Last Updated: 25 July 2016
SUPREME COURT OF VICTORIA
COURT OF APPEAL
S APCR 2015 0134
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MICHAEL CALVERT COOK
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Applicant
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v
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THE QUEEN
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Respondent
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JUDGES:
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WHELAN, BEACH and McLEISH JJA
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WHERE HELD:
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MELBOURNE
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DATE OF HEARING:
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2 June 2016
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DATE OF JUDGMENT:
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25 July 2016
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MEDIUM NEUTRAL CITATION:
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[2016] VSCA 174
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JUDGMENT APPEALED FROM:
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R v Cook (Unreported,
County Court of Victoria, Judge Dean, 25 March 2015)
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CRIMINAL LAW – Appeal – Conviction – Trial – Judge’s interventions during course of trial – Whether interventions resulted in substantial miscarriage of justice – R v Mawson [1967] VicRp 23; [1967] VR 205; R v Matthews (1984) 78 Cr App R 23; R v Sharp [1994] QB 261; Lars v The Queen (1994) 73 A Crim R 91, discussed.
CRIMINAL LAW – Appeal – Conviction – Trial – Bias – Argumentative dealings by judge with defence counsel in absence of jury – Whether judge’s conduct resulted in substantial miscarriage of justice – Piccolotto v The Queen [2015] VSCA 143, distinguished.
CRIMINAL LAW – Appeal – Conviction – Trial – Evidence applicant was ‘out committing crimes’ – Whether prejudicial effect could not be mitigated by judicial directions – Judge gave firm directions in relation to evidence – Applicant’s counsel used evidence in closing address to establish witness’s hostility towards the applicant.
CRIMINAL LAW – Appeal – Conviction – Trial – Evidence of applicant’s drug use – Whether probative value of evidence outweighed by prejudicial effect – Applicant’s drug use relevant to context of trial – R v Cummins [2004] VSCA 164; (2004) 10 VR 15, distinguished; R v Georgiev [2001] VSCA 18; (2001) 119 A Crim R 363, discussed.
CRIMINAL LAW – Appeal – Conviction – Trial – Whether verdict on second count of armed robbery unsafe and unsatisfactory – Inconsistencies in evidence of prosecution witnesses – Open to jury to convict notwithstanding inconsistencies.
CRIMINAL LAW – Appeal – Conviction – Trial – Judge’s charge – Charge invited jury to consider whether any cogent explanation for witness to commit perjury – Whether charge inverted burden of proof – Palmer v The Queen [1998] HCA 2; (1998) 193 CLR 1, referred to.
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APPEARANCES:
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Counsel
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Solicitors
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For the Applicant
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In person
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For the Respondent
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Mr R Gibson
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Mr J Cain, Solicitor for Public Prosecutions
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WHELAN JA
BEACH JA
McLEISH JA:
1 The applicant was convicted on 25 March 2015 of two counts of armed robbery. The robberies were alleged to have been committed in September 2012. The applicant’s co-accused Katherine Nanopoulos pleaded guilty and was sentenced on 25 June 2013 in respect of two charges of armed robbery. The applicant seeks leave to appeal against conviction.
2 The Crown case was that the applicant and Ms Nanopoulos met in early 2012 and commenced a relationship in approximately March of that year. They lived together at the applicant’s mother’s house in Brighton and at the time of the offending were both using illicit drugs, primarily ice, on a daily basis. It was alleged that the couple had driven to the home of their dealer, Jason Wicks, and that the applicant had assaulted a man named Timothy Cheung on those premises while Ms Nanopoulos waited in the car outside. It was alleged that the applicant stole a firearm from Cheung and that this firearm was used in both of the armed robberies.
3 The first armed robbery was alleged to have taken place on 13 September 2012 at 2:30 pm at the TAB in Mentone. The Crown alleged that the applicant pointed a loaded firearm at the attendant and demanded money. Ms Nanopoulos stood at the door carrying a knife and keeping the door open. Over $2,300 in cash was stolen. The Crown alleged that for the purposes of the offence the applicant drove a black Suzuki Swift that had been hired by his brother.
4 The second armed robbery was alleged to have occurred on 16 September 2012 at the Royal Oak Hotel, also in Mentone. On this occasion, Ms Nanopoulos was carrying the firearm obtained from Cheung. Upon discovering that the TAB section of the hotel was unattended, she entered the bottle shop with the applicant following. She demanded money and pointed the loaded gun at the attendant, who gave her $465. This robbery was alleged to have been effected using the motor vehicle belonging to Ms Nanopoulos’s mother, Mrs Lynn Nanopoulos. Witnesses gave evidence of having seen two people get into the vehicle after running from the bottle shop. A married couple followed the vehicle and saw a person remove paper covering its number plates; one piece of paper was thrown from the car into the gutter. Forensic evidence was subsequently given in relation to these pieces of paper.
5 The charges against the applicant were the subject of two trials. The first trial commenced on 10 March 2015 after three days of legal argument and a series of Basha inquiries.[1] On the third day of the trial, the judge discharged the jury of his own motion. He identified a number of concerns about the way in which the trial had developed, stemming in part from the fact that there had not been a committal hearing in relation to the charges against the applicant. The prosecutor had informed the judge on the morning of 12 March 2015 that Lynn Nanopoulos had earlier that morning told the police about an incident that occurred in which the applicant and Katherine Nanopoulos brought a bag with some clothes in it to her home and set fire to them on the lawn. The judge was also concerned about the fact that several witnesses had given evidence that a third person drove the vehicle from the scene of the Royal Oak Hotel robbery, as to which Ms Nanopoulos had not given evidence and which had not been mentioned in the prosecutor’s opening address. In addition, Ms Nanopoulos had given evidence of the applicant having had a knife with him during the second robbery, which had also not previously been mentioned. In the circumstances, although neither the Crown nor the applicant sought a discharge, the judge said that he was not confident that the applicant could get a fair trial and discharged the jury.
Evidence at trial
6 The second trial commenced on the following day. The jury heard evidence, not only from Ms Nanopoulos, but from witnesses to each armed robbery. Ms Nanopoulos gave evidence of the applicant’s participation in both robberies. She said that the applicant had obtained the firearm used in the robberies from Cheung when they had gone to Wicks’s house 7 to 10 days earlier.
7 In the case of the first armed robbery, Ms Nanopoulos said that she and the applicant had used a black Suzuki Swift which they had borrowed from the applicant’s brother. She could not remember what happened immediately after the first robbery but agreed that her mother lived approximately five minutes from the TAB. She had a memory of burning some clothes and of paying a debt to Wicks, but stated that her memory was very hazy. In cross-examination she was asked about the burning of the clothes, which she had not mentioned in her statement. In reexamination, she said that she remembered going to her grandmother’s house but was not sure if it was directly after the robbery or after they had been to the dealer’s. (Both her mother and her grandmother lived at the house in Brighton.) Ms Nanopoulos said that she and the applicant removed their clothes and that she had given them to her mother in a black backpack and the applicant told her to burn them. She could recall the clothes being set on fire. She could not recall when that had happened but thought it was not that day. She said that all the proceeds of the armed robbery were spent on drugs by the end of the day.
8 The TAB attendant from whom the money was demanded in the first robbery gave evidence that the male offender had a hoodie over his head and was wearing a dark facial covering. She described the gun as being about 30 centimetres long with two barrels. A customer described the gun as a blackish revolver about a foot long. Another customer, Geoffrey Smith, stated that the man with the gun was wearing a hoodie and balaclava and that although the man’s face was shaded he had briefly seen a small part of the offender’s cheek and had the impression that his skin was olive in colour and that he had dark hair. Smith thought that the gun was about a foot long, squarish in shape, black and silver and that it made a heavy metallic sound when the offender put it on the TAB counter.
9 Smith further observed that the male offender got into the driver’s seat of a little black Suzuki Swift and his female accomplice got into the passenger side. Both the number plates had been covered with either paper or cardboard. The jury was shown CCTV footage which depicted the male offender, including his clothing and the firearm.
10 Lynn Nanopoulos recalled that she was at home watching television three or four days before 16 September 2012 when a little car came flying down her driveway with the applicant driving and her daughter in the front passenger seat. She said that her daughter told her that something had happened and that she saw a lot of money in the console in the middle of the car. The applicant was taking his clothes off and shoving them into a backpack. She said that they asked her to burn the bag and drove off very fast. Mrs Nanopoulos could hear police sirens at that time. A short time later as she was collecting her grandchildren from school, she saw police cars and yellow tape at the Mentone TAB. Mrs Nanopoulos put the backpack around the side of the house but did not burn it. A day or two later her daughter returned in the small car and they had an argument about the bag. Her daughter retrieved the bag, set fire to it with a bottle of methylated spirits on the front lawn and left.
11 In relation to the second armed robbery, Katherine Nanopoulos said that on 16 September 2012 she and the applicant discussed committing another armed robbery in order to obtain more money for drugs. They had decided upon the venue as the Royal Oak Hotel in Mentone, which was also around the corner from her mother’s home. She said that she and the applicant went to her mother’s house to persuade her to lend them her car, which was a black Ford. She said that the applicant covered the number plates with paper and tape, with her assistance. She said that as they pulled up at the hotel at about 2:00 pm that day, she asked the applicant for the gun which had been obtained from Cheung and the applicant handed it to her. Upon discovering that the TAB part of the hotel was unattended, Ms Nanopoulos entered the bottle shop and the applicant followed. She demanded money from the attendant and pointed a loaded gun at him. The attendant described the gun as silver in colour. He gave the female offender cash from the till. The attendant recalled then seeing a male approaching before he and the female offender ran off together. He said that the female got into the rear passenger seat and the male got into the front passenger seat of a dark grey Ford with covered number plates, which quickly sped off. He did not get a look at the driver.
12 Another witness, Maxwell Easdon, saw the male and female offenders running from the bottle shop. He thought that the man got into the driver’s seat of the vehicle and the female had entered on the passenger side. The witness Andrew Worrell said that he saw the offenders run to the car with covered number plates and both get into the back seat of the vehicle. He believed that a second female was driving. He and his wife followed the car, calling 000 while doing so. After turning into a nearby street Andrew Worrell saw the stationary vehicle and someone getting back into the rear passenger side. He saw a white piece of paper being thrown into the gutter. Belinda Worrell gave the number plate details to police via 000 and described the vehicle as a dark Ford Falcon. Ripped pieces of paper with adhesive tape were located by police and taken for forensic analysis. Ms Nanopoulos recalled stopping in a nearby street to take the paper off the number plates and then taking the car back to her mother’s house. She also said that she had left a bag of clothing there which they had worn in the armed robbery. Again, the jury was shown CCTV footage of this robbery.
13 In cross-examination, Ms Nanopoulos was asked about evidence she had given at the first trial about the applicant carrying a knife during the second robbery, which she had not mentioned in her statement. In re-examination she confirmed that the applicant had held a knife during that robbery and identified the knife in a photograph of items on the floor of her mother’s car. She also identified a photograph of a Salvos bag and clothing which she said had been left down the side of her mother’s house after the robbery.
14 Lynn Nanopoulos gave evidence that on 16 September 2012, her daughter and the applicant had come to her house and asked to borrow her car. She said that they had returned with the vehicle about half an hour later. She saw the applicant coming around from bushes at the side of the house, where she thought he had gone to the toilet.
15 After the second robbery, police attended at Lynn Nanopoulos’s house in Mentone and observed a vehicle with the registration number provided by Belinda Worrell during her 000 call earlier in the afternoon. A search warrant was executed and photographs were taken of the vehicle. A tape dispenser was found in the rear of the vehicle along with a knife. A Salvos shopping bag was found at the side of the house containing clothing, a can of mineral turpentine and ripped pieces of paper. A further piece of ripped paper was located by police in the side street where the Worrells had seen the stationary vehicle. Expert evidence was given that fingerprints on the four ripped pieces of paper in the Salvos bag were those of the applicant. A fingerprint located on the piece of paper found in the street also matched that of the applicant. Some of the pieces of paper had sticky tape adhering to them. Expert evidence was given that the tape appeared similar to the tape on the dispenser found in the rear of the vehicle. The pieces of paper were of the same weight and colour. The tape attached to one piece of paper was a physical match in shape and size to the tape end on the dispenser, leading to the conclusion that it was the last piece of tape to have been removed from the dispenser.
