examination is the assumption that the witness's partisanship, conscious or unconscious, in combination with the circumstance that he is being questioned by an adversary will produce a state of mind that will protect him against suggestibility. But if the Judge is satisfied there is no ground for the assumption, the rule has no application, and the Judge may forbid cross-examination by questions which go to the length of putting into the witness's mouth the very words he is to echo back again."

"Usually it will be the duty of the Judge to prevent counsel for the party who calls the witness from putting questions that suggest the desired answers, and to permit counsel for the opposing party to put such questions. But in his discretion, which must be exercised upon judicial grounds, the Judge, if he thinks the interests of justice require it, may permit questions which suggest the desired answers to be put in examination-in-chief, and may forbid them in cross-examination."

28 In my view, there is no statutory or common law right to cross-examine by asking leading questions. Indeed, on the contrary, it seems to me that, as it was put in Mooney v James, a trial judge has the right, in the exercise of discretion, to control the form in which questions may be put in examination-in-chief and in cross-examination: GPI Leisure Corp Ltd v Herdsman Investments Pty Ltd (No 3) (1990) 20 NSWLR 15, 22-3. The guiding principle will be the performance of the judge's duty to ensure that the trial is conducted in a way which is fair to both prosecution and defence. Of course, it will be important to ensure that the accused has a capacity to exercise the statutory right to cross-examine, to test the evidence against him, to confront the witnesses against him with his case, and the exercise of the discretion to control the form of the questions must, in my view, be such as to preserve that right.

29 That brings me to the alternative argument, that his Honour's ruling manifested error in the exercise of his discretion, which again it is said has resulted in the denial of the right to a fair trial and, therefore, in a miscarriage of justice.

30 The Crown case was that during the course of the day in question a number of family members, including those to whom I have referred previously, were gathered at the address in Parmelia, sitting in the lounge room drinking beer and generally socialising, until an argument developed between the applicant and his brother on one side and the deceased and his brother on the other. After some time Vernon Lawrence Senior, whose house it was, told those who were arguing that they must leave.

31 The deceased went into the front yard and waited until he was eventually joined by his brother. They were going to catch a bus, but before they left the property, Ms Mills, the applicant's de facto wife, returned to the house by car. The two Lawrence brothers asked if she could give them a lift to the bus station. The applicant saw this conversation from inside the house. He rushed out and began to argue with the deceased, accusing him of making sexual advances to Ms Mills. A fist fight commenced between the two men. According to the Crown case, the deceased had the better of that, and the applicant retreated into the house, went into the kitchen, selected a kitchen knife, returned to the front yard and again approached the deceased.

32 Young Vernon, if you like the son of the house, was said to have seen what occurred. He had followed the deceased into the house, but, again according to the Crown case, came out to the front of the house in time to see what then happened. When he saw the applicant obtain the knife he called out a warning to the deceased, who picked up a piece of wood from a pile in the front yard. The fight commenced again, the applicant armed with the knife, and the deceased with the piece of wood. Despite the deceased's attempts to defend himself, on the Crown case, the applicant managed to stab the deceased and fatally wound him in the neck.

33 The deceased staggered away into the house and eventually out into the backyard, where he died. Meanwhile, young Gregory Lawrence attempted to strike the applicant with a piece of wood. He was felled by a blow delivered by the applicant's brother and fell to the ground. He got up and ran into the street, chased by the applicant. Young Gregory's father, Gregory senior, chased after the two men, caught up with the applicant and commenced to fight him. The applicant still had the knife, the blade of which had by then been broken. He struck a blow at Gregory senior, wounding him in the chest; hence the second count in the indictment.

34 Young Vernon was, as I have said, the only person at the house on the afternoon in question who had not been drinking, who was sober. He was 18 years of age. He lived at the house in Parmelia. He had completed his secondary education, such as it was, leaving the Kwinana Senior High School about halfway through year 10, and he was studying art and photography at TAFE Kwinana. He spoke no Aboriginal languages and there was no evidence that he lived a lifestyle different from any young person within the socio-economic group of which his family and relatives appeared to be members. Reading the transcript of his evidence, he appears to speak ordinary English and to display no signs of difficulty in expressing himself. However, I appreciate, of course, that we have not the benefit of seeing and hearing him give evidence.

35 The witness was questioned at length when giving his evidence-in-chief. He was cross-examined at length. The questions asked of him in cross-examination were substantially, but not always, leading questions. Counsel commenced his cross-examination by laying the foundation to put to the witness prior inconsistent statements made to the police. The procedure followed was substantially in accordance with the Evidence Act, ss 21 and 22. It is noticeable that when propositions were put to the witness, at least in the earlier part of the cross-examination, he did not necessarily agree with them. On occasions he positively disagreed.

36 After cross-examination had continued for about three-quarters of an hour, the Court took a 15 minute adjournment, after which cross-examination continued. Counsel was taking the events chronologically and he had got to the arrival of Ms Mills. The form of the questions was much the same and again there were propositions put with which the witness disagreed. When counsel commenced to put the evidence previously given by the witness at the first trial there was an objection and the jury were allowed to go to their luncheon adjournment at 12.44 pm. It is not necessary to discuss the point of the objection, but it was dealt with and the Court adjourned.

37 When the trial resumed at 2 pm the questioning continued. It dealt particularly with the fight and what had occurred when the deceased was fatally wounded and went into the house. The questioning then dealt with the incident leading up to the wounding of young Vernon's uncle Gregory. There appeared to be some confusion as to the sequence of events. A sequence was put to the witness, with which he agreed. At that point, at 2.43 pm, the Judge retired the jury and removed the witness from the courtroom. His Honour said:

"I have to say that I am having real difficulty with the evidence of this witness in cross-examination for some time. My impression is he is largely agreeing with whatever is being put to him by way of leading questions and there is obviously a real problem in that, and it's compounded if he is taken to things he said on other occasions. He is again tending to agree even though on occasion he has said, for example, that he did not tell the police this or that, or said it on a previous occasion.

