Court of Criminal Appeal Supreme Court New South Wales Medium Neutral Citation: Al-Salmani v R [2023] NSWCCA 83 Hearing dates: 10 March 2023 Date of orders: 17 April 2023 Decision date: 17 April 2023 Before: Bell CJ at [1]; Walton J at [123]; Davies J at [124] Decision: 1. Grant leave to appeal. 2. Dismiss the appeal. Catchwords: CRIMINAL PROCEDURE – trial – jury – whether jury was free to deliberate without time pressure – whether denial of procedural fairness – whether trial judge ought to have ruled on application to discharge the jury or considered the possibility of adjourning the trial - where multiple jurors discharged – where length of trial prolonged – where trial took place in period leading up to Christmas – where sitting hours were extended - where trial judge directed jury that they should not feel pressured to reach a verdict – where verdict was returned in less than two hours EVIDENCE – witness evidence – cross-examination – whether failure to comply with the rule in Browne v Dunn (1893) 6 R 67 – whether breach of prosecutor's duty to present the whole case and call all relevant evidence – where evidence adduced that handbrake of vehicle was engaged following collision – where Crown's case was that handbrake was not engaged at the time of the collision – where first responders to collision were not questioned about whether they had applied the handbrake – where allegation that first responders might have applied handbrake arose in cross-examination of Crown's expert EVIDENCE – witness evidence – expert evidence – s 79(1), Evidence Act 1995 (NSW) – whether expert opinion was not wholly or substantially based on specialised knowledge based on training, study or experience – where opinions were not objected to at first instance EVIDENCE – witness evidence – cross-examination – s 103, Evidence Act 1995 (NSW) – whether cross-examination of expert as to their credibility without leave gave rise to a miscarriage of justice – where questions were objected to – where trial judge directed the jury to disregard the questions CRIMINAL PROCEDURE – trial – whether cumulative effect of multiple irregularities deprived the accused of a fair trial – where irregularities of a different character – where irregularities individually did not give rise to a miscarriage of justice Legislation Cited: Crimes Act 1900 (NSW) s 52A(2) Evidence Act 1995 (NSW) ss 79(1), 103 Cases Cited: AK v The State of Western Australia (2008) 232 CLR 438; [2008] HCA 8 Anderson v R (2010) 202 A Crim R 68; [2010] NSWCCA 130 Browne v Dunn (1893) 6 R 67 Crofts v The Queen (1996) 186 CLR 427; [1996] HCA 22 Dasreef Pty Ltd v Hawchar (2011) 243 CLR 588; [2011] HCA 21 Edwards v The Queen (2021) 393 ALR 368; [2021] HCA 28 El Hassan v R [2007] NSWCCA 148 Fadel v R (2017) 94 NSWLR 670; [2017] NSWCCA 134 Filippou v The Queen (2015) 256 CLR 47; [2015] HCA 29 Gilbert v The Queen (2000) 201 CLR 414; [2000] HCA 15 Gilham v R (2012) 224 A Crim R 22; [2012] NSWCCA 131 Hofer v The Queen (2021) 395 ALR 1; [2021] HCA 36 Issakidis v R (2019) 379 ALR 292; [2019] NSWCCA 302 Kuhl v Zurich Financial Services Australia Ltd (2011) 243 CLR 361; [2011] HCA 11 Libke v The Queen (2007) 230 CLR 559; [2007] HCA 30 Makita (Australia) Pty Ltd v Sprowles (2001) 52 NSWLR 705; [2001] NSWCA 305 MG v R (2007) 69 NSWLR 20; [2007] NSWCCA 57 Miller v The Queen [2015] NSWCCA 206 Montgomery v The Queen [2013] NSWCCA 73 Perish v R; Perish v R; Lawton v R (2016) 92 NSWLR 161; [2016] NSWCCA 89 R v Ahola (No 6) [2013] NSWSC 703 R v Black (1993) 179 CLR 44; [1993] HCA 71 R v Ireland (1970) 126 CLR 321 at 331; [1970] HCA 21 R v Rogerson; R v McNamara (No 34) [2016] NSWSC 259 R v Tangye (1997) 92 A Crim R 545 Scaysbrook v R [2022] NSWCCA 6 Trieu v R [2012] NSWCCA 169 Whitehorn v The Queen (1983) 152 CLR 657; [1983] HCA 42 Zheng v R (2021) 104 NSWLR 668; [2021] NSWCCA 78 Zhou v R [2021] NSWCCA 278 Category: Principal judgment Parties: Mouhimen Al-Salmani (Applicant) The Crown (Respondent) Representation: Counsel: R Rodger (Applicant) S Traynor (Respondent) Solicitors: Kings Law Group (Applicant) Office of the Director of Public Prosecutions (NSW) (Respondent) File Number(s): 2017/22300 Publication restriction: N/A Decision under appeal Court or tribunal: District Court of New South Wales Jurisdiction: Criminal Date of Decision: 20 December 2019 Before: O'Brien DCJ File Number(s): 2017/22300 HEADNOTE [This headnote is not to be read as part of the judgment] On 20 December 2019, a jury found the applicant, Mouhimen Al-Salmani, guilty of three counts of aggravated dangerous driving occasioning death pursuant to s 52A(2) of the Crimes Act 1900 (NSW). He was then sentenced to a 12 year term of imprisonment with a non-parole period of 8 years. At trial, the Crown's case was that, on 18 January 2017, the applicant drove dangerously under the effects of methylamphetamine and entered a "critical speed yaw" during which the vehicle lost traction with the road, travelled into the path of oncoming traffic and collided with another vehicle whose three occupants were killed as a result. The Crown's case was supported by the evidence of Mr Gavin Lennon (crash scene expert) who used CCTV from surrounding premises and other evidence observed at the crash scene to estimate that the speed of the vehicle was consistent with it having entered a critical speed yaw. The applicant's case was that the source of the collision was his passenger's sudden application of the handbrake. Although images taken of the vehicle following the collision suggested the handbrake was engaged, the passenger denied having applied it and Mr Lennon's opinion evidence was that the handbrake had not been applied prior to the collision. In response to questions asked by the applicant's trial counsel during cross-examination, Mr Lennon speculated that the handbrake might have been applied following the collision by a first responder. Upon objection, the trial judge prevented the Crown from making submissions to this effect due to a lack of evidence. However, the Crown was permitted to cross-examine the applicant as to whether he had applied the handbrake following the collision. He denied having done so. Various "first responders" called in the Crown case were not asked either in chief or in cross-examination whether they had applied the handbrake after the collision. The Crown also relied on the evidence of Dr Judith Perl (forensic pharmacologist) to support its case that the applicant was impaired by illicit drug use at the time of the collision. The applicant relied on the evidence of Dr Michael Robertson (pharmacologist and toxicologist) to argue that his presentation was more consistent with shock following a traumatic event rather than on account of illicit drug use. When cross-examined by the applicant's trial counsel, Dr Perl gave evidence that, due to the time it takes for the symptoms of shock to manifest, it was unlikely that the applicant was affected by shock. During the Crown's cross-examination of Dr Robertson, questions were posed as to whether he, or a toxicologist beneath him, had ever been fired from previous employment. Those questions were objected to by the applicant's counsel on the basis that they amounted to cross-examination of Dr Robertson as to his credibility, without leave, contrary to s 103 of the Evidence Act 1995 (NSW) (Evidence Act). The trial judge disallowed the questions and issued a direction that the jury must disregard them in its deliberations. Although the trial was originally listed for two weeks, after commencing on 12 November 2019, it ultimately lasted for nearly six weeks with the verdict being returned on 20 December 2019. The jury's deliberations ultimately took less than two hours. Throughout the trial, several jury notes were handed up which expressed jurors' concern about the trial's completion date and their pre-existing commitments in the lead up to Christmas. Two jurors were discharged, and the trial judge elected to extend the Court's sitting hours at various stages in the trial. The applicant's counsel made an application to discharge the jury on 13 December 2019 on the basis that the jury was subject to undue time pressure. However, the trial judge considered it premature to rule on the application and rather, in summing up, directed the jury that it should not feel pressured to reach a verdict. An application to reagitate the discharge application was made after the jury retired to consider its verdict and had not been heard prior to it returning a verdict. On appeal, the applicant contended that the conviction gave rise to a miscarriage of justice on the basis that: 1. the Crown had: 1. failed to comply with the requirements of Browne v Dunn (1893) 6 R 67 (Browne v Dunn) by not questioning the first responders in relation to the application of the handbrake following the collision; 2. cross-examined Dr Robertson as to his credibility without leave; and 3. failed to comply with the obligation to present the Crown case with fairness to the accused by not seeking to have the whole of the relevant evidence placed before the Court; 1. Dr Perl had given evidence beyond her area of expertise concerning the symptoms of shock, contrary to s 79(1) of the Evidence Act; 2. the jury had been subject to undue time pressure and the trial judge had failed to rule on the application to discharge the jury; and 3. in the alternative to grounds 1-3, the grounds considered cumulatively amounted to a miscarriage of justice. The Court held that (Bell CJ, Walton and Davies JJ agreeing), granting leave to appeal and dismissing the appeal: 1. The Crown had fairly put to the applicant the submission that it ultimately put in its final address, namely that it was a logical inference that he had applied the handbrake following the collision, such that there was no breach of the rule in Browne v Dunn: [24]-[25] (Bell CJ), [123] (Walton J); [124] (Davies J). Kuhl v Zurich Financial Services Australia Ltd (2011) 243 CLR 361 and Scaysbrook v R [2022] NSWCCA 6, referred to. 1. The Crown had not breached its obligation to present the whole case and call all relevant evidence because the primary issue in the trial was whether the handbrake was applied by the applicant's passenger or whether the collision was a result of dangerous driving. A fair presentation of the Crown case did not require the first responders to be called to give evidence about whether any of them had engaged the handbrake after the collision: [27]-[29] (Bell CJ); [123] (Walton J); [124] (Davies J). Gilham v R (2012) 224 A Crim R 22 and MG v R (2007) 69 NSWLR 20 applied. 