Criminal Law - Appeal and new trial and inquiry after conviction - Appeal and new trial - Miscarriage of justice - Circumstances not involving miscarriage or in which miscarriage not substantial - Other irregularities - Prosecutor's duty - Prosecutor's error of no consequence.

Weiss v R [2005] HCA 81; Tran [2000] FCA 1888; (2000) 118 A Crim R 218, referred to.

Judgment Number: [2006] TASSC 26

1 I agree with the reasons for judgment of Evans J.

2 The appellant was convicted of the indictable offence of the manufacture of a controlled drug with the intent of sale, contrary to the Misuse of Drugs Act 2001.

3 On 18 March 2004 at approximately 3am, police officers, authorised by warrant, entered and searched residential premises at 13 Milpara Street, Chigwell. There they found the occupant and the appellant awake and dressed. The two men were arrested. Search of the premises showed items of equipment, surveillance cameras, chemicals, glassware and other apparatus, and methylamphetamine, consistent with what was referred to at trial as "a clandestine laboratory". Unchallenged evidence was led that the appellant's fingerprints were identified on a glass condenser tube, glass reaction vessel, Pyrex jug and packing tape, and his palm print on the glass reaction vessel. It was clear and uncontroversial that those items had been, or were in the process of being, used in the manufacture of amphetamine. The form of manufacture was by the process known as the "Hypo Phosphorous Iodine Reduction Model".

4 The appellant was arrested and when placed in a police vehicle correctly identified himself by name and stated, "no address". No evidence was led at trial as to whether, at the police station, he had declined to take part in a "recorded" interview, but at 7.25am on 18 March, he dictated to a custody or duty officer, a statutory declaration, later attested, in which he provided details of a complaint concerning his claimed mistreatment by the arresting officers. In that declaration he relevantly stated:

About 3 or 4 o'clock this morning I was at 13 Milpara Street, Chigwell. The house belongs to a person I only known [sic] as Shane. I went over to the house because I saw they were up. Karen, the owner of number 11 Milpara Street, Chigwell, wasn't home. All my clothes and that are at Karen's. I stay at Karen's as often as I can. She is like my girl friend. Her name is Karen CRANSFIELD [sic]. I had been out last night and came back to stay. I had left Karen's at 10am on Wednesday 17 March 2004. I had stayed the previous two nights at her place. I had been working on a car, an old XF, that I own. I was working on the gear box at Adam's at Twelfth Avenue, West Moonah. It is one house back from the street called Garden Grove. I can't think of Adam's name. I had had a few beers and that. I used to live there and I stay there a bit.

I can't think why I can't think of his name. It must have been about 2.30am when I left. I got a lift back home with a bloke whose name I can't think of. He drives a Silver Mazda 323. It is an old model. He dropped me off on the link road just off the highway as he turned off and went to go to Claremont.

I walked from there to Karen's when I realized she wasn't home I decided to go next door 'cause his light was on. I know the bloke but not really well. His name is Shane, I don't know his last name.

I knocked on his front door. He didn't answer and I wandered back across the lawn and he opened the door.

He asked what I was doing and I told him I was visiting Karen and she wasn't home. I was about to go and he went inside and checked and then came back out and said I could kip on the couch.

I went inside the house. Shane was in there with another person. I don't want to talk about this.

When I went inside I saw some stuff in the kitchen it looked like a still. I could smell something that stank. It didn't smell like Amphetamine. It didn't smell like the smell of Amphetamine on the street.

I was looking at the flask the stuff was in. The other bloke went out saying something about getting some pieces out the back.

I touched some pieces because I hadn't seen anything like it before. I touched the pieces on the kitchen bench. I was standing out of the kitchen in the door leading to the lounge. I was near the monitor. I saw two cars pull up on the monitor. I think Shane called out 'Cops'.

The next thing I know the police came through the front door."

5 The appellant was brought before a bail court at 10am on the same day. He was admitted to bail and acknowledged in writing the form and conditions of the grant of bail in the following relevant terms:

... you will be released from custody immediately upon the following conditions being satisfied:

1 You must appear in the Magistrates Court at Hobart on the 27th day of April 2004 at 09:45 am and at every time and place to which proceedings against you may be adjourned.

2 You must live at 9 Lennox Avenue, Lutana during the period of the bail and not change that address without the prior approval of the Court, and be there between the hours of 7pm and 6am."

6 At trial, matters such as the items of equipment found, the existence of amphetamine, the general nature of the manufacturing process and the presence of the appellant's fingerprints on some of the equipment were not in issue. The parties, understandably, concentrated on the physical presence of the appellant at the premises, his account provided to police and the inferences which could be drawn from that primary material. The State attempted to call as a witness the other man found at the premises on 18 March, but he did not answer his summons.

7 The appellant neither gave nor adduced evidence at trial. The State, in order to meet the claim of innocent presence and association, called the occupant of the adjoining residence and person named by the appellant in his statutory declaration, Karen Cranfield. She deposed on a voir dire that:

(1) she was the occupant of 11 Milpara Street but had not been home on 16/17 March 2004;

(2) she knew the appellant as of 18 March, but had never been in a "boyfriend, girlfriend type relationship";

(3) although the appellant had never lived at 11 Milpara Street, he had stayed there overnight a couple of times with his girlfriend whom she named;

(4) some of his clothing was at her home as of 18 March, but that his last overnight stay had been "about a week before then";

(5) she had seen the appellant and the other man (present at the time of the police search) together "a couple of times".

That evidence was linked, on the voir dire, to the contents of the statutory declaration as a means of challenging its accuracy and cogency. Her evidence was admitted. She repeated its substance to the jury.

8 The prosecution used the combination of her evidence, the contents of the statutory declaration, and the acknowledged bail document to show:

(1) the appellant had lied to police about his address being 11 Milpara Street;

(2) the implausibility of his claim of innocent presence and association;

(3) by inference that he was involved in the manufacture of amphetamine.

"1 The learned trial judge erred in law in determining that the evidence of the witness Karen Cranfield which was objected to by counsel for the appellant was admissible when it only went to the appellant's credit.

2 The learned trial judge erred in law in determining that evidence of the address to which the appellant was bailed upon his court appearance on 18 March 2004 was admissible when that evidence was not relevant and/or only went to the appellant's credit and/or was unfair to the appellant.