The difficulty I think is his responses in effect simply to leading questions. I am prepared to hear what counsel wish to say about it, if anything, but my inclination at the moment is simply to require his cross-examination to continue from this point without the use of leading questions."

38 Counsel referred to a statement made by the witness to the police which he said set out a different sequence of events from that which he had just confirmed was his evidence in court. As the matter was debated I note that the learned prosecutor did not make a submission as to whether the trial Judge should take the course his Honour had suggested he might. Prosecuting counsel simply said that in his submission the Judge had the power, in the exercise of his discretion, if he saw fit, to take the course proposed. His Honour's ruling was made in the following terms:

"As I have indicated, having had the opportunity to observe this witness both in evidence-in-chief and in cross-examination, to notice a number of the features and characteristics of his evidence, such as the long silences frequently in answering the questions which seem to me simply to indicate or reflect no more than that he is thinking about the answer, thinking what happened in other words, and other features of his evidence, I am very concerned at the moment that his responses to leading questions are not in any way answers to the questions so much as responses which are designed - I don't say that in a deliberate way but are simply responses to a question without necessarily any regard to whether they reflect the fact or not as known to the witness. It seems to me this is primarily a product of his responses to leading questions and for that reason and on that basis and on the basis of that assessment, I do not propose to allow any further questions to be put to him in leading form."

39 When the trial resumed before the jury cross-examination continued, albeit briefly. Counsel asked questions concerned with the relative positions of the witness, Gregory Lawrence senior, and the applicant at the time when the wounding allegedly occurred. The witness said he was a fair distance from his uncle and the applicant. He said he heard the applicant say, "You can have it too, Snow." He agreed that he had not said that to the police and it was put to him that he did not tell the police that because he did not hear it. The witness said he did hear it.

40 Counsel went on to discuss the knife with the blade by then broken. The witness was reminded that he had given evidence that he saw the applicant washing his hands under the tap after it was all over and he saw him throw something over the fence, but he could not see what that was. He said he saw the knife with half a blade in the applicant's hands just before he commenced to wash his hands. He was asked if he said that to the police. He said he did not know. Counsel put it to him that he told the police, "I did not see what he did with the knife." The witness agreed.

41 The cross-examination in relation to the incidents the subject of the indictment concluded as follows:

"You didn't see Neville Stack stab your uncle Greg, did you?---I did.

Someone told you that when you were out the back of the house. Isn't that right?---I don't know where you're getting them questions from.

Sorry?---I said, I don't know where you're getting them questions from. I seen it happen with my own eyes, what he did."

42 Counsel says he was compelled to end the cross-examination at that point because he could not test the story against prior inconsistent statements without leading the witness. It will have been noticed that despite the ruling of the trial Judge, but without further objection by prosecuting counsel and without correction by his Honour, leading questions had been put, but in no case had the witness apparently agreed with the proposition put in circumstances which would lead to any conclusion that he was simply agreeing, regardless of the truth of the matter, because he knew what answer was expected.

43 I do not think the ground of appeal is made out, although I have a sense of disquiet as to what occurred. It seems to me, with respect, that to exercise a discretion to prohibit the asking of questions in a form ordinarily permitted in cross-examination whether or not the witness is adverse to the questioner, ought only to be exercised on clear grounds where it is apparent that the use of leading questions is unfair to the witness and therefore potentially renders the evidence elicited from the witness an unreliable account when the witness, if questioned differently, might be able to tell a story which the witness understands represents the truth of the matter.

44 There is no doubt, perusing the cross-examination, that there was heavy use of leading questions, but some of the suggestions put to the witness were stoutly resisted. Nonetheless, it is clear that the witness gave an account of the sequence and timing of relevant events different from that given on previous occasions and there were other inconsistencies, or potential inconsistencies, in the accounts given by the witness on different occasions. However, as I have said, to read the transcript gives no cause for concern, in my opinion. The way in which the questions are answered, as recorded, does not suggest "gratuitous concurrence" with leading questions, but merely an acceptance by the witness that he had said different things on different occasions.

45 However, in the passage I have quoted from his Honour which commenced the debate with counsel, the Judge refers not only to what was said but to his "impression" that the witness was simply agreeing to leading questions without concern for the truth of the answers. In his Honour's shortly expressed reasons he confirmed that his view of the way in which the witness was handling the process of questioning and giving evidence depended, not only upon the nature of his responses but upon the demeanour of the witness while giving evidence, something about which members of the Court of Criminal Appeal can make no judgment, but in respect of which, in my opinion, the view expressed by the trial Judge must be accepted.

46 Having said that, I must say that when his Honour gave as an example of his concern about the demeanour of the witness, the fact that there were long silences between questions and answers, his Honour did not say that he was concerned because he had the impression that the witness was overborne, or intimidated, or felt rebellious about persistent questioning so that he contemplated refusing to answer or just gave the answer which he thought the questioner expected so as to bring the process of cross-examination to an end. We have, I am sure, all encountered cases where such motivations for the behaviour of a witness were open. However, his Honour said that his impression was that the witness was doing no more than thinking carefully about what answers should be given, that he was recalling what happened. And if that was so, I would have thought that might allay the concern of the trial Judge about the witness's capacity to make a considered response to leading questions.

47 However that may be, when considering the exercise of his Honour's discretionary judgment I remind myself that it is for the applicant to demonstrate that the exercise of discretion miscarried. That can not be done in this case because I do not believe that it is established that his Honour erred in principle, that he considered any matter which was irrelevant to the exercise of the discretion, that he failed to take into account any relevant matter or that his Honour's conclusion that the witness was not coping adequately with leading question was wrong in fact, having regard to the unique advantage of the trial Judge in seeing and hearing the witness give the evidence: House v The King [1936] HCA 40; (1936) 55 CLR 499, 505. In those circumstances, the miscarriage of justice which would be attendant upon the established wrongful exercise of the discretion does not appear.