1. In the context of the trial as a whole, it could not be said that there was a "real chance" that the failure to cross-examine the first responders as to the application of the handbrake was capable of affecting the result of the trial or had the capacity for practical injustice: [30] (Bell CJ); [123] (Walton J); [124] (Davies J). Hofer v The Queen (2021) 395 ALR 1, Edwards v The Queen (2021) 393 ALR 368 and Zhou v R [2021] NSWCCA 278, Anderson v R (2010) 202 A Crim R 68, Fadel v R (2017) 94 NSWLR 670, Crofts v The Queen (1996) 186 CLR 427, Perish v R; Perish v R; Lawton v R (2016) 92 NSWLR 161, referred to. 1. While the prosecutor was in error in cross-examining Dr Robertson as to his credibility without obtaining the Court's leave, the impugned questions did not give rise to a miscarriage of justice in light of the fact that they were promptly objected to, disallowed and the subject of a direction by the trial judge to the jury: [40]-[46] (Bell CJ); [123] (Walton J); [124] (Davies J). Whitehorn v The Queen (1983) 152 CLR 657, Montgomery v The Queen [2013] NSWCCA 73 and Libke v The Queen (2007) 230 CLR 559, referred to. 1. The applicant failed to demonstrate that the opinions given by Dr Perl were not grounded in specialised knowledge based on training, study or experience but, even if this had been demonstrated, the fact that similar questions were also asked of Dr Robertson by the applicant's counsel diminished any likelihood that a miscarriage of justice occurred. Rather, the eliciting of the evidence of Dr Perl as to the symptoms of shock was the result of a forensic choice by the applicant's trial counsel: [56]-[62] (Bell CJ); [123] (Walton J); [124] (Davies J). Dasreef Pty Ltd v Hawchar (2011) 243 CLR 588 and Makita (Australia) Pty Ltd v Sprowles (2001) 52 NSWLR 705, referred to. 1. There was no basis for finding that the jury was subject to undue time pressure. The trial judge appropriately directed the jury that they should not feel pressured and had modestly extended sitting hours in consultation with the jury. Moreover, the jury had not been made aware that its deliberations could not continue should a third juror be discharged prior to the return of a verdict, no jury notes were handed up in the immediate period preceding the verdict which expressed concern about time pressure and nothing could be inferred from the fact that the jury's deliberations only lasted for two hours: [108]-[112] (Bell CJ); [123] (Walton J); [124] (Davies J). El Hassan v R [2007] NSWCCA 148, Trieu v R [2012] NSWCCA 169 and Zheng v R (2021) 104 NSWLR 668, referred to. 1. No miscarriage of justice arose out of the trial judge's failure to deal with the discharge application on either 13 December or at a later time. The decision not to deal with the application because it was premature was entirely within the trial judge's case management discretion. The trial judge was uniquely capable of assessing whether the jury was subject to undue time pressure and determining whether a verdict would be returned prior to a third juror needing to be discharged. Furthermore, the decision attracted no demur and the application was not reagitated until prompted by the Crown on 20 December: [114]-[117] (Bell CJ); [123] (Walton J); [124] (Davies J). AK v The State of Western Australia (2008) 232 CLR 438 and Crofts v The Queen (1996) 186 CLR 427, referred to. 1. Although a miscarriage of justice may arise as a result of aggregated irregularities, the asserted irregularities were of a markedly different character and none was of any particular strength such that they did not give rise to a miscarriage of justice: [119]-[121] (Bell CJ); [123] (Walton J); [124] (Davies J). Filippou v The Queen (2015) 256 CLR 47 and R v Ireland (1970) 126 CLR 321, referred to. JUDGMENT 1. BELL CJ: Introduction 1. On 20 December 2019, a jury found the applicant, Mouhimen Al-Salmani, guilty of three counts of aggravated dangerous driving occasioning death pursuant to s 52A(2) of the Crimes Act 1900 (NSW). The trial was presided over by O'Brien DCJ (the trial judge). Subsequently, the applicant was sentenced to an aggregate term of imprisonment of 12 years with a non-parole period of 8 years. The applicant now seeks leave to appeal from his conviction. 2. At trial, the Crown's case was that, on 18 January 2017, the applicant drove a gold Citroen dangerously when under the effects of methylamphetamine and entered a "critical speed yaw" during which the vehicle lost traction with the road and travelled into the path of oncoming traffic. Thereafter, the vehicle collided with a Honda Jazz whose three occupants were killed as a result. 3. The vehicle's movements were captured on CCTV footage obtained from surrounding premises. It was observed travelling at speed and weaving in and out of traffic. That footage, together with other evidence such as tyre marks observed at the crash scene, was used by Mr Gavin Lennon (a crash scene expert) to estimate that the vehicle was travelling at no less than 108km/hr in a 60km/hr zone. This finding was consistent with the fact of the vehicle having entered a "critical speed yaw". 4. The applicant's case at trial was that, after arguing in the vehicle, Ms Dahlia Olwan, his girlfriend and passenger, suddenly and unexpectedly applied the handbrake which led to the crash. Ms Olwan gave evidence denying that she had applied the handbrake. Images of the vehicle taken after the collision suggested that the handbrake was engaged. Mr Lennon's evidence, however, was that the handbrake could not have been engaged at the time of the collision and that it must have been subsequently applied. Questions were put to the applicant about whether he had engaged the handbrake following the collision, which he denied. Questions were not put to any of the first responders who gave evidence in the Crown case as to whether they had applied the handbrake after the collision. 5. The applicant also sought to argue at trial that he was not impaired by the consumption of illicit drugs but rather, on the basis of the evidence of Dr Michael Robertson (pharmacologist and toxicologist), his presentation was more consistent with shock following a traumatic event. The Crown relied on the expert assessment of Dr Judith Perl (forensic pharmacologist) who considered that the applicant's dilated pupils and a white substance around his mouth observed by a first responder, together with his erratic driving and toxicology results, supported the case that he was affected by methylamphetamine at the time of collision. 6. Although originally listed for two weeks, after commencing on 12 November 2019, the applicant's trial lasted for nearly six weeks with the verdict being delivered on Friday 20 December 2019. During the trial, by way of various jury notes, the jury indicated its concern as to the trial's expected completion date and several jurors also sent notes flagging pre-existing travel commitments in the lead up to Christmas. Ultimately, two jurors were discharged during the trial. 7. On 13 December 2019, the applicant's counsel made an application, which was opposed by the Crown, for the jury to be discharged on a number of bases including that it was subject to time pressure due to the expansion in the trial's length and the imminence of the Christmas period. His Honour declined to rule on that part of the application and considered that the issue could be revisited if necessary. The application was revisited on 20 December 2019, but the jury was not discharged before the return of the verdict later on the same day. 8. The draft Notice of Appeal was in the following terms, noting that the fourth "omnibus" ground and ground 1(iii) were added during the course of the hearing of the appeal: "(i) That there has been a miscarriage of justice as a result of the Crown's conduct in that there was: (i) A failure to comply with the requirements of Browne v Dunn (1893) 6 R 67 on the basis that the Crown did not question the first responders in relation to the application of the handbrake following the collision in circumstances where the Crown then sought to rely on an inference that the handbrake was engaged by the applicant after the collision; (ii) Cross-examination of the expert pharmacologist and toxicologist called by the applicant, Dr Michael Robertson, as to his credibility without notice and leave; and (iii) A failure to comply with the obligation to present the Crown case with fairness to the accused, namely by not seeking to have the whole of the relevant evidence placed before the Court; (ii) That there has been a miscarriage of justice as a result of Dr Judith Perl giving evidence beyond her area of expertise concerning the period of time for shock symptoms to manifest following the collision; (iii) That there has been a miscarriage of justice in that: (i) There was time pressure placed upon the jury; and (ii) The trial judge failed to rule on the application to discharge the jury prior to the return of verdicts. (iv) In the alternative to grounds 1-3, the grounds considered accumulatively amounted to a miscarriage of justice." Ground 1 1. Grounds 1(i) and (iii) can conveniently be dealt with together. They relate to the fact that photos taken after the accident showed that the handbrake of the applicant's vehicle was engaged, and the fact that there was an issue as to when it was engaged with Mr Lennon's evidence being to the effect that it could not have been engaged prior to the collision. So also, the applicant's expert, Dr George Rechnitzer, said in his report that "while it appears unlikely that anybody would have applied the handbrake at the scene post-collision, this may also need to be considered." 2. As noted at [5] above, some of the first responders at the scene of the collision were called in the Crown case and were not asked whether they had applied the handbrake after the collision. The applicant complained at the trial, and now complains on appeal, that they should have been, asserting that the failure to do so amounted to a breach of the requirements of the rule in Browne v Dunn (1893) 6 R 67 (Browne v Dunn). 3. This ground of appeal misconceives what that so-called rule in Browne v Dunn requires. It is essentially a rule of procedural fairness which requires notice to be given to a witness in cross examination of any intention to impeach the credibility of his or her account, so that the witness has a chance to respond: Kuhl v Zurich Financial Services Australia Ltd (2011) 243 CLR 361; [2011] HCA 11 at [70]-[71]; Scaysbrook v R [2022] NSWCCA 6 at [92]. 4. The question of whether a first responder may have engaged the brake after the collision was not part of the Crown case, and the possibility that a first responder may have done so only arose as a result of questioning of Mr Lennon by the applicant's counsel at trial, Mr Scragg, and after the first responders had given their evidence, as will be seen below. 5. In his "Collision Reconstruction & Analysis Report", Mr Lennon expressed the opinion that the vehicle had entered a "critical speed yaw" resulting in the collision. His view was that, contrary to the applicant's account of the events, several elements of the crash scene were inconsistent with the handbrake having been applied prior to the collision. 