Reported Decision : 122 A Crim R 1 New South Wales Court of Criminal Appeal CITATION : R v Rugari [2001] NSWCCA 64 revised - 1/04/2014 FILE NUMBER(S) : CCA 60345/99 HEARING DATE(S) : 9 March 2001 JUDGMENT DATE : 9 March 2001 PARTIES : Regina v Rugari JUDGMENT OF : Spigelman CJ at 67; Sperling J at 1; Carruthers AJ at 68 LOWER COURT JURISDICTION : District Court LOWER COURT FILE NUMBER(S) : 98/21/3067 LOWER COURT JUDICIAL Ford AJ OFFICER : COUNSEL : P. Strickland (Appellant) M. Grogan (Respondent) SOLICITORS : D. J. Humphreys (Appellant) S. E. O'Connor (Respondent) CATCHWORDS : Appeal against conviction - conduct of Crown Prosecutor - whether closing address by Prosecutor contained inappropriate and prejudicial comments - whether possibility that trial miscarried as a consequence. LEGISLATION CITED : Crimes Act 1900 Browne v Dunn (1894)6 The Reports 67 Moss v Brown [1979] 1 NSWLR Ratten v The Queen (1974) 131 CLR 510 R v Birks (1990) 19 NSWLR 677 CASES CITED: R v Kennedy [2000] NSWCCA487 R v Kneebone (1998-1999) 47 NSWLR 450 R v McCullough (1982) 6 A Crim R 274 R v MRW (1999) 113 A Crim R 308 R v Roulston [1976] 2 NZLR 644 R v Walton [1999] NSWCCA 452 DECISION : See paragraph 63 - 22 -1 CARRUTHERS AJ: Mario Anthony Rugari appeals from his conviction on 4 June 1999 on one count of maliciously wounding Susan Trevor on 31 October 1997 at Miranda in this State contrary to s 35(a) of the Crimes Act 1900, as amended. 2 His Honour, Acting Judge Ford QC, who presided over the trial, sentenced the appellant on 4 June 1999 to imprisonment for 4 years from 25 March 1999 and expiring on 24 March 2003. His Honour fixed a non-parole period of 3 years commencing on 25 March 1999 and expiring on 24 March 2002. In the event that the appeal against his conviction is dismissed, the appellant seeks leave to appeal against sentence. The Notice of Appeal was filed on 24 June 1999. Amended Grounds of Appeal were filed on 27 February 2001. 3 The two original grounds for appeal were firstly, his Honour erred in failing to discharge the jury following the address of the Crown Prosecutor. Secondly, his Honour erred in that he failed to give appropriate directions to the jury to cure inappropriate and unfair comments made by the Crown Prosecutor in his address to the jury. The Amended Grounds of Appeal merely express these Grounds in a different form. 4 As I have indicated, the alleged victim is Ms Susan Trevor who, according to the Crown case, had an ongoing intimate relationship with the appellant which involved her staying at times at his home at Miranda. She was in fact residing in the appellant's home on 30 October 1997 on which evening she and the appellant went to a nightclub at Gymea, accompanied by Ms Shirley Mullane and Mr Peter Doy. 5 During the evening, the complainant danced with an old boyfriend which, according to the Crown case, made the appellant jealous. The appellant left the nightclub without saying goodbye to the complainant or the other two persons. At about 2.30am on 31 October 1997 the complainant and Ms Shirley Mullane and Mr Peter Doy returned to the appellant's home. 6 The complainant observed that the appellant had put her clothing in a number of garbage bags and left them outside his home. 7 The complainant deposed that she went into the kitchen to recover beer in the refrigerator which she claimed belonged to her. She said that after she entered the home the appellant told her: "Fuck off, get out of here". At that stage the appellant was at the kitchen sink. The complainant replied: "Well you disappeared". The appellant responded: "Well you had a nice time with your ex-boyfriend" . Again, the appellant told her to "Fuck off". According to the complainant, he was very aggressive. The complainant said she threw the beer back into the refrigerator and turned around to walk out of the house. She said the appellant then lunged at her and stabbed her in the stomach with a kitchen knife. She screamed. The appellant said: "You fucking bitch. I haven't finished with you yet". 8 Accordingly the complainant tried to get out of the house as quickly as she could. As she made her way down the hallway Ms Shirley Mullane, who was waiting outside, came to the door. According to Ms Mullane's evidence, the complainant called out: He stabbed me, he stabbed me". 9 Ms Mullane pulled the complainant away from the door and again the appellant said, according to Ms Mullane: "I haven't finished with her yet". 10 Ms Mullane and Mr Doy then drove the appellant to Sutherland Hospital where she received emergency treatment and then underwent an operation. During the course of her evidence, both in chief and in cross-examination, no questions were directed to the complainant with regard to her making any statements to investigating police. The cross-examination was directed to the complainant to the effect that the relationship between her and the appellant was purely a platonic one. This was denied. It was suggested to her that she, in fact, attempted to stab the appellant and then stabbed herself with the kitchen knife in an attempt to seek revenge upon the appellant for rejecting her. 11 Ms Shirley Mullane, as I have indicated, also gave evidence supportive of the complainant's evidence. 