New South Wales Court of Criminal Appeal CITATION: RLT v Regina [2006] NSWCCA 357 This decision has been amended. Please see the end of the judgment for a list of the amendments. HEARING DATE(S): 28 September 2006 JUDGMENT DATE: 10 November 2006 JUDGMENT OF: Sully J at 1; Adams J at 88; Hall J at 106 DECISION: Appeal against conviction allowed; Conviction quashed and ; (by majority, Adams J dissenting) that there be a new trial of the appellant Crimes Act 1900 (NSW) LEGISLATION CITED: Criminal Appeal Act 1912 (NSW) Evidence Act 1995 M v The Queen (1994) 181 CLR 487 McKnoulty v Reg (1994) 77 A Crim R 333 King v The Queen (1986) 161 CLR 423 CASES CITED: Reid v The Queen [1980] AC 343 Reg v MNZ [2005] NSWCCA 278 Winningham v The Queen (1995) 69 ALJR 775 RPS v The Queen (2000) 199 CLR 620 MWJ v The Queen [2005] HCA 74 PARTIES: RLT Regina FILE NUMBER(S): CCA 2006/1446 COUNSEL: P. Miller - Crown P. Hamill SC/A. Williams - Appellant SOLICITORS: S. Kavanagh - Crown S. O'Connor - Appellant LOWER COURT JURISDICTION: District Court LOWER COURT FILE NUMBER(S): 03/21/3123 LOWER COURT JUDICIAL OFFICER: Maguire DCJ LOWER COURT DATE OF DECISION: 17 June 2005 IN THE COURT OF CRIMINAL APPEAL 2006/1446 SULLY J ADAMS J HALL J 10 November 2006 R.L.T v REGINA Judgment SULLY J: [NOTE: These proceedings attract the non-publication provisions of section 11 of the Children (Criminal Proceedings) Act 1987 (NSW) ] Introduction 1 On 5 October 2004 the appellant was presented in the District Court sitting at Campbelltown for trial upon an indictment containing two counts. 2 Count 1 charged that between 16 November 1998 and 5 May 1999 at Lumeah, the appellant had maliciously wounded a named complainant with intent to do grievous bodily harm. Such an offence contravenes section 33 of the Crimes Act 1900 (NSW), and attracts upon conviction a statutory maximum penalty of imprisonment for 25 years. 3 Count 2, which was preferred in the alternative to Count 1, charged that at the same time and place the appellant had maliciously wounded the same complainant. Such an offence contravenes section 35(1)(a) of the Crimes Act and attracts upon conviction a statutory maximum penalty of imprisonment for 7 years. 4 The applicant, upon being thus arraigned, pleaded not guilty to each charge. He was put accordingly upon trial by jury; and on 11 October 2004 the jury found him guilty of the offence charged in Count 1. On 17 June 2004 the appellant was convicted and sentenced to imprisonment for 10 years with a non-parole period of 6 years. The sentence is not challenged in this appeal and nothing more need be said about it. 5 By a notice dated 8 June 2006 the thirteen grounds of appeal against conviction were notified. They are: "1. The trial Judge erred in law when he disallowed the final question(s) asked of the ..(complainant's mother) .. in evidence in chief namely 'did you hold that knife and did you cut ..(the complainant's) .. penis?'. 2. The trial Judge erred in law in withdrawing from the jury's consideration the possibility that the complainant's mother caused the injury to the complainant. 3. There was a miscarriage of justice arising from the trial Judge's attacks on, and criticisms of, counsel appearing for the appellant at the trial. 4. The trial Judge erred in law in his approach to the rule in Browne v Dunn and in his application of the authority of this court in R v Birks. 5. There was a miscarriage of justice arising from the trial Judge's misunderstanding of the role of defence counsel and misunderstanding of the defence case. 6. The trial Judge erred in law in failing to discharge the jury on the application of defence counsel. 7. The trial Judge erred in failing properly to direct the jury as to the forensic disadvantage caused to the appellant by the delay in the complaint and the investigation. 8. The trial Judge erred in failing properly to direct the jury that the delay in making any complaint was a matter which could be taken into account in assessing the credibility of the complainant. 9. The trial Judge erred in making comments in the summing up calculated to undermine the impact of any warnings relating to the delay in the complainant and the investigation. 10. The trial miscarried as a result of impermissible cross-examination by the learned Crown Prosecutor of ..(the complainant's mother). 11. The trial Judge failed properly and adequately to direct the jury in relation to the questions of malice, intention and grievous bodily harm and effectively took away from the jury the possibility of finding the appellant not guilty of the first count but guilty of the alternative count. 12. The trial Judge erred in law by rejecting the tender of a Department of Community Services assessment report on the grounds that it was not relevant. 13. The verdict is unreasonable and cannot be supported having regard to the evidence." 6 At the inception of the hearing before this Court learned senior counsel for the appellant applied for, and the Court granted, leave to add a fourteenth ground, namely: "14. In the alternative, there was a miscarriage of justice caused by the incompetent representation of the accused by counsel appearing at the trial and in particular: (i) Counsel's failure to invite the learned Crown Prosecutor to call a material witness, namely .. (the complainant's mother). (ii) Counsel's failure to seek leave to cross-examine the witness ..(the complainant's mother). (iii) The failure to put matters material to the 'defence' of 'accident' to the witnesses for the Crown. (iv) The failure to put to the complainant that the injury was self inflicted or sustained by accident. (v) The failure to cross-examine medical witness as to the possibility that the wound was caused in the manner described by the. (complainant's mother). (vi) The failure to comply with the requirements of the 'rule in Brown v Dunn'. (vii) The failure to cross-examine the complainant and other witnesses as to the delays in the complaint and the investigation and the failure to seek proper directions in relation to that delay. (viii) The failure to seek proper directions in relation to the concepts of malice and grievous bodily harm." 7 The thirteenth ground of appeal, were it to be upheld, would entitle the appellant to be acquitted outright. It will be expedient, therefore, to deal first with that ground of appeal. 8 Each of the remaining grounds, if upheld, would entitle the appellant, prima facie but subject to any appropriate application of the proviso to section 6(1) of the Criminal Appeal Act 1912 (NSW), to an order for a new trial. A great deal of argument at the hearing of the appeal was directed to the conduct at trial of the learned presiding Judge, and to the complaints made in connection with that conduct upon the bases notified in the connected grounds 3, 4, 5 and 6. It will be expedient, therefore, and should ground 13 not succeed, to consider first those four grounds. Should any one of those grounds succeed, and a fortiori should any two or more of the grounds succeed, then I would say at once that in my opinion the proviso could not appropriately defeat an order for a new trial. In that event there would be no practical utility in this Court's now adjudicating any of the remaining nine grounds of appeal. 9 Before looking at the detail of the competing cases at trial, it is convenient to note the relevant chronology, which I adapt from the helpful chronology that is set out at the commencement of the Crown's written Summary of Trial. "1.1 On 4 February 1999 , the complainant received a cut to his penis. 1.2 On 7 December 1999 , --- --- the complainant's mother, attacked her mother --- --- with a knife, and following her arrest, the complainant was placed in .. (the complainant's grandmother's) ..care. 1.3 On 12 January 2000 , the complainant's grandmother, --- --- ,discovered the scar as the complainant was getting out of the shower. 1.4 On 13 January 2000 , … (the complainant's grandmother) … took the complainant to see Dr. Phillip King and she also notified the Department of Community Services (DOCS). 1.5 On 11 July 2000 , … (the complainant's grandmother) … spoke to Senior Constable Hinds at Fairfield Detectives Office. Senior Constable Hinds referred the matter to the Joint Investigation Response Team (JIRT). The JIRT declined to investigate the matter. 1.6 On 23 May 2001 , Dr. Patricia Brennan examined the complainant and found a scar traversing half the circumference of the complainant's penis. 1.7 On 30 May 2001 , Dr. Arthur Jarrett examined the complainant and saw the raised scar measuring 4cm by 2mm on the complainant's penis. 1.8 On 20 June 2001 , the complainant was interviewed by the JIRT. 1.9 On 21 November 2001 , the appellant was arrested and charged." 10 The complainant was born on 5 February 1995. The Crown case was that the relevant wounding of the complainant had taken place on 4 February 1999, that is to say on the eve of the complainant's 4th birthday. In January 2000 when, according to the complainant's grandmother, she first noticed the post-wounding scar on the complainant's penis, the complainant was aged a little less than 5 years. On 20 June 2001, the date of the electronically recorded interview of the complainant by the investigating police, the complainant was aged about 6 years and 4 months. 11 The evidence at trial left no doubt that the complainant's penis had in fact been cut in some way and by someone. There was no real contest at trial about the wound's having been suffered on 4 February 1999. There was no evidence, other than that of the complainant himself, that identified the appellant as the person who had inflicted the wound. 12 The appellant, from the time at which the complainant's accusation was first put to him, denied simply, completely and consistently that he had inflicted any wound upon the complainant's penis. The appellant's case was that on 4 February 1999, the alleged date of the wounding, he had been at work. He denied simply, completely and consistently that he had been present when the cut had been inflicted. The appellant did not give evidence at his trial; but he did call two witnesses, one of whom was the complainant's mother, in support of his alibi. Ground 13 13 The guiding principles are now well entrenched. They are as stated by the High Court of Australia in M v The Queen (1994) 181 CLR 487 at 494, 495: "If the evidence, upon the record itself, contains discrepancies, displays inadequacies, is tainted or otherwise lacks probative force in such a way as to lead the court of criminal appeal to conclude that either making full allowance for the advantages enjoyed by the jury, there is a significant possibility that an innocent man has been convicted, then the court is bound to act and to set aside a verdict based upon that evidence. …………………………….. (T)he ultimate question must always be whether the court thinks that upon the whole of the evidence it was open to the jury to be satisfied beyond reasonable doubt that the accused was guilty." 14 The application of these principles to the present conviction entails a consideration of whether upon the whole of the evidence at trial it was open to the jury to be satisfied beyond reasonable doubt that: [1] It was the appellant who actually inflicted the cut to the complainant's penis. [2] That the inflicting of that cut amounted to a wounding. [3] That if the cut did amount to a wounding, then the wounding was done with malice. [4] That if the cut did amount to a malicious wounding, then that act, when done, was accompanied by an actual intent to do grievous bodily harm to the complainant. 15 Evidence was given by Dr. Patricia Brennan, who described her practice as being that of "a forensic physician working specifically in the sexual assault of children, adolescents and adults". Dr. Brennan examined the complainant on 23 May 2001. She described "a scar at the front of the penis, at the base of the penis where it takes off from the bottom of (the) abdomen. It was a white scar and it traversed about half the circumference of the penis.". At a later point in her evidence Dr. Brennan was asked whether she would expect that a cut such as she had earlier described would "bleed profusely". She replied: "I would indeed. It's a full thickness cut to the dermis. It would bleed significantly". And in her next answer: "If you cut through the thickness of this skin and this volume of tissue on the penis of a four year old child it will bleed extensively until clotting sets in". 16 Evidence to the same effect was given by Dr. Arthur Jarrett, a specialist in paediatric medicine with extensive experience. Dr. Jarrett expressed the opinion that: "………… the scar that I saw was a scar suggestive of quite a deep injury ………………."; and "…………. I would suppose that a very superficial cut on his penis would normally heal with very little heaping up of tissue, whereas the whole 4 centimetres of his scarred penis was somewhat heaped up, suggestive of a rather deep injury". 17 It is settled law that a wounding by cutting requires that the continuity of the skin must be broken, and that it is the whole skin and not the cuticle or upper skin which must be broken. 18 In my opinion the medical evidence which I have quoted was credible evidence which it was open to the jury to accept; and which, if so accepted, was capable of establishing beyond reasonable doubt the necessary element of a wounding. 19 There was a strenuous effort made at trial to persuade the jury that it was a least a reasonable possibility that the cut had been inflicted by the complainant himself. It will be necessary to return presently to that line of argument. Assuming, however, that the wound was made by someone other than the complainant, then it seems to me to be clear that so to cut the penis of a 4 year old child would be an act which a reasonable jury properly directed could readily and correctly find to have been an act satisfying simultaneously the necessary element of malice and of intent to inflict grievous bodily harm in the accepted legal sense of really serious bodily injury. The given facts of this case would fit, in my opinion, squarely within the views expressed by this Court, (Hunt CJ at CL, Smart and Levine JJ), in McKnoulty v Reg. (1994) 77 A Crim R 333 at 344 per Hunt CJ at CL: "In outlining the ingredients of the charge, the judge correctly told the jury that, if the appellant intended to inflict grievous bodily harm, he had acted maliciously. That is all he needed to have said, and any further reference to the definition of 'maliciously' was not only unnecessary but unwise in so far as it may confuse the jury upon the separate (and independent) issue of specific intent ……….. . The usual direction in relation to such a specific intent is that a person's acts may themselves provide the most convincing evidence of his intention. An intention to inflict grievous bodily harm may be inferred from the nature of the act which is done …………………..". [citations of authority have been omitted] 20 It thus becomes necessary to engage the one outstanding question for this Court, namely the question whether it was open to the jury to be satisfied beyond reasonable doubt that the wounding had been done by the appellant. 21 There were only three possible sources of information on that topic: the appellant himself; the complainant; and the complainant's mother. As previously noted, the appellant did not give evidence; but there was evidence in the Crown case of simple, complete and consistent denials by the appellant that he had ever been present at the time of the wounding, let alone that he had actually done the wounding. 