6. During cross-examination, Mr Lennon was taken to photographs of the vehicle taken after the collision in which it appeared that the handbrake was engaged. The following exchange then took place between counsel for the applicant and Mr Lennon: "Q. When you were looking through these photographs, did you make a note that the handbrake of the vehicle was in the engaged position? A. No, I didn't. Q. You didn't? A. No. Q. Was that because you overlooked it? A. No, it's just not something I found needed investigating during the course of my analysis. Q. You just disregarded it altogether? A. Yes. … Q. Are you saying on your assessment there are two possible explanations for the handbrake being in the engaged position? A. Correct. Q. One is that it was put on after the collision? A. Correct. Q. You wouldn't suggest, would you, that traffic investigators would do such a thing? A. I couldn't speculate, I don't know. There may have been reasons for it, the vehicle may have been in a position where it could roll away from where it's located. I myself have had a frontal collision, and I know I put the handbrake on straight it as a natural course of just habit, basically, every time you get out of the car, I put the handbrake on. As to why the handbrake is on in this‑-- …. Q. You don't seriously suggest, do you, that police attending the scene of the accident would put on the handbrake to prevent the vehicle from rolling away, do you? A. Not necessarily police. A passer‑by that rendered first aid, it may have been applied by anyone. I can't speculate as to the reasons why, or who may have; there's many options as to why the handbrake is engaged at that position. Q. I suggest to you that it is really just speculation on your part, isn't it? A. Of course, yes, and I said that from the beginning." 1. In re-examination, the following exchange took place between the Crown and Mr Lennon: "Q. You were asked about whether or not the position of the handbrake is consistent with it being engaged, and your answer was yes? A. Yes, it looks like that, yes. Q. Are you able to say whether it is fully engaged? A. No. Q. Do you know how many emergency services officers had any part of their body inside the car after it came to a stop? A. No, I don't, no." 1. Following re-examination, counsel for the applicant raised a concern as to the suggestion arguably implicit in the last question asked by the Crown in this part of the transcript, namely that the handbrake may have been applied by a first responder: "SCRAGG: Your Honour, I think I can do this, and if necessary I can repeat it, this is in relation to a legal issue that arose yesterday. I was taken by complete surprise when Mr Lennon suggested in my cross‑examination of him that someone from emergency services, well perhaps a police officer, or perhaps anyone who had access to the car, could have engaged the handbrake to the engaged position, as shown in exhibit 6 and photograph number 9 of exhibit 11. The Crown seized on that in re‑examination to develop that hypothesis even further, and I should have objected at that stage, but I didn't, but I should have on reflection. There is no proper basis at all for the Crown to make a submission to the jury in his closing that someone could have put the handbrake into the engaged position after the collision. I raised this issue with the Crown today. Your Honour will recall that there was some evidence from a number of, I think, police officers as to who had access to the car. Now, I understood that evidence to be relevant to the issue as to the capacity to make observations of the accused, and whether those observations indicated behavioural symptoms consistent with being affected by methylamphetamine. Nothing was asked of these witnesses, nothing was asked of any witness, who had anything to do with the accused and access to the car; nothing was asked of any police officer, any ambulance officer at all as to whether or not they had activated the handbrake. As I understand the Crown's position, although the Crown didn't ask any of the witnesses that topic, and gave me no opportunity to cross‑examine on it at all, because it only arose for the first time yesterday, as I understand the Crown's position, I may misunderstand him, and if I do I apologise in advance, but as I understand it, the Crown is going to say, "Well, police officers, ambulance officers, and other persons connected to emergency services had access to the vehicle, and they could have pulled the handbrake off". Now if that's his position he can't make that submission‑‑ HIS HONOUR: He can't make that submission in the absence of any evidence? CROWN PROSECUTOR: Your Honour, there's two inferences that are open on the fact that a handbrake appears to be somewhat engaged in a photograph after a collision. One is that it was engaged before the collision and one is that it wasn't. Now, there are various possibilities‑‑ HIS HONOUR: That is a logical inference, but there's no evidence that it was engaged after. CROWN PROSECUTOR: That's right, but there's no evidence it was engaged before either and in my submission the fact of it being in an engaged position some hours after the crash in a photograph doesn't mean that the only inference to be drawn from that is that it must have been engaged prior to the collision. HIS HONOUR: Mr Crown, if you wanted to put that position ‑ if that was the Crown case‑‑ CROWN PROSECUTOR: Well it's always been the Crown case that the handbrake was not applied at the time of the collision. HIS HONOUR: I understand that. CROWN PROSECUTOR: That has been the Crown case from the beginning. HIS HONOUR: I understand that and that's why we've had this ‑ there's some issue about the various levels to which the brake can be engaged, but there's absolutely no evidence that anyone touched it. There's no evidence that a ‑ I won't allow you to put that to the jury. I mean it seemed to me as if it was a complete throwaway line by Mr ‑ by the witness. It may have happened. He was just unable to say, and he was guessing. That's not evidence that it happened. You're not going to put a positive proposition that it's possible, are you, in absence of anyone saying they did it? CROWN PROSECUTOR: In my submission, your Honour, it's not ‑ the only inference to be drawn from the photograph is not that it was on at the time of the crash. In my submission‑‑ HIS HONOUR: You can put that, but you can't put ‑ if you want to put that proposition well that's a matter for you, but you can't put that someone did it, that someone ‑ there is no evidence to support that proposition that someone did it. CROWN PROSECUTOR: I accept that I can't identify a person who has positively activated a handbrake‑‑ HIS HONOUR: I am not going to allow it, Mr Crown. CROWN PROSECUTOR: Your Honour‑‑ HIS HONOUR: I just don't think it's fair." 1. A number of points may be made at this stage. First, it was the applicant's counsel who, in asking the question - "You wouldn't suggest, would you, that traffic investigators would do such a thing?" - first introduced the possibility that the handbrake may have been applied by a first responder. Second, Mr Lennon did not contend that this was the case. When it was put to him that it was "really just speculation on [his] part", he replied, "yes, and I said that from the beginning". Third, the trial judge made it plain that the Crown could not advance a positive case that one of the first responders had applied the handbrake after the collision. It did not do so. 2. The Crown was later given permission, over objection, to ask the applicant about whether he had engaged the handbrake after the collision. The applicant denied having done so. 3. In closing address, the Crown said the following with respect to the application of the handbrake following the collision: "Gavin Lennon accepted the handbrake appeared somewhat engaged, and he told you, well, it couldn't have been during [scil. "due to"] the tyre marks; and he explained why. So, he said, given that it hadn't been marked when the tyre marks were there, one possibility is that it's happened after the crash. I would submit to you, members of the jury, that you'd so find that that is what happened: the brake was applied after this crash, not before it. And it must have been the accused, I submit to you, that applied that brake after the crash. He told you in his evidence initially, when we weren't talking about the handbrake at all ‑ he says, I don't remember anything very well after the crash. This is 1176, in his evidence‑in‑chief. In cross‑examination he said: I don't remember if it touched the steering wheel; don't remember if I touched the rear‑view mirror. But he distinctly remembers, doesn't he, that he did not touch the handbrake at all after the crash. I would submit, like much of his evidence, you would reject that entirely." 1. In summing up, the trial judge said the following to the jury in relation to the handbrake: "The Crown submitted that merely because a photo shows the handbrake engaged to some degree after the crash does not mean that it was so engaged at the time of the crash. He reminded you of the evidence of Mr Lennon that the handbrake had not been applied while the tyre marks on the roadway were being left, and that the marks on the roadway were entirely inconsistent with the application of the handbrake. He suggested that in circumstances where there is evidence that the handbrake was working, the only possibility to explain the photograph is that the handbrake was applied after the crash. The Crown suggested that the logical explanation for the photo is that the accused engaged the handbrake post collision." 1. Ms Rodger, who appeared for the applicant in this Court, accepted in oral argument that if one of the first responders had been questioned and admitted to applying the handbrake following the collision, this would have supported the Crown's case, rather than that of her client, because it would have been inconsistent with the applicant's evidence that his passenger had applied the handbrake whilst the vehicle was in motion. However, it was her submission that, if the evidence of all first responders had been that none of them touched the handbrake, there would have been a strong inference available in support of the applicant's case that the handbrake must have been applied by his passenger prior to the first responders reaching the vehicle. 2. I do not agree. The inference would equally have been open that it had been applied by the applicant after the event. It was never part of the Crown case that the handbrake had been applied by a first responder. The trial judge properly did not permit such a case to be advanced in the absence of evidence, and there was nothing improper about what was put to the jury. 3. The Crown case rested on the fact that the handbrake had not been applied at the time of the collision and it was thus not to the point whether it was applied subsequently by the applicant or some other person. It was open to the jury to accept Mr Lennon's evidence that the physical evidence at the crash site was inconsistent with the brake having been applied prior to the collision, a version of events that was inconsistent with the applicant's account. 4. Nor was there any unfairness to the applicant of a kind that the rule in Browne v Dunn is designed to protect against. The Crown fairly put to the applicant whether he had applied the handbrake after the collision. He maintained that he had not. Had the Crown put the submission it did in final address, namely that it was a logical inference that he had done so, without having given the applicant the opportunity to deny this, that may well have involved a breach of the rule in Browne v Dunn. But this was not the case. 5. Appeal ground 1(i) is not made out. 6. Turning to appeal ground 1(iii) which relates to the Crown's obligation to present the whole case and call all relevant evidence (see Gilham v R (2012) 224 A Crim R 22; [2012] NSWCCA 131 at [383], [404] and MG v R (2007) 69 NSWLR 20; [2007] NSWCCA 57 at [87]-[88]), what was relevant in this case was whether, as the applicant claimed, the handbrake had been applied by his passenger prior to the collision or whether the collision was the result of his dangerous driving. 