12 Ms Mullane gave no evidence-in-chief about making a statement to the police, but she was asked in cross-examination, and agreed, that she had made a statement to the police early in the morning of 31 October whilst at the hospital, and that later that evening she made a full statement to the police. She was then cross-examined about certain aspects of that latter statement. Indeed, at one stage counsel for the appellant showed Ms Mullane a copy of the statement she had made to police during the evening of 31 October 13 Constable Sue Camborn gave evidence that she attended Sutherland Hospital at about 4am on the morning of 31 October and spoke to the complainant at about 4.30am. She made notes of the conversation in her police notebook at pages 27-28. 14 Constable Camborn also spoke to Ms Shirley Mullane at about 4.10am. She spoke to her again at about 10.40pm on 31 October and, as I have indicated, obtained a full statement, recorded in her police notebook at pages 29-35. That notebook was signed by Ms Mullane. 15 There was evidence from Constable Camborn that the complainant had made two statements. The Crown did not seek at any stage to tender the statements made by the complainant or Ms Shirley Mullane to the investigating police officers. 16 The appellant declined to make a statement when interviewed by investigating police. He gave evidence at the trial to the effect that the relationship between himself and the complainant was purely platonic and that she had in fact stabbed herself, after attempting to stab him. 17 The appellant's counsel also called his son Tony, who was 13 years of age at the time of the alleged offence. He deposed that he had seen the complainant stab herself. 18 Evidence was led by the Crown Prosecutor from Ms Kathleen Mullane, the sister of Ms Shirley Mullane, that the appellant had made admissions to her of the commission of the offence. This alleged admission was denied at the trial by the appellant. 19 The Crown Prosecutor addressed the jury immediately after the close of the evidence. At the conclusion of that address, Ms Cox, the appellant's counsel, applied to his Honour to discharge the jury because of the prejudice which she claimed flowed from the Crown's address. His Honour refused the application without giving reasons therefor and, in fact, did not direct the jury in his summing up in relation to any of the remarks made by the Crown Prosecutor during the course of his address. No redirection was sought in this regard by Ms Cox. 20 The first submission made by the appellant in this Court is that the Crown Prosecutor, during his closing address, improperly invited the jury to draw inferences about the consistency of the complainant's evidence. It is appropriate to quote the following passages from that address: - "I imagine that when Ms Cox addresses you she'll suggest to you that Susan Trevor and Shirley Mullane have put their heads together as two friends to try and effectively cook up a version that is against the accused's interests. You remember what Shirley Mullane said, that she came into the house, the accused tried to prevent her getting into the house; he said he hadn't finished with her yet; she had to forcibly get Susan Trevor out of the house, and that she then assisted her to the hospital. Ms Cox is going to try and convince you that the two of them have basically made up a version to try and sink the accused. Let's have a look at their particular versions and how they came about. As we know, Shirley Mullane drove Susan Trevor to the hospital. We know that Susan Trevor then received treatment at the hospital and we know that Shirley Mullane immediately, around 3.30, 4 o'clock in the morning, spoke to police at Sutherland Hospital. We know that later that night she made a second fuller statement to the police - Shirley Mullane that is - at Sutherland Hospital. We know that Susan Trevor was in hospital for six days. We know that Peter Doy was also spoken to at Sutherland Hospital. The significance of that is that it shows that Shirley Mullane, she gave her version to the police instantly basically. As soon as she saw them at the hospital she gave a version. She then gave a fuller version later that night and she has given evidence in this trial. You've heard her cross-examined by Ms Cox. She tried to get out every inconsistency she could. If Ms Cox knew of inconsistencies between the version she gave to the police at the hospital, the fuller statement she made later that night, and the evidence she gave in this trial, she would have hit her with all guns blazing. Instead, barely an inconsistency . That is, the version that Shirley Mullane says of her having to go into the house, the conversation she heard, dragging Susan Trevor out of the house, barely an inconsistency. If there had have been we'd still be here hearing about it in cross-examination. Susan Trevor, she also gave a version to police when she was at the hospital, and then a fuller statement, and Ms Cox cross-examined her and, again, if there had have been some major inconsistency between what she told police right on that night; and what she told you in evidence, she would have