R v Birks (1990) 19 NSWLR 677
New South Wales Law Reports

Court of Criminal Appeal : Gleeson CJ , McInerney J and Lusher AJ
4, 11 May, 7 June 1990

Evidence — Witnesses — Cross-examination — Need to cross-examine on case on which reliance to be placed — Rule in Browne v Dunn — Criminal proceedings — Part of defence case not put — Application to criminal proceedings — Consequences of failure to observe rule — Inferences to be drawn — Caution in directing on

Criminal Law — Evidence — Burden of proof — Defences — Need to cross- examine on case on which reliance to be placed — Rule in Browne v Dunn — Criminal proceedings — Part of defence case not put — Application to criminal proceedings — Consequences of failure to observe rule — Inferences to be drawn — Caution in directing on

Criminal Law — Appeal and new trial — Conduct of legal practitioners — Incompetence of counsel — Relevant principles

Criminal Law — Appeal and new trial — Miscarriage of justice — Improper admission of evidence — Cross-examination of accused on matters not put on committal — No duty to cross-examine on committal — Comment on by trial judge inappropriate

Criminal Law — Committal proceedings — Evidence — No duty on defence to cross-examine in detail or at all

Legal Practitioners — Barristers — Incompetence of counsel — Criminal trial — Whether ground for contending miscarriage of justice — Relevant principles

An accused was indicted on eighteen counts including maliciously inflicting
bodily harm with intent to have sexual intercourse and assault occasioning
bodily harm and sixteen sexual offences. Part of the defence case was that the
injuries to the complainant were caused when the accused warded off blows
from a torch with which the complainant struck him and that there had been no
anal intercourse. Counsel for the accused neglected to cross-examine the
complainant on either of these matters. The prosecution cross-examined the
accused on his instructions to his legal advisers as to the matters above, the
answers to which were that instructions had been given. The prosecution also
cross-examined as to the failure to cross-examine on this material both on
committal and at the trial. Both the prosecution and the trial judge addressed
on the possible inferences to be drawn from the failure to cross-examine the
complainant on important matters. After the jury retired counsel for the
defence made a statement to the court that he had failed to cross-examine on
the relevant matters through oversight and had in fact had instructions on both
matters. The trial judge refused to discharge the jury. On appeal against
conviction,

Held: (1) There had been a serious miscarriage of justice warranting a new
trial.
(2)(a) (By Gleeson CJ, with whom McInerney J agreed) The rule in Browne v
Dunn applies to criminal proceedings as well as civil proceedings. It may have a
somewhat different practical content in a criminal trial. The consideration of the
purpose of securing fairness in the conduct of adversary proceedings provides
the best guide both to the practical requirements of the rule in Browne v Dunn
in a given case, and to the consequences which may properly flow from its non-
observance, including the remedies that are available to deal with the problem
so created. (686E, 689G)
Seymour v Australian Broadcasting Commission (1977) 19 NSWLR 219,
considered.
(b) The consequences of the failure to observe the rule in Browne v Dunn will
vary depending upon the circumstances of the case but will be related to the
central object of the rule which is to secure fairness. (690A)
Seymour v Australian Broadcasting Commission (1977) 19 NSWLR 219,
applied.
(c) Where counsel fails to cross-examine upon a matter of importance care is
required if comment is to be made about the breach in relation to the drawing
of inferences of fact based upon that breach. (688E, 690G)
(3) In committal proceedings there is no duty upon the defence to cross-
examine Crown witnesses either in detail or at all, (689G, 692E, 703D) and it is
ordinarily inappropriate for a trial judge to comment upon the fact that a
particular matter was not put to a witness in cross-examination during
committal proceedings. (689, 690G, 703D)
(4) (By Gleeson CJ, with whom McInerney J agreed) Where incompetence of
counsel is alleged as a ground for contending that there was a miscarriage of
justice, the relevant principles are as follows:
(a) A Court of Criminal Appeal has a power and duty to intervene in a case
of a miscarriage of justice, but what amounts to a miscarriage of justice is
something that has to be considered in the light of the way in which the system
of criminal justice operates.
(b) As a general rule an accused person is bound by the way the trial is
conducted by counsel, regardless of whether that was in accordance with the
wishes of the client, and it is not a ground for setting aside a conviction that
decisions made by counsel were made without, or contrary to, instructions, or
involve errors of judgment or even negligence.
(c) However, there may arise cases where something has occurred in the
running of a trial, perhaps as a result of “flagrant incompetence” of counsel, or
perhaps from some other cause, which will be recognised as involving, or
causing, a miscarriage of justice. It is impossible and undesirable to attempt to
define such cases with precision. When they arise they will attract appellate
intervention. (685E)
R v McCall (1920) 20 SR (NSW) 467; 37 WN (NSW) 189; Batchelor v Pattison
and Mackersy (1876) 3 R (Ct of Sess) 914; Rondel v Worsley [1969] 1 AC 191
and R v Ensor [1989] 1 WLR 497; [1989] 2 All ER 586, considered.
Note:
A Digest — EVIDENCE (2nd ed) [186]; CRIMINAL LAW (2nd ed) [299],
[614], [635], [643]; LEGAL PRACTITIONERS (2nd ed) [95], [273]
CASES CITED
The following cases are cited in the judgments:
Allied Pastoral Holdings Pty Ltd v Commissioner of Taxation [1983] 1 NSWLR 1.
Batchelor v Pattison and Mackersy (1876) 3 R (Ct of Sess) 914.
Britton v Commissioner for Road Transport (1947) 47 SR (NSW) 249; 64 WN
(NSW) 16.
Browne v Dunn (1893) 6 R 67.

Hatch v Lewis (1861) 2 F & F 467; 175 ER 1145.
Knowles, Re [1984] VR 751.
McInnis v The Queen (1979) 143 CLR 575.
McPherson v Copeland 1961 SC (J) 74; 1961 SLT 373.
Matthews v Munster (1887) 20 QBD 141.
Nominal Defendant v Clements (1960) 104 CLR 476.
R v Edwards, Underwood and Edwards (1848) 3 Cox CC 82.
R v Ensor [1989] 1 WLR 497; [1989] 2 All ER 586.
R v Fenlon (1980) 71 Cr App R 307.
R v Gautam (The Times, 4 March 1987).
R v Gibson (1887) 18 QBD 537.
R v Irwin [1987] 1 WLR 902; [1987] 2 All ER 1085.
R v McCall (1920) 20 SR (NSW) 467; 37 WN (NSW) 189.
R v Manunta (Court of Criminal Appeal, South Australia, 28 July 1989, unreported).
R v Robinson [1977] Qd R 387.
Rondel v Worsley [1969] 1 AC 191.
Rowe v Australian United Steam Navigation Co Ltd (1909) 9 CLR 1.
Seymour v Australian Broadcasting Commission (1977) 19 NSWLR 219.
Shaw v The Queen (1952) 85 CLR 365.
Stirland v Director of Public Prosecutions [1944] AC 315.
APPEAL
This was an appeal against conviction and sentence on a number of
charges involving assault, malicious injury and sexual intercourse without
consent.
K P Coorey, for the appellant.
K Mason QC (Solicitor-General), for the respondent.
Cur adv vult

7 June 1990
GLEESON CJ. The appellant was tried before Flannery DCJ and a jury
in the District Court on a number of charges including maliciously inflicting
bodily harm with intent to have sexual intercourse, and having sexual
intercourse with a woman without her consent, knowing that she was not
consenting. He was convicted of the charges and sentenced to a total term of
imprisonment of fifteen years with a non-parole period of ten years. At the
time of the alleged offences the appellant, who has a substantial criminal
record, was on parole.
The sole ground of appeal is that the trial of the appellant miscarried by
reason of a combination of circumstances which will be described below. It is
necessary, before stating those circumstances, to refer briefly to the issues at
the trial and to certain features of the way in which the trial was conducted.
The complainant was a married woman who was temporarily separated
from her husband and who was living with her two young children in a
somewhat isolated farmhouse in the western districts of New South Wales.
She said that she was sexually assaulted by the appellant who called at the
farmhouse late one night seeking assistance in relation to some trouble that
had developed with his car. The appellant, who gave evidence at the trial,
admitted having sexual intercourse with the complainant. His defence was
that she consented. Indeed, he asserted that it was she who initiated the

