Court of Criminal Appeal Supreme Court New South Wales

• Medium Neutral Citation: Montgomery v R [2013] NSWCCA 73
• Hearing dates: 5/08/2011; 12/11/2012
• Decision date: 11 April 2013
• Before: McClellan CJ at CL at [1]; Simpson J at [4]; Fullerton J at [18]

Decision

1. Grant leave to extend time for filing the notice of appeal.

2. Appeal against conviction dismissed.

• Catchwords: CRIMINAL LAW - appeal against conviction - conspiracy to import commercial quantity of cocaine - extension of time - whether trial miscarried because of conduct of Crown prosecutor - application of the proviso in s 6(1) of the Criminal Appeal Act
• Legislation Cited: Criminal Appeal Act 1912; Criminal Code Act 1995 (Cth); Customs Act 1901 (Cth); Evidence Act 1995
• Cases Cited: Cooper v R [2012] HCA 50; 293 ALR 17; Gonzales v R [2007] NSWCCA 321; 178 A Crim R 232; Libke v R [2007] HCA 30; 230 CLR 559; Mraz v The Queen [1955] HCA 59; 93 CLR 493; R v Beattie [2000] NSWCCA 201; R v Edwards [2009] NSWCCA 199; R v El-Azzi [2004] NSWCCA 455; R v Gregory [2002] NSWCCA 199; R v Lumsden [2003] NSWCCA 83; R v Young [1999] NSWCCA 275; TKWJ v R [2002] HCA 46; 212 CLR 124; Weiss v R [2005] HCA 81; 224 CLR 300; 158 A Crim R 133; Wood v R [2012] NSWCCA 21
• Category: Principal judgment
• Parties: Ricky James Montgomery (Appellant); The Crown (Respondent)
• Representation: Counsel: 5/08/2011; J Stratton SC/C Evans (Appellant); C O'Donnell/K Longin (Crown); 12/11/2012; S Odgers SC/C Evans (Appellant); C O'Donnell (Crown); Solicitors: HardinLaw (Appellant); Commonwealth Director of Public Prosecutions (Crown)
• File Number(s): 2005/14777

Decision under appeal

• Jurisdiction: 9101
• Date of Decision: 2007-11-26 00:00:00
• Before: Zahra DCJ

Judgment

1 McCLELLAN CJ at CL: I have had the benefit of reading the judgments of both Simpson J and Fullerton J in draft.

2 With respect to ground one of the appeal I agree for the reasons given by Simpson J that it should be rejected. With respect to ground two of the appeal I agree with the reasons given by Fullerton J that it should be rejected.

3 I agree with the orders proposed by Fullerton J.

4 SIMPSON J: I have read in draft the judgment of Fullerton J. For the reasons that follow, I agree that the appeal should be dismissed. I wish to make my own approach to ground 1 clear. I rely on the outline of facts contained in the draft judgment of Fullerton J.

5 Ground 1 concerns cross-examination by the Crown prosecutor of a witness (Lionel Potter) called in the defence case. Mr Potter was, in effect, an alibi witness, although he provided an alibi to the appellant in only one relatively small - but not unimportant - aspect of the Crown evidence.

6 Fullerton J has set out in full the cross-examination and the circumstances in which it arose. It plainly went only to Mr Potter's credit. It raised Mr Potter's criminal history although identification of the dates of the convictions the subject of the questioning was avoided. Section 103(1) of the Evidence Act 1995 permits cross-examination relevant only to credit if the evidence has substantial probative value. Some circumstances relevant to the assessment of probative value for the purposes of s 103(1) are set out in sub-s (2). One circumstance explicitly mentioned as relevant is the period that has elapsed since the occurrence of the acts or events to which the evidence relates (s 103(2)(b)). It is inherent in s 103 that a court may be called upon, in advance of cross-examination, to make a ruling as to the existence or otherwise of substantial probative value in the evidence. No ruling under s 103 was sought, and no notice was given to counsel for the appellant of the intention to cross-examine on the subject matter of Mr Potter's prior convictions. That, in itself, was, in my opinion, a serious departure from proper standards of conduct required of a Crown prosecutor. Had the Crown prosecutor advised defence counsel of his intention to cross-examine on that subject, defence counsel would have had the opportunity, which he undoubtedly would have taken, of raising the matter with the trial judge and obtaining a ruling on whether he would permit that cross-examination. Such a ruling would have involved an assessment of the probative value of the evidence, particularly taking into account the dates of the convictions. It clear from what occurred after the commencement of the cross-examination that, had that preliminary step been taken, the cross-examination would not have been permitted. That is because, having regard to the period that had elapsed since the offences of which Mr Potter was convicted (a minimum of 50 years) the evidence could not have been held to have had substantial probative value. Moreover, those offences of which he was (and remained) convicted were, in the scheme of things, relatively minor. The serious offence about which Mr Potter was cross-examined - rape - should never have been put to him, since he was, after appeal, acquitted of that offence.

7 Further, as Fullerton J has pointed out, the document from which counsel was cross-examining was of dubious provenance and accuracy and not capable of supporting some of the propositions put to Mr Potter. I am satisfied that there was unfairness in the manner in which the Crown prosecutor approached the cross-examination. To this extent, I agree with Fullerton J. I do not, however, agree that the cross-examination resulted in a miscarriage of justice.

8 Section 6(1) of the Criminal Appeal Act 1912 states the grounds upon which this Court is to uphold an appeal against conviction. The grounds are:

• that the verdict is unreasonable;

• that the verdict cannot be supported having regard to the evidence;

• that there has been a wrong decision on any question of law; or

• that on any other ground whatsoever there was a miscarriage of justice.

9 It not being contended that the verdict was unreasonable or unsupportable on the evidence, or that there was a wrong decision on any question of law, the only ground that has potential application is that there was otherwise a miscarriage of justice.

10 An unfair trial, even where it cannot be said that the result has been affected by the unfairness, may amount to a miscarriage of justice. That is because an accused person is entitled to a trial according to law. But it is not every departure from the gold standard of a trial according to law that converts an otherwise fair trial into one which is unfair. What constitutes a miscarriage of justice for the purposes of s 6(1) (as distinct from the proviso to that sub-section) was the subject of extensive consideration in TKWJ v R [2002] HCA 46; 212 CLR 124. Traditionally, a miscarriage of justice has been considered to have occurred where some error or irregularity in the trial has "deprived the accused of a chance of acquittal that was fairly open" (Mraz v The Queen [1955] HCA 59; 93 CLR 493; TKWJ at [26], per Gaudron J). See also the comprehensive analysis in TKWJ by McHugh J at [64] and following.

11 It is necessary closely to examine the unfairness alleged, and to do that in the context of the trial as a whole. The appellant gave evidence on the 56th, 57th, 59th, 60th and 61st days of a four-month trial involving three accused. Mr Potter gave evidence immediately after the conclusion of the appellant's evidence, on the 61st day. Thereafter the co-accused Bradley Evans gave evidence over eight days, and called a number of witnesses. Counsel addressed and the judge summed up. The verdicts were returned on the 87th day of the trial.

12 Evidence concerning the appellant's role in the conspiracy alleged was given in the Crown case by three accomplices, of whom perhaps the most important was Stephen James. True it was that his evidence, and that of the other accomplices, was subject to a warning, in strong terms, under s 165 of the Evidence Act. James had received a substantial reduction in his sentence by reason of his undertaking to give evidence against the accused who went to trial. Nevertheless, he and the other accomplice witnesses were witnesses who may well have been taken to have been in a prime position to implicate their co-conspirators. James' evidence included evidence of conversations with the appellant, about his asserted ability to have the drugs offloaded from the ship at Darling Harbour, that the appellant provided a significant sum of money by way of finance for the venture, that the appellant gave him documents bearing the names of ships operated by the shipping line, that the appellant gave James two metal cargo security seals for use in the importation, that James sent coded messages to the appellant concerning the importation, and that the appellant had met on occasions with other members of the conspiracy. James Gray-Spence gave evidence that the appellant had asked him to assist in the distribution of the cocaine, and that, at later date, the appellant told him that the enterprise had "gone pear shaped". In addition, there was surveillance evidence that showed the appellant in association with other members of the conspiracy.

13 The evidence which Potter was called to rebut was of the last kind - evidence that, on the evening of 1 June 2003, at about 10.20pm, the appellant had been seen in The Rocks area by a surveillance police officer. The evidence was not without significance to the Crown case. 1 June was the date the ship thought to be carrying the cocaine was due to dock not far from The Rocks. The container terminal at which it was to dock could be seen from the location where the appellant was said to have been seen. Other men, who, it could be inferred, were members of the conspiracy had earlier been seen nearby. The location of the appellant in that vicinity at that time had undoubted capacity to give rise to an inference that he was there for the purpose of the proposed importation.

14 The evidence of the appellant and Potter was that, on that day, they had together attended a football match at Kogarah, had then gone to the Coogee Bay Hotel, and then to the South Sydney Junior Rugby League Club (at Kingsford) where they remained together until about 10.30pm. The appellant said that he signed the register on entry. Records of the Club were tendered (Ex 126). There was no record of the appellant's attendance, nor that of Mr Potter, on 1 June.

15 Although, as I have indicated, I consider the conduct of the Crown prosecutor to have been unsatisfactory, I am unable to conclude that the cross-examination (which was cut off very quickly) rendered a four-month trial (of the conduct of which there is, subject to ground 2, otherwise no complaint) unfair. I am quite unable to conclude that the brief cross-examination caused a miscarriage of justice.

16 Defence counsel made the best of an unfortunate situation by merely adducing evidence that the convictions of which the jury had heard before the cross-examination was stopped were long in the past. No more was made of them. In my opinion, the jury could have been under no illusion about the insignificance of Mr Potter's criminal history. There were much weightier reasons for rejecting his evidence - the positive identification of the appellant in the relevant place at the relevant time, and the negative inferences available from the Club's records. Although, in the circumstances of this appeal, the issue has taken on some magnitude, in my opinion that is unrealistic when it is seen in the context of the trial. The issue was of very small moment in the overall circumstances of the trial. That is in significant measure due to the swift and early intervention of the trial judge, as soon as he perceived the dubious nature of the document from which counsel was cross-examining. Even if the cross-examination had not taken place, and the jury had accepted that the appellant was not in The Rocks area on the evening of 1 June, that was insufficient, in the light of the whole of the evidence in the Crown case, to create a doubt in the minds of the jury about his participation in the conspiracy. There was, for the purposes of s 6(1) of the Criminal Appeal Act, no miscarriage of justice. It is therefore unnecessary to consider the proviso to the section.