been hit again with all guns blazing about that inconsistency. But the fact that that didn't happen shows you that her version, right from the very start, from the hospital, is consistent, that she was stabbed by this man following this conversation about the ex-boyfriend and the following conversation about he hadn't finished with her yet. Therefore, you can reach the conclusion that basically both Shirley Mullane and Susan Trevor have given consistent versions right from the start . When does that give them time to cook up the version between them? Did it happen on the car trip to the hospital? Is that what we're going to be asked to believe, that Susan Trevor, while she's there clutching Shirley Mullane's bag to her stomach, bleeding, somehow has some conversation with Shirley Mullane going, 'I stabbed myself, we better get our versions right now. Let's have a conversation and let's start getting it correct'? That's just not going to happen. Did they have a conversation while she was in the emergency section being treated: 'You know, I've basically stabbed myself; we better think up a version to try and nail this accused'? No, not believable, wouldn't even enter your minds. They gave consistent versions right from the start and right through because they didn't need to cook up a version, they simply told you what happened." (My emphasis). 21 It is important to bear in mind in this context that during the course of his address the Crown Prosecutor said: - "One of the other significant things that is consistent with what you would expect in the truth in the Crown case is the immediate complaint that Susan Trevor makes. What does she say as she's running out of the house - firstly in the house and then running out of the house, "He stabbed me; Mario stabbed me". She didn't run out saying, "I stabbed myself; I stabbed myself". "He stabbed me", that is what you would expect someone to say, and that is what is said. Compare that to Tony, Tony doesn't say anything to the police. Tony waits a year and a half to come and tell us at trial about it. He doesn't tell the police anything about it. He could have saved his father there and then. There was nothing to stop him saying it. Compare that to Susan Trevor. And later in the same passage: "That's another example of the commonsense in the Crown case and the commonsense consistent with the truth, not with just some cynical defence" 22 As I have said, there was evidence that the complainant had twice made statements to police officers. The Crown did not seek to lead in examination-in-chief, or in re-examination, the contents of those statements. Whilst the complainant was in evidence, there was no cross-examination of the complainant with regard to those statements. Accordingly, it was contended by the appellant in this Court, that it was improper for the Crown Prosecutor to suggest to the jury what the contents of those statements were. Furthermore, the appellant argued that it was improper to tell the jury that they could conclude that the complainant had given consistent statements to the police on the basis that the appellant's counsel did not cross-examine with regard to the statements. The fact is, of course, there was simply no evidence before the jury of what the complainant told the police. 23 It was submitted that there are inherent dangers in a Crown Prosecutor inviting the jury to engage in a process of reasoning on the basis of the failure by an accused's counsel to ask questions in cross-examination. Reliance was placed here upon the following passage in the judgment of Gleeson CJ in R v Birks (1990) 19 NSWLR 677 at 691, where the Chief Justice said: "I would add that one particular matter that makes it difficult for jurors to use the conduct of counsel as a basis for drawing inferences of fact is that most jurors are unaware of the principles, some of which have been set out earlier in this judgment, relating to the wide discretion available to counsel as to the manner in which a trial may be conducted. It may be easy for a jury, unless given an appropriate warning to assume that a barrister is merely some kind of 'mouthpiece' for the client, conducting the case in close conformity with the client's directions. For reasons that have already been explained, this is far from the truth". 24 The appellant contended that the Crown Prosecutor made similar inappropriate comments about consistency in relation to Shirley Mullane's versions of the events. Again it is argued that the Crown Prosecutor improperly relied upon the absence of cross-examination of Ms Mullane, in relation to critical aspects of the Crown case, in relation to her statements to the police, as supportive of her consistency. 25 Reference was also made by the appellant to the fact that the Crown Prosecutor stated in his address that because Ms Cox did not cross-examine the complainant to the effect that she was a self-mutilator, the jury were to infer that there was no information available to cross-examine her on that topic. 