sexual activity. The appellant’s case at the trial was not assisted by the
undoubted fact that the complainant suffered extensive lacerations and
bruising to her face. She was examined by a doctor soon after the relevant
events. The doctor gave evidence at the trial. The complainant said that the
appellant punched her. She said that he also threatened her and her children
and that it was the physical violence and verbal threats that resulted in the
intercourse. The injuries to the complainant’s face were the subject of the
first charge, that is to say, the charge of malicious wounding. Clearly,
therefore, the question as to how she came to suffer those injuries was
critical to the first charge and it was also of substantial practical importance
in relation to the subsequent charges. If the jury concluded that, as the
complainant alleged, the appellant, upon entering her house, punched her in
the face, they might have had some difficulty about treating that as a prelude
to consensual sexual intercourse.
In her evidence in chief the complainant said that the appellant, dirty and
unkempt in appearance, and foul-smelling, entered the house and surprised
and alarmed her. She hit him over the head with a torch. He punched her in
the face. He threatened her and the children, and then repeatedly, in a
variety of ways, sexually assaulted her. Without her consent he had vaginal,
oral and anal intercourse with her.
The appellant was represented at the trial by a barrister and a solicitor.
The barrister was very inexperienced. The solicitor, it appears, did not even
brief him with a written statement or proof of evidence of the appellant.
However, the barrister had interviewed the appellant in prison and taken
from him an account of the events of the evening in question. The barrister
cross-examined the complainant in some detail and put to her that, although
intercourse occurred, it was consensual. He did not put to her that no anal
intercourse occurred. The significance of that will appear below. Further, he
failed to cross-examine her at all about her account of how she came to
sustain the facial injuries which she undoubtedly suffered.
When the appellant came to give evidence two significant facts emerged.
First, although the appellant admitted having oral and vaginal intercourse
with the complainant, he denied having anal intercourse. Secondly, and more
importantly, the appellant, in his evidence in chief, after a deal of prompting
by his barrister, gave an exculpatory account of how the complainant came to
suffer her facial injuries. It was as follows. He agreed that when he entered
the complainant’s house he surprised and alarmed her, although he said that
he had no intention to do so. He accepted that she swung a torch at his head.
He said that he threw up his arms to ward off the blow and in so doing
knocked the torch out of her hand. The torch flew up and hit her on the face.
That was how she came to suffer the cuts and bruises. He went on to say that
she invited him to have a cup of tea and later made sexual advances to him.
This account of how the complainant’s injuries had been sustained had two
difficulties about it. First, it is not easy to explain how a torch could have
caused the actual injuries to the complainant’s face, bearing in mind their
nature and location. However, the appellant, when cross-examined about
that matter, made a fair attempt at standing his ground. The other problem
was that this account had never been put to the complainant in cross-
examination.
The appellant thereupon found himself the subject of a vigorous attack by

the Crown Prosecutor based upon what is sometimes called the rule in
Browne v Dunn (1893) 6 R 67 (HL). Somewhat surprisingly, he was cross-
examined about his knowledge of the rule itself, and, even more surprisingly,
gave some answers which appeared to acknowledge an acquaintance with it.
Whilst he is a person with experience in the criminal courts, it is difficult to
take those answers at face value. The cross-examination included the
following questions and answers:
“Q. You realise lawyers have a function to play in court? A. Yes.
Q. It is their duty to put their client’s instructions to the appropriate
witnesses? A. That is correct, yes.
Q. Where one witness’ evidence is in contest with other instructions it
is their duty to cross-examine that person about those instructions?
A. Correct, yes.
Q. You know that? A. Yes.
Q. Yet it was not done, was it? A. No, it was not.
Q. And it was not done because you are being untruthful. A. I am
not.”
The Crown Prosecutor, without objection, cross-examined the appellant
extensively about his instructions to his barrister. The appellant maintained
that he had instructed his lawyers that no anal intercourse took place and
that the complainant’s facial injuries were caused by the torch. It was put to
him that he was lying about these matters, and that his barrister’s failure to
cross-examine the complainant about the points in question, considered in
the light of counsel’s duty as jointly expounded by the Crown Prosecutor and
the appellant, demonstrated that the appellant had never told his barrister
about the matters in question, that he was in fact making up a story as he
went along, and that he was not to be believed.
The failure on the part of the defence counsel to object to the cross-
examination of his client as to the information and instructions given to his
legal representatives did not, as it turned out, reflect some tactical decision.
By the line of questioning he adopted the Crown Prosecutor exposed himself
to the possibility of an effective response on the part of the defence.
However, none came. No attempt was made to lead evidence of the
instructions given by the appellant, either in the form of the tender of his
proof of evidence (actually, none existed) or by calling the evidence of the
appellant’s solicitor, to support the appellant’s claim that he had instructed
his lawyers in a manner consistent with his evidence. Nor was it suggested by
anybody that, in so far as the problem was one of fairness in the conduct of
the defence case, it could be dealt with by recalling the complainant and re-
opening her cross-examination.
Both in the address to the jury of the Crown Prosecutor and in the learned
judge’s summing-up, considerable emphasis was placed upon the failure of
the appellant’s barrister to cross-examine the complainant about the matters
concerning anal intercourse and the striking of her face by the torch. It was
put to the jury that what had occurred in that regard had a very important
bearing on the credibility of the appellant. The jury were told, correctly
enough, that in the end it came down to a question of their assessment of the
reliability of the complainant, on the one hand, and the appellant on the
other. In that critical respect they were invited to take into account, adversely
to the appellant, the way in which the cross-examination of the complainant

had been conducted, and the contrast between what was put to her in cross-
examination, and what the appellant said in his evidence. For example, his
Honour said to the jury:
“But, summarising the propositions put by the Crown as to the
untruthfulness of the accused in the witness box, his first point, putting
it very shortly, is that his account of what happened to the torch after he
was hit is hard to believe. That is a separate submission. Without
anything else it is not a likely story, the Crown says, but he says it goes
beyond that. …
It was not suggested to the doctor so we could have the benefit of his
view or the dentist’s view of whether this could have happened through
an impact with the torch. Perhaps even more significantly, says the
Crown, (the complainant) was not asked whether she was struck by the
torch.
Now, I perhaps should say something about this subject. The rules of
evidence, even of fairness, would require that if you have a dispute with
a witness, the witness says: I was punched, for example, and you say or
the accused said: no, it was not a punch, it was a torch and it was an
accident; fairness, you may think, requires that the cross-examiner puts
to the witness not only that she was not punched but that she was struck
with a torch. It was never done. Here — not done here nor at the lower
court nor before the magistrate, never put. …
It first surfaced when the accused gave evidence. The Crown puts to
you, therefore, that would cause you to be sceptical as to the veracity or
the truthfulness, reliability of the accused’s evidence.
The Crown further says that it is the accused’s case in this Court, that
no anal intercourse took place. The first we heard about that was when
he went into the witness box. (Counsel) cross-examined the
(complainant) and did not make one reference to it, did not put a
question to her such as this: There was never any anal intercourse. One
would think, as a matter of fairness that if that was his case, that
question should have been put. And the inference that the Crown invites
you to draw from that failure to ask that question is not that (counsel)
was doing his duty, but that he was not instructed by his client, the
accused that no anal intercourse took place.”
No objection was taken to those directions to the jury. There is an
important feature of them which should be noted, and to which it will be
necessary to return. They run together two somewhat different
considerations. First, they refer to the matter of fairness. Secondly, they
invite the jury to treat the conduct of counsel as a relevant factor when
engaging in their own decision-making process and in particular when
forming views as to the credibility of the appellant.
After the jury retired to consider their verdict counsel for the appellant
made a statement to the trial judge from the bar table. In short, he asserted
that his failure to cross-examine the complainant about the matters of the
torch, and the anal intercourse, were the result of his own oversight, and that
he had indeed been instructed by the appellant that no anal intercourse took
place, and that it was the torch that had damaged the complainant’s face. It
would be something of an understatement to say that confusion resulted. The
learned judge asked counsel if he wanted the jury to be redirected in any

way, and counsel declined. The learned judge asked counsel if he was
applying for the jury to be discharged, and counsel ultimately agreed that he
was. There was a good deal of debate and, apparently with considerable
misgivings, the learned judge declined to discharge the jury who, for their
part, returned fairly promptly with verdicts of guilty.
Both in the discussion that took place about the matter at the trial, and in
argument before this Court, the Crown gave unqualified acceptance to the
truth of the statements made by counsel from the bar table. Furthermore,
evidence in the form of affidavits from the barrister and his instructing
solicitor was adduced in this Court. It was made clear to this Court, and
accepted by both sides, that the appellant’s barrister was well aware of the
problem that had arisen as a result of his oversight at a time no later than
during the cross-examination of the appellant at the trial. There were various
steps that he could have taken before the conclusion of evidence to seek to
remedy the situation. For example, he could have called his instructing
solicitor to support the appellant’s evidence as to the instructions given by
the appellant to his lawyers. As a last resort, he could have returned his brief
in the matter and given evidence himself. His reason for not doing any of
those things was not based on some tactical decision, but was that he simply
did not know what to do. It appears that he hoped that the problem would
become submerged in the mass of other detail but the consequences of his
error became more and more obvious during the course of the address of
the Crown Prosecutor and the summing-up. Finally, and apparently in some
desperation, after the conclusion of the summing-up, he took the advice of a
colleague at the bar and was advised at that stage to take the course
described above.
The appellant contends that all this resulted in a miscarriage of justice. In
order to deal with that submission it is necessary to consider with some
particularity the features of the matter which are said to give rise to that
miscarriage. The first concerns the conduct of counsel, including his failure
to cross-examine the complainant on important issues and his subsequent
failure to take steps to deal with the problem after it had become obvious.
In our system of criminal justice a trial of an accused person is conducted
in the manner of a contest between the Crown and the accused, and that trial
has many (although not all) of the features which attend civil litigation
conducted in accordance with what is sometimes described as the adversary
system of justice. To a large extent the parties to such proceedings are bound
by the manner in which they conduct them. It is the parties who decide, for
example, what information will be put before a tribunal of fact, and the
tribunal bases its decision on that information.
As a general rule, a party is bound by the conduct of his or her counsel,
and counsel have a wide discretion as to the manner in which proceedings
are conducted. Decisions as to what witnesses to call, what questions to ask
or not to ask, what lines of argument to pursue and what points to abandon,
are all matters within the discretion of counsel and frequently involve
difficult problems of judgment, including judgment as to tactics. The
authorities concerning the rights and duties of counsel are replete with
emphatic statements which stress both the independent role of the barrister
and the binding consequences for the client of decisions taken by a barrister
in the course of running a case. For example, in Rondel v Worsley [1969]