7. If the jury rejected the possibility that the handbrake had been applied prior to the collision, it was not relevant how it came to be engaged or partially engaged after the collision, as depicted in photographs. A fair presentation of the Crown case did not require it to call all first responders to give evidence as to whether any of them had engaged the brake after the event. If any of them said they had done so, that would have been wholly adverse to the applicant's defence. If none of them said they had done so, the jury would still have been faced with the expert evidence of Mr Lennon that the road markings were inconsistent with the handbrake having been engaged at the time of the collision. 8. There was no breach by the Crown of any relevant obligation in the presentation of this aspect of its case. The possible engaging of the handbrake by a first responder was raised as a result of a loose question by the applicant's counsel which called for and resulted in speculation. Mr Lennon's response was accepted to be speculative and was not permitted to be used by the Crown as a result of a clear ruling by the trial judge, and it was not so used. 9. Further, the failure to examine the first responders on their potential application of the handbrake must be understood in the context of the trial as a whole, including the fact that there was considerable evidence of the applicant's dangerous driving, evidence of intoxication and the CCTV footage in which the applicant could be observed speeding and darting in and out of traffic. It could not be said that the failure to examine the first responders as to whether any of them had engaged the handbrake after the collision gave rise to a "real chance" that the Crown's conduct was "capable of affecting the result of the trial" or had the "capacity for practical injustice": Hofer v The Queen (2021) 395 ALR 1; [2021] HCA 36 at [41], [47] and [118]; Edwards v The Queen (2021) 393 ALR 368; [2021] HCA 28 at [74]; see also Zhou v R [2021] NSWCCA 278 at [22]. 10. Turning then to ground 1(ii), this ground alleged that a miscarriage of justice arose from the fact that the applicant's expert pharmacologist and toxicologist, Dr Robertson, was cross-examined as to his credibility without notice or prior leave as required by s 103 of the Evidence Act 1995 (NSW) (Evidence Act). 11. Dr Robertson's evidence went to the question of whether the applicant's symptoms of impairment pointed to by the Crown's expert, Dr Perl, were consistent with shock following the collision, rather than illicit drug use. 12. In the course of the Crown's cross-examination of Dr Robertson, the following exchange took place: "Q. You were employed at the San Diego medical examiner's office; is that right? A. Yes, I was. Q. Was that in 2001 ‑ 2000? A. 2000. Q. You managed all laboratory functions at that lab, including scientific, financial and personnel within the forensic toxicology laboratory? A. Yes, that's correct. Q. You were in a supervisory capacity in that lab, weren't you? A. I was the toxicology manager of that lab. Q. You had toxicologists beneath you that were subordinate to you? A. Yes, that's correct. Q. Was a toxicologist beneath you fired from‑‑ SCRAGG: I object. CROWN PROSECUTOR: I'll withdraw the question. Q. Were you fired from that employment? SCRAGG: I object. I object. HIS HONOUR: Relevance? CROWN PROSECUTOR: It goes to whether or not the jury should accept his evidence. HIS HONOUR: I'm not going to allow that question. I won't allow the question. CROWN PROSECUTOR: Would your Honour hear any submissions on that? HIS HONOUR: No. I don't think it's relevant. It doesn't pass the relevance test, that aspect. No, I won't. Move on, please, Mr Crown." 1. The Crown Prosecutor asked three more questions of Dr Robertson before completing his cross examination. Dr Robertson was then re-examined by Mr Scragg for the applicant. At a particular point in the re-examination, Mr Scragg sought to raise a number of matters with the trial judge in the absence of Dr Robertson and the jury. One of these matters related to the question asked by the Crown Prosecutor to which objection was taken, namely whether Dr Robertson had been fired from some earlier employment. The relevant portion of the transcript reads as follows: "the other point is that the Crown, your Honour in my submission, got in in front of the jury that this witness had been fired. Your Honour, in terms of the fair conduct of this trial, your Honour I always sought to be fair in relation to my cross‑examination of Dalia Olwan. I sought advance rulings on everything. Then the Crown just slips in, certainly got in the word fired after going through the various positions that he held overseas. So the jury now know that the Crown is aware that he has been fired. Your Honour, it's quite ‑ I just need to take some instructions about that, your Honour, because he's an important witness for us and your Honour in my submission what the Crown should have done, bearing in mind that the credibility rule applies, in my submission, to this witness. And the credibility rule is that credibility about a witness is not admissible. That's of course‑‑ HIS HONOUR: Without leave. SCRAGG: Yes, s 102. For the Crown to, without seeking an advanced ruling from your Honour on a matter that could significantly affect his credibility that he had been fired from a position, I think from a government position at a senior level, in my submission the Crown should not have done it without seeking leave. HIS HONOUR: Yes, that's one question. SCRAGG: May I, your Honour, seek the opportunity to conference the witness about that? Whether or not the prejudice and the damage can be dealt with in re‑examination or I'll just leave it alone. HIS HONOUR: Do you want to say anything, Mr Crown? CROWN PROSECUTOR: Your Honour, on reflection [it] is a matter I should have sought leave about and I didn't and I apologise for that. That was an oversight. HIS HONOUR: I accept that. CROWN PROSECUTOR: The time pressures that we're under and the time that the link was available, your Honour, I should have done so and I didn't. HIS HONOUR: It was disallowed anyhow. CROWN PROSECUTOR: There was no answer to the question and the question is not evidence and your Honour can give a direction about that. HIS HONOUR: I was minded that the cross‑examination, after disallowing it I was immediately say [sic] the jury should disregard it and I will be saying that to them. SCRAGG: Yes, your Honour." 1. Shortly thereafter, the trial judge issued the following direction to the jury in relation to that line of questioning: "HIS HONOUR: Yes, thank you, ladies and gentlemen. It won't be long til I'll send you back up for lunch, but there's just something I need to give you a direction about. Towards the tail end of the cross‑examination there was a question asked by the Crown of this witness which I did not allow. The question related to the employment of the witness at a facility in San Diego in the United States and the Crown was seeking to ask a question about his employment. That was a question that should not have been asked and you must disregard it entirely in your deliberations and in your assessment of the evidence of this witness. Are you content with that, Mr Scragg? SCRAGG: Yes, I am, your Honour. Yes." (emphasis added) 1. When considering the duties of a prosecutor, it is always salutary to refer to the oft-cited restatement of those duties by Deane J in Whitehorn v The Queen (1983) 152 CLR 657 at 663-664; [1983] HCA 42: "Prosecuting counsel in a criminal trial represents the State. The accused, the court and the community are entitled to expect that, in performing his function of presenting the case against an accused, he will act with fairness and detachment and always with the objectives of establishing the whole truth in accordance with the procedures and standards which the law requires to be observed and of helping to ensure that the accused's trial is a fair one. The consequence of a failure to observe the standards of fairness to be expected of the Crown may be insignificant in the context of an overall trial. Where that is so, departure from those standards, however regrettable, will not warrant the interference of an appellate court with a conviction. On occasion however, the consequences of such a failure may so affect or permeate a trial as to warrant the conclusion that the accused has actually been denied his fundamental right to a fair trial. As a general proposition, that will, of itself, mean that there has been a serious miscarriage of justice with the consequence that any conviction of the accused should be quashed and, where appropriate, a new trial ordered…" 1. These obligations require a prosecutor to be meticulous in observing requirements in the Evidence Act which are calculated to ensuring that a trial does not miscarry. Where the Evidence Act requires the leave of the Court to adduce certain evidence, that will invariably be because of the legislature's concern that, without the filter of leave, prejudicial evidence may be adduced which may jeopardise the fairness of the trial. 2. Section 103 of the Evidence Act is one such requirement. It operates as an exception to the credibility rule set out in s 102 which simply states that "credibility evidence about a witness is not admissible". Section 103 provides that: "(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." 1. In Montgomery v The Queen [2013] NSWCCA 73 (Montgomery) at [6], Simpson J (as her Honour then was) observed that it was: "inherent in s 103 that a court may be called upon, in advance of cross-examination, to make a ruling as to the existence or otherwise of substantial probative value in the evidence. No ruling under s 103 was sought, and no notice was given to counsel for the appellant of the intention to cross-examine on the subject matter of Mr Potter's prior convictions. That, in itself, was, in my opinion, a serious departure from proper standards of conduct required of a Crown prosecutor. Had the Crown prosecutor advised defence counsel of his intention to cross-examine on that subject, defence counsel would have had the opportunity, which he undoubtedly would have taken, of raising the matter with the trial judge and obtaining a ruling on whether he would permit that cross-examination." 1. There can be no doubt that, in the present case, the prosecutor was in error in seeking to ask the question he did without the leave of the Court. In Libke v The Queen (2007) 230 CLR 559; [2007] HCA 30 (Libke) at [2], Gleeson CJ emphasised that questions of degree were involved in any assessment as to whether the conduct of a prosecutor as cross-examiner resulted in an unfair trial and a miscarriage of justice and noted that it is: "difficult for an appellate court, relying only on the written record, to assess the impact of undisciplined conduct by counsel. It is also difficult, away from the atmosphere of the trial, to measure the significance of the absence of intervention by the trial judge or by opposing counsel. Those difficulties are to be taken into account by way of caution in approaching any attempt to minimise the complaints made on behalf of the appellant." See also per Kirby and Callinan JJ at [37]. 