3 The learned trial judge erred in law in determining that the appellant had a case to answer by determining that the appellant's alleged lies to the police could be evidence of his guilt of the crime with which he was charged.

4 The learned trial judge erred in law in leaving to the jury the appellant's alleged lies to police as possible evidence of his guilt of the crime with which he was charged.

5 The learned trial judge erred in law in failing to direct the jury that they must be satisfied that the Crown has proved each lie and its character as an admission against interest beyond reasonable doubt."

10 The evidence of Karen Cranfield was relevant and admissible in its own right. Irrespective of its use as a means of discrediting the version advanced in the statutory declaration, and assuming the absence of any version provided by the accused, the prosecution was entitled to lead from her:

(1) that she knew the appellant and had seen him in the company of the occupant of 13 Milpara Street;

(2) the appellant did not reside at 11 Milpara Street, but had stayed there on a couple of occasions previous to 18 March;

(3) that she was not at home on the evening of 16/17 March, nor had the appellant been present while she was at home during the previous week;

(4) some of his clothing was present in her home on the evening of 17/18 March.

Whether the appellant was a resident or householder of 11 Milpara Street was relevant to the prosecution case in that his presence at the adjoining residence at 3am was neither coincidental nor innocent. Absent the statutory declaration, the evidence could have been used to the advantage of the accused at trial. Admissibility and use are different evidentiary propositions. The evidence did not "only" go to the credit of the appellant.

11 The case against the appellant was not circumstantial. It was direct and cogent. It was the inferences which might be drawn from presence which were in issue. The lie or lies relied on were not ones which were central components of a circumstantial case, but peripheral to direct evidence of presence and intended simply to show a consciousness of guilt as to the reason for that presence (cf Smith v R [2003] TASSC 56; R v Renzulla [1997] 2 VR 88). The evidence of his claim that his ordinary residence was adjacent to the "laboratory premises" was met with the evidence of Cranfield, irrespective of whether it was or was not characterised as a lie. The rebutting evidence did not constitute admissions as forming the only evidence against the accused, nor form an indispensable link in a chain of evidence to prove guilt (Edwards v R [1993] HCA 63; (1993) 178 CLR 193, Dean, Dawson and Gaudron JJ at 210).

12 Nevertheless, the learned trial judge directed the jury that the evidence could be used as evidencing consciousness of guilt. In her directions and summary to the jury, the learned trial judge said:

"Now they are matters about which the State says the accused has lied. Now for you to be able to use those asserted lies as evidence of the guilt of the accused, you have to be satisfied about certain matters, and if you're not satisfied about these matters, you cannot use that material to support a suggestion of guilt. Firstly, you have to be satisfied that they were lies, and you can only determine that by reference to the other evidence you've had, for example, the evidence of Miss Cranfield, and evidence about the circumstances of the night. So you need to examine the other evidence to determine: firstly, whether those matters were lies, i.e. about where he was living, what his relationship with Miss Cranfield was, when he was staying at her place, when he left her place, when he last stayed there, those issues. You have to be satisfied they were lies. If you're satisfied as to that you have to be satisfied they were deliberate lies. If you are satisfied that they were deliberate lies, then you also need to be satisfied about certain other matters. You need to be satisfied that they're lies that relate to an issue relevant to the crime with which the accused is charged; that the lies reveal a knowledge of the crime or some aspect of it; and that the lies were told because the accused knew that the truth about where he was on that particular night, or what his connection was with number 13 Milpara Street, would implicate him in this crime; that is because he realised he was guilty and that he was afraid of the truth.

Now quite clearly, the issue in this case is as to the accused, not necessarily whether he was living at 13 Milpara Street, that's the basis upon which the Crown put it, but his connection with 13 Milpara Street, and the Crown has told you that what the accused was doing by telling these lies, they say, about what his connection with Miss Cranfield was and his connection with her address at number 11, was distancing himself from the activities at number 13 and that he was doing that because he knew that if he was connected any more closely with 13 Milpara Street that would involve him in, potentially, the crime that was being carried on there.

But you need to remember, as counsel for the accused has made quite clear, that people don't always necessarily act rationally, particularly when they're dealing with the police. And the accused's conduct or his statements, particularly if you accept them and accept that they were lies, may be explained in other ways. There may be reasons for telling a lie, apart from a realisation or a consciousness of guilt. A lie might be told out of panic. A lie might be told to escape what a person perceives as an unjust accusation. It might be told to protect somebody else - any number of reasons.

So at the end of the day, if you think there's a reasonable possibility - well if you accept that the accused, but if you think that there's a reasonable possibility that he lied for another reason apart from the - his understanding that he was guilty, that you cannot then, in those circumstances, you cannot use the fact that he may have lied to support other evidence that he was guilty - you just can't do that."

The direction is consistent with that provided for by the High Court in Edwards v R (supra) and Zoneff v R (2000) 200 CLR 234.

13 The appellant had made a statutory declaration. It contained statements against interest, namely ones of presence and knowledge of amphetamine generally. It had the potential to meet any claims by police officers that he had previously admitted guilt. It contained statements of self-interest, namely that he had been attempting to visit a neighbour and had been offered a place to stay for the night by the occupant of 11 Milpara Street and, by inference, a claim of innocent association. Relevantly, it stated:

"All my clothes and that are at Karen's. I stay at Karen's as often as I can. She is like my girl friend.

I had been out last night and came back to stay. I had left Karen's at 10am on Wednesday 17 March 2004. I had stayed the previous two nights at her place."

14 The evidence was rebuttable by the prosecution. The identified lie was that of residential address. That claimed lie was relevant and its reception not precluded by the Evidence Act 2001, s102. It did not go only to the appellant's credit. The contents of the bail document are problematic. The condition that the appellant "live at 9 Lennox Avenue, Lutana" did not establish that as of the evening of 17/18 March the appellant resided at that address. Her Honour had addressed that matter in the following terms:

"There is the bail document. In the bail document the accused has - is shown to have given to the Court an address to which he can be bailed of 9 Lennox Avenue, West Moonah, and that's obviously not, either 13 or 11 Milpara Street, Chigwell."