48 In leaving these grounds I should finally return to the observation made earlier in these reasons that counsel for the applicant did not suggest that there were specific matters which he wished to put which the Judge's ruling prevented him from ventilating. His complaint, really, is a global one, that he was prohibited from utilising a mode of cross-examination which was legitimate and productive of changes in the testimony of the witness. Other matters might have emerged which might have proved helpful to the applicant in his defence or which might have weakened the case of the prosecution, which frankly relied heavily upon the testimony of young Vernon. I note in that regard that the ruling came after matters concerned with the witness's account of the incident from which the death resulted had been comprehensively ventilated. It is doubtful in those circumstances whether a miscarriage of justice in relation to that conviction could be demonstrated, either upon the basis advanced, a wrongful interference at a fundamental level with the trial process, or upon the basis that in respect of that offence the applicant had lost a chance of complete acquittal.

49 That brings me to the last ground of appeal, which is concerned with the observations of the trial Judge made during the course of his Honour's closing address to the jury when, in the course of directing the jury about how they might approach their evaluation of the reliability of the evidence of the witnesses generally, his Honour said:

"As I said to you at the beginning of the trial, there are some considerations which apply in particular to Aboriginal witnesses and I think, having now seen and heard the witnesses, you will appreciate why it was that I made those observations at the beginning of the trial. I just remind you to bear them in mind.

You will remember that many Aboriginal people do not speak English as a first language and just as importantly many who do speak English, and perhaps speak only English, do not necessarily speak the same kind of English that we know and are used to and what might be called standard English. The meaning a witness intends may be different from what we would normally understand by a particular word or phrase and so you need to be careful about that.

Remember too what I said about things like eye contact, silences, references to time and cultural responses to leading questions such as agreeing because it is polite to do so rather than because what is put in the question is accepted as being correct. Whether or not those things bear upon the evidence of any particular witness and, if so, in what way and to what extent, are all matters for you to make your assessment about."

50 I make no comment about the utility of such comments or the need for them in the context of this case. That was a matter for judgment of his Honour the trial Judge in the performance of his task to see that the jury had appropriate guidance in relation to carrying out the fact-finding task which lay ahead of them. Nor is that the complaint of the applicant. For him it is argued that the remarks of the trial Judge conveyed the suggestion, not based on the evidence, that some of what the witnesses said reflected "gratuitous concurrence". It is argued that the reference to that and other matters in relation to the Aboriginal witnesses reflected an unproven stereotypical view of their characteristics and, importantly, counsel says that to suggest to the jury that such matters were material considerations in relation to the jury's assessment of the credibility of such witnesses was to diminish the effect of the cross-examination of prosecution witnesses and thereby to diminish the direction otherwise correctly given about the onus and standard of proof.

51 In my opinion this argument cannot be made out, having regard to the remarks in question, in the context of the directions given to the jury as a whole. His Honour did not invite speculation about the characteristics of the witnesses, although he did make the rather elliptical

statement that, "Having now seen and heard the witnesses, you will appreciate why it was that I made those observations at the beginning of the trial." Had his Honour stopped there there might have been some difficulty, but he went on to do no more than invite the jury to consider whether, in their view, matters such as those to which his Honour referred bore upon and had to be considered in their assessment of the credibility of the witnesses under discussion. If they did not take the view that the witnesses, or any of them, possessed such characteristics relevant to the assessment of their credibility then the jury would find the remarks unnecessary and unhelpful.

52 The trial Judge properly left the matter entirely in the hands of the jury. I am satisfied that no miscarriage of justice upon this ground has been demonstrated. In the final outcome, therefore, I would refuse the necessary extension of time and dismiss the application for leave to appeal.

53 STEYTLER J: The applicant was tried before a jury on two charges. The first was that, on 4 April 2001, he murdered Wayne Robert Lawrence. The second was that, on the same date, he unlawfully wounded Gregory Colin Lawrence. On the first charge, he was found not guilty of murder but guilty of the alternative offence of manslaughter. He was convicted on the second charge.

54 The prosecution called 14 witnesses. Five of them were Aboriginal people. The applicant is also an Aboriginal person. All of the witnesses who were present at the events giving rise to the charges were intoxicated at the time, save for one. That one was Vernon Raymond Lawrence (referred to as "Vernon Lawrence Junior" in order to differentiate him from his father, Vernon Frank Lawrence). Vernon Lawrence Junior was one of the Aboriginal witnesses.

55 The trial Judge gave a number of generalised directions concerning Aboriginal witnesses. Also, after Vernon Lawrence Junior had been cross-examined for some time, the trial Judge directed the applicant's counsel not to ask him any further leading questions.

56 The applicant seeks leave to appeal against his convictions on both counts, essentially because he contends that the directions given by the trial Judge, and the restriction on the right to cross-examine, led to a miscarriage of justice. He also seeks an extension of time within which to bring each appeal. The application for leave to appeal against the manslaughter conviction was filed on 24 March 2004, some three months out of time. The only explanation offered for the delay is that it took

some time for a grant of legal aid to come through. However, legal aid was granted on 13 February 2004 and the applicant's solicitor was appointed four days later, more than a month before the application was filed. The application for leave to appeal against the unlawful wounding conviction was filed even later (after the first application had been heard), on 6 August 2004. The explanation is that the applicant's solicitor had mistakenly believed that the earlier application covered both convictions. At the hearing of the first application, leave was given to the parties to file written submissions as regards the second application, including submissions in respect of the need for an extension of time. Those submissions have since been lodged.

57 Before coming to the grounds of appeal (which are identical in respect of each conviction) I propose to mention some matters which are of significance to the applications and which arose during the trial.

58 The trial Judge, in the course of his opening remarks to the jury, made the following comments concerning Aboriginal witnesses:

"In this trial ... I understand the crown intends to call a number of Aboriginal witnesses and I would like to make some remarks about that which hopefully might assist you.