26 The passage in the Crown Prosecutor's address relating to "self-mutilation" is as follows: "Also, on Susan Trevor, it's been basically put to her that she shoved a knife in her stomach. That, as you might think, is a pretty unusual act. Yes, there are people who, for whatever reason, have a psychiatric illness that leads to self-mutilation" [I interpolate that there was no evidence before the jury to that effect] "but if anything was known about Susan Trevor that she was a self-mutilator, don't you think that Ms Cox would have cross-examined her up and down hill (sic) about that? She, of course, wasn't cross-examined about that, about having a history of self-mutilation, and you might think that the inference of that is that there simply isn't any information available to cross-examine her on that particular topic ." [my emphasis] 27 Counsel for the Crown has submitted before this Court that it is of significance that there was a consistency in the evidence given by the complainant and Ms Shirley Mullane. Ms Mullane gave evidence that, at the time the complainant was stabbed, she said to her, "Shirl, he stabbed me, he stabbed me". This consistency, it was submitted, was important to the Crown case. It was also important to the Crown case, it was contended, that it was not suggested in cross-examination that the complainant had ever given an inconsistent version of the events, or that Ms Mullane had ever given an inconsistent version of events, in so far as this aspect of the Crown case was concerned. 28 The Crown fairly concedes before this Court that based upon what the Crown Prosecutor had said to the jury, the jury may have inferred that there was nothing in either the complainant's statements or Ms Mullane's statements that was materially inconsistent with their oral evidence. The Crown contends, however, that it is difficult to envisage how that inference could have affected the jury, having regard to Ms Shirley Mullane's evidence of what the complainant said when she was stabbed. 29 The Crown contends that this situation has to be considered in the context that there was evidence from Ms Kathleen Mullane, which the jury could well have accepted, of an admission by the appellant that he had stabbed the complainant. 30 With regard to the submission by the Crown Prosecutor about an absence of cross-examination of the complainant with respect to self-mutilation, the Crown has fairly conceded before this Court that such a submission was inappropriate. However, it was contended that this submission would have had no effect upon the jury, bearing in mind the manner in which his Honour directed the jury on what was referred to by counsel for the Crown as the "competing versions" of the way in which the complainant suffered her injury. 31 The Crown contended that even if this Court concluded that the Crown Prosecutor's address referred to matters that should not have been mentioned to the jury, nevertheless, having regard to the evidence as a whole there could have been no scope for a possible miscarriage of justice. 32 It was also submitted on behalf of the appellant that the whole tenor of the Crown's address was intemperate, inflammatory, and designed to prejudice the appellant. 33 Particular reliance is placed upon the following passage: "So, what's another important thing? Well, he's got to explain why he left the nightclub without speaking to her and put the clothes on the verandah. I explain that by saying that I have these perfect manners and I really did go and say, 'I was leaving, see you later; catch you, no big deal; I'll see you back at the house'. See, that's not consistent, is it, for these clothes to be on the verandah if this was his story? But you see, the beauty of it all is, 'How am I going to explain the fact that this woman has a hole in her stomach, that she's been stabbed through the abdomen, and even her liver? How am I going to explain that?' Well, 'I could blame the one-armed man, but that was done in The Fugitive. I could blame aliens, but I don't know, maybe that's a bit like the X-Files. What a great idea, she stabbed herself, because she couldn't live without me. She couldn't live without me.' The accused obviously has some strong qualities: he likes karaoke; he makes pasta, Italian coffee; perfect manners . But 'Can't live without him, must shove a knife into one's stomach'? No, I don't think so. But that was novel; that was a novel idea; let's blame it on her. Let's say she shoved a knife in her stomach. That's all fine up to a point, but then it's, 'Oh well, I'll even have my son come in and I'll get him to try and say it happened too.' I mean, that's a fairly sad sort of situation. It's no fun to have to cross-examine a young boy." [My emphasis]. 34 In the appellant's submissions, specific objection was made to the phrase in the opening part of the prosecution address: - "Ladies and Gentlemen, what I say about this matter is that it is just a very cynical attempt to raise a reasonable doubt in this matter". 