15 That material could not be shown, independently, as constituting a lie. Moreover it contradicted the import of the primary statement that the appellant informed the Court directly or through counsel, that he had "no fixed place of address" as at the time of the hearing. The charge to the jury in that respect was erroneous. But the primary statement, that he had no fixed address, permitted a "lies" direction, and its reception into evidence was correct. To that limited extent, ground 2 is made out. But, in my opinion, that error was remedied when the learned trial judge further directed the jury that there could be other reasons why a lie had been told and that it was for the jury to determine whether in fact it amounted to a lie. If that be wrong, I would nevertheless apply the provisions of the Criminal Code, s402. I am conscious that an argument advanced to the High Court in Kelly v R [2004] HCA 12; (2004) 218 CLR 216, was that the proviso could not be applied by the Court of Criminal Appeal absent claimed recourse by the State. The High Court did not determine that issue insofar as it affected the Court of Criminal Appeal, relying instead on its own inherent power as the ultimate court of review. For my part, absent binding authority, I would regard it permissible for this Court to apply the proviso absent recourse by the State. Fairness might require notice to the appellant and care should be taken in its application, but the course is not precluded by statute.

16 The above conclusion applies insofar as ground 2 contains an appeal against a discretionary exercise.

17 There remains one incidental matter. The written submissions of the respondent include the following contention:

"9 The lies it is submitted were probative in the EDWARDS v R sense as they negatived the Appellant's assertions as to his supposed innocent presence at the premises of 13 Milparra Street at the time the police raided the building.

This especially as the accused, following his arrest had told the police that he was of 'no address' and then some hours later asserts that his address was 11 Milparra Street.

In that sense, it is submitted the Appellant deliberately gave a false address so as to convey the impression that he lived next door to 13 Milparra Street and was only by chance at that residence when the police arrived."

18 No issue was raised at trial concerning the reception of the evidence of a police officer that the appellant told police that he was of "no address". Assuming that the answer provided by the appellant was "he stated no address" rather than he provided no address, then it was an answer given during the course of official questioning and its reception requires recourse to an exercise of discretion (Kelly v R (supra)). If the contention as advanced in Kelly permits the admission of such evidence as a matter of course, then further consideration is required by this Court of the factors governing any discretionary exercise in reception or exclusion of such evidence, (see Nicholls v R [2005] HCA 1; (2005) 219 CLR 196). In that case, decided subsequent to Kelly, the High Court, comprising seven judges, was required to consider the effect of Western Australian legislation governing the reception of "unrecorded" admissions against interest. Although the court was considering a different statutory scheme, the majority reached a conclusion different to that in Kelly. The latter case might provide some assistance in future cases concerned with discretionary exercise.

19 The appellant was found on premises used as a clandestine laboratory at 3am. The manufacturing process was in progress with at least one item, literally "on the stove". His fingerprints were on items of equipment used in the process. There could be no basis, on whatever approach is taken (R v Prasad (1979) 23 SASR 161; Ling v R [1981] Tas R 250) for the upholding of a "no case submission".

22 John Leslie Whittaker appeals against his conviction on one count of manufacturing a controlled drug for sale, the particulars of the count being that on 18 March 2004 he manufactured methylamphetamine, with the intention of selling it.

23 At about 3.30am on 18 March 2004, police officers, acting under the authority of a search warrant, entered the residence at 13 Milpara Street, Chigwell. A methylamphetamine manufacturing process was found in the premises, together with a quantity of methylamphetamine and chemicals used in the production of that drug. There were surveillance cameras to the front and rear of the residence that enabled an occupant to check the identity of anyone who sought entry. The officers arrested the appellant and another man, Shane Allen, who were in the residence. The appellant was placed in a police vehicle and when asked his address by Detective Hunter, the appellant replied that he had no address. He was taken to the Hobart police station. About 7.50am, while still at the police station, the appellant made a statutory declaration for the purposes of a complaint he made about the officers who arrested him. The portion of the declaration that precedes his complaint about rough handling by the arresting officers is as follows:

About 3 or 4 o'clock this morning I was at 13 Milpara Street, Chigwell. The house belongs to a person I only known as Shane. I went over to the house because I saw they were up. Karen, the owner of number 11 Milpara Street, Chigwell, wasn't home. All my clothes and that are at Karen's. I stay at Karen's as often as I can. She is like my girl friend. Her name is Karen CRANSFIELD [sic]. I had been out last night and came back to stay. I had left Karen's at 10am on Wednesday 17 March 2004. I had stayed the previous two nights at her place. I had been working on a car, an old XF, that I own. I was working on the gear box at Adam's at Twelfth Avenue, West Moonah. It is one house back from the street called Garden Grove. I can't think of Adam's name. I had had a few beers and that. I used to live there and I stay there a bit.

I can't think why I can't think of his name. It must have been about 2.30am when I left. I got a lift back home with a bloke whose name I can't think of. He drives a Silver Mazda 323. It is an old model. He dropped me off on the link road just off the highway as he turned off and went to go to Claremont.

I walked from there to Karen's when I realized she wasn't home I decided to go next door 'cause his light was on. I know the bloke but not really well. His name is Shane, I don't know his last name.

I knocked on his front door. He didn't answer and I wandered back across the lawn and he opened the door.

He asked what I was doing and I told him I was visiting Karen and she wasn't home. I was about to go and he went inside and checked and then came back out and said I could kip on the couch.

I went inside the house. Shane was in there with another person. I don't want to talk about this.

When I went inside I saw some stuff in the kitchen it looked like a still. 1 could smell something that stank. It didn't smell like Amphetamine. It didn't smell like the smell of Amphetamine on the street.

I was looking at the flask the stuff was in. The other bloke went out saying something about getting some pieces out the back.

I touched some pieces because I hadn't seen anything like it before. I touched the pieces on the kitchen bench. I was standing out of the kitchen in the door leading to the lounge. I was near the monitor. I saw two cars pull up on the monitor. I think Shane called out 'Cops'.

The next thing I know the police came through the front door."

24 A fingerprint examination of items of the methylamphetamine manufacturing process found three fingerprints of the appellant on a glass condenser tube and two of his fingerprints and a palm print on a glass reaction vessel. His fingerprint was also found on a roll of packing tape that was similar to tape that had been used to secure concealed containers of pseudoephedrine, one of the ingredients used in the manufacture of methylamphetamine.

