Tieu v R

Proposed ground of appeal

1. The sole ground pursued at the hearing of the proposed appeal was that the trial had miscarried because the prosecutor embarked on cross-examination of the applicant on his criminal record, in the absence of leave granted by the trial judge. What in fact happened was that the prosecutor had foreshadowed his proposed course, but had actually embarked upon it (without objection) prior to the judge granting leave. The matter was sought to be rectified following the next adjournment and the judge delivered an interlocutory ruling. Although the challenge was said not to extend to the matters considered in those reasons, they were criticised in oral submissions and it will be necessary to refer to them to provide a complete picture.

Outline of prosecution case

1. The prosecution case, based largely on the evidence of Mr Hibbard, was that he, Hibbard, and the applicant were both users of methylamphetamine ("ice"). They had an earlier acquaintance, but had re-established contact in early 2012. The applicant was not only a user, but a supplier of the drug. He was also a gambler.
2. When Hibbard and the applicant first met in 2012, Hibbard was carrying out armed robberies with the assistance of another man, Daljit (variously spelt in the evidence) Singh, as driver. The applicant told Hibbard that he would like to participate in robberies and would use his car. According to Hibbard, it was the applicant who suggested that they rob Charlie Chan's Bar in Haymarket, which was open early in the morning. On 10 May 2012 the applicant and a cousin, Randy Tran, drove Hibbard to the bar. Hibbard entered the bar at about 5.50am, wearing a scarf over his face and a hoodie over his head and armed with a shotgun. Although he approached at least two persons seeking money, his demands were unsuccessful and he eventually fled. These events constituted count 1, involving a charge of attempted armed robbery.
3. Early on the afternoon of the same day, at about 12pm, the applicant drove Tran and Hibbard to the Lansvale United Sports Club. Hibbard entered the club alone, carrying the shotgun. Hibbard demanded money from an employee behind the bar and was given an amount of $2,000. He then ran from the club and got into the car driven by the applicant. That activity was the subject of count 2.
4. According to Hibbard, the shotgun which he had taken on the first two robberies was not in working condition, nor did he have cartridges. Before committing the robberies on the evening of 11 May, Hibbard said that he had obtained parts to complete the shotgun and had also been given a cartridge by the applicant.
5. The next three counts all occurred within two hours on the evening of the following day, 11 May 2012. Tran did not accompany the others on these occasions.
6. At about 7.50pm on Friday evening, 11 May 2012, Hibbard entered the bar of the Villawood Hotel and demanded money from an employee working behind the bar. She handed him the money in the till, which was a little under $400 and, as was shown on the CCTV footage, removed the drawer from the gaming till to show him that only change was left. Mr Hibbard took the money, ran out and was driven away by the applicant. Those events constituted the armed robbery the subject of count 3.
7. The pair then drove to the Golf View Hotel at Guildford, which was about 10 minutes' drive away. However, the hotel staff had been warned and the front door was locked. Hibbard approached the door and rattled it, but realising that it was locked returned to the car and the applicant drove away. That constituted the charge of attempted armed robbery, the subject of count 4.
8. Approximately an hour later, at about 9.45pm on the same evening, Hibbard entered the Chester Hill Bowling Club, wearing a black balaclava and carrying the shotgun. He approached the bar attendant and told him that it was "a real gun" opening it to show a cartridge in the chamber.
9. In the course of the robbery an amount of cash was handed over which was later discovered in the centre console of the applicant's car, being a bundle of $10 and $5 notes totalling $505. As Hibbard was trying to leave the club, he was tackled by patrons and a struggle ensued in the course of which the shotgun discharged. Hibbard then ran out of the back door and again entered the car driven by the applicant. The armed robbery was the subject of count 5 on the indictment.
10. The police were alerted in the course of, or shortly after, the robbery and were given the registration number of the Toyota Cressida driven by the applicant. When the applicant realised that he was being followed, he tried to outrun the police car, crossing the median strip of Fairfield Street, Fairfield, and eventually, apparently when trying to cross back, crashed into a traffic light pole. Hibbard and the applicant both fled from the car, but were quickly captured. Hibbard had thrown away the shotgun in the course of his flight, but that too was recovered.
11. Hibbard was spoken to by police on Saturday, 12 May 2012 and again on 16 May at the Metropolitan Remand and Reception Centre. On the same day, the police obtained a warrant and searched a unit in Fairfield where the applicant lived.

Case for the accused at trial

1. To a significant extent, the applicant's case at trial confirmed the account given by Hibbard. Thus he agreed that he used ice, and sold drugs, the sales providing the income to support his own drug use and gambling.
2. He also agreed that he had met Hibbard in about 2010, having a common interest as both were users of ice, as was his cousin, Randy Tran.
3. The appellant confirmed that he had re-established contact with Hibbard in late April or early May 2012, at which time he claimed that Hibbard had told him that he (Hibbard) worked for a trucking company and did debt collection work.
4. The applicant gave evidence that he had been kidnapped in late February or early March 2012 and held captive for about two weeks, as a result of an alleged drug debt. When he was released an acquaintance gave him a rifle for protection, which was found on the wall of his unit when the police searched the unit on 16 May 2012. The Toyota Cressida which he agreed he had driven on 11 May was not registered in his name but he said had been given to him by a friend in payment of a drug debt, although he also denied sole ownership, saying it was "like a community car" [1] which he lent to a lot of people. In particular, he said that he lent the car to Hibbard on 9 May 2012, it being returned in the afternoon or early evening of 10 May. That evidence constituted a denial of any involvement in the activities the subject of the first two counts in the early hours of 10 May and at about midday on 10 May.
5. The applicant gave an account of his movements on 9, 10 and 11 May. Much of the activity involved collecting and supplying drugs. He explained a variety of text messages between himself and Hibbard in the early afternoon of 11 May as involving arrangements to meet. When they did meet, he said that Hibbard asked him to drive him to see a mate and that he believed it was part of Hibbard's debt collection business. He said that Hibbard offered to pay him a "commission" and a couple of hundred dollars for the loan of the car on the previous day. [2] In relation to the first two incidents on the evening of 11 May, the applicant gave an account of driving Hibbard at the latter's direction and picking him up, on each occasion without seeing Hibbard wearing any covering over his face and without seeing the shotgun.
6. With respect to the third incident, at the Chester Hill Bowling Club, he said that Hibbard told him to drop him (Hibbard) off and, if he were not back in 10-15 minutes, to leave without him. As he was about to drive off, he heard a shout and turned the car around to pick Hibbard up. He said that Hibbard appeared to be injured and was carrying the shotgun. That was the first occasion on which he claimed to have seen the shotgun; Hibbard told him to "drive". [3] The applicant said that he saw a police car following him and proposed to pull over to allow the police to pass, at which point Hibbard pointed the gun to his head and told him to keep driving. He said that he panicked, accelerated and swerved across the median strip into oncoming traffic and crashed into a set of traffic lights. He said that he then got out and ran because he had drugs in the car and also because he wanted to get away from Hibbard. [4]

Challenge to cross-examination as to credit: statutory scheme

1. It was apparent from the jury's verdict that they were satisfied that (a) the applicant was the driver of the car on both days; (b) he was fully aware of the purpose of the visits to particular places and (c) knew that Hibbard was carrying a shotgun. In broad terms, the jury must have believed Hibbard's account and disbelieved the applicant. There is no doubt that the credibility of each was in issue at the trial.
2. Questions of credibility can be raised in various ways. Indeed, the term "credibility" can cover a range of different matters. Where there is a disputed fact of which a witness gives evidence, the other party will usually suggest in cross-examination (and indeed may have to do so to comply with Browne v Dunn [5] ) that his or her account is the true account, not that of the witness. That will involve a direct challenge to the evidence of the witness, which may, directly or by inference, suggest unreliable perception, forgetfulness, or even fabrication.
3. Further, a witness may volunteer evidence which is discreditable. For example, in the present case, both the applicant and Hibbard proffered accounts of their mutual involvement in the use of ice; Hibbard agreed that he had been involved in armed robberies and the applicant accepted that he was a supplier of illegal drugs and specifically ice. Hibbard was cross-examined at length about his illegal activities, at least in part to persuade the jury he should not be believed when he implicated the applicant.