16 The jury heard evidence as to how the applicant was alleged to have obtained the firearm used in committing the offences. Ms Nanopoulos described the firearm used in both robberies as a black high-powered handgun. She said that she first saw that gun in the possession of Cheung. The next time she saw it was about a week before the first robbery, in the possession of the applicant. She said she had been waiting in the applicant’s mother’s car outside Wicks’s house in Parkdale, while the applicant went into the house in order to buy drugs. When he returned he lifted his shirt to show her the butt of a gun tucked into his pants. The applicant told her that when he walked into the house Cheung had been kneeling on the floor with his back to him and he had kneed him in the head, rendering him unconscious, and then grabbed the gun.
17 Antonio Lapa, the former husband of Katherine Nanopoulos, gave evidence that she had told him of her relationship with the applicant in the summer of 2012. In September 2012 she had told him that the applicant had obtained a .44 Magnum from a person called Cheung. Lapa said that he had been told that the applicant had snuck up on Cheung when his back was turned, given him a kick to the head, taken the gun and walked out.
18 Cheung gave evidence that in 2012 he owned a Smith & Wesson .357 Magnum Colt Python. It was a single barrel revolver with an under barrel weight compensator. The weapon was black with a silver hammer and was about 10 inches long. He was shown a photograph of a firearm, which he stated was similar to the one he had, the main difference being that his firearm had a silver striking hammer and a longer weight compensator under the barrel. Cheung gave evidence that on 31 August 2012 he went to Wicks’s house in Parkdale and that he had his gun with him, as well as some bullets, in a laptop bag. He had been talking to two women at the house while Wicks was asleep. His last memory was of checking on Wicks and trying to wake him up. He woke in hospital and never saw his gun, the bullets or the laptop bag again. When shown a still photograph of the Mentone TAB robbery, he said that the photograph was a bit blurry and that the firearm did not look like his and didn’t have the extra length under the barrel that his did.
19 Wicks gave evidence that he had sold drugs to the applicant and Ms Nanopoulos. He knew Cheung and had seen him in possession of a large .357 Magnum handgun which was of bluish steel and about 30 centimetres in length. He gave evidence of having been in bed asleep when Cheung came and woke him up. Cheung knelt to talk to him on the mattress on the floor and he could see the gun protruding out from underneath his arm in a holster. As Cheung was talking to him the applicant walked in the door, saw Cheung and kicked him in the head, then grabbed the gun and walked out.
20 Ashley McCallum said that on 31 August 2012 she was at Wicks’s house at Parkdale. Cheung had been present and showed her his gun which he had in a holster under his jacket. When the applicant arrived at the house later that morning, Cheung was in Wicks’s bedroom crouched down with his back to the applicant. McCallum saw the applicant ‘soccer-kick’ Cheung to the head from behind. The applicant said ‘see you later’ to McCallum and then left. When she saw Cheung lying on the floor after the assault, the gun was no longer there. A 000 call of 31 August 2012 was played to McCallum and she agreed that an ambulance had been called for Cheung on that day.
Proposed grounds of appeal
21 The application for leave to appeal against conviction contains six grounds. There has been a series of written cases filed by the applicant and responses to those written cases filed by the respondent. The first two versions of the documents filed by the applicant were signed by trial counsel. The most recent version, filed on 10 March 2016, was prepared by the applicant himself. It contains nine proposed grounds of appeal. Those grounds overlap to an extent with the original six grounds, but do not repeat all of those grounds and in many respects are broader than the former grounds. The applicant made it clear at the hearing of the application that he was appearing in person by his own choice after careful consideration and that he relied only on the nine grounds which were set out in his most recent document. The Crown filed a written response to each of those grounds. Although leave to raise the additional grounds had not been granted, the Court heard full argument on each of the grounds and reserved its decision as to whether to grant such leave, and whether to grant leave to appeal, as well as argument on the proposed appeal itself.
22 It will be convenient to deal with the nine proposed grounds of appeal sequentially. Those grounds are as follows:
Ground 1 — fingerprint evidence
23 The first proposed ground contends that evidence of the applicant’s fingerprints on the pieces of paper should have been excluded as having been improperly obtained. The impropriety was said to lie in the fact that the pieces of paper had been found in the Salvos bag which, along with its contents, was given a single forensic item number. Although counsel for the applicant had conceded at trial that continuity was not in issue in respect of the fingerprint evidence, it was submitted that the judge should have intervened and exercised his discretion to exclude the evidence.
24 This ground is wholly without merit. There is no suggestion that the pieces of paper or the fingerprint evidence were obtained unlawfully or improperly. At most, the fact that the pieces of paper were not given separate forensic item numbers may have borne on the question of continuity, but this was expressly disclaimed as an issue in the trial. There was no basis upon which the judge could, or should, have intervened to exclude this evidence.
Ground 2 — involvement of the judge in the trial
25 Under the second proposed ground of appeal, the applicant contends that he was denied a fair trial as a result of interruptions in the cross-examination of witnesses. More generally, it is contended that the judge became too involved in the conduct of the trial, descended into the arena and ‘donned the mantle’ of the prosecution.
26 In his written case, the applicant gave a large number of examples of the conduct about which complaint is made. The examples are not confined to interruptions during cross-examination. Most of the specific complaints relate to exchanges which took place in the second trial. However, the applicant also places some reliance on incidents which occurred during the first trial.
27 It may be said at once that there is no substance in any argument that the interventions of the judge in the first trial resulted in a miscarriage of justice in the second. The gist of the argument was that the judge had assisted the Crown by drawing attention to various matters which led it to improve its case in the second trial. If so, such improvements were a potential subject for cross-examination. Otherwise, the manner in which the first trial was conducted did not of itself bear on the outcome of the second trial.
28 There are many ways in which excessive involvement by a trial judge in the conduct of a jury trial may give rise to a miscarriage of justice. This was explained in R v Mawson:[2]
It is clearly established by a long line of authority that excessive interference or involvement by a trial judge in the conduct of a trial may constitute such a departure from the due and orderly processes of fair trial as to amount to a miscarriage of justice. In those circumstances, such a miscarriage may result for any of a number of reasons. It may, for instance, involve an impairment of a party’s opportunity of putting his defence fully and fairly to the jury. An illustration of that kind of miscarriage is shown by the case of R v Clewer (1953) 37 Cr App R 37. The miscarriage may result from preventing witnesses at the trial from telling the full account of the facts as they understand them to be. An illustration of that kind of miscarriage is provided by the case of R v Bateman (1946) 31 Cr App R 106. Such a miscarriage may result from an apparent identification by the trial judge with one or other party to the litigation. A miscarriage of that kind is illustrated by the case of R v Cain (1936) [25] Cr App R 204, or again the miscarriage may result from the jury being led to believe from the judge’s intervention that he is himself convinced of the guilt of the accused person. The illustrations given are sufficient to indicate how this kind of departure from the due and orderly processes of trial may result in a miscarriage. It also becomes apparent that a departure from due and regular process in any such respect as those mentioned, may infringe another fundamental principle of criminal law, namely, that criminal justice must not only be done but must also appear to be done. That was the principle applied in a case of this kind by this Court in R v Delaney [1955] VicLawRp 8; [1955] VLR 47;[1955] ALR 45.
29 In Mawson, there was a miscarriage of justice because, among other things, the judge had engaged directly in cross-examination of the accused and had asked him more questions than had been asked of him by both counsel combined. In addition, the judge had expressed a strong view as to the validity of the defences of the accused in the course of his charge to the jury, without giving the jury adequate warning that they were not bound by his comments on the facts.[3]
30 Plainly, the complaint of excessive involvement by the judge will differ according to the facts in each particular case. However, the principles stated in Mawson have consistently been applied.[4]
31 The task of the Court, when it is contended that a miscarriage of justice occurred in any of the ways described in Mawson, was explained by Purchas LJ in R v Matthews:[5]
To summarise these authorities the following propositions appear to emerge: (1) Whilst a large number of interruptions must put this Court on notice of the possibility of a denial of justice, mere statistics are not of themselves decisive; (2) The critical aspect of the investigation is the quality of the interventions as they relate to the attitude of the judge as might be observed by the jury and the effect that the interventions have either on the orderly, proper and lucid deployment of the case for the defendant by his advocate or upon the efficacy of the attack to be made on the defendant’s behalf upon vital prosecution witnesses by cross-examination administered by his advocate on his behalf; (3) In analysing the overall effect of the interventions, quantity and quality cannot be considered in isolation, but will react the one upon the other; but the question which is proposed ultimately for this Court is ‘might the case for the defendant as presented to the jury of the trial as a whole, including the adducing and testing of evidence, the submissions of counsel and the summing up of the judge, be such that the jury’s verdict might be unsafe?’ In the presence of conditions in which this Court has been alerted in the manner to which we have referred, it appears to us that if there is a possibility of a denial of justice then this Court ought to intervene.
32 In a trial by a judge alone, different considerations may apply. For example, it may be that the involvement of the judge in questioning witnesses unduly compromises the advantage of the judge in objectively evaluating the evidence in a detached manner.[6] While authorities concerning the conduct of judges sitting alone may usefully inform the issues that arise in the case of a judge sitting with a jury, it is preferable to adopt the approach identified in the passages set out above in the present matter. The likely or possible effect of the conduct complained about on the jury is therefore a key focus of consideration.
33 As indicated, the applicant relies on a very large number of instances in which it is said that the judge unduly involved himself in the conduct of the trial, in particular in the questioning of witnesses. A significant number of those instances involved interventions by the judge seeking clarification as to the meaning of a question or answer. In that context, it must be borne in mind that, from an early stage of proceedings, the judge expressed dissatisfaction with the manner in which both the prosecutor and counsel for the applicant were conducting the case. The judge, in the absence of the jury, cast doubt on the ability of either counsel to frame clear questions in a proper manner. Many of his interventions in the running of the trial appear to be traceable to this point of view. In such circumstances, there is nothing objectionable in a trial judge intervening in order to seek clarification as to the meaning of a question or, perhaps less readily, an answer given by a witness.
34 It is convenient to turn to examples of the conduct about which complaint is made which cannot be described as merely calling for clarification in the manner described.
35 In some cases, the intervention of the trial judge was directed to ascertaining the purpose of the evidence being elicited, or to ask questions to fill in apparent gaps in the narrative. For example, after Ms Nanopoulos had given evidence that she and the applicant left the clothing they wore at the armed robbery at her mother’s house, the judge asked whether the clothes they wore at the robbery were worn over other clothes that they were wearing. A question of that kind helped the jury to make sense of the evidence which had been given. Similarly, after Ms Nanopoulos gave her evidence-in-chief about the contents of a letter which the applicant sent her while she was in prison, the judge asked her whether she received that particular letter and approximately when that had happened. These were interventions of an uncontroversial kind directed at ensuring that the jury understood the evidence which had been given.
36 The applicant also complained of interventions of the trial judge during the cross-examination of Ms Nanopoulos. In part, the interventions involved the judge refusing to permit questions to be asked which he considered unfair. For example, the applicant’s counsel sought to ask Ms Nanopoulos ‘Where did you get the silver gun from that you used to do the Royal Oak bottle shop armed robbery, where did you get that gun?’ The judge properly intervened to point out that the question was unfair. Ms Nanopoulos had given evidence that the gun used in the Royal Oak armed robbery was black and that it was Cheung’s gun. By referring to a silver gun, the question was plainly confusing. Similarly, the judge correctly prevented counsel for the applicant from asking of Ms Nanopoulos ‘Do you say you are an honest person?’ The answer to such a question could not have assisted the jury.