25 In his statutory declaration, the appellant provided an innocent explanation for his presence in a residence containing a methylamphetamine manufacturing process. The declaration was put into evidence by the prosecution, with the acquiescence, if not encouragement, of the appellant. Central to the appellant's explanation for being at the residence was the fact that he resided next door at 11 Milpara Street, Chigwell. In result, the place of the appellant's residence on and shortly prior to 18 March 2004 was a relevant issue. Evidence relevant to that issue was led by the prosecution from Karen Cranfield. The first ground of appeal relates to this evidence and is:

"1 The learned trial judge erred in law in determining that the evidence of the witness Karen Cranfield which was objected to by counsel for the appellant was admissible when it only went to the appellant's credit."

26 Karen Cranfield gave evidence that in March 2004 she lived at 11 Milpara Street, Chigwell and that at that time she had been in a relationship for about a year with her boyfriend, Adam Lindsay, who lived at Twelfth Avenue, Springfield. She said that the night before 18 March 2004 she had stayed with Adam Lindsay at his residence. She said that she knew the appellant, she had never been in a boyfriend/girlfriend relationship with him, he had never lived with her at 11 Milpara Street, but he and his girlfriend Peta Marshall had stayed overnight at her residence a couple of times, the last time being about a week before 18 March 2004. She said the appellant had some clothes at her residence.

27 The Evidence Act 2001, s102, provides that, "Evidence that is relevant only to a witness's credibility is not admissible." The appellant submitted to the learned trial judge that the evidence of Karen Cranfield was relevant only to his credibility and for this reason it was not admissible.

28 At the outset of her consideration of this submission, her Honour commented that the evidence was relevant to the issue of whether the appellant lived next door to 13 Milpara Street at any time and counsel for the appellant in substance agreed. The prosecutor, however, explained the relevance of the evidence in a different, albeit related, way. He said that Karen Cranfield's evidence showed that the appellant had lied in his declaration and the prosecutor contended that the lies were evidence of the appellant's consciousness of guilt. Her Honour accepted this submission and allowed the evidence to be led. Before this Court the appellant maintained his contention that the evidence was not admissible as showing that the appellant had lied out of a consciousness of guilt. I do not agree with this contention and will explain why I consider the evidence was admissible on that basis when I deal with ground 4. For the purposes of ground 1, it is sufficient to say that the finding of the appellant at 3.30am in a residence in which there was an unconcealed methylamphetamine manufacturing process, upon parts of which process fingerprints and a palm print of the appellant were located, provided a sound basis for inferring that he was manufacturing methylamphetamine at the residence, which raised as a subsidiary issue the explanation for the appellant's presence at the residence. As to that subsidiary issue, the place where the appellant resided at that time was relevant. Obviously enough if he resided at the residence, it was highly likely that he was a participant in the manufacture of methylamphetamine, an element of the crime; and if he resided elsewhere, the place of that residence was relevant to any innocent explanation for him being found at 13 Milpara Street in incriminating circumstances. Relating this to the Evidence Act, s55(1), evidence as to the place of the appellant's residence at the time that he was found at 13 Milpara Street could rationally affect, directly or indirectly, the assessment of the probability that the appellant had no innocent explanation for his presence at that address and, in turn, the probability that he was a participant in the manufacture of methylamphetamine at that address.

29 The evidence of Karen Cranfield was relevant to the appellant's place of residence at, and shortly prior to, 18 March 2004. Her evidence being relevant to that issue, it was not, as the appellant contents for the purposes of this ground, only relevant to his credit, albeit that it was also adverse to his credit. I would dismiss ground 1.

"2 The learned trial judge erred in law in determining that evidence of the address to which the appellant was bailed upon his court appearance on 18 March 2004 was admissible when that evidence was not relevant and/or only went to the appellant's credit and/or was unfair to the appellant."

31 Shortly after 10am on 18 March 2004, the appellant appeared before a magistrate in the Court of Petty Sessions, Hobart, on charges arising from the search at 13 Milpara Street earlier that morning. In the course of that appearance the appellant was granted bail, subject to conditions detailed in a bail document signed by him. The bail document is as follows:

You currently stand charged with the following offences:

1 count of Manufacturing a controlled drug for sale. (major offence)

1 count of Supplying controlled drug. (minor offence).

1 count of Possess a controlled drug. (minor offence).

You are remanded in custody to appear is this Court at Hobart but you will be released from custody immediately upon the following conditions being satisfied:

1 You must appear in the Magistrates Court at Hobart on the 27th day of April 2004 at 09:45 am and at every time and place to which proceedings against you may be adjourned.

2 You must live at 9 Lennox Avenue, Lutana during the period of the bail and not change that address without the prior approval of the Court, and be there between the hours of 7pm and 6am.

3 You must report to a person on duty at the Liverpool Street, Hobart Police Station between the hours of 9am and 6pm every day and there sign the register of persons reporting if so directed.

4 Not to be found within 50 yards of any air or sea terminal during remand

32 The bail document signed by the appellant is the extent of the evidence before the jury of what transpired when the appellant appeared before the magistrate. There was no direct evidence that the magistrate was told by the appellant that he had no fixed place of address or that he would be able to reside at 9 Lennox Avenue during the period of his bail, although these inferences may be drawn from the bail document.

33 The prosecutor sought to put the bail document into evidence on the same basis as was advanced in support of the admissibility of Karen Cranfield's evidence, that is, it showed that the appellant had lied in his statutory declaration when he gave his address as 11 Milpara Street and said other things that suggested that address was his place of residence. As to the issue of admissibility, the argument advanced on behalf of the appellant before the learned trial judge and before this Court was founded on the proposition that the evidence to be derived from the bail document went solely to the issue of the appellant's credit. The learned trial judge, in substance, rejected that submission and ruled that the evidence that the appellant had signed a bail document which stated that he had no fixed address was relevant to whether the appellant's statutory declaration as to his place of residence was a lie made with a consciousness of guilt. I agree that the evidence was admissible on this basis and will explain my reasons for doing so when I deal with ground 4. For present purposes it is sufficient to say that evidence that the appellant had signed a bail document which stated he was of no fixed address was relevant to the subsidiary issue as to the place of his residence on and shortly prior to 18 March 2004 and for this reason it was admissible. It was not inadmissible as being relevant solely to credit, although it of course had a bearing on his credit.