1 AC 191 at 241, Lord Morris of Borth-y-Gest quoted with approval the
following statement of the Lord President in the Scottish case of Batchelor v
Pattison and Mackersy (1876) 3 R (Ct of Sess) 914, concerning the role of an
advocate:
“… His legal right is to conduct the cause without any regard to the
wishes of his client, so long as his mandate is unrecalled, and what he
does bona fide according to his own judgment will bind his client, and
will not expose him to any action for what he has done, even if the
client’s interests are thereby prejudiced.”
In Halsbury’s Laws of England, 4th ed, vol 3(1), par 518 at 420, it is stated
that:
“… a barrister is ordinarily instructed on the implied understanding
that he is to have complete control over the way in which the case is
conducted. Unless and until his instructions are withdrawn, counsel has,
with regard to all matters that properly relate to the conduct of the case,
unlimited authority to do whatever he considers best for the interests of
his client. This authority extends to all matters relating to the action,
including the calling and cross-examination of witnesses, challenging a
juror, deciding what points to take, choosing which of two inconsistent
defences to put forward, and even to agreeing to a compromise of the
action, or to a verdict, order or judgment.”
(See also R v Edwards Underwood and Edwards (1848) 3 Cox CC 82; Hatch v
Lewis (1861) 2 F&F 467; 175 ER 1145, Matthews v Munster (1887) 20 QBD
141 and Rowe v Australian United Steam Navigation Co Ltd (1909) 9 CLR 1
at 24 per Isaacs J.)
There is an evident tension between those principles, on the one hand, and
on the other hand, the power and duty of a Court of Criminal Appeal to
correct a miscarriage of justice. It would be wrong, however, simply to
regard these as two competing considerations which must from time to time
yield to some compromise. The principles as to the role of counsel, and the
capacity of counsel to bind the client, are fundamental to the operation of
the adversary system, and form part of the practical content of our notions of
justice.
It sometimes happens that a person who has been convicted of a crime
seeks to have the conviction set aside on the ground that counsel at the trial
has acted incompetently, or contrary to instructions. It is well settled that
neither of these circumstances will, of itself, attract appellate intervention. At
the same time the courts acknowledge the existence of a power and duty to
quash a conviction in some cases. The difficulty is to find, in the authorities,
a formula which adequately and accurately defines the class of case in which
a Court of Criminal Appeal will intervene. A common theme running
through the cases, however, is that such intervention is a matter about which
the courts are extremely cautious.
The existence of a power of intervention was acknowledged in this State by
Cullen CJ in R v McCall (1920) 20 SR (NSW) 467 at 472-473; 37 WN
(NSW) 189 at 192, where his Honour, in considering the consequences of
failure to call alibi evidence at a trial said:
“… There are so many potentialities of mischief in reopening the
verdict of the jury on the suggested evidence of additional witnesses on
the defence of an alibi that the precaution taken by the Court of

requiring a satisfactory reason why they were not called at the trial is an
eminently justifiable one. Notwithstanding that, if the Court can see that
either by some remissness, or defect of judgment, or neglect of duty,
either on the part of the accused or of his counsel, testimony has been
omitted which is seen to be of a kind suggesting that in its absence a
miscarriage of justice has occurred, the Court would never hamper itself
by any rule of practice so as to prevent a person wrongly convicted, or
on sufficient grounds suspected to have been wrongly convicted, from
having relief before the court of Criminal Appeal.”
The Victorian authorities are considered in the judgment of the Full Court
of the Supreme Court of Victoria in Re Knowles [1984] VR 751. The subject
has also recently been considered by the Court of Appeal in England in R v
Ensor [1989] 1 WLR 497; [1989] 2 All ER 586. The Lord Chief Justice,
approving R v Gautam (The Times, 4 March 1987) and disapproving R v
Irwin [1987] 1 WLR 902; [1987] 2 All ER 1085, expressed the view that if
defending counsel in the course of the conduct of the case makes a decision,
or takes a course, which later appears to have been mistaken or unwise, that,
generally speaking, is not a proper ground for an appeal. To that, however,
his Lordship added the rider that “if the court had any lurking doubt that the
appellant might have suffered some injustice as a result of flagrantly
incompetent advocacy by his advocate, then it would quash the convictions”.
The relevant principles, may be summarised as follows:
1. A Court of Criminal Appeal has a power and a duty to intervene in the
case of a miscarriage of justice, but what amounts to a miscarriage of justice
is something that has to be considered in the light of the way in which the
system of criminal justice operates.
2. As a general rule an accused person is bound by the way the trial is
conducted by counsel, regardless of whether that was in accordance with the
wishes of the client, and it is not a ground for setting aside a conviction that
decisions made by counsel were made without, or contrary to, instructions,
or involve errors of judgment or even negligence.
3. However, there may arise cases where something has occurred in the
running of a trial, perhaps as the result of “flagrant incompetence” of
counsel, or perhaps from some other cause, which will be recognised as
involving, or causing, a miscarriage of justice. It is impossible, and
undesirable, to attempt to define such cases with precision. When they arise
they will attract appellate intervention.
In the present case the inexperience of trial counsel gave rise to an
unusual and extreme situation. This is not merely because he forgot to ask
some questions in cross-examination. That happens to the best and most
experienced of advocates. There are two features of the case which take it
out of the ordinary run. In the first place, the matter concerning the torch
and the alleged punching was not only of importance in relation to the events
leading up to the sexual assaults, it went to the whole issue in relation to the
first charge. Counsel virtually failed to cross-examine at all about that serious
charge. Secondly, there were various ways in which the problem, once it
became apparent during the cross-examination of the appellant, could have
been dealt with. In the running of a trial, counsel often have cause to regret
things they have done or left undone. Damage control is part of the art of
advocacy. There was ample scope for that here. The position in which the

appellant was left was indeed invidious. It was being put to him, in effect,
that the story he gave in evidence was different from that he had given his
lawyers. As a matter of fact, it was not. His denials were contrasted with the
conduct of his counsel. The matter was said to go to his credibility. There
was available evidence to support him and to rebut the inference the jury
were invited to draw from counsel’s conduct. Counsel and his instructing
solicitor both knew that the interpretation the jury were invited to put on
counsel’s actions was erroneous and they heard their client assailed in cross-
examination with that interpretation. All this was occurring, not after the
evidence closed and when it was then too late to repair the damage, but at a
time when the mistake could have been rectified. The failure to deal with the
matter was not the result of a deliberate, even if perhaps unwise, tactical
decision to make as little fuss as possible about subjects on which it was
thought that the less that was said the better. This was not a matter of taking
a calculated risk. The barrister simply did not know what to do, and so, until
it was too late, he did nothing.
It should not be thought, however, that the failures of the appellant’s
counsel to which attention has been drawn constituted the only respect in
which the proceedings were affected by error. There was, unfortunately, a
combination of circumstances which together resulted in what I regard as a
miscarriage of justice. They all related in one way or another to the original
inadequacy of the cross-examination of the complainant, and the conse¬
quences that flowed from that.
Since so much was made at the trial of what is often called the rule in
Browne v Dunn it is necessary to make some observations upon four matters:
first, the nature of the “rule” itself; secondly, its application to criminal trials;
thirdly, the remedies that are available in the event of a breach of the rule,
and fourthly, the scope for drawing inferences of fact based upon a failure of
counsel to cross-examine.
It is accepted as a rule of professional practice in this State that there is a
general requirement, subject to various qualifications, that a cross-examiner
put to an opponent’s witness the matters in respect of which, or by reason of
which, it is intended to contradict the witness’ evidence. (The rule is
discussed, for example, by Hunt J in Allied Pastoral Holdings Pty Ltd v
Commissioner of Taxation [1983] 1 NSWLR 1 at 16.) The very subject
matter of the rule, however, indicates a need for a degree of caution in its
formulation; caution which is to be found in the speeches in Browne v Dunn
itself. Cross-examination is an art, and the means that may be legitimately
employed to cut down the effect of the evidence of a witness or to put a
witness or a party upon fair notice of a point are multifarious.
Browne v Dunn was a case in which there was an issue as to whether a
document was genuine or a sham. Counsel for the appellant, in the House of
Lords, put an argument to the effect that it should have been concluded at
first instance that the document was a sham. However, a number of persons
who had signed the document as witnesses had been called at the trial and it
had never been suggested to them that the document was anything but
genuine. The House of Lords regarded the appeal as hopeless and counsel
for the respondent was not called upon. Lord Herschell LC said (at 70-71):
“Now, my Lords, I cannot help saying that it seems to me to be
absolutely essential to the proper conduct of a cause, where it is