37 There can be no counsel of perfection in respect of the extent to which a trial judge may intervene in the questioning of witnesses. While there are dangers in doing so, at the same time there are situations where it cannot be avoided. The following observations of the English Court of Appeal in R v Sharp are apposite:[7]
When a judge intervenes in the course of examination, or particularly crossexamination, a number of problems can arise depending on the frequency and manner of the interruptions. First the judge may be in danger of seeming to enter the arena in the sense that he may appear partial to one side or the other. This may arise from the hostile tone of questioning or implied criticism of counsel who is conducting the examination or crossexamination, or if the judge is impressed by a witness, perhaps suggesting excuses or explanations for a witness’s conduct which is open to attack by counsel for the opposite party. Quite apart from this, frequent interruptions may so disrupt the thread of cross-examination that counsel’s task may be seriously hampered. In a case of any complexity crossexamination of the principal witnesses is something that calls for careful preparation and planning. It is the most important part of the advocate’s art, because a competent cross-examination is designed to weaken or destroy the opponent’s case and to gain support for the client’s case. But it is easier said than done. If the judge intervenes at a crucial point where the witness is being constrained to make an important admission, it can have an adverse effect on the trial.In general, when a cross-examination is being conducted by competent counsel a judge should not intervene, save to clarify matters he does not understand or thinks the jury may not understand. If he wishes to ask questions about matters that have not been touched upon it is generally better to wait until the end of the examination or cross-examination. This is no doubt a counsel of perfection and a judge should not be criticised for occasional transgressions; still less can it be said in such cases that there is an irregularity in the conduct of the trial or that the verdict is unsafe or unsatisfactory. But there may come a time, depending on the nature and frequency of the interruptions that a reviewing court is of the opinion that defence counsel was so hampered in the way he properly wished to conduct the cross-examination that the judge’s conduct amounts to a material irregularity.
38 The New South Wales Court of Criminal Appeal in Lars helpfully outlined the considerations which should guide a trial judge in intervening in the examination of witnesses, as follows:[8]
It should be said at once that a trial judge is entitled to intervene in the questioning of a witness (whether in examination in chief, in crossexamination or in re-examination) notwithstanding the absence of objection by counsel for any other party if there is good reason for such intervention. The power to do so should be exercised with circumspection because of the obvious tendency of such interventions to do just what is complained of here, namely to disrupt the flow of the examination or crossexamination and to impede the placing, by counsel, of his or her client’s case before the court. The power should rarely be exercised merely because it appears to the judge that the question calls for an answer which is irrelevant or is otherwise inadmissible. In such circumstances, the better course will usually be to remain silent in the absence of objection, because it may well be the case that the other parties are content to have before the court the material which the question will elicit, either because they will themselves make use of it for a purpose which may not readily be apparent to the judge or because to adduce the evidence in that manner and at that time may obviate the need to call another witness to prove the matter strictly or may otherwise facilitate the smooth presentation of the evidence. The judge should in general assume that counsel for the other parties are familiar with their briefs, familiar with the issues, and competent themselves to judge whether the interests of the party they represent require that objection be taken.There is a qualification to what we have just said, namely that the judge has a responsibility (particularly acute in these days of heavy caseloads and inadequate judicial resources) to ensure that every trial is contained within reasonable limits and is not unduly prolonged by irrelevant crossexamination. It follows that the judge may properly interrupt counsel to inquire as to the relevance of the particular question or the particular line of cross-examination which is sought to be pursued. In general, having raised the question with counsel the judge should be content to accept counsel’s assurance that the matter is relevant; but if the judge has a real concern about it, it may be appropriate for him or her to press counsel for a full explanation. In general, if that is to be done, it should be done in the absence of the witness and, in the case of a jury trial, in the absence of the jury. That circumstance in itself dictates that the judge should be slow to make such a requirement, because the time entailed in an investigation of the matter may turn out to be more than the time which would have been used had counsel been allowed to pursue the matter without interruption.
The power of the judge to reject a question in the absence of objection should also be exercised with circumspection. It would be appropriate to do so where the question is offensive or otherwise obviously calculated to do no more than unfairly prejudice the witness (or the party who has called that witness) in the eyes of the jury, or where the form of the question is such that it involves unfairness to the witness (which other counsel may not have detected) or is likely, whether because of latent or patent ambiguity or for any other reason, to elicit an answer which would be misleading. Another obvious instance would be where the asking of the question represents a flouting of some earlier ruling on admissibility of evidence of a particular subject matter. We do not purport to suggest that that is an exhaustive statement of the circumstances in which the judge would be justified in rejecting a question without objection. There may well be others. What is clear is that the circumstances in which a judge should reject a question without objection are obviously limited and the decision whether or not to intervene must always be taken by the trial judge with due regard to the undesirability of an interruption to the flow of cross-examination and above all and especially in a jury trial with regard to the undesirability of interventions which may give the appearance that the judge has descended into the arena and aligned himself with one or other of the combatants.
It is also worth remarking that a judge who (except in the case of an offensive or ambiguous and potentially misleading question) rejects a question in the absence of any objection from counsel runs the risk of falling into error and of excluding evidence which ought properly to have been admitted. The task of any judge conducting any trial is not an easy one however much it may superficially appear to do so. In a very real sense not only is a judge entitled to expect proper assistance from counsel in carrying out that task, but he or she is also to a degree dependent on such assistance and (not only in the interests of justice but in his or her own interest) a judge should not too readily discount the value of that assistance nor so act as to be deprived of it.
39 Bearing in mind this exhortation to circumspection, it is necessary to turn to other interventions upon which the applicant relies. At one point in the crossexamination, the applicant’s counsel was asking questions about the presence of the applicant’s brother on the night before the first armed robbery. He had previously completed a line of cross-examination which was directed to the question whether Ms Nanopoulos had committed the armed robberies with a drug-using acquaintance other than the applicant. The course of questioning regarding the applicant’s brother was as follows:
Yes. In relation to the TAB armed robbery, that was on 13 September - - -?---Yes.2012. Do you recall that?---I remember that.
You stayed at Michael Cook’s house at 14 New Street, Brighton on the night before that, that is, the night of 12 September 2012; is that correct?---Yes, sir.
Alex Cook was also staying at that address, 14 New Street, Brighton, on the night of 12 September 2012; is that correct?---I believe it to be. Yes.
And Alex Cook was known to you to be a drug addict at the time; isn’t that right?---A heroin addict. Yes.
You knew that, didn’t you?---Yes. Yes. Michael had told me that.
Yes. Alex Cook had a hire car, a black Suzuki Swift; isn’t that right?---That’s correct. Yes.
And that hire car was parked right outside 14 New Street, Brighton on the night of 12 September 2012; is that right?---I believe it to be. I don’t know if Alex took it anywhere and left the house and came back. I’m not sure.
HIS HONOUR: Did you commit the TAB armed robbery with Alex Cook?---No, sir. I did it with Michael - - -
[DEFENCE COUNSEL]: But you - - -
WITNESS: Cook.
HIS HONOUR: No. Just - - -
[DEFENCE COUNSEL]: But you parked the - - -
HIS HONOUR: Thank you.
[DEFENCE COUNSEL]: You saw the car parked there in the morning of 13 September 2012; is that right?---Yes, sir.
And you and one of your druggie mates and not Michael Cook took that car to the Mentone TAB armed robbery; isn’t that right?---No. It was me and Michael. We borrowed the car off Alex and we went and did the armed robberies.
40 It is not clear why the judge interrupted the cross-examination to ask the direct question about Alex Cook. It would have been better if this had been left to counsel to develop in his own way. If the judge thought that a defence was not squarely put to the witness, that matter could have been raised in the absence of the jury. However, it cannot be said that this intervention, of itself, gave rise to a miscarriage of justice.
41 Earlier in cross-examination of Ms Nanopoulos, the applicant’s counsel asked Ms Nanopoulos whether she knew drug users of various nationalities. After she answered in the affirmative, he asked whether she knew ‘Italian drug users’, to which she responded ‘Possibly’. At this point, the trial judge intervened:
HIS HONOUR: You mean people from Italy, do you?[DEFENCE COUNSEL]: From Italy, yes.
HIS HONOUR: Who come to Australia and use drugs?
[DEFENCE COUNSEL]: Correct, yes.
HIS HONOUR: Or people born in Australia who are of Italian heritage?
[DEFENCE COUNSEL]: People who are of Italian nationality or heritage.
HIS HONOUR: So Italian nationals?
[DEFENCE COUNSEL]: Well - - -
HIS HONOUR: Is that what we’re asking her about?
[DEFENCE COUNSEL]: Of Italian progeny. Their parents might have been Italian and they were Italian.
HIS HONOUR: Right.
[DEFENCE COUNSEL]: Yes.
HIS HONOUR: I see, yes.
[DEFENCE COUNSEL]: And is your answer, ‘Quite possibly’?---It’s — well, I don’t think so, but it’s possible. Anything is possible.
What about Greek?---Yes.
HIS HONOUR: Greek heritage, are we talking?
[DEFENCE COUNSEL]: Of Greek heritage, yes?---Yes.
HIS HONOUR: Yes. Born in Australia but - - -?---Yes.
Greek heritage?---Yeah.
[DEFENCE COUNSEL]: And what about Middle Eastern heritage?---It’s possible.
HIS HONOUR: What do you mean by that, Middle Eastern heritage?
[DEFENCE COUNSEL]: Well, from that region.
HIS HONOUR: Israel, Lebanon - - -
[DEFENCE COUNSEL]: Yes.
HIS HONOUR: Syria, Iraq, Iran - - -
[DEFENCE COUNSEL]: That region, yes.
HIS HONOUR: Jordan - - -
[DEFENCE COUNSEL]: Yes.
HIS HONOUR: Yemen.
[DEFENCE COUNSEL]: Yes. Well, that region.
HIS HONOUR: I see.
[DEFENCE COUNSEL]: That’s your understanding, isn’t it, those nationalities that His Honour has just referred to?---Yes.
42 Plainly, counsel for the applicant was seeking, perhaps not very directly, to adduce evidence to support the evidence given by Smith that the male offender in the first armed robbery had olive skin; a description that did not fit the applicant. In view of the evident forensic purpose that those questions served, the trial judge’s interventions were unnecessary and risked undermining the course of crossexamination. In the event, however, that did not happen. In effect, the judge was merely concerned about the meaning of the questions being asked. Again, it cannot be said that the interventions were such as to occasion a miscarriage of justice.
43 Elsewhere, the judge appears to have intervened quite obviously in order to assist defence counsel. It is plain from the transcript that the judge considered Ms Nanopoulos a very difficult witness. He expressed real frustration with the manner in which she answered questions on several occasions. In the following passage, it is plain that the judge intervened in order to seek to ensure that she answered counsel’s questions:
[DEFENCE COUNSEL]: After you were released on the second occasion you went to live with your mother, your children and your grandmother, correct?---Yes.Did you discuss the case with your mother at that time after your most recent release?---No. I haven’t been living with them.
HIS HONOUR: And you didn’t discuss it with them — with her?---I haven’t, no, sir.
He didn’t ask if you were living with her?---OK. No.
He asked you whether you discussed it?---No.
Whether you discussed it?---No.
[DEFENCE COUNSEL]: When you made your statement to the police on 30 April 2013 you told them everything you could about these two armed robberies, didn’t you?---Told everyone — who?
Just listen to the question.
HIS HONOUR: Did you tell the police everything you knew about the two armed robberies in your first witness statement?---Everything at the time I remembered, yes.
Yes. Thank you.
44 In another example, the judge intervened to make it clear that it was being put to the witness that she was lying about the police having told her that they had seen her with a knife in the CCTV footage, rather than when she said that she had a knife during the relevant armed robberies. These questions assisted, rather than impeded, the fair running of the trial.
45 The applicant complains that elsewhere in the trial the trial judge ‘donn[ed] the mantle of the prosecution’[9] by taking over the examination-in-chief. It is true that there are substantial passages in which the judge asked questions of some Crown witnesses. The particular danger which arises when a trial judge leads evidence from a Crown witness is that the jury is led to believe that the judge is convinced of the guilt of the accused person, and is aligned with the prosecution in seeking to establish evidence of that guilt.[10]
46 In the case of Mr and Mrs Worrell, the judge asked the prosecutor why he was not asking Mr Worrell questions by reference to an available map. Shortly thereafter, the judge asked Mr Worrell a series of questions extending over more than a page of transcript about where the Worrells’ car travelled as it was following the car used in the second armed robbery. He asked a similarly lengthy series of questions of Mrs Worrell about the location of their car in relation to the bottle shop and where the car was located when she made the telephone call to 000. While unusually lengthy, it appears that these questions were asked because the judge apprehended that the prosecutor was not making the evidence clear to the jury. There is a risk that, by asking questions which it would ordinarily be expected that the prosecutor would ask, the judge might appear to the jury to be working in tandem with the prosecutor. However, it is also important for the jury to have a clear understanding of the evidence that is given. Part of the role of the judge is to ensure that this happens. In the circumstances, the questions which were asked were not about matters of high controversy in the proceeding and there is no basis for thinking that the jury would have formed any impression of partiality on the part of the judge as a result of him having asked them.