34 The bail document included a condition that the appellant live at 9 Lennox Avenue, Lutana during the period of his bail. The premise that underpins this ground of appeal is that the learned trial judge's ruling allowing the bail document into evidence was based on this aspect of the document. It was not. Her Honour's ruling only made reference to the portion of the bail document that stated that the appellant was of no fixed address. Nevertheless, the admission of the bail document put into evidence the fact that a condition of the appellant's bail was that he reside at 9 Lennox Avenue. In the absence of evidence to explain the imposition of that condition, that is, why 9 Lennox Avenue was designated as the address where the appellant was to live during the period of his bail, the evidence of the condition was of little consequence or concern. The presence of the condition in the bail document did not prompt the appellant's counsel to submit to the learned trial judge that the document was inadmissible because its probative value was outweighed by the danger of unfair prejudice to the appellant, Evidence Act, s137, or to apply to the learned trial judge to exercise her discretion to refuse to admit the bail document pursuant to the Evidence Act, s135. It is also pertinent that the presence of the condition in the bail document did not prompt the appellant's counsel to put to the learned trial judge that the evidence of the condition might be unfairly prejudicial or misleading and in consequence seek a direction pursuant to the Evidence Act, s136, limiting the way in which the evidence of the condition could be used. There was nothing unfair about the admission of the bail document containing the condition and insofar as ground 2 is founded on the proposition that the learned trial judge erred in admitting the bail document into evidence and that its admission was unfair, this ground must fail.

35 The canvassing of this ground has, however, brought attention to an erroneous comment made by the prosecutor referable to the bail document in his closing address to the jury. When identifying the evidence that he said showed that the appellant had lied in his statutory declaration when he gave his address as 11 Milpara Street, the prosecutor said:

"For the purposes of granting bail he [the appellant] gives his address as 9 Lennox Avenue, and yet as I have said before, the statutory declaration to the police officer states that his address was 11 Milpara Street."

On the face of the bail document, the prosecutor's statement is wrong. The bail document records the appellant as being of no fixed place of address. Whilst it might be inferred from the condition requiring the appellant to reside at 9 Lennox Avenue during the period of his bail that he indicated to the magistrate that he would be able to reside at that address in the future, there is nothing in the bail document, or elsewhere in the evidence, to warrant the prosecutor's comment that when the appellant applied for bail he gave his address as 9 Lennox Avenue. That the prosecutor's statement was erroneous was apparently not noticed by counsel for the appellant or the learned trial judge. No request was made that the prosecutor correct the error and neither counsel for the appellant nor the learned trial judge directly corrected the error, although both of them referred to the bail document and appropriate inferences that could be drawn from it when addressing the jury subsequent to the prosecutor's address. Counsel for the appellant said the following to the jury with reference to the bail document:

"The Crown submits that the accused was untruthful in his statutory declaration; that is that he suggested he lived at 11 Milpara Street. If you look closely at the statutory declaration he doesn't say that, but he does say that he stayed at (that) address as often as he could. He told the police on the night he was arrested that he had no fixed address and the fact that he had no fixed address also appears on the bail document. So it doesn't appear, I'd suggest, that he was attempting to mislead the police as to that issue. He's told the police no fixed address and it appears on the bail document. You may think, well he embellished in the statutory declaration, and I'll come to the explanation for that and what you need to consider about that. But my point is, and I suggest that he didn't assert positively that he was living at 11 Milpara."

36 In the course of her summation to the jury, the learned trial judge commented that in the bail document the appellant is shown to have given 9 Lennox Avenue as an address to which he can be bailed and said that address is obviously not 13 or 11 Milpara Street, Chigwell.

37 In result the prosecutor's erroneous statement to the jury that for the purposes of granting bail, the appellant had given his address as 9 Lennox Avenue went uncorrected. Did this result in a miscarriage of justice within the meaning of that term in the Criminal Code, s402(1)? An often quoted formulation of what amounts to a miscarriage of justice for the purposes of appellate provisions similar to the Code, s402(1) and (2), is the following passage from Mraz v R [1955] HCA 59; (1955) 93 CLR 493 at 514 where Fullagar J said:

"It is very well established that the proviso to s 6 (1) does not mean that a convicted person, on an appeal under the Act, must show that he ought not to have been convicted of anything. It ought to be read, and it has in fact always been read, in the light of the long tradition of the English criminal law that every accused person is entitled to a trial in which the relevant law is correctly explained to the jury and the rules of procedure and evidence are strictly followed. If there is any failure in any of these respects, and the appellant may thereby have lost a chance which was fairly open to him of being acquitted, there is, in the eye of the law, a miscarriage of justice."

In this case, what flowed from the prosecutor's error does not come within Fullagar J's formulation. The relevant law was correctly explained to the jury and the rules of procedure and evidence were strictly followed.

38 The prosecutor's error goes to the question of fairness. It is the duty of a prosecutor to ensure that the prosecution case is presented fairly. Aspects of this duty are canvassed in the following passage from Tran [2000] FCA 1888; (2000) 118 A Crim R 218 at pars128 - 136:

"It is the duty of the prosecutor, above all else, to ensure that the Crown case is presented fairly. In King [1986] HCA 59; (1986) 161 CLR 423 Murphy J at 426 summarised this overriding duty in the following terms:

'The duty of a prosecutor is to present the case against the accused fairly and honestly; not to use any tactical manoeuvre legally available in order to secure a conviction. In this regard, I adopt the words of Maxwell J in Bathgate (1946) 46 SR (NSW) 281 at 284-285:

"It cannot be too strongly impressed that the obligations of the Crown Prosecutor arise not merely by reference to the attitude adopted by the defence. 'Counsel for the prosecution ... are to regard themselves as ministers of justice, and not to struggle for a conviction, as in a case at Nisi Prius - nor to be betrayed by feelings of professional rivalry - to regard the question at issue as one of professional superiority, and a contest for skill and pre-eminence': Puddick [1865] EngR 61; (1865) 4 F & F 497 at 499; [1865] EngR 61; 176 ER 662 at 663. 'But it must be remembered that the whole policy of English criminal law has been to see that as against the prisoner every rule in his favour is observed and that no rule is broken so as to prejudice the chance of the jury fairly trying the true issues. The sanction for the observance of the rules of evidence in criminal cases is that, if they are broken in any case, the conviction may be quashed': Maxwell v DPP [1935] AC 309 at 323; and Sugarman (1935) 25 Cr App R 109 at 115."'