(a) Evidence Act, Pt 3.7

1. There are detailed provisions in the Evidence Act 1995 (NSW) protecting an accused person who gives evidence from cross-examination as to credit. So far as relevant to the circumstances outlined above, they need to be addressed.
2. In the Evidence Act the term "credibility" of a witness is defined to mean "the credibility of any part or all of the evidence of the witness, and includes the witness's ability to observe or remember facts and events about which the witness has given, is giving or is to give evidence." [6] (It is not necessary to explore the vexed topic of the extent to which the definition covers the reliability of the evidence.) The term "credibility evidence" is defined (in s 101A) primarily as evidence that "is relevant only because it affects the assessment of the credibility of the witness". (The second limb of s 101A may be disregarded as it was not relied on in the present case.) In s 103(1), the Act speaks of evidence which "could" affect the assessment of credibility or (in ss 103 and 104) "tends to prove" [7] untruthfulness. In assessing admissibility it may be assumed that it is the capacity of the evidence which is addressed by s 101A.
3. Evidence is not irrelevant "only because it relates only to… the credibility of a witness". [8] However, it will not be relevant unless it could, at least indirectly, affect the assessment of a fact in issue. [9] While credibility evidence may be relevant in this sense, that is not the sense in which "relevant" is used in s 101A.
4. The Act then provides (s 102) a "credibility rule", namely that "credibility evidence about a witness is not admissible." The use of the connector "about" is awkward here, as it is in other contexts. [10] As is clear from a number of exceptions to the rule, the prohibition on admissibility covers both evidence which is led, or sought to be led, from another witness and cross-examination of the witness whose credibility is in issue. Thus, s 103 provides: 103 Exception: cross-examination as to credibility (1) The credibility rule does not apply to evidence adduced in cross-examination of a witness if the evidence could substantially affect the assessment of the credibility of the witness. (2) Without limiting the matters to which the court may have regard for the purposes of subsection (1), it is to have regard to: (a) whether the evidence tends to prove that the witness knowingly or recklessly made a false representation when the witness was under an obligation to tell the truth, and (b) the period that has elapsed since the acts or events to which the evidence relates were done or occurred.
5. The rule is awkwardly formulated with respect to cross-examination, because it is the answer which is the "evidence" and until the answer is known, one can only speculate as to whether it will affect the assessment by the jury of the credibility of the witness. Further, in some cases the question will cause more prejudice than the answer. There are aspects of the exceptions which could have been more comfortably located in Chapter 2 - "Adducing evidence".
6. Broadly speaking, cross-examination has two purposes, namely to elicit evidence favourable to the cross-examiner's case and to undermine the credibility of evidence adverse to the cross-examiner's case. Questioning directed to the latter exercise will fall within the credibility rule, if it is relevant only because it affects the assessment of the credibility of the witness. There is an exception with respect to "evidence adduced in cross-examination of a witness" if the evidence "could substantially affect the assessment of the credibility of the witness." [11] Again, the wording is awkward: the apparent intention of ss 101 and 103 is to exclude questions as to discreditable conduct which would not have a substantial effect on the credibility of the witness in giving evidence as to the matter in issue. However, they are not expressly limited in that way and could be engaged by cross-examination which seeks to undermine aspects of the testimony as to matters in issue. [12]
7. Thus, to fall outside the prohibition on credibility evidence generally, the cross-examination must be such as could "substantially affect" the assessment of the credibility of the applicant. It is not necessary to explore the precise scope of s 103: the argument in the present case focused on the operation of s 104, which is concerned specifically with cross-examination of an accused in criminal proceedings. 104 Further protections: cross-examination as to credibility (1) This section applies only to credibility evidence in a criminal proceeding and so applies in addition to section 103. (2) A defendant must not be cross-examined about a matter that is relevant to the assessment of the defendant's credibility, unless the court gives leave. (3) Despite subsection (2), leave is not required for cross-examination by the prosecutor about whether the defendant: (a) is biased or has a motive to be untruthful, or (b) is, or was, unable to be aware of or recall matters to which his or her evidence relates, or (c) has made a prior inconsistent statement. (4) Leave must not be given for cross-examination by the prosecutor under subsection (2) unless evidence adduced by the defendant has been admitted that: (a) tends to prove that a witness called by the prosecutor has a tendency to be untruthful, and (b) is relevant solely or mainly to the witness's credibility. (5) A reference in subsection (4) to evidence does not include a reference to evidence of conduct in relation to: (a) the events in relation to which the defendant is being prosecuted, or (b) the investigation of the offence for which the defendant is being prosecuted.
8. The operation of this provision is by no means self-evident at first glance. The credibility rule, in its application to cross-examination, based on a combination of ss 102 and 103(1), allows credibility evidence if it could substantially affect the assessment of the credibility of the witness. That meant, as occurred in the present case, that Hibbard could be cross-examined (and was cross-examined without objection) as to his criminal record. Cross-examination of an accused, without leave, is limited to those situations identified in s 104(3). A person accused of a serious crime of which he or she is guilty, will always have a motive to be untruthful. However, the prosecution is entitled to put its case to an accused in order to establish that the accused is guilty and thus has a motive to be untruthful: such questions would go to the ultimate issue and would not be relevant only to the assessment of the accused's credibility. Arguably, they would therefore be relevant to an issue, not inadmissible and, accordingly, not within the definition of "credibility evidence" in s 101A. Section 104 applies only to credibility evidence in a criminal proceeding. [13] The provision may be directed in any event to extraneous motives, but it is not necessary to explore further the operation of s 104(3), it not being contended that leave was not required. In particular it is not necessary to consider the scope of s 104(3)(a) about which there has been remarkably little written.
9. Once it was accepted that leave was required, it was necessary for the prosecutor to fall outside the prohibition on the grant of leave under s 104(4), on the basis that each limb of the exception was engaged. The prosecutor contended that the accused had cross-examined a prosecution witness (Mr Hibbard) to establish his tendency to be untruthful and which was relevant to his credibility in giving evidence against the applicant. Thus, it was submitted, both pars (a) and (b) of s 104(4) were satisfied. The evidence in question did not fall within the exclusion to the exception in s 104(5).
10. The applicant challenged both this analysis of what occurred and the failure of the trial judge to deal with the "gateway" issue, before addressing the discretionary power to grant leave.
11. There are other considerations which operate with respect to a grant of leave. Section 192(2) prescribes certain matters which are to be taken into account in determining whether to give leave, in terms which are non-exclusive. They include unfairness to a party or to a witness. [14] To similar effect, the court may refuse to admit evidence if its probative value is substantially outweighed by the danger that it might be unfairly prejudicial to a party (s 135) and, in a criminal case, must refuse to admit evidence adduced by the prosecutor if its probative value is outweighed by the danger of unfair prejudice to the accused (s 137).

(b) whether consideration of s 137 mandatory

1. There was a general assumption made in the present proceedings that ss 135 and 137 applied once it was concluded that the discretionary power to allow cross-examination of the applicant was engaged. The issue was potentially significant as, in a manner which will be further explained shortly, counsel for the applicant did not address the judge on factors relating to prejudice which might have raised an issue as to how the balancing process was to be addressed. However, in submissions directed to the ground which was abandoned at the hearing, the prosecutor submitted that, "[s]ubject to the overriding obligation to ensure a fair trial according to law, there is no obligation on a trial judge to reject evidence of his or her own motion where no objection is taken and the accused is legally represented". [15]
2. There is, as the prosecutor rightly noted, a significant line of authority in this Court for the proposition that s 137, although in mandatory terms, need not be considered in relation to particular evidence unless objection has been taken. That approach was clearly and deliberately articulated in FDP. [16] The contrary view had been taken a few months earlier in Steve v R, [17] based on a statement by Heydon JA in R v Le at [90]. However, Heydon JA's statement that "[i]ndependently of whether the parties raise the question, account must always be taken of s 192 and, in criminal cases, of s 137" was made in the context of an exercise by the trial judge of a discretionary power to allow the prosecutor to question a prosecution witness in relation to an earlier statement, pursuant to s 38 of the Evidence Act. The reasoning in Le was based in part on the mandatory language of s 137 and further, on the express terms of s 190 providing that the court may, if the parties consent, dispense with the application of various provisions of the Act, the identified provisions not including ss 192 and 137.
3. In Penza and Di Maria v Regina, [18] Hoeben JA noted "a difference of opinion" as to whether the provisions of s 137 are "mandatory" so that a trial judge "has an obligation not to admit evidence coming within the section, even though no objection was taken to that evidence at trial." [19] Hoeben JA sought to address that issue because in Chand v R [20] he had upheld a ground based on s 137 even though no objection had been taken to the evidence at trial. Having read FDP, he recanted, accepting the correctness of the reasoning in FDP and stating that "on this issue, Le and Steve should not be followed." [21] However, rejection of the reasoning in Steve, with respect to the application of s 137 where no objection is taken to the evidence, does not necessarily undermine the reasoning in Le, which concerned the application of a discretionary power.
4. As noted by Macfarlan JA in Poniris v R, [22] both Campbell J and Button J in Penza expressly reserved their opinions with respect to s 137, the point not requiring resolution and the Court not having had the benefit of full argument. What was not noted, however, was that Le did not involve a "no objection" issue, but rather the acknowledged requirement for the exercise of a discretionary power. As noted above, the rejection of the reasoning in Steve did not require the rejection of Le. Nor did the reasoning in FDP require the conclusion that Le should not be followed.
5. Poniris was a different case again: there the appellant had objected to the evidence on the ground of relevance but had not expressly (nor, it was said, implicitly) invoked the balancing exercise required under s 137. He nevertheless contended that the trial judge had erred in failing to undertake that exercise. In Poniris the Court held [23] that although objection had been taken, but on a basis other than s 137, the reasoning in FDP was "equally applicable" and "arguably an a fortiori case because it is clear in such a situation that defence counsel … has turned his or her mind to the admissibility of the evidence and, it can be inferred, has decided to confine the objection to one of relevance."
6. Given that an objection based on relevance is unlikely to be raised if the evidence is not seen to have a potential for prejudice, and because relevance requires reference to how the evidence may rationally affect an issue and thus have probative value, the idea that such an objection is subject to an implicit limitation may not be available in all cases. The relevance of Poniris in the present case is that although there was clearly an issue as to whether the discretionary power to allow cross-examination of the applicant should be exercised, there were no submissions put in terms of s 137 considerations as to why it should not. Nevertheless, the reasoning in Le not having been addressed and departed from in any of the cases in this Court, it should be followed. Accordingly, and subject to two further considerations, the trial judge was obliged to consider whether the probative value was outweighed by the danger of unfair prejudice [24] and the extent to which a grant of leave would be unfair to the accused. [25]
7. The two qualifications are as follows, namely (a) a failure to object imposes on the applicant a requirement to obtain leave of the court to raise the issue as a ground of appeal, and (b) it is necessary to consider whether s 137 was engaged, according to its terms.
8. The need to apply r 4 was not in doubt on the appeal: its application will be addressed below. Similarly, the operation of s 137 was not raised either at trial or on appeal and, because the trial judge in fact undoubtedly had regard to it, it is not necessary to consider whether it was engaged. Nevertheless, it is convenient to note the reason why it may not have been. Section 137 requires a balancing between the "probative value" of the proffered evidence and the danger of unfair prejudice. The phrase "probative value" is defined to mean "the extent to which the evidence could rationally affect the assessment of the probability of the existence of a fact in issue." [26] This definition uses the language of s 55, relating to the concept of "relevant evidence", without expressly adverting to the effect being either direct or indirect. While, in a literal sense, these provisions can apply to credibility evidence, s 101A draws a clear distinction between credibility evidence which is relevant "only because it affects the assessment of the credibility of the witness" and evidence which is otherwise relevant to a fact in issue, such as a recounting of the perceptions of the witness of a particular event. The reason for thinking that s 137 may not operate with respect to credibility evidence is that it raises a different issue, namely the "probative value" of the evidence, rather than an assessment of the credibility of the witness. The credibility of the witness is not a fact in issue; the witness may have low credibility, but there may be reasons for thinking that the evidence adduced from the witness as to facts in issue is entirely credible. This distinction is implicit in the exception to the credibility rule (namely that credibility evidence is not admissible) in s 103(1) which asks, not whether the evidence has probative value, but whether the evidence "could substantially affect the assessment of the credibility of the witness."
9. Prior to 1 January 2009, s 103(1) stated that the credibility rule did not apply to evidence adduced in cross-examination "if the evidence has substantial probative value." An amendment operating from 1 January 2009 reflects a point raised by Hunt CJ at CL in Regina v RPS. [27] "S[ection] 103 of the Evidence Act limits cross-examination as to credit to adducing evidence which has 'substantial probative value'. The 'probative value' of evidence is defined in the s 3 Dictionary as meaning 'the extent to which the evidence could rationally affect the assessment of the probability of the existence of a fact in issue', but both the context in which that phrase appears and the subject matter of s 103 indicate that that definition does not apply. [28] That is made clear by the terms of subs (2), which demonstrate that the evidence must have probative value in relation to the credit of the witness. Evidence adduced in cross-examination must therefore have substantial probative value in the sense that it could rationally affect the assessment of the credit of the witness. Such an interpretation accords with the intention of the Law Reform Commission. [29] "
10. The amendment made by the Evidence Amendment Act 2007 (NSW) adopted the language of Hunt CJ at CL in RPS. [30]
11. The specific amendment gives support for the proposition that there are two different exercises (weighing the probative value of the evidence and weighing the credibility of the witness), thus casting doubt upon the application of ss 135 and 137 in the exercise of the discretionary power granted by s 104(2). The point was not, however, addressed in argument and it is not necessary to reach a final view as to the operation of these provisions.