22 The complainant gave evidence-in-chief by means of the playing to the jury of an edited version of a video recording of an interview by the police with him on 20 June 2001. This item was admitted as an exhibit and went to the jury upon the jury's retirement to consider its verdict: a course which could not now be followed in the light of the decision of this Court in Reg v NZ [2005] NSWCCA 278. At the hearing of the present appeal this Court was informed that the actual exhibit had been lost. Attempts have been made to locate the exhibit, but they have been fruitless. It proved, however, to be possible to prepare and to provide to the Court an agreed reproduction of Exhibit C, so that the Court has had as good an opportunity as did the jury at trial of both seeing and hearing the complainant as he gave the answers constituting his evidence in chief. That this consideration might be one of some importance is apparent, in my opinion, from some of the opening exchanges in the interview: "Q16 What is on the wall there? A Um, numbers. Q17 What were you doing before with the numbers? A Trying to reach all of them. Q18 O.K. Did you reach them? A. Ah, I couldn't reach five and six. Q19 O.K. That was a pretty good effort I thought. Well what we are going to do today, mate, is we are going to have a little bit of a talk about a few things O.K. so what I could ask you to do if, if, if that is all right with you is to give me as much attention as you can? A Yeah. Q20 All right and we will have a look at these things on the walls later on, all right but at the moment I just, I want to have a bit of a talk to you and I was wondering if you might just be able to sort of sit still and answer some, maybe answer some questions for me and tell me a few things. A Yeah. ……………………………………………………………………. Q45 All right. Did you know why you came in here today, mate? A Ah --- Q46 Can you tell me why you came in here? A What …(the appellant) … done to me. Q47 What …(the appellant) … done to you? I will tell you what, mate. See this little black box here --- A Mmm. Q47 --- that little black box records our voices, O.K so what we might do is we might just leave the car there for a second. Is that all right? A. Yeah. Q48 Because if we, if we keep wheeling it up and down past there all the time all the people that are listening to, all Terry and Terry will hear is the car. They won't hear us talking. Is that all right? A Yeah. 23 The interviewer attempted, quite properly, to establish whether the complainant understood the difference between telling the truth and telling a lie. This was the result: "Q 28 That is O.K. That is O.K. You know you are 6 years old and that is really good. You knew, you knew that your birthday was the 5th of Feb. That is excellent. So, mate, do you know the difference between what the truth and what a lie is? A Yeah Q 29 Can you tell me what the truth is? A Yes. Q 30 What is the truth? A About what? Q 31 Well, do you know the difference between the truth and a lie? A (no audible reply) Q 32 Do you know what a lie is? A Uh-uh Q 33 O.K. Well if I was to say to you that, that on the table here ---- A Mmm Q 33 ---- there is a police car ---- A Mmm Q 34 ---- is that right? There is, there is a little brown, sorry little cardboard police car? A Mmm Q 35 What colour is this car here? A Blue and white. Q 36 What colour is this car here? A Orange, white and black. Q 37 O.K. So if I took that police car away from there and I took that car away from there how many cars are left on the table now? A One. Q 38 If I told you there were three cars there would that be the truth of would that be a lie? A That would be a lie. Q 39 Why would it be a lie? A 'Cause there's not three on there. There's only one. Q 40 Good boy and, and what happens if you tell a lie? A I don't know. Q 41 You know what happens if you tell a lie? A (no audible reply) Q 42 Well can we make, can we make an agreement between you and I. Can we, can we promise to each other that we will tell each other the truth today? A Yeah Q 43 O.K. We won't tell any lies? A Yeah Q 44 Is that O.K? A (no audible reply)" 24 The interviewer next took the complainant to the relevant event: "Q 49 So do you want to tell me what … (the appellant) … did to you? A Yeah. He tried to cut, cut my ding dong off and it was about that big knife --- Q 50 Mmm. A --- and um, he baseball batted me with a baseball bat on the head --- Q 51 Yes. A --- and with a belt he belted me on the head and on the bum and he bashed me and he punched me in the belly real hard. Q 52 Really? Why did he do all that, mate? A I don't know. Q 53 That is --- A And I was about only like 2 or 3." 25 The next question was: "Q 54 Really? Tell me a little bit about yourself, mate. Where do you live now?" and there ensued questions designed to identify various persons, including the appellant, of whom the complainant said that they first met "when I was living at Lurnea" . The ensuing questions and answers to and including question and answer 83 read as having been somewhat disjointed. They are otherwise of no particular present significance. 26 The questioning turned next to the actual allegation upon which the Crown case against the appellant essentially depended. I propose to quote the entire sequence of questions and answers because this is a case, if ever there was one, where overall context is crucial to a fair analysis of particular questions and answers: "Q 84 So tell me a little bit about when you said that …(the appellant) … tried to cut your ding dong off. What do you mean by your ding dong? A This, yeah and um --- Q 85 Do you have another, do you have another word for ding dong? A Penis Q 86 O.K. So tell me a little bit about when …(the appellant)… tried to chop your ding dong off? A Um, he tried to cut it off and then um, and mum, and then he ran and then he called the police on me. Q 87 He called the police on you? A (no audible reply) Q 88 Why? A I don't know and then mum put ice --- Q 89 So where were you when it happened? A At Lurnea Q 90 At Lurnea? Who was in the house or who was, was it a unit at Lurnea you said that you used to live there or was it a house at Lurnea? A I was living there with my mum and dad, mum and …(the appellant). Q 91 O.K. Was it a house that you were living in or was it a flat? A A house. Q 92 A house was it? A Yeah Q Did anyone else used to live there? A No. Q 94 No. A Only next door neighbours. Q 95 O.K. So how long ago was it that you lived at Lurnea, do you know? A Before Christmas, heaps before Christmas. Q 96 Was it? How many Christmases do you reckon? A. Before lots of Christmases. Q 97 How old were you? Do your remember how old you were? A Two or three, I don't know. Q 98 Yes? A Two or three. Q 99 Do you go to school -----? A Yeah Q 100 Which school do you go to? A --- (school named) --- . Q 101 O.K. What, what class are you in there? A Um, year one Q 102 All right. When …(the appellant)… tried to cut your ding dong off were you going to school? A No Q 103 No. What were you doing then? A I was at home. Q 104 Yes. Were you, before you went to school did you go anywhere else during the day? A Uh-uh. Q 105 What did you do with yourself? A I just stayed at home. Q 106 Did you? A And I had millions of cars. Q 107 Heaps of cars, you like your cars don't you? A Yeah. Q 108 So who was, who was at Lurnea the day …(the appellant)… tried to cut your ding dong off? A It was just …(the appellant) … and Mum and me, that's all. Q 109 Yes. What happened mate? Can you tell me about it? A. Um. Q 110 Can you tell me about what happened that day? A. The police didn't um, take me. They only just drive off. Q 111 I don't think the police would want to take you away, mate. I don't think you have done anything wrong. You want to tell me, tell me a bit about what happened before the police got there? A He was punching me in the belly. Q 112 Yes. Why was he doing that? A. Because I was, I was only 2 --- Q 113 Yes. A --- 'cause I was wetting the bed --- Q 114 Yes. A --- and all kids, when they're 2 they, they don't know --- Q 115 Yes. A --- to go to the toilet. A 116 Yes. So tell me what happened, mate. Tell me about that day. You tell me as much as you can remember about that whole day? A Oh --- Q 117 Remember I said about the cars and the microphone. A Oh yeah. Q That is all right. We might just put it back over here again and let it sit there for a sec. A ……. Q Pardon? A ….. imagine if it went up a big jump and it went up that big jump and it landed in the, with a tissue box, a big tissue box. Q 120 I don't think it would run over that jump. I think it would stop it, that jump. A It would just go up and down, upside down, vroom, all in there. A 121 That would be the end of it. So tell me, tell me a little bit about that day. Tell me whatever you can remember about that whole day about …(the appellant)? A That's all I can remember. Q 122 Do you remember what you were doing in the morning that day? A Um, nothing else. Q 123 No. What about when what you said, you said that you wet the bed and …(the appellant) … was punching you. Why was he punching you? A I don't know. Q 124 Hey? A I don't know. Q 125 You said something about wetting the bed? A. ' cause I was only 2. Q 126 Yes. That is O.K. So did something happen that morning? A Uh-uh. Q 127 What, do you remember what time of the day …(the appellant)… tried to cut your ding dong off? A In the afternoon Q In the afternoon? Tell me a little bit about how he tried to cut it off? A With a knife. Q With a knife? What sort of knife? A I don't know. Q 130 Do you remember what the knife looked like? A Uh-uh, but I know how big it was. Q 131 Yes? About that long? Q Yeah Q 132 So if you put your orange car there how, how big was it just compared to your orange car? A (no audible reply) Q 133 O.K. So it is a bit, little bit bigger than the orange car? A (no audible reply) Q 134 What sort of handle did it have, do you remember? A A red, no not a red, a black handle. Q 135 Yes. O.K. What sort of, when you say the whole thing, when you say it was about that long do you mean the, the, the blade or do you mean the whole knife? A The whole knife. Q 136 The whole knife? What colour was the rest of the knife? A Just silver. Q 137 Silver? O.K. Where did he get the knife from? A I don't know. Q 138 When did you first see him with the knife? A When he was coming up the bedroom. Q 139 When he was which sorry, I didn't hear you? A When he was coming up the bedroom. Q 140 So where were you then when he was coming up? A I was in bed. Q 141 O.K. What were you doing in bed? A Nothing Q 142 So when did you first see …(the appellant)… then with the knife? Where were you when you saw him with the knife? A I was in the bedroom. Q 143 Were you? Was anyone else there? A No, there was only mum. Q 144 Yes. Where was mum? A There. Q 145 Yes. In the bedroom? A Yeah. Q 146 What happened? A No, she was with um, ...(the appellant). Q 147 She was with …(the appellant) … was she? So what happened, mate? What happened when he came up to the bedroom? A He tried to cut it off. Q 148 What did he do? Do you remember? A He went like that. Q 149 Yes. He went, so when you, when you say he went like that and you are rubbing your hand on the table like on the edge like that. Is that what he did? A (no audible reply) Q 150 What did he, what was he using to try to cut it off? A A knife. Q 151 A knife? What were you wearing? A Um, no pants on. I only had a, my T-shirt on. Q 152 O.K. O.K. Did you have any, do you remember what sort of T-shirt it was? A. Uh-uh. Q 153 How come you only had a T-shirt on? Hey? A I don't know. Q 154 So how come you didn't have any pants on? A I don't know why. Q 155 Did you have any, any undies on? A Uh-huh. I don't know why. Q 156 So you just had a T-shirt on but no pants? A Mmm. Q 157 Where were you when he came into the room? You said you were in bed? A. Yeah. Q 158 What were you actually doing in bed? A. Um, nothing just laying there. Q 159 Yes. So tell me when …(the appellant)… came into the room, did he come in with anyone? A Mmm, mum. Q 160 Your mum? Do you remember what …(the appellant)… was wearing that day? A No. Q 161 No. Did he say anything to you? A Oh, yes, he did but I can't remember. Q 162 What do you reckon he said? A I don't know. Q 163 So what did he do when he walked into the room? What, where, he walked in, did he walk through the door? A Um, yeah. Q 164 Yes. What did he do then? A Tried to cut it off. Q 165 Did he say anything to you? A Um, oh yeah he did but I can't remember. Q 166 That is all right. Did he, did he walk over to you and did he grab you? A No, he just walked over. Q 167 Yes. What did he do after he walked over? A He tried to cut it off and then ran and called the police. A 168 He ran and called, he ran and called the police? A (no audible reply) Q 169 Why did he run and call the police? A Only to try and get me in trouble. Q 170 Right. So when you said he was, he was trying to cut your, your, ding dong off, did he actually cut your ding dong? A (no audible reply) Q 171 He did. What happened that, what happened? A When he ran and called the police mum put ice --- Q 172 Did she? What did mum, did mum say anything? A Um --- Q 173 No? What did you think when, when he tried to cut your ding dong off when he actually cut it, what did you think? A Um, I was, he told me he was gunna go and get the police. Q 174 Yes. Whereabouts on your ding dong did he actually cut you? A Um, here. Q 175 O.K. When he ran off did he say anything when he, when he, when he walked off to call the police? A No, he didn't say anything else. Q 176 O.K. What happened after that? A And then the police came and then they said, No, and then just drived away. A 177 Did you actually see the police? A Um, no. Q 178 No. How did you know the police came to your house? A Um, yeah, I did see them only a little bit. Q 179 Did you talk to them? A (no audible reply) Q 180 Did they come into the house? A No. Q 181 Who spoke to them? A ---(the appellant). Q 182 What did he say to them? A He said, Take this kid away like that. Q 183 Really? What did the police say? A Said, No, they said --- Q 184 So where were you when, when he actually said that? A In, downstairs. Q 185 Yes. Where was mum? A She was downstairs with me too. Q 186 So, so when you say that mum was downstairs with you too, what about the ice that mum was putting on your ding dong. What happened with that? A Um, it ran out. Q 187 Really? What did she do then? A Um, nothing else. Q 188 Did you go and, did you speak to anyone else about it? A Uh-uh, only Terry. Q 189 O.K. Did mum take you to the doctor? A No. Q 190 No. What about ---(the appellant)? A No. Q 191 No. Didn't take you to the hospital? A ….. Q 192 What happened, what happened after the ice ran out? What did mum do then? A It was back together and then I walked and then um, um, it started to get dark and then the next day was my birthday. Q 193 Really. Wow. How old were you? A 4 Q 194 Were you 4 for the birthday or were you already 4? A 4 on the birthday. Q 195 O.K. A And when, when my birthday was um, I was 4 for a long time but not before I was, I was 4 for a long time till Christmas and I was 5 and then um, and then I went to school and then we, and then I had my birthday again. Q 196 Good boy, that is good. A And I turned 6. Q 197 So now you are 6. You are a big boy at 6 aren't you? So when you said that it was your birthday was the next day you said that you went for a walk and it was dark? A …… Q 198 Can you tell me a bit about that? Tell me you said something about it being dark? A I didn't go for a walk. Q 199 No? I might have just got that wrong. A ….. Q200 So did mum and …(the appellant)… say anything to you about it? A Um, uh-huh." 27 The interviewer then spoke to two people described in the transcript as "the two Terry's". And thereafter resumed the interview thus: Q 205 O.K. You know when you were talking to me, Terry has just asked me, you know when you were saying about the knife and you told me how long it was and you told me that it had a black handle and you said that it was, what colour blade was it again? A Silver. Q 206 Silver. Do you know what the, the blade actually was, what type of blade it was? Do you know what, do you know what I mean when I say that? A I don't know what type of blade it was. Q 207 O.K. O.K. There is something about, was somebody using the knife to do something else before they, before they came and saw you? A. Uh-huh. Q 208 No. Nothing? A Nothing. Q 209 So, sorry Terry, you have another question? When, before …(the appellant)… came up the hallway to your room there was something about he was cutting some vegetables or whatever. Do you know anything about that? A No. Q 210 No, that is O.K. That is O.K. Tell me a bit about some of these other things that …(the appellant)… used to do? A When I was oh, this is something else. What the …(the appellant)…done what I did --- A 211 Yes. A --- but I didn't know, I, I done it um, I was trying to get to feed the rabbits with a net like trying to catch 'em -- Q 212 Yes. A --- on the net --- Q 213 Yes. A --- and then I cut up some carrots --- Q 214 Yes. A --- and then I got, and then I cut one of my finger, fingers and then I couldn't find a bandaid. Q 215 Really? Give us a look at your finger and did it leave a mark on it? A Uh-huh. Q 216 No. A I can't see any mark. Q 217 How long ago did you do that? A Heaps long ago. Q 218 Yes. Heaps long ago and did you tell anybody about it? A Only Terry. Q 219 Only told Terry about that did you? A Mmm. Q 220 Did you tell mum or …(the appellant)… that you cut your finger with a knife? A Mmm. Q 221 What did they say? A They found a bandaid for me and then put it on. Q 222 Did they, and that made it – did that make it better? A. Yeah. And shortly thereafter: "Q 232 Is there anything else you would like to ask, Terry at the moment? You know when you were saying that, that the day that …(the appellant)… cut your ding dong you said that the police turned up? A Mmm. Q 233 Do you remember, can you tell me about those police people? Can you tell me about them? What do you remember? A I only remember not seeing them. Q 234 You don't remember if you saw them? A Only remember seeing them. Q 235 O.K. What were they, what, what were they girls or boys? A Boys. Q 236 Were they both boys or I should say was, how many police were there actually, that is what I should say? A One. Q 237 Just one? He was a boy was he? A (no audible reply) Q 238 O.K. Did you see what the, what car they came in? A A police car. Q 239 Yes. What sort of car? Was it like your car here? Was it like your little cardboard moneybox car there? A. Yeah. Q 240 It was, was it? A But it didn't have that on the top of it. Q 241 No it didn't, no I'm sure. A On there." And a little later after some questions and answers about household pets: Q 258 O.K. You remember when we were talking about …(the appellant)… and he cut your ding dong --- A Mmm. Q 259 -- you said that you, you were in your room before he came up? A Yeah. Q 260 Did you see, did you see …(the appellant)… that day before you went up to your room? A Um, yes. Q 261 Yes. Did you talk to him that day? A (no audible reply) Q 262 No. What was, what was …(the appellant)… doing that day? A Oh, just walking around, that's all. Q 263 Yes. Was this before or after he tried to cut your ding dong? A Before Q 264 Before. O.K. So what was he walking around, what was he doing when he was walking around? A I dunno. Q 265 Was he talking? A Um, um ….um I don't know what he was doing. Q 266 Had you, had you spoken to him at all? A (no audible reply) Q 267 No. Was he, was he happy or sad that day? A Happy. Q 268 Happy. How do you know he was happy? A I don't know. Q 269 What made you think he was happy? A I don't know Q 270 O.K. Is there anything else you remember about that day? A Uh-huh. Q 271 Do you, do you know why he would have come into your room to try to chop your ding dong off? A Cause I wet the bed. Q 272 Because you wet the bed. Had you wet the bed before? A Uh-huh. Q 273 Had …(the appellant)… spoken to you before about wetting your bed? A Uh-huh Q 274 No. Did you go, actually go to sleep that day? Were you asleep? A Uh-huh. Q 275 You didn't have a sleep? A (no audible reply) Q 276 No. Why did you go up to your room for? A Oh, just to find some toys to play with. Q 277 O.K. How long had you been up there for? A Oh, I don't know, I don't know. Q 278 You don't know? What about …(the appellant)? Does …(the appellant)… have a job? A Um, when he was living at Lurnea. Q 279 Yes. A. No. Q 280 No. What did he used to do during the day? A Oh, nothing. Q 281 Nothing? A Except only ….. at the pub and that. Q 282 Yes. Which pub did he used to go to? A I don't know. Q 283 How did you know he used to go to the pub? A 'Cause he used to take me with him. Q 284 Really. What did you used to do when you were at the pub? A. Nothing. Q 285 No. How old were you back then when you used to go to the pub with him? A 3 and 2." 28 The complainant was cross-examined upon this taped evidence-in-chief. The entire cross-examination was: "McNAMARA: Q. Hello ----. A Hello. Q The very first person you told about your ding dong being cut was your Nan, --- ---, is that true: A. Yes. Q. The very next day your Nan took you to see Dr. Phillip King is that true? A I'm not sure. Q Do you remember going to see a doctor? A Yes. Q And was that the day after you told Nan about your ding dong being cut? A. Yes. Q. I put it to you ---- that …(the appellant)… was not the person who cut your ding dong. Do you agree with that or disagree? A. Disagree. Q I put it to you that …(the appellant)… was not even there when your ding dong was cut, do you agree or disagree? A Disagree. Q Your mum's name is ---- ---- is that correct? A Yes. Q Do you love your Mum? A Yes." There was no re-examination. 29 Two days later the complainant was recalled at the request of the appellant's counsel (who was not, it should be noted, counsel for the appellant in this Court), and was further cross-examined. The method of the further cross-examination was to put to the complainant a succession of propositions taken from evidence earlier given by the complainant's mother. Generally speaking, the complainant was asked as to each proposition whether he agreed or disagreed; and generally speaking he answered: "disagree". 30 The complainant did agree that his mother had cleaned and dressed the wound but had not put any covering over it. The complainant denied that he had made the original cut worse by picking at it. He could not remember any scab, or having seen any blood from the cut. There was, once again, no re-examination. 31 The complainant's mother gave evidence. She was called by then counsel for the appellant. The Crown, as I understand from the available material, was unwilling to call her because she was uncooperative. 32 The mother gave evidence that she was living in a de facto "relationship" with the appellant; a liaison that had been on foot since prior to January 1999. She said that on 4 February 1999 the appellant had gone to work in his normal routine way. She had gone, at about 5.30 p.m to pick up the appellant at his workplace and to drive him home. On this particular day she had gone to collect the appellant: "…………… because (the complainant) had cut himself and I wanted to explain to him what he'd done". 33 Invited to give her narrative of what had happened in connection with the cutting of the complainant's penis, the mother gave a version of having walked into the complainant's bedroom "about lunchtime". The complainant was standing next to his bed. He was wearing "………… just normal shorts and a shirt, summer-time". Her evidence proceeded thus: "A. I walked into the room. His back was turned to me.- like sort of not turned to me but sideways. He had a knife in his hand, had it near his groin. I looked down and he had his pants down to his ankles. I yelled at him to stop because he had the knife in his hand on his penis. As I yelled, "No, stop, drop it", he like went to drop it but as he was like, letting it go, sort of slipped a bit and he cut his penis. Q. Sorry, I didn't hear that. A. As I told him to stop and to drop the knife and to let it go, because it was very rushed at the time, I was very emotional because he had a knife in his hand, I told him to stop and drop it. As he was dropping it, he sort of jumped a little bit and cut as he was dropping the knife. Q. Can you take it more slowly than that? How did it – was the knife in his hand when -- A. Yes, he had his knife in his hand. HIS HONOUR: Q. Which hand? A. In the right hand. He was standing sideways to me but a little bit back turned to me. I seen the hands like that, just the tip of the knife." 34 She went on to say that the cutting of his penis had left the complainant "shocked" and "……… crying. He was upset, very upset"; but he had no difficulty in talking to her. She attended by herself to the cut which she thought was "…………… only a small cut". She cleaned the cut "….. with some Betadine and disinfectant and put some micro foil (?) on it so that it was like a bandaid". She had not sought outside help because "….. I didn't want people thinking that I'd actually hurt him". 35 She was asked whether, in the wake of the appellant's arrest and charging, she had talked to the appellant, asking him to tell the police what had happened; or whether she had herself told the police what had happened. She replied: "A. I didn't tell them myself, no. I asked …(the appellant)… why he didn't say anything and he said because we got to get some legal representation to make sure that he doesn't get blamed for it and to make sure that I'm looked after so that I don't get into any – much trouble because it wasn't actually me that cut the penis. I didn't want – I was very scared that I was going to get into trouble for it and he tried to make sure that I was okay." 36 Counsel for the appellant then said to his witness this: "Q. I'm going to ask you a question. Do not answer my question until his Honour speaks to you. I'm just going to ask you one question. Do not answer after I ask that question. Did you hold that knife and did you cut …(the complainants's)… penis? Don't say anything." 37 This led to a very spirited series of exchanges in the absence of the jury. The Crown objected to the question upon the basis that it would amount, if permitted, to impermissible cross-examination by counsel of his own witness, if only because she could not be heard to give in-chief sworn evidence that the cut was self-inflicted, and to give simultaneously, and assuming an affirmative response to the proposed question, sworn evidence that she herself had done the cutting. 38 The learned trial Judge rejected the proposed question upon this basis: "Well I don't think it is relevant. In the context of the evidence that you have educed (sic) from her, it is not relevant". 39 Thereupon the jury returned and the cross-examination commenced. 40 The complainant's mother agreed that her evidence-in-chief had been the first mention that she had ever made of a self-inflicted cut. She denied that such version was false. She said that the original cut "………wasn't that big a cut at all. The only reason it went so big was because he kept picking at the scab and playing with it". She was adamant that she had collected the appellant from his workplace during the afternoon of 4 February 1999 and so that they had arrived home at a time around 5.30 p.m. – 6.00 p.m. She denied that she was lying in order to protect the appellant. 41 She denied that the appellant had been motivated to inflict the cut, the alleged motive being exasperation at the complainant's periodic episodes of bed-wetting. 42 The appellant's available employment records were produced by Miss/Mrs Shirley Daniels, an officer of the appellant's employer. It was unfortunately the case that the primary records, namely the actual employer timesheets, had been either lost or mislaid; and as a result, the only available record was "……… an employee verification report that our company produces". According to that record the appellant, in the week ending 7 February 1999, worked 36 hours between the Monday and the Friday of that week. The record gave no useful additional detail of, in particular, starting and finishing times; or of starting and finishing locations. 43 In drawing together, in accordance with the M principles, the whole of the foregoing evidence, it is appropriate to establish that the Crown case that the cut had been inflicted by the appellant, in order for that case to be acceptable beyond reasonable doubt, had to exclude any reasonable possibility that the cut had been self-inflicted, whether by accident or by design; or that the cut had been inflicted by the complainant's mother. 44 Dr. Jarrett, when recalled in the wake of the evidence given by the complainant's mother, summarised as follows his opinion: "I think the scenario of a one cut of the knife or of a knife drawn across the penis is far more likely than the scenario of a small cut that was then gradually made larger by continual picking by the child." 45 Dr. Brennan, when similarly recalled, re-affirmed her opinion that the scar, as she observed it, was the aftermath of an incision wound rather than a chopping wound; and that such an incision wound was consistent with a deliberate slicing movement. Dr. Brennan summarised as follows her opinion about the self-mutilation hypothesis: "I would think if you are asking me to say what I think is possible, I'd say what I said before. As a doctor under oath, you are not there to observe exactly how something takes place. You have to leave it open to possibility for a jury but as a forensic physician looking at a four year old child with a picture like this of a penis in a relaxed position with a scar right against the abdomen when the penis is not pulled out, I would think it's much more likely that this is an inflicted injury with someone with some dexterity that a four year old doesn't have in handling a knife or a penis. That is my medical opinion." 46 The veracity and the reliability of this body of medical evidence was not challenged in cross-examination and was not contradicted by other specialist medical evidence. That being so, it was in my opinion well open to the jury to reject as a reasonable possibility that the complainant had cut his own penis. 47 That left open as possibilities that either the appellant, or the complainant's mother, had inflicted the wound. It was, however, not open to the jury to consider and to reject as a reasonable possibility that the mother had inflicted the injury. This was so, not because the reasonable possibility of the mother's having been the assailant had been properly raised and properly ventilated as an issue at trial, but because the jury was instructed in the most blunt and uncompromising terms that they were to put completely aside any consideration of that possibility. 