47 The applicant also relied on isolated instances in which the judge asked questions which, in his submission, bolstered the Crown case. Many of these examples involved no more than clarification of ambiguous evidence or matters of minor detail. However, some interventions were arguably more significant.
48 Wicks gave evidence of having seen the applicant kick Cheung in the head and having taken his gun and walked out. It was put to Wicks in cross-examination that the applicant had not kicked Cheung in the head at all. Wicks confirmed that he had. The prosecutor indicated that he had no re-examination. The judge then asked ‘What effect did the kick have?’ The witness answered ‘It knocked him out.’ Subsequently, the witness McCallum was being asked in chief about the same incident. She described having seen the applicant ‘soccer-kick’ Cheung to the head. There was then the following exchange:
[PROSECUTOR]: All right. Can you tell us what happened — what you did after you saw that?---I walked out of the room.All right.
HIS HONOUR: What effect did it have on Cheung, the kick? Did you see that?---He flew. He, like - - -
Flew?---Flew across the room, like — and there’s blood coming everywhere. He was unconscious.
49 It was unfortunate that the judge twice elicited evidence of the effect of the violence perpetrated by the applicant on Cheung. The evidence was relevant because evidence was also led of the calling of an ambulance to attend to Cheung, the date of which call helped to fix the date upon which the Crown contended that the firearm had been stolen. However, the prosecutor had chosen not to lead evidence of the extent of the injury to Cheung and it was not essential that the jury be informed of that matter. On the other hand, it can hardly be said that, by asking these questions, the judge ‘donned the mantle of the prosecution’. The effect of the kick was part of the narrative, in which the applicant was alleged to have stolen Cheung’s firearm. By asking the question, the judge ensured that the jury was given this element of the narrative. While it would have been preferable for that decision to be left to the prosecutor, in our opinion these questions do not involve the judge impermissibly descending into the arena.
50 Another example of intervention by the judge, which appears to be the result of frustration of the manner in which the prosecutor was asking questions, occurred during the evidence of Cheung. After the prosecutor had asked Cheung a number of questions directed to a description of his firearm, the following exchange occurred:
[PROSECUTOR]: All right. And what was the length of the gun?---It would be about ten inches.All right. Thank you. In 2012, did you - - -
HIS HONOUR: Are you going to ask him about the picture or not?
[PROSECUTOR]: Yes, I will come to that.
HIS HONOUR: Well, why don’t you do it now? You’ve asked him for a description.
[PROSECUTOR]: All right. Recently - - -
HIS HONOUR: Just show him the photo. Have you got a photo? The photo?
[PROSECUTOR]: Yes, I do.
HIS HONOUR: Yes. Have a look at that photograph.
[PROSECUTOR]: What do you say about that photograph?---It’s similar to the one I have — or had.
All right.
HIS HONOUR: What differences are there, do you think, between the content of that - - -?---The differences between the two are mine had a silver striking hammer.
Yes?---As I said earlier. And also had extra weight compensator underneath the barrel.
All right. ‘Extra’ meaning what? Meaning it was longer?---Just — underneath the barrel here, there was an extra weight attachment.
I see?---Extension, which is added on.
So are they the only two differences?---Yes.
Thank you.
51 This evidence was directed to having the jury understand Cheung’s description of his firearm. Evidently, it was useful for the jury to understand that description by reference to the photograph. Again, this involvement by the judge did not indicate that he was taking on the role of the prosecutor.
52 The great majority of the interventions by the trial judge and the questioning of witnesses, upon which the applicant relies, show no more than a concern by the judge that questions be asked, and evidence elicited, in a way best calculated to ensure that the jury understood the evidence of the witnesses. There were instances in which the questioning of the judge extended beyond that which might be considered normal. However, these were isolated occasions and appear to have occurred because the judge considered that counsel were not eliciting the evidence sufficiently clearly. In the circumstances, there is no foundation for the argument that they reveal any departure from the due and orderly processes of a fair trial of the kind described in R v Mawson.
53 The complaints made of the judge in the present matter, considered both individually and in the aggregate, do not reveal any departure from the proper conduct of the trial such as to raise the possibility that there was any miscarriage of justice. It follows that this proposed ground of appeal should be dismissed.
Ground 3 — disclosure of evidence concerning Cheung’s statement
54 The third proposed ground of appeal relates to events that trace back to the first trial. Before the jury was empanelled in the first trial, Cheung gave evidence on a voir dire that he had been shown a photograph by Detective Senior Constable Barber in late 2012 of an armed robbery, taken from CCTV footage. He had not previously mentioned this event. Neither the prosecutor nor the defence had a copy of the photograph. In a further statement that was then provided, Cheung described locating a photograph from the internet of a gun resembling the one taken from him, and also described being shown a still photograph from CCTV footage of an armed robbery. The prosecutor produced a still image from that footage to the court.
55 After Cheung gave evidence in the second trial about police having shown him a still photograph from the CCTV footage, the jury asked to see the photograph. The prosecutor indicated in the absence of the jury that investigating police had not shown Cheung such a photograph. When Detective Senior Constable Barber was called, a still photograph was produced and he gave evidence that, contrary to what Cheung had said in the voir dire, he had not shown such a photograph to Cheung. However, he had given it to a colleague who was investigating Cheung for possession of the firearm.
56 The applicant submitted that the late disclosure of the circumstances in which Cheung had been shown the photograph was unfair and gave the defence inadequate time to prepare its case.
57 It is impossible to see what forensic disadvantage was caused by these events. Cheung had stated in his voir dire that a police officer had shown him the photograph, albeit that he was mistaken as to which officer it was. Moreover, there was no reason why defence counsel would have wished to undermine Cheung’s evidence, given that he had said that the gun appearing in the CCTV footage did not look like his. While the full circumstances in which Cheung was shown the photograph would preferably have been disclosed before trial, no miscarriage of justice can have arisen from the failure to do so in the present case.
Ground 4 — evidence of applicant ‘committing crimes’
58 The fourth proposed ground relates to two occasions at the trial when witnesses gave the same inadmissible and prejudicial evidence about the applicant. On the first occasion, Katherine Nanopoulos was being cross-examined with a view to establishing that she had the opportunity to commit the armed robberies with someone other than the applicant. The following exchange occurred:
And there were times during those few months that you would have a verbal fight with Michael Cook and break up for a day or two, and then resume the relationship. That’s correct, isn’t it?---We had arguments, yep.And it’s correct that you would break up for a day or two and then resume the relationship, isn’t that right?---Absolutely.
And that happened plenty of times, didn’t it?---No. I would say a couple. Two or three times, four at the most, and that’s over a period of about six months.
Yes. There were also times during the relationship in 2012 with Michael Cook when he went missing and you didn’t know where he was. Isn’t that right?---I wouldn’t say missing. I would say he would go for a few hours — I don’t know what crime he was committing and then I would find out exactly where he was. And I knew he was up to no good, or who he was seeing, what affairs he was having.
HIS HONOUR: Well, really, that’s most unhelpful.
[DEFENCE COUNSEL]: Yes.
WITNESS: Well, he asked me the question, sir.
HIS HONOUR: No.
[DEFENCE COUNSEL]: Your Honour - - -
HIS HONOUR: He didn’t ask you what Mr Cook was doing.
[DEFENCE COUNSEL]: Yes.
HIS HONOUR: There’s absolutely no suggestion that Mr Cook was committing any crimes of any nature whatsoever when he wasn’t in the company of this witness. That’s mere speculation, completely unresponsive, unhelpful answering by the witness.
59 Counsel for the applicant sought a discharge of the jury. In the exchange that followed, the judge was very critical of counsel for having asked overly wide questions of a witness who had been repeatedly unresponsive. He declined to discharge the jury but instead gave them the following direction:
HIS HONOUR: Ladies and gentlemen, the witness was asked some questions before about where, on occasions during 2012 when she and Mr Cook were apart — you know, they had — there were occasions, I think — what [defence counsel] put was he went missing, and she said that she didn’t know what crime he was committing or that he was up to no good. That evidence is completely irrelevant in this case for a start.These offences are alleged to have occurred in the context of drug use by both Mr Cook and Ms Nanopoulos. Her speculations as to what her partner was doing or may not have been doing when they were apart are completely irrelevant. They have absolutely nothing to do with this case. There is no evidence that Mr Cook committed any offence of any nature whatsoever when they were apart and no evidentiary material to that effect either, so, you know, some big secret is not being kept from you.
This was a completely non-responsive answer by this witness, who, as you may have already gathered, has difficulty answering a question in simple terms, and that’s exactly what happened in that instance. She offered some material that has no evidentiary foundation whatsoever, and it’s completely irrelevant to any issue that you have to decide in this case. All right? Don’t attach any significance to it whatsoever.
What you do is decide this case on the basis of the evidence and not on the basis of speculation or material that has no evidentiary foundation whatsoever, and that’s a very good example of that. Forget it. It has got nothing to do with this case whatsoever. All right? Thank you.
60 Two days later, Antonio Lapa, the former husband of Ms Nanopoulos, gave evidence. Shortly after cross-examination began, a similar incident occurred:
[DEFENCE COUNSEL]: There were times in 2012 when Katherine would tell you that she had a verbal fight with Mr Cook and leave him for a day or two; is that right?---No. No fights. That he would just go missing, and she would say to me, ‘He’s probably out committing crime’.HIS HONOUR: Look, really, for God’s sake. That was not an answer to the question, all right. Ladies and gentlemen, really, we’ve been through this before, a non-responsive answer. As you have observed during this trial, I’ve been endeavouring to ensure that witnesses answer questions. They don’t actually seem to listen when they’re told to answer the question. Extra material is offered. I don’t know why. There is absolutely no evidentiary foundation whatsoever for the proposition that Mr Cook was out committing other crimes of any nature whatsoever, as I’ve already explained to you. Katherine Nanopoulos said this, so she has, obviously, repeated it to Mr Lapa as well, but there’s no truth in it. There’s no substance in it. It has no evidentiary foundation in this case whatsoever. All right. So just put that completely out of your minds.
61 No further application was made to discharge the jury.
62 The applicant submits that the offending evidence suggested that he was a habitual criminal who offended in order to finance his drug habit, and that its prejudicial effect could not be displaced by any judicial warning.
63 The jury of course already knew that the applicant regularly used drugs (this is the subject of proposed ground 5). The evidence of Ms Nanopoulos, reinforced by the hearsay evidence of Lapa, may have led the jury to speculate as to how he obtained the money to sustain that habit. On the other hand, the evidence was itself speculative and general in its nature. Ms Nanopoulos also speculated that the applicant may have been having affairs.
64 The non-responsive answers plainly called for firm judicial direction. On each occasion, this is what was done. In our view there is no reason to think that the jury would have disregarded those directions and used the evidence to indulge in their own speculation as to whether the applicant habitually committed crimes to fund his drug use.
65 There is another basis for rejecting this proposed ground. In his closing address, defence counsel read the relevant passage from the evidence of Ms Nanopoulos to the jury in an attempt to establish her hostility towards the applicant. It is apparent that he considered that the intervention had not been as unhelpful to his client as is now suggested. In the circumstances, this proposed ground is not made out.
Ground 5 — evidence of applicant’s drug use
66 The fifth proposed ground of appeal relies on the fact that the jury was aware that the applicant was a drug addict. The applicant submitted that the evidence was prejudicial and its effect outweighed the probative value of establishing a motive for the offending.
67 The applicant sought to rely on R v Cummins.[11] In that case, it was held that evidence of the accused’s craving for drugs had been only marginally relevant to an armed robbery charge. The evidence was relevant only to the issue of identity, rather than motive, because any number of drug users would have had a motive to commit armed robbery for the same reason.[12] The evidence in that case established that the accused had displayed a craving for drugs only after the offending. It was accepted by counsel, as Ormiston JA noted, that, if there had been such evidence before the offending, there may have been a basis for very limited evidence of motive, assuming it could truly assist in establishing identity.[13]
68 In Cummins there was also evidence of drug use, as distinct from craving, both before and after the robbery.[14] The Crown case appears to have rested on that evidence in support of motive alone. The Court held that this evidence too was of only marginal relevance and should not have been admitted.[15]
69 Here, in contrast, the evidence of the applicant’s drug use was relevant to the whole context of the trial. The prosecution case alleged a joint criminal enterprise between two people with drug addictions who had formed a relationship after meeting at their dealer’s house. They needed money to sustain their drug use and discussed and planned the robberies in that context. Moreover, defence counsel cross-examined on the basis that Katherine Nanopoulos had many acquaintances who were also drug users, with whom she might have committed the robberies.