intended to suggest that a witness is not speaking the truth on a
particular point, to direct his attention to the fact by some questions put
in cross-examination showing that that imputation is intended to be
made, and not to take his evidence and pass it by as a matter altogether
unchallenged, and then, when it is impossible for him to explain, as
perhaps he might have been able to do if such questions had been put to
him, the circumstances which it is suggested indicate that the story he
tells ought not to be believed, to argue that he is a witness unworthy of
credit. My Lords, I have always understood that if you intend to
impeach a witness you are bound, whilst he is in the box, to give him an
opportunity of making any explanation which is open to him; and, as it
seems to me, that is not only a rule of professional practice in the
conduct of a case, but is essential to fair play and fair dealing with
witnesses. … Of course I do not deny for a moment that there are cases
in which that notice has been so distinctly and unmistakeably given, and
the point upon which he is impeached, and is to be impeached, is so
manifest, that it is not necessary to waste time in putting questions to
him upon it. All I am saying is that it will not do to impeach the
credibility of a witness upon a matter on which he has not had any
opportunity of giving an explanation by reason of there having been no
suggestion whatever in the course of the case that his story is not
accepted.”
Lord Halsbury said (at 76-77):
“My Lords, with regard to the manner in which the evidence was
given in this case, I cannot too heartily express my concurrence with the
Lord Chancellor as to the mode in which a trial should be conducted.
To my mind nothing would be more absolutely unjust than not to cross-
examine witnesses upon evidence which they have given, so as to give
them notice, and to give them an opportunity of explanation, and an
opportunity very often to defend their own character, and, not having
given them such an opportunity, to ask the jury afterwards to disbelieve
what they have said, although not one question has been directed either
to their credit or to the accuracy of the facts they have deposed to.”
Lord Morris expressed qualified agreement. His Lordship said (at 79):
“My Lords, there is another point upon which I would wish to guard
myself, namely, with respect to laying down any hard-and-fast rule as
regards cross-examining a witness as a necessary preliminary to
impeaching his credit. In this case, I am clearly of opinion that the
witnesses, having given their testimony, and not having been cross-
examined, having deposed to a state of facts which is quite reconcilable
with the rest of the case, and with the fact of the retainer having been
given, it was impossible for the plaintiff to ask the jury at the trial, and it
is impossible for him to ask any legal tribunal, to say that those
witnesses are not to be credited. But I can quite understand a case in
which a story told by a witness may have been of so incredible and
romancing a character that the most effective cross-examination would
be to ask him to leave the box. I therefore wish it to be understood that
I would not concur in ruling that it was necessary, in order to impeach a
witness’s credit, that you should take him through the story which he

had told, giving him notice by the questions that you impeached his
credit.”
It is plain that their Lordships, whilst recognising and affirming a rule of
practice in the terms in which they expressed themselves, also recognised the
need for flexibility in its application. That need arises from the very nature of
the subject matter which it concerns. The central purpose of the rule is to
secure fairness in the conduct of adversary proceedings. That consideration
provides the best guide, both to the practical requirements of the rule in a
given case, and to the consequences which may properly flow from its non-
observance, including the remedies that are available to deal with a problem
so created.
Browne v Dunn was a civil case. There are some obvious difficulties
concerning the operation of the rule in criminal trials. The notion of fairness,
whilst it has relevance to criminal as well as to civil proceedings, may have a
somewhat different practical content in a criminal trial. Furthermore an
accused at a criminal trial may be unrepresented, and it would ordinarily be
quite inappropriate to expect such a person to be bound by, and suffer the
consequence of a breach of, what was originally described in the House of
Lords as “a rule of professional practice”. (Curiously enough, that appears to
be exactly what happened in McInnis v The Queen (1979) 143 CLR 575, and
it is surprising that Murphy J referred to the matter (at 590) without adverse
comment.) It is quite common for an accused person at a criminal trial,
whether represented or unrepresented, and whether in evidence or an
unsworn statement, to come out with a version of the facts that has not been
put to the Crown witnesses. This might well provide an appropriate subject
for comment, but, for reasons that will be expanded below, there may be
need for some care in the formulation of the appropriate comment.
Views have differed on the question whether the rule has any application
in a criminal trial. In 1961, it was held in Scotland that it does not. In
McPherson v Copeland 1961 SC (J) 74 the Court of Justiciary was dealing
with a case in which the trial judge disallowed a line of cross-examination of
a witness at a criminal trial on the ground that an earlier witness, who should
have been cross-examined about the same matter had been called but not
cross-examined. The Lord Justice-Clerk said:
“In my view, the Sherrif-substitute was wrong in sustaining the
objection. The principle on which he went may well be of significance in
civil proceedings. But in many respects criminal proceedings differ
vitally from civil. In criminal trials nothing is taken for granted; the
burden of proof is on the Crown throughout; and that burden is to
establish the case against the accused beyond reasonable doubt.
Ordinarily, there is no burden on the accused and he is entitled to sit
back and leave the Crown to it. Of course, if he sits back too far and too
long, he may come to grief, but that is his own affair. He may leave the
Crown evidence severely alone, in the hope that it does not reach the
standard of reasonable certainty, or he may intervene at points where he
is hopeful of raising a reasonable doubt. It follows that the procurator
for the accused may be as selective as he chooses in cross-examination.
The worst that can happen to him is that his selection may be criticised
and his omissions commented upon. There was no obligation on him to
cross-examine Donaldson. For all that I know, he may have had good

reason for not doing so; much depends on what sort of witness
Donaldson was, and the particular sort of evidence he gave. By not
cross-examining him, he ran the risk of his evidence being taken at its
face value, but that may have been a risk which he was willing to run.
His failure was always open to comment.”
The judgment does not expand upon the question of what the exact nature
of the “comment” might be. In any event, a different view prevails in this
State, and in England.
In R v Fenlon (1980) 71 Cr App R 307, there was a question as to the
application of the rule in relation to the cross-examination by one co-accused
to another. Lord Lane CJ said (at 313) after quoting from the speeches in
Browne v Dunn:
“Mr Goldberg submits that that is a rule which applies to counsel
prosecuting on behalf of the Crown. It is his clear duty, he concedes, to
put to witnesses the version of events for which he contends, so that
they can answer it. But he further submits that it is not the duty of one
defendant to put to another defendent his version of events where it
differs from the version given by that other defendent.
We can see no distinction in principle between the one situation and
the other. The basis of the rule, as Lord Herschell pointed out, is to give
a witness of whom it is going to be said or suggested that he was not
telling the truth an opportunity of explaining and if necessary of
advancing further facts in confirmation of the evidence which he has
given. There seems to be no reason why there should be any different
rule relating to defendants between themselves from that applying to
the prosecution vis-à-vis the defendant or the defence vis-à-vis the
prosecution. It is the duty of counsel who intends to suggest that a
witness is not telling the truth to make it clear to the witness in cross-
examination that he challenges his veracity and to give the witness an
opportunity of replying. It need not be done in minute detail, but it is
the duty of counsel to make it plain to the witness, albeit he may be a
co-defendant, that his evidence is not accepted and in what respects it is
not accepted.”
However, whilst the rule does apply in this State in criminal as well as civil
proceedings, its practical content needs to be related to the circumstances of
the particular case, and one important circumstances may be that what is
involved is a criminal trial. The precise significance of that may vary from
case to case. Having regard to one observation made by the learned trial
judge in the present case there is one particular aspect to the application of
the rule to criminal proceedings to which special attention should be drawn.
The learned trial judge commented upon the fact that a particular matter
was not put in cross-examination during the committal proceedings. Such a
comment is normally inappropriate. It has never been the rule in committal
proceedings in this State that there is a duty to cross-examine Crown
witnesses whether in detail or at all. Indeed, it would be most regrettable,
and would lead to undue lengthening of committal proceedings, for any such
rule to be adopted.
The consequences of a failure to observe the rule in Browne v Dunn will
vary depending upon the circumstances of the case, but they will usually be
related to the central object of the rule, which is to secure fairness. In a