17 With respect to ground 2 of the appeal, I agree, for the reasons given by Fullerton J, that it should be rejected.

18 FULLERTON J: Ricky James Montgomery (the appellant), Bradley Evans and Hayden Rogers were charged that between 1 January 2002 and 2 July 2003 they conspired with each other and with Steven James, John Morrison, Colin Kemery and divers other persons to import a commercial quantity of cocaine into Australia contrary to s 11.5(1) of the Criminal Code Act 1995 (Cth) and s 233B(1)(b) of the Customs Act 1901 (Cth). The commercial quantity of cocaine is two kilograms. The offence carries a maximum penalty of life imprisonment.

19 On 26 November 2007, after a trial extending over four months, the jury returned verdicts of guilty for each of the accused. The appellant was convicted and sentenced on 26 September 2008 to 18 years imprisonment commencing on 5 November 2007, with a non-parole period of 10 years and 10 months. He appeals his conviction. There is no application for leave to appeal against sentence.

20 At the hearing of the appeal two grounds were pressed:

Ground 1: The trial miscarried by reason of the conduct of the Crown and the nature of the unfair cross-examination of a witness, namely Lionel Potter.

Ground 2: The trial miscarried by reason of the conduct of the Crown and the nature of the cross-examination of the appellant where an irrelevant and prejudicial association was raised, namely (with) Jai Abberton, effectively raising the bad character of the appellant.

Application for extension of time

21 An appeal against conviction (and an application for leave to appeal against sentence) may be initiated by a notice of intention to appeal filed within 28 days of a conviction (or sentence) (s 10(1)(a) of the Criminal Appeal Act 1912). An applicant is then afforded a period of six months within which to file a notice of appeal. Section 10(1)(b) provides that an application seeking an extension of time to appeal may be made if the applicant is unable to comply with the timeframe.

22 The appellant filed a notice of intention to appeal on 10 November 2008 which expired on 10 May 2009. A notice of appeal was not filed until 22 December 2010. The appellant seeks a grant of leave to appeal out of time which the Crown opposes. Counsel for the appellant relied upon a brief chronology of the proceedings in support of the grant of leave.

23 On 30 April 2009, ten days before the notice of intention to appeal was due to expire, an application seeking an extension of the notice was filed and granted on the grounds that several days of the trial transcript had not been received and that counsel required three months to consider the trial transcript in its entirety and to advise and settle the grounds of appeal.

24 On 7 August 2009 time was further extended until 30 November 2009, an additional period of over three months. On 16 November 2009 a further extension of time was sought on the grounds that legal aid funding for junior counsel to assist senior counsel in preparing an advice on merit had been granted on 10 November 2009 and that junior counsel required time to familiarise himself with the trial transcript. On 21 December 2009 the appellant was informed that the Court would not grant a further extension.

25 On repeated occasions throughout 2010 the appellant apparently sought to obtain further trial transcripts and several of the trial judge's interlocutory rulings in order to fully advise as to whether the appeal had merit for legal aid funding purposes. On 25 January 2010 the appellant's lawyers wrote to the District Court seeking further trial transcript. Additional transcript was provided on 19 March 2010.

26 On 4 August 2010 a merit advice was furnished to the Legal Aid Commission. On 20 September 2010 the appellant was granted legal aid to pursue an appeal. On 22 December 2010 a notice of appeal was filed.

27 In R v Gregory [2002] NSWCCA 199 at [38] Hodgson JA (with whom Levine and Simpson JJ agreed) held that whether leave should be granted to extend time for an appeal requires that consideration be given to the interests of justice in all the circumstances, including the interests of the appellant and those of the Crown.

28 The Crown opposed the grant of leave on a number of bases. The first was that a delay of over three years before the notice of appeal was filed obliged the appellant to satisfy the Court that the circumstances giving rise to the delay were exceptional (see Gonzales v R [2007] NSWCCA 321; 178 A Crim R 232 at [5] - [6]; Gregory at [34], [45]) and that none were identified by the appellant or obvious from the chronology of events upon which the appellant relied.

29 The appellant's submissions do not specifically identify the circumstances said to be "exceptional", but refer instead to decisions of this Court where it has been held that where there has been a substantial delay which has been satisfactorily explained, leave should not be refused (see R v Edwards [2009] NSWCCA 199 at [8]; R v Beattie [2000] NSWCCA 201 at [17]).

30 The appellant's counsel submitted that the delay was not the fault of the appellant, who had at all times indicated his determination to pursue his appeal, or the result of any dilatoriness on the part of the appellant's legal representatives, but because of events beyond their control, principally the sheer volume of the trial material and the difficulties they encountered in trying to assemble it. Additional delays were encountered when the District Court endeavoured, with varying degrees of success, to locate the various interlocutory rulings referred to in the transcript. It was submitted, without demur from the Crown, that access to the complete trial transcript was essential to accurately frame and settle grounds of appeal and submissions. The procedures involved in obtaining a grant of aid to pursue a merit advice were also relied upon as accounting for the delay.

31 While the Crown emphasised that it was the obligation of the appellant to provide a "satisfactory explanation" for the delay, it did not submit that the explanation for the delay was unsatisfactory. The Crown did emphasise however that the interests of justice generally weigh against the grant of leave where, as here, the time between the trial and the appeal has been lengthy and in particular, in this case, since the subject trial was a retrial, the difficulties the Crown would likely encounter were the appeal successful and a retrial ordered.

32 It is well recognised that where an appellant has provided a satisfactory explanation for delay in pursuing his/her statutory right to appeal, the Court will not lightly exercise its discretion to refuse leave even where the prospects of success are not immediately evident. In R v Young [1999] NSWCCA 275 at [35] Smart AJ held that a grant of leave to extend time under s 10(3) of the Criminal Appeal Act afforded the Court a wide discretion to extend time where it is just, in the circumstances, that such an order should be made.

33 A further ground relied upon by the Crown in opposing a grant of leave was that if the appeal were successful and a new trial ordered, the presentation of the Crown case at any retrial would be affected by the passage of time since the appellant's arrest in June 2003 and which concerned his conduct in a conspiracy extending over a 12 month period prior to that date.

34 While there is some force in the Crown's concern that a delay of close to ten years since the currency of the conspiracy and over five years since the second jury returned a verdict of guilty might compromise the Crown's ability to reassemble and represent its case against the appellant, the Crown did not submit that this was due to witnesses being unavailable or unwilling to give evidence. I also note that the Crown could readily reproduce the electronic and physical surveillance evidence which constituted a considerable part of the Crown case.

35 The Crown also submitted that the appellant's prospects of success on the appeal were limited and that leave should be refused for that reason. It was not submitted, however, that the grounds were inarguable. While the appellant's counsel conceded the Crown case at trial was strong (which might affect application of the proviso), the two grounds of appeal ultimately pressed involve the conduct of the Crown prosecutor at trial which is said to have been productive of unfairness such as would justify a finding that a miscarriage of justice has occurred.

36 In this case, it is unsatisfactory, to say the least, that proceedings in this Court are heard to finality some four years after the notice of intention to appeal was filed. However, in circumstances where the Crown does not submit that the explanation for the delay is not adequately explained and where I am satisfied that the interests of justice do not weigh against granting the extension, I am satisfied that the application for an extension of time to allow for the conviction appeal to be heard should be granted.

The Crown case against the appeal

37 The Crown alleged that the appellant conspired to import cocaine from South America concealed in cargo on a vessel operated by the Wallenius Wilhelmsen shipping line. Wallenius Wilhelmsen shipped bulk cargo from South America to Australia using Patrick Stevedoring facilities at Darling Harbour exclusively for all its vessels. The Crown alleged that with the cooperation of his co-accused Rogers, who was a former employee of Patrick (and other current employees), the appellant was to arrange for the cocaine to be removed after the vessel had docked at the container facility and then to distribute the cocaine via his associates. After taking a half share of the proceeds he was to account for the balance to those with whom he had jointly financed the operation, one of whom was his co-accused Evans. Despite the criminal agreement extending over 12 months, and despite the committed efforts of each of the co-conspirators both in Australia and overseas, no cocaine was in fact imported.

38 At trial the appellant did not challenge the existence of the conspiracy or its scope or terms. On his behalf it was submitted that the evidence was not capable of establishing his complicity and that he should be acquitted.

39 The first ground of appeal concerns what the Crown relied upon as a discrete overt act attributed to the appellant in furtherance of the conspiracy. A police officer gave evidence that he saw the appellant in the area of The Rocks on 1 June 2003 within hours of the ship which was expected to have the cocaine secreted on board arriving at Darling Harbour and at a time when, on the Crown case, other co-conspirators were also positioned to scan the area for any police presence and within minutes of another co-conspirator notifying those who were to offload the cocaine that the plan had been abandoned. A witness who was the subject of what is alleged to have been unfair cross-examination by the Crown gave evidence supportive of the appellant's evidence that he was not the person seen by the police officer because he was at the South Sydney Junior Rugby League Club in Kingsford at the time of the sighting.

40 The Crown case against the appellant included evidence from a number of co-conspirators, each of whom gave evidence consistent with the role in the conspiracy attributed to the appellant by the Crown. Principal amongst them were Steven James and John Morrison.

41 The appellant met James through Evans. James and Evans were close friends. The appellant, Evans and Rogers were members of the Clovelly Surf Club and had known each other for some years. James described Rogers as a "nodding acquaintance". It was the Crown case that through that shared association the appellant, James, Rogers and Evans planned and jointly financed the importation.

42 James gave evidence that he was in contact with, and the conduit for, information from the overseas suppliers of the cocaine through Morrison who lived in the United States. James and Morrison met whilst they were serving sentences for drug offences in the United States in the 1990s. Morrison's role was to arrange for the cocaine to be purchased and loaded aboard a vessel operated by the Wallenius Wilhelmsen shipping line out of Manzanillo, Panama. James was in regular telephone contact with Morrison throughout the course of the conspiracy using a public telephone in Coogee. As at June 2002 that telephone was already the subject of an interception warrant involving other suspects whose failed attempts to import cocaine, also through the use of Patrick Stevedores, had come to the attention of police. The subject conspiracy came to the attention of police when James started using the telephone to speak with Morrison on behalf of the appellant and other co-conspirators.

43 James pleaded guilty to the conspiracy and was sentenced to a term of imprisonment of 10 years with a non-parole period of 6 years. He received a discount of 50 per cent for his plea of guilty, and his undertaking to give evidence against the appellant and his co-accused. Morrison was dealt with in the United States for his role in the conspiracy and for other drug offences. He entered into a plea agreement and, taking into account his past assistance, was sentenced to imprisonment for 10 years and 5 months with a further 5 year probation period. He agreed when giving his evidence that there was a prospect of a further reduction in his sentence by reason of having given evidence in the Australian proceedings.

44 David Tipping (an employee of Patrick) gave evidence of what he was asked to do by Rogers and what he did to assist in locating and offloading cocaine from the vessel.