The course of the trial

1. The trial required careful navigation of a number of issues. First, in relation to Mr Hibbard, there was the fact that he was giving evidence for the prosecution, having obtained a discount on his sentence, both for past and future assistance to law enforcement authorities. That fact was addressed in a conventional manner and there is no issue arising from it. Secondly, there was the relationship between Hibbard and the applicant, which centred upon both being ice users and the applicant being a supplier. Thirdly, Hibbard was involved in armed robberies which were not the subject of the proceedings against the applicant. Fourthly, Hibbard had convictions for offences unrelated to the armed robberies. Each of these matters was the subject of cross-examination by counsel for the applicant.
2. There were matters relating to the applicant which constituted circumstantial evidence relevant to his involvement with the alleged offending. Various items were located and photographed when the applicant's premises were searched. These included a rifle, exposed on the wall of the premises, the existence of which was used in cross-examination of Hibbard. Although there was a separate ground in the notice of appeal (ground 2) relating to evidence about the rifle, that ground was abandoned.
3. Most of the other material involved a wallet belonging to Hibbard and the applicant's own wallet and its contents. Photographs of various items were tendered; in addition two driver's licences, two "rewards cards" and a membership card for Canley Heights RSL and Sporting Club were also tendered.
4. After the prosecutor opened to the jury, counsel for the applicant outlined briefly the nature of the defence. Amongst other things she said: "Christopher Hibbard is an armed robber, Christopher Hibbard got a big discount for pleading guilty, telling the police who he said was involved and also he gets another discount for coming along to court and giving evidence. He's already given some evidence against another person called Daljit Singh and he's going to give evidence against my client Andrew Tieu. Now what I would ask you respectfully to do is to look at Christopher Hibbard, listen to what he says, [watch him?] because body language is important and, and the issue is, as my friend Mr Crown has quite fairly put to you, can you trust an armed robber because you will hear very soon that this man did 14 armed robberies, this is 14 armed robberies with a shotgun and you will hear at the end that a shotgun actually gets discharged at the end, he's the one going in doing this. So this is a man who has done 14 armed robberies …." [31]
5. Counsel also identified the relationship between the applicant and Hibbard as one of "ice, they did ice together". [32] She summarised the defence as being that the applicant "wasn't in the car for the first day but he says whilst he was in the car on the second day he did not have an agreement with Christopher Hibbard and he did not know he was doing armed robberies." [33]
6. Mr Hibbard was called by the prosecutor. Mr Hibbard gave evidence in chief that he had done other armed robberies, involving Mr Singh. It was led in chief because it formed part of the matters for which he was sentenced and received a discount for the plea of guilty. He said that he got the shotgun from Singh. [34]
7. At the completion of his evidence in chief, there was a discussion as to what the jury should be told with respect to the details of the sentence and the discount; rather than have that material extracted from Hibbard, possibly incompletely, the judge gave a summary to the jury. Cross-examination then commenced. It continued over more than 160 pages of transcript. Many questions were asked on topics which went beyond his direct involvement with the five offences identified in the indictment, covering the two day period in May 2007 and involving the applicant. He agreed that he and Singh had smoked ice at their workplace; [35] he was taken through details of robberies he did with Singh, [36] which included showing in court CCTV footage of the robberies occurring; he was asked about details of his recruitment of another fellow worker to be involved with armed robberies, [37] further detail of the robberies involving Singh, [38] and detail, perhaps curiously, as to his belief that Singh was ripping him off and he was sick of working with him. [39]
8. Mr Hibbard was also cross-examined as to a statement that he never took money from "people", meaning from individuals rather than from clubs and companies. It was put to him that he had taken money from people in the past and that he had been sentenced for "larceny type matters". [40] He was asked if he had had "a larceny matter" at Penrith District Court in 2002 and received a s 9 bond for three years, with which he agreed. [41] It was also put to him that he had a charge of "enter building with intent to commit indictable offence" in 2002, a break and enter in September 2003 and a larceny in 2008. [42] He was asked if he maintained the position that he had never hurt anybody in any of his crimes and replied, "I did once, but not in the armed robberies." [43] He was asked if that was an offence in 2010 of "assault occasioning" against his wife. He agreed. [44]
9. In going through various telephone records, he was asked if he was "internet browsing", to which he said "Ok" and was asked further "What are you looking at?" to which he answered "probably porn or something I don't know", which counsel pressed asking "Pornography?" to which he said "Yeah probably."
10. In the course of cross-examining on the telephone records, counsel obtained agreement that he was purchasing drugs from a dealer other than Tieu. [45]
11. To return to the operation of s 104, the prohibition on the grant of leave to cross-examine an accused is lifted where the accused has adduced evidence (including by cross-examination) tending to prove that a prosecution witness "has a tendency to be untruthful", and the evidence is relevant "solely or mainly to the witness's credibility." However, such evidence is not to include evidence of conduct in relation to events for which the accused is being prosecuted, or in relation to "the investigation of the offence for which the accused is being prosecuted." [46]
12. As counsel made clear in her opening to the jury, the primary (if not sole) purpose of the cross-examination of Hibbard was to persuade the jury that he should not be believed on his oath in his account of the applicant's involvement in the five offences with which the applicant had been charged. In so far as the cross-examination related to those offences, it did not form evidence which could lift the prohibition in s 104(4). Counsel for the applicant submitted that the extensive cross-examination in relation to other armed robbery offences in which the applicant was not involved also fell within the exclusion in s 104(5) because those offences were dealt with as part of one investigation which included, but was not limited to, the offences for which the applicant was prosecuted. That submission should not be accepted. No part of the investigation of the offences committed by the applicant related to those other offences: there was a chronological connection only. There was, no doubt, one investigation so far as Hibbard was concerned, but a separate investigation in relation to the applicant. To the extent that Hibbard was cross-examined at length about those matters, it was undoubtedly to seek to persuade the jury that this was a man who could not be trusted on his oath because of his willingness to do whatever was necessary in order to satisfy his own needs and interests. It was evidence that he had a tendency (or more) to be untruthful and it was evidence which went mainly (if not solely) to his credibility.
13. Although the evidence was less extensive, the same analysis must apply to evidence of his drug use with Daljit Singh, including at their common workplace, his recruitment of another person for involvement in armed robberies and the otherwise irrelevant questioning as to what he was viewing on the internet, which turned out to be pornography.
14. The evidence as to his convictions for larceny and break and enter were designed to demonstrate that he was lying when he said he did not steal from people. The cross-examination about his conviction for assault occasioning actual bodily harm on his wife was designed to establish that he was lying when he professed an unwillingness to harm people and asserted that he carried the gun only to keep people at a distance.
15. The prosecutor applied "for leave to cross-examine the accused about matters that might be seen as going to his credit." [47] The application was squarely put on the basis that the cross-examination of Hibbard was designed to suggest that his evidence was unreliable. Although there was no reference to s 104(4) of the Evidence Act, it is clear that the application was based on that provision, not least in acknowledging the need for a grant of leave. The discussion covered more than three pages of transcript, without any specific reference to the terms of the Act and without any significant resistance from counsel for the applicant. Acknowledging that she had "cross-examined their main witness as to his character and credit" and "gone into his criminal record because of certain things that he raised" (saying that he had never hurt people and never stole from people) counsel merely said, "[o]f course, it is a big issue to cross-examine an accused about his record but nevertheless your Honour, the issue with this trial is the jury already know my client is involved in the dealing of drugs." [48]
16. The judge, in the course of exchanges with counsel appeared, like counsel for the accused, to assume that there would be cross-examination about prior convictions. The following exchange then took place: [49] "HIS HONOUR: Look at the moment, I think the Crown's probably entitled on that basis. ORMAN-HALES: Yes, unfortunately, your Honour, I have to agree but it is the unusual nature of this case because unfortunately everybody has issues, if I can put it that way, but it is the nature of this case. It's not otherwise, it's not your typical case where you may try to keep the accused's character out of it. HIS HONOUR: Well, I don't know about the accused's priors, and I presume he's got priors for drugs? CROWN PROSECUTOR: Your Honour, I wasn't particularly going to - talking about raising his criminal record. ORMAN-HALES: I see. CROWN PROSECUTOR: But I will just check what is the situation. HIS HONOUR: What are you talking about raising? CROWN PROSECUTOR: Well, in terms of cross-examination going to his credit, just the general proposition that people who are involved in drug use and particularly drug supply become practiced at deceiving but it is an essential part of the life of a drug user and particularly a drug supplier. HIS HONOUR: That's a problem - I mean, that is an essential part of your case. ORMAN-HALES: It is. I don't have-- HIS HONOUR: If that's as far as it goes I will give you leave but you might like to think about that further and see how much further you want to go? … HIS HONOUR: --the extent to which you want to cross-examine, beyond what you've said. I think what you've proposed at the moment is entirely-- CROWN PROSECUTOR: Yes, I figured that it was something that I was forced to seek leave for so I now have your Honour's leave. HIS HONOUR: Right. But at this stage you are not proposing to go into any prior record? CROWN PROSECUTOR: Not at this stage, no. HIS HONOUR: If you do you'll let me know? Perhaps at the morning tea break. I don't think - you'll be in-chief until, at least, morning tea? ORMAN-HALES: I think so, your Honour, as far as I can tell, yes, thank you."
17. The applicant submitted, with respect to the application, that at this stage (a) it was only a foreshadowed application, (b) there was no finding that the gateway had been opened, (c) there was no grant of leave and, in any event, (d) a grant of leave was not justified.
18. It is true that the application proceeded in a fairly haphazard manner, with neither party identifying with clarity the issues and their respective submissions. However, it appears that that was because neither party, nor the judge, thought there was any real disagreement and it was, therefore, largely inevitable that the prosecutor would be given leave to cross-examine the accused on matters going to credit. On the other hand, there was no doubt that, at that stage, the prosecutor was expressly eschewing any application to cross-examine on a prior criminal record. That issue was left open, with the prosecutor indicating an intention to consider further what steps might be taken in that regard. As anticipated, the evidence of the applicant in chief took until the morning tea adjournment. [50]
19. The prosecutor took a further step at the adjournment, in the absence of the jury and witness, noting that Mr Tieu had given evidence "about the reason for leaving his wallet at home" and that the wallet contained two driving licences. The prosecutor continued, stating that he had "got four previous charges of having an item like a driver's licence with intent to deceive and also other offences of dishonesty." [51] He continued: "Whilst I may have reconsidered my position anyway, particularly the evidence about the driver's licences because the Crown proposes to submit to the jury and to cross-examine Mr Tieu about the significance of the wallet being left behind. … the Crown seeks leave to cross-examine about the previous convictions. I think there's dishonestly obtain property by deception and deal with property suspected proceeds of crime. … So, indeed, in terms of, generally, his credit, he's undertaking all of these drug supply activities at a time when he's on a good behaviour bond but also coupled with those offences, again possess thing like Australian driver licence with intent to deceive, two counts. It goes to the believability of his explanation that that's the reason he left his wallet behind and it also goes to his credit, in more general terms, the offences of dishonesty."
20. The judge then turned to counsel for the accused who said that the application was "not unexpected" and continued: [52] "ORMAN-HALES: Your Honour, we've never shied away in this trial from the fact of what we do. We've always done that. It's been led, that's the lifestyle we were living. Your Honour, the issue in this case is that we're dealing with drugs, that's what we say we did. We don't shy away from that but we say we were obviously going about our drug business, we're not involved in other things. I see where my friend is going. It's not unexpected. There are two driver's licences there. Your Honour, he can - if your Honour sees fit to grant him leave to cross-examine my client. I don't believe my client has ever said that he was honest, so that may be an issue about-- HIS HONOUR: No, but he certainly attacked the Crown witness on that basis, did he not? ORMAN-HALES: Yes, that's true. HIS HONOUR: And continues to. ORMAN-HALES: Certainly, yes. Certainly. Your Honour, this is an unusual case. This is a case where none of us come to this table with clean hands and it's just how it is. It is a robust case. HIS HONOUR: It's really all or nothing. ORMAN-HALES: Pretty much, yes, that's it. HIS HONOUR: Well do you want to say anything further about why the Crown can't cross-examine as to these matters? ORMAN-HALES: Well, your Honour, I don't think I can say anything further, apart from the prejudice to the accused. But, as I said, it's a robust case. It would be difficult for me to shy away from those issues. There's no doubt that he has had those two driver's licences. My client does have a criminal record, he was dealing in drugs and even on me really opening and - sorry, not opening but leading the evidence that he is into drugs would entitle my friend to start going into his record, I would have thought. But, as I said, it's a robust case, it's an all or nothing case. I don't wish to say anything further, your Honour. HIS HONOUR: I just want to review this. You wouldn't be getting to that until lunchtime anyway, I wouldn't have thought. I just want to have a look at - there's a section in Cross on Evidence about prior attacks on credit and I just want to double check that. You might like to have a look at some authorities yourself. I think I'm with you at the moment. CROWN PROSECUTOR: Yes, your Honour."
21. Further examination in chief of the accused continued after that exchange, following which the prosecutor commenced his cross-examination. The applicant agreed that he was selling ice to support his habit (drug use) and also to support his gambling habit. [53] He said he considered the drug trade "as a business" and it was "a flow of income." [54] He agreed that it was necessary to take steps to avoid telephone intercepts and to take steps to avoid being caught. He was asked whether people who used drugs are "deceptive" and said that, "some people are, yes." [55] He agreed in similar terms that some people who use drugs are dishonest. However he did not agree with the suggestion that through his experience with using and selling drugs he was experienced in deception and with being dishonest. [56]
22. He was then taken to the contents of his wallet, as shown in the photograph in evidence, and agreed that there were two driver's licences. He agreed one was a fake driver's licence. [57] The following exchange took place: "Q. … you've told us your driver's licence was suspended? A. Yes. Q. Is that your evidence, your driver's licence was suspended? A. Yes. Q. You went out and got a fake driver's licence, didn't you? A. From memory, I don't remember where exactly this came from but I have had dealings with fake licences, yes."
23. The licence was tendered and he then agreed with the proposition that he had been charged with fraud and had on two separate occasions been charged with possessing items with intent to deceive. [58] It was suggested that he had been charged with a matter that went to court in Newcastle and later another matter at Burwood Local Court. The cross-examination continued for well over a page without objection at any stage. The cross-examination continued: [59] "Q. … when you [were] stopped by the police at Newcastle you were charged with dealing with property suspected to be the proceeds of crime? A. That's what I was charged with, yes. Q. And you received ultimately a three year good behaviour bond in relation to that? A. Yes. Q. That was in March 2012 you got the three year good behaviour bond? A. Yes. Q. You had $29,254? A. Yes. Q. In a black shoulder bag? A. Yes. Q. And there was a further $3,855? A. Yes. Q. And that was the money that was - you were convicted of dealing with property suspected being the proceeds of crime? A. That's what I've been charged with, yes. Q. But you were convicted of it? A. Yes. Q. And you got a three year good behaviour bond for it? A. Yes. Q. In May 2012 when you [were] selling drugs you knew that that was in breach of your good behaviour bond didn't you? A. I assume so, yeah. … Q. But during April and May 2012 while you were subject to that bond you were selling ice? A. Yes. Q. The charges at Burwood Local Court also related to dishonestly obtaining property by deception, two attempted counts? A. Right. Q. You were convicted of that? A. Right. Q. So it's fair to say isn't it you have convictions in relation to offences of dishonesty? A. I used a fake credit card to buy a laptop."
24. Shortly thereafter, the Court adjourned for lunch. On return, the judge raised the following issue in exchange with counsel (omitting interruptions where there appear to have been difficulties with hearing what was said the transcript read as follows): [60] "Mr Crown I didn't know you were going on to deal with those matters of his convictions before lunchtime, we had that exchange before. CROWN PROSECUTOR: I'm sorry your Honour. HIS HONOUR: I wanted to think about that over lunchtime, I did indicate that I was tentatively with you at that time and I think I still am, but I think I need to give a direction to the jury about it. This is a little unusual situation because the - it's the accused himself Ms Orman-Hales. … HIS HONOUR: It's the accused himself who has raised the issue of his prior convictions and his character I suppose. ORMAN-HALES: That's right yes, that's right. HIS HONOUR: What I need to do is to make sure the jury understand that this evidence goes only to his credibility, it doesn't go to any propensity or tendency or anything like that. CROWN PROSECUTOR: Yes. ORMAN-HALES: Yes your Honour thank you."
25. The judge then gave an ex tempore ruling in which he noted that the cross-examination had proceeded "in relation to the accused's prior convictions in particular in relation to offences of dishonesty including specifically possessing a thing like an Australian driver's licence on two occasions". He continued: "What makes this germane is that it is relevant to the finding in the accused's flat of two either fake or false motor vehicle licences and membership cards of various sporting and other social clubs in fake names utilised by the accused. The Crown proceeded to cross-examine the accused on that basis at an earlier stage than was anticipated. In my view cross-examination of that aspect can only go to matters of the accused's credit. It is somewhat complex here in the circumstances because the accused has raised his own character - not only his own credibility, but his own character - by saying that as an essential part of his own case that he is not only a drug user but also a drug dealer. … It is clear that a Judge should not normally constrain cross-examination on matters of credit - as was said in R v Aldridge (1990) 20 NSWLR 737 - unless they are clearly of no material weight. Here this matter is of some weight. Prior convictions may be relevant to credit … as was said in R v Hanson [2005] 1 WLR [3169]. Here the cross-examination was going essentially to the capacity to show a propensity to be untruthful. The danger in all these cases is of course the issue of the danger of propensity or tendency thinking by a jury. For that reason I am proposing to give a direction to the jury along the lines of the same direction I gave about the presence of the gun. … I have raised with counsel the difficulties inherent in such a case - as it is with the flight of the accused with Mr Hibbard following the police and Polair chase - in terms of the accused having to lead evidence which essentially discloses his past. Those difficulties were dealt with to some extent by the Court of Criminal Appeal in R v Cook [2004] NSWCCA 52. But here the other activities of the accused - and his actions as a result of them - is a central part of the accused's case. That has been apparent since the commencement of the trial that his drug dealing and usage were the reason why he was present in his house, and subsequently his car, with Mr Hibbard. Accordingly I will give that direction when the jury returns."