judgment of Mahoney JA in Seymour v Australian Broadcasting Commission
(1977) 19 NSWLR 219, his Honour said (at 236-237):
“This kind of problem may arise at different times in the litigation. It
may arise during the trial. Thus, where a party fails to cross-examine a
witness at all or on a particular matter, it may be prudent for the trial
judge at the time to draw the attention of counsel in an appropriate way
to the effect this may have on the later conduct of the trial. It may be
that the question arises at a later stage in the trial when counsel seeks to
call evidence contradicting the witness or discrediting his evidence, or
seeks to address upon the basis that the witness’s evidence is untrue.
The trial judge may then have to determine what course should be
followed. Sometimes the interests of justice may be served by having the
witness recalled for cross-examination. Sometimes the circumstances
may be such that the only way in which justice can be achieved is by
directing that, for example, it is not open to counsel, in address, to make
such suggestion. What is to be done will depend, as I have said, upon
the circumstances of the case. In other cases, the problem may arise
only on appeal. This, in my opinion, is what happened in Precision
Plastics Pty Ltd v Demir (1975) 132 CLR 362. The appellant had argued
successfully before the Court of Appeal that the amount awarded to her
by the jury was so small that it was out of proportion to her injuries.
The respondent defendant had apparently argued before the High
Court that the amount awarded would not have been out of proportion
if the jury had concluded that the plaintiff, uninjured, would not have
continued to work as she had sworn that she proposed to do. Gibbs J
(at 370-371) pointed out that the plaintiff had not been cross-examined
upon her evidence in that regard and that therefore it would not have
been open to the jury to reject that part of her case. It would have been
‘unreasonable’ for them to have taken a contrary view, and his Honour
concluded that it was not open to the respondent to support its case
upon the basis that it had.”
The above passage indicates the variety of circumstances in which a failure
to observe the rule can manifest itself, and the ways in which a significant
unfairness may be avoided.
However, as in the present case, it is often suggested that the practical
effect of the rule goes a good deal further. It is one thing to say that the
interests of fairness to a witness or a party require observance of the rule,
and that some interests of fairness may well produce various consequences if
the rule is not observed. However, the rule is often invoked for the purpose
of entering into another area of discourse, that is to say, the drawing of
inferences by a tribunal of fact. This is what is often behind references that
are made to a “comment” following apparent non-observance of the rule. It
is important, in the interests of accuracy, to consider the substance of the
comment to which reference is made. It is one thing to remark upon the fact
that a witness or a party appears to have been treated unfairly. It is quite
another thing to comment that the evidence or unsworn statement of a
person should be disbelieved, perhaps as a recent invention, because it raises
matters that were not put in cross-examination to other witnesses by that
person’s counsel. Depending upon the circumstances of the case either or
both of those comments may be available: see, eg, R v Robinson [1977] Qd R

387 at 394. However, especially in a criminal trial, there are considerations
which may indicate the need for caution. What happened in the present case
is an excellent illustration of those considerations. They were referred to by
King CJ in the Court of Criminal Appeal in South Australia in R v Manunta
(28 July 1989, unreported). In that case a trial judge had drawn attention to
the fact that the accused’s counsel had failed to put in cross-examination
certain exculpatory matters to which the accused later made reference. The
trial judge drew the jury’s attention to the rule in Browne v Dunn and said:
“You are entitled, for example, to ask yourselves, ladies and
gentlemen, could these be matters of recent invention be concocted by
the defendant and his witness in an attempt to cast doubts on the
evidence of the police officers without giving to the police officers the
opportunity of contradicting this proposition?”
King CJ said:
“It seems to me that the failure of counsel to cross-examine the police
officers on the topic left open the inference that the challenge to the
notes was an afterthought on the part of the appellant and was simply a
lie told in cross-examination because he thought it would serve his
interests. The cogency of such an inference might be open to question.
It is possible that the idea that the police were referring to notes other
than those made at the time might not have occurred either to the
appellant or to his legal advisers. The appellant may have realised it
only when the notes were placed in his hands during cross-examination.
No such explanation, however, was elicited in re-examination. I think
that the point was open for the consideration of the jury; its weight was
for them to determine.”
However, his Honour also went on to say:
“I have been concerned about the prominence which the learned
judge gave to these matters in the course of the summing-up. It is
legitimate, of course, to draw appropriate conclusions from counsel’s
failure to put in cross-examination some matter to which his client or
his witnesses subsequently depose. It is a process of reasoning, however,
which is fraught with peril and should therefore be used only with much
caution and circumspection. There may be many explanations of the
omission which do not reflect upon the credibility of the witnesses.
Counsel may have misunderstood his instructions. The witnesses may
not have been fully co-operative in providing statements. Forensic
pressures may have resulted in looseness or inexactitude in the framing
of questions. The matter might simply have been overlooked. I think
that where the possibility of drawing an adverse inference is left to the
jury, the jury should be assisted, generally speaking, by some reference
to the sort of factors which I have mentioned. Jurors are not familiar
with the course of trial or preparation for trial and such considerations
may not enter spontaneously into their minds.”
I would respectfully adopt those views. I would add that one particular
matter which makes it difficult for jurors to use the conduct of counsel as a
basis for drawing inferences of fact is that most jurors are unaware of the
principles, some of which have been set out earlier in this judgment, relating
to the wide discretion available to counsel as to the manner in which a trial
may be conducted. It may be easy for a jury, unless given an appropriate

warning, to assume that a barrister is merely some kind of “mouthpiece” for
the client, conducting the case in close conformity with the client’s directions.
For reasons that have already been explained, this is far from the truth.
The failure of trial counsel to cross-examine the complainant as to how
she suffered her facial injuries was plainly in contravention of the
requirements of the rule of professional practice discussed above. If the
complainant had been confronted with the suggestion that her injuries had
been caused by a torch and given the opportunity to deal with it, she might
have dealt with it very effectively. She might, for example, have given some
details about the size or weight of the torch (which was apparently not
available at the trial) which would have indicated that it was unlikely that
such an object could have caused the particular injuries she suffered. If
considerations of fairness had been all that was involved, and an appropriate
application had been made, she might have been recalled for further cross-
examination. That would have been a matter calling for an exercise of
discretion by the trial judge. In the events that occurred, however, the issue
was pursued by the Crown Prosecutor, and taken up by the learned judge, on
the subject of the credibility of the appellant’s evidence, in a manner which
was inconsistent with the need for caution stressed by King CJ; a need
which, although neither the Crown Prosecutor nor the judge realised it at the
time, was very much in point in the circumstances of the case.
The combined effect of these various errors was that there was a
miscarriage of justice. The appellant did not receive a fair trial.
The appeal should be allowed. The convictions and sentences should be
quashed. There should be a new trial on all charges.
McINERNEY J. I agree with the reasons for judgment of the Chief
Justice and the orders proposed by him.
LUSHER AJ. The factual background of this appeal may be stated
shortly. The trial took place before Flannery DCJ and a jury and the accused
was indicted on eighteen counts, the first being the charge of inflicting actual
bodily harm upon the complainant, the second being that he did assault her
thereby occasioning her actual bodily harm and the remainder being charges
relating to sixteen sexual offences, all of which charges were alleged to have
taken place on 8 June 1986. The accused pleaded not guilty and was
represented by counsel. The accused was convicted and subsequently
sentenced to fifteen years imprisonment with a non-parole period of ten
years to date from 16 December 1988.
The matter went to the jury and the accused was found guilty on all
counts. The ground of appeal relied upon was that the trial judge erred in
failing to discharge the jury after retirement and before verdict. This ground
was treated as a basis for a miscarriage of justice.
The complainant at the time was living alone temporarily with her very
young children then aged six and one year respectively in an isolated country
cottage. On the particular night the accused, a total stranger, claimed to have
had a mechanical breakdown in his vehicle nearby and approached the house
for the purpose of obtaining assistance and entered by the rear door. After
explaining his problem and being shown where he may get some help from a
neighbour the Crown case was that he jumped at her and sort of came at

her. She had a torch in her hand and swung it and hit the accused on the
head and then he punched her in the face round the mouth and jaw area.
Essential to the first and second charges, which were related alternatives,
was the allegation that the accused punched the complainant at the outset.
Thereafter the allegation was that the various sexual offences took place.
The accused’s case (he gave sworn evidence) was that on first seeing her she
struck him over the head with a torch which was held in her hand and that in
dealing with that blow by movement of his arms and hands the torch flew
into the complainant’s face and caused the injuries which the complainant
admittedly received.
As to the sexual matters, the complainant alleged they were without
consent; the defence was an admission of intercourse but that the same was
consented to and in fact initiated by her. According to the claimant the
sexual acts included vaginal, oral and anal intercourse; the accused agreed
with the first two but denied anal intercourse.
In cross-examination of the complainant by the defence counsel he did not
cross-examine the complainant as to the accused’s version of the torch
incident, nor did he cross-examine her as to the accused’s evidence that there
was no anal intercourse. However, some questions had been put by counsel
to the medical witness concerning that form of intercourse so that in that
sense the matter was raised and that aspect for present purposes may be left
to one side.
The problem as it emerged and which led to this appeal is that much was
made of the fact both by the Crown Prosecutor in his cross-examination of
the accused and his address and by his Honour the learned trial judge in his
summing-up to the jury, that the defence counsel (who was inexperienced)
failed to cross-examine the complainant on the matters mentioned,
particularly the torch incident, and which led to comments and in the case of
his Honour to a severe criticism of the accused’s credibility. I have already
said that the substantial issue on the sexual matters was that of consent and
as his Honour agreed, the question of credibility was an important one as is
obviously apparent. The issue raised by the torch incident was clearly a
matter as to whether the accused was accepted or at least, that the accused
raised sufficient doubt to cause the jury to be in the position to find that it
was not satisfied beyond reasonable doubt that the charge had been
sustained. On the other hand, in the event that the complainant was accepted
and the accused was disbelieved on that issue, then the effect of such a
finding upon the remaining sexual charges on the question of consent would
be almost self evident as being adverse to the accused.
It is in the above context that the detail as to how the trial developed is
important. However, so as to raise the question before the Court, it becomes
necessary to look at the process by which it arose.
As previously mentioned, the defence counsel did not cross-examine the
complainant as to the matters mentioned. In the cross-examination of the
accused by the Crown Prosecutor it was put to the accused that his counsel
had not so cross-examined the complainant that he, himself, that is, the
Crown had put to the accused the complainant’s version. He then put to the
accused that his counsel was at the trial to ask questions on his behalf in
accordance with instructions with which the accused agreed, likewise with
respect to his solicitor at the lower Court to which the accused also agreed.