In Banks [1916] 2 KB 621 Avory J observed at 623 that counsel 'ought not to press for a conviction'. That may overstate the principle but the policy which underlies that statement is unexceptionable.

In the conduct of a trial, the prosecutor's duty of fairness typically arises first when the prosecutor opens the Crown case to the jury. The opening is intended to inform them briefly of the elements of the offence or offences charged, the facts which constitute each offence, and the witnesses the prosecution intends to call to prove those facts. The prosecutor will ordinarily make clear, in outlining the elements of the offences to be proven, that directions regarding the applicable law are the province of the judge. A prosecutor must not make any reference to proposed evidence where its admissibility is in dispute. A prosecutor should not advance any theory, or make any submission, which does not carry conviction in the prosecutor's own mind. Importantly, although a prosecutor may legitimately invite the jury to draw inferences from such facts as are proved, the prosecutor must not encourage the jury to engage in mere speculation or conjecture.

There are special obligations imposed on those who prosecute. These include, inter alia, a duty to make full and proper disclosure of 'unused material', or material which may be exculpatory: Clarkson v DPP [1990] VicRp 65; [1990] VR 745; and Maguire (1992) 94 Cr App R 133. They also include a duty to call all witnesses who may give relevant evidence whether that evidence assists the Crown case or not: Richardson [1974] HCA 19; (1974) 131 CLR 116; Whitehorn [1983] HCA 42; (1983) 152 CLR 657; Apostilides [1984] HCA 38; (1984) 154 CLR 563; Komornick [1986] VicRp 81; [1986] VR 845; and Armstrong [1998] 4 VR 533.

It is no part of the duty of a prosecutor to address a jury in language which is intemperate, inflammatory, or over-zealous in nature. In opening for the Crown it is highly undesirable to use unnecessarily emotive language which on any view can only excite sympathy for the victim or prejudice against the accused in the minds of the jury. In DDR [1998] 3 VR 580; (1997) 99 A Crim R 327, Tadgell JA observed that it was 'no part of the duty of counsel for the Crown to excite passion'. In M [1991] 2 Qd R 69 a conviction was quashed on the ground that the prosecutor in his address to the jury had so far exceeded the bounds of proper comment and submission that the effect could not be, and was not, repaired by the judge's summing up. This conduct on the part of the prosecutor constituted a serious irregularity in the trial. See also McCullough (1982) 6 A Crim R 274; Bazley (1986) 21 A Crim R 19 at 31; Pernich (1991) 55 A Crim R 464; and DDR.

Although there are no formal pleadings, as such, in criminal trials, the Crown is required to formulate the basis upon which it puts its case against the accused, and essentially to adhere to that case. For example, where the Crown throughout most of a trial presents its case on the basis that a particular accused was an accessory before the fact to a killing by another accused, it is not appropriate to permit the Crown to put a quite different case to the jury after all the evidence has been led: King (supra) at 435-436. See also Carr [2000] 2 Cr App R 149.

In Tangye (1997) 92 A Crim R 545 Hunt CJ at CL observed at 556:

'The obligation of the Crown Prosecutor in opening the Crown case is not merely to outline the facts which the Crown proposes to establish in evidence. It is also to indicate, in conceptual terms, the nature of the Crown case. This is to assist both the judge and counsel for the accused, more so than the jury. It is essential that any doubt about the nature of the Crown case, conceptually, be removed at that early stage.' (Emphasis added)

It is clear that a prosecutor should not invite the jury to proceed upon a theory which cannot properly be sustained. If the prosecutor does so, and a conviction results, the verdict may be set aside.

In Anderson (1991) 53 A Crim R 421 (the Hilton Bombing case) the New South Wales Court of Criminal Appeal held that the trial had miscarried precisely because the prosecutor had failed to discharge his obligations in this regard."

39 At its highest, the prosecutor's error in this case involved a breach of his duty of fairness in that he misconstrued a condition in the bail document in a manner that was disadvantageous to the appellant. As to whether this error resulted in a miscarriage of justice, it is important to distinguish between an error on the part of a prosecutor that may be unfair to an accused and a judge's error of law or as to the applicable rules of evidence or procedure. A judge's error of this nature, consistent with what was known as the Exchequer rule, is a miscarriage of justice save when it could not have affected the verdict, Weiss v R [2005] HCA 81, pars16 - 18. Where a judicial error of this nature has occurred, the appeal must be allowed unless the proviso contained in the Code, s402(2), applies, that is, the Court is satisfied that no substantial miscarriage of justice has actually occurred. The Court may only so conclude if, having examined the whole of the record of the trial, it is satisfied on evidence properly admitted that the accused was proven beyond reasonable doubt to be guilty and that the error made at trial would, or at least should, have had no significance in the determination of the verdict, Weiss (supra), pars43 and 44.

40 An error on the part of a prosecutor that may be unfair to an accused was not the subject of the Exchequer rule. The assessment of whether such an error amounts to a miscarriage of justice depends upon the circumstances of the case, as is illustrated by the approach taken to this question in: R v Kostaras (No 2) [2003] SASC 323; (2003) 86 SASR 541 at 551, Velevski v R [2002] HCA 4; (2002) 76 ALJR 402, pars174 - 176, Rugari [2001] NSWCCA 64; (2001) 122 A Crim R 1 at 7 and Richardson v R [1974] HCA 19; (1974) 131 CLR 116.

41 For the following reasons, I am satisfied that the prosecutor's error in this case was of no consequence and did not result in a miscarriage of justice. The error arose from the misconstruction of an exhibit that was before the jury, as distinct from a portion of the oral evidence. The jurors had the bail document with them in the jury room and it is plain on its face that the appellant's address was given as "no fixed place of abode", not as stated by the prosecutor, 9 Lennox Avenue.

42 In the course of her summation, the learned trial judge specifically directed the jury as to what was evidence before it and one of the items she identified was the bail document. As to the evidence, her Honour directed the jury:

"... it will be your responsibility to consider all of that evidence, not just bits and pieces of it, but the totality of it, and to return a verdict based on the evidence. It is for you to decide which of that evidence you accept, which you reject, what conclusions you might draw from the evidence that you've heard and seen, and what inferences you believe you can draw from the evidence that you've heard and seen."