Legal analysis of the course of the trial

1. The applicant was critical of the course the trial took in several respects. First, he said it was wrong for the prosecutor to proceed to raise the issues of convictions for dishonesty without obtaining the leave of the Court in advance. Secondly, when the judge did raise the issue himself, and gave an ex tempore ruling, he did not actually grant leave, even at that stage. Thirdly, to the extent that the ruling involved an implicit grant of leave, there was a failure to address the requirements of s 104(4) and s 137.
2. It is convenient to address these issues together. First, while it is true that the ruling contained no express reference to a grant of leave, no complaint was made in that regard at the time, for the obvious reason that everyone in the court understood that, as had been foreshadowed prior to the cross-examination, it was likely leave would be granted. In other words, had objection been taken at that stage to the cross-examination continuing without a grant of leave, the judge would undoubtedly have corrected the record, by expressly granting leave, without demur from counsel for the accused.
3. Secondly, although the sections of the Evidence Act were not addressed in express terms, it is likely that the judge, by saying that the cross-examination "can only go to matters of the accused's credit" and that the matters were of some weight, had some provisions in mind. However, the reference to the case of Aldridge [61] was inapt, that case being concerned with an earlier provision in terms materially different from s 103(1).
4. The reference to the cross-examination going "to the capacity to show a propensity to be untruthful" could be read as a paraphrase of s 104(4)(a). However, the reference to Hanson suggests that the judge was concerned with use of the prior convictions of the defendant as a basis for cross-examination by the prosecutor, whereas the gateway created by s 104(4)(a) is concerned with cross-examination by (not of) the defendant. Nevertheless it is clear from other passages that the judge had formed the opinion that the gateway to cross-examination, with leave, had been opened.
5. Thirdly, although it was submitted on appeal that the balancing exercise required by s 137 was not undertaken, it was clearly in the judge's mind. Cook, referred to by the judge both in the course of discussion when the issue of leave was first raised and in his ex tempore ruling, was a case involving the application of s 137. Further, the following morning, when a different issue was raised by counsel for the accused, the judge referred again to Cook noting that it was a case dealing with flight, "the CCA there through Justice Simpson was talking about whether the exercise of a discretion under 137 was appropriate given that that would inevitably raise or require the accused to raise his own prior convictions/criminal behaviour." [62] As the judge and counsel recognised and as was reflected in the discussion on a number of occasions, the case run for the accused revealed in uncompromising terms his own involvement with illegal drug use and at least a level of dishonesty. The most serious of the prior offences which resulted in conviction was the proceeds of crime offence, which, it would reasonably be inferred, related to his drug dealing activities. Accordingly, as recognised by his counsel, the unfair prejudicial effect was much more limited than might otherwise have been the case. In short, where both the principal Crown witness and the accused were drug users who obtained money either by armed robbery or by dealing in illegal drugs, the credibility of each was very much at risk on the basis of activity willingly acknowledged by each.
6. In these circumstances, the principal complaint of the applicant must be that first raised, namely that the prosecutor had opened the question of convictions without a grant of leave.
7. The course taken by the prosecutor was undoubtedly mistaken. He should not have proceeded as he did without a grant of leave. Nevertheless, no objection was taken by counsel for the accused and it is, thus, a case in which r 4 applies and the applicant must demonstrate a miscarriage warranting a grant of leave to raise the matter on appeal.

(a) scope of rule 4

1. Although both parties to the appeal acknowledged that leave was required under r 4, in considering whether leave should be granted it is desirable to identify more precisely why that is so. The Criminal Appeal Rules are expressed in the following terms: 4 Exclusion of certain matters as grounds for appeal etc No direction, omission to direct, or decision as to the admission or rejection of evidence, given by the Judge presiding at the trial, shall, without the leave of the Court, be allowed as a ground for appeal or an application for leave to appeal unless objection was taken at the trial to the direction, omission, or decision by the party appealing or applying for leave to appeal.
2. For some purposes a distinction may be drawn between procedural rulings and rulings as to the admissibility of evidence. Thus, in Milakovic it was held that, for the purposes of determining whether an interlocutory appeal is available under s 5F of the Criminal Appeal Act, a refusal to allow the prosecutor to cross-examine a prosecution witness who was said to be "unfavourable" for the purposes of s 38 of the Evidence Act, did not constitute a decision or ruling "on" the admissibility of evidence, so as to allow an interlocutory appeal under s 5F(3A). [63] The reasoning of Sperling J included reliance on s 38 being found in Ch 2 of the Evidence Act, dealing with rules for adducing evidence, as compared with questions of admissibility, which arise under Ch 3. [64] That reasoning would suggest that a different answer might be given with respect to the application of ss 103 and 104, which are contained within Ch 3.
3. The subsequent decision of this Court in Shepherd v R [65] is succinct. The application of r 4 arose with respect to two grounds concerning evidence of an admission made by the accused to a prosecution witness. The first alleged error in granting leave to the prosecutor to cross-examine the witness to elicit evidence of the admission; the second challenged the admissibility of the evidence. The Court held that, no objection having been taken at trial, leave was required under r 4 with respect to the second ground, but that r 4 did not apply to the first ground which was said to be "a decision not as to the admissibility of evidence but as to how evidence could be adduced". [66]
4. This conclusion was reached without analysis of the language of r 4, or consideration of its purpose. It may have been assumed that the opening words ("[n]o direction, omission to direct") referred only to directions given (or not given) to the jury and that those words did not cover a ruling as to how evidence was adduced. Further, the words "decision as to the admission or rejection of evidence" must also have been held not to include a ruling as to whether a particular question could be asked.
5. The phrase "as to" refers in r 4 to a connection or relationship between a decision and the admission or rejection of evidence and is equivalent to "with respect to". The nature of the connection or relationship thus indicated will depend upon the statutory context. In the present context, the question is whether the decision must be one based on the nature of the evidence (that is, whether it is hearsay, for example) or whether it extends to cover limitations on the kind of questioning which can take place at a trial. Having regard to the purpose of the rule, a flexible construction is to be preferred to a narrow construction. As explained by McHugh J in Papakosmas v The Queen. [67] "There is no case for the grant of leave under r 4 unless the Court of Criminal Appeal is satisfied that the appellant has an arguable case that the trial judge has made an error of law or is satisfied that the appellant's conviction is otherwise a miscarriage of justice. Satisfying the Court that there is an arguable case is extremely difficult where the appellant has failed to object to evidence or failed to ask for a direction concerning evidence. In such cases, the trial judge has made no error of law because he or she has not been asked for a ruling."
6. Although Gaudron and Kirby JJ disassociated themselves from McHugh J's opinion with respect to r 4, they did so on the basis that this Court should not adopt "a rigid approach"; they did not expressly take issue with the proposition that a judge does not err in failing to make a ruling which has not been sought. [68]
7. The dichotomy adopted by McHugh J (error of law and otherwise a miscarriage of justice) reflects the language of s 6(1) of the Criminal Appeal Act. That provides three bases of appeal of which the first, a verdict which is unreasonable or cannot be supported having regard to the evidence, does not depend on any specific error or ruling at the trial and therefore does not engage r 4. The second basis, a "wrong decision of any question of law", is not to be given a narrow construction in s 6(1); the operation of r 4 should reflect the scope of the available grounds under this head in s 6(1). The third basis is a miscarriage of justice on any other ground.
8. A similar conclusion may be reached by having regard to the functions of the judge in the course of a trial. The jury is required to decide a case, (a) on the evidence before it, (b) having regard to any directions as to how the evidence should be considered and (c) applying the law as directed by the judge. Thus, it is the function of the judge to rule upon the evidence which the jury may hear and give directions as to how that evidence should be considered. What rulings and directions are required will depend upon the evidence sought to be adduced by each party and such objections as may be taken by the other. In this context, it is reasonable to read a reference to "decision as to the admission or rejection of evidence" as encompassing all decisions which have as their direct and intended consequence an effect on the evidence adduced before the jury.
9. Like Milakovic, Shepherd was concerned with a ruling as to whether a witness was "unfavourable" for the purposes of s 38 of the Evidence Act. Without considering the precise scope of s 38, it is (in colloquial terms) directed to circumstances where it appears that a witness is not giving the evidence sought to be adduced to the best of his or her ability. The three elements listed in s 38 relate to the qualities of the witness, not the admissibility of the evidence. The present case is concerned with the nature of the evidence which may be adduced in cross-examining the accused. Milakovic and Shepherd are therefore distinguishable.

(b) nature of failure to object

1. The circumstances of the present case were, as already explained, unusual. The need to satisfy the requirements of ss 103 and 104 of the Evidence Act, albeit without reference to the terms of those provisions, was acknowledged by the prosecutor before the impugned cross-examination was undertaken. At that stage, no occasion for objection had arisen, although the response of counsel for the accused, which may fairly be characterised as muted opposition, was important. The judge was mindful that a ruling would be required before the prosecutor embarked on the subject matter which required leave.
2. The stage at which objection should have been taken was when the impugned cross-examination commenced, at which point the precise scope of the application had not been articulated, nor had the judge ruled upon it. It was at that stage that counsel for the accused could, if she had intended to pursue her opposition, have objected and stated the legal basis of the objection. Although, in the circumstances outlined above, the trial judge did deliver a brief interlocutory judgment, he did not in terms grant leave, nor did he address the relevant elements of ss 103 and 104 which should have been considered in ruling on the admissibility of the cross-examination. It is tolerably clear from the ruling in fact given, [69] that the trial judge was focused on the potential prejudice which might flow from the jury treating the evidence of prior convictions as some kind of propensity or tendency evidence. That was a legitimate concern and no counsel suggested otherwise.
3. Furthermore, neither counsel expressed the slightest concern as to the nature of the ruling after it had been delivered. Following a brief and inconsequential exchange with counsel, the jury returned and the judge gave a direction in the terms foreshadowed, namely: [70] "The evidence that you heard in the same bracket of questions in the cross-examination about the accused's prior convictions goes only to the questions of his credibility. It cannot be used by you as indicative of any kind of tendency or propensity to commit crimes. It is only introduced to you for that limited purpose of assisting you in assessing his credibility, generally."
4. In summary, the following steps occurred: 1. the prosecutor raised the need for leave in order to allow him to cross-examine the accused as to credit; 2. there was some discussion as to the basis and circumstances of the application; 3. no ruling was given at that stage; 4. the prosecutor embarked upon the cross-examination based on prior convictions; 5. no objection was taken by counsel for the accused; 6. the judge raised the issue in the absence of the jury, in terms which suggested that there was no real issue between the parties, with the result that leave should be granted; 7. counsel for the accused concurred in that assessment; 8. the judge gave an interlocutory ruling, not in terms dealing with the issues relevant to leave; 9. neither party made any further submissions or took objection in respect of the ruling.
5. It follows that r 4 is engaged and leave is required.