I do ... [remind] you that it is entirely up to you, as I have said earlier, to make your assessments of the witnesses and to make findings of fact but what I do tell you now might hopefully be of some assistance to you. You would appreciate that many Aboriginal people, by that I mean - or include Aboriginal people of mixed descent, do not speak English as their first language and even those who do speak English as their first language sometimes have learned to speak it in a way which is different to what we might call ordinary English.

It is important that you listen carefully to the context in which words are used to prevent misunderstanding as far as possible. Sometimes ordinary English words are used by Aboriginal witnesses in a way which is different from that of standard English. No doubt counsel will do their best to ensure that this becomes clear to you where necessary but you can often realise it for yourselves if you listen to the context of the evidence as it's being given.

...

Aboriginal English speakers may also have different cultural values. Some of the things that I might mention to you are common with a very wide range of speakers of Aboriginal English, even among many who you might think live a suburban life and apparently speak English quite well. It's important to remember that skin colour is not a reliable indicator of the way an Aboriginal person communicates.

It is very common for Aboriginal people to avoid direct eye contact with those speaking to them. The reason for that is because it is culturally considered to be impolite to maintain eye contact with people. You might think that is actually the reverse of our society but that's why I mention it to you, because we of course - when I say 'we,' I'm speaking to people [who] are apparently not Aboriginal people. The same thing applies to many Asian cultures.

Eye contact is actually impolite and so that's something that needs to be borne in mind when we are considering the way people from a different culture are giving evidence and are or are not maintaining eye contact with us. So don't jump to any conclusions about the demeanour of an Aboriginal witness on the basis of the avoidance of eye contact. Just be conscious of the possibility or indeed in some circumstances a likelihood that it is more of a cultural thing than any indicator of whether or not the witness is telling the truth or being evasive.

It is customary among many Aboriginal people to have long lapses of silence from time to time, even speaking ordinarily in everyday speech. Silence is actually a common means of communication for many Aboriginal people. So again if that should occur during the course of the evidence given by Aboriginal witnesses, you should be careful not to jump to the conclusion that a witness who is being silent before answering a question is being evasive or untruthful.

It may be the case, but the point is it's for you to assess that, with an appreciation of these cultural differences. Furthermore, many Aboriginal people are not used to direct questioning in the way in which it is used in a courtroom. It's very confronting. It's in fact confronting for everybody, as I'm sure you would appreciate. Aboriginal people are used to having the chance to think carefully before talking about serious matters, so it may take some time for them to adjust to the question and answer method of imparting information.

Again, in a case like this, or indeed any court case under our system, it is very common for witnesses to be asked questions in a form in which the answer is suggested by the question itself. We refer to that as a leading question. A leading question is not one which simply calls for a yes or no answer. A leading question is one in which the question contains the answer. So, for example, 'You saw the red car hit the blue car, didn't you?' Well, that one does call for a yes or no answer but it's leading because it's suggesting the answer in the question.

Now, the difficulty with questions like that, particularly with Aboriginal people, is that many Aboriginal people will answer 'Yes' to a question like that even if they do not agree with the proposition that's contained in the question. They do that even if they do not understand the question. So there are a couple of possibilities there as to why they might answer 'Yes' even though that's not actually the answer that they would want to give.

The reason for this is because again it's a matter of politeness. Aboriginal people frequently tend to agree with a proposition put to them because they simply don't wish to disagree. It's not a question of whether it's true or not true. It's a question of cultural politeness. So again this is a consideration you may need to bear in mind.

In the same way, answers, 'I don't know' and 'I don't remember' don't always directly refer to the Aboriginal-English speaker's knowledge or memory. They can be responses to the length of the interview or the length of the question or the difficulty that many Aboriginal people have in adjusting to a long series of questions or interviews.

You should be aware that many Aboriginal speakers use gestures which are often very slight and quick movements of the eyes, head or lips to ... [indicate] location or direction. Whereas we might point, for example, many Aboriginal speakers will simply use an eye or a lip gesture or something of that kind. So again you will see now why I was saying to you earlier it's important for you to actually watch the witnesses as well as listen to what they're saying.

That applies to any witnesses, of course, because we communicate very largely through body language, but what you will appreciate from what I'm saying now is that body language is very much culturally attuned in any event, because different cultures use different body language means of communication.

Some concepts, such as time and number, are understood by Aboriginal-English speakers very differently from standard English speakers. Hopefully, witnesses who do not use numbers and measurements the same way we might be used to using them will not be asked questions by counsel about things in that way, but in a different way. Rather than say, 'Was it 6 o'clock?' or, 'What time was it?', usually you might find it's a question related more to whether the sun was up or down and things of that sort but, again, if the question is asked in that first way and there appears to be some confusion or difficulty it may be simply because the witness is not used to answering in terms of a clock, but rather by reference to other things.

Again, these things are things that you would need to be alive to and I put it no higher than that. I think, ladies and gentlemen, that's probably all I need to say. It's really a matter of being conscious of these considerations. They apply not only to Aboriginal witnesses, of course. They apply to everybody, but I mention them because there are some Aboriginal witnesses going to be called in this trial and so there are things about their cultural context which I think it's important that you remind yourselves of."

59 Those remarks generally followed a form of direction suggested, in extra-curial writing, by Justice Dean Mildren of the Northern Territory Supreme Court (Mildren: "Redressing the Imbalance Against Aboriginals in the Criminal Justice System" (1997) 21 Crim LJ 7 at 21 and 22).