35 Then the appellant complains that the Crown Prosecutor posited various matters which the appellant was required to explain. I will only for present purposes mention only two examples, although there are many. The Prosecutor stated: "Well he's got to explain why he left the nightclub without speaking to her and put the clothes on the verandah" and further: "How am I [referring to the appellant] going to explain the fact that this woman has a hole in her stomach, that she's been stabbed through the abdomen, and even her liver, how am I going to explain that?". These statements, I immediately observe, reverse the onus of proof. The burden which the Crown carried from beginning to end in this trial was to establish beyond reasonable doubt that the accused stabbed the complainant. The accused bore no onus at all. 36 It was then contended by the appellant that the Prosecutor purported to summarise "in a mocking and ridiculing way", the appellant's answers to the Crown's rhetorical questions. Such, it is contended, is apparent from the passage which I have quoted. Further, it is contended, the Prosecutor attempted to satirise the appellant's explanation of how the victim injured herself by comparing it to scenes from The Fugitive or The X-Files. 37 Another inflammatory comment upon which the appellant relies is as follows: "One of the aspects also was the significance of the plastic bags out on the verandah. As I said, right from the start, the Crown case was that this man, for some reason, lost it when he saw this woman dancing with her ex-boyfriend. Why do you think he left without saying goodbye? I mean, that in itself - the cross-examination today was ridiculous ." [My emphasis]. 38 Not surprisingly, particular objection is taken by the appellant to the categorisation of the appellant's counsel's cross-examination as being "ridiculous". 39 It was also contended that the passage quoted above relating to the "strong qualities" of the appellant was an attempt by the Crown Prosecutor to mock the Italian background of the appellant. For the sake of completeness, I should add the following concluding passage from the Crown Prosecutor's address in which he made it clear that the burden rested upon the Crown to prove the case beyond reasonable doubt: "Ultimately, it is the Crown's job to prove the case beyond reasonable doubt, and anything I've said in saying that you need to assess the accused and Tony's evidence shouldn't take it away from that. The accused doesn't have to actually prove anything. It is my job to prove beyond reasonable doubt; but, surely, looking at the evidence and looking at commonsense, look at the version of the Crown, this relationship, the dancing with the ex-boyfriend, the putting the clothes on the verandah, the conversation at the kitchen about the jealousy of the ex-boyfriend, about the "fuck-off, get out" you shouldn't even be close to a reasonable doubt in my submission about what happened on that night. They are my submissions to you." 40 As I have indicated, immediately the Prosecutor concluded his address appellant's counsel sought a discharge of the jury, detailing essentially the matters which are now the subject of the grounds of appeal. Ms Cox made a careful summary of the matters to which she objected in the Crown address and set those matters out for the consideration of the trial judge. His Honour responded, "Yes, I have no intention of discharging the jury". Ms Cox then addressed the jury, and his Honour summed-up. 41 Bearing in mind that the legal issues in this case were lacking in complexity, his Honour's charge to the jury was predominantly concerned with an overview of the evidence. His Honour, as I read the summing-up, made no reference to the submissions which were made by counsel for the Crown or the submissions which were made by counsel for the appellant. The "competing versions" to which reference has been made were to be found by reference to the summary of the evidence. 42 Counsel for the appellant at the trial did not seek any directions from his Honour, at the conclusion of the summing-up, directed to rectifying, if possible, by the exercise of his Honour's authority, the aspects of the Prosecutor's address to which she had earlier made strenuous objection. Before this Court, Mr Grogan of counsel for the Crown submitted that in all the circumstances this was an omission on the part of counsel for the appellant, albeit he fairly conceded that there was an alternative explanation available for her declining to seek any redirection. In my view, Ms Cox was placed in a very difficult situation. She had made a detailed application for a discharge of the jury which, it is apparent, she was entitled to. His Honour elected to make no reference to the complaints which she had raised during the course of his summing-up and it is understandable that she formed the view that in all the circumstances the better course would be to leave the matter as it rested. This was clearly a tactical decision which was fairly and reasonably open to her, and I do not think, with respect, that this Court should take that into consideration as, in any respect, undermining the basis of the present appeal. 43 The responsibility of a Crown Prosecutor was considered recently by this Court in R v Kneebone (1998- 1999) 47 NSWLR 450; R v Walton [1999] NSWCCA 452 and R v Kennedy [2000] NSWCCA 487. 