45 James Gray-Spence gave evidence that he was asked by the appellant to assist in the distribution and sale of the imported cocaine. He was sentenced for unrelated drug offences and received a 50 per cent discount for his assistance.

46 Although James, Morrison, Gray-Spence and Tipping were accomplices whose evidence attracted the usual warning, the evidence of both James and Morrison, in particular, was supported by a large volume of intercepted telephone conversations during which they planned and discussed the importation. There were no calls in which the appellant participated and no other intercepted calls directly implicating him in the conspiracy. There was, however, a large volume of detailed visual surveillance of the appellant in company with James and other co-conspirators, both before and after some of what the Crown submitted were the critical telephone conversations between James and Morrison in June 2003. James gave evidence of the code that was used when drugs and money were discussed and that he referred to the appellant variously as "our friend" or "one of our friends" when discussing ongoing arrangements with Morrison. The appellant was not referred to by name.

47 The evidence led by the Crown at trial to prove the existence of the conspiracy, its changing scope and terms over a period of 12 months between May 2002 and June 2003, and the appellant's active participation in it, is summarised below.

The agreement and its terms

48 In early 2002 the appellant and James discussed an importation into Australia by concealing cocaine in cargo to be shipped from South America. The appellant represented that he could arrange to have the drugs offloaded if the vessel berthed at Darling Harbour, whilst James represented he could arrange to have the cocaine loaded in South America. At about this time James also discussed an importation of cocaine by these means with Morrison and Evans.

49 In June/July 2002 James met with Morrison in Majorca, Spain where they discussed quantities of cocaine in the range of 10 to 20 kilograms and the necessary financial arrangements to fund the purchase of the drug. By October 2002 it was agreed that US$100,000 was required and that Colin Kemery, an associate of Morrison who resided in Denmark, would travel to Australia to collect the money from the Australian financiers.

50 During this same period the appellant, James and Evans agreed that they would jointly provide the finance, with James and Evans contributing $40,000 each and the appellant $80,000. The profits from the sale of the cocaine were to be split, with 50 per cent being shared between James, Evans and Morrison, and the remaining 50 per cent retained by the appellant to be shared with those with whom he was involved in the supply of the cocaine.

Acts in furtherance of the conspiracy in 2002

51 On 1 October 2002 Rogers called directory assistance and enquired about the number for the Wallenius Wilhelmsen shipping line. The following day Rogers telephoned the Wallenius Wilhelmsen shipping line from the public telephone in Coogee that was the subject of interception. Under the pretext of importing cars from South America, Rogers enquired about shipping routes from South America, in the course of which reference was made to Manzanillo and Darling Harbour. The appellant was seen by police at the telephone box when Rogers made the call.

52 On 2 October 2002 Kemery, travelling under the false name of Jeffrey Spence, arrived in Sydney on a flight from London.

53 Between 2 October 2002 and 18 October 2002 James gave evidence that he and Evans met with Kemery on several occasions. During this period he said he was given $65,000 by Evans on the appellant's behalf. According to James, Evans told him that, "Ricky is a bit short". Evans gave James $40,000 representing his contribution. This money was then given to Kemery to deliver to Morrison.

54 Between 14 October 2002 and 18 October 2002 Kemery sent approximately $30,000 to nominated accounts in the United States and the United Kingdom by means of six Western Union transfers. On 18 October 2002 he left Sydney on a flight to London.

55 Between October and December 2002 James and Morrison had various conversations concerning the fact that the funds given to Kemery had not arrived at their intended destination. The whereabouts of that money was never resolved.

56 In October 2002 the appellant gave James a document listing the names of ships operated by the Wallenius Wilhelmsen shipping line and their scheduled arrival dates in Sydney. The appellant indicated a particular vessel scheduled to arrive at Darling Harbour in December which, according to James, he described as "ideal". He also gave James two metal cargo security seals for use in the proposed importation which James later sent to Morrison and which were received by him.

57 On 29 October 2002 Dean Rogers, the brother of the accused Rogers, leased an apartment in Kingsford for six months in a false name. It was the Crown case that this was intended as a safe house for the storage of the cocaine, which it was anticipated would be arriving in December. On 23 January 2003 the lease was cancelled when the shipment did not arrive. This was the first of successive delivery dates that were cancelled over the ensuing six months, apparently due to the difficulties the exporters encountered in their attempts to have the cocaine loaded in Manzanillo without detection.

Acts in furtherance of the conspiracy in 2003

58 On 15 January 2003 the appellant returned to Sydney after spending three weeks in New Zealand. The following day while discussing the importation over the intercepted phone line, James told Morrison that "our friend that went on holiday, he's back in town". It was the Crown case that was a reference to the appellant.

59 On 29 January 2003 Morrison told James the arrangements were in place for the purchase of the cocaine. James said that he did not intend to tell anyone about the developments "except for one bloke" and "our other mate" who he said he was intending to meet at the travel agency. James later met with Evans at a travel agency in Paddington. On the Crown case the other person James was referring to was the appellant.

60 On 19 February 2003 Morrison told James that he understood the cocaine would be loaded aboard the Tampa, a vessel operated by the Wallenius Wilhelmsen shipping line.

61 On 28 February 2003 James and Evans travelled to Canada, where they met with Morrison by pre-arrangement. Morrison told them that a further US$28,000 was required for the purchase of the cocaine. James and Evans returned to Australia on 18 March 2003.

62 Later that day Morrison provided James with details of accounts into which the additional US$28,000 required for the importation was to be the transferred. The names were then given to Evans. The following day James, using the false name of Christopher Woodford, remitted US$14,000 to an offshore account in three tranches comprising US$5,000, US$5,000 and US$4,000, while Evans, using the false name of Brian Lee, remitted US$14,000 to another offshore account in three tranches also comprising US$5,000, US$5,000 and US$4,000. Morrison confirmed receipt of the money.

63 On 2 April 2003 the Tampa departed the port of Manzanillo.

64 On 4 April 2003 Morrison told James that the cocaine had not been successfully loaded aboard the Tampa, however they would aim to ship it on the Tawarrah, being the next vessel operated by the Wallenius Wilhelmsen shipping line to sail from Manzanillo.

65 On 10 April 2003 Morrison told James that the cocaine had not been able to be loaded on the Tawarrah. James told him that their partners would pull out of the venture if there were any further delays and that he would talk to the "guy" again. James said, "he's with me actually at the moment". The appellant was seen by police near the telephone box at that time.

66 On 17 April 2003 Morrison told James that the cocaine would be shipped aboard the Texas, being the next vessel to sail from Manzanillo. Morrison confirmed they were "looking" at shipping 30 kilograms.

67 On 27 April 2003 the Texas departed Manzanillo.

68 On 29 April 2003 Morrison told James that he was awaiting confirmation that the cocaine had been successfully loaded on the Texas. James said he would tell the others. At the end of the call James drove to the Clovelly Surf Life Saving Club ("Clovelly SLSC") where he met with Evans and the appellant after which the appellant met with Rogers in the car park. Rogers and the appellant drove to the Melonhead Cafe at Coogee.

69 Later that day James again telephoned Morrison to enquire whether the cocaine had been loaded aboard the Texas. Morrison indicated that he had no news. James stated that he had spoken to "some people" and that they were interested to know what was going on.

70 On 30 April 2003 Morrison told James the cocaine had not been loaded aboard the Texas. James complained that he risked losing credibility with the others involved in the importation. Morrison offered to talk to them to explain the situation. James said the others would be "shattered". He said he would go down and see them to ascertain whether anyone wanted to speak to Morrison and he would call back in half an hour. James drove directly to the Clovelly SLSC where he met with Evans and the appellant. The appellant told James he did not want to speak with Morrison. Later that night Rogers picked up the appellant from his home and the two men drove to the Melonhead Cafe where the appellant was heard to say, "he's not happy" and "what he really said was...".

71 Meanwhile James and Evans spoke with Morrison by telephone. Morrison explained that problems had been encountered loading the cocaine due to increased security and sniffer dogs. He referred to the "Columbian guy". Evans reported that the others involved were angry and asked Morrison to attempt to get his people "to put some extra on or knock something off the price".

The anticipated arrival of the Tamerlane

72 On 2 May 2003 Morrison told James that he had been assured the cocaine would be loaded aboard the Tamerlane, the next vessel of the Wallenius Wilhelmsen shipping line to sail from Manzanillo. The following day Morrison told James he was confident the cocaine would be shipped on the Tamerlane. James said that he would speak with the others to update them about developments. Immediately following this call James was observed to meet with Evans in the car park at the Clovelly SLSC. The appellant had departed Australia for New Zealand that day.

73 On 11 May 2003 the Tamerlane departed Manzanillo.

74 On 12 May 2003 the appellant returned to Sydney.

75 On 13 May 2003 Morrison told James that the cocaine had been successfully loaded aboard the Tamerlane. James said he would inform "our friends" so that they could make the necessary preparations to have the cocaine offloaded.

76 On 19 May 2003 James, in company with Evans, telephoned Morrison and asked about the details of how and where the cocaine had been concealed aboard the Tamerlane as "another fellow" required the information that day. Morrison said he was drunk and did not want to risk driving to a public telephone. Evans came on the line and pressed Morrison to call back but Morrison declined. James asked Morrison to call him the following day.

77 On the same day James sent the appellant a pager message which read, "Richard, my girlfriend had the dates mixed up. I won't see you tonight. I will speak to you tomorrow. Your mate from the beach". James gave evidence that his reference to "girlfriend" was a reference to Morrison.

78 On 20 May 2003 Evans drove James to a public telephone in Maroubra where he telephoned Morrison and was given details of the location of the cocaine in a truck with Illinois number plates which was being shipped aboard the Tamerlane. Throughout the conversation (which was not intercepted), Evans was observed to stand directly behind James at the entrance of the telephone box. Immediately following the call Evans and James drove to the Clovelly SLSC where James, Evans and the appellant were observed to speak. A few minutes later the appellant met with Rogers in the car park. (On 28 May 2003 Morrison told James the cocaine was concealed in two bags behind the front seat of the truck aboard the Tamerlane and how the bags could be accessed.)

79 On 21 and 22 May 2003 the appellant, Evans and Rogers were in each other's company at the Clovelly SLSC.

80 On 23 May 2003 David Tipping and Andrew Maguire (both employed by Patrick at Darling Harbour) arranged to meet. Rogers also arranged to meet with Maguire later that afternoon.

81 On 29 May 2003 Rogers telephoned Maguire and arranged to meet with him. Later that afternoon Maguire telephoned Tipping and they arranged to meet at Tipping's home. The same afternoon Rogers met with Tipping in Randwick. The following day another Patrick employee telephoned Tipping and discussed the anticipated arrival of the Tamerlane at Darling Harbour and their shifts, agreeing that it was sufficient if one of them was on shift. Tipping stated that it did not matter so long as one of them was there.