(c) whether leave should be granted

1. The circumstances set out above have a marked similarity to those identified by Heydon JA in R v Button; R v Griffen. [71] First, because the issue had been squarely raised, it cannot have been "simply overlooked". Accordingly, as Heydon JA explained, it is necessary to look for an explanation elsewhere. The course identified above reveals that both prosecutor and counsel for the accused accepted that a grant of leave was (in the view of the prosecutor) appropriate and (in the view of the accused) inevitable. The judge accepted that approach: indeed, he may have thought that no formal ruling was required. The judge did, however, consider that misuse of the evidence was a real concern and addressed that (with the consent of both parties) by a direction, to which no objection was taken, nor any challenge raised on appeal.
2. It follows that there was no error of law. The question, therefore, is whether there was otherwise a miscarriage of justice. That was a matter for the applicant to establish.
3. The truth is that there was no miscarriage of justice, for any one or more of a number of reasons, which fully explain why no objection was raised at trial.
4. When the prosecutor first raised the question of cross-examination as to credit before the accused was called, counsel for the accused clearly anticipated that the application included cross-examination "about his record", describing it as a "big issue" but nevertheless an issue which was already with the jury in this case. [72] The judge had already indicated his view that the Crown was "probably entitled" to cross-examine on that basis and counsel for the applicant had agreed, before the prosecutor noted that he had no current intention of raising the criminal record. [73]
5. Again, there was a further opportunity, part way through the examination in chief of the accused, when the prosecutor expressly identified an intention to cross-examine on the criminal record and the nature of the material he proposed to put to the applicant. Counsel responded that she could see where the prosecutor was going and that it was "not unexpected." [74] She described the defence as "a robust case", to which the judge replied, "it's really all or nothing" and counsel for the applicant agreed. In the passage set out above, the judge expressly invited her to put anything further about why the prosecutor could not cross-examine as to those matters and apart from a reference to the "prejudice to the accused" she in effect accepted that there was nothing further to put. Finally, when the judge himself raised his concern that the prosecution had moved to cross-examine on these materials before he had made a ruling, counsel raised no objection at all, but agreed with the course of giving an appropriate direction to the jury about how the material could be used and how it should not be used.
6. This was not a case where cross-examination as to a criminal record came out of the blue: there was ample forewarning. Accepting that even with forewarning, counsel may be reluctant to intervene in cross-examination in a manner which requires a jury to be sent out, that was not this case. Had it been, there was ample opportunity for counsel to identify the difficulty when the judge raised the matter; the fact that she said nothing of that kind is a good indication that no such reticence affected her silence. In any event, if an issue of admissibility arises at a trial, non-objection cannot be excused on some generic basis, such as reluctance to aggravate or annoy jurors, or r 4 might as well be repealed. The fact is that, when the running of the trial is viewed as a whole, it is clear beyond doubt that counsel was entirely resigned to the fact that the course taken by the prosecutor would have been taken (with leave) in any event and no avoidable harm was done by way of prejudice to the accused.
7. Counsel for the applicant submitted that s 104 was not engaged because the cross-examination "was not an attempt to show a tendency on [Mr Hibbard's] behalf to be untruthful, and nor was the evidence of Mr Hibbard's prior convictions relevant solely to his credibility." Rather, the submissions continued, "the questions about Mr Hibbard's criminal record were attempts by Defence counsel to rebut suggestions by Mr Hibbard that he wouldn't hurt or assault people, and that he wouldn't take money from people."
8. These submissions are without substance. The sole purpose of the cross-examination on these topics (which had no direct connection with the elements of the offences) were solely directed to demonstrating that Mr Hibbard lied in asserting the contrary. They sought to demonstrate a tendency to be untruthful. And were solely directed to his credibility (although, perhaps curiously, the criterion in s 104(4)(b) refers to evidence which is "relevant solely or mainly" to credibility). If there were any doubt about the matter, it should be resolved against the applicant because counsel present at the trial, who were in a better position to assess such evaluative criteria, clearly took the view that the gateway in s 104(4) was wide open. The next question was whether the cross-examination of the accused (by reference to his past convictions) "could substantially affect" the assessment of his credibility. The applicant made no clear submission to the effect that the criterion in s 103(1) was not satisfied. He did submit that neither the prosecutor nor counsel for the accused referred to the criminal record of the accused in final addresses, "nor to any substantial degree, his credit or character." The trial judge dealt with the matter in a short passage, namely: [75] "He was taken to his credibility in cross-examination. It was put to him that he had been dishonest, taken to the contents of the wallets and the two driver's licences, the different names that were used, as well as the different names on the various cards. He said and agreed that he had the prior matters referred to and again, I want to emphasise that you should not be prejudiced against the accused in those particular circumstances, just by reason of those matters."
9. In assessing this issue, it is not insignificant that, although the opportunity to put submissions in this regard was not adopted by counsel for the accused before the evidence was given, there was ample opportunity to raise the issue after the evidence was given and demand that there be a direction, not merely a warning against using the evidence as to tendency or propensity, but to the effect that it should be disregarded entirely, because it was insignificant and had no substantial effect on his credibility. That step was not taken. Rather than focus on the criterion in s 103(1), the thrust of the applicant's submissions was that significant prejudice was caused by the cross-examination, which should have led to the questioning being rejected pursuant to s 192(2) or s 137. The applicant submitted that "such evidence was not 'important' for the Crown case, other than for its credibility purpose. There was no rational, probative connection between the offences to which the applicant had been convicted and the robbery offences."
10. Section 192 of the Evidence Act deals generally with factors which are to be taken into account in any consideration of leave, permission or direction under other provisions of the Act. One such factor is "the importance of the evidence", which explains the use of the term "important" in the submission. However, the distinction drawn in the submission is between importance to the issues in the case and questions of credibility: there was no submission that this material was not significant in relation to questions of credibility.
11. The applicant made no submissions in relation to the directions given by the trial judge, which had two features of critical significance for present purposes. The first was that the judge was at pains, on more than one occasion, to ensure that evidence which might have been used prejudicially to the accused was not so used. Secondly, no further directions were sought at trial, nor was any complaint made in this Court as to the directions given. Where evidence is given going to the credibility of the accused, without objection being taken to the evidence and without there being any suggestion at the trial that unfair prejudice had been caused to the accused, it will not be easy for an accused to demonstrate in this Court that there has been a miscarriage of justice. To the extent that the task was assayed at all, it did not succeed.