1. On the other hand, where the trial judge has intervened and acted expeditiously to correct or remediate any overstepping of conduct by a prosecutor, that will be some evidence of the trial judge's assessment that any prejudice occasioned was capable of being cured by a suitably worded direction to the jury: see, for example, Anderson v R (2010) 202 A Crim R 68; [2010] NSWCCA 130 at [34]; Fadel v R (2017) 94 NSWLR 670; [2017] NSWCCA 134 at [89]. Also relevant will be whether trial counsel who raised the objection in the first place was content with the course taken by the trial judge: Crofts v The Queen (1996) 186 CLR 427 at 431-432; [1996] HCA 22 (Crofts); Perish v R; Perish v R; Lawton v R (2016) 92 NSWLR 161; [2016] NSWCCA 89 at [456], [498]. 2. Ultimately what is determinative is whether the objectionable part of the question was such as to be productive of an unfair trial: Montgomery at [181]. In my opinion it was not. 3. First, the initial question asked of Dr Robertson did not pertain to him directly but rather to a "toxicologist beneath [him]", although the second question asked concerned Dr Robertson himself. Unlike Libke, where there was a lack of objection to improper questioning, in the present case, Mr Scragg immediately objected to the proposed question, and the witness was not required to answer it. Thirdly, the trial judge gave a clear direction to the jury very shortly after the question had been asked and objected to, saying to the jury that: "That was a question that should not have been asked and you must disregard it entirely in your deliberations and in your assessment of the evidence of this witness." 1. Mr Scragg, who had been assiduous in raising objection to the question in the first place, indicated that he was content with the trial judge's direction. 2. Also of some relevance is the fact that complaint is really only made in relation to one question which appears to have been the result of genuine oversight on the part of the prosecutor, rather than the employment of a deliberate and improper forensic course. So much emerges from the prosecutor's candid acknowledgment of the impropriety of the question, as noted in the extract of the transcript at [34] above: "Your Honour, on reflection is a matter I should have sought leave about and I didn't and I apologise for that. That was an oversight." The case is a world away from the "wild, uncontrolled and offensive" cross-examination in Libke, so characterised at [121] of that decision. 3. Considering the issue in the context of the entirety of the trial, including the objection to the question, its disallowance and the trial judge's direction to the jury, the objectionable question did not result in an unfair trial of the applicant or any miscarriage of justice. Ground 2 1. The applicant's second ground of appeal was that, in giving evidence when under cross-examination as to the time it would take for the "effects of shock" to affect the applicant, Dr Perl gave evidence outside her area of expertise. It was thus contended that the admission of this evidence was contrary to s 79(1) of the Evidence Act and gave rise to a miscarriage of justice. 2. Dr Perl, whose evidence went to whether the applicant was impaired at the time of the collision and whose curriculum vitae was in evidence, has a Doctor of Philosophy in pharmacology (1988) and since 1979, has been involved in research relating to the effects of alcohol and other drugs on cognitive functions and skill performances, particularly driving ability. She has also published widely in this field and has acted as a consultant pharmacologist for the New South Wales Police since 1984. 3. Dr Perl formed the opinion that the applicant was impaired on the basis of a toxicology report from 18 January at 2.45pm which suggested that there was both amphetamine at a level of 0.2mg/L and methylamphetamine at a level of 0.1mg/L in the applicant's blood together with footage of the applicant's driving and the account of a first responder, Mr Lyle Walker, who observed that the applicant had dilated pupils and saliva around his mouth. 4. The core of Dr Perl's opinion on the extent of the applicant's impairment was as follows: "Okay, with methylamphetamine the type of impairment that you would normally expect which in this case were displayed is excessive speeding or aggressive driving behaviour in terms of the person; dilated pupils; hyper‑excitability, generally methylamphetamine makes you very dry in the mouth, so, the saliva tends to accumulate around your mouth and users are frequently licking their mouth because of the dryness and licking their lips. All of those signs were actually displayed by the accused. Plus also I had the blood sample, so the result of the blood sample which indicated a moderate to, moderately high methylamphetamine concentration." 1. In cross-examination, the following exchange took place between the applicant's counsel and Dr Perl: "Q. But in terms of an observation, so that eyes are really alert, that could be consistent with trauma from a major incident, an accident? A. That takes time, because it's usually as a result of an adrenaline rush initially that you would go into that fight like reflex but that takes time for it to develop. It wouldn't occur instantly straight after the incident and I doubt if he had gone into shock straight away so I would expect that the immediate observations were before the effects of his injuries took hold or before any shock took hold. Q. Whatever time it was that Mr Walker made, in terms of his evidence in this trial, whatever time it was that he made the observations that the driver's eyes were dilated? A. Yes. Q. The driver's eyes, assuming that observation is accurate and reliable, by the time the, by the time that the ambulance officers assessed, make the first assessment of the driver at 1.30, his eyes on examination were found to be normal? A. Yes. And that's a relatively significant period of time after the alleged incident of the collision. Q. What is a relatively significant time? A. Yes. Q. For the pupils to return to normal? A. Well, no, for the effects of shock or any other effects of his injuries to take effect. I can't comment on something that occurred after the effects of the injuries had taken place, so. Q. Are you saying that when, if Mr Walker's observation is reliable and accurate, if that is accepted to be the case are you saying that his - if his pupils were dilated, it could have been as a result of the accident? A. No, what I'm saying is that the - you can't exclude his observations being inaccurate, they could well have been accurate and the observations of the ambulance officers because things have changed over time. With dilated pupils I would expect that not to be the injury. Q. In terms of the, just in terms of Mr Walker's observations of dilation, if that is accepted to be an accurate observation, could that have been as a result of the effects of the motor vehicle accident and his injuries? A. I would, as I said I would expect with adrenaline yes, you can have dilated pupils. So, after you know that initial shock has taken effect then you can get because of the adrenaline, the dilated pupils and you get that panicky state. But that usually takes time for the adrenaline to circulate through the body so that you affect the eyes. And I don't know, you know, other than what he has actually said in his evidence, he said that he saw the car spinning, he ran straight over to the vehicle and he made the observations, but I don't know whether that's the time he made that observation or not." 1. It was the applicant's submission that, although Dr Perl's "specialised knowledge based on … training, study or experience" was in pharmacology, "[u]nfortunately Dr Perl was asked questions [by the applicant's counsel at trial] outside of her expertise in relation to the period of time expected for the symptoms of shock to manifest as a result of major trauma". Reference was made to Dasreef Pty Ltd v Hawchar (2011) 243 CLR 588; [2011] HCA 21 (Dasreef) at [32] and [37] and the High Court's discussion in that case of Makita (Australia) Pty Ltd v Sprowles (2001) 52 NSWLR 705; [2001] NSWCA 305 (Makita). What was said in Dasreef at [37] was that it is: "ordinarily the case, as Heydon JA said in Makita, that "the expert's evidence must explain how the field of 'specialised knowledge' in which the witness is expert by reason of 'training, study or experience', and on which the opinion is 'wholly or substantially based', applies to the facts assumed or observed so as to produce the opinion propounded". The way in which s 79(1) is drafted necessarily makes the description of these requirements very long. But that is not to say that the requirements cannot be met in many, perhaps most, cases very quickly and easily. That a specialist medical practitioner expressing a diagnostic opinion in his or her relevant field of specialisation is applying "specialised knowledge" based on his or her "training, study or experience", being an opinion "wholly or substantially based" on that "specialised knowledge", will require little explicit articulation or amplification once the witness has described his or her qualifications and experience, and has identified the subject matter about which the opinion is proffered." 1. These observations, and those in Makita, were directed towards the admissibility of an expert's written opinion. In the present case, the objection raised for the first time on appeal concerned evidence given by the Crown's expert when under cross examination in answer to questions from the applicant's counsel. There was no objection to the admissibility of that evidence when it was given nor any attempt to have it struck from the record or by way of a direction to the jury to disregard it. 2. In oral submissions, counsel for the applicant relied on the definition of "pharmacology" as being "a branch of medicine concerned with the uses, effects and modes of action of drugs". It was put that Dr Perl's training, study and experience as a pharmacologist rendered her suitably qualified to give opinions as to the extent to which the applicant was impaired as a consequence of methylamphetamine use but that her opinions on the "bodily manifestation of symptoms of shock as a result of major trauma such as a car accident" were outside her relevant field of expertise. 3. The Crown in response argued, first, that the applicant had failed to demonstrate that Dr Perl's impugned opinions were not substantially based on her qualifications as a pharmacologist specialising in crash investigations, including the effects of illicit drugs on the human body and behaviour under varied conditions. 4. In written submissions the Crown contested the applicant's narrow conception of the field of pharmacology and the breadth of Dr Perl's specialised knowledge, based on training, study and experience in pharmacology. It was submitted that pharmacology "necessarily involves understanding the naturally occurring symptoms, signs and chemicals within the human body particularly those associated with injury that could operate to account for … physical symptoms associated with a particular drug". Additionally, the Crown argued that, in order to outline and give reasons for her view that the applicant was affected by methylamphetamine, Dr Perl had to be able to discount any other reason for that presentation such that her evidence as to the effects of shock was within her pharmacological expertise. 