43 Shortly thereafter the learned trial judge directed the jury that:

"... what each of the counsel have said to you in their closing addresses is not in itself evidence, they have referred to the evidence and the parts of the evidence they've referred to, it's a good guide as to what they each say, the important aspects of the evidence that you have to have regard to. But the addresses themselves aren't evidence that you can accept. So you need to examine the evidence that they've referred to yourself to make a determination as to what you make of that evidence."

44 These directions made it plain to the members of the jury that it was for them to decide what inferences they drew from the evidence, and that anything either counsel had said in his closing address was not evidence. As to any evidence referred to by counsel, the jurors were directed that it was for the them to make a determination as to what they made of that evidence. In these circumstances I conclude that the prosecutor's error was inconsequential and did not give rise to a miscarriage of justice. I would dismiss ground 2.

"4 The learned trial judge erred in law in leaving to the jury the appellant's alleged lies to police as possible evidence of his guilt of the crime with which he was charged."

46 The following is the first passage from the learned trial judge's summation that relates to this ground:

"In looking at all of the evidence what the State is also asking you to do, as part of the facts, or part of the evidence, is look at what they say, or what the State asserts are certain lies told by the accused. Now there are circumstances where you, the jury, can take evidence of what is said to be a lie by an accused person into account, as evidence of guilt. But to do that: firstly the State have to identify what it says are the lies that have been told by the accused.

Now in this case, what the State suggests to you, or say to you are lies that the accused has told, are probably in three areas. Firstly, in the statutory declaration; secondly, in what the accused was said to have told Detective Constable Hunter; and thirdly, in the bail document that you will have.

Now in the statutory declaration, counsel for the State has pointed to a number of matters, which he says you should accept as lies. Firstly, the address that the accused has given for the purpose of that declaration, which was 11 Milpara Street, Chigwell, which counsel for the State said to you, you may find was intended to be his residential or home address. And there were some further statements made in what you'll be able to identify as the first major paragraph of the statutory declaration. That is:

All my clothes and that are at Karen's. I stay at Karen's as often as I can. She is like my girlfriend. I had left Karen's at ten a.m. on Wednesday the 17th of March 2004. I had stayed the previous two nights at her place.

Now that's material from the statutory declaration.

There is the bail document. In the bail document the accused has - is shown to have given to the Court an address to which he can be bailed of 9 Lennox Avenue, West Moonah, and that's obviously not, either 13 or 11 Milpara Street, Chigwell.

The third area is in what it's said the accused told Detective Constable Hunter. When Detective Constable Hunter asked him for some details he said he had no fixed address.

Now they are matters about which the State says the accused has lied. Now for you to be able to use those asserted lies as evidence of the guilt of the accused, you have to be satisfied about certain matters, and if you're not satisfied about these matters, you cannot use that material to support a suggestion of guilt. Firstly, you have to be satisfied that they were lies, and you can only determine that by reference to the other evidence you've had, for example, the evidence of Miss Cranfield, and evidence about the circumstances of the night. So you need to examine the other evidence to determine: firstly, whether those matters were lies, i.e. about where he was living, what his relationship with Miss Cranfield was, when he was staying at her place, when he left her place, when he last stayed there, those issues. You have to be satisfied they were lies. If you're satisfied as to that you have to be satisfied they were deliberate lies. If you are satisfied that they were deliberate lies, then you also need to be satisfied about certain other matters. You need to be satisfied that they're lies that relate to an issue relevant to the crime with which the accused is charged; that the lies reveal a knowledge of the crime or some aspect of it; and that the lies were told because the accused knew that the truth about where he was on that particular night, or what his connection was with number 13 Milpara Street, would implicate him in this crime; that is because he realised he was guilty and that he was afraid of the truth.

Now quite clearly, the issue in this case is as to the accused, not necessarily whether he was living at 13 Milpara Street, that's the basis upon which the Crown put it, but his connection with 13 Milpara Street, and the Crown has told you that what the accused was doing by telling these lies, they say, about what his connection with Miss Cranfield was and his connection with her address at number 11, was distancing himself from the activities at number 13 and that he was doing that because he knew that if he was connected any more closely with 13 Milpara Street that would involve him in, potentially, the crime that was being carried on there.

But you need to remember, as counsel for the accused has made quite clear, that people don't always necessarily act rationally, particularly when they're dealing with the police. And the accused conduct or his statements, particularly if you accept them and accept that they were lies, may be explained in other ways. There may be reasons for telling a lie, apart from a realisation or a consciousness of guilt. A lie might be told out of panic. A lie might be told to escape what a person perceives as an unjust accusation. It might be told to protect somebody else - any number of reasons.

So at the end of the day, if you think there's a reasonable possibility - well if you accept that the accused, but if you think that there's a reasonable possibility that he lied for another reason apart from the - his understanding that he was guilty, that you cannot then, in those circumstances, you cannot use the fact that he may have lied to support other evidence that he was guilty - you just can't do that.

If you are, however, satisfied of those three matters that I outlined, namely that the lies relate to an issue relevant to the crime; that they reveal a knowledge of the crime or some aspect of it; and they were told because of a realisation of guilt and a fear of the truth, then you're entitled to use those findings to support other evidence in the State's case pointing to the accused guilt. So in other words, you could - you can accept that you can use that part of the evidence that there were lies as one of the factors, or one of the elements from which you could draw an inference of guilt."

47 The prosecution's case as to lies told by the appellant was not precisely as the learned trial judge explained in the above passage. Her Honour said that the prosecution suggested that the appellant had lied in three areas, the statutory declaration, what he had said to Detective Hunter and in the bail document signed by the appellant. The prosecutor had not put the case in this way. The prosecution's case was that the evidence of Karen Cranfield, together with the evidence that the appellant had no fixed address, which came from Detective Hunter and the bail document and the evidence that the appellant had acquiesced to a bail condition that he resided at 9 Lennox Avenue, established that the statements made by the appellant in his statutory declaration as to his place of residence being 11 Milpara Street, were lies told out of a consciousness of guilt. The lies identified by the prosecutor were the appellant's statement at the commencement of his statutory declaration that he was "of 11 Milpara Street, Chigwell" and the following portions of the statutory declaration which the prosecutor put to the jury were untrue statements made with the intention of bolstering the appellant's contention that 11 Milpara Street was his place of residence:

* his statement that Karen, the owner of 11 Milpara Street, was "like my girlfriend" and that "All my clothes and that are at Karen's. I stay at Karen's as often as I can"; and

* his description of 11 Milpara Street as his home when explaining how he had got there that night, viz: "I got a lift back home with a bloke whose name I can't think of".