Conclusions

1. In these circumstances, the proper course is to refuse leave to raise the ground now relied upon, under r 4 of the Criminal Appeal Rules. It follows that, no other ground being pressed, the application for leave to appeal must be refused.
2. McCALLUM J: I have had the benefit of reading the judgment of Basten JA in draft. I would respectfully not share his Honour's conclusion as to the determination of the appeal.
3. The only ground of appeal sought to be maintained is: "The applicant's trial miscarried by reason of the Crown Prosecutor cross-examining the applicant on his criminal record in the absence of a consideration of leave, or the credibility and character provisions of the Evidence Act 1995 (NSW). No objection was raised."
4. In noting that "no objection was raised", the applicant evidently intended to acknowledge a requirement for leave under r 4 of the Criminal Appeal Rules before that ground could be allowed as a ground of appeal. In my view, however, it is doubtful whether the rule applies.
5. Rule 4 provides: "No direction, omission to direct, or decision as to the admission or rejection of evidence, given by the judge presiding at the trial, shall, without the leave of the court, be allowed as a ground for appeal or an application for leave to appeal unless objection was taken at the trial to the direction, omission, or decision by the party appealing or applying for leave to appeal."
6. As framed, the applicant's single ground of appeal is not directed to any direction, omission to direct or decision given by the trial judge but rather contends that the trial miscarried at the point when the prosecutor cross-examined the applicant as to his criminal record without having given the prior notice he had said he would give and in contravention of the Evidence Act.
7. Unfortunately, as Basten JA has noted, the application proceeded in a haphazard manner and neither counsel identified his or her submissions as clearly as might have been the case. The Crown opened the issue by seeking leave "to cross-examine the accused about matters that might be seen as going to his credit". Counsel appearing for the applicant at the trial, Ms Orman-Hales, responded to the application (at T524.20) in terms suggesting acceptance of the proposition that some cross-examination relevant only to the assessment of the applicant's credibility could properly be allowed. However, it is by no means clear that her position at that point comprehended acceptance of the proposition that the occasion had arisen for the accused to be cross-examined about his criminal record.
8. In any event, the prosecutor made plain in a subsequent exchange (at T525.20) that he was not at that stage seeking to raise the applicant's criminal record. He said the cross-examination as to credit would raise "just the general proposition that people who are involved in drug use and particularly drug supply become practised at deceiving but it is an essential part of the life of a drug user and particularly a drug supplier". The judge said "If that's as far as it goes I will give you leave but you might like to think about that further and see how much further you want to go?" (at T 525.29-T525.40).
9. The exchange concluded (at T526.33) with the prosecutor noting that he had leave and the judge specifically confirming that the prosecutor was "not proposing to go into any prior record" at that stage. Although there was no specific reference to the provisions of the Evidence Act, it may be taken that, at that point, the prosecutor had leave under s 104(2) of the Act to cross-examine the applicant about being "practised at deceiving" in the context of his involvement in the use and supply of drugs. The leave did not extend to cross-examination as to prior criminal convictions. The judge specifically asked the prosecutor to let him know in the event that he did propose to go into the applicant's record, suggesting that he give that indication "perhaps at the morning-tea break" (T526.41).
10. Before the morning tea break the Crown did seek that leave, referring specifically to "four previous charges of having an item like a driver's licence with intent to deceive [in fact I think there were only three] and also other offences of dishonesty". The application was expressly made on the basis that, during the evidence after the first application, Ms Orman-Hales had led evidence from the applicant that the reason he left his wallet at home on the night he was alleged to have committed the robberies with Mr Hibbard was that he knew he didn't have a licence or that his licence was suspended, so he "didn't want to bring any ID" with him (T539.40). Although the Crown's application for leave to cross-examine as to the prior convictions was specifically said to be based on that evidence, the connection was not well articulated. The prosecutor identified the relevant topic as "the significance of the wallet being left behind". As best I am able to understand the prosecutor's submissions (as informed by the subsequent cross-examination), the proposition appears to have been that prior convictions for "possess thing like Australian driver licence with intent to deceive" were relevant to "the believability of the explanation for leaving the wallet behind" (not wanting to have ID because he knew his licence was suspended) because the applicant was practised in the use of fake licences and could have used one if pulled over that night. However, the submission was also put, more broadly, that offences of dishonesty unrelated to the issue of fake licences (two counts of dishonestly obtaining property by deception (attempted) and two counts of dealing with property suspected of being proceeds of crime) went "in more general terms" to his credit.
11. Even more tenuously, the prosecutor also flagged reliance upon the fact that the applicant was supplying drugs at a time when he was on a good behaviour bond for the proceeds of crime offences as a matter going to his credibility as a witness (at T569.32). The submission equated disobedience with dishonesty; in my view, they are quite different.
12. Although Ms Orman-Hales appeared to accept that the Crown may be entitled "to start going into his record", the judge reserved his ruling, wanting to review the issue and, in particular, to consider a particular passage in Cross on Evidence, adding that the Crown "might like to have a look at some authorities" himself. The judge noted his anticipation at that stage that the prosecutor would not get to that point of his cross-examination until lunch time anyway; the prosecutor accepted the position as outlined by the judge (at T570.39).
13. Apparently forgetting the outcome of that exchange, the Crown cross-examined the accused about his prior convictions before the lunch adjournment without adverting to the need for a ruling from the judge. At that point (at T590.34 and following), the cross-examination contravened s 104(2) of the Evidence Act. It is that contravention which is sought to be allowed as a ground for appeal.
14. The position is complicated by the manner in which the issue was subsequently determined. As noted by Basten JA at [73]-[74], the applicant's submissions entail criticism not only of the course taken by the prosecutor in proceeding to raise the criminal record without first obtaining leave but also of the ex tempore ruling given after that occurred. In particular, the applicant submits that the judge did not, even then, actually grant leave and did not address the requirements of s 104(4) and s 137 of the Evidence Act. I accept (as stated by Basten JA) that it is convenient to address those three issues together and that the position adopted by Ms Orman-Hales is significant in that determination.
15. However, I do not think r 4 excludes the ground of appeal as framed. The rule applies to grounds for appeal as to the trial judge's conduct of the trial (in giving directions, or not, and in making decisions as to the admission or rejection of evidence). The proposition that a judge does not err in failing to make a ruling which has not been sought does not cover the field of possible failings in respect of the conduct of a trial. The trial judge bears ultimate responsibility to ensure that the trial is fair and is conducted according to law. The content of that responsibility is not determined only by reference to the rulings sought by counsel.
16. The ground of appeal here is that the prosecutor cross-examined an accused person in breach of an express prohibition in the Evidence Act. The prosecutor had a responsibility not to do so and, with respect, the trial judge had a responsibility to stop it, at least until the issue of leave was determined. Certainly, the accused's counsel could have objected too. I accept that her failure to do so is relevant in determining whether there has been a miscarriage of justice. But I do not think the failure to object triggers rule 4. At the point at which the conduct allegedly causing the trial to miscarry occurred, the responsibility to seek a ruling rested squarely on the Crown. To invoke the application of rule 4 in that circumstance is to visit upon defence counsel the burden of guarding the fairness of the trial.
17. The submissions in this Court proceeded on the premise that leave is required under r 4 and accordingly neither party addressed the requirement for leave in respect of a ground of appeal that involves a question of mixed law and fact: s 5(1)(b) of the Criminal Appeal Act (1912) (NSW). In my view, the fact that the cross-examination contravened the Evidence Act and overlooked the indication the prosecutor had given to the judge (albeit apparently due to inadvertence) would warrant a grant of leave under that section.
18. I accept it is possible, as Basten JA apprehends, that although the ruling given by the judge contained no express grant of leave, the judge would have regarded that as a formality and would have granted leave without opposition from Ms Orman-Hales had the point been taken at the time. My reservation in that respect is that, as explained below, I am not persuaded that the judge had in fact traced through the relevant provisions of the Evidence Act at that point. Had he turned up the section in response to a request to "correct the record", there might have been further debate at that point.
19. In any event, it is clear, in my view, that the judge did not turn his mind to the requirements of s 103 of the Evidence Act. The judge said: "It is clear that a judge should not normally constrain cross-examination on matters of credit - as was said in R v Aldridge (1990) 20 NSWLR 737 - unless they are clearly of no material weight. Here this matter is of some weight."
20. In my respectful opinion that passage reveals that, far from having the provisions of s 103 in mind (specifically, the fact that the trigger to the exception to the credibility rule requires a determination that the evidence "could substantially affect the assessment of the credibility of the witness"), the judge applied the wrong test. Aldridge was concerned with the exercise of the discretion under s 56 of the Evidence Act 1898 to disallow a question directed to the credit of a witness if, in the opinion of the judge, "the matter [suggested by the question] is so remote in time, or of such a nature that an admission of its truth would not materially affect the credibility of the witness" (at 741D per Hunt J). The principles stated in Aldridge thus related to a very different test and one which was abrogated by the Evidence Act 1995. The test under the 1898 Act for allowing a question suggesting a matter relevant to the witness's credit was whether the truth of the matter suggested would materially affect the credit of the witness. It may be accepted, as explained below, that the test in s 103 of the Evidence Act was probably met in the present case; the point I am presently making is that the judge's remarks reveal his Honour did not turn his mind to that test.
21. Further, I would respectfully not share Basten JA's confidence (at [76]) that the trial judge did address the question whether the gateway to cross-examination, with leave, had been opened. The judge said: "Prior convictions may be relevant to credit it was said as was said (sic) in R v Hanson (2005) 1 WLR at 169. Here the cross-examination was going essentially to the capacity to show a propensity to be untruthful."
22. The reference to the decision of the English Court of Appeal in Hanson is obscure; that decision was concerned with an application by the prosecution to rely upon prior convictions to establish a propensity on the part of the accused to commit offences of the kind charged. In my view, it is clear that the judge was referring to the cross-examination of the applicant, whereas s 104(4)(a) is concerned with cross-examination by a defendant tending to prove that a witness called by the prosecutor has a tendency to be untruthful (the establishment of which is one of the requirements in the absence of which leave to cross-examine a defendant about matters relevant to the assessment of his credibility "must not be given").
23. Indeed, the judge's reference to the decision in Hanson tends to confirm the applicant's contention that the judge's ex tempore ruling was not a retrospective grant of leave under s 104(2) of the Evidence Act or, at the very least, that even if it was, the judge did not address the relevant requirements of the Evidence Act.