82 In late May 2003 the appellant told Gray-Spence that he had a lot of good quality cocaine arriving in the near future.

83 On 30 May 2003 Dean Rogers hired a Hyundai Excel for a week using a false name. The following day he hired a Toyota Camry station wagon for a period of six days.

84 On 1 June 2003 Tipping, wearing a pair of gloves, drove the Hyundai Excel from his home at Randwick to the employees' car park at Patrick Stevedoring at Darling Harbour. He was due to commence his shift at 11.00pm. Tipping gave evidence that some time during the preceding week he had been told that the person who arranged the hire of the Hyundai was going out with some friends and that he was asked to drive the car to work so that person could pick up the car at about 3.00am. He said he was given the keys to the vehicle which had been parked at his home. It was the Crown case that the car was to transport the cocaine once it was offloaded.

85 On the same day the Tamerlane berthed at Darling Harbour at about 8.00pm.

86 At about 9.00pm three men were observed by police seated at Observatory Park, Millers Point, overlooking Patrick's wharf at Darling Harbour. When questioned by police they gave their names as Nathan Rogers, Peter James and John Adams. The accused Rogers has a brother Nathan and James has a brother Peter. The addresses and dates of birth the two men gave to police did not correspond with the brothers of the accused or the accused themselves. A "Uniden" police radio scanner was located in the vicinity of where the men were spoken to by police.

87 At about 10.20pm the appellant was identified by a police officer standing on Kent Street, Millers Point, from where the container terminal could be seen and a short distance from Observatory Park. The police officer was in a motor vehicle. The sighting was brief.

88 At 10.32pm Rogers telephoned Maguire from a public telephone in George Street, Sydney, and informed him that the plan to collect the cocaine (from the truck on board the Tamerlane) had been abandoned.

89 At about 2.52am on 2 June 2003, Tipping drove the Hyundai Excel from the employees' car park in Hickson Road to Millers Point, where he parked it, leaving the key on the floor in front of the driver's seat, before walking back to Patrick Stevedoring. The vehicle was left unlocked.

90 At 2.24pm on 2 June 2003 the appellant was seen by police to walk to and enter James' home in Coogee. James gave evidence that the appellant reported to him that there was nothing on the boat, that they had looked through "the whole thing" and, further, that the vessel appeared to be under surveillance.

91 On 3 June 2003 James telephoned Morrison and informed him that he had been told there was no truck with Illinois number plates on the Tamerlane. He said "our friend" was watching when the vessel arrived and that it appeared that the vessel was under surveillance, possibly by the police. James indicated he would call back in an hour. James then drove to the Clovelly SLSC where he met with Evans and the appellant. The Crown alleged that James' reference to "our friend" was a reference to the appellant and that it confirmed the evidence of the police officer who identified the appellant in The Rocks on 1 June 2003. In addition, Gray-Spence gave evidence that after 1 June the appellant told him that, "the coke thing had gone pear shaped". He said the appellant also mentioned a hire car, a scanner and that he had been watching the Darling Harbour area.

92 At about 10.57am on 3 June 2003 James called Morrison on a public telephone in Clovelly (the call was not intercepted). James confirmed that there was no truck with Illinois number plates on the Tamerlane and, in addition, that the vessel appeared to have been under police surveillance. Meanwhile, at about 11.01am that day the appellant was recorded inside Rogers' car saying, "we'll go up there mate ... and give him my own opinion". The appellant was seen to walk to and stand next to James while he was speaking to Morrison.

93 On about 3 June 2003 the appellant told James that he would obtain a copy of the Tamerlane manifest.

94 On 3 June 2003 an unidentified male returned the Toyota Camry hired on 31 May 2003 to the hire company without collecting the deposit. Later that day another unidentified male delivered a copy of a street map of the Millers Point area to the same hire company and indicated that the Hyundai was parked at a location marked on the map. He apologised for the inconvenience in not returning the car personally and said he would forfeit the deposit.

95 On 4 June 2003 James telephoned Morrison and reiterated that the cocaine was not on the Tamerlane. Morrison stated that he was making efforts to ascertain what had gone wrong. James said that he was attempting to obtain a copy of the ship's manifest which he would fax to Morrison. Immediately after the call James was observed to meet with Evans.

96 Meanwhile Rogers met with the appellant after which he entered an apartment building where Maguire resided. The appellant left carrying a small yellow coloured item.

97 On 5 June 2003 James called Morrison and asked for a number to which the manifest should be faxed. He asked that it be marked for the attention of "June Nielsen". James indicated that he expected he would be able to fax the manifest that evening.

98 On 6 June 2003 James sent the following pager message to the appellant, "Rick I need your membership form ASAP. Will be at the beach at midday, Gordon". James gave evidence that the reference to "membership form" was intended as a coded reference to the Tamerlane manifest.

99 On 8 June 2003 Morrison was arrested in California.

100 On 17 June 2003 James and Evans were arrested. In James' car police located a three-page document comprising a manifest of the Tamerlane and a stowage plan marked for the attention of "June Nielsen".

101 On 2 July 2003 the appellant and Rogers were arrested.

The case for the appellant at trial

102 The case for the appellant comprised his evidence and that of Lionel Potter, whose cross-examination is the subject of ground 1 on the appeal.

103 The appellant gave evidence that he was raised in the eastern suburbs of Sydney and in about 1998 became an associate member of the Clovelly SLSC. In 2002 and 2003 he frequented the Coogee Bay Hotel and the Royal Hotel in Randwick and participated in a range of sports. He said he knew Evans from high school and knew Rogers through his father. He denied discussing importing cocaine with Rogers or agreeing with Rogers to import cocaine. The appellant said he knew James from the eastern suburbs area but was never a friend or close associate of his. He said he was aware James had been arrested in the United States while working as a Qantas steward and did have casual contact with him at the Clovelly SLSC. He denied providing James with security tags or seals, shipping schedules, or a manifest or stowage plan for the Tamerlane. He said he did not discuss the port of Manzanillo with James. He did say he had been asked to pass messages to James from Anthony Hines in June 2003 and that he understood that James owed Hines money.

104 The appellant knew Gray-Spence by the name Steve Sanders and saw him from time to time in the Coogee area. He said they sometimes gambled together. He denied telling Gray-Spence that he had a shipment coming in that would make a lot of money or making any plans with him to distribute cocaine. He denied telling Gray-Spence after his arrest that somebody had "rolled" on him.

105 The appellant knew Tipping through his wife and had seen him around the area and at the Royal Hotel in Randwick. He denied discussing the importation of cocaine into Australia with Tipping or having any knowledge that Tipping had agreed to facilitate the removal of the cocaine from the Tamerlane.

106 The appellant gave evidence that he had known Anthony Hines for over 20 years, first meeting him when Hines was in his late teens or early twenties. They played football for the same team. The appellant knew Hines to have engaged in violent and threatening behaviour on repeated occasions, including dragging a surfer from the surf and hitting him with a surfboard; producing a handgun in a club and shooting it in the air; carrying a gun at a Dolphin Street Nightclub and at the Coogee Bay Hotel; engaging in numerous fights with bouncers, patrons of the pubs, and the public; and belittling a woman in a restaurant who complained about him singing and later attacking her boyfriend with a pepper grinder in the same restaurant. The appellant said he knew Hines by two nicknames: "Captain Rats" and "La Loon" (as in "the lunatic").

107 The appellant said that he was not with the accused Rogers at the telephone box in Coogee in October 2002 when Rogers telephoned the Wallenius Wilhelmsen shipping line. He also said that to the best of the his knowledge he was not referring to James when he was overheard by police to say, "He is not very happy" in the Melonhead Café on 30 April 2003. He said he may have been referring to someone else, perhaps Rogers or Hines, but not in relation to the conspiracy. When cross-examined about the pager message James sent to the appellant on 19 May 2003 (see [62]) which the appellant acknowledged receiving, he denied it was a coded reference to the importation and suggested it may have been because James sent him a message to pass on to Hines. He was unable to explain why James would be referring to Hines as "Richard".

108 In addressing the evidence in the Crown case that he was in the area of The Rocks at 10.20pm on 1 June 2003, the appellant said he met with Lionel Potter that day and went with him to watch a football match at Kogarah Oval which started at 3pm. He said he and Potter left the game about ten minutes before full-time and went to the Coogee Bay Hotel until about 7.30pm. He said they then went to South Sydney Junior Leagues Club where they stayed together until about 10.30pm when Potter left the Club. The appellant said he signed the sign-in book on arrival at the Club.

109 Potter gave similar evidence. He said that on 1 June 2003 he went with the appellant to Kogarah Oval and watched a game of football between St George and the North Queensland Cowboys. He said they left the game of football before full-time and got a taxi to the Coogee Bay Hotel where they drank for a couple of hours after which they caught a taxi to the South Sydney Juniors Leagues Club at Kingsford, arriving there at about 7.45pm. They entered the club together. Potter said he flashed a membership card at the entrance. The appellant was directed to a sign-in area at the entrance and headed in that direction. Potter waited for him and then joined with him drinking. Potter left the club at exactly 10.30pm. The appellant was with him at the Club up until that time.

110 On 2 June 2003, the day that James said the appellant visited him at his home and reported that the Tamerlane appeared to be under surveillance, the appellant gave evidence that he visited his mother at Norah Head, travelling there by public transport and returning to his premises at about 5pm or 5.30pm. He denied visiting James that day.

111 On 3 June 2003 the appellant said that during the morning he was at Clovelly SLSC and that he left with Rogers. He also said that later that morning he saw Hines, who asked him whether he had seen James at the surf club that morning. Hines seemed aggressive and said, "You see him you tell him I've ... had enough of him, and I am going to give it to him". The appellant said he told Hines he had not seen James and that he would probably not see him until the following day. The appellant returned to the surf club and asked after James. He was told that James had just left. The appellant intended relaying the message to James and telling James that he was an idiot if he was getting involved with Hines. The appellant and Rogers then drove up the road and saw James in a telephone box. The appellant approached James, who was talking on the telephone. The appellant reported what had just happened with Hines and said to James, "Whatever you are involved in eave me out ... he's an ... idiot" and walked away. This was relied upon to meet the evidence in the Crown case as summarised, that on 3 June 2003 he met with James at the telephone box knowing or expecting he was talking to Morrison.

112 On another occasion the appellant said Hines had asked him to convey a message to James at the Clovelly SLSC to the effect that Hines was not very happy with him and that some time later Hines asked him whether he had given James the message. He said he was then asked to tell James that everything "will be sweet ... [Hines] will be seeing [James] shortly".

113 As to the pager message sent to him by James on 6 June, he said in cross-examination that was in fact a reference to his membership of the surf club because he was changing his home address and not a reference to the manifest as contended for by the Crown in reliance on James' evidence.