Later in the cross-examination the Crown Prosecutor again put to the
accused that he, the accused, had told his counsel what had happened and
had given him instructions. It was put to him that his counsel had not put to
the complainant that anal sex had not taken place with which the accused
agreed. It was again put that the accused had told his counsel what had
happened and obtained the accused’s acquiesence. It was also put that no
questions were put to the complainant by his counsel to the effect that she
was hit in the face by the torch as described by the accused to which the
accused agreed. The Crown then asked:
“Q. … you did not tell your counsel about the torch hitting her face
did you? A. I did too.”
Further questions were put as to his instructions and their terms, all of this
emerging at different parts of the cross-examination and was done without
objection from the defence counsel or intervention from the trial judge.
The cross-examination at the various points on this aspect of counsel’s
application to ask questions and the accused’s instructions to his counsel and
solicitors is as follows:
“Q. But do you remember giving evidence a different time from here?
A. Yes, at Dubbo.
Q. Where evidence was given in relation to this matter? A. That is
right.
Q. At that hearing you had a solicitor appearing for you? A. That is
right.
Q. What was his name? A. Ken Baker.
Q. You had given Mr Baker instructions as to what occurred on this
day? A. Yes.
Q. You told him everything that happened? A. Yes, exactly what I
told the police.
Q. Exactly what you told the police? A. That’s right.
Q. Mr Baker cross-examined witnesses in accordance with instruc¬
tions you gave him as to what happened on the night of 8 June 1986?
A. Yes, that’s right.
Q. And he cross-examined the complainant in accordance with what
you told him? A. Yes.”
Later, in relation to some police evidence:
“You went on and your counsel did not dispute that that is what you
said to the police, isn’t that right? A. Yes.
Q. You see, you told the police you pushed her inside, did you not?
A. No, I did not.
Q. I see. So, that part of Detective Connelly’s evidence as to what you
said to Detective Maloney, is that wrong? A. That is correct.
Q. You never said that? A. No, I did not say I pushed her into the
house.
Q. Your counsel is here? A. Yes.
Q. To ask questions on your behalf in accordance with your
instructions? A. Yes, that is correct.
Q. Is that correct? A. That is correct.”
And later:
“Q. Evidence of this conversation was given at the lower court as
well, was it not? A. As I recall, yes.

Q. You were sitting in this court when the evidence was given as to
your conversation, were you not? A. Yes, I was.
Q. Your counsel did not suggest to the police officer that that piece of
conversation did not occur? A. That is right.
Q. See, you are not telling a truthful version are you? A. I am.”
And later still:
“Q. If you did not say it why didn’t you challenge the evidence when
the police gave evidence of that conversation? A. I did not know until
the police gave the evidence.
Q. You have a counsel in court to ask questions on your behalf?
A. That is correct.
Q. It is not his function to sit here mute and see injustice done to you,
is it? A. No.
Q. It is his function to represent you in accordance with the
instructions you give him? A. That is correct.
Q. Just like it was the function of the solicitor in the lower court to
represent you in accordance with the instructions you gave him?
A. That is correct.
Q. You are not suggesting, are you that your counsel in failing to
cross-examine the police officers was not acting in accordance with your
instructions? A. No, I am not.”
Again in relation to police evidence:
“Q. That is not correct, either? A. No, not like that.
Q. That is another mistake that they made? A. That’s correct.
Q. Again, that was another mistake that your counsel did not cross-
examine the police about? A. That is right.”
And then:
“Q. Your counsel is acting here on your instructions? A. He is.
Q. Your counsel did not, in any way, dispute this evidence, did he.
A. No, he did not.
Q. I put it to you you are again being untruthful? A. I am not.”
And then:
“Q. Your counsel had the opportunity, when Detective Connelly and
Detective Maloney were here to give evidence, to suggest to him that
the conversation you had with Detective Maloney was wrong? A. Yes,
he had opportunity, yes.
Q. But that did not occur? A. No, it did not.”
The cross-examination continued:
“Do you remember your solicitor also then asking or suggesting to
(the complainant) that there was no anal or oral sex? A. Yes.”
And then:
“Q. The question was asked on your instructions by your solicitor?
A. It was not.
Q. I see. So, we have now the police who have told lies about the
version of events that occurred on 8 June that you told them about on
19 June and we have now your solicitor on 14 October 1986 asking
questions without your instructions, is that correct? A. That is correct.
Q. So, the solicitor made it up, did he? A. No, he did not.
Q. He imagined it for himself, did he, that there was no anal or oral
sex? A. No, he did not ask me.”

And then in relation to the trial:
“Q. I suggest to you, Mr Birks, that you are not being truthful about
the matter? A. I am so.
Q. You instructed your counsel that you had vaginal sex with (the
complainant) but you did not have oral or anal sex? A. I did not.”
Subsequently the accused gave his version of the oral intercourse, he was
then asked:
“Q. Now, that is something that your counsel never put to (the
complainant) when she was in the witness box here yesterday, is it?
A. That is correct.
Q. You had told your counsel what had happened, had you not?
A. Yes.
Q. You had given him instructions? A. Yes.
Q. And part of his function is to put your case to this Court? A. That
is correct.
Q. And to put to the various witnesses the relevant instructions that
you have given him? A. That is correct. I had no papers or anything to
read off. I did not know what was going to be said or anything.
Q. Neither at the lower court nor at this Court here today was there
any suggestion that you performed oral sex on (the complainant) is
there? A. Not to my knowledge, no.
Q. It had never been put? A. No.
Q. And the opportunity was there because (the complainant) was
where you are? A. That is correct.
Q. Not only that, your counsel did not put, did he, to (the
complainant) when she was in the witness box that anal sex did not take
place, did he? A. No, he did not.
Q. Never suggested it? A. No, I did not.
Q. The complainant alleged, as you know, that anal sex took place?
A. Anal sex did not take place.
Q. And exactly, according to you? A. Yes.
Q. Yet, your counsel on your instructions did not put that to the
complainant? A. I did not ask him.
Q. You told him, did you not, what happened? A. I told him what
happened, yes. I thought he realised.
Q. You realised lawyers have a function to play in court? A. Yes.
Q. It is their duty to put their client’s instructions to the appropriate
witnesses? A. That is correct, yes.
Q. Where one witness’ evidence is in contest with their instructions it
is their duty to cross-examine that person about those instructions?
A. Correct, yes.
Q. You know that? A. Yes.
Q. Yet, it was not done, was it? A. No, it was not.
Q. And it was not done because you are being untruthful? … I am
not.
Q. You are being untruthful about the whole version of events that
you say occurred? A. I am not.”
He was then asked as to a sequence of events put by the solicitor at the
committal with which the accused disagreed. He was then asked:
“Q. That question was asked, was it not on instructions you gave to
your solicitor at the lower court? A. No, it was not.
Q. Your solicitor again was inventing things, was he? A. No, I told
him what happened and he just went to court.
Q. He made things up, did he? A. No, he did not. He had papers to
read off, I never.
Q. Beg your pardon? A. He had papers and that to read off what
happened.
Q. You told him what happened, did you not? A. That is correct.
Q. He had written them down, written the things you told him down,
had he not? A. Correct, yes. I suppose so, yes.
Q. When he cross-examined people he would have cross-examined
people on material you had made available to him? A. I suppose, so,
yes.”
In relation to the torch incident the accused was asked with reference to
some questions put by defence counsel to the complainant:
“Now, there is no reference in those questions or any other questions
that was asked during the cross-examination that the complainant was
hit in the face with the torch after you say she hit you in the face with
the same torch? A. That is correct, yes.
Q. You see, that appears to be an omission, does it not? A. What is
that?
Q. Something that perhaps should be there but is not? A. That is
right, yes.
Q. And it is not there because you did not tell your counsel about the
torch hitting her face, did you? A. I did too.
Q. Oh, you did? A. Yes, I did.
Q. It is why you said nothing about it to the police on 19 June, isn’t
that the case? A. No, it is not.
Q. On 19 June 1986 you said nothing about the torch hitting her face,
did you? A. No, I did not.
Q. Nothing was suggested in the lower court that it was the torch that
caused the complainant’s injuries to her face? A. No, that is correct,
yes.
Q. You see, I have gone through in cross-examination with you this
afternoon and I have given you an opportunity to answer every principal
allegation that has been made against you, isn’t that correct? A. Yes.
Q. But, your counsel in cross-examination did not do the same with
the complainant, did he? A. No.
Q. Apart from focusing on a couple of statements she is alleged to
have made, in effect, he only put to this Court your version of events
with some omissions, is that right? A. That is correct, yes.
Q. See, the point I am trying to make and I have probably made it
already is that you are not telling the truth about the way in which sex
occurred between you and the complainant that night? A. I am.”
The summing-up from the learned trial judge in respect of this matter is as
follows:
“But summarising the propositions put by the Crown as to the
untruthfulness of the accused in the witness box his first point, putting it
very shortly, is that his account of what happened to the torch after he