48 The form of those instructions can be left for the moment in abeyance. The substance of those instructions, if erroneous in principle, must have caused a substantial miscarriage such as to warrant a re-trial. The substance of the instructions, if correct in principle, must entail that the relevant issue for the jury was whether there should be a reasonable doubt about the appellant's guilt by reason of there being at large a reasonable possibility that the complainant had cut his own penis. In that event, if it be permissible to say in accordance with M that it was open to the jury to conclude that the reasonable possibility of self-injury had been excluded, then it must have been open to the jury, if the substance of the complainant's own evidence were to be accepted by the jury, to conclude beyond reasonable doubt that only the appellant could have inflicted the wound. 49 The submissions put for the appellant criticise the reliability of the evidence given at trial by the complainant. I think that there is force in at least some of the criticisms thus made: for example, the very young age of the complainant; the absence of prompt complaint; the delay between the date of the wounding and the date of first complaint to the proper authorities; the impression which is given clearly, in my opinion, by the contents of the reproduction of the tape, Exhibit C, of a young child constantly distracted and volunteering, from time to time, some very odd answers; and the reality of the volatile, not to say turbulently dysfunctional, family background of the complainant. 50 The problem that I have about proceeding from those criticisms to a conclusion that the jury ought to have been left with a reasonable doubt about the appellant's guilt as charged, lies in the undisputed and indisputable fact of the wounding itself. This is not a case alleging, for example, some indecent dealing, the nature of which is not susceptible of demonstration by objective expert medical examination and assessment, so that the tribunal of fact is left with an oath against oath type of case. In the present case it is beyond doubt that the complainant was not confabulating the central event. The real issue at trial was whether, starting with the proposition that only three people of whom the appellant was one were ever alleged to have been possible assailants, it was open to the jury to conclude that in the end result only one of the three, namely the appellant, was left as, beyond reasonable doubt, the true assailant. 51 I do not see why it was not open reasonably to the jury to reject, upon the basis of such evidence as was put before them on this issue, the reasonable possibility of the appellant's having an alibi. That seems to me to strengthen significantly the reasonable availability to the jury of a verdict, reached beyond reasonable doubt, of guilt as charged. 52 For the whole of the foregoing reasons, I would not uphold Ground 13. Grounds 3, 4, 5 and 6 53 The relevant facts are as follows: Immediately prior to commencement of the closing Crown address, the learned trial Judge gave the following instructions to the jury: "IN THE ABSENCE OF THE JURY HIS HONOUR: Gentlemen before either of you addresses, I have it in mind to tell the jury that there is no defence raised here that the mother inflicted this wound. And that the suggestion that she was a person capable of using a knife when it suited her on another person was not properly raised and cannot be considered. CROWN PROSECUTOR: I'd be content with that your Honour. HIS HONOUR: Do you want to say anything about that Mr. McNamara? McNAMARA: I don't wish to say anything your Honour. SHORT ADJOURNMENT IN THE PRESENCE OF THE JURY HIS HONOUR: Members of the jury before I invite the Crown Prosecutor to address you, there are two things. One Mr. McNamara has prepared a dozen copies of the calendar for 1999, 2000 and 2001. So there is one for each of you and you may find that to be of some assistance. The other thing I want to say to you is this. And it relates to the evidence given earlier in the week by the grandmother. There is no transcript currently available of the grandmother's evidence so that I am not quoting directly the questions and answers but you will remember that some questions were put to the grandmother about an occasion where she agreed that the child's mother had used a knife on the grandmother. That evidence was quite irrelevant to any consideration that you have to make in this case. There is no suggestion here that the mother of the child inflicted this wound on the child. That is not part of the defence case as advanced here and you must not even contemplate that as a possibility in this case. The case that is presented here by the Crown is that the accused man did use the knife in the way that the boy described. The case presented by the defence is firstly that the accused man did not and secondly that the boy himself had a knife in his hand at some time that day and the wound happened in the way that the mother described. The issue is of course has the Crown proved its case? They are the only two scenarios that you will be considering. There is no suggestion by anybody that the mother caused this wound. Yes. Mr. Crown." 54 The closing Crown address was then made without event; and then counsel at trial for the appellant began his address. The address covered various conventional topics, for example the burden and standard of proof; and it then took up a proposition which counsel said was illustrative of the principle that a jury is entitled to accept all, some only, or none of the evidence of a witness, in this case the complainant. Counsel quoted lengthy passages of transcript and capped off his reading by saying to the jury: "So even on (the complainant's) version mum is there in the bedroom at the time the penis was cut, so that pin-points the day as 4 February 1999." 55 Almost immediately thereafter the normal luncheon adjournment was taken. There ensued a brief discussion, about a particular proposed direction, and then this occurred: "HIS HONOUR: Mr. McNamara, I want to say something to you. McNAMARA: Yes, your Honour. HIS HONOUR: You have spent an inordinate amount of time on what is not in issue in this case, namely the date involved. It is common ground in this case that this child was injured on the eve of his fourth birthday. You've trawled through the evidence, however, it seems to me, for the only purpose of demonstrating that the mother was present. McNAMARA: No -- HIS HONOUR: On that day. McNAMARA: No, your Honour. HIS HONOUR: That's what you pointed out, the mother was present. You then came to the defence and you have not told the jury what your defence is. You have twice said to them, and you've emphasised it, that the accused wasn't there and therefore he can't give evidence about what happened, the fact being that he has led evidence about what he says happened. His case is that the child inflicted this injury on himself. You have not mentioned that and you have left open the suggestion that the mother did it. McNAMARA: I'm going to cover the mother's evidence shortly in relation to calling of the mother and her evidence. HIS HONOUR: Well be very careful, Mr. McNamara. McNAMARA: Yes. HIS HONOUR: Because you know my ruling, you know what the issues are, and any hint from you that the mother is guilty and inflicted this wound will be viewed very seriously by me. McNAMARA: That's why I've taken great care in relation to pinpointing the date. You see the indictment still shows the same range of dates. HIS HONOUR: Of course it does. The child says it was the eve of his fourth birthday and so does the mother. The Crown and the accused are agreed that it was the eve of the fourth birthday. You have spent ten minutes trawling through that evidence and the only purpose I can divine is for you to demonstrate that the mother was present, and then when you came to deal with the defence you did not allude at all to the essence of your case. You've just said the accused can't say anything about it. Now that is a hint by you that the mother did it, and that is improper. McNAMARA: I will be saying that the mother -- HIS HONOUR: Well you sort it out or I will sort it out for you in the presence of the jury. McNAMARA: Yes, your Honour. HIS HONOUR: Do I make myself clear? McNAMARA: Yes, your Honour." 56 Upon the resumption of the defendant's address counsel touched upon various topics not irrelevant, and built up to this: "As I pointed out this morning, the case, or the defence case is mainly, one, …(the appellant)… did not cut …(the complainant's)… penis. Secondly, …(the appellant)… was not present when …(the complainant's)… penis was cut and he did not therefore witness what happened. You have the alibi evidence in support of that, all the evidence that I have been through. Nevertheless he called a witness …(the complainant's mother)…to give evidence. --- ---was called as a witness that …(the appellant)… knew or was told or made aware, was present, in the house at the important times. She was called as somebody that …(the appellant)… accepted, and accepts as a witness of truth. Let me give you an example. We talked about the bank robbery earlier towards the opening of my address. Supposing somebody is accused of a bank robbery and the person accused of that bank robbery has an alibi defence. If the person who is accused of the bank robbery knows that somebody, a friend of his that he trusts, was in the bank during the robbery and can come and tell the truth and he trusts that person, naturally that person would be called to give evidence. Now on that basis --- --- was called as a witness, as a witness of truth. Now …(the appellant) was not present when any of this occurred. The defence is not suggesting that …(the complainant's mother)… had anything to do with what happened to …(the complainant's)… penis because …(the appellant)… was not there. He says, "I didn't cut …(the complainant's)… penis. I wasn't there. I wasn't even there when it happened. I did not witness what happened. And in addition to that, I've got an alibi." 57 The address concluded very shortly thereafter; and thereupon the learned trial Judge sent the jury out, telling the jury that there was something that he needed to discuss with counsel. 58 What followed, in the absence of the jury, is recorded as follows: "IN THE ABSENCE OF THE JURY HIS HONOUR: Mr. McNamara. McNAMARA: Yes, your Honour. HIS HONOUR: At the adjournment at 1 o'clock I raised with you the unfairness of the submissions you had put to that point, and I said then that if you didn't fix it up, I would. In my view you've made it worse. McNAMARA; I did discuss it with the Crown. HIS HONOUR: Well you can't blame the Crown for the way you've conducted your case. McNAMARA: No, no. HIS HONOUR: Let's just start with this brand new proposition that you've just put to the jury, that …(the complainant's mother)… was called as the witness that …(the appellant)… accepts as a witness of truth. McNAMARA: Mm. HIS HONOUR: Now you just peeled that off the wall. Where did you get that from? Firstly, he hasn't said anything at this trial. McNAMARA: Mm. HIS HONOUR: He certainly hasn't said that he accepts her as a witness of truth, and thirdly, so what? It's quite irrelevant that he might think she's a witness of truth, and it's quite improper of you to make that submission. McNAMARA: Well that may have been a slip. It was intended to cover the concern that you expressed earlier. It may have been an ill-advised way of doing it, but it was not. HIS HONOUR: And your submission since lunch started in this way, "…(the complainant's mother)… was called as a witness". McNAMARA: Mm. HIS HONOUR: And my notes are a bit sketchy. But you said something to this effect, that the accused knew she was present in the house at this important time – hint, hint, again that she's guilty. McNAMARA: Well he had been told. HIS HONOUR: There's no other basis for saying that. McNAMARA: No, there is, that he had been told and that's the reason for calling her. HIS HONOUR: But the implication is that she was called – he didn't know what she was going to say, but he expected her to tell the truth, and you have not sought to support her as a witness of truth. You are, by implication, impugning her, and you are leaving it there, hanging in the air, that she did it, and that is quite improper and there cannot be a fair trial while that situation obtains. McNAMARA: It's a very difficult situation. HIS HONOUR: You're in a difficult situation of your own making. McNAMARA: Well I was simply explaining why she was called to the jury – that she was aware of certain – or that …(the appellant)… was led to believe that she was somebody who could give evidence. HIS HONOUR: I find it impossible to believe that responsible counsel would call a witness without knowing what the witness was going to say, without having taken a written statement from her. It would be unprofessional for counsel to do that. Now if you're hinting that you didn't know what she was going to say, that does you great discredit. Now what do you want to do about this mess? I gave you the opportunity to correct what you had said before lunch. McNAMARA: I thought I had corrected --- HIS HONOUR: You've made it worse. McNAMARA: I didn't intentionally. HIS HONOUR: I'm not going to give you another opportunity. McNAMARA: Yes. HIS HONOUR: Mr. Crown, I have a mind to discharge this jury. I don't see how a fair trial can be had. CROWN PROSECUTOR: Your Honour, I would wish to be heard very strongly against that. HIS HONOUR: Well that doesn't surprise me. I'm not saying that I will discharge the jury. CROWN PROSECUTOR: Your Honour, I think my friend's conceded, in fairness to him, that perhaps they were ill-chosen words that he's used. HIS HONOUR: Well he's a professional wordsmith. You don't get into a criminal trial if you don't have a command of the spoken English language. CROWN PROSECUTOR: To say that his client knew she was there obviously cannot be the case, if he was at work. He can't know that she was there, so perhaps ill-chosen --- HIS HONOUR: You just behave yourself. ACCUSED: Yes, sir, sorry. HIS HONOUR: Sit still and behave yourself. CROWN PROSECUTOR: And they're matters that your Honour – that, as an example, there was another one again where my friend said "he knew this", and "he knew that" when in fact he couldn't, if we accept what he said. Your Honour, in my submission that's fixable by your Honour, by your Honour giving them directions that that cannot be the case. The trial's come a long way. HIS HONOUR: I know it has, but if the Court of Criminal Appeal were to take the view that the accused's case was so incompetently conducted that it was unsafe to leave a conviction and order a new trial, that situation would be worse. CROWN PROSECUTOR: Your Honour, I personally don't believe it's to that point. I certainly – and it's a matter that if it comes to it, the CCA would look at – but at this stage the jury hasn't gone out, these are matters that your Honour can direct them upon and correct – if I had made mistakes about the facts, or my friend has, your Honour can correct those. Ultimately they're matters of fact for the jury, but my friend's propositions are not supportable by the evidence and that can be corrected by your Honour. It's not to the point where it needs to have a jury discharged at this point, in my submission. HIS HONOUR: Very well. I am minded to – I can't finish the summing-up this afternoon. CROWN PROSECUTOR: No. HIS HONOUR: The jury will have to go home. This matter is of enormous