Ground 1: The trial miscarried by reason of the conduct of the Crown and the nature of the unfair cross-examination of Lionel Potter

114 Although Mr Potter was not an alibi witness in the strict sense, the significance of his evidence to the appellant's case would not have been lost on the jury. Put simply, the Crown case against the appellant comprised a vast amount of incriminating evidence, principally the direct evidence of co-conspirators of his active role as an organiser and financier of the importation, allied with surveillance evidence where he is seen in company with his co-conspirators at relevant times, whereas it was the appellant's case that he had been falsely incriminated by these men and that his association with each of them was capable of an innocent explanation. However, being at The Rocks on 1 June 2003 within hours of the long-awaited and much anticipated arrival of the Tamerlane could not be explained consistent with his innocence and no attempt was made by defence counsel to do so.

115 The sole import of Potter's evidence was to corroborate the appellant's evidence that he was not in The Rocks that night and, in that way, to further undermine the reliability of the evidence of the police officer who claimed to have identified the appellant, and ultimately, by that means, to raise a doubt as to the appellant's participation in the conspiracy.

116 This issue attracted considerable attention in the Crown case. It included a challenge to the reliability of the identification in cross-examination which attracted a warning from the trial judge. Although the police officer conceded that he might have been mistaken in his immediate recognition of the appellant, he did not concede that he was wrong.

117 Evidence bearing upon the circumstances in which the sign-in records from the Club were sought and obtained by the Crime Commission (and which did not show the appellant's attendance that night) was also the subject of contest. Finally, the attention given to the issue by both counsel in closing addresses would have left the jury in no doubt that the question whether the appellant was at The Rocks was a critical issue in dispute and one they were invited by counsel to resolve.

118 The cross-examination of Potter was limited to a direct attack on his credit by reference to his criminal convictions. He was not invited by the prosecutor to concede that he may have been mistaken about the date or the time that he claimed he was with the appellant at the football and the Club in June 2003 or that his memory was otherwise faulty given the effluxion of time. The Crown put to him that he was telling lies to assist the appellant.

119 After confirming that the witness could not name any of the other patrons at the Club the following questions were asked:

[CROWN PROSECUTOR]

Q. Have you ever been convicted of a criminal offence?

OBJECTION

DEFENCE COUNSEL: This is an issue which I would have thought my friend would have asked leave to ask firstly.

HIS HONOUR: Yes Mr Crown?

CROWN PROSECUTOR: It's one not required your Honour.

HIS HONOUR: Mr Driels, what do you wish to - -

DEFENCE COUNSEL: Your Honour, I'll meet it in the fullness of time.

CROWN PROSECUTOR:

Q. Have you ever been convicted of a criminal offence?

A. Yes

Q. Have you ever served time, a prison sentence?

A. Yes.

Q. On more than one occasion?

A. Yes

Q. How many times?

A. I cant recall, a few.

Q. Is your date of birth 21 September 1936?

A. That's right.

Q. Did you live in Queensland initially?

A. I did.

Q. Have you been convicted of stealing?

A. Yes

Q. Unlawfully in dwelling with property suspected of being stolen?

A. Yes

Q. Rape?

A. Not really.

Q. Not really?

A. I was found not guilty.

Q. Found not guilty were you?

A. Yes.

Q. Was that on appeal?

A. Yes

Q. Do you have a middle name?

A. Yes.

Q. What's that?

A. Henry.

Q. Have you also been known as Lionel Harry Potter?

A. Not that I know of.

Q. [STRIKE-OUT BEGINS] Lionel Arthur Abbott? [STRIKE-OUT

ENDS]

HIS HONOUR: Mr Crown, are you sufficiently briefed to

know the accuracy of this document you're taking the

witness to? There appears to be matters that don't appear

to be matters that should be put if there are no convictions.

CROWN PROSECUTOR: Your Honour, I had a document that was obviously missing an entry in relation to an appeal.

HIS HONOUR: Are you confident that that document

therefore is accurate?

CROWN PROSECUTOR: Well, not in that context, your Honour,

on that one matter.

HIS HONOUR: Mr Driels, have you seen that document?

DEFENCE COUNSEL: No, I have not your Honour.

HIS HONOUR: Do you wish to see the document.

DEFENCE COUNSEL: Yes I do.

120 An affidavit from defence counsel was read without objection on the appeal. He said that Mr Potter had been called to give evidence at the earlier trial but was not cross-examined about his criminal convictions. He said he had no notice that the Crown intended to raise them at the retrial. He said:

... Had I known that the Crown intended to cross-examine Mr Potter on his record, I would have asked the judge to rule on the proposed cross-examination in the absence of the jury.

I objected to the cross-examination in the belief that the Crown needed leave to ask questions purely as to credit. I did not maintain the objections because I believed that once the question about Mr Potter's criminal record was asked the damage was done. I did not realise that the most recent of the convictions was in 1961.

121 After the jury and the witness retired, defence counsel was shown what was purported to be Potter's criminal antecedents in New South Wales and Queensland. In discussion it became clear the document was not an authorised criminal record but an index card of some description on microfiche, the provenance of which was never made clear; that some entries were in a name other than that of the witness; and that the Queensland document was incomplete and other parts of it were illegible.

122 In the course of argument his Honour raised with the Crown the operation of s 103 of the Evidence Act 1995 which operated then (as it does currently) as an exception to the credibility rule in s 102. Section 103 provided as follows:

(1) The credibility rule does not apply to evidence adduced in cross-examination of a witness if the evidence has substantial probative value.

(2) Without limiting the matters to which the court may have regard in deciding whether the evidence has substantial probative value, it is to have regard to:

(a) whether the evidence tends to prove that the witness knowingly or recklessly made a false representation when the witness was under an obligation to tell the truth, and

(b) the period that has elapsed since the acts or events to which the evidence relates were done or occurred.

123 After defence counsel had reviewed what remained of the witness' admitted criminal convictions which, in addition to what was led in the presence of the jury, included a further two offences of stealing, assault, behaving in a disorderly manner and an incitement to resist arrest, he submitted that the age of all offences deprived them of any probative value. All offences were committed between 1957 and 1961. The Crown submitted that despite their age, the convictions had significant probative value because they were capable of demonstrating that the witness had a disregard for the law and the police. The Crown did not submit that they reflected adversely on the witness' honesty generally or as a witness under oath.

124 A voir dire was then convened after which the Crown accepted that the only convictions that could be attributed to the witness were the stealing offence(s) and the possession of stolen property about which he had been questioned in the presence of the jury. The trial judge disallowed further questioning of the witness on his criminal record. It was clear from his Honour's exchange with counsel that he was not satisfied that any of the convictions had substantial probative value given their age and, further, were the issue to have been ventilated in the absence of the jury, he would not have permitted the Crown to cross-examine on the criminal record at all.

125 When the jury returned, the Crown prosecutor put to Potter that he was biased against police and that he had told lies to support his friend (both of which were denied). He asked no further questions.

126 In re-examination, defence counsel led the date of Potter's convictions for stealing and being in possession of stolen property, doubtless in an effort to ameliorate the impact of the questions that had been asked by the Crown.

127 Defence counsel did not ask the trial judge to direct the jury that they should disregard cross-examination on the rape charge and did not seek a direction preventing the Crown from referring to the cross-examination of Potter on his criminal record in closing address. No application was made to discharge the jury.

128 In his closing address, when dealing with Potter's evidence as one aspect of the evidence bearing upon the question whether the jury was satisfied that the appellant was in the area of The Rocks at the relevant time, the Crown prosecutor reminded the jury that the only person the appellant called to give evidence of seeing him at the Club was Potter who "could remember that he spent more than one term in imprisonment but couldn't remember how many". The Crown prosecutor went on to say:

It's very easy, I would suggest, a very easy lie to tell to support someone in those circumstances where there is no prospect of any positive evidence that could contradict it. And I would suggest that's happened here in this trial. You had the evidence from Potter that was false to try and prop up Mr Montgomery's suggestion that he wasn't in Kent Street in circumstances where there was a positive sighting of him from a police officer who will well knew what he looked like.

129 When dealing with Potter's evidence and the Crown prosecutor's criticism of him, defence counsel submitted in closing address as follows:

Whether you like it or not he didn't come along polished. He came along exactly what he was like Lionel Potter. He worked at Cockatoo Island, he said, shipbuilding. He worked for Woollhara Council. A street sweeper. He knew he was going to be embarrassed. Knew he had a record. And that's where the Crown went: you were not with Mr Montgomery at 10.20 on that night. Not that he hadn't been to the football with him. Not that he hadn't been to the Coogee Bay with him. You weren't with him at South Juniors at 10.20 that night. You're a liar. You're lying for your friend. You're lying because you hate police. No evidence that he hated police. You're lying because you would help a friend. You're lying because you're embarrassed about being in jail, 50 years ago. No evidence of being in jail since 1957, 1958.

That's enough. In our community for a Crown prosecutor to call a man, who on a second occasion coming along, knowing what he was going to get hit with, with the embarrassment of it, even pushed to the outrageous position of putting to him that he was convicted of rape when he wasn't. The best that senior counsel could do. 50 years ago.

...50 years ago he was in trouble and that's enough to call him a liar here ...

130 The trial judge made no reference in the summing up to Mr Potter's cross-examination or the Crown's submissions in his closing address.

131 Although the questions about Potter's prior convictions were asked and answered in the presence of the jury without objection (in circumstances deposed to by Mr Driels, perhaps understandably), on the appeal it was submitted that given the obvious potential for the line of questioning to prejudice the jury's assessment of Potter's credibility, the Crown prosecutor ought not to have cross-examined about what he well knew were very old criminal convictions without affording defence counsel the opportunity to be heard on whether they had substantial probative value under s 103(1) of the Evidence Act and, if appropriate, to object to the questions in their entirety.

132 It was submitted that the Crown ought to have been on notice from the poor quality of the records, and the fact that they referred to a person with a different name from the witness, that there may have been concerns about the reliability and accuracy of some of the entries and, quite independently of their age, that this should have at least sounded a note of caution necessitating that he seek a ruling as to whether he would be permitted to cross-examine upon the records before launching into a cross-examination without notice to defence counsel.

133 It was submitted that since this did not happen the cross-examination of Potter was unfair and productive of a miscarriage of justice.

134 On the appeal the Crown did not seek to argue with any conviction that the questions asked in cross-examination before the jury were invited to retire would have satisfied the test of admissibility if the issue had been fully ventilated in their absence. For my part, I am unable to see how Potter's convictions (as admitted) had the potential to have a persuasive bearing upon his credit. The Crown's submission at trial that the probative value of the evidence of his convictions over 40 years earlier was in its capacity to reflect a disregard for the law and the police, failed to appreciate the need for the Crown to establish a necessary connection between the evidence sought to be adduced and whether the witness ought to be believed when he claimed he was in the appellant's company when the police identified the appellant elsewhere in order for it to satisfy the test of substantial probative value.