was hit is hard to believe. That is a separate question. Without anything
else it is not a likely story, the Crown says, but he said it goes beyond
that … perhaps even more significantly says the Crown … (the
complainant) … was not asked whether she was struck by the torch.
Now, I perhaps should say something about this subject. The rules of
evidence, even of fairness, would require that if you have a dispute with
a witness, the witness says: I was punched, for example, and you say or
the accused said: no, it was not a punch, it was a torch and it was an
accident; fairness, you may think, requires that the cross-examiner puts
to the witness not only that she was not punched but that she was struck
with a torch. It was never done. Here — not here nor at the Lower
Court nor before the magistrate, never put. The first we hear of it is not,
not when he was giving his narrative but when he was referred to it by
defence counsel.”
Later his Honour said:
“Therefore the Crown puts to you and this relates to the first two
counts and to credibility, that the torch incident is unbelievable but it
was not even put on either occasion to the complainant, it was not
mentioned in his narrative. …” (I understand this to be a reference to
the committal proceedings as well as the trial.)
His Honour also further continued after a reference to the fact that the
torch incident was not put to the medical witnesses:
“The Crown puts to you therefore that would cause you to be
sceptical as to the veracity or truthfulness and reliability of the accused’s
evidence.”
His Honour then dealt with the question that defence counsel had not
cross-examined the complainant as to the accused’s version that no anal
intercourse took place and continued:
“One would think as a matter of fairness, that if that is the case, that
question should have been put. And the inference that the Crown invites
you to draw from the failure to ask that question is not that (defence
counsel) was not doing his duty but that he was not instructed by his
client the accused that no anal intercourse took place. You might think
it unusual, even extraordinary, that if a lady charges and gives evidence
that the accused has had anal intercourse and if it be the fact that the
accused denies that such activity took place, that no cross-examination is
directed to the complainant … on that subject.”
Pausing here, whilst adverse inferences are available to be drawn as to the
credit of the accused from the failure to cross-examine they are not the only
inferences available, there are inferences that do not reflect upon his credit.
One of these as will appear shortly is that counsel failed to do so by an
oversight.
At the end of the summing-up the defendant’s counsel sought nothing
further and there were some submissions by the Crown Prosecutor unrelated
to the matter in respect of which his Honour without objection brought the
jury back and gave them a short and further direction. The jury retired at
12.12 pm and at 12.45 pm in the absence of the jury they still being in
retirement the Court re-assembled at the request of defence counsel and
after the judge had been seen in Chambers. Counsel for the accused then
said:

“In the course of cross-examination of the … complainant I did not
put to the complainant her the accused’s version of the incident at the
door, the hitting with the torch and did not, put to the complainant that
anal intercourse did not take place. It might be said that could have
been because the accused did not instruct me to put that.”
His Honour: “That is the inference which the Crown quite properly invited
the jury to draw that is the inference that I told them they could draw from
that.”
Defence counsel: “The position is that I was instructed in relation to both
of those matters.”
His Honour: “You were instructed?”
Defence counsel: “I was instructed and through an oversight on my part, I
did not put them.”
His Honour then asked a question relating to the defendant’s solicitor:
“Nor did Mr Baker, am I right? No Mr Baker did not put the torch version
but he did cross-examine on anal intercourse”; and defence counsel then
said: “That is true”; and after another comment by his Honour, counsel said:
“My concern is that through an omission of mine the accused might be
denied a fair trial and that is the reason I raised it.”
His Honour made a reference to the fact that it would not be a desirable
thing for the lady to go through this again and added: “Your case is that
through inadvertence, not because of your client’s instructions, you failed to
put two matters to the complainant. …”
Defence counsel said in answer to a question from his Honour, that he
had nothing further to say and his Honour said: “I appreciate your candour
and I accept what you say”; and the Crown Prosecutor also accepted what
defence counsel had said.
There was a reference to some further pieces of evidence which supported
the statement made by defence counsel and his Honour said: “Not only
because we know what (defence counsel) said but we have the body of
evidence.”
The Crown agreed that there was no question but that in relation to the
torch incident counsel had instructions because he had led some evidence
from the accused relating to it. He had also cross-examined the doctor in
reference to anal examination.
A considerable amount of discussion then took place between counsel and
the Bench during which the Crown Prosecutor said that the case did not turn
on whether or not counsel had put those matters to the complainant to which
his Honour replied: “Except we both made a fair bit of it.” And the Crown
Prosecutor said: “There is no question of that.”
Later in his judgment on this matter his Honour said:
“It is highly unlikely … that the complainant, if cross-examined on
the matter would have agreed with the accused’s version. On the other
hand, it must be repeated that both the Crown and I made much of the
failure of the accused’s counsel to cross-examine on this matter.”
Reverting to the submissions which passed between counsel and the Bench
and which were almost exclusively between the Crown Prosecutor and the
Bench, his Honour on more than one occasion and again in his judgment,
said that he accepted the defence counsel completely and further that he
accepted counsel’s assurances to him that it was not a matter of tactics.

Likewise, the Crown Prosecutor accepted the defence counsel on more than
one occasion. This was supported by the fact that there were other matters
on which he did not cross-examine but in respect of which he did not claim.
It will have been observed that defence counsel had made no specific
application but had initially simply made the statement attributed to him
above. However, during the course of the various submissions, his Honour in
putting a question to the Crown Prosecutor asked in respect of a
hypothetical matter should discharging the jury in those circumstances be
considered. Later his Honour said he was moved against discharging the jury
and referred to the question whether there was any authority and said:
“Particularly you (defence counsel) you are the one who is seeking it.”
The matter continued further until, at 2.10 pm, the jury returned with a
question which was answered and his Honour then asked defence counsel
whether he had anything to add on the application to discharge the jury to
which counsel replied that he could not find any authority.
The Crown Prosecutor then made various submissions and the dialogue
between the Prosecutor and his Honour continued for some many pages
during which alternative courses which could have been pursued were
considered until defence counsel said it was being considered with hindsight,
that, he had not been sure what to do but he had instructions in relation to
those two matters. His Honour said he accepted that but the trouble was “It
is a sort of partial boost to your client’s credit at the time totally unsolicited
as far as (the jury) were concerned” which I take to be a reference to giving
a further direction on credit to the jury. Defence counsel said that he was not
suggesting that the matter was capable of being cured by direction and that
the only fair way to deal with it was by way of discharge.
His Honour again thought it gave the accused an unfair jump if he started
bolstering up his credit but said that the accused on the two matters in
question was telling the truth.
Some further discussion continued and in the result his Honour decided to
leave the matter stand as it was. The jury returned a verdict of guilty on all
counts.
Much was said at the trial following counsel’s statement concerning
Browne v Dunn (1893) 6 R 67 (HL). This was not really a Browne v Dunn
situation. There is no suggestion that having failed to cross-examine the
complainant on a matter which on his instructions was directly in issue that
in his address he made any unfair or improper forensic attack or challenge to
her, on the relevant portion of her evidence. The Crown actually conceded
that counsel had not addressed on it.
The further matter discussed at the trial, mostly between the trial judge
and the Crown, was as to how the problem might be remedied, either then
or at an earlier point. There is little point in that now since the problem did
not emerge at any earlier point. It may have been cured by a statement of an
admitted fact as to the instructions which would have effectively destroyed
the Crown address and the judge’s summing-up on the accused’s credit. An
application may have been made to re-open the accused’s case or the
solicitor and/or counsel called to testify as to instructions. To have re-
opened would have either required a consent from the Crown or a ruling
from the judge that the cross-examination of the Crown on the point was
really a challenge to the accused’s evidence, of recent invention, fabrication