The important of Vernon Lawrence Junior to the prosecution case

60 The evidence at the trial established that, on 4 April 2001, a number of people met at the home of Vernon Frank Lawrence. They were his relatives. They included his son, Vernon Lawrence Junior, his brother, Wayne Lawrence, his cousin, Gregory Colin Lawrence, the son of Gregory Colin Lawrence, Gregory Clinton Lawrence, and, of course, the applicant. A good deal of drinking went on during the course of the day and, in the late afternoon, an argument developed. The applicant and his brother, Robert Stack (who was also present), became involved in a confrontation with Wayne Lawrence and Gregory Colin Lawrence. Gregory Colin Lawrence, by then the worse for wear as a result of alcohol and cannabis consumption, went to a bedroom to lie down. Vernon Frank Lawrence told the others who had been arguing to leave the house.

61 Wayne Lawrence made his way to the front yard. He sent Gregory Clinton Lawrence to fetch his father. The three men then stood in the front yard, intending to catch a bus home. While they were there, the applicant's de facto wife, Pansy Mills, arrived at the house in her car. Wayne Lawrence and Gregory Colin Lawrence asked her if she could give them a lift to the bus station. The applicant was said then to have stormed outside, believing that some sort of sexual advance was being made to his wife. A fight broke out between the applicant and Wayne Lawrence. The applicant was knocked down. He went back into the house, took a knife from the kitchen and returned outside. Wayne Lawrence picked up a piece of wood, but the applicant was said to have rushed in and stabbed him in the left side of his neck. The wound proved to be fatal.

62 The applicant was also said to have chased Gregory Clinton Lawrence up the road a short while after the first stabbing had occurred. Gregory Colin Lawrence said that he pursued the applicant. The prosecution case was that Gregory Colin Lawrence, having caught up with the applicant, punched the applicant and the applicant responded by stabbing him in the chest with the knife, the blade of which had by then broken.

63 The applicant's evidence was that he had taken the knife from the kitchen only to "frighten the boys", Wayne Lawrence and the two Gregory Lawrences having been pushing and shoving him. When he went back outside, the three men had sticks in their hands. He showed them the knife and told them to get out of his way. Then, he said, Wayne Lawrence "king-hit" him from behind. He said that, if he had gone down, the three men would have "belted" him, so he hit back with both fists, notwithstanding that he still held the knife in one hand. He did not realise that he had stabbed Wayne Lawrence. He said that Wayne Lawrence walked away and that he (the applicant) was then struck from behind. He saw Gregory Clinton Lawrence coming at him, armed with a stick. The applicant rushed towards him and Lawrence ran off. The applicant chased him away. He said that Gregory Colin Lawrence then "mouthed off" at him and that he (the applicant) "told him to fuck off or I'll punch him". He said that Gregory Colin Lawrence then walked off. He denied that he punched or stabbed him.

64 Vernon Lawrence Junior, who was generally supportive of the prosecution case, claimed to have seen the incidents which led to the two charges. Importantly, he was said by the prosecutor, in his opening remarks to the jury, to have been "the one witness at the scene who will be called by the prosecution who was sober". The prosecutor also said, a little later, that other witnesses present at the scene had been drinking for some time during the course of the day and that the jury would "need to take that into account when ... [assessing] the reliability of their recollections". He went on to say:

"The one witness, as I have already said to you, who was not affected by alcohol and therefore upon whom you may consider at the end of the trial you can place the greatest reliance was Vernon Lawrence Junior."

The trial Judge's ruling in respect of the cross-examination of Vernon Lawrence Junior

65 The cross-examination of Vernon Lawrence Junior commenced at about 11.20 am on the second day of the trial. It continued until about 12.55 pm, when the lunch break was taken. Cross-examination resumed at 2 pm. After about 40 minutes, the trial Judge suggested that the jury retire for a cup of tea or coffee. The trial Judge then said the following to counsel for the applicant:

"I have to say I am having real difficulty with the evidence of this witness in cross-examination for some time. My impression is he is largely agreeing with whatever is being put to him by way of leading questions and there is obviously a real problem in that, and it's compounded if he is taken to things he said on other occasions. He is again tending to agree even though on occasion he has said, for example, that he did not tell the police this or that, or said it on a previous occasion.

The difficulty I think is his responses in effect simply to leading questions. I am prepared to hear what counsel wish to say about it, if anything, but my inclination at the moment is simply to require his cross-examination to continue from this point without the use of leading questions. I don't think we are getting his evidence in this way."

66 Counsel for the applicant objected to that course being followed and a debate ensued. The trial Judge then gave the following ruling:

"As I have indicated, having had the opportunity to observe this witness both in evidence-in-chief and in cross-examination, to notice a number of the features and characteristics of his evidence, such as the long silences frequently in answering the questions which seem to me simply to indicate or reflect no more that he is thinking about the answer, thinking what happened in other words, and other features of his evidence, I am very concerned at the moment that his responses to leading questions are not in any way answers to the questions so much as responses which are designed - I don't say that in a deliberate way but are simply responses to a question without necessarily any regard to whether they reflect the fact or not as known to the witness.

It seems to me this is primarily a product of his responses to leading questions and for that reason and on that basis and on the basis of that assessment, I do not propose to allow any further questions to be put to him in leading form. That includes of course in cross-examination."

67 The cross-examination continued. For a short time, counsel for the applicant restricted his questions to non-leading questions. Then, he asked a number of leading questions. While the transcript shows no intervention from the trial Judge at that point, we were assured by counsel for the applicant that there was an "exchange of looks" between him and the trial Judge and that he then desisted from asking any further leading questions. Instead, he asked only the following questions, before concluding his cross-examination (transcript page 511):

"Where did you go to school?---Eh?

Where did you go to school?---Kwinana Senior High School.

Which one?---Kwinana Senior High School.

Kwinana Senior High School?---Where I was going to TAFE.

What years did you do at Kwinana Senior High School?---Only year 10.

Year 10. Did you finish year 10?---Halfway through.

Doing well at school?---I was.

Do you speak any Aboriginal languages?---No."

68 Counsel for the applicant said that he ceased his cross-examination at that point because he considered that he could no longer cross-examine effectively without being able to ask leading questions.