importance. I am minded to give the jury some directions about what the issues are and about how the case has been conducted before I launch onto my summing-up proper. McNAMARA: Yes, your Honour. HIS HONOUR: Bring the jury back." 59 It is relevant to note that these exchanges took place on a Friday afternoon, so that the proposition that "(t)he jury will have to go home" entailed that the jury would be separated from the trial for the coming week-end. The jury was summoned back into Court and his Honour addressed the jury as follows: "HIS HONOUR: Members of the jury, I will shortly commence the summing-up that I had prepared before this afternoon. If I were to conclude it today it would be very nearly 4 o'clock, it might even be after 4 o'clock. Be it before or after 4 o'clock, that is too late in the day to invite a jury to retire to consider their verdict. It puts you all under pressure as to time. Accordingly, it is my intention to start the summing-up today and to send you home somewhere round about 3 o'clock, and then conclude the summing-up on Monday and you will be retiring well before lunchtime on Monday to consider your verdict and you won't be under pressure as to time for that reason. However, before I start the formalities of the summing-up, a situation has developed here over the course of this trial, culminating today, which requires some explanation to you. You will recollect that Mr. McNamara said to you today that you have known right from the outset what the defence is in this case. He then backed away from that slightly and he said that well, perhaps not right from the outset. The plain fact is that you haven't known right from the outset what the defence in this case is. It was not until after the Crown case closed that it emerged that the defence case is, in part at least, the proposition that this child injured himself, perhaps accidentally, but in circumstances where it might be thought that he was preparing to injure himself when his mother entered the room. The accused, of course, in any trial, is not obliged to say anything. He is not obliged to cross-examine. He is not obliged to let it be known what his case is. But if he does have a case, the law is clear that witnesses who might have something to say about the defence case must be cross-examined about the matters that the defence alleges. The child was not cross-examined to suggest that he had ever had a knife in his hand in association with his own penis. That proposition emerged only after the defence case started and that is why we have all been delayed and why the unfortunate child had to be brought back a second time for those matters to be put to him yesterday. The doctors were not cross-examined about various aspects of this wound, which you have all seen in the photographs. That was never floated with the doctors, to enable them to give to the Court – that is, to the jury – their expert opinions about these matters advanced late in the trial by Mr. McNamara for the accused. Now beyond that – and I mentioned this to you earlier today – at a stage when the grandmother was in the witness box, she was cross-examined to suggest, successfully, that the mother of the complainant had, on some past occasion, taken a knife and used it as a weapon against the mother. The thought that crops into the mind of anyone in those circumstances, hearing that evidence, might be well perhaps the mother, who has form as the wielder of a knife, injured this child. That proposition of course, that the daughter had previously used a knife on the mother was quite irrelevant, it was a question that should never have been asked. It was not objected to by the Crown, nor did I stop it, because I didn't know what the defence case was and the Crown didn't know what the defence case was. But the material went in and it is still in. I took the trouble to tell you this morning that it is not part of the defence case that the mother injured this child, and I ask you to put that out of your minds. I'm doing what I'm doing at this moment because the situation has been compounded during the course of the address given by Mr. McNamara for the defence, both before lunch and since lunch. He told you before lunch that the defence case was that the accused man was not present – of course that is right, that is his case – that he didn't use the knife on the child, that is his case, and that therefore he can say nothing about it. That was said to you at a point in time where defence counsel had spent 15 minutes on an issue that doesn't exist. It is common ground between the Crown and the accused that whatever happened, whoever did it, it was done on the eve of the child's fourth birthday. There was no need for the defence counsel to trawl through that evidence. The only purpose I can divine in his having done so is that he wanted to emphasise to you that the mother was present, when it is clear that that is not the defence case that is on the table. He has said to you since lunch, made some submissions since lunch about the scar and about the doctors, but he has not said one word to advance the case raised by the mother on behalf of her de facto husband. No submission has been made to you to support the evidence given by the mother, which evidence was called by counsel, you were told that the witness was called as a witness because the accused accepts her as a witness of truth. Now that is a proposition that should never have been made by a responsible counsel. There is no evidence the accused thinks about her truthfulness or otherwise and even if there were, it would be quite irrelevant that the accused accepts her as a witness of truth. Questions of deciding who is telling the truth and who is not in this case are reserved to the jury. It is not for the accused to decide questions of fact in this case, it is for the jury. Again, it was put to you since lunch that she was called as a witness. It was said as an aside that the defence is not suggesting that she had anything to do with the cutting of …(the complainant's)… penis. It was said, however, in a qualified way, that the accused is not suggesting that because he wasn't present. Again, that leaves it hanging in the air that the mother did this. Now I regret enormously that I have to say these things to you about the way the defence counsel has conducted a case, but it would be quite unfair to adjourn this trial on a Friday afternoon without warning you that your considerations in this case start with this. Has the Crown established its case against the accused, beyond reasonable doubt? You then, I will be pointing out to you towards the end of my summing-up on Monday, you then look at the case for the defence that is mounted. That is, witness is called, that is his case. It has advanced through counsel of his choice. The witness is called and you would then be required to look at the evidence given by the witness, none of which, you will remember, was put to the relevant Crown witnesses, to examine and to compare with the strength of the Crown case, as it has been presented. That is all I wish to say at this moment, except this. Let me remind you that any suggestion that the mother perpetrated this act is baseless on the evidence and is not able to be considered, and the suggestion hinted at, at a number of stages, is an improper one." 60 For reasons personal to one of the jurors the further progress of the trial had to be adjourned, very shortly after these remarks of his Honour, until the following Monday. 61 On that day counsel for the appellant applied for a discharge of the jury. The terms of the application and the surrounding in-Court atmosphere are very important for present purposes, and I propose therefore to set out the entirety of the course of counsel's submissions in support of the application. "McNAMARA: I don't wish to interrupt your Honour but I have an application to make before the directions are discussed. HIS HONOUR: Yes. McNAMARA: Would it be convenient for me to make the application? HIS HONOUR: Yes. McNAMARA: Thank you very much. My application is that your Honour discharge the jury at this point in time. The basis of my application is the nature and extent of your Honour's remarks to the jury on Friday following my address were such that the jurors may well have formed views over the weekend which would bias fair and balanced deliberations in the jury room to the detriment of …(the appellant)... . That today it is too late for your Honour to modify or qualify your Honour's remarks to the jury on Friday afternoon because the views may have been formulated by the jurors over the weekend. During the course of the trial and before Friday, I handed up to your Honour the full Judgment of the New South Wales Court of Criminal Appeal in Liristis (2000) NSWCCA 287. In dealing with ground three of the appeal in that case which commences at paragraph 81 and goes down to --- HIS HONOUR: Paragraph? McNAMARA: It starts at 81 your Honour and keeps going until the end of paragraph 89. There is a review of the authorities on appropriate remarks. My application is that the jury be discharged, that it is too late for your Honour to modify or qualify the remarks already made and that although the criticism was directed at counsel, that it must necessarily flow through to the accused, deny the accused fair and proper deliberations in the jury room, particularly as the individual jurors have had the weekend to ponder over your Honour's remarks which were very strongly made. My next point is your Honour a quite separate and distinct matter. If I may please take your Honour to the transcript of your Honour's remarks. HIS HONOUR: Yes. McNAMARA: If I may please take you to page 2 and it's line 32 and I'll read it to your Honour. "That was said to you at a point in time when the defence counsel had spent 15 minutes on an issue that doesn't exist. It is common ground between the Crown and the accused that whatever happened, whoever did it, it was done on the eve of the child's 4th birthday. There was no need for the defence – counsel for the – defence counsel to trawl through that evidence. The only purpose I can divine ---" And your Honour's giving a personal opinion there. "The only purpose I can divine is that having done so, is that he wanted to emphasise to you that the mother was present" et cetera et cetera. There are a number of factual issues arising out of that your Honour. First of all the Crown – the indictment had not been amended, the indictment still stood --- HIS HONOUR: Yes that's clear. McNAMARA: --- between November and May, the dates in November and May --- HIS HONOUR: The evidence called for the Crown from the child is that it was the eve of the 4th birthday. The only evidence called by the accused in relation to the injury to the child was called by you through the mother that it was the eve of the 4th birthday. McNAMARA: That's quite correct. HIS HONOUR: There is no issue about it being on the eve of the 4th birthday. McNAMARA: The Crown did not concede that point. HIS HONOUR: It's not a question of conceding. The Crown case says eve of 4th birthday. The defence case says eve of 4th birthday, there is no issue. McNAMARA: The jury were quite entitled to form the view or may well have formed the view in the absence of amendment of the indictment or a formal concession by the Crown, the jury could well have formed the view that a child of such tender years was mistaken as to the date of the actual incident. HIS HONOUR: Did you cross-examine him about that? McNAMARA: No, but I'm saying that issue was open --- HIS HONOUR: Did you cross-examine the child about the date that he swore --- McNAMARA: I think I did and he said "yes". He said 'yes". HIS HONOUR: Did you suggest any other date to him? McNAMARA: I suggested no other date to the child, that is quite correct. HIS HONOUR: Well there is no issue Mr. McNamara. McNAMARA: The Crown --- HIS HONOUR: That's why I made the very strong statement I did on Friday afternoon. You spent 15 minutes dealing with a non-issue in circumstances that the political journalist would call dog whistling. Do you know what that term means? McNAMARA: Well not really, I don't. I'll check it after court. HIS HONOUR: What it means is that words are being used and between those words a hidden meaning is being transmitted and that's what your submission amounted to on Friday afternoon and that's why I sought to nip it in the bud immediately because I didn't want the jury to have the whole weekend contemplating that this crime was committed by the mother when it's not your case. But you had been hinting and nudging and winking at it through the cross-examination and again in your submission. McNAMARA: No there was --- HIS HONOUR: And I gave you an opportunity to correct what you'd said at lunchtime. McNAMARA: Well that's not the issue here your Honour --- HIS HONOUR: You're right, you're right. McNAMARA: --- if I could just be heard. You see what I'm actually saying – could I now --- HIS HONOUR: Yes please. McNAMARA: It was important, it was a long time ago. The mother had said that she was present on that particular day. Now that was the mother's evidence. It was pointing out to the jury that even on the child's evidence the mother was present on that day, she wasn't down the local club playing poker machines or away visiting somebody or away on holidays, it was that it was common ground that the mother was present on that particular day, even on the child's version, although as I've pointed out, on the child's version the accused had cut the penis -- HIS HONOUR: Why do you want the jury to contemplate the presence of the mother? McNAMARA: To show that it corroborates the mother's version that the mother was present. That in relation to the truth of the mother being present as she said, when the incident occurred, on the day in question in the house. HIS HONOUR: She can't corroborate herself. McNAMARA: The alibi. HIS HONOUR: She can't corroborate herself. McNAMARA: No she can't corroborate herself but the child's evidence puts the mother in the house rather than being away playing poker machines on the day --- HIS HONOUR: Yes. McNAMARA: --- or not knowing where she is. It is purely --- HIS HONOUR: What was the legitimate purpose of spending 15 minutes reinforcing the presence of the mother in the house? McNAMARA: So there's no mistake, that the mother's not mistaken about the date, that the mother was there when it happened. HIS HONOUR: There's no issue about the date. This was dog whistling and that's why I sought to stop it on Friday afternoon. McNAMARA: Well that's your Honour's view and I won't take it any --- HIS HONOUR: I'm here to see that there's a fair trial and I'm here to see that counsel obey the rules and that counsel don't put submissions that are illegitimate and not available and in the exercise of that role I have to form views Mr. McNamara and I did form a view and it gave me no pleasure at all to have to criticise counsel in the way that I have done, no pleasure at all, but I deemed it to be my responsibility. McNAMARA: I understand what your Honour is saying and I will maintain my silence as I must do. In relation to my application to discharge the jury, I maintain that application your Honour upon the grounds that I have indicated and the authorities referred to in Liristis. But that is my application --- HIS HONOUR: What's the point you're seeking to make by reference to Liristis? McNAMARA: Basically --- HIS HONOUR: Do you refer to paragraph 81? McNAMARA: I'm saying it begins