44 Generally speaking, the principles are now well established. The difficulty which generally arises is the application of those principles to the particular facts of the subject case. 45 In R v MRW (1999) 113 A Crim R 308 at 317, reference was made by Greg James J, speaking on behalf of this Court to the Director of Public Prosecutions NSW Prosecution Policy and Guidelines - reviewed March 1998 - which applies specifically to Prosecutors. These guidelines incorporate the following Bar Rules: "63. A prosecutor must not press the prosecution's case for a conviction beyond a full and firm presentation of that case. 64. A prosecutor must not, by language or other conduct, seek to inflame or bias the Court against the accused." 46 These rules were not intended, however, to inhibit a Prosecutor presenting the Crown case in a firm and positive manner. 47 The following instructive passage from the judgment of the New Zealand Court of Appeal in Roulston [1976] 2 NZLR 644 at 654 was cited by the Court of Criminal Appeal, Tasmania, in McCullough (1982) 6 A Crim R 274 at 285-286: "...it has always been recognised that prosecuting counsel must never strain for a conviction, still less adopt tactics that involve an appeal to prejudice or amount to an intemperate or emotional attack upon the accused. Such conduct is entirely inappropriate and a basic misconception of the function of any barrister who assumes the responsibility of speaking for the community at the trial of an accused person. Naturally enough a proper balance needs to be maintained. The view expressed in 10 Halsbury's Laws of England (3rd edition) para 761 that prosecuting counsel should regard themselves as ministers of justice assisting in its administration' ought not to lead to the assumption of a role so emasculated as to merit Lord Devlin's remarks in Trial by Jury (1966) pp 122-123: 'in some places the pendulum has swung so far, and the ministry has moved so close to the opposition, that the prosecution's case is not adequately presented, and counsel, frightened of being accused of an excess of fervour; tend to do little except talk of reasonable doubt and leave the final speech on the facts to the judge.' The feel and atmosphere of one trial may make it reasonable and even necessary for tactics to be employed that would seem out of place and disproportionate to the circumstances of another. Nevertheless, it is wrong for Crown counsel to become so much the advocate that he is fighting for a conviction and quite impermissible to embark upon a course of conduct calculated to persuade a jury to a point of view by the introduction of factors of prejudice or emotion. If such a situation should develop and there is a real risk that the conduct complained of may have tipped the balance against the accused then an appellate court will not hesitate to follow the safe course and order a new trial." 48 One important aspect of the passage that I have quoted above are the views expressed by Lord Devlin in his well known work Trial by Jury. 49 The High Court has consistently confirmed that a criminal trial is of an adversary nature: See, for example, Ratten v The Queen (1974) 131 CLR 510 at 516-517 per Barwick CJ. 50 When Ratten's Case was before the Full Court of the Supreme Court of Victoria, Smith J said of a criminal trial: "It is a trial in which the protagonists are the Crown on the one hand, and the accused on the other": see [1974] VR 201 at 214 51 In Moss v Brown [1979] 1 NSWLR 114 at 126, the Court of Appeal (Moffitt P; Reynolds and Hutley JJA) said: "In any discussion of fairness, it is imperative to consider the position of all parties. It is sometimes forgotten that the Crown has rights and, as it has a heavy responsibility in respect of the invoking and enforcement of the criminal law, which includes seeing that the public revenue is not imposed upon, it is entitled to maintain those rights even if they may bear heavily upon some accused". 52 Thus although Crown Prosecutors are subject to considerable constraints, they must nevertheless discharge their obligations fearlessly in the interests of the Crown, acting on behalf of the community. 53 Regrettably, in the instant case, however, the Crown Prosecutor exceeded in his address the reasonable restraints which were imposed upon him. 54 Each of the complaints made in the appellant's submissions, which were effectively a replication of the points made by counsel for the appellant at the trial have, in my opinion, been made out. 55 It is convenient briefly to summarise the salient points which lead inevitably, in my opinion, to the conclusion this Court should quash the appellant's conviction on the grounds that the Crown Prosecutor's address could have led to a possible miscarriage of justice. 56 Firstly, it was completely inappropriate for the Crown to rely upon the absence of any cross-examination of the complainant or the absence of relevant cross-examination of Ms Shirley Mullane, to ask the jury to infer that they have always given consistent versions. The Crown Prosecutor was asking the jury effectively to conclude that the statements which these Crown witnesses made to the police contained material which was consistent with the evidence which they had given in respect of crucial aspects of the Crown case. Of itself, that was a clear breach of the appropriate conduct expected of a Prosecutor and of the principles enunciated by Gleeson CJ in Birks' case. However, it was exacerbated by the fact that, having made the submission, the Crown Prosecutor unfavourably compared the evidence of the appellant's son Tony, which he contended contained an element of inconsistency absent from the consistency of the evidence of the two crucial witnesses for the Crown. 