5. Alternatively, it was contended, correctly, that the opinions expressed by Dr Perl need not have been based only on her formal academic qualifications in pharmacology. Rather, opinions can be supported by specialised knowledge based on experience and, as evidenced by Dr Perl's curriculum vitae, she is a highly experienced expert who has given evidence in numerous driving cases across an extended period of time. It was thus put that the applicant had also failed to demonstrate that Dr Perl's long experience (as opposed to formal qualifications) did not provide a sufficient basis upon which to express the opinions she gave as to the likelihood that it was shock, as opposed to methylamphetamine, that had affected the applicant's eyes in the period shortly after the collision. 6. The Crown also pointed out that similar questions were put by the applicant's counsel to his own expert, Dr Robertson, whose experience and expertise, like Dr Perl, also lay in pharmacology and toxicology. The applicant did not in submissions in this Court illustrate how the specialised knowledge or expertise of Dr Robertson differed from that of Dr Perl such that he was appropriately qualified to give evidence on the effects of shock in ways that she was not. 7. The fact that Dr Robertson also gave evidence as to the effects of shock undermined whatever (if any) cogency existed in the attack on Dr Perl's expertise. It suggested that the impugned topic upon which both Dr Perl and Dr Robertson were asked questions was in fact within their expertise. The applicant's written submission on appeal to the effect that this aspect of Dr Robertson's evidence was in fact beyond his expertise did not rise any higher than assertion. 8. Even if it were able to be demonstrated that opinions as to the effect of shock were beyond the expertise of both Dr Perl and Dr Robertson, which it was not, the fact that both side's experts gave evidence on this topic greatly diminished any likelihood of a miscarriage of justice having occurred. 9. In this context, the Crown also submitted that, even if the relevant aspect of Dr Perl's evidence went beyond her training, qualifications or expertise, a miscarriage of justice did not arise. It was submitted that the now impugned evidence was elicited by the applicant's counsel at trial with a forensic motivation, namely to pursue an alternative hypothesis upon which the applicant's case at trial rested and that no objection was raised to the now impugned evidence at the time it was given, nor at any other time during the trial, and that a direction to limit or exclude the use of the evidence was not sought. 10. The Crown's submission was thus that, rather than giving rise to a miscarriage of justice, the admission of Dr Perl's evidence concerning the symptoms of "shock" was the result of a forensic choice pursued by the applicant's trial counsel. 11. I accept the submissions advanced on behalf of the Crown. 12. It is important to differentiate between a case where an admissibility objection is taken to an expert's written evidence or report and evidence given by an expert orally in chief or given when under cross examination. In the case of objection being taken to an expert's report, that will occur before the report is tendered. The jury is thus immunised from the receipt of expert evidence that might otherwise be objectionable on the basis that it transcends the witness' expertise, or does not adequately disclose the expert's reasoning process or the assumptions upon which it is based. 13. When objection is taken to such evidence, moreover, it will often be possible, subject to considerations of fairness to the objecting party, to cure any deficiencies by adducing supplementary evidence going, for example, to the extent of a witness's particular experience on a topic which is contended to be beyond his or her expertise, or clarifying the expert's reasoning process or exposing any underlying assumptions upon which the evidence is given. 14. By way of contrast, a cross examining counsel has the ability to confine cross examination to the fields of a witness's expertise and if the cross examiner chooses to go beyond that field, that is the consequence of the cross examiner's forensic choice. The very fact that the question is asked of the expert necessarily implies an acceptance by the cross examiner that the expert is capable of answering it within the expert's field of expertise. 15. Of course, non-responsive answers given by an expert when under cross examination which stray beyond the field of that witness's expertise may be the subject of objection which may require a voir dire. It will be a rare case, however, where responsive answers by an expert to a cross examiner's questions would be objectionable, and it is incumbent on counsel to raise any objections on the basis that an expert has strayed beyond his or her expertise at the trial. 16. For the above reasons, I reject the second ground of appeal. Ground 3 1. The applicant's third ground of appeal asserted that a miscarriage of justice had occurred by reason of a "multi-factorial time pressure situation" in which the jurors were not free to deliberate without any pressure being imposed upon them. 2. It is a fundamental rule that the jury must be free to deliberate without any form of pressure being imposed upon it, whether by way of promise, threat or otherwise: R v Black (1993) 179 CLR 44 at 46, 50; [1993] HCA 71; R v Tangye (1997) 92 A Crim R 545 at 550. 3. At the outset of the trial, the jury was advised that the trial was expected to run for two weeks. In fact, the trial went for almost six weeks from 12 November 2019 until 20 December 2019. 4. During the trial, the jury sent several notes expressing concern as to the length of the trial and its expected completion date. 5. On 28 November 2019, after the trial had been running for two weeks, notes were sent by the jury which included the following: "What is the expected or estimated time of the trial? An estimate to tell our work as we are unclear at this moment." "Based on the estimate given for the length of this trial, can the jury receive formal documentation to provide our employers regarding the extension of this trial from the original estimate given, preferably noting the new estimate, as word of mouth is becoming an issue?" "I have a flight booked to the Gold Coast for 15 December 2019, a family Christmas celebration event." "I have an overseas trip booked for departure Monday 9 December for two weeks. The original notice indicated that the trial will be for two weeks." 1. On 6 December 2019, a first juror was discharged due to a pre-arranged overseas trip. 2. Later on the same day, the trial judge instructed the jury to come in at 9.30am on Monday 9 December 2019 and advised that there would be longer sitting days finishing at 4.30pm in order to "move it [the trial] more speedily". 3. On 9 December 2019, the following note was received from the jury: "We are concerned that this trial will not be concluded this week. We have one more juror scheduled for a trip out of Sydney on Saturday, 14 December. We need an opportunity to voice our concerns." In response, the trial judge said the following: "I share your concerns. Those concerns have been raised with counsel, and I am told the trial may well go into next week … So I think the realistic position is that the matter is likely to spill into next week." 1. Later on 9 December, the applicant's case opened and the trial judge reminded the jury that they would be sitting on until 4.30pm that day and would do so for the remainder of the week. 2. On 10 December 2019, the trial judge instructed the jury to make arrangements such that the court might sit until 5pm the following day in order to "keep the trial moving". 3. On 11 December 2019, a jury note was received in the following terms: "I will be unable to attend Court on Monday, 16 December, as this is the day of my cousin's funeral. I apologise for any inconvenience this may cause the Court." 1. On 12 December 2019, the jury sent further notes documenting that one juror would need to leave for a holiday by 3pm on 20 December and another by 4pm on 23 December. 2. On Friday, 13 December 2019, a second juror was discharged due to their pre-arranged holiday commitment. 3. Later on 13 December 2019, an application was made to discharge the jury. This was advanced on two bases: (i) that the jury was not impartial in that one juror was observed "falling asleep" throughout the trial, another "muttering words at the accused, and counsel for the accused" and a further juror looked away from the witness box while an expert was giving evidence; and (ii) that the jury was subject to time pressure to finalise the trial. 1. In support of the second aspect of the discharge application, Mr Scragg's submissions were as follows: "there is a risk of a substantial miscarriage of justice because the jury have a perception that they would need to reach a verdict or verdicts in this matter quickly in the course of their deliberations. There are several factors which in my submission compounds the jury's perception that they must reach a verdict or verdicts quickly. Your Honour, this has arisen, of course, in the context of the upcoming holiday period where a third and fourth members of the jury plan to be on holidays. Throughout the trial your Honour has conveyed to the jury that the trial has to move quickly by setting starting times at 9 to 9.30 and finishing between 4.30 to 5. Now, our concern, your Honour, is this: that the extended sitting hours would cause the jury to take the view that there is some urgency in finishing the trial before the Christmas break. Your Honour, it still remains problematic, really, as to whether or not this trial can finish by Friday of next week. There are addresses ‑ well, there is evidence to be called today, which will take up most, if not all, of the day. We will be having one member of the jury discharged later today, as I apprehend it. There is the question of the juror's note to your Honour about attending a funeral on Monday. How much time is lost on Monday still remains to be considered by your Honour and ruled upon. Your Honour, we still have, of course, as I've said, your Honour, addresses, summing‑up, and it's a summing‑up in the context of which there may very well be somewhat complex issues that do arise in relation to the summing‑up, the directions that are given to your Honour. So it's our submission to your Honour that there is a risk, or a substantial risk, of a miscarriage of justice by reason of the time constraints that are operating on the jury by reason of the Christmas break and other members of the jury apparently being discharged." 