24. The applicant's submissions have persuaded me that, in the circumstances, there was a miscarriage of justice. The cross-examination pre-empted the judge's ruling and contravened s 104(2) of the Evidence Act. The fact that the evidence had come out in the presence of the jury raised an awkward problem but it had to be addressed in an orderly way. The cross-examination having proceeded without leave, the first task was for the judge to make a determination as to leave. With great respect to the trial judge, I do not think his Honour made any such determination in accordance with the requirements of the Evidence Act.
25. Had the provisions of the Act been considered in the present case, it is difficult to imagine that the cross-examination as to prior convictions would have been allowed. The applicant concedes, correctly in my view, that his prior convictions for offences of dishonesty were capable of substantially affecting the assessment of his credibility so as to fall within the exception to the credibility rule provided for in s 103 of the Act. The applicant submits, however, that the further protection provided by s 104 should have applied in his favour. Specifically, it was submitted that Ms Orman-Hales' cross-examination of Mr Hibbard did not tend to prove "a tendency to be untruthful" but rather was directed more narrowly to rebutting specific assertions he had made in his evidence. On that basis, it was submitted that the requirements of s 104(4) were not met, with the result that leave to cross-examine as to the record could not be granted.
26. It was further submitted that, even if that is wrong, the probative value of the evidence was outweighed by the danger of unfair prejudice to the defendant, such that the evidence was inadmissible under s 137 of the Act.
27. In my view, there is force in those submissions. The connection between the prior convictions for possessing fake licences and the believability of the applicant's explanation for leaving his wallet behind was tenuous at best. The point was not made good in any specific way during the cross-examination. There was evidence in the trial as to the contents of the wallet, which apparently included a fake licence. The applicant readily admitted that it was a fake licence and that he had had dealings with fake licences (T588.37). Those concessions were enough to sustain the proposition put to the applicant (at T 596.8) that he did not leave his wallet at home because he didn't want to have his expired licence on him, but because he knew he was "going out to do armed robberies". The further cross-examination as to prior convictions for similar matters and other, unrelated dishonesty offences was extremely prejudicial, in my view.
28. I have paused over this issue, particularly in light of the position adopted by Ms Orman-Hales at the trial. As noted by Basten JA, she appears to have perceived and been resigned to a risk that the prosecutor would take the course he did and to have assessed the prejudicial effect to be limited in the context of the "robust defence" she was conducting on the applicant's behalf. Ultimately, however, my analysis of the record of the trial has led me to a less sanguine assessment of the degree of unfair prejudice to the applicant. The fact that he was an admitted drug user and drug supplier did not of itself equate to his having convictions for offences of dishonesty.
29. For those reasons, the orders I propose are that leave to appeal be granted, that the appeal be allowed and the conviction quashed and, as sought by the applicant, an order for a new trial.
30. DAVIES J: I have had the advantage of reading in draft the judgments of Basten JA and McCallum J. The background is set out in Basten JA's judgment. I agree with the orders proposed by McCallum J for the reasons which follow.
31. Section 103 provides the test for the credibility rule not to apply. Section 104 sets out a clear pathway which must be followed in criminal matters before an accused can be cross-examined about a matter relevant to the assessment of his or her credibility. Section 104(4) is a gateway provision and is concerned with evidence adduced by the accused that tends to prove a prosecution witness has a tendency to be untruthful and is relevant solely or mainly to the witness's credibility. Section 192 requires the court giving the leave under s 104(2) to take into account the matters in s 192(2). It may be that s 137 is required to be considered: In R v El-Azzi [2004] NSWCCA 455, but I note [44]-[47] in Basten JA's judgment. In the present case the issue of prejudice to the applicant was raised by his counsel in response to the course the prosecutor asked to take.
32. There is very little in the primary judge's reasons and in the exchanges between the judge and counsel leading up to those reasons that provide any confidence that proper attention was given to the requirements of ss 103, 104 and 192.
33. Most of the relevant exchanges are set out in the judgment of Basten JA at [63], [66], [67] and [71]. One further passage should be set out. This passage was referred to and summarised by Basten JA at [63]. It is the exchange when the Crown Prosecutor first raised the issue of cross-examining the applicant on matters going to his credit. The following appears (T 523-5): CROWN PROSECUTOR: Yes, your Honour. Before the accused starts to give evidence, I thought it appropriate that I raise now an application for leave to cross-examine the accused about matters that might be seen as going to his credit. In my submission, the cross-examination of Mr Hibbard, in general terms, about his status as a convicted armed robber, that was the sort of question that was put to him repeatedly. It raises - and the proposition that, therefore, his evidence was unreliable and the discount that he had received. It seems to be a central plank of the cross-examination of Mr Hibbard and, in my submission, that entitles the Crown - the issue of that witness' character and credibility having been raised - that the Crown is equally entitled to cross-examine the accused. Just that I need leave to do it and I thought -- HIS HONOUR: You need -- CROWN PROSECUTOR: -- it better to raise it before we got to the point of cross-examination so there was a suggestion that it was something that was unexpected, but I assume from the cross-examination that it wasn't unexpected that my friend anticipated that that would be the consequence of-- HIS HONOUR: I would have thought so. Do you have any views about that? ORMAN-HALES: Well, your Honour, I've cross-examined their main witness as to his character and credit. I've gone into his criminal record because of 15 certain things that he raised. He said he never hurt people and a few other things which clear that was wrong because he has a record for doing such a-- HIS HONOUR: Yes. ORMAN-HALES: He said he never stole from people. I also cross-examined him on that. Of course, it is a big issue to cross-examine an accused about his record but nevertheless your Honour, the issue with this trial is the jury already know my client is involved in the dealing of drugs. HIS HONOUR: That's right. ORMAN-HALES: That really - but it is just how the trial is, I am afraid. It's just one of those -- HIS HONOUR: You have to raise that. ORMAN-HALES: We have to raise that. It's not something that could be kept away. HIS HONOUR: I've been particularly aware of that aspect of it because when the Crown raised the issue of the flight direction -- ORMAN-HALES: Yes. HIS HONOUR: -- I would suggest that you both look at the case of Cook. I don't know whether you've done that or not. CROWN PROSECUTOR: I haven't. ORMAN-HALES: No, and I haven't either. HIS HONOUR: It's 2004 Court of Criminal Appeal Reports. I was there as the appellate Crown in that instance. ORMAN-HALES: Okay. HIS HONOUR: And one of the matters that was raised there was whether you'd put the accused in an impossible position to deny other reasons for flight. You haven't run your case on that basis, as I understand it? You are not saying, "He ran away because he thought his prior convictions were going to lead to --" -
34. The exchange then continued as Basten JA has set out at [63].
35. Nothing in those exchanges demonstrates that any attention was given to the requirements of s 104 rather than the matter of cross-examining an accused on his or her record generally. There is one indication in the primary judge's reasons that suggests that s 104 may have been what the primary judge had in mind. His Honour said: Prior convictions may be relevant to credit it was said as was said (sic) in R v Hanson (2005) 1 WLR at 169. Here the cross-examination was going essentially to the capacity to show a propensity to be untruthful.
36. That statement almost picks up what is contained in s 104(4)(a). However, it must be noted that what the primary judge was referring to in that passage was the cross-examination of the applicant whereas s 104(4) is concerned with a witness called by the prosecutor who has a tendency to be untruthful. Further, the reference to "propensity to be untruthful" comes from Hanson and s 103(1) of the Criminal Justice Act 2003 (UK) and not from the Evidence Act 1995 (NSW).
37. None of the Crown Prosecutor's submissions concerned the gateway provision in s 104(4). There was no reference to evidence that tended to prove that Mr Hibbard had a tendency to be untruthful and that the evidence that was adduced was relevant solely or mainly to Mr Hibbard's credibility. Nor does the primary judge make any reference to Mr Hibbard's evidence in that regard.
38. Nor, as McCallum J points out, is there any indication that the provisions of s 103 were considered (although, in the event, the test in s 103 was probably satisfied), and the reference by the primary judge to R v Aldridge is a further indication that the correct tests were not applied.
39. Although counsel for the applicant made a passing reference to prejudice to the applicant, the primary judge does not deal specifically with prejudice nor with the question of unfairness as s 192(2) requires. To the extent that the primary judge was to engage in the balancing exercise required by s 137, I do not consider what he said relating to the decision in R v Cook shows that this exercise was undertaken.
40. The difficulties are compounded by the fact that the prosecutor embarked on the cross-examination about the applicant's prior criminal record contrary to what he had indicated he would do and without having obtained leave in advance to do so. That had the result that the primary judge gave the direction to the jury about the cross-examination after the prosecutor had cross-examined on the criminal record. If the direction was to be given, it should have been given beforehand.
41. His Honour had said that he wanted to review the matter at lunchtime. Even after the prosecutor had embarked on the cross-examination of the applicant about his convictions without leave and without being stopped by the judge, his Honour said after the lunch adjournment: I did indicate that I was tentatively with you at that time and I think I still am, but I think I need to give a direction to the jury about it. His Honour then delivered his reasons. His primary concern in his reasons was the matter of giving a direction to the jury about what he described as "propensity or tendency thinking". The reasons make no reference to ss 103, 104, 137 or 192, nor to what in substance those sections require, make no reference to evidence adduced by the applicant relating to Mr Hibbard, and do not give leave even retrospectively.
42. It was, of course, open to counsel for the applicant at the trial to have objected to the cross-examination and to the intimation by the primary judge that leave would be given. Further, it was open to counsel to have objected immediately when the Crown Prosecutor commenced to ask the question at T590.34: Even before these events in May 2012 you had been charged with possessing a thing like an Australia's driver's licence - like an Australian driver's licence, I apologise, with the intention to deceive hadn't you?
43. In my opinion Rule 4 applies by reason of the failure of counsel to object, as the framing of the ground of appeal appears to accept.
44. In R v El-Azzi Simpson J said at [200] that it would not be every case where an attack is made upon the credibility of the Crown witnesses that would warrant the exercise of the 104(2) discretion to grant leave to cross-examine. Her Honour stressed the need to assess the matter for overall fairness and for the balancing exercise required by s 137. Her Honour said at [201] that this Court would not substitute its own discretion for that of the trial judge unless error in the exercise has been shown.
45. In my opinion error of a House v The King type has been demonstrated. There has been a failure by the primary judge to consider properly or at all the gateway provision in s 104(4) and there has been a failure to consider matters of fairness and to perform the balancing exercise required by s 137. These errors justify leave being granted, notwithstanding Rule 4. When those matters are combined with the Crown Prosecutor's having embarked upon the cross-examination as to previous convictions without leave and the failure of the primary judge to prevent that course, I consider that the trial miscarried and that the ground of appeal is made out.