135 In R v El-Azzi [2004] NSWCCA 455, Simpson J observed at [180]-[183]:

[180] "Probative value" is defined in the Dictionary to the Evidence Act as:

"... the extent to which the evidence could rationally affect the assessment of the probability of the existence of a fact in issue."

[181] That definition, however, does not apply to the use of the term "(substantial) probative value" as it is used in s 103(1). In R v RPS, unreported, NSWCCA, 13 August 1997, Hunt CJ at CL, with whom Gleeson CJ and Hidden J agreed, said:

"Section 103 of the Evidence Act limits cross-examination as to credit to adducing evidence which has 'substantial probative value'. The 'probative value' of evidence is defined in the s3 Dictionary as meaning 'the extent to which the evidence could rationally affect the assessment of the probability of the existence of a fact in issue', but both the context in which that phrase appears and the subject matter of s103 indicate that that definition does not apply. That is made clear by the terms of subs(2), which demonstrate that the evidence must have probative value in relation to the credit of the witness. Evidence adduced in cross-examination must therefore have substantial probative value in the sense that it could rationally affect the assessment of the credit of the witness. Such an interpretation accords with the intention of the Law Reform Commission. The addition of the word 'substantial' nevertheless imposes a limitation upon the common law, when almost anything was allowed upon the issue of credit unless it clearly had no material weight whatsoever upon that issue. That limitation is an important one." ('not' in the second sentence is italicised in the original; the emphasis placed on the fourth sentence is added; internal references omitted)

[182] That view of the meaning of the term was endorsed by the Full Court of the Federal Court of Australia in Jacara Pty Ltd v Perpetual Trustees WA Ltd [2000] FCA 1886; 106 FCR 51, per Sackville J, with whom Whitlam and Mansfield JJ agreed. (RPS was the subject of a successful appeal to the High Court: RPS v The Queen [2000] HCA 3; 199 CLR 620, but on matters unrelated to the present question.)

[183] In my opinion, for this evidence to have had substantial probative value within the meaning of s 103(1), it must have had the potential to have a real bearing upon the assessment of the appellant's credibility - and, particularly, to the appellant's credibility in relation to the evidence he had given, or would give, at the trial. It cannot have had substantial probative value for the purposes of s 103(1) unless it was capable, in a significant way, of bearing upon that assessment.

136 While in other circumstances questioning an alibi witness about criminal convictions for dishonesty might satisfy the test of admissibility under s 103(1) (see R v Lumsden [2003] NSWCCA 83 per Hulme J at [56], Mason P agreeing at [3]), in my view, the sheer age of Potter's convictions deprived the evidence of the capacity to bear rationally and logically upon his veracity and for that reason the cross-examination was unfair and productive of prejudice. While I accept that it would appear that the Crown prosecutor was unaware that the rape conviction had been overturned on appeal (assuming that to be the fact), again, as a result of the quality of the record he was cross-examining from, I have grave doubts whether that conviction, even if admitted, would satisfy the test of admissibility under s 103 in this case.

137 The appellant's counsel also submitted that this Court would be satisfied that the prosecutor deliberately omitted any reference to the age of the convictions when framing his questions in cross-examination, intending to overcome what he knew would almost certainly deprive them of the probative value necessary for their admissibility, and in this way he acted improperly.

138 Although there is some basis for inferring that the Crown deliberately framed the questions to avoid reference to the age of the convictions (perhaps in the expectation that, if admitted, they would operate to undermine the witness' credit without prompting further enquiry), I am unable to safely conclude that his motivations were of that kind. I am however satisfied that, in the proper discharge of his duties and responsibilities as prosecutor, he ought to have approached the cross-examination of Potter to avoid the risk of unfair prejudice to the presentation of the appellant's case in circumstances where the records he was cross-examining from suggested that the entries, or some of them, may not refer to the witness at all and others were likely to be of doubtful probative value because of their age. This could easily have been achieved by raising the issue in the absence of the witness after his evidence in chief and, if necessary, asking that a voir dire be convened before cross-examination without depriving the Crown of the forensic advantage of a successful attack on Potter's credit if the line of cross-examination were to be allowed which would have ensured against unfairness if the questioning were disallowed.

139 Having resolved to the view that the cross-examination of Potter resulted in the admission of prejudicial evidence and that the Crown could have avoided the risk of prejudice in the way I have suggested, the question is whether the cross-examination generated such unfairness that the trial miscarried.

140 The Crown submitted that any prejudice was eliminated by the manner in which the trial judge dealt with the issue (that is, by striking out the reference to the other person's name) and by the questions asked by the appellant's counsel in re-examination establishing the age of the convictions. The Crown also submitted that other evidence in the Crown case bearing on the question whether the identification evidence should be accepted was of such collective strength that even with the trial judge's directions to the jury that they should approach the identification evidence with caution, it was open to them to be satisfied that the appellant was in the area of The Rocks on the evening of 1 June 2003, the attack on Potter's credibility by reference to his criminal record would have had little impact. The Crown submitted that not only was the evidence of Potter and the appellant that they were in Kingsford contradicted by the identification evidence, but there was also a confirmed sighting of Rogers in the area of The Rocks shortly after the appellant was sighted, in circumstances where, on the Crown case, Rogers (who was regularly in the appellant's company throughout the conspiracy) was notifying others by telephone that the plan to unload the cocaine had been abandoned. In addition, the Crown submitted that the sign-in slips from the South Sydney Junior Rugby League Club did not show any entry corresponding to a visit by the appellant on 1 June 2003, despite his evidence and Potter's evidence that he signed in upon entry, and that this further undermined their evidence that they were at the Club that night.

141 Despite the force of the Crown's submissions on the extent of prejudice occasioned by the cross-examination, in my view the questions asked by the prosecutor were productive of a miscarriage of justice. The appellant was entitled to have the jury consider the evidence given by Potter on its merits. The way the appellant's defence was mounted at trial, Potter's evidence was capable of bearing critically on the jury's consideration of the truthfulness of his evidence that he was not in The Rocks on 1 June 2003 (and, for that reason, not a participant in the conspiracy as the Crown contended) and that both James and Tipping should not be believed when they gave evidence that effectively put him in The Rocks on the evening of 1 June 2003, as contended for by the Crown.

142 I would uphold the first ground of appeal.

Ground 2: The trial miscarried by reason of the conduct of the Crown and the nature of the cross-examination of the appellant where an irrelevant and prejudicial association was raised, namely Jai Abberton, effectively raising the bad character of the appellant

143 Ground 2 also concerns the conduct of the Crown prosecutor as cross-examiner, on this occasion his cross-examination of the appellant. The question said to be productive of prejudice and a resultant miscarriage of justice was asked in the context of the appellant being cross-examined about events after his release to bail on 1 August 2003, including his association with Hines at the Coogee Bay Hotel on 5 August 2003 (the night he was killed by Jai Abberton).

144 The essence of the appellant's case in so far as it related to Hines was that he had known him for many years as a person with a capacity for violence and intimidation and that he had seen him with a gun on a number of occasions. He also gave evidence that he had passed messages between Hines and James in 2003 during the course of the conspiracy at Hines' request which accounted for his being in James' company on a number of occasions, in particular on 3 June 2003, a proposition which James denied.

145 The Crown led evidence from James as to his knowledge of, and any relationship he had with Hines in anticipation of the appellant and Evans seeking to implicate Hines as the principal co-conspirator with James. James gave evidence that he was involved in obtaining a false passport for Hines from Morrison and had received money for that purpose and that Hines had purchased cocaine from him from two previous successful drug importations. He denied that Hines was involved in the conspiracy to import cocaine the subject of the trial. These questions were not objected to by the appellant or either of his co-accused.

146 The Crown did not lead evidence from James that Hines had any demonstrated propensity to violence. It was the appellant's counsel who raised Hines' violent disposition with James who conceded that Hines was "extremely violent", and was "a person who had a fearsome reputation for beating people up". He also agreed that Hines was "naturally paranoid" and "a drug dealer", but he repeatedly denied that the appellant had passed messages to him from Hines or that the appellant warned him that Hines was angry because James had not produced the false passport or the money that was owed.

147 It was also the appellant's counsel who first introduced the fact that Hines had been killed in August 2003, however no reference was made to the fact that the person charged with his murder was Jai Abberton or that he was acquitted of murder on the grounds of self-defence in 2005. On the appeal the Crown submitted that the appellant's complaint about the Crown prosecutor's cross-examination is diminished by the fact that it was through defence counsel's cross-examination of James that Hines' death by killing was introduced into evidence in the trial, where a more neutral reference to him as having since deceased might have sufficed to explain his absence (and perhaps the fact that he was not charged).

148 The cross-examination (which had to this point extended over three days) leading into the objectionable question was directed to exploring the nature of the appellant's relationship with Hines in more detail.

149 The appellant agreed that he had known Hines for 25 years but said that, although they were not close friends, they might have a drink together at the Coogee Bay Hotel. The Crown put to the appellant that he "mixed with" Hines frequently, to which the appellant responded, "not frequently". These questions were not the subject of any objection at trial, no doubt in recognition of the fact that the Crown was entitled to test the appellant's claim that he had no involvement in the arrangement to import cocaine and that he only passed messages to James on Hines' behalf because he was fearful of him. Additionally, although the cross-examination concerned the appellant's contact with Hines after he was released on bail on 1 August 2003 (that is, after the conspiracy was over), no objection was taken to the cross-examination for that reason, presumably because counsel accepted the relationship with Hines was relevant even at that time. It was not submitted otherwise on the appeal.

150 As to that time frame, the appellant said that he saw and spoke with Hines twice. The first occasion was in a newsagency where they spoke about general things including the fact that Hines was angry with James because of an unpaid debt, about which the appellant said he asked no questions. He also said that Hines was inquisitive about who else had been charged with the conspiracy and that he told the appellant he had just returned from the United States where he had been refused entry, also a matter about which the appellant asked no questions. The Crown queried why he did not ask any questions about the debt or Hines' claim to have been refused entry to the United States despite the fact that, on his case, he was trusted enough to pass messages between James and Hines. The appellant said that that Hines was not the sort of person that he would ask questions of, the inference being because of his irascibility and his violent reputation.