69 Until counsel for the applicant questioned Vernon Lawrence Junior about his schooling, no more had emerged in respect of his background than his relationship with others who gave evidence, that he was 18 years old, that he lived, in April 2001, with his father in a Perth suburb and that he was studying art and photography at TAFE in Kwinana in Western Australia.

70 When the trial Judge came to sum up to the jury, he said, amongst other things, the following (transcript pages 798 - 799):

"As I said to you at the beginning of the trial, there are some considerations which apply in particular to Aboriginal witnesses and I think, having now seen and heard the witnesses, you will appreciate why it was that I made those observations at the beginning of the trial. I just remind you to bear them in mind.

You will remember that many Aboriginal people do not speak English as a first language and just as importantly many who do speak English, and perhaps speak only English, do not necessarily speak the same kind of English that we know and are used to and what might be called standard English. The meaning a witness intends may be different from what we would normally understand by a particular word or phrase and so you need to be careful about that.

Remember too what I said about things like eye contact, silences, references to time and cultural responses to leading questions such as agreeing because it is polite to do so rather than because what is put in the question is accepted as being correct. Whether or not those things bear upon the evidence of any particular witness and, if so, in what way and to what extent, are all matters for you to make your assessment about."

71 That brings me to the grounds of appeal. There are six of them.

72 By grounds 1, 2, 3 and 4 the applicant contends that the prohibition on asking leading questions during the course of the cross-examination of Vernon Lawrence Junior was made in error because the trial Judge had no right to impose it (ground 1), or erred in the exercise of his discretion by doing so (ground 2), and also because it gave rise to a denial of natural justice (ground 3) or of the right to a fair trial (ground 4), resulting in a miscarriage of justice.

73 Ground 5, which is extensively particularised, challenges the propriety of the remarks which I have quoted from the trial Judge's summing up and contends that those remarks wrongly invited the jury to regard as suspect answers given by Aboriginal prosecution witnesses to leading questions in the course of cross-examination "on the erroneous basis that Aboriginal people may agree with leading questions because it is polite to do so rather than because what is put in the question was correct".

74 Ground 6 is an alternative ground, contending that "the cumulative or aggregate of the errors of law, misdirections and failures to direct set out above, result in the conclusion that the trial as a whole has miscarried".

75 I will deal with grounds 1, 2, 3 and 4 together.

Cross-examination and the "right" to cross-examine

76 I propose, first, to make some general comments concerning cross-examination and the "right" to cross-examine.

77 The importance of cross-examination of an opposing witness has long been recognised. In Allen v Allen [1894] P 248 (C.A.) Lopes LJ, delivering the judgment of the Court of Appeal, said, at 253, that it appeared to the Court to be contrary to all rules of evidence, and opposed to natural justice, that the evidence of one party should be received against another without the latter having an opportunity of testing its truthfulness by cross-examination.

78 In Whitehorn v The Queen [1983] HCA 42; (1983) 152 CLR 657 at 661, Murphy J said that the right of "confrontation", or of testing evidence put against an accused person, is "one of the fundamental guarantees of life and liberty ... long deemed to be essential for the due protection of life and liberty" (his Honour was there quoting from the judgment in Kirby v United States [1899] USSC 86; (1899) 174 US 47 at 55 - 56).

79 In Wakeley v The Queen [1990] HCA 23; (1990) 64 ALJR 321 at 325 the Court (Mason CJ and Brennan, Deane, Toohey and McHugh JJ) quoted, with approval, what had been said by Lord Hanworth MR in Mechanical & General Inventions Co Ltd & Lehwess v Austin & Austin Motor Co Ltd [1935] AC 346 at 359, as follows:

"Cross-examination is a powerful and valuable weapon for the purpose of testing the veracity of a witness and the accuracy and completeness of his story. It is entrusted to the hands of counsel in the confidence that it will be used with discretion; and with due regard to the assistance to be rendered by it to the Court, not forgetting at the same time the burden that is imposed upon the witness."

80 In R v Astill (1992) 63 A Crim R 148 at 158 Kirby P (as his Honour then was) spoke of "the fundamental right" of an accused person normally to examine, or have examined, the witnesses against him.

81 In Lee v The Queen (1998) 195 CLR 594 at 602 [32] the Court (Gleeson CJ and Gummow, Kirby, Hayne and Callinan JJ) said that confrontation and the opportunity for cross-examination "is of central significance to the common law adversarial system of trial".

82 Similar sentiments have been expressed in the Supreme Court of Canada. In Osolin v The Queen (1993) 86 CCC (3d) 481 (SCC) Cory J (with whom Sopinka, Iacobucci and Major JJ were in agreement) said, at 516 - 517:

"There can be no question of the importance of cross-examination. It is of essential importance in determining whether a witness is credible. Even with the most honest witness, cross-examination can provide the means to explore the frailties of the testimony. ... Its importance cannot be denied. It is the ultimate means of demonstrating truth and of testing veracity. Cross-examination must be permitted so that an accused can make full answer and defence. The opportunity to cross-examine witnesses is fundamental to providing a fair trial to an accused. This is an old and well-established principle that is closely linked to the presumption of innocence ...".

83 His Honour also said (at 518) that cross-examination was "all the more crucial to the accused's ability to make full answer and defence when credibility is the central issue in the trial". He referred, in this respect, to R v Wallick (1990) 69 Man R (2d) 310 at 311; 12 WCB (2d) 19 (C.A.) where it was said:

"Cross-examination is a most powerful weapon of the defence, particularly when the entire case turns on credibility of the witnesses. An accused in a criminal case has the right of cross-examination in the fullest and widest sense of the word as long as he does not abuse that right. Any improper interference with the right is an error which will result in the conviction being quashed."

84 In this State s 634 of the Criminal Code gives to every person charged with an offence the right "to make his defence at the trial and to have the witnesses examined and cross-examined by his counsel".