1. In refusing to discharge the jury on the impartiality ground, the trial judge referred to R v Ahola (No 6) [2013] NSWSC 703 at [17]-[18], Miller v The Queen [2015] NSWCCA 206 at [126], R v Rogerson; R v McNamara (No 34) [2016] NSWSC 259 at [45] and Gilbert v The Queen (2000) 201 CLR 414; [2000] HCA 15 at [31]. His Honour then noted: "I have also made my own observations of the jury throughout the trial. Some jurors, as is typical of all jury trials, are more animated than others. Some sit quietly, with barely any movement, some fidget, some are more expressive than others. Overall however, it is my observation that the jury has been attentive to the evidence and many of the jurors are taking notes constantly and appear to be engaged with the evidence that has been provided to them over the period of the trial. I am satisfied that I can give appropriate directions to this jury to ensure a fair trial for this accused. I am not satisfied that the matters set out by the accused give rise to the high degree of necessity required to discharge the jury and the application is refused." 1. As to the second aspect of the application, namely that the jury was subject to time pressure, the trial judge said that "[t]hat can be revisited by Mr Scragg if and when it becomes appropriate to do so". 2. This practical and succinct response did not attract any demur from Mr Scragg, and rightly so. The application was premature and the trial judge's adoption of slightly extended sitting hours was a practical measure entirely within his discretion and designed to allay any prospect that the jury would feel pressure and have inadequate time when it came to consider its verdict. 3. On Thursday 17 December 2019, there were delays in sourcing an Iraqi interpreter when the proceedings commenced. The trial judge observed that: "Last week it was specifically asked as to whether the witness required an Arabic interpreter in the Iraqi language. I was told specifically that the matter could proceed with the interpreter who was available. I further note that during the giving of that evidence last Friday, there did not appear, as far as I could discern, to be any instructions provided to Mr Scragg by those who instruct him that there was any issue with the interpretation for that witness. That, in circumstances where there have been issues of interpretation previously in the trial ‑ those matters have been raised with the Court. That having been observed, my view is that the Court has no alternative but for the witnesses to give their evidence by use of an interpreter in the Iraqi dialect of the Arabic language. How that is facilitated is, in some sense, a matter for the parties. But the Court will do what it can to have an appropriate interpreter here later in the day. Whether that can be achieved, I do not know. That is the first aspect. I will not force the defence case to a conclusion in circumstances where, I am told, that the witness cannot properly communicate with the Court and the jury. In that event, the accused is not receiving a fair trial, and it would not be a trial according to law. One can only imagine the criticism that would be directed to the trial judge in that event. So, that will be accommodated, with regret. That, of course, has nothing to do with anything that Mr Scragg has done. I make that point absolutely plain." 1. In the course of exchanges between the trial judge and counsel on the morning of 17 December, the Crown said: "It's probably not a matter that I need to ventilate at this stage. But if we do approach Friday it would be my application that your Honour should make a further inquiry of the two jurors who have indicated difficulties over the coming weeks and note that … those difficulties … had a range of dates on it and the range of dates ended on 5 January … I expect it will be my application if we get to Friday that the trial adjourn until the 6th and that your Honour not discharge the jury." 1. After some further discussion, the following exchanges occurred: "CROWN PROSECUTOR: Yes, I understand that. But there seemed to be the two options, either the jury is discharged in totem or the trial is adjourned and that it can come to a resolution. I anticipate my application will be for the latter and‑‑ HIS HONOUR: That may be getting a bit ahead of ourselves. CROWN PROSECUTOR: It may be but I just thought I'd raise it with your Honour so that it was foreshadowed before Friday, I wouldn't want to bring the application on to your Honour without any warning. And that's all I'll say for now. SCRAGG: Well let's just see. HIS HONOUR: Let's just see. SCRAGG: Let's just wait and see what happens and if that ‑ if we get to that situation and my friend makes that application it can be considered then." 1. This is an important exchange, not least because of Mr Scragg's observations which were effectively entirely consistent with the pragmatic approach the trial judge had taken to the discharge application the previous Friday (see [85] above). 2. On 18 December 2019, there was some issue as to whether the applicant had withdrawn instructions in relation to his counsel. The issue was resolved and the applicant's case recommenced at 1:32pm and closed on the same day. The Crown delivered its address to the jury and Mr Scragg commenced his address which was completed the following morning. 3. On 19 December 2019, the Crown requested that the trial judge ask the jury to consider whether, in the event that it was were unable to reach a verdict, the members of the jury would be willing to sit longer to deliberate. That course of action was opposed by the applicant's counsel on the basis that it would send a message to the jury that it was being placed under pressure to return a verdict. The following exchange then occurred: "HIS HONOUR: I don't accept that. I think the message has been conveyed to the jury, if I might say, is that the members of the legal profession who are presiding - the trial judge and the members of the profession who are acting in the case are working hard to - these are members of the jury who were here for two to three weeks. We are now at the end of week six. There is some innate pressure upon the ladies and gentlemen in that regard. I am going to, if they say to me close to 5, I'm going to ask them when it gets close to 5, I'm not going to say anything to them before they go out because of that reason you identified. When I bring them back in I'll invite, and I'll say to them do you think if I give you some time ladies and gentlemen would that assist you. If they say yes, we'll have some more time, if they say no, we'll come back tomorrow. CROWN PROSECUTOR: Could I just respond to that? HIS HONOUR: Well, it's a ruling so no you can't. You can put it on the record if you want to, whatever is in your mind. CROWN PROSECUTOR: My concern, your Honour, is that that course of asking them at 5 may give rise to the difficulty that my friend has alerted in—" 1. Later that morning, in the absence of the jury, the trial judge flagged that the Court may sit until 5pm but that possibility did not eventuate as two members of the jury needed to leave by 4 pm. The trial judge noted that: "All members of the jury have agreed to continue deliberations on Friday; well that's very good of them. We plan to arrive and commence deliberations by 8.30am. That's an enthusiastic jury." 1. The trial judge commenced his summing up to the jury and, before completing his summing up, said to the jury: "…you will be left alone in the jury room with the exhibits to go about your deliberations in any way you choose to do so. You should not feel hurried or pressured in any way to reach your verdicts. If your deliberations are not completed by 4:00pm then I will reconvene the court and allow you to go home and return tomorrow so that your deliberations can continue." (emphasis added) 1. After the conclusion of the summing up, counsel were asked whether either of them had anything to raise. Other than some brief discussion in the absence of the jury as to provision of copies of some exhibits to the jury, nothing was raised and, in particular, nothing was raised about the jury having an inadequate period of time within which to consider a verdict. The Crown prosecutor mentioned, immediately before adjourning, that if by the end of the following day the jury had not reached a verdict, "I've already flagged what application I'll be making, your Honour, if we reach that stage. Which we may not, but if we do I'll have an application at that point." This was a reference to the potential application that he had foreshadowed, as referred to in [88]-[89] above. His Honour then adjourned the Court with the jury to commence its deliberations at 8.30am the following morning. 2. At the commencement of the following morning, following an application by Mr Scragg for the trial judge to summarise for the jury the evidence of the applicant, his Honour did so, and the jury then retired at 9.20am to consider its verdict. 3. After the jury had retired, but before the judge formally adjourned, the Crown raised with the trial judge the deferred application by the applicant for a discharge of the jury as disclosed in the following passage: "Your Honour, it's not really my issue it's an issue that the defence has raised, and it's unclear whether or not that it's currently pressed, given where we are on the trial. But on 13 December, which was last week, I think there was an application to discharge the jury in relation to two separate bases; one was supported by the affidavit, your Honour ruled on that. The other basis was in relation to time issues, and your Honour agreed with my submission that that should be deferred to be considered at a later time. Your Honour hasn't made a decision in relation to that, and having said that it isn't clear whether, given that the defence evidence is not complete, submissions are finished, and the jury is out, whether that application is still pressed on that basis. If it's not obviously your Honour won't need to rule on it; but if it is in my submission it should be dealt with. The transcript reference for your Honour is 1513. HIS HONOUR: Are you pressing it at this time? SCRAGG: Yes your Honour, the situation your Honour really has - there's even more pressure on the jury than when it was raised by-- HIS HONOUR: I don't accept that. SCRAGG: That's my position, your Honour. HIS HONOUR: I don't mean to be dismissive Mr Scragg, but I don't accept it for this reason; that there is no pressure on the jury unless they know there's pressure on them. No one has told them. SCRAGG: Yes, I accept that, your Honour. HIS HONOUR: If that's pressed, you can leave it in abeyance. If it may become relevant later in the day. As I understand it there's some further application that the Crown wishes to ventilate later in the day, from what he said yesterday, and what he flagged earlier in the week. We can deal with all those issues if and when the need arises, later today. SCRAGG: Yes, your Honour. HIS HONOUR: But if— SCRAGG: It does remain my application, your Honour-- HIS HONOUR: I accept that there's an application that remains on foot. SCRAGG: Yes, your Honour. HIS HONOUR: I'm not going to deal with it at this point. SCRAGG: If your Honour pleases. CROWN PROSECUTOR: I'm concerned about that, your Honour, from the Crown's perspective. My submission to your Honour is that there is an application on foot, that I oppose-- HIS HONOUR: I understand that. CROWN PROSECUTOR: Your Honour's aware of that and in my submission given that the jury