70 The Crown likened the present case to R v Georgiev.[16] Evidence of the accused’s drug dealing in that case was held to be admissible because it was related to his motive for murdering the deceased, a drug dealer who had previously attacked and robbed another dealer who was an associate of the accused. As such, the nature and extent of the accused’s drug dealing before and at the time of the murder, and the fact that he was in a business of drug dealing with his associate, were relevant and integral to the Crown case.[17]
71 The accused’s drug dealing in R v Georgiev was perhaps more central to that case than evidence of the applicant’s drug use is here. However, both cases show that there is no general rule as to the relevance of involvement with drugs as to motive or to a case more generally. The probative value will differ in each case. Here, for the reasons given, the evidence of the applicant’s drug use was by no means of marginal relevance. It was central to the context of the offending. Given the extent to which Ms Nanopoulos gave evidence of her own involvement with drugs, it is impossible to see how the trial could have been conducted without adducing evidence of the applicant’s own drug use. Despite its prejudicial nature, that evidence was probative and admissible. The judge gave clear directions to the jury as to the manner in which the evidence could, and could not, be used. There was no miscarriage of justice. Proposed ground 5 fails.
Ground 6 — unsafe and unsatisfactory verdict on second armed robbery
72 The applicant submitted that the conviction on the second count of armed robbery was unsafe and unsatisfactory. He pointed to inconsistencies between the evidence of Katherine Nanopoulos and other witnesses. In particular, there was evidence that a third person had taken part in the robbery, which Ms Nanopoulos could not recall as a result of being in a ‘drug haze’. That evidence was said to have fundamentally undermined her credibility. It was submitted that the presence or otherwise of a third offender was a critical matter in the trial. The applicant renewed his attack on the fingerprint evidence and also drew attention to the fact that no other fingerprint matching his own had been found in the vehicle, around the number plates or on the tape dispenser or the tape itself.
73 In order to sustain this ground, the applicant must demonstrate that it was not reasonably open to the jury to be satisfied beyond reasonable doubt of his guilt on charge 2. The question is whether the jury must, rather than might, have entertained a doubt about his guilt.[18]
74 In the present case, as well as the evidence of Katherine Nanopoulos, there was evidence from her mother that the applicant and her daughter had borrowed her car on the day of the robbery and returned it about half an hour later. The vehicle had been seen and identified by witnesses to the robbery and located in the driveway of Lynn Nanopoulos. The applicant’s fingerprints had been found on pieces of paper which were located with clothing consistent with that used in the robbery. His fingerprint was also found on the piece of paper recovered in the street near the location of the robbery.
75 In the circumstances, it was well open to the jury to convict on the second count, notwithstanding the inconsistencies in the evidence of the eyewitnesses. As the judge correctly explained to the jury, it was not critical to the offence on the part of the applicant that there were two rather than three participants. It was, in any event, open to the jury to prefer the evidence of Katherine Nanopoulos to that of those witnesses who said that they had seen a third person in the vehicle.
76 The applicant pressed a complaint under this ground which reflected one of the exceptions which defence counsel took to the judge’s charge. The judge had referred to the Crown’s submission that if a third person had been involved in the second armed robbery, that person’s involvement had been ‘slight’. Defence counsel submitted that the involvement of a third person was extremely important. The judge then reminded the jury that, whatever the role of any third person, the defence relied on that involvement as going to the credit of Ms Nanopoulos. This was an entirely appropriate direction to balance the Crown submission. It properly explained to the jury the significance of the issue of a third person’s involvement.
77 This ground must be rejected.
Ground 7 — evidence of burning clothes
78 The applicant contended that the evidence of Katherine and Lynn Nanopoulos in relation to the burning of clothes had not been disclosed to the defence before the trial.[19] As mentioned, this evidence emerged on the final day of the first trial, and was one of the reasons which led the judge to discharge the jury. The applicant submitted that the time for filing notice of the additional evidence should not have been abridged. It was submitted that the discharge of the jury destroyed the momentum in favour of the applicant during the first trial.
79 The submissions now made by the applicant must be considered in light of the way in which defence counsel conducted the first and the second trial. While counsel did not seek the discharge of the jury, nor did he actively oppose it. His only submission was that the applicant wished the trial to proceed as soon as possible. As also mentioned above, there were multiple reasons which led the judge to discharge the jury in the first trial. In these circumstances, there is no substance in the submission now made by the applicant regarding that decision.
80 The challenge to the judge’s decision to abridge time is also without merit. The evidence in question was the subject of full Basha inquiries and was known to the defence before the second trial commenced. Moreover, as noted, counsel for the defence sought the conduct of that trial to proceed as soon as possible. Submissions were made in respect of the prosecution’s request for an abridgement of the time for service of a notice of incriminating conduct under s 7 of the Jury Directions Act 2013. Counsel for the applicant opposed the abridgement of time on the basis that the evidence had only been served on the previous day. He submitted that the onus was on the prosecution to establish that it was in the interests of justice to abridge time. After the prosecutor made submissions, the trial judge asked defence counsel for the basis of his objection, having stated that the evidence was significant and that counsel had received witness statements and was being given the opportunity to examine both of the witnesses on a voir dire before the trial commenced. Counsel said that he could not advance any argument. Leave was then granted to abridge time.
81 In the circumstances, there was no unfairness in the manner in which the additional evidence regarding the burning of the clothes was dealt with by the trial judge. Proposed ground 7 must be rejected.
Ground 8 — bias
82 The next proposed ground of appeal alleges bias on the part of the trial judge. Bias is said to have been manifested by the manner in which the judge conducted himself, including by interfering in the running of the case and in his general tone, demeanour and attitude towards the applicant. While the applicant alleged actual bias, it is convenient to consider also whether the allegations satisfy the test for apprehended bias.
83 The allegations made by the applicant take a variety of forms. In some respects, they are misconceived. For example, it is inapt to complain that a judge in a jury trial has, by his or her conduct in the course of the trial, indicated a prejudgement as to the outcome of the trial. The outcome of the trial is, of course, a matter for the jury. A judge is not liable to be disqualified for bias merely by reason of having formed a view during the trial as to its likely outcome (unless the view is conveyed to the jury in circumstances that imperil the jury’s impartial consideration of the parties’ cases). More usually, the question is whether a predisposition of the judge or other conduct shows, or gives rise to a reasonable apprehension, that the judge did not bring a fair and balanced mind to the performance of his or her judicial functions during the course of the trial.
84 The allegations that are made can be placed broadly in three categories. First, it is alleged that the judge displayed a personal animosity toward the applicant. This was traced back to the first trial. In particular, it was alleged that the judge demonstrated an extremely adverse view of the applicant after unproven allegations were made by Ms Nanopoulos about threats made to her before the first trial. In the course of an objection to evidence of the relevant incident being admitted, the judge observed that the matter was so serious that it would change the nature of the case and affect the whole perception of the matter. The judge observed that the jury were ‘inevitably going to think that they’re two pathetic drug addicts getting some money to buy drugs, and that’s exactly what it is about and that’s exactly what Ms Nanopoulos is going to say’. The applicant says that this material, among other remarks made by the judge, shows that the judge formed a view at an early stage (even before the second trial commenced) as to his guilt. However, the formation of such a view, without more, does not mean that the conduct of the trial has been unfair so as to give rise to a miscarriage of justice. It is not suggested that that view of the judge was conveyed to the jury. Moreover, there is nothing remarkable about a judge having and expressing a view as to the strength of a case, in the absence of a jury, in the course of argument as to the admissibility of evidence or other procedural matters. It was unnecessary for the judge to have described the applicant and Ms Nanopoulos more than once, albeit in the absence of the jury, as ‘pathetic’. However, those statements do not in our opinion demonstrate that there was any bias or unfairness in the manner in which the trial was conducted.
85 Thereafter, it is submitted that the judge indicated an unfavourable disposition towards the applicant through his body language and intonation. No specific part of the transcript was highlighted in the submission, but a review of the audiovisual recording of the trial does not bear it out.[20] Nor did counsel at the trial make any complaint of the nature now raised by the applicant. It is true that the judge expressed strong displeasure about the conduct of several persons in the case. The manner in which Ms Nanopoulos gave her evidence has already been mentioned. Both the prosecutor and counsel for the defence on various occasions appear to have irritated or exasperated the judge. And it must be said, as later discussed in more detail, that the judge and defence counsel clashed repeatedly, albeit primarily in the absence of the jury. Yet none of these incidents can be taken to suggest any personal animosity of the judge toward the applicant.
86 Secondly, it is contended that the judge’s charge to the jury was unbalanced. The lack of balance is not said to have involved the failure to refer to particular matters, so much as the judge having conveyed to the jury that he thought the applicant was guilty. It was submitted that this was done by ‘virtually scoffing’ at the arguments of the defence. Again, a review of the charge reveals that there is no substance in this contention. The fact of the matter is that, aside from giving directions and providing appropriate warnings favourable to the applicant, there was not a lot of evidence upon which the applicant was able to rely. The prosecution case was an overwhelming one and the applicant cannot complain of bias or unfairness on the grounds that the judge reminded the jury of that case.
87 The judge told the jury that the evidentiary issues in the case were ‘pretty straightforward’ and would be able to be resolved by common sense. However, he indicated that he would summarise parts of the evidence to remind the jury of it. Inevitably, much of the evidence mentioned by the judge was that relied on by the Crown. In the course of giving appropriate directions as to the way in which the evidence could be used, some of that evidence was repeated (for example, as evidence which supported the testimony of Ms Nanopoulos, as to whom an unreliable witness warning was necessarily given). At the same time, the judge referred to the evidence of there having been a third offender involved in the Royal Oak armed robbery, contrary to the Crown case, and evidence that Ms Nanopoulos had told Lapa that the applicant had a .44 Magnum (whereas Cheung’s firearm was a .357 Magnum). The judge also reminded the jury of the evidence of Smith that the offender in the first armed robbery had olive skin, which he told the jury was an important piece of evidence. He referred also to prior inconsistent statements of Ms Nanopoulos and the way in which they could be used to assess her credibility.
88 After the judge had given directions as to the way in which the evidence was to be approached, but before he had summarised the evidence or the submissions of the parties, defence counsel took a series of specific exceptions to the charge to that point, under the general ground that the charge was unbalanced. The specific exceptions are not now pressed and so it is not necessary to set them out. Many of them did not allege a lack of balance but complained about the manner in which various items of evidence were described in the charge. The taking of the exceptions was a protracted process, marked by repeated disputes between the judge and defence counsel about the manner in which the relevant matters were being raised and the judge’s highly unfavourable assessment of the way in which defence counsel was conducting the case.
89 The judge subsequently summarised the evidence. He then summarised the cases of the Crown and the applicant. After further exceptions were taken, the judge supplemented these summaries. As already described, this included addressing the evidence of a third person’s involvement in the second armed robbery. Apart from that matter, which has been dealt with under ground 6, no particular objection is now taken to the way in which the judge explained the evidence or the parties’ cases to the jury. Bearing in mind that the judge was not required to remind the jury of every argument put forward by counsel, the summary of the respective cases, and the evidence falling to be evaluated, was accurate and fair, as the law requires.[21]
90 Thirdly, it is necessary to deal with an argument made in a previous version of the applicant’s written case. While the argument was not formally pursued by the applicant, the Crown properly conceded at the hearing of the application for leave to appeal that it arose under the present ground. The submission was, in short, that the judge had inverted the burden of proof by directing the jury that they would need to consider whether there was any plausible explanation advanced as to why Lynn Nanopoulos would commit perjury.[22] In the course of directing the jury as to how they might approach the evidence of Ms Nanopoulos, the judge observed that the principal evidence relied upon to support her evidence was that of her mother Lynn. He continued:
So when you decide whether you are going to accept her evidence or not and this again will be subject to specific directions I give [in relation to] her, you will look at her mother’s evidence and you will have to decide whether you accept her mother’s evidence and [defence counsel] said well — submitted to you that there were numerous opportunities for Katherine Nanopoulos and Lynn Nanopoulos to talk about the case and presumably by that he meant, get their heads together and both give false testimony against the accused man, that is both of them because of course, Lynn Nanopoulos’ evidence plainly implicates the accused in both Charge 1 and Charge 2.So you will need to consider for example, whether or not any cogent plausible explanation was advanced in this case, as to why Lynn Nanopoulos would commit straight up perjury in relation to her observations. Katherine Nanopoulos is in a different category as I am going to explain to you. She got a sentencing discount in relation to the armed robberies that she admitted that she had carried out. I am going to provide you with some specific directions of law tomorrow about that.