85 Ordinarily, cross-examination is effected by the use of leading questions. In R v Hunter [1956] VicLawRp 5; [1956] VLR 31 the Victorian Full Court (Martin, O'Bryan and Deane JJ) said, at 36, that:

"Cross-examination of a witness includes the asking of direct, leading and pressing questions which may be put to the witness with a view to breaking down his testimony. It includes also examination by direct and leading and pressing questions to elicit facts which may tend to make the facts he has deposed to improbable. He may be cross-examined as to prior inconsistent statements, questioned as to bias or interest or memory or misconduct or any other such matter which might be useful to the cross-examining party as suggesting that the witness's testimony should not be accepted. All such matters come under the general head of cross-examination."

86 Leading questions are, of course, those which directly or indirectly suggest the answer or which assume the existence of a fact which is in dispute and which has not been deposed to by the witness (cf the definition in the dictionary to the Evidence Act 1995 (NSW)).

87 Questions of that kind are not ordinarily permitted in the course of eliciting evidence-in-chief. In Mooney v James [1949] VicLawRp 6; [1949] VLR 22 at 27, Barry J said that the prohibition is sometimes said to rest upon two assumptions:

"[T]hat ... [the witness] has a bias in favour of the party calling him, and is adverse or hostile to the other party; and that the party calling the witness has had the advantage of knowing previously what the witness can prove, and could, if permitted, frame his questions so as to put a gloss on the testimony of the witness (Best on Evidence (12th ed), at p 561), but Chitty considers that:

'the better and more comprehensive reason is, that many witnesses, either from complaisance or indolence, are too much disposed to assent to the proposition of the counsel, and answer as he may suggest, instead of reflecting, and answering after an exertion of their own memory.'

(... [Chitty's Practice (3rd ed) (1842) vol 3] at p 766). Wigmore (... [Wigmore on Evidence (3rd ed) (1940) vol 3] at p 122) considers that:

'the known principles of human nature tell us that a witness may also unconsciously accept the suggestion of a question. It is therefore not necessary to attribute a corrupt intention either to witness or to counsel'

88 Similarly, in R v Thynne [1977] VicRp 10; [1977] VR 98 at 103, in an addendum to their judgment, the Victorian Full Court (Young CJ and McInerney and Newton JJ) said:

"The prohibition of leading questions in examination-in-chief is intended to prevent the examination from being conducted unfairly. There is a risk that a witness who is asked a leading question may assent to the suggestion made to him instead of answering from his own memory. The trial judge is in the best position to determine whether or not there is a danger of this occurring. If he concludes that the danger does not exist, eg because of the hostility of the witness, he may allow a leading question but he will not of course reach such a conclusion lightly."

89 Cross on Evidence, 7th Australian edition at [17150] suggests that:

"Leading questions are objectionable because of the danger of collusion between the person asking them and the witness, or because of the impropriety of suggesting the existence of facts which are not in evidence. Account must also be taken of human laziness - it is easy to say 'yes' or 'no' on demand, and most leading questions can be answered in this way, even if the same is true of some questions that are not leading."

90 As the Court recognised in Hunter, leading questions are usual in cross-examination, notwithstanding that there may still exist some of the shortcomings referred to above. Indeed, in Parkin v Moon [1835] EngR 409; (1836) 7 Car & P 408; 173 ER 181 Alderson B went so far as to say (at 409; 181 - 182):

"I apprehend you may put a leading question to an unwilling witness on the examination in chief at the discretion of the Judge; but you may always put a leading question in cross-examination, whether a witness be unwilling or not."

91 However, in Mooney v James, at 28, Alderson B was said by Barry J to have overstated the position. Barry J said that the right to put leading questions in cross-examination is not absolute. He went on to say (ibid):

"The basis of the rule that leading questions may be put in cross-examination is the assumption that the witness's partisanship, conscious or unconscious, in combination with the circumstance that he is being questioned by an adversary will produce a state of mind that will protect him against suggestibility. But if the Judge is satisfied there is no ground for the assumption, the rule has no application, and the Judge may forbid cross-examination by questions which go to the length of putting into the witness's mouth the very words he is to echo back again. (cf R v Hardy [1794] 24 How St Tr 659, per Buller J, at p 755). Answers given in such circumstances usually would not assist the Court in its investigation because they would be valueless, and in the exercise of his power to control and regulate the proceedings the Judge may properly require counsel to abandon a worthless method of examination. This brings out an essential feature of trial by British Courts, namely, that it is the duty of the Judge to regulate and control the proceeding so that the issues for adjudication may be investigated fully and fairly. The circumstance that the proceeding is one between adversaries each contending for the decision imposes limits ... upon the effectiveness with which the Judge can perform this duty. Within these limits, however, the existence of this duty clothes the Judge with all the discretionary powers necessary for the discharge of the duty, and he may therefore control and regulate the manner in which the evidence is presented or elicited. (cf Tedeschi v Singh [1948] WN 134). Rules that would exclude the trial Judge's discretion upon such matters have never taken firm root."

92 In McLure v Mitchell (1974) 24 FLR 115 at 128 Joske J, after mentioning that, in Mooney v James, Barry J had gone "a considerable distance in his views as to the disallowance of leading questions in cross-examination", said that he had always understood what had been said by Alderson B in Parkin v Moon, to the effect that a leading question may always be put in cross-examination, to be "sound law". The other two Judges in McLure v Mitchell, Spicer CJ and Dunphy J, found it unnecessary to address the issue.

93 It has long been held that the trial Judge has a discretion as regards the manner in which evidence may be adduced.

94 In Clarke v Saffery (1824) Ry & Mood 126; 171 ER 966 Best CJ said that there is no fixed rule which binds the counsel calling a witness to a particular mode of examining him and that, if a witness shows himself to be "decidedly adverse", it is always in the discretion of the Judge to allow a cross-examination. (He also said that, if a witness is necessarily adverse to the party calling him, counsel may, as a matter of right, cross-examine him. However, his reasoning in this last respect was disapproved in Price v Manning (1889) 42 Ch D 372).