is currently out and that a verdict could be delivered at any time there could be some issue taken later about that, in circumstances where there's an application that hasn't been resolved that could cause the jury to be discharged. If your Honour makes a decision about that both parties - there are rights of appeal in relation to that type of decision, and— HIS HONOUR: I'm not going to deal with it at moment. I can deal with it - it will dovetail into any application that you've flagged, and those matters can be dealt with simultaneously. I hear what you say Mr Crown, I'm not minded to do what you ask. CROWN PROSECUTOR: May it please the Court." (emphasis added) 1. The jury subsequently requested a transcript. The trial judge noted that it was "quite a lot of evidence" and thus elected to provide the jury with all of the evidence, rather than removing only those parts which it had not requested. The applicant's counsel noted his obligation to check the transcript and promised to do so as quickly as possible such that it could be provided to the jury. 2. It is unclear at what point the jury was provided with the disc containing the transcript before its verdict was returned at 11.45am. Consideration 1. Ms Rodger, who appeared for the applicant, sought to identify a number of aspects of the trial which contributed, in her submission, to the creation of a situation of undue time pressure. These were: (i) the jurors' expressions of concern, largely via the jury notes; (ii) the trial judge's expressions of concern and statements as to the need to speed up the trial and sit for longer hours; and (iii) the trial judge's failure to consider or comment on the possibility of an adjournment until January, which had been raised by the Crown. 1. Ms Rodger characterised the time pressure as arising in both an objective and subjective sense. 2. Objectively, Ms Rodger suggested that the fact that Christmas was approaching, two jurors had already been discharged and further jurors were expected to be discharged at 3pm on 20 December 2019 and 4pm on 23 December 2019 meant the jurors must have been under pressure to reach a verdict. 3. Additionally, the extended sitting hours and the concern expressed by the trial judge as to the length of the trial were pointed to. Taken together, these factors were said to establish an "atmosphere or temper" of time pressure. This expression was a reference to the language employed by Hunt AJA in El Hassan v R [2007] NSWCCA 148 at [15], in turn quoted by Rothman J in Trieu v R [2012] NSWCCA 169 (Trieu) at [28] in the context of a review of a refusal to discharge a jury. What was said in fact highlights the fact that the trial judge will usually have a superior view of issues such as pressure on a jury than an appeal court: "much leeway must be allowed for the trial judge to evaluate considerations relevant to the fairness of the trial, bearing in mind that the judge will usually have a better appreciation of the significance of the events complained of, seen in context, than can be discerned from reading a transcript ... The trial judge is alive to the temper and the atmosphere of the trial, and this Court must make due allowance for that fact in determining whether there has been error in the exercise of discretion …" 1. This passage in Trieu was cited with approval in Zheng v R (2021) 104 NSWLR 668; [2021] NSWCCA 78 at [97]. 2. It was further put on behalf of the applicant that the notes passed by the jurors to the effect that they had to leave by 3pm on 20 December 2019 and 4pm on 23 December 2019 respectively were contemporaneous statements as to the time pressure they were actually under. Ms Rodger also pointed in written submissions to the fact that the deliberations lasted less than two hours after a six week trial in which there were said to be complex legal and factual issues for determination. 3. Although Ms Rodger acknowledged that the trial judge had explicitly directed that the jury should not feel any pressure to reach a verdict, it was put that this direction was insufficient in that, unlike the direction given in Issakidis v R (2019) 379 ALR 292; [2019] NSWCCA 302 where a miscarriage of justice was held not to have arisen, the trial judge did not specify that a verdict did not need to be returned by a particular time or date. 4. In all these circumstances, Ms Rodger put that it was incumbent upon the trial judge to alleviate the time pressure on the jury by, at minimum, considering the Crown's suggestion of an adjournment to January and alerting the jury to the availability of that option. This would, it was submitted, have alleviated any concern and associated pressure felt by the jury that a verdict had to be reached before Christmas. 5. I reject these submissions. The trial judge managed the application for a discharge in an exemplary manner. He ruled that the first application was in effect premature (as it was) and it was notable that it was not in substance pressed again by Mr Scragg until it was brought up by the Crown after the jury had retired. Again, his Honour took a "let's wait and see" approach in circumstances where consideration of the application may have proved to be unnecessary, as it did. 6. The jurors were expressly directed to proceed at their own pace and not to feel rushed or pressured by time. No deadline was given to the jury nor was any expectation of how long the deliberations would take raised. There was nothing to suggest that the jury did not think that deliberations could not continue after the Christmas period in the event that they could not reach a verdict prior to that time. 7. Although the jurors may have expected, on the morning of 20 December 2019, that a further two of their number may be discharged to meet their pre-existing commitments (as two had already been), there is no basis for thinking that they were aware that deliberations could not continue thereafter without consent. Moreover, as the Crown pointed out, the jury notes upon which the applicant relied to found part of his submission in relation to jury pressure had been handed up on 12 December 2019. Importantly this meant that there were no expressions of concern about time pressure in the immediate period leading up to the delivery of the verdict. 8. Insofar as the trial judge had extended the sitting hours, the extensions of time were modest and made in consultation with the jury. Moreover, they were not insisted upon in circumstances where sitting longer hours was not convenient to one or more jurors. There was nothing artificial or conditional about the trial judge's direction that the jury should not feel pressured. In these circumstances, it cannot be said that the conduct of the trial judge gave rise to an environment in which the jury must have felt pressured to reach a verdict. 9. Equally, the fact that the jury deliberations only lasted two hours cannot found an inference, either alone or taken together with other matters, that the jury was subject to undue time pressure. The issues in the case were not overly complex nor many in number. The trial judge's summing up was clear and no complaint is made in relation to it. Furthermore, the deliberation period was not the only time the jury had available to it to consider the evidence. It would be purely speculative to suggest that the length of time the jury took to reach its verdict was as the result of or evidenced time pressure which it felt under. 10. Ground 3 also alleged that a miscarriage of justice arose because the trial judge's failure to deal with the discharge application, either on 13 December 2019 or at a later time, constituted a denial of procedural fairness and a fundamental defect in the trial process: AK v The State of Western Australia (2008) 232 CLR 438; [2008] HCA 8 at [23]. 11. As already indicated, the trial judge's decision in effect to defer that part of the 13 December discharge application on the basis that it was premature was entirely within his case management discretion. His decision attracted no demur at the time it was communicated and not another word was said about the possibility of an adjournment or discharge until 17 December when it was raised by the Crown and not on behalf of the applicant. Indeed, Mr Scragg said on that occasion, "Let's just wait and see what happens": see [89] above. 12. It was not raised again until 20 December, and then only when prompted by the Crown. At that time it was quite possible that the jury could have returned a verdict before any further jurors had to be discharged if, in fact, they had not already altered their other commitments that had led to the earlier jury notes. The trial judge was uniquely capable of assessing any time pressure on the jury and whether a verdict might be returned prior to a third juror needing to be discharged. 13. The trial judge's further decision to defer the hearing of the application on the morning of 20 December was entirely appropriate. As he indicated, it may have become appropriate later in the day if no verdict had been brought in by then but this scenario did not eventuate. The application was neither rejected nor dismissed without a hearing. As his Honour said "We can deal with all those issues if and when the need arises, later today": see at [97] above. Ruling on the discharge application prematurely would have had little utility. 14. Just as a decision to discharge a jury or not falls within the broad discretion of the trial judge (Crofts), so too does the decision as to when to hear a particular application. The course taken by the trial judge was, in my view, entirely open to him and appropriate in the circumstances. There was no denial of procedural fairness or any consequent miscarriage of justice. Ground 4 1. The fourth "omnibus" ground was that if the applicant's three grounds of appeal did not give rise to a miscarriage of justice considered individually, they did so cumulatively. 2. The Crown accepted that it was open for the Court, in assessing whether there was a miscarriage of justice, to combine or aggregate irregularities and that in doing so, the relevant test was whether the applicant had received "a trial according to law or has not received a fair trial": Filippou v The Queen (2015) 256 CLR 47; [2015] HCA 29 at [14]; see, also R v Ireland (1970) 126 CLR 321 at 331; [1970] HCA 21. 3. It was submitted by the Crown that if error falling short of a miscarriage of justice was established in relation to any of grounds one to three, it did not follow that the combination of errors would give rise to a miscarriage of justice. Rather, the asserted irregularities in grounds one to three were independent from each other and of a "markedly different character" such that their cumulative effect was less likely to give rise to an unfair trial. Furthermore, it was put that the applicant did not demonstrate that the irregularities gave rise to a miscarriage of justice. 4. I agree. In fact, not only did each of grounds 1-3 fail, none was of any particular strength for the reasons given in some detail above. 5. I would grant leave to appeal but dismiss the appeal. 6. WALTON J: I agree with the Chief Justice. 7. DAVIES J: I agree with the Chief Justice for the reasons he gives. ************* 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: 17 April 2023