But Lynn Nanopoulos is not in that position and her evidence, given as it was from the remote witness facility and she told you that she was depressed and so on. Her evidence is obviously of central importance in this case and you will need to consider whether, as I have said, there was any plausible explanation as to why she would give false testimony against Mr Cook.
That is not to say that Mr Cook has to show that there is some reason for her to do that. Plainly, he does not. The burden of proof remains on the prosecution at all times. There may be reasons why Lynn Nanopoulos would give false evidence against him that he does not know about and that he is not able to identify in any way.
But there was I do not believe anything advanced to Lynn Nanopoulos other than a desire to support her daughter, as to why she would give false evidence implicating Mr Cook. But as I say, that is not to say that there is not a reason. It is just a factor that you will consider and likewise ladies and gentlemen, the observations — not observations, the directions of law that I have given you regarding a witness’ demeanour, you were not really in a position where you could make a terribly accurate assessment of Lynn Nanopoulos’ demeanour, because she was in the remote witness facility.
But you heard her testimony. She was cross-examined pretty extensively. A number of propositions were put to her and so whilst you did not get a chance to see her body language, if I can use that expression, you certainly had a full and complete opportunity to observe her evidence and consider it amongst all of the other evidence that you had heard in the case.
All right, so as I have said in making your decision about the facts, you do not only consider the witness’ testimony, you can also take into account the exhibits and the admissions that are made. Consider all of the evidence in the case, ladies and gentlemen, use what you believe is true and reject what you disbelieve. You give each part of the evidence which you as the judges of the facts think it should be given and then you determine in your judgment, what are the true facts, all right?
91 Counsel for the applicant took exception to the statements set out above. This led to a somewhat heated exchange between counsel and the judge. It is necessary to set it out at some length:
[DEFENCE COUNSEL]: ... The question why would Lynn Nanopoulos commit straight up perjury is, in my submission, a breach of Palmer’s case.HIS HONOUR: Well that’s why I said what I said to them.
[DEFENCE COUNSEL]: Yes. I understand that.
HIS HONOUR: The accused doesn’t have to show any reason and I’ve given them a direction
[DEFENCE COUNSEL]: Well my submission is it was insufficient certainly to have raised the proposition where the prosecutor doesn’t
HIS HONOUR: Well you raised it.
[DEFENCE COUNSEL]: I have not
HIS HONOUR: You raised it. You put to her that her evidence was completely false.
[DEFENCE COUNSEL]: I have not put to her that she’s committed straight up perjury.
HIS HONOUR: It’s the same thing.
[DEFENCE COUNSEL]: Well in my submission, it’s not and Your Honour has
HIS HONOUR: What, false evidence is not perjury?
[DEFENCE COUNSEL]: and the way in which Your Honour has taken it to the jury or instructed the jury is impermissible.
HIS HONOUR: I see.
[DEFENCE COUNSEL]: In my submission, that’s the first and second that Your Honour hasn’t distinguished the comments from the direction of law that Your Honour has made thus far and thirdly, the comments that Your Honour has made to the jury, in combination with the infringement of the rule in Palmer’s case, indicates a lack of balance in relation to the charge thus far.
For example, the comments in relation to witnesses’ demeanour and in particular Lynn Nanopoulos’s demeanour, pointing out that she was cross-examined extensively, but in Your Honour’s opinion was not in a position to — the jury was not in a position to assess her demeanour due to her being in a remote facility.
HIS HONOUR: That was intended to help you.
[DEFENCE COUNSEL]: Well that was, at the end of the day, a comment of Your Honour’s and it ought to be explained to the jury and distinguished from the directions of law. There may be reasons why she would give false evidence, of course, is an attempt to justify, in my submission, the infringement of the rule in Palmer’s
HIS HONOUR: An attempt to justify. That's what you’re accusing me of, are you?
[DEFENCE COUNSEL]: No.
HIS HONOUR: What, some disingenuous direction which is intended to help the accused?
[DEFENCE COUNSEL]: No. It didn’t sound to me as though it was intended to help the accused and in my submission, it reflects a lack of balance thus far.
HIS HONOUR: Yes, you’ve said that.
[DEFENCE COUNSEL]: Yes. They're my submissions, Your Honour.
HIS HONOUR: Do you have anything you wish to say?
[PROSECUTOR]: No, Your Honour. I disagree with the submissions made.
HIS HONOUR: Is there anything unbalanced about what I said, [Mr Prosecutor]?
[PROSECUTOR]: I don’t think so, Your Honour.
HIS HONOUR: It was perfectly appropriate for me to point out that the jury will need to consider why Lynn Nanopoulos has given false testimony. She’s not like a complainant in a sex case, which is what Palmer was concerned with.
[PROSECUTOR]: Yes.
HIS HONOUR: And I pointed out to the jury, however, that even if they couldn’t consider that and reach any conclusion, that in no way affected the burden of proof and that the accused — that there may be a number of reasonings that are unknown to the accused, but in saying so, the accused was in a relationship with Katherine Nanopoulos for six months prior to these events occurring. That he was well known to Lynn Nanopoulos and if there was any possible reason that he knew about that Lynn Nanopoulos would be illdisposed to him, then the jury could consider that.
What wasn’t put, was of course the most obvious reason as to why she would be ill-disposed to the accused and that is the accused got her daughter caught up in drugs and that she believed that his influence had led her daughter to prison. But of course, none of that was put. None of it.
[DEFENCE COUNSEL]: Your Honour, perhaps I ought to say just one thing. I see I’ve got two minutes. The vice in Your Honour’s proposition, why would Lynn Nanopoulos commit straight up perjury is that a jury might take view that goodness me, if we don't convict this man, then Lynn Nanopoulos might get charged with perjury.
HIS HONOUR: Oh God.
[DEFENCE COUNSEL]: That’s right. It would be a travesty of justice if they took that approach.
HIS HONOUR: I see. So the jury might
[DEFENCE COUNSEL]: And that’s why the jury should never be told that a witness is in jeopardy of a charge of perjury if they don’t take a particular
HIS HONOUR: What? I didn’t say that. I didn't say anything like that.
[DEFENCE COUNSEL]: My note was, ‘Why would Lynn Nanopoulos commit straight up perjury?’
HIS HONOUR: Yes, that is by taking the oath to give false evidence and as you said, [defence counsel], attesting to a tissue of lies about your client being at the house and taking bags around the corner and borrowing the car. One tissue of lies after another. So why can’t the jury consider why she would do that?
[DEFENCE COUNSEL]: They can and they should and Your Honour should tell them that they should.
HIS HONOUR: That’s right. And they will. And they will. No doubt they will.
[DEFENCE COUNSEL]: However — no doubt. However, they should not be encouraged in any way shape or form to take the view that if they don’t convict, a witness may be charged with perjury.
HIS HONOUR: I can’t imagine why they could possibly think that.
[DEFENCE COUNSEL]: As a result of Your Honour’s comment.
HIS HONOUR: I see, thank you.
[DEFENCE COUNSEL]: Why Lynn Nanopoulos — why would Lynn Nanopoulos commit straight up perjury.
HIS HONOUR: Yes.
[DEFENCE COUNSEL]: That charge is a matter of law and I’m very concerned that a jury might take that approach given the way Your Honour has put that.
HIS HONOUR: I see, yes, thank you. We’ll adjourn until 10 am.
92 The judge returned to the matter when he resumed giving his charge the following day:
As I have said, it has been submitted to you, on behalf of the accused, that [Lynn Nanopoulos] and her daughter had an opportunity to put their heads together and I said to you yesterday, you will need to consider whether or not there are any reasons for her to give false testimony in this court. But if you are not able to, and I need to emphasise this, if you are not able to determine a reason, that does not mean there is not one. It may be that there is a factor not known to the defence that could have been put to her to explain the coincidence of her testimony. The simple fact is there is no specific reason relied upon, apart from the nature of their relationship. So you will assess Lynn Nanopoulos’ evidence in exactly the same way as you would assess any other witness’ evidence, bearing in mind, this direction that I have given you in relation to her.
93 Counsel for the Crown accepted at the hearing of the application for leave to appeal that the manner in which the judge approached this aspect of his charge was ‘close to the line’. After emphasising to the jury that the burden of proof remained on the prosecution and that the applicant did not have to show any reason for Lynn Nanopoulos to give false evidence, the judge should not have continued by stating that nothing had been advanced to Lynn Nanopoulos, other than a desire to support her daughter, as to why she would give false evidence. However, when read in context, there is no basis for considering that the jury would have misunderstood the burden of proof. It was necessary for the judge to direct the jury in respect of the reliability of the evidence of Lynn Nanopoulos, and in our opinion he did so in a manner which made it clear to the jury that the burden of proof remained at all times upon the prosecution.[23]
94 It is not possible to pass from consideration of the bias ground without addressing a series of exchanges which occurred during the trial culminating in the judge expressing doubt as to whether the applicant could receive a fair trial. They are among many passages where the judge and defence counsel engaged in vigorous and often heated debate, in the absence of the jury, in which the judge expressed adverse opinions about the competence and even the integrity of counsel. For present purposes, it is unfortunately necessary to set out a lengthy series of exchanges in which the judge ultimately raises the question whether the trial being conducted was fair.
95 First, in the course of cross-examining Ms Nanopoulos, defence counsel, seeking to impugn the evidence she had given in her statement while she was in prison, asked the following question which gave rise to the ensuing passage:
Would it be fair to say that you found gaol to be a very unpleasant experience?---No, actually. I’ve made a lot of good friends from it. I — I did my gaol very easy. I — I did a lot of programs in gaol. I did a lot of - - -All right?---Self-help - - -
Just - - -
HIS HONOUR: She’s answering your question.
WITNESS: You — you asked me.
[DEFENCE COUNSEL]: Yes.
WITNESS: I - - -
[DEFENCE COUNSEL]: All right.
HIS HONOUR: She’s saying no, it wasn’t unpleasant.
[DEFENCE COUNSEL]: All right.
WITNESS: I — can I finish that, please, sir?
HIS HONOUR: Yes?---What I was saying?
Yes?---I did a lot of self-help programs, a lot of offending behaviour programs, and I’ve been clean 27 months now off drugs. I have turned my life around. I’m - - -
All right?---Back home with my children.
Thank you. That’s enough.
96 This took place shortly before the witness gave evidence relating to the possibility of the applicant committing crimes in her absence, to which reference has already been made. During the subsequent application for discharge of the jury, the judge observed to the prosecutor that defence counsel had ‘a very unfortunate habit of asking a whole lot of unnecessary questions’. Defence counsel came back to that suggestion in the course of making submissions seeking the discharge of the jury. The following exchange occurred:
[DEFENCE COUNSEL]: Yes. In my submission, what she is suggesting when she says, ‘I know he was up to no good’ is just a propensity to commit criminal offences other than using, and it’s in those circumstances where the answer was non-responsive. Your Honour, I must say, did invite her to continue her answer a couple of questions earlier.HIS HONOUR: That’s because of your incredibly stupid question about whether or not she enjoyed prison. I mean, really.
[DEFENCE COUNSEL]: In my submission - - -
HIS HONOUR: You can’t be serious, asking a question like that.
[DEFENCE COUNSEL]: I was very serious.
HIS HONOUR: This is not a game. Of course she wouldn’t have liked prison.
[DEFENCE COUNSEL]: I know it’s not a game, Your Honour, and - - -
HIS HONOUR: She did her best in there. I mean, obviously, all you have to do is establish that she got a sentencing discount. Why go and ask her a stupid question?