57 Further, the reliance by the Crown Prosecutor on the absence of any cross-examination directed to the complainant to establish that she had some type of psychiatric or psychological condition, which included self-mutilation, was again completely inappropriate. There was absolutely no evidence of a psychiatric nature before the Court or any other nature to the effect that the complainant may have suffered from a tendency towards self-mutilation. Thus to seek to gain support for the Crown case by referring to the fact that no cross-examination along these lines was directed to the complainant was inappropriate. Indeed, it involved a complete reversal of the onus of proof. As I indicated. It was not the responsibility of the accused to raise a reasonable doubt, it was the responsibility of the Crown to establish beyond reasonable doubt in the totality of the evidence that the accused was guilty. There was unfortunately more than one occasion on which the Crown Prosecutor sought to invert the onus of proof, as has been made clear by the emphasised passages which I have already quoted, and there is no need for me to repeat them. 58 Further, it was quite inappropriate for the Prosecutor to condemn the manner in which counsel for the appellant conducted her cross-examination of the complainant. Anyone experienced with litigation would have an appreciation that the cross-examination of the complainant would necessarily be charged with difficulty. If trial practice permitted one counsel criticising the manner in which the other counsel conducted his or her cross-examination, then the possibility of the jury's attention being diverted from the critical issues in the case would be significant indeed. 59 Similarly, it was inappropriate for the Crown Prosecutor to categorise the defence raised by the accused as a "cynical defence". 60 There is one further matter which, although it was not raised in submissions, warrants some comment. At an early stage of his address the Crown Prosecutor said referring to matters that were part of the case raised by the appellant: - "I know we went to clubs: I know I went to the grave side of my daughter with her; I know I went to look at houses, but, you know, we weren't boyfriend and girlfriend. Sounds like a girlfriend to me… ". [My emphasis]. That phrase "sounds like a girlfriend to me" involved an expression by the Prosecutor to the jury of his own view of the quality of the evidence given by the appellant. It is not appropriate for counsel, whether they be for the defence or for the Crown, to express their own views about the evidence, that is a matter for the tribunal of fact, particularly so where that tribunal is a jury. 61 In my view, it would have been impossible for the trial judge to have given any directions which could have rectified the possible harm which may have been done by these various breaches by the Prosecutor of the appropriate course of conduct. Regrettably, the possibility cannot be excluded that in convicting the appellant the jury were actuated, partly at least, by the inappropriate and prejudicial remarks made by the Crown Prosecutor: see McCullough at p 286. Thus the intervention of this Court is called for. 62 As has been pointed out by counsel for the Crown before this Court (and it is a valid point) as it is now the responsibility of the Crown Prosecutor to address immediately after the conclusion of the evidence, which in most cases is the case for the defence, it is often difficult for Prosecutors to collect their thoughts sufficiently to present a Crown case in as concise and appropriate a fashion as they would wish. That is a point which I have taken into consideration in evaluating the matters that have been raised in this appeal. 63 For the reasons set out above I would propose that the appeal be allowed, the conviction quashed, and that there be a new trial. 64 It has been submitted by Mr Strickland of counsel for the appellant that this is not an appropriate case for a new trial, bearing in mind the fact that the appellant has already served 2 years of his sentence. As against this, it must be noted, however, an additional term which has been imposed. 65 It has also been submitted by Mr Strickland that the quashing of the conviction was solely the result of the inappropriate behaviour of the Crown Prosecutor, and this is a relevant matter which derogates against a future trial in the circumstances. 66 Giving full weight to those matters, I nevertheless am of the view that there should be a new trial and I would so propose. 67 SPIGELMAN CJ: I agree with the orders proposed by Acting Justice Carruthers, and his reasons. 68 SPERLING: I also agree. 69 SPIGELMAN CJ: The orders of the Court are as indicated. 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. 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