151 The appellant was then asked about the second occasion when he saw and spoke with Hines after his release to bail:

Q. What was the second occasion on which you saw Mr Hines?

A. The second occasion was the night I was at the Coogee Bay having drinks with friends.

Q. What night was that?

A. I think it would have been about 4 or 5 August.

Q. Was there some particular event that night that enables you to identify the date?

A. Tone Hines was murdered that night.

Q. 5 August you mean Mr Montgomery?

A. I wasn't sure, 5 or 4 August.

Q. So you were having a drink at the hotel?

A. Yes.

[STRIKEOUT BEGINS]Q. With friends. Was that with Mr Hines and Mr Jyham--[STRIKEOUT ENDS]

OBJECTION (DRIELS)

A. No, no-one was--

152 It was agreed at the trial, and for the purposes of the appeal, that the reference to "Mr Jyham" (as transcribed) should read "Mr Jai Abberton" and that it was a sensitivity to his name as the head of a local gang self-styled as "the Bra Boys", as the trial had progressed to that point, that immediately prompted the trial judge to ask the jury to retire without ruling on the objection in their presence. It was also understood at trial, and accepted for the purposes of the appeal, that the Bra Boys were a gang local to the eastern suburbs of Sydney who were notoriously involved in street violence and that Jai Abberton was the leading member.

153 In the absence of the jury, the trial judge immediately invited the prosecutor to justify the relevance of including in a question about the nature of the relationship between the appellant and Hines (a legitimate subject for cross-examination) the fact that Jai Abberton was a friend of the appellant with whom he was in company on the night of Hines' death, in circumstances where the Crown well knew that Jai Abberton had killed him later that night. The trial judge's sensitivity to the issue, and his immediate reaction to the potential prejudice in the question, needs to be understood in the context of the Crown being on notice from repeated exchanges with defence counsel during the trial that any references, whether in direct or in oblique terms, to the Bra Boys would be objected to and the trial judge's ruling that the Crown should avoid any references of that kind at all costs.

154 After argument in the absence of the jury the question which was objected to was struck from the record. No further direction was sought by defence counsel at that time, or later, as to what the jury should do with the question in the event that they heard it (or the answer), defence counsel having apparently taken the view that it was advisable not to draw attention to it in the event that some of the jurors may not have heard it or those that heard it had not recognised the name. Thereafter the cross-examination of the appellant resumed without further reference to Hines or the appellant's association with him.

155 The trial judge was clearly of the opinion that the question carried with it an obvious prejudice by including a completely irrelevant reference to Jai Abberton. In addition, although his Honour was extremely critical of what he regarded as the Crown deliberately posing the question as to the friends the appellant was with on 5 August 2003 to include the name "Jai Abberton" without any legitimate forensic justification, an application for the jury to be discharged was refused. (That ruling was not challenged on the appeal.) That is where the issue rested at trial. There was no further reference to Jai Abberton or the Bra Boys in the evidence or in counsels' closing addresses.

156 The appeal was first listed for hearing in August 2011. In the course of senior counsel (then appearing for the appellant) identifying the prejudice said to flow from the reference to Jai Abberton, it became obvious that the appellant had not filed any evidence establishing the notoriety of that person (or the Bra Boys) at or before the time of trial to support the submission that a miscarriage of justice had been occasioned. (I note that when considering the application to discharge the jury mounted by the appellant's counsel at trial, his Honour also referred to the difficulty the accused faced in establishing the extent of risk of unfairness when, despite the fact that he was familiar with Jai Abberton by name, he had no way of assessing whether the jury was also aware of him or the context in which they may have known who he was.)

157 In oral submissions in August 2011 the Court was informed about a documentary film featuring Jai Abberton and his brothers and associates entitled "The Bra Boys", which had apparently attracted wide public release following its premiere in March 2007 and which was said to cast Jai Abberton as the leader of the gang. Although it is not clear that the earlier objections to any reference to the Bra Boys was as a result of the release of the film (as distinct from other sources of publicity or community notoriety about the gang by which association the accused was said to be prejudiced), the objection to the reference to Jai Abberton was, as trial counsel put it, not only because of his membership of the Bra Boys but because of the notoriety attaching to the circumstances in which Hines was killed by Jai Abberton on 5 August 2003, and the fact that the appellant was in the company of Abberton that night, a person who the Crown suggested was a friend of the appellant.

158 Counsel ultimately accepted that since the documentary film was not in evidence (and there was no other evidence of Jai Abberton's notoriety) an adjournment was necessary in order to assemble evidence to support the contention that a miscarriage of justice had resulted from the Crown's reference to him. The Crown did not oppose the adjournment.

159 On 18 November 2011 the appellant filed an affidavit of Kate Herczog which annexed a compendious volume of articles from the print and electronic media assembled by Media Monitors where reference had been made either to Jai Abberton, the Bra Boys and/or "Tony Hines" between December 2002 and March 2007.

160 When the hearing of the appeal resumed there was considerable debate, and some shifting of position by both the Crown and senior counsel then appearing for the appellant, as to whether the DVD of the documentary should be exhibited. In the result, neither the DVD nor the script of the documentary was tendered.

161 In addition, senior counsel then appearing for the appellant refined, and to an extent recast, what was said to be the prejudice flowing from the question asked of the appellant grounding what was said to be causative of a miscarriage of justice. In the result, very little of the material exhibited to Ms Herczog's affidavit was ultimately relied upon.

162 In the course of developing his submissions counsel accepted that he needed to establish that there was a reasonable possibility that the jury heard the question to include the name Jai Abberton; that they then linked that name with the Bra Boys; that they knew something of the reputation of that gang and that they knew Jai Abberton had killed Hines on 5 August 2003.

163 As to the first matter, the court stenographer either did not hear the name or did not identify it with any name with which he or she was familiar. However, the transcript of argument at the trial puts it beyond doubt that both counsel and the trial judge immediately heard the name as "Jai Abberton". That reaction may well be explained by the atmosphere of the trial and the heightened sensitivity of both defence counsel and the trial judge to any names associated with the Bra Boys, together with the fact that Jai Abberton's acquittal of the murder of Hines two years earlier was well known to counsel (Evans' counsel having represented him at trial) and apparently to the trial judge.

164 That said, I am unable to discount the reasonable possibility that the release of the documentary "The Bra Boys" within months of the commencement of the trial, and with the widespread media attention it attracted over a period of weeks following its release as borne out by the evidence, that at least one member of the jury heard the name Jai Abberton, associated him with the Bra Boys and with the murder of Hines, and appreciated that the question from the Crown implied that not only was Hines a friend of the appellant (and not the casual acquaintance he claimed to be in fear of) but that Jai Abberton was also a friend of his.

165 There was considerable press interest in the release of the documentary, as evidenced by the press reports exhibited to Ms Herczog's affidavit (perhaps explained by the involvement of Russell Crowe as narrator). Variously, the gang is described as a notorious surfie gang boasting a "brotherhood culture" and involved in bloody street brawls with police. They are also valorised as local heroes "on the quest to find the biggest wave ... defending their beach against rival gangs ... and brokering peace in the Cronulla race riots". The evidence also makes it clear that the murder trial was referred to in the documentary as was Jai Abberton's celebrated acquittal by reason of self-defence (he asserted that he believed that Hines was going to rape his girlfriend and kill him). However, what was not suggested in the reviews of the documentary or the press reports about it was an association between the gang and drug dealing. Of the great volume of press reports annexed to Ms Herczog's affidavit only one in the Sunday Telegraph of 11 March 2007 refers to an association between the gang and Jai Abberton and drugs and only then nominating Hines as the gang leader.

Hines was head of the gang

Documents prepared by the Australian Federal Police paint a far darker picture of the underworld activities of the Bra Boys than does their one-sided documentary.

The AFP identified the gang as an "eastern-suburbs drug syndicate" in 2003, two reports obtained by The Sunday Telegraph now reveal.

The reports also identify the late standover man, Anthony Hines, who was shot dead by Jai Abberton, as head of the Bra Boys and detail his extensive overseas travel and drug links.

...

While parts of [the report] are heavily edited, it is headed "importation via small craft". It states: "Anthony Gerard Hines ... is the syndicate head of the Bra Boys, [an] import and distribution syndicate in the eastern suburbs.

"Hines is believed to have organised the distribution of cocaine on behalf of [Mr X, another criminal]."

166 To the extent that counsel relied upon the jury connecting Jai Abberton with drugs and thereby connecting the appellant to drugs and a drug dealer by association, the evidence falls short of establishing that link. Counsel also relied upon newspaper reports where Jai Abberton (as the leader of the Bra Boys) was referred to adversely from time to time over five years between 2002 and 2007 by reason of his repeated and sometimes violent encounters with police. I do not regard these relatively random reports, standing alone, as bearing upon the extent to which prejudice flowed from the question struck out. I am also of the view that the press reports in 2005 in connection with Jai Abberton's trial for the murder of Hines, and his celebrated acquittal, are not capable of bearing the prejudice for which the appellant contends in a trial two years later. What remains material, and for the reasons discussed, is the featuring of Jai Abberton and the Bra Boys in the documentary launched in 2007 and the huge public interest evidenced by its distribution, in the months before trial.

167 As I see it, narrowed in this way, the question is to assess the extent to which the assertion implicit in the Crown prosecutor's question that the appellant was a friend of Jai Abberton (a name the jury might reasonably associate with the Bra Boys), and in his company on the night he shot and killed Hines, was productive of prejudice, or the risk of prejudice, so as to render his trial unfair and occasion a miscarriage of justice. Succinctly put, it was submitted that the question cast the appellant as a criminal by association with (his friend) Jai Abberton and in that way it exceeded the legitimate bounds of a cross-examination directed to undermining his credibility. I accept that submission.

168 I am also well satisfied that the prosecutor knew of defence counsel's sensitivity to any reference to the Bra Boys or its members and that his reference to Jai Abberton was deliberate, in the sense that it was not inadvertent or the result of an excess of the enthusiasm of the cross-examiner seeking to expose fundamental flaws in the appellant's defence. Were that the explanation, the prosecutor had every opportunity to make that plain in the lengthy exchanges with the trial judge in the absence of the jury. Rather, he sought to justify the question, and in particular the reference to Jai Abberton, as giving context to the occasion that the appellant was with Hines shortly after his release to bail. It is difficult in those circumstances to come to any other view than that the prosecutor was at least reckless in making express reference to Jai Abberton and, in that way, he acted contrary to the exacting standards expected of a Crown prosecutor.

169 In Wood v R [2012] NSWCCA 21 at [578] McClellan CJ at CL observed:

The duty to present a case fairly, completely and with fairness to the accused was emphasised in Livermore v The Queen [2006] NSWCCA 334; (2006) 67 NSWLR 659 at [24] where this Court cited with approval the dicta in McCullough v The Queen (1982) 6 A Crim R 274; [1982] Tas R 43 at 57:

"[It is] quite impermissible [for a Crown Prosecutor] to embark upon a course of conduct calculated to persuade the jury to a point of view by the introduction of factors of prejudice or emotion. If such a situation should develop and there is a real risk that the conduct complained of may have tipped the balance against the accused then an appellate court will not hesitate to follow the safe course and order a new trial."