[DEFENCE COUNSEL]: There’s a good reason for that, and I will leave that for my - - -
HIS HONOUR: You think it’s a good reason.
[DEFENCE COUNSEL]: Yes.
HIS HONOUR: I think it’s stupidity.
[DEFENCE COUNSEL]: Your Honour hasn’t heard my final address, and I don’t really see why - - -
HIS HONOUR: This material, the material that you elicit from this witness, is in response to your stupid questions.
[DEFENCE COUNSEL]: Your Honour uses the adjective constantly: ‘stupid’. I don’t - - -
HIS HONOUR: [Defence counsel], for God’s sake, what do you expect with this witness? Of course she’s going to respond. This is the third time you’ve cross-examined her, and you’ve learnt nothing.
[DEFENCE COUNSEL]: I’ve learnt a lot.
HIS HONOUR: It doesn’t look like it.
[DEFENCE COUNSEL]: I’ve learnt a lot: that she is unresponsive, and when - - -
HIS HONOUR: Anyway, I’ve heard enough.
[DEFENCE COUNSEL]: Yes. My submission is that the - - -
HIS HONOUR: What do you wish to say about the discharge application?
[DEFENCE COUNSEL]: Jury should be discharged.
HIS HONOUR: Anything further?
[PROSECUTOR]: I really don’t have anything further to add to that which is discussed between Your Honour and my friend. Your Honour may recall that in the previous trial, there was puttage of this witness, and I anticipate there would be similar puttage about the possibility that others in the drug milieu were desperate enough to commit offences with this accused. All of this, again, as Your Honour has pointed out, is in the setting of people who use and take drugs. It’s sufficiently vague and speculative for it to be treated by - - -
HIS HONOUR: Yes. I will point that out to the jury. Is there anything you want to say over and above what I’ve said?
[PROSECUTOR]: No, Your Honour.
HIS HONOUR: I will continue to use that adjective, [defence counsel]. In my view, some of these questions are asking for trouble — asking for trouble. Thank you.
97 The following day, matters escalated further. The judge had previously ruled that the fact that Ms Nanopoulos had burnt clothes two or three days after the first robbery was not admissible against the applicant. In the course of cross-examining Ms Nanopoulos, defence counsel reminded her of evidence she had given in chief about remembering having burned clothes. The judge had stopped the prosecutor from asking further questions about that matter. When it was raised by defence counsel, the judge sent the jury out and enquired of defence counsel’s intentions as follows:
HIS HONOUR: What do you propose to ask her?[DEFENCE COUNSEL]: Whether she said anything about burning clothes in her statement of 30 April.
HIS HONOUR: So you want to open up all the evidence that I’ve ruled is inadmissible.
[DEFENCE COUNSEL]: No, no. This goes to her credit.
HIS HONOUR: [Defence counsel], you are unbelievable. Unbelievable. I will use my description that I used yesterday. You are stupid. I ruled
[DEFENCE COUNSEL]: I’ve got my role. You’ve got your role.
HIS HONOUR: Yes. But my role — no. But, [defence counsel], you are sailing very close to your ethical responsibilities to this court. You have a primary responsibility to behave in an appropriate manner and to ensure that this process and proceeding is conducted according to law.
[DEFENCE COUNSEL]: Absolutely.
HIS HONOUR: I have ruled that that material is not admissible. Now, if you want to open it up to her credit, this whole area will be opened up, that is, Lynn Nanopoulos’s evidence that your client came back to her house two days later and burnt the clothes. That’s what I’ve ruled out.
[DEFENCE COUNSEL]: Well, I understood Your Honour to rule in an allegation by Lynn Nanopoulos that Mr Cook asked for the clothes to be burnt.
HIS HONOUR: Yes. What occurs on that day is all admissible.
[DEFENCE COUNSEL]: Yes.
HIS HONOUR: Now, she went on and said, ‘I remember burning clothes’.
[DEFENCE COUNSEL]: Yes.
HIS HONOUR: I had ruled that all of that material was not admissible. You didn’t raise it. You didn’t say anything about it. We all moved on. Now you want to open up the whole thing, do you?
[DEFENCE COUNSEL]: I want to ask her
HIS HONOUR: Because what will happen is that she will now attest to burning the clothes, and the jury will infer that your client told her to go back there and do it, and that’s all of the — that’s what the prosecutor wanted to lead, and I ruled that it wasn’t admissible because your client wasn’t present when she performed the act of burning the clothes which is corroborated by her mother’s evidence. That’s what her mother says.
[DEFENCE COUNSEL]: Yes.
HIS HONOUR: So you want to do that, do you, to test her credit?
[DEFENCE COUNSEL]: I want — the only question I was to ask her
HIS HONOUR: [Defence counsel], you answer my question.
[DEFENCE COUNSEL]: Yes.
HIS HONOUR: Do you want to open up all of that material to test her credit?
[DEFENCE COUNSEL]: It doesn’t open it up, with respect.
HIS HONOUR: It does.
[DEFENCE COUNSEL]: All it does
HIS HONOUR: How else do you test her credit?
[DEFENCE COUNSEL]: I will indicate the question I was going to ask to test her credit: whether she said anything whatsoever to the police on 30 April 2013 about burning clothes.
HIS HONOUR: Very well. Meaning she had made it up.
[DEFENCE COUNSEL]: Meaning that she
HIS HONOUR: So her mother can give the evidence that it happened.
[DEFENCE COUNSEL]: Meaning that she has no credit because she has not
HIS HONOUR: She didn’t tell the police that.
[DEFENCE COUNSEL]: She has not told the police something.
HIS HONOUR: Except it did happen.
[DEFENCE COUNSEL]: How does Your Honour know it happened? All it is is
HIS HONOUR: Because Lynn — I didn’t say it happened — Nanopoulos says it happened.
[DEFENCE COUNSEL]: So? That doesn’t make any
HIS HONOUR: I’m not saying it happened.
[DEFENCE COUNSEL]: So what?
HIS HONOUR: I’m not saying it happened. [Defence counsel], I am getting very close to reporting you. Your behaviour in this trial is completely unacceptable. This case has been going for 11 days.
[DEFENCE COUNSEL]: Yes.
HIS HONOUR: It is an embarrassment. Your conduct of this trial, and the ridiculous submissions you make, and points that have no substance, are a serious breach of your duties to this court.
[DEFENCE COUNSEL]: Well, I am, with respect
HIS HONOUR: And your observation then that I said it did happen, I was merely referring to Lynn Nanopoulos’s evidence.
[DEFENCE COUNSEL]: Yes. I understand that now, and referring to
HIS HONOUR: What else could I have meant?
[DEFENCE COUNSEL]: I have no idea, Your Honour, because that evidence is in dispute. It is in dispute.
HIS HONOUR: [Defence counsel], everything is in dispute in this case
[DEFENCE COUNSEL]: No. No, it’s not.
HIS HONOUR: And at the moment I am very — I don’t know what your client’s defence is. ‘These armed robberies were committed by someone from the Middle East’, based on one witness saying, ‘I saw an inch of olive skin’. Is that it?
[DEFENCE COUNSEL]: Well
HIS HONOUR: It’s fanciful.
[DEFENCE COUNSEL]: Yes.
HIS HONOUR: And we’ve been here for 11 days.
[DEFENCE COUNSEL]: Well, that’s the only question I wish to ask, and
HIS HONOUR: Well, if you ask that question, [the prosecutor] will be permitted to lead the evidence from Lynn Nanopoulos that it occurred. She says it occurred. Me having ruled that that evidence is not admissible. What do you want to do?
[DEFENCE COUNSEL]: Proceed.
HIS HONOUR: All right. You ask the question. You will be eliciting evidence that the Crown will rely upon to prove your client’s guilt. I have warned you. You are asking a question when you are bound by the answer.
[DEFENCE COUNSEL]: Yes.
HIS HONOUR: To test her credit, the Crown will be able to reestablish it by leading from Lynn Nanopoulos that that in fact happened, if they wish to do so.
[DEFENCE COUNSEL]: If Your Honour pleases.
HIS HONOUR: Thank you. Could you bring the jury in, please. Do you want to speak to your barrister, Mr Cook? No.
ACCUSED: No.
98 Before Lynn Nanopoulos was to give evidence, the judge raised the question about the burning of the clothes with counsel, as follows:
HIS HONOUR: All right. Well, [defence counsel], you’ve opened up this whole body of evidence which I’ve ruled out. The prosecutor intends to lead it, so that evidence which I ruled is not admissible is now going to be led, that her daughter burnt the clothes a day or two after the first armed robbery. So you’ve opened it up, and I take it you propose to lead all that material, [the prosecutor]?[PROSECUTOR]: Yes, Your Honour.
HIS HONOUR: Yes. Well, it’s going to come in, [defence counsel]. Is there anything you want to say about that?
[DEFENCE COUNSEL]: No.
HIS HONOUR: No. You accept that it’s admissible now, because of your cross-examination?
[DEFENCE COUNSEL]: I don’t accept or reject that. I haven’t made any application. There’s nothing for me to say, Your Honour.
HIS HONOUR: No, but you don’t oppose the prosecutor leading the material?
[DEFENCE COUNSEL]: Well, I could make an application that its prejudicial effect could outweigh its probative value, but
HIS HONOUR: But you opened it up.
[DEFENCE COUNSEL]: Yes.
HIS HONOUR: You opened the whole topic up yourself.
[DEFENCE COUNSEL]: But I’ve decided not to.
HIS HONOUR: Not to what?
[DEFENCE COUNSEL]: To make any application to Your Honour.
HIS HONOUR: Why?
[DEFENCE COUNSEL]: For forensic decisions. It’s a forensic decision.
HIS HONOUR: So — all right. So you — just so I understand that, you wanted the material in?
[DEFENCE COUNSEL]: No.
HIS HONOUR: Well, what are you saying, [defence counsel]?
[DEFENCE COUNSEL]: I’m saying I have
HIS HONOUR: You said you’ve made a forensic decision not to apply to — not to make any application in relation to this evidence.
[DEFENCE COUNSEL]: Yes.
HIS HONOUR: Meaning that you wanted the evidence in, which is why you cross-examined it in.
[DEFENCE COUNSEL]: No. Not at all.
HIS HONOUR: Well, what are you saying?
[DEFENCE COUNSEL]: I have no application before Your Honour.
HIS HONOUR: No. No. I want you to answer the question.
[DEFENCE COUNSEL]: I have no application
HIS HONOUR: No. No. I want you to answer the question. What is the forensic decision?
[DEFENCE COUNSEL]: That is my decision, Your Honour, and it’s not a matter for Your Honour to determine whether I have made a forensic decision one way or another or the reasons for it.
HIS HONOUR: All right. So there’s no application
[DEFENCE COUNSEL]: And I’m not going to entertain that question, sir.
HIS HONOUR: You opened the topic up, despite me warning you not to, because I sent the jury out and I told you the effect of it all. And you then went ahead and asked the questions. You opened the whole topic up, and you make no application in relation to the prosecutor not being permitted to lead the evidence. Is that the position?
[DEFENCE COUNSEL]: The position is
HIS HONOUR: That’s what happened.
[DEFENCE COUNSEL]: I have nothing to say. I’ve got no application.
HIS HONOUR: No. But that’s what happened.
[DEFENCE COUNSEL]: Well, that’s Your Honour summary of what happened.
HIS HONOUR: Well, how is it — is it a wrong summary?
[DEFENCE COUNSEL]: Well, I have nothing to say about that, sir.
HIS HONOUR: Is it a wrong summary?
[DEFENCE COUNSEL]: Well, it’s a summary.
HIS HONOUR: Is it a wrong summary? Would you answer the question?
[DEFENCE COUNSEL]: It’s Your Honour’s summary.
HIS HONOUR: Yes. I’m asking you to answer the question.
[DEFENCE COUNSEL]: I
HIS HONOUR: Do you take issue with the summary of what occurred?
[DEFENCE COUNSEL]: It’s a summary and I don’t take issue with
HIS HONOUR: You don’t.
[DEFENCE COUNSEL]: With a summary.
HIS HONOUR: Thank you.
[DEFENCE COUNSEL]: No.
HIS HONOUR: All right.
[DEFENCE COUNSEL]: I have nothing to say.