at 81 and it goes right through. It's a review of the authorities. HIS HONOUR: Well that's a reference to counsel presenting a case on instructions. You presented a case on instructions that it happened on the child's 4th birthday and that it happened by accident and that the scar which the jury have now seen photographs of, was thereafter tampered with and made to look different by the child. That's your case presented on instructions. I have always assumed that you were presenting your case on instructions Mr. McNamara. I would be horrified to learn otherwise. McNAMARA: Of course I present my case on instructions from my client insofar as my client can provide instructions. HIS HONOUR: But you proof a witness. Your client wasn't there on your case. You proof the witness who gives an account of what she says happened. Now that's part of your instructions. McNAMARA: Not from my client. That is part of the defence --- HIS HONOUR: It's part of your instructions as counsel. The proof of evidence from the witness which enables you to form the forensic judgment that you should call the witness. That's part of your instructions. And having formed that judgment you're entitled to float it with your client and get instructions from him to call the evidence or not. It was on instructions from your client that you led the evidence from the mother. Now what are you talking about? McNAMARA: Well I'll take your Honour to the cautions that are expressed in Liristis when they review the authorities. First of all at the end of page 15, paragraph 85 and also paragraph 86, Chief Justice Gleeson HIS HONOUR: Just let me read that paragraph. I looked at Burke's case last week for another purpose. Well that supports entirely what I did on Friday Mr. McNamara, absolutely supports what I did. There may be many explanations of the admission which do not – of the omission which do not reflect upon the credibility of the witnesses. Counsel may have misunderstood his instructions. Witnesses may not have been fully cooperative in providing statements. None of that – that's just His Honour theorising. I'm not seized of any such material here. His Honour goes on in paragraph 86, "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." He says that's far from the truth, that's not counsel's role. McNAMARA: I also take you to paragraph 87. HIS HONOUR: I don't see how that assists your application. McNAMARA: I further submit that the nature and extent of your Honour's remarks went further than necessary, that is my respectful submission. I mean no disrespect by saying that and that regardless of the criticism aimed at counsel in relation to the conduct of the trial, because of the nature and extent of your Honour's remarks, that it must necessarily affect the accused …(the appellant)… in the jury's deliberations and that it is now too late to modify your Honour's remarks or to rectify the position now that the weekend has intervened. It is my very respectful submission that the jury be discharged your Honour." 62 The Crown Prosecutor then made submissions. It is not necessary to detail them, but it is relevant to say that my impression from reading the transcript is that the Crown Prosecutor felt uncomfortable about some at least of the things that his Honour had said to the jury on the preceding Friday. The thrust of the Crown Prosecutor's submissions was that the Crown opposed the discharge of the jury, and did so upon the basis that further directions during the course of the summing-up proper would be adequate for the just redressing of anything in the previous remarks that might be regarded as needing some correction. 63 It is relevant to note that his Honour, in discussion with the Crown Prosecutor, continued to manifest a very adverse attitude towards what his Honour clearly regarded as having been unprofessional conduct on the part of the appellant's then counsel. At one point, for example, his Honour said of the relevant aspect of the defence case: "This case is not sloppiness on the part of counsel, this case is a deliberate ploy." 64 At the conclusion of all of the submissions his Honour refused the application, and gave reasons ex tempore. The following excerpts are now relevant: "My view is that the evidence of the mother was called entirely to set her up so that a submission could be made in due course that she is the perpetrator of the crime and not the Accused. All of that is entirely improper. That was my view as these events unfolded early last week." "On Friday afternoon in the course of his closing speech, Mr. McNamara spent, I think, twelve to fifteen minutes dealing with the date of the offence, that being a dead issue as he well knows. He seeks to explain it as a live issue by reference to the fact that the indictment has never been amended. The indictment was framed as it was, no doubt for good reason. It was left as it was for reasons which are not clear, but nothing was turning on the date of the injury to the child, but nonetheless Mr. McNamara spent fifteen minutes dealing with that issue and it was abundantly clear to me that he was doing so only to reinforce in the minds of the jury that the mother was present. This was a nudging and winking submission to the jury, designed to raise in their minds the possibility that the mother is the perpetrator of the crime. It was an unworthy way for counsel to address the jury and as it happened late on the Friday afternoon and my summing-up was not to commence till the Monday, I deemed it proper to tell the jury just that. And I did it in terms that were a lot more restrained than I am using in the course of this Judgment, which of course will not reach their ears. There is no basis for the discharge of the jury. I shall consider later in the morning what modifications I might make to the draft summing-up which has not yet commenced to be delivered at 11 a.m. when I come to deal afresh with the remarks that I made on Friday afternoon. But at this stage nothing emerges that requires the jury to be discharged." 65 During the summing-up proper his Honour took up again, albeit in somewhat more emollient terms, some of the issues upon which his Honour had touched on the preceding Friday. The relevant passages are: "Let me now return briefly to the matters I raised with you late on Friday. The issue here is, has the Crown satisfied you beyond a reasonable doubt that the Accused used the knife on the boy as the boy himself says? The Accused says, through his counsel, that he did not. He goes further, he calls evidence that the child was involved – perhaps accidentally – in the infliction of the injury upon himself. Those are the only two versions of the facts that you have before you for your consideration. The Accused has raised no other. In particular, there is no suggestion here, as any part of the case advanced for the Accused, that any third person cut the boy's penis. The Crown case is that the accused did it. The defence case is that the boy – whom you might think on that version, was preparing to do it – did it by accident. Now it is not a question of deciding between the two versions. The onus you will remember, lies on the Crown. To state it simply again, the issue is, are you satisfied that the Accused used the knife on the child's penis, and are you satisfied that he acted maliciously, and are you satisfied that he did so with intent to cause grievous bodily harm? There is no third way. Now I just want to remind you of some of the things that I said on Friday afternoon. I will not repeat them all. I dealt particularly with the fifteen minutes or so that Mr. McNamara occupied in trawling through the evidence about the date of this event. I said there, that this was not a real issue. The Crown has led evidence from the boy that whatever happened, happened on the eve of his fourth birthday. The defence has led evidence from the boy's mother that whatever happened, happened on the eve of the boy's fourth birthday. The indictment has a span of months, and the Crown is entitled to have the indictment framed in that way, perhaps for good reasons. But at the end of the evidence it was clear – you might think – that both sides were saying that whatever happened, happened on the eve of the child's fourth birthday. There was no need for defence counsel to trawl through all that evidence. I expressed the view on Friday that he did so just to emphasise the presence in the house, at the time, of the mother. Now if that is a view about the facts that I have expressed, let me remind you that you must come to your own view about the facts, ignoring mine if it does not agree with your own. Let me remind you that the issue here is – the first issue is, are you satisfied that the accused used the knife on the child's penis? That is the first issue. The only issue raised by the defence is that he did not, but that it was self-inflicted. There is no third alternative, and you should not allow yourselves to be distracted by any speculation about any third alternative. It just is not part of the considerations that the jury in this case may make." 66 In any consideration of the aforesaid sequence of events it is important to begin that consideration by setting in place the correct fundamental principles. It will suffice to cite in that connection two excerpts from decisions of the High Court of Australia. 67 In Winningham v The Queen (1995) 69 ALJR 775 the Court (Dawson, McHugh and Gummow JJ), said: "In contending that when a question arises of bias on the part of a trial judge the proper test is whether fair-minded people might reasonably apprehend or suspect that the judge has pre-judged or might pre-judge the case. ……………………………… The test has been expressed in different ways but it requires the question to be asked whether in all the circumstances the parties or the public might entertain a reasonable apprehension that the judge might not bring an impartial and unprejudiced mind to the resolution of the matter. " 68 In RPS v The Queen (2000) 199 CLR 620 the joint reasons of Gaudron ACJ, Gummow, Kirby and Hayne JJ contain, at 625, 626 these statements: "It is, no doubt, unfortunate if tension develops between counsel and the trial judge, and judges must do their best to avoid it. But if the conduct of counsel at trial affects the proper course of proceedings the judge may find it necessary to reprove counsel or to criticise his or her conduct. Particularly in a criminal trial it would usually be appropriate to offer any sustained reproof or detailed criticism in the absence of the jury. Doing so will avoid the risk that the jury might infer from the judge's remarks an opinion about the merits of the accused's defence." 69 As always, the difficulty in a particular case is how to apply fairly and sensibly to a particular set of facts, principles that are themselves well-established. No doubt that must generally involve questions of degree and impressions, formed and informed, in the case of this Court, by a consideration of transcript. 70 In the present case it seems to me that the learned trial Judge, with all proper deference to his Honour, plainly went beyond any permissible limit when he addressed the jury in terms so clearly and dismissively critical of the conduct of the appellant's then counsel. That unhappy state of affairs was compounded, in my opinion, by what are in my respectful opinion the manifest inadequacies of his Honour's reasons for the refusal of the discharge application. His Honour's reasons articulate correctly no relevant principle; make no clear findings of relevant facts; and expose no process of reasoning applying the former to the latter. It is fair to acknowledge that his Honour made some attempt in the summing-up proper to salvage a most unfortunate situation; but in my opinion it was, to say the least, too little and too late. 71 In my opinion the events which I have earlier summarised were apt to cause any fair-minded person to think that there had been, by reason of those events, trenchant and most damaging criticism not only of the appellant's case, but of the professionalism and propriety of his then counsel, such that there was a wholly unacceptable risk of irremediable prejudice to the proper judgment of the Crown case that was being presented against the appellant, and of the appellant's response to that case. 72 In my opinion these grounds, considered together, should be upheld. It must follow that the current conviction cannot stand. That conclusion makes it necessary to consider whether, in the circumstances of this particular case, the Court should order a re-trial of the appellant, or order his acquittal. It is necessary, in that connection, to have regard to certain provisions of the Criminal Appeal Act 1912 (NSW), and to certain principles that have been established by curial decisions. 73 Section 5(1) of the Criminal Appeal Act enables an appeal against conviction. 74 Section 6(1) of that Act provides, relevantly, that the Court is to allow the appeal whenever it appears to the Court that there has been any kind of miscarriage of justice. That mandate is qualified by a statutory proviso, itself forming part of section 6(1). That proviso enables the Court to dismiss an appeal against conviction: "notwithstanding that it is of opinion that the point or points raised by the appeal might be decided in favour of the appellant, …………..if it considers that no substantial miscarriage of justice has actually occurred". 75 Section 6(2) of the Criminal Appeal Act provides: "Subject to the special provisions of this Act, the court shall, if it allows an appeal under section 5(1) against conviction, quash the conviction and direct a judgment and verdict of acquittal to be entered." 76 One such "special provision" is made by section 8(1) of the Act which provides: "On an appeal against a conviction on indictment, the court may, either of its own motion, or on the application of the appellant, order a new trial in such manner as it thinks fit, if the court considers that a miscarriage of justice has occurred, and, that having regard to all the circumstances, such miscarriage of justice can be more adequately remedied by an order for a new trial than by any other order which the court is empowered to make." 77 The High Court of Australia considered section 8(1) in King v The Queen (1986) 161 CLR 423. Speaking for the majority, Dawson J said: "The section itself lays down the conditions for its own application. The miscarriage of justice to which it refers must be such that it can be more adequately remedied by an order for a new trial than by any other order which the court is empowered to make. But the section nevertheless confers a broad discretion. Matters relevant to the exercise of that discretion have been discussed in the cases: Peacock v The King ; Andrews v The Queen ; Gerakiteys v The Queen ; Director of Public Prosecutions (Nauru) v Fowler ; Reid v The Queen ." 