48 After the jury had retired, counsel for the appellant, Mr McTaggart, pointed out the error made by the learned trial judge when identifying for the jury the lies relied upon by the prosecution and, with the agreement of the prosecutor, the jury was recalled to be re-directed by her Honour on the matter. Upon the return of the jury, the learned trial judge explained that she needed to correct:

"... what I identified to you as lies asserted by the State. I gave you three areas: the statutory declaration and what was said in that; the bail document; and the statement to Detective Constable Hunter. And as has been pointed out the basis of the assertion that the accused lied is actually contained in the statutory declaration. The content of the bail document and the statement made to Detective Constable Hunter, are evidence, which the State relies on to support their assertion that the accused lied in the statutory declaration. So in effect ... the statement to Detective Constable Hunter and the bail document are not put as separate lies, simply evidence to support the assertion by the State that the accused lied in the statutory declaration that he presented to the police. Does that resolve the difficulty, Mr McTaggart?

49 This ground of appeal involves the contention that the learned trial judge erred in leaving the jury the proposition that the appellant's statements to the effect that his place of residence was 11 Milpara Street were alleged lies that could be probative of his guilt. I am unable to accept this contention. It was plainly open to the jury to conclude that the accused's statements to the effect that he resided at 11 Milpara Street were lies. A lie told by an accused is probative of guilt when told because he or she perceives that the truth is inconsistent with innocence. Such a lie must relate to a material issue because the telling of a lie must be explicable only on the basis that the truth would implicate the accused in the offence, Edwards v R [1993] HCA 63; (1993) 178 CLR 193 at 209. As I have already said, the presence of the appellant at 3.30am in a residence in which there was a methylamphetamine manufacturing process and upon parts of which process fingerprints and a palm print of the appellant were located, provided a sound basis for inferring that he was manufacturing methylamphetamine at the residence and raised a subsidiary issue as to whether there was an innocent explanation for him being found in these incriminating circumstances. As to that subsidiary issue, the place of his residence at the time was relevant. His place of residence being a material issue, the learned trial judge did not err in leaving the accused's asserted lies referable to that issue to the jury as being evidence that could be probative of guilt. I would dismiss ground 4.

"5 The learned trial judge erred in law in failing to direct the jury that they must be satisfied that the Crown has proved each lie and its character as an admission against interest beyond reasonable doubt."

In a sense, this ground of appeal is the antonym of ground 4. It proceeds on the basis that not only is the evidence of the accused's lies relevant and admissible, but that it was an indispensable link in the chain of reasoning necessary to prove the appellant's guilt. There is no justification for elevating this evidence to that level of significance. The evidence was no more than an aspect of the evidence upon which the jury could rely in determining the appellant's guilt beyond reasonable doubt. The evidence of the appellant's lies was a strand in the rope of reasoning, not an indispensable link in a chain of reasoning. In Velevski v R (supra), Gleeson CJ and Hayne J, at pars43 and 44, disposed of a similar argument to that advanced by the appellant in this case in the following terms:

"It was next submitted that, even if it was permissible to leave the alleged lie to the jury in the way it was, it was necessary, in the circumstances, to give the jury a direction that they could rely upon an intermediate fact as a link in a chain of reasoning only if satisfied beyond reasonable doubt of that intermediate fact. Stated in that form the proposition is legally accurate but its recitation to the jury would be of no assistance unless its application to this case were explained. How that could have been done in this case was not made clear. It was submitted that the jury may (but need not) have concluded that the telling of the lie settled any reasonable doubt that consideration of the other evidence tendered at trial allowed. If the jury followed this path, it would, so it was said, make the telling of the lie an indispensable intermediate fact. It was the possibility that the jury might reason in this way that called, so it was submitted, for judicial instruction about how it should be undertaken.

The argument should be rejected. It proceeds from a premise about the way in which the jury might approach the task which is wrong. It assumes that the jury will consider the evidence in separate and isolated compartments. That assumption is not made because the evidence relates to different steps in a chain of reasoning, but solely because it suits the appellant's immediate forensic purposes to isolate one of the pieces of evidence as the critical element that will conclude the issue of guilt. Once it is accepted, as it was, that the telling of the lie was not necessarily an intermediate indispensable fact in this case, it becomes apparent that the jury had to consider the evidence as a whole. The lie was not a separate fact which, together with other facts, would form links in a chain of reasoning."

As the evidence of the appellant's lies was not necessarily an indispensable link in the chain of reasoning necessary to prove his guilt, it was neither necessary nor appropriate for the learned trial judge to direct the jury that in order to convict, it must be satisfied that the prosecution had proved each lie and its character as an admission against interest beyond reasonable doubt. I would dismiss ground 5.

"3 The learned trial judge erred in law in determining that the appellant had a case to answer by determining that the appellant's alleged lies to the police could be evidence of his guilty of the crime with which he was charged."

As argued this ground of appeal was predicated on the only admissible evidence against the appellant being that he was found at 3.30am in a residence in which there was a methylamphetamine manufacturing process upon parts of which process his fingerprints and palm print were located. This assumes that:

* the evidence of Karen Cranfield was not admissible;

* the appellant's asserted lies in relation to his place of residence could not be probative of guilt.

Even if these matters were established, the ground would fail.

52 The approach to be taken to a submission of no case to answer was authoritatively dealt with in the following terms in Doney v R [1990] HCA 51; (1990) 171 CLR 207, Deane, Dawson, Toohey, Gaudron and McHugh JJ at 214 - 215:

"It follows that, if there is evidence (even if tenuous or inherently weak or vague) which can be taken into account by the jury in its deliberations and that evidence is capable of supporting a verdict of guilty, the matter must be left to the jury for its decision. Or, to put the matter in more usual terms, a verdict of not guilty may be directed only if there is a defect in the evidence such that, taken at its highest, it will not sustain a verdict of guilty."

53 The authority of Doney remains unchallenged, Antoun v R [2006] HCA 2.

54 Had the only evidence against the appellant been his unexplained presence at the methylamphetamine manufacturing process at 3.30am, that evidence was more than capable of supporting a verdict of guilty and there would have been no defect in the evidence that would have warranted accepting a submission of no case to answer. I would dismiss ground 3.