HIS HONOUR: Unbelievable. All right. Well, that’s the position, [Mr Prosecutor]. There is no objection to that evidence being led.
[DEFENCE COUNSEL]: Your Honour pleases.
HIS HONOUR: It’s now, it seems, relevant in the trial.
[PROSECUTOR]: Yes, Your Honour.
HIS HONOUR: All right. Well, we will have a short adjournment. Thank you.
(Short adjournment)
HIS HONOUR: [Mr Prosecutor], the evidence that has been introduced under the guise of testing Ms Nanopoulos’s credit is potentially highly probative evidence. For my part, I can see no rationale for what has been done on behalf of the accused, likewise, the evidence in relation to the knife.
[PROSECUTOR]: Yes.
HIS HONOUR: I’m very concerned about the conduct of the defence case, in that I don’t think Mr Cook can get a fair trial on count 2 because of the conduct of his counsel, and generally in relation to count 1. I’m very concerned about it — about the conduct of this trial. I have become exasperated with [defence counsel’s] incompetence, and I don’t think Mr Cook is going to get a fair trial because of that.
I cannot believe what has happened in this trial, some of the decisions that have been made by the defence. It is beyond me, absolutely beyond me. In 35 years as a criminal lawyer, ten years as a silk, I have never seen such incompetence by introducing evidence in a trial which is evidence of the accused man’s guilt. And I, for the life of me, have no idea what his defence is.
[Defence counsel], I am very concerned about your conduct of this trial, as has become obvious. In my view, you have made decisions on behalf of your client that are indefensible.
[DEFENCE COUNSEL]: Well, Your Honour is incorrect. I reject Your Honour’s assertion in relation to incompetence or stupidity. I reject that out of hand. My decisions have been made thoughtfully. They have been made in conference with my client. He agrees with them. They are forensic decisions made from my end of the bar table which has its duties, and I am confident that this jury will hear the reasons for those questions and the answers given in due course.
The defence is simple. Your Honour says you don’t know what it is. It’s simple, that my client was neither robber in either of the two robberies. The essential issue in the trial, as I indicated in my defence response, was the credit of Ms Nanopoulos — Katherine Nanopoulos. I have cross-examined her in accordance with that blueprint, and I reject Your Honour’s criticisms
HIS HONOUR: All right.
[DEFENCE COUNSEL]: Completely.
HIS HONOUR: All right, [defence counsel]. Well, you’re an experienced barrister and you’ve made these decisions on instructions, and my concerns, it seems, are of no concern to you. You have introduced into the trial evidence which I have ruled out, which I formed the view was not admissible against your client. You’ve said to me that you have done that for forensic reasons on instructions, and that’s the end of the matter.
[DEFENCE COUNSEL]: If Your Honour pleases.
HIS HONOUR: The trial can proceed. It seems that you have no concerns at all, [defence counsel], about what I’ve said, so I’m not sure that there’s anything further I can do.
99 It clearly emerges that the judge was highly unimpressed by forensic decisions being made by defence counsel. His reasons for that impression were plainly conveyed and it is understandable that the course being taken troubled the judge. Some of the responses defence counsel gave to the judge’s questions were rather opaque. However, the judge should not have allowed his exasperation with counsel to descend into verbal abuse. No matter what view a judge has of the manner in which counsel is running the case, to insult and demean counsel, even in the absence of the jury, is not only likely to offend and embarrass counsel but also to risk impeding counsel in conducting the trial and thus risk giving rise to a miscarriage of justice. It is necessary to restate what was said by this Court in Piccolotto:[24]
as the conduct of counsel affected the proper course of the proceedings, the judge was entitled to reprove counsel to ensure that witnesses were treated fairly and that the court’s time was not wasted. In doing so, judges, being human, can be expected to react with impatience or irritation from time to time. They may sometimes have to be strong and forceful but they should, no matter the provocation, comport themselves with dignity.
100 Unlike in Piccolotto, the comments of the judge in the present case were not made in the presence of the jury. This was plainly appropriate.[25] It cannot be said, moreover, that the attacks on counsel had the effect of hampering him in the conduct of his defence; it is clear that counsel adopted an approach at least as robust as that of the judge. On the other hand, it is plain that exchanges such as this, in the presence of an accused, may give rise to an apprehension on the part of the accused that his or her counsel is not being treated fairly by the judge.[26] The judge should strive to avoid giving such an impression, although, given that an accused’s impression is necessarily subjective and may well (as here) be mistaken, that may not always be possible. At the same time, however, the question to be addressed concerns the apprehension of a reasonable observer, not the particular accused. A reasonable observer would be taken to be aware that it is the role of the judge to question counsel in the absence of the jury and to oversee the conduct of a fair trial, in the manner explained in Piccolotto and in relation to proposed ground 2 above. That may involve directing questions and comments to counsel, sometimes with vigour. Moreover, it is of course open to trial counsel to seek the disqualification of the judge if he or she believes that the judge’s conduct manifests bias or prevents the performance of counsel’s role so as to deprive the accused of a fair trial. No such application, or suggestion, was made by counsel in the present case. As such, while the accused may have seen the matter differently, the above exchange does not give rise to any reasonable apprehension of bias.
101 The statement by the judge that he did not think the applicant was going to get a fair trial because of the ‘incompetence’ of defence counsel appears to have been made in the heat of the moment. The judge did not act on his concern.[27] Nor is it advanced as a ground of appeal. It appears that, by the end of the exchange set out above, the judge was prepared to accept that defence counsel was acting upon instructions and that he had adopted the course taken for forensic reasons, even if those reasons were not apparent to the judge. In the circumstances, nothing flows from the observation made by the judge.
102 In summary, while on some of the occasions extracted above the judge was needlessly argumentative and rude in his dealings with defence counsel, the manner in which the judge responded to the very challenging circumstances of the trial, including difficulties with witnesses and his highly adverse impression as to the abilities of counsel, gave rise to no miscarriage of justice. While the judge formed the view that the case against the applicant was very strong, and also doubted the competence of counsel, he did not convey those sentiments to the jury. There is no ground for considering that a reasonable apprehension of bias, still less any actual bias, was demonstrated. This proposed ground should be dismissed.
Ground 9 —aggregation of errors
103 The applicant submitted that when the grounds are considered in combination, the effect of the errors is magnified. Reference was made, in particular to the statements about the applicant ‘committing crimes’ (ground 4) and as to his drug use (ground 5). Some of the interventions relied on under ground 2 were said to have bolstered the Crown case on the second count (ground 6). The allegedly late notices of evidence (grounds 3 and 7) were said to have had a cumulative effect.
104 This ground has no substance. Despite some connections between them, the grounds considered above all fail on their merits. Nothing is added by considering them in combination. In particular, the fact that the jury was aware of the applicant’s drug use, taken with the evidence of his violence towards Cheung and the assertion that he could have been ‘committing crimes’ when away from Ms Nanopoulos, did not mean that the jury was at risk of treating him impermissibly as a person of bad character with a propensity toward violent crime. These matters were all the subject of clear directions by the judge, upon which the jury must be taken to have acted.
Conclusion
105 Leave to appeal should be granted (including leave to raise the applicant’s additional grounds), but the appeal should be dismissed.
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[1] See R v Basha (1989) 39 A Crim R 337.
[2] [1967] VicRp 23; [1967] VR 205, 207–8 (Winneke CJ for Winneke CJ, Adam and Barber JJ) (‘Mawson’).
[3] Ibid 208–9.
[4] See, eg, Lars v The Queen (1994) 73 A Crim R 91, 121–2 (Wood, Matthews and BadgeryParker JJ) (‘Lars’); Esposito v The Queen (1998) 45 NSWLR 442, 468 (Wood CJ at CL); R v Lao [2002] VSCA 157;(2002) 5 VR 129, 138–9 [31] (Buchanan JA); Piccolotto v The Queen [2015] VSCA 143 [30] (Redlich, Santamaria and Beach JJA) (‘Piccolotto’).
[5] (1984) 78 Cr App R 23, 32–3 (Purchas LJ for Purchas LJ, Kenneth Jones and Drake JJ) (emphasis in original). See also R v Sharp [1994] QB 261, 272 (Stuart-Smith LJ for StuartSmith LJ, Ward and May JJ);Agostinelli v The Queen (1995) 82 A Crim R 326, 333–4 (Duggan J), 340 (Nyland J); Palmieri v The Queen (1997) 91 A Crim R 120, 133 (Charles JA).
[6] R v T, WA (2014) 118 SASR 382, 391 [37]–[39] (Kourakis CJ). See also Galea v Galea (1990) 19 NSWLR 263, 278–81 (Kirby ACJ; Meagher JA agreeing); Jones v National Coal Board [1957] EWCA Civ 3;[1957] 2 QB 55; Yuill v Yuill [1945] P 15.
[7] [1994] QB 261, 273 (Stuart-Smith LJ for Stuart-Smith LJ, Ward and May JJ).
[8] Lars (1994) 73 A Crim R 91, 125–6 (Wood, Matthews and BadgeryParker JJ). See also Piccolotto [2015] VSCA 143 [41] (Redlich, Santamaria and Beach JJA).
[9] See Whitehorn v The Queen [1983] HCA 42; (1983) 152 CLR 657, 682 (Dawson J).
[10] See Mawson [1967] VicRp 23; [1967] VR 205, 207 (Winneke CJ for Winneke CJ, Adam and Barber JJ); Esposito v The Queen (1998) 45 NSWLR 442, 472–3 (Wood CJ at CL); R v Lao [2002] VSCA 157; (2002) 5 VR 129, 138–9 [31] (Buchanan JA).
[11] [2004] VSCA 164; (2004) 10 VR 15 (‘Cummins’).
[12] Ibid 23–4 [26]–[28] (Ormiston JA; Warren CJ and Winneke P agreeing).
[13] Ibid 25 [29].
[14] Ibid 26 [32].
[15] Ibid.
[16] [2001] VSCA 18; (2001) 119 A Crim R 363.
[17] Ibid 365 [5]–[6] (Brooking and Phillips JJA).
[18] M v The Queen [1994] HCA 63; (1994) 181 CLR 487, 492–4 (Mason CJ, Deane, Dawson and Toohey JJ); Libke v The Queen [2007] HCA 30; (2007) 230 CLR 559, 596–7 (Hayne J); SKA v The Queen [2011] HCA 13; (2011) 243 CLR 400, 405 [11] (French CJ, Gummow and Kiefel JJ).
[19] The applicant relied on R v Devenish [1969] VicRp 95; [1969] VR 737, 739 (Winneke CJ, Gowans and Gillard JJ).
[21] See, eg, R v Lowery (No 3) [1972] VicRp 109; [1972] VR 939, 948 (Winneke CJ, Little and Barber JJ); Basto v The Queen [1954] HCA 78; (1954) 91 CLR 628, 637 (Dixon CJ, Webb, Fullagar, Kitto and Taylor JJ); Domican v The Queen [1992] HCA 13; (1992) 173 CLR 555, 561 (Mason CJ, Deane, Dawson, Toohey, Gaudron and McHugh JJ).
[22] See Palmer v The Queen [1998] HCA 2; (1998) 193 CLR 1.
[23] See, eg, Glover v The Queen [2016] VSCA 91 [27]–[33] (Osborn, Beach and McLeish JJA).
[24] [2015] VSCA 143 [42] (Redlich, Santamaria and Beach JJA) (citations omitted). See also R v T, WA (2014) 118 SASR 382, 403 [77] (Kourakis CJ).
[25] [2015] VSCA 143 [43].
[26] In the absence of the jury, the trial judge noted that the applicant was ‘laughing a lot in the dock’. After that, the following exchange occurred:
HIS HONOUR: ... I’m happy I entertain you, Mr Cook.ACCUSED: Well, you do.
HIS HONOUR: Yes, good.
ACCUSED: You’re ridiculous.
HIS HONOUR: I’m pleased to hear that.
ACCUSED: Well, you address me. I will address you.
[DEFENCE COUNSEL]: Can I go speak to my client, please, your Honour?
HIS HONOUR: It’s unbelievable.
ACCUSED: You are, sir. Why don’t you cross-examine some more witnesses?
[27] However, the judge felt obliged to renew his criticisms of counsel’s competence and integrity in the course of hearing exceptions to his charge to the jury.