78 Of the five decisions there cited, that of the Judicial Committee of the Privy Council in Reid v The Queen [1980] AC 343 contains an extended discussion which gives assistance in the present particular case. 79 The advising of the Judicial Committee notes that one of the questions which it had been asked to consider was one "general in its terms and (asking) for a statement of the principles which should apply in considering whether or not a new trial should be ordered" in a case governed by such a provision as section 8(1) of the Criminal Appeal Act. There follows this warning: "Their Lordships would be very loath to embark upon a catalogue of factors which may be present in particular cases and, where they are, will call for consideration in determining whether upon the quashing of a conviction the interests of justice do require that a new trial be held. The danger of such a catalogue is that, despite all warnings, it may come to be treated as exhaustive or the order in which the various factors are listed may come to be regarded as indicative of the comparative weight to be attached to them; whereas there may be factors which in the particular circumstances of some future case might be decisive but which their Lordships have not now the prescience to foresee, while the relative weight to be attached to each one of the several factors which are likely to be relevant in the common run of cases may vary widely from case to case according to its particular circumstances. The recognition of the factors relevant to the particular case and the assessment of their relative importance are matters which call for the exercise of the collective sense of justice and common sense of the members of …… (the intermediate Court of Appeal from which the appeal to the Privy Council had been taken) ….. who are familiar, as their Lordships are not, with local conditions." [349D – G] 80 Subject to that warning the following principles are then expounded: "Their Lordships have already indicated in disposing of the instant appeal that the interest of justice that is served by the power to order a new trial is the interest of the public ……..that those persons who are guilty of serious crimes should be brought to justice and not escaping merely because of some technical blunder by the judge in the conduct of the trial or in his summing up to the jury. Save circumstances so exceptional that their Lordships cannot readily envisage them it ought not to be exercised where, as in the instant case, a reason for setting aside the verdict is that the evidence adduced at the trial was insufficient to justify a conviction by a reasonable jury even if properly directed. It is not in the interests of justice as administered under the common law system of criminal procedure that the prosecution should be given another chance to cure evidential deficiencies in its case against the defendant. At the other extreme, where the evidence against the defendant at the trial was so strong that any reasonable jury if properly directed would have convicted the defendant, prima facie the more appropriate course is to apply the proviso …….. and dismiss the appeal instead of incurring the expense and inconvenience to witnesses and jurors which would be involved in another trial. In cases which fall between these two extremes there may be many factors deserving of consideration, some operating against and some in favour of the exercise of the power. The seriousness or otherwise of the offence must always be a relevant factor: so may its prevalence; and where the previous trial was prolonged and complex, the expense and the length of time for which the court and jury would be involved in a fresh hearing may also be relevant considerations. So too is the consideration that any criminal trial is to some extent an ordeal for the defendant, which the defendant ought not to be condemned to undergo for a second time through no fault of his own unless the interests of justice require that he should do so. The length of time that will have elapsed between the offence and the new trial if one be ordered may vary in importance from case to case, though having regard to the onus of proof which lies upon the prosecution lapse of time may tend to operate to its disadvantage rather than to that of the defendant. Nevertheless there may be cases where evidence which tended to support the defence at the first trial would not be available at the new trial and, if this were so, it would be a powerful factor against ordering a new trial. The strength of the case presented by the prosecution at the previous trial is always one of the factors to be taken into consideration but, except in the two extreme cases that have been referred to, the weight to be attached to this factor may vary widely from case to case according to the nature of the crime, the particular circumstances in which it was committed and the current state of public opinion ……….. . On the one hand there may well be cases where despite a near certainty that upon a second trial the defendant would be convicted the countervailing reasons are strong enough to justify refraining from that course. On the other hand it is not necessarily a condition precedent to the ordering of a new trial that ………… (the relevant intermediate appellate court) …………should be satisfied on the probability that it will result in a conviction." [349 D – 350 G] 81 It will be apparent from the discussion earlier herein of Ground 13 that I do not accept that it was not open to a reasonable jury, correctly directed, to convict the appellant upon the basis of the whole of the evidence at trial. It will be similarly apparent that I could not regard the present case as one in which the section 6(1) proviso could properly be utilised. The appellant did not receive, in my opinion, his entitlement to a fair trial. I cannot accept that no substantial miscarriage has thereby actually occurred. It follows, therefore, that the present case occupies what might be described as the middle ground between those two polar extremes. 82 Were there to be a re-trial of the appellant, then the Crown case would be essentially the same: that is to say, that the appellant was the sole assailant of the complainant. It is difficult to see how the appellant could depart convincingly from his now clearly established position that he was not present when the wound was inflicted by whomsoever, and that he has available to him in that connection an alibi of substance. 83 That state of affairs leaves at large the position in any re-trial of the complainant's mother. It seems to me to be impossible to predict in any sensibly concrete way how that variable might emerge at a re-trial. It is not fanciful to suppose that the Crown could call her in the Crown case if only in order to make her available for cross-examination. It is not fanciful to suppose that the Crown would again decline to call the mother in the Crown case, leaving the appellant to call her in his own case should he wish to do so. Everything must depend, really, upon what case the defence chooses to mount at a re-trial. On the given facts of the present case the appellant must choose at a re-trial between the defence of alibi, and some other defence that seeks to raise a reasonable doubt about his own guilt by raising as a reasonable possibility the guilt of the mother. I do not see how he could sensibly run concurrently both of those lines of defence. I think upon reflection, indeed, that such was never a realistic prospect at the original trial. That seems to me to have been so because it was unlikely in the extreme that a jury would accept a suggested alibi unsupported by any evidence from the appellant himself; and supported only by unfortunately incomplete independent employment records. I apprehend that it was just such a perception that explained the calling of the mother to support the alibi. Once that was done then, as a practical matter, any attempt to implicate the mother as the assailant had to find a method that put that allegation to her wholly without any supporting evidence and in the teeth of the complainant's own consistent narrative; but without risking a reaction to her by the jury that was so unfavourable as to rub off on the alibi which she alone purported to support as an independent witness. 84 It seems to me that it is, ultimately, impossible for this Court to say with a proper confidence that a new trial, properly conducted, simply could not afford the appellant that which he has hitherto been denied, namely a fair trial according to law. 85 In those circumstances my conclusion is that it would be proper, in the light of established principles, to order a new trial. The Remaining Grounds of Appeal 86 In my opinion, and as earlier herein indicated, there is no obvious utility in deciding any of the questions that are propounded by the remaining grounds of appeal. There is to be a new trial. Nobody can now predict what course it might take. In those circumstances it is, in my opinion, the better course to decide the present appeal on the narrowest basis properly available and thereby to avoid pre-empting decisions which might not in fact arise in the new trial. Orders 87 In my opinion the Court should order: that the appeal against conviction be allowed; that the conviction be quashed; and that there be an order for a new trial of the appellant. 88 ADAMS J: I have had the advantage of reading the judgment of Sully J in draft. I agree with his Honour's conclusion that the conviction of the appellant must be quashed and with his Honour's reasons. However, for the reasons that appear below, I do not agree, with respect, that a new trial should be ordered. I wish to make some further comments of my own on some of the issues raised in the trial as to the conduct of counsel. 89 It is, I think, useful to say something about the significance of the rule in Browne v Dunn in the context of the forensic situation as it unfolded in this trial. The High Court recently considered the application of the rule in MWJ v The Queen [2005] HCA 74 in a trial that was similar in some respects to the present circumstances. The appellant had been convicted of three sexual offences occurring at certain premises and acquitted of an offence alleged to have occurred earlier at other premises. The complainant had given evidence of the four offences. It was contended by the appellant that the sense of the complainant's evidence was that only one offence had occurred at the other premises. As it happened, the complainant had complained to her mother about other sexual misconduct that occurred at those premises. The complainant was not asked about those complaints or that misconduct. Counsel for the Crown, however, elicited evidence from the complainant's mother about them. Counsel for the appellant went submitted, in final address, that there was, in substance an inconsistency between the evidence of the complainant and the evidence of the complaints she had made to her mother. It was held by the trial judge and on appeal that, at all events, there was in substance no such inconsistency that could rightly be regarded as impugning the complainant's credibility. However, the question whether the submission should have been permitted in light of the omission to question the complainant about the other complaints (which would have necessitated recalling the complainant) was discussed in the Full Court of the Supreme Court of South Australia and in the High Court. Gleeson CJ and Heydon J said (omitting references) – "[18] The principle of fair conduct on the part of an advocate, stated in Browne v Dunn , is an important aspect of the adversarial system of justice. It has been held in England, New South Wales, South Australia, Queensland, and New Zealand, to apply in the administration of criminal justice, which, as well as being accusatorial, is adversarial. Murphy J, in this Court, even applied it to the conduct of an unrepresented accused. However, for reasons explained, for example, in R v Birks , and R v Manunta , it is a principle that may need to be applied with some care when considering the conduct of the defence at criminal trial. Fairness ordinarily requires that if a challenge is to be made to the evidence of a witness, the ground of the challenge be put to the witness in cross-examination. This requirement is accepted, and applied day by day, in criminal trials. However, the consequences of a failure to cross-examine on a certain issue may need to be considered in the light of the nature and course of the proceedings. In the present case, there was no obligation on trial counsel for the appellant to question the complainant about whether there had been more than one incident of sexual abuse at Sutcliffe Street, and there was no obligation to seek to have the complainant recalled for that purpose. Why would counsel for the appellant want to run the risk of eliciting further evidence of uncharged criminal acts by her client? That, no doubt, left the trial judge in a difficult position when he came to evaluate a criticism (in final address) of the complainant's credibility based on the supposed (although, in truth, non-existent) inconsistencies. It did not mean that counsel could not put her argument to the judge. As Doyle CJ said, it was a matter to be taken into account in assessing the weight to be given to the supposed inconsistencies. In the event, it was the fact that counsel chose (with reason) to leave the evidence in a state of uncertainty that undermined her submission about inconsistency. That was a forensic choice for counsel to make." Gummow, Kirby and Callinan JJ said (references omitted) – [36] The appellant's grounds of appeal to this Court are variants of two propositions: that the Court of Criminal Appeal erred in the application of the principle established in Browne v Dunn , and that the inconsistency to which reference has been made, invalidated the convictions. The former proposition is correct, the latter is not. [37] Something should first be said of the trial judge's criticism of the appellant's failure, in effect, to give the complainant an opportunity of explaining away the inconsistency arising out of her mother's evidence. The criticism is ill-founded for these reasons. The complainant had already given her evidence when the mother gave her evidence. It was not for the appellant to know and anticipate, by cross-examining the complainant, what the mother would say about the complainant's assertions of complaints of multiple offences at Sutcliffe Street. It was not for the appellant to iron out inconsistencies in the case for the prosecution. Secondly, his Honour erred in holding that if there were competition between the avoidance of unfairness to the complainant and a "technical view of the rules of evidence" (whatever that in the circumstances means), the former must prevail. It is not for a judge to depart from the rules of evidence on such a basis. The rules are designed to ensure fairness to all, certainly not least, to an accused in a criminal trial. [38] We should next say something about the rule in Browne v Dunn , which, in substance, both the trial judge and the Chief Justice thought should be applied here against the appellant, its application in criminal cases generally, and his Honour, the Chief Justice's reference to the appellant's counsel's failure to seek to have the complainant recalled for further cross-examination. The rule is essentially that a party is obliged to give appropriate notice to the other party, and any of that person's witnesses, of any imputation that the former intends to make against either of the latter about his or her conduct relevant to the case, or a party's or a witness' credit. [39] One corollary of the rule is that judges should in general abstain from making adverse findings about parties and witnesses in respect of whom there has been non-compliance with it. A further corollary of the rule is that not only will cross-examination of a witness who can speak to the conduct usually constitute sufficient notice, but also, that any witness whose conduct is to be impugned, should be given an