Endnotes

1. Tcpt, p 545.
2. Tcpt, pp 547-548.
3. Tcpt, pp 553-554 and 635.
4. Tcpt, pp 556-557 and 637.
5. (1893) 6 R 67 (HL).
6. Evidence Act, Dictionary, credibility.
7. Evidence Act, s 103(2)(a) and s 104(4)(a).
8. Evidence Act, s 55(2)(a).
9. Evidence Act, s 55(1).
10. R v Le (2002) 54 NSWLR 474; [2002] NSWCCA 186 at [55]ff (Heydon JA, Dunford and Buddin JJ agreeing).
11. Evidence Act, s 103(1).
12. Uniform Evidence Law (December 2005), (ALRC Report 102, NSWLRC Report 112, VLRC Final Report), at par 12.28.
13. Evidence Act, s 104(1); cf s 104(4)(b), which uses different phraseology.
14. Evidence Act, s 192(2)(b).
15. Respondent's written submissions, par 61.
16. R v FDP (2008) 74 NSWLR 645; [2008] NSWCCA 317 at [16]ff (McClellan CJ at CL, Grove and Howie JJ); Potts v R [2012] NSWCCA 229; 227 A Crim R 217 at [66] (Johnson J, McClellan CJ at CL and Fullerton J agreeing).
17. [2008] NSWCCA 231; 189 A Crim R 68 at [60].
18. [2013] NSWCCA 21.
19. Penza at [194].
20. [2011] NSWCCA 53.
21. Penza at [197].
22. [2014] NSWCCA 100 at [46].
23. Poniris at [42] (Macfarlan JA, Adamson and Bellew JJ agreeing).
24. Evidence Act, s 137.
25. Evidence Act, s 192(2)(b).
26. Evidence Act, Dictionary, Pt 1 Definitions, probative value.
27. Regina v RPS (unrep, NSWCCA, 13 August 1997) (Hunt CJ at CL, Gleeson CJ and Hidden J agreeing) (references to unreported cases omitted).
28. Interpretation Act 1987 (NSW), s 6.
29. Australian Law Reform Commission, Report No 26, Vol 1, pars 817-820.
30. Evidence Amendment Act 2007, Sch 1 [41], which commenced on 1 January 2009.
31. Tcpt, 04/03/14, p 11.
32. Tcpt, p 12(30).
33. Tcpt, p 13(5).
34. Tcpt 04/03/14, p 2.
35. Tcpt, p 63.
36. Tcpt, pp 64-94.
37. Tcpt, pp 107-110.
38. Tcpt, pp 110-117.
39. Tcpt, p 117.
40. Tcpt, p 125(25)-(35).
41. Tcpt, p 125(38)-(43).
42. Tcpt, pp 125-126.
43. Tcpt, p 126(10).
44. Tcpt, p 126(12)-(19).
45. Tcpt, p 164(5)-(10).
46. Evidence Act, s 104(5).
47. Tcpt, (Day 7) p 523(45).
48. Tcpt, p 524.
49. Tcpt, pp 525-526.
50. Tcpt, p 568.
51. Tcpt, p 569(15).
52. Tcpt, p 570.
53. Tcpt, p 585(20).
54. Tcpt, p 585(40).
55. Tcpt, p 587(15).
56. Tcpt, p 587(21)-(26).
57. Tcpt, p 588(37).
58. Tcpt, p 590(40).
59. Tcpt, pp 592-593.
60. Tcpt, p 597.
61. The relevant passage was at 742.
62. Tcpt, p 650(35).
63. Regina v Milakovic [2004] NSWCCA 199 at [8]-[9] (Grove J, Dowd and Sperling JJ agreeing).
64. Milakovic at [29].
65. [2011] NSWCCA 245.
66. Shepherd at [25]-[26]
67. (1999) 196 CLR 297; [1999] HCA 37 at [72].
68. Papakosmas at [44]; Gleeson CJ and Hayne J did not address r 4.
69. Extracted above at [72].
70. Tcpt, p 599(15)-(20).
71. [2002] NSWCCA 159; 129 A Crim R 242 at [36].
72. Tcpt, p 524(20).
73. Tcpt, p 525.
74. Tcpt, p 570(5).
75. Summing up, p 53. DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 10 June 2016