or afterthought, and thus entitled the introduction of hearsay evidence from
the legal advisers to rebut the imputation (Nominal Defendant v Clements
(1960) 104 CLR 476 and Britton v Commissioner for Road Transport (1947)
47 SR (NSW) 249; 64 WN (NSW) 16, the evidence in such event being to re-
establish credit, not to establish the truth of the contents). The Crown
conceded to the trial judge that he had put it to the jury that it was invented
for the trial. The question of law may have been raised whether the
complainant’s evidence being unchallenged should be accepted.
It will be remembered that at this stage whilst these discussions were
proceeding the jury was considering its verdict and likely to agree, at least
theoretically, at any moment. None of these options were really practical at
that stage. They may have involved further cross-examination and certainly
further summing-up and a withdrawal of part of it relating to the credit of
the accused. Further it would have involved bringing a jury out from
retirement considering its verdict to hear further evidence and summing-up,
which in itself raises a matter of some significance.
The choice was between a discharge of the jury and a refusal. His Honour
decided to refuse a discharge, mainly, because as I understand it, to redirect
them on the accused’s credit would give an advantageous boost to the
accused at a late stage of their deliberations. Having accepted counsel’s
explanation of his instructions and his assurances no tactics were involved it
would also have required some treatment and explanation to the jury with
consequent embarrassment to the Crown’s address. In the result, the
position as to the accused’s credit was left to the jury in tatters and on what
was known to be a false basis. In my opinion this means the jury should have
been discharged.
The combination of these factors meant that the situation that emerged at
the trial could not have been remedied and that the trial had miscarried and,
with respect, required that the jury be discharged. To leave the accused in
jeopardy in the hands of the admitted misinstructed jury and in the event of
conviction to the risks, uncertainties and delay of the appellate process was
no solution or remedy.
This brings me to what is the real vice that led to this problem and to
which little attention was directed by the judge or Crown. This was the form
of cross-examination that the Crown chose and was permitted to take, and in
my opinion wrongly.
His Honour was obviously troubled by this as appeared subsequently when
the problem was being debated before him, and his Honour’s remarks were
as follows and directed to the Crown Prosecutor dealing with the summing-
up.
“HIS HONOUR: What I did not do, because I thought I was tempted to
reject a few of your questions when you said, when you elicited from
him what he said to his solicitor, because I thought that is legal
professional privilege. But I have learned to hold my tongue at trials.
You might say it was admissible. I do not think it was but (defence
counsel) did not object and I thought he may have had a reason for not
objecting so I thought it was none of my business.”
The Prosecutor said that no objection had been made, that it was certainly
a relevant matter.
“HIS HONOUR: I deliberately refrained from what he did not say to his

solicitors. I intended to say: well you might think (that is, to the jury)
well you might have thought if the question was not asked they were not
his instructions.”
Following a further remark from the Crown Prosecutor his Honour said:
“… I do not think you can ask questions about what he said to his
solicitor or barrister.
CROWN PROSECUTOR: I think the question can be asked, but if a claim
of privilege is made—
HIS HONOUR: Yes, that is the correct approach, whether the judge
should intervene in certain circumstances, I do not say. It is amazing
how often it is asked. It is asked so often, I was beginning to wonder
whether I was wrong in the view I held. It is not easy. I do not mean the
discharge aspect, I mean those answers you have directed my attention
to. They point against a discharge to whether to leave them as they are.
Reminding them of it without telling them (defence counsel) says might
reinforce the fact that he is not telling the truth.”
The above remarks of his Honour are indicative of the frequency
apparently with which he is presented with this form of cross-examination of
an accused in criminal trials. It is surprising that such a frequency if not a
practice should have developed. The subject cross-examination itself
presented a well defined structure.
The primary and basic rule of all litigation, civil and criminal, is that the
client’s instructions to his legal advisers are privileged, and he can freely and
properly reveal all to his legal advisers without fear of disclosure or penalty.
The Crown cross-examined the accused vigorously, including questions as
to his instructions to counsel and not simply on an isolated occasion but he
returned to it, so much so that the judge wondered whether he should
intervene or indeed whether it was permissible cross-examination. It is
pointless to say it was done without objection. The privilege is not that of
counsel to waive by not objecting, it is that of the client, the accused, and it is
only he who can waive the privilege and nobody suggests that he did. Nor
can it be said that for an accused to answer such questions in the witness box
is a waiver on his part of privilege; the answer to that is first, the question
should not have been put. It was unfair in that it would force an objection
embarrassing to the defence and the implications of which a jury would not
understand or else cause counsel to seek instructions and advise the accused
then in the witness box, and then take perhaps an embarrassing objection. It
was inadmissible, and an objection must have been upheld. Secondly, in a
criminal trial an admission, and a waiver is in the nature of an admission, can
only be made by an accused on the advice of counsel, sensibly and usually in
writing, which is difficult to obtain or give in the run of a vigorous cross-
examination. Lastly, an accused cannot be required to make an admission or
even to consider one.
The Crown also saw fit to cross-examine the accused and to obtain his
acquiesence as to counsel’s duties in a trial. Whilst I would accept that
almost any layman would expect his counsel to fight and present his case as
he, an accused, saw it and make relevant challenges to evidence, it is an
altogether different matter to put to an accused the detail of the complexities
of a Browne v Dunn situation and as to his counsel’s duties. It is not
surprising that an accused would accept such detail put to him with the

authority of a Crown Prosecutor. Furthermore, to present an isolated aspect
of counsel’s duty to a jury through the terms of such a cross-examination
leaves the jury with a quite wrong impression of counsel’s position. The basic
and overriding duty of counsel is that he and he alone, not the client, accepts
the full responsibility for the way in which the trial is conducted and that in
no way reflects on his client’s integrity. Left as it was it was open to the jury
to conclude that the accused could and should have controlled counsel, and
he did not do so because he had misled him.
There are two further matters to be mentioned in regard to this cross-
examination. The first is the putting of questions to the accused as to
whether his solicitor in questioning the complainant at the committal had
made a mistake which was in itself pregnant in the context with the inference
that the solicitor had different instructions to what the accused claimed. To
then put the questions “Did he (the solicitor) invent it”, and “Did he make it
up” must have left a dubious atmosphere which was at the least, a reflection
upon the accused’s legal advisers.
The second matter also concerns the committal. The Crown put it to the
accused that his solicitor had not put certain material to the complainant at
the committal, again the inference being adverse to the accused’s claim as to
his instructions. This was carried over into the summing-up. There is no
obligation or duty on an accused’s legal representative to put anything as to
the client’s case or at all at a committal.
Before this Court, the Solicitor-General submitted that this cross-
examination, excluding the committal material was fair. With respect, I
disagree, and for the reason given and that the questions relating to Browne v
Dunn were questions of law and might not be put in a civil case except
perhaps to a party who can make an admission, but not to an accused in a
criminal trial. If they are not regarded as questions on matters of law or
mixed law and fact then they are matters of legal professional ethical content
and in fairness ought not be put to a layman. Finally, it was unfair in that it
raised only part of counsel’s duty, but omitted his essential duty, that is, his
total responsibility for the trial and focused solely on a subsidiary rule of
fairness.
At this point I come to the final observation I wish to make concerning
this cross-examination. A trial judge in a criminal trial carries a heavy
burden. He must see that the accused has a fair trial. He has an obligation to
see the trial is conducted fairly and in accordance with law. He must exclude
evidence which is not shown to be admissible. In short, the principle is that
an accused should not be convicted on any but legal evidence (R v Gibson
(1887) 18 QBD 537 at 543 per Wills J), further, and per the same judge: “…
If a mistake had been made by counsel, that would not relieve the Judge
from the duty to see that proper evidence only was before the jury”. In Shaw
v The Queen (1952) 85 CLR 365 at 381, the joint judgment said plainly that
the prosecution must take responsibility for leading inadmissible evidence
and the failure of the prisoner’s counsel to object did not make it admissible.
Similarly, in Stirland v Director of Public Prosecutions [1944] AC 315, it was
said an improper question should be disallowed even though no objection be
taken, the basis being that justice is to be done as far as possible according to
law: see per Viscount Simon (at 327-328) speaking for their Lordships. In
the light of these principles it is not to the point to say the accused or his

counsel may have sought some tactical or other advantage from the
questions being considered by not objecting.
The passage wherein the trial judge expressed his concern as to the validity
of the cross-examination as to the accused’s instructions has been quoted
earlier. As I read it, his instinct was against the cross-examination; if the trial
judge was in any doubt about it he could have taken steps to have it clarified
then and there since it went to admissibility.
The combination of these aspects of the cross-examination led to the
content of the instructions being divulged which, coupled with the failure by
defence counsel to cross-examine the complainant led to the inference
strongly put to the jury by the Crown and the trial judge that the accused’s
credit in effect was such that he lied to his counsel and lied to the Court.
For all the above reasons relating to the trial in my opinion there has been
a miscarriage of justice and the appeal should be upheld and the conviction
and sentence quashed. The cross-examination by the Crown entered into
areas at such length and on so many occasions and in such a manner as to be
unfair and prejudicial to the accused and no direction of the trial judge could
have sensibly produced a result where it could be said that the minds of the
jury could not reasonably have been affected in reaching their verdict. When
the cumulative effect of the trial judge’s summing-up on the point under
consideration is added together with the indications given of the Crown’s
final address, the full nature of the miscarriage is manifest. In my opinion,
there is no question that with a proper direction, assuming one could be
fashioned, the jury must have found the same verdict. Such an order might
be expected to be followed by an order for a new trial. I would uphold the
appeal, quash the conviction and sentence and order a new trial.
Appeal allowed
Conviction quashed
New trial ordered
Solicitors for the appellant: Y Swift & Company (Chippendale).
Solicitor for the respondent: State Crown Solicitor.