opportunity in the cross-examination to deal with the imputation intended to be made against him or her. An offer to tender a witness for further cross-examination will however, in many cases suffice to meet, or blunt a complaint of surprise or prejudice resulting from a failure to put a matter in earlier cross-examination. In this case, the appellant was confronted with a forensic dilemma: whether to seek to have the mother's evidence of her daughter's assertions of repeated misconduct at Sutcliffe Street excluded by reason of its prejudicial effect, or deliberately to leave it untouched to provide a basis for a submission that a fundamental inconsistency tainted the whole case. In the event the appellant chose the former. In that endeavour he failed, but was still able, albeit unsuccessfully, to rely on it as setting up a significant inconsistency. On no view was the appellant obliged however to seek to have the complainant recalled as a condition of his reliance upon the inconsistency which had emerged in the case for the prosecution. [40] Reliance on the rule in Browne v Dunn can be both misplaced and overstated. If the evidence in the case has not been completed, a party genuinely taken by surprise by reason of a failure on the part of the other to put a relevant matter in cross-examination, can almost always, especially in ordinary civil litigation, mitigate or cure any difficulties so arising by seeking or offering the recall of the witness to enable the matter to be put. In criminal cases, in many jurisdictions, the salutary practice of excusing witnesses temporarily only, and on the understanding that they must make themselves available to be recalled if necessary at any time before a verdict is given, is adopted. There may be some circumstances in which it could be unfair to permit the recalling of a witness, but in general, subject to the obligation of the prosecution not to split its case, and to present or make available all of the relevant evidence to an accused, the course that we have suggested is one that should be able to be adopted on most occasions without injustice. [41] The obligation of the prosecution to present its whole case in chief and the existence of the unavoidable burden of proof carried by the prosecution are of particular relevance here. Doyle CJ was critical of the appellant for not putting the inconsistency between the complainant and her mother, in turn giving rise to an internal inconsistency in the complainant's account, to the complainant. The criticism does not give due weight to the obligations of the prosecution to which we have referred. It is not for the defence to clear up, or resolve inconsistencies in the case for the prosecution. As soon as the inconsistency emerged, and the trial judge rejected the appellant's objection to the evidence intended to be adduced from the complainant's mother, it was open for the prosecution to offer to tender the complainant for further cross-examination. Had that happened it would then, and only then have been for the appellant, to decide whether to embrace the offer or not. If he had not, then and only then would the criticism that the Court of Criminal Appeal made of his conduct have been valid. The position of an accused who bears no burden of proof in a criminal trial cannot be equated with the position of a defendant in civil proceedings. The rule in Browne v Dunn can no more be applied, or applied without serious qualification, to an accused in a criminal trial than can the not dissimilar rule in Jones v Dunkel . In each case it is necessary to consider the applicability of the rule (if any) having regard to the essential accusatory character of the criminal trial in this country. 90 In the present case, the complainant had said without any qualification that two persons were present when the injury was inflicted: his mother and the appellant. Counsel for the appellant had put it directly to the complainant both that the injury had not been inflicted by the appellant and that the appellant was not present when the injury was suffered. It necessarily followed that, if the injury was inflicted by any person, it had to be either the complainant himself or the complainant's mother. With respect, it was completely incorrect to say that the issue of the possibility that the mother had inflicted the wound was not raised by this cross-examination: it was directly raised. It follows that this was a matter upon which the Crown prosecutor could, and indeed should, have re-examined. 91 The mother's evidence was that she was present when the wound was occasioned and that the appellant was not. Her evidence that it was accidentally inflicted by the child on himself was incredible. If the wound was not self-inflicted, it followed that, if she was telling the truth about the appellant not being present, she had inflicted the wound. Counsel for the appellant plainly intended to put that scenario to the jury as a reasonable possibility. Accordingly, he was bound (subject to what was said in MWJ and as he at all events did) to give to the mother an opportunity to deny it. 92 Accordingly, it is clear that, upon the assumption that the rule in Browne v Dunne applied to the complainant's evidence, counsel for the appellant complied with it. The criticisms directed by the learned trial judge at counsel for the appellant were, with respect, misconceived and unjustified. In my opinion, counsel acted with complete professional propriety. 93 With respect, the learned trial judge also erred in considering that there is a rule of law or evidence to the effect that a party calling a witness puts forward that witness as a witness of truth or reliability in respect of all that witness' evidence. There is no such rule. A party has always been able to call evidence from one witness that qualifies or even contradicts the evidence given by another witness called by that party. By parity of reasoning, a party has always been able to seek to adduce evidence from his or her own witness that qualifies or even qualifies some part of that witness' evidence. In the ordinary course, the rule in Browne v Dunn may require the matter of difference to be put to the first witness as a matter of fairness. It is quite possible to ask a question that gives an opportunity for qualification or contradiction in a non-leading way. The fact that there are limits on the right to cross-examine one's own witness deals with a different, though cognate, issue. In this case, counsel was entitled to approach the matter by taking issue directly with the evidence of accident. If he did so without leading, then s38 of the Evidence Act 1995 would not be an obstacle. 94 There is another matter of practice that was raised during argument upon which it might be helpful to comment. It is a widely held misconception that counsel is not entitled to put to a witness that a certain event occurred or did not occur as distinct from asking whether that event did or did not occur unless there was material in his or her brief or given or expected to be given in evidence that amounted to direct evidence of the fact. If there is material in counsel's brief or there is evidence in the trial or counsel expects that there will be evidence in the trial that justifies the drawing of an inference about the fact then, if counsel intends to submit at the end of the day that the inference should be drawn, he or she is entitled (though not, of course, obliged) to put the inference to the relevant witness or witnesses. There is no material distinction for this purpose between a fact that is the subject of direct instructions or evidence and one that is or should be inferred. 95 In this case, there were only three possible candidates for occasioning the wound. If the appellant's case ultimately to be submitted to the jury were that they might reject the accident scenario but they should acquit the accused because there was a reasonable possibility that the mother and not the appellant had inflicted the injury, then the mother's denial, if any (and it was, at all events, implicit in her evidence of accident) that she had inflicted the wound must have been "unfavourable" evidence within the meaning of s34 of the Evidence Act 1995. Accordingly leave to cross-examine upon this subject matter, had the application been made, should have been granted. 96 It may have been that, upon testing, the mother's evidence would be left in such a state that the jury might have thought that it was a reasonable possibility that she had or could well have inflicted the wound. The possibility that the appellant was not there at the time was, to that extent, bolstered. Of course, this would have entailed a reasonable doubt about the reliability of the complainant's evidence that the injury was inflicted by the appellant. In this sense, the defence of alibi and the allegation that the mother may have inflicted the wound are not inconsistent: to the contrary, they are opposite sides of the same coin, once the possibility of accident is rejected. 97 Moreover, in my view, in light of the failure of the prosecutor to re-examine on the matter, leave should not have been given to the prosecution to recall the complainant, in effect to do so. As is made clear in the above quoted passages in MWJ, it is a fundamental duty of the Crown to call all its evidence in its case. No objection was taken to recalling the complainant, no doubt because of the learned trial judge's emphatic expressions of view about the alleged breach of the rule in Browne v Dunne. Having regard to the fact that, as Sully J has demonstrated, the trial miscarried for other reasons, it is unnecessary to consider this matter further. 98 As Sully J has mentioned, the Court has had the opportunity to view the videoed interview with the complainant. It reveals a number of shortcomings. The questioning by the police officer was not such as to elicit statements about surrounding facts and, where it is attempted, fails to obtain context. It is sometimes inappropriately leading or suggestive. The child is often and easily distracted. There is evident confusion in some aspects of the complainant's recollection of events. His statements about police being called when the injury occurred and his being punched when he was two by the appellant for wetting his bed and the mention of being hit by the appellant with a baseball bat (which at first seems to have occurred on the same occasion as the cut but then to have occurred when the complainant was two) are examples. Not surprisingly, perhaps, the child cannot remember what was said at the time of the relevant injury but there are very few details of surrounding facts by which it might have been possible to test his recollection. Nor was there more than a desultory attempt to elicit any contextual detail. There appears to have been no prior angry contact and, immediately after, the appellant is said to have called the police "to get me into trouble", who do (the complainant claims) come to the house. He said the appellant told the police to "take this kid away" but they said "no". He said he and his mother were downstairs at the time. The bedroom was upstairs. If his penis had just been cut and was bleeding copiously, as was the medical evidence (as well as common sense), this scenario seems extremely unlikely. 99 The complainant said that the appellant did not have a job at the time (whilst the fact is that he was employed) and he used to accompany the appellant to the pub. It then appeared that he may have been talking about what happened when he was two or three. Confusion such as this, of course, is readily explained by confabulation. However, its presence is not supportive of reliability. 100 The fact that an injury was inflicted with a knife of the kind described by the complainant cannot reasonably be doubted. And it is difficult to see how confabulation or any other confusion could lead to a mistaken recollection about who inflicted the injury to the complainant's penis. Nevertheless, I am troubled by the complainant's apparent insouciance when giving his account, the lack of contextual detail and the obvious confabulation about some elements of the events as he describes them. 101 None of these matters justify the conclusion that the complainant is not telling the truth. But, taken together and combined with my overall impression of the interview, I am troubled about the reliability of the complainant's identification of the appellant as the person who injured him. 102 To my mind the following considerations are also relevant to the question whether a new trial should be ordered. It is now almost eight years since the injury was suffered. Part of the difficulty facing an accused where this is the case is the ready tendency to explain away problems of confusion and the like as resulting from mere failure of recollection as distinct from error as to the fundamental fact itself. Effective testing of the complainant's recollection would be even more problematical than it was over three years ago when the trial took place. The relevant employment records have been lost or destroyed. 103 Where the Court has concluded that a conviction should be quashed, it is for the Crown to establish that an order for a new trial should be made. Whether the new trial will be fair or, otherwise, the circumstances make it just that a new trial should be ordered is for the Crown to establish. It is not incumbent upon the appellant to demonstrate that the new trial will be unfair or it is unjust to make the order. 104 Were the matters that I have mentioned thus far, together with those mentioned by Sully J, the only relevant issues that need needed consideration I would agree that a order for a new trial is appropriate. 105 However, in my respectful view, an additional fundamental feature of the evidence leads me to conclude that no such order should be made. That is that, in my opinion, there is no evidence that enables a conclusion to be drawn beyond reasonable doubt that, accepting that the appellant inflicted the wound, he intended to inflict a greater injury than in fact occurred. It is clear that the injury, although not trivial, healed without medical intervention and did not amount to grievous bodily harm. In the somewhat unusual circumstances of this case, the injury itself is the only evidence that provides the evidence as to the appellant's intent (again, assuming that he inflicted the injury). The mere fact that, if the knife was wielded otherwise than it was, it might well have caused grievous bodily harm cannot amount to evidence, in my opinion, that permits the inference, certainly to the relevant standard, that there was an intention to do more than he (or she) did. By exact parity of reasoning leading to the conclusion that the offender (whomever it was) intended to inflict more harm than was actually caused is the conclusion that the offender intended to do the harm that was caused or less harm. If, as seems to me to be unarguably the case, the extent of the injury is the only evidence of intention, then the most likely inference is that the offender intended to do what was in fact done. It follows that it was not open to the jury to convict the appellant of the first count and, for the same reason, there should not be an order for a new trial. 106 HALL J: I agree with the reasons of Sully J, and the orders which his Honour proposes. ********** 16/11/2006 - Identification of parties removed - Paragraph(s) Various 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.