95 In R v Murphy [1837] EngR 1120; (1837) 8 Car & P 297 at 306; [1837] EngR 1120; 173 ER 502 at 507 Coleridge J said that in both civil and criminal cases "it is in the discretion of the Judge how far he will allow the examination in chief of a witness to be by leading questions, or in other words, how far it shall assume the form of a cross-examination".

96 In R v Chubb (1863) 2 SCR (NSW) 282 the trial Judge had expressed the opinion that the presiding Judge must exercise a discretion as to the extent, time and manner of cross-examination. He disallowed a number of questions and also exercised a discretion to postpone the cross-examination of a witness. On a special case reserved for the consideration of the Judges whether he had appropriately exercised his discretion, the Court held that he had. (See also R v O'Brien (1878) 1 SCR (NSW) (NS) 146 in which the Court (Sir James Martin CJ and Faucett and Sir W Manning JJ) held that a trial Judge has a discretion whether or not to compel a witness to answer "yes" or "no" to a question).

97 In R v Lawless [1974] VicRp 49; [1974] VR 398 at 415 the Victorian Full Court (Winneke CJ and Gowans and Kaye JJ), applying Mooney v James, said that "the extent to which the questioning could go in the course of re-examination would be in the discretion of the judge".

98 In Gordon v Carroll (1975) 6 ALR 579 at 585 the Australian Industrial Court (Smithers, Woodward and St John JJ) ruled that, because of the nature of the proceedings in that case, and the relationship of the witnesses to the party calling them, discretion should be exercised in favour of allowing some questions which would normally only be permitted by way of cross-examination. Their Honours said, applying Mooney v James, that it was "clear that the court has a discretion in this area".

99 More recently, in GPI Leisure Corp Ltd v Herdsman Investments Pty Ltd (No 3) (1990) 20 NSWLR 15 at 17 - 18, Young J, after referring to what had been said by Lopes LJ in Allen v Allen as regards the importance of cross-examination, and also to other statements to similar effect, went on to say (at 18):

"These statements, however, cannot be read without qualification. First, they must be set against the general proposition that no-one has any rights in the procedure of the court. The court's procedure is there for the sole purpose of seeing that there is a fair trial of each and every set of proceedings. Secondly, under Pt 38, r 9(3) [of the Supreme Court Rules (NSW)], it is clear that the court may grant leave for an affidavit to be read notwithstanding that notice was given to the deponent to attend for cross-examination and the deponent is not present in court. Thirdly, the material digested in note 38.2.3 in the English Supreme Court Practice shows that, in England under a rule not dissimilar to the New South Wales, Pt 38, r 9, cross-examination is not permitted in certain types of cases.

Apart from particular matters of practice which have grown up in England, it appears quite plain that all the rules as to cross-examination are not rules dealing with rights of parties at all, but are guidelines to judges as to how they should, in fairness, conduct trials before them."

100 Then, on pages 22 and 23, after pulling together a number of threads, Young J listed a series of guidelines as to how a trial will ordinarily be conducted under the superintendence of the trial Judge. These include the following:

"(1) The only actual 'right' is the right to have a fair trial.

(2) It is the duty of the trial judge to ensure that all parties have a fair trial.

(3) In carrying out his duties the trial judge must so exercise his discretion in and about the examination and cross-examination of witnesses that a fair trial is assured.

(4) Ordinarily, a judge in carrying out his duty will see that the trial is conducted in the manner that is commonly used throughout the State, namely that witnesses are examined, cross-examined and re-examined.

...

(8) It may be that in the interests of time or to prevent 'torture' of the witness or for other good reasons, a judge may in special circumstances limit cross-examination. Such a situation would occur where, for instance, there was only a fixed amount of time before an event occurred and a decision was essential before that event occurred.

...".

101 Of course, there are other, well-recognised, limits on cross-examination. So, for example, the evidence must be relevant and, generally speaking, its probative value must be weighed against its prejudicial effect.

102 Finally, so far as this review of the cases concerning the discretion is concerned (I do not suggest that it is exhaustive), in Alcoa of Australia Ltd v McKenna [2003] VSCA 182 Chernov JA (with whom the other members of the Court were in agreement) said at [26] that a trial Judge has the discretionary power to regulate the manner in which evidence is given so as to ensure that the issues before the Court are investigated not only fully, but fairly. His Honour cited the judgment of Barry J in Mooney v James in support of that proposition.

103 In New South Wales the common law discretion has been given statutory effect by s 42 of the Evidence Act 1995 (NSW). That section reads as follows:

"(1) A party may put a leading question to a witness in cross-examination unless the court disallows the question or directs the witness not to answer it.

(2) Without limiting the matters that the court may take into account in deciding whether to disallow the question or give such a direction, it is to take into account the extent to which:

(a) evidence that has been given by the witness in examination in chief is unfavourable to the party who called the witness, and

(b) the witness has an interest consistent with an interest of the cross-examiner, and

(c) the witness is sympathetic to the party conducting the cross-examination, either generally or about a particular matter, and

(d) the witness's age, or any mental, intellectual or physical disability to which the witness is subject, may affect the witness's answers.

(3) The court is to disallow the question, or direct the witness not to answer it, if the court is satisfied that the facts concerned would be better ascertained if leading questions were not used.

(4) This section does not limit the court's power to control leading questions."

Stack v The State of Western Australia [2004] WASCA 300

At a glance

Court

Decision date

Before

Catchwords

Source

Catchwords

Judgment (272 paragraphs)

Stack v The State of Western Australia [2004] WASCA 300 (20 December 2004)

The Opening Observations of the Trial Judge

The important of Vernon Lawrence Junior to the prosecution case

The trial Judge's ruling in respect of the cross-examination of Vernon Lawrence Junior

Cross-examination and the "right" to cross-examine

Was there a sufficient basis for prohibiting leading questions in this case?

Parties

Cases Cited (27)