170 In Libke v R [2007] HCA 30; 230 CLR 559 one of grounds of appeal concerned the cross-examination of the accused by the prosecutor which was said to be so unfair as to result in a miscarriage of justice. Although the appeal was dismissed by majority because, despite the prosecutor's misconduct, the trial was not shown to have been unfair (Gleeson CJ and Heydon J agreeing with Hayne J (Kirby and Callinan JJ dissenting), each of the judgments with differing degrees of emphasis expressly disapproved of the form, content and style of the cross-examination.

171 The offending questions were categorised and discussed variously as being wild, uncontrolled and offensive, questions that were not questions but comment, compound questions, cutting off the witness' answers, questions resting on controversial assumptions and questions that were argumentative.

172 After considering the way in which the role, rights and responsibilities of prosecuting counsel form an integral part of a fair trial, Hayne J observed:

[71] A criminal trial in Australia is an accusatorial and adversarial process. In that process, prosecuting counsel has a role that is bounded by long-established duties and responsibilities. Those duties and responsibilities are summarised when it is said that "[t]he duty of prosecuting counsel is not to obtain a conviction at all costs but to act as a minister of justice". In the Supreme Court of Canada, Rand J described the role of the prosecutor as being:

not to obtain a conviction, it is to lay before a jury what the Crown considers to be credible evidence relevant to what is alleged to be a crime. Counsel have a duty to see that all available legal proof of the facts is presented: it should be done firmly and pressed to its legitimate strength but it must also be done fairly. The role of prosecutor excludes any notion of winning or losing; his function is a matter of public duty than which in civil life there can be none charged with greater personal responsibility. It is to be efficiently performed with an ingrained sense of the dignity, the seriousness and the justness of judicial proceedings. (emphasis added)

A central, even the central, element in that role is "ensuring that the Crown case is presented with fairness to the accused".

[72] The prosecution case is to be presented in the context of an adversarial process in which each side "is free to decide the ground on which it or he will contest the issue, the evidence which it or he will call, and what questions whether in chief or in cross-examination shall be asked". But again, there are boundaries to that process. The choices that have been described are to be made "subject to the rules of evidence, fairness and admissibility"...

173 His Honour went on to note that while unfairness may take many forms, often it involves a departure from rules, including the rules of evidence, that ensure the orderly conduct of a trial. However, as his Honour observed, not every departure from that standard will be productive of unfairness. That said, his Honour also noted at [73] that:

... because the rules of orderly procedure are designed to safeguard the fairness of the proceedings, what is unfair will often be a departure from those rules.

174 At [78], after noting that none of the questions said to have constituted an unfair cross examination on credit were objected to, his Honour said:

In the present case, if comments made by the trial prosecutor are put to one side, the complaints of unfairness that now are made directed attention to the way in which the prosecutor set out to undermine the appellant's credibility. It was said that this was done "unfairly". The appellant identified a number of questions as evidencing this "unfairness". Some, the appellant said, were founded on a false or unproved assertion. Others, he submitted, made unwarranted criticism of evidence he had given. But leaving aside the prosecutor's intrusion of his comments on the evidence, the cross-examination, when read as a whole, betrays no unfairness to the appellant. Some questions might have been framed better than they were. Some carried imputations critical of the appellant's evidence. Some questions were founded on assertions that were not established or admitted. But the appellant was able to and did give the account he wished to give of the events about which he was asked. And whether the cross-examination was such as to distract the jury from a proper and dispassionate examination of the issues in the case requires consideration of not only those questions that were said to be designed unfairly to undermine the appellant's credibility, but also the various comments made by the trial prosecutor in the course of his examination of the appellant.

175 His Honour went on at [81] to say:

The comments the trial prosecutor made, in the course of cross-examining the appellant, departed from the rules that ensure the orderly conduct of a trial. But that observation does not answer the critical question presented by the appeal provision of the Criminal Code, which is said to be engaged. That question is whether there was a "miscarriage of justice". More particularly, did the making of these comments, either standing alone, or in conjunction with other aspects of the prosecutor's cross-examination of the appellant, make the trial unfair?

176 His Honour also distinguished the prosecutor's comments (which he noted were about matters in issue in the case), from inappropriate comments which suggested, either directly or indirectly, that the jury should follow some impermissible path of reasoning perhaps by appealing to prejudice or sympathy.

177 Heydon J was of the express view that the cross-examination was in breach of counsel's ethical duties which were also breaches of rules established by the laws of evidence.

178 At [120] his Honour said:

"Cross-examination is a powerful and valuable weapon for the purpose of testing the veracity of a witness and the accuracy and completeness of his story. It is entrusted to the hands of counsel in the confidence that it will be used with discretion; and with due regard to the assistance to be rendered by it to the Court, not forgetting at the same time the burden that is imposed upon the witness." Hence the powers given to cross-examiners are given on conditions, and among the relevant conditions are those which underlie the rules of evidence contravened in this case.

179 At [134] his Honour held:

While the breaches of exclusionary rules discussed above were capable of placing the accused in an unfair position, taken as a whole the breaches generated neither unfairness nor a miscarriage of justice. That is so partly because, despite interruptions, the accused was able to get his version of events across. It is so partly because at least the questions (as distinct from the comments) were not irrelevant and hence did not influence the jury towards an illogical approach to the issues. It is so partly because the uncontrolled ineptness of the questioning was such as to attract sympathy to the accused. Evidently designed to disparage and humiliate the accused, the questioning is likely to have rehabilitated him in the jury's eyes as he struggled with success towards advancing an account of the events to which the questioning related. The very egregiousness of the conduct generated safeguards against the dangers inherent in it. "[T]he adoption of an unfair conduct in cross-examination has often an effect repugnant to the interests which it professes to promote."85 Here the overly aggressive and unfair approach of the cross-examiner was one which was likely to have generated sympathy in the jury for the accused. Even if it did not, the accused showed himself capable of pointing out the defects of the cross-examination in a dignified way, and overcoming them.

180 Gleeson CJ emphasised that whether the conduct of the prosecutor as cross-examiner resulted in an unfair trial and a miscarriage of justice involved a question of degree. His Honour said at [2]:

First, the argument that the conduct of the prosecutor during his cross-examination of the appellant resulted in an unfair trial, and a miscarriage of justice, involved a question of degree. As Mullins J pointed out in the Court of Appeal, the cross-examination of the appellant extended over 44 pages of transcript. In the course of that cross-examination, counsel made certain inappropriate comments. It is difficult for an appellate court, relying only on the written record, to assess the impact of undisciplined conduct by counsel. It is also difficult, away from the atmosphere of the trial, to measure the significance of the absence of intervention by the trial judge or by opposing counsel. Those difficulties are to be taken into account by way of caution in approaching any attempt to minimise the complaints made on behalf of the appellant. Even so, having read the whole of the evidence of the appellant, I would not interfere with the Court of Appeal's conclusions that the conduct of the prosecutor did not make the trial unfair.

181 While in the present case the prosecutor's conduct in deliberately framing a question with a prejudicial sting is not a wholly irrelevant consideration to assessing whether unfairness has resulted, as the High Court has made plain in Libke, it is not determinative of whether the trial miscarried. What is determinative is whether the objectionable part of the question was such as to be productive of an unfair trial.

182 I have given earnest consideration to the potential prejudicial implications of the offending question consistent with my finding at [167] that the question cast the appellant as a criminal by association with (his friend) Jai Abberton and in that way it exceeded the legitimate bounds of a cross-examination directed to undermining the appellant's credibility. However, after taking into account the fact that on the appellant's case he passed messages between people who either he knew, or it might be inferred, had criminal records and, in the case of Hines, a man with a violent disposition; the fact that the appellant dealt with a detailed cross-examination that extended over four days with apparent resilience and control; where the offending question was one of very few questions objected to and disallowed and where no further reference was made to it; and where, in this case, there are limitations on making any accurate assessment as to how the question actually impacted on the jury, I am not persuaded that the trial was rendered unfair by the question objected to and struck out. I would dismiss the second ground of appeal.

The proviso

183 The upholding of the first ground of appeal calls into consideration the application of the proviso and, accordingly, a determination whether a substantial miscarriage of justice has actually occurred in circumstances where an important witness called by the appellant was cross-examined in such a way that his credit was attacked without proper evidential justification.

184 The approach to the application of the proviso in s 6(1) of the Criminal Appeal Act was settled in Weiss v R [2005] HCA 81; 224 CLR 300; 158 A Crim R 133 and recently confirmed in Cooper v R [2012] HCA 50; 293 ALR 17 where at [20] the Court identified the three propositions which are fundamental to its application:

...First, the appellate court must itself decide whether a substantial miscarriage of justice has actually occurred. Second, the task is objective, and is to be performed with whatever are the advantages and disadvantages of deciding an appeal on the record of the trial. Third, the standard of proof of criminal guilt is proof beyond reasonable doubt.

185 The Court went on to say at [21]:

Performance of the appellate court's task requires the court to undertake its own independent assessment of the evidence and it further requires the court to determine (at [41]):

[41] ... whether, making due allowance for the "natural limitations" that exist in the case of an appellate court proceeding wholly or substantially on the record,13 the accused was proved beyond reasonable doubt to be guilty of the offence on which the jury returned its verdict of guilty.

And although "[n]o single universally applicable description of what constitutes 'no substantial miscarriage of justice' can be given", it is necessary to bear at the forefront of consideration in this case that, as was pointed out in (at [44]):

[44] ... It cannot be said that no substantial miscarriage of justice has actually occurred unless the appellate court is persuaded that the evidence properly admitted at trial proved, beyond reasonable doubt, the accused's guilt of the offence on which the jury returned its verdict of guilty. [Emphasis added.]

186 On the appeal the concession was fairly made by the appellant's counsel that the Crown case against the appellant was strong, gainsaid in my view by the evidence of three co-conspirators and a body of surveillance evidence and pager messages which, taken as a whole, corroborated important aspects of their evidence and which directly implicated the appellant as an organiser and financier of the importation. After making due allowance for the limitations inherent in appellate review, which in this case involves the question whether, and to what extent, the impugned cross-examination of Potter would have weighed in the jury's consideration, I have resolved to the view that no substantial miscarriage of justice has occurred. While I accept that the issue as to whether the appellant was sighted in The Rocks on the evening of 1 June 2003 was significant in the ways discussed at [114]-[115], and that without the impermissible cross-examination the jury may have been left in doubt as to the reliability of the identification evidence, I am persuaded on the considerable and combined weight of the evidence properly admitted at trial (as summarised in [37]-[101] of this judgment) and after considering the appellant's evidence (as summarised at [102]-[113]) that even were there doubts as to whether the appellant was in The Rocks on 1 June 2003 as the Crown alleged, his participation in the conspiracy to import cocaine was proved, and to the criminal standard, such that no substantial miscarriage of justice has occurred.

187 The orders I propose are:

1. Grant leave to extend time for filing the notice of appeal.

2. Appeal against conviction